Counsel for Ronald Gray, who is under a presidentially approved death sentence, filed his habeas petition yesterday in U.S. District Court for the District of Kansas. I’ve posted the habeas petition here. It raises the following 18 claims for relief:

CLAIM ONE

DURING PEACETIME, ALLOWING A MEMBER OF THE ARMED FORCES TO BE SENTENCED TO DEATH BY A COURT-MARTIAL PANEL OF LESS THAN TWELVE, WHEN THERE IS NO FIXED PANEL SIZE, PROMOTES UNRELIABILITY, UNDERMINES THE RIGHT TO AN IMPARTIAL FACT FINDER AND SENTENCER AND CREATES AN ARBITRARY FACTOR IN VIOLATION OF THE FIFTH, SIXTH AND EIGHTH AMENDMENTS

CLAIM TWO

IN A CAPITAL COURT-MARTIAL DURING PEACETIME, THE CONVENING AUTHORITY’S POWER TO HAND-PICK MILITARY SUBORDINATES – WHOSE CAREERS HE CAN DIRECTLY AND IMMEDIATELY AFFECT AND CONTROL – TO SERVE AS COURT MEMBERS VIOLATES THE FIFTH, AND EIGHTH AMENDMENT

CLAIM THREE

AN APPELLATE COURT CAN NOT ASSUME THAT THE TRIAL JUDGE MADE A DETERMINATION AS TO WHETHER TRIAL COUNSEL’S EXPLANATION WAS CREDIBLE OR PRETEXTUAL PURSUANT TO BATSON V. KENTUCKY, 476 U.S. 79 (1986), WITHOUT CONDUCTING A FURTHER HEARING ON THE ISSUE, WHEN THE TRIAL JUDGE RULED ON PETITIONER’S BATSON CLAIM WITHOUT EVEN REQUIRING THE PROSECUTOR TO PROVIDE A RACE NEUTRAL EXPLANATION FOR THE CHALLENGE.

CLAIM FOUR

PETITIONER WAS DENIED THE RIGHT TO A FAIR AND IMPARTIAL JURY WHEN THE MILITARY JUDGE IMPROPERLY GRANTED GOVERNMENT CHALLENGES FOR CAUSE AGAINST TWO MEMBERS

CLAIM FIVE

THE PEREMPTORY CHALLENGE PROCEDURE IN THE MILITARY JUSTICE SYSTEM, WHICH ALLOWS THE GOVERNMENT TO REMOVE ONE JUROR WITHOUT CAUSE, IS UNNECESSARY AND SUBJECT TO ABUSE IN ITS APPLICATION AND WAS ABUSED IN PETITIONER’S CASE

CLAIM SIX

PETITIONER WAS DENIED HIS RIGHTS UNDER THE FIFTH, SIXTH AND EIGHTH AMENDMENTS BECAUSE THE PANEL MEMBER SELECTION POOL IN PETITIONER’S CASE DID NOT INCLUDE ANY FEMALES.

CLAIM SEVEN

THE MILITARY JUDGE IMPROPERLY DENIED A DEFENSE MOTION FOR A MISTRIAL BASED ON TRIAL COUNSEL’S COMMENTS ON PETITIONER’S RIGHT TO REMAIN SILENT

CLAIM EIGHT

THE MILITARY JUDGE PRECLUDED THE SENTENCING PANEL FROM CONSIDERING PETITIONER’S BACKGROUND AS A BASIS FOR A SENTENCE LESS THAN DEATH IN VIOLATION OF THE FIFTH, SIXTH AND EIGHTH AMENDMENTS

CLAIM NINE

ARTICLE 18 OF THE UCMJ AND R.C.M. 201(F)(l)(c), WHICH REQUIRE TRIAL BY MEMBERS IN A CAPITAL CASE, VIOLATES THE FIFTH, SIXTH AND EIGHTH AMENDMENT GUARANTEE OF DUE PROCESS AND A RELIABLE VERDICT

CLAIM TEN

R.C.M. 1004’S PROHIBITION AGAINST GUILTY PLEAS IN CAPITAL COURT-MARTIAL DEPRIVED PETITIONER OF A CRITICAL MITIGATING FACTOR AND CAUSED OTHER IRREPARABLE PREJUDICE IN VIOLATION OF THE FIFTH, SIXTH AND EIGHTH AMENDMENTS

CLAIM ELEVEN

PETITIONER WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT HIS CAPITAL COURT-MARTIAL

CLAIM TWELVE

PETITIONER’S APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE FIFTH, SIXTH, AND EIGHTH, AND FOURTEENTH AMENDMENTS

CLAIM THIRTEEN

THE MILITARY JUDGE IMPROPERLY INSTRUCTED THE PANEL JURY IN VIOLATION OF PETITIONER’S FIFTH, SIXTH, AND EIGHTH, AMENDMENT RIGHTS

CLAIM FOURTEEN

THE MILITARY JUDGE DENIED RESOURCES NECESSARY TO RETAIN EXPERT SERVICES IN CRIMINAL INVESTIGATION TO ASSIST THE DEFENSE IN VIOLATION OF THE FIFTH, SIXTH AND EIGHTH AMENDMENTS

CLAIM FIFTEEN

THE AGGRAVATING FACTOR STATED IN R.C.M. 1004(c)(7)(I) IS VAGUE, FAILS TO SUFFICIENTLY CLARIFY THE FACTOR INVOLVED, AND DOES NOT NARROW THE CLASS OF PERSONS ELIGIBLE FOR THE DEATH PENALTY, AND IS THEREFORE INVALID UNDER THE EIGHTH AMENDMENT

CLAIM SIXTEEN

BASED ON THE SUPREME COURT’S REASONING IN RING V. ARIZONA, 536 U.S. 584 (2002), CONGRESS UNCONSTITUTIONALLY DELEGATED TO THE PRESIDENT THE POWER TO ENACT THE FUNCTIONAL EQUIVALENT OF ELEMENTS OF CAPITAL MURDER, A PURELY LEGISLATIVE FUNCTION

CLAIM SEVENTEEN

THE PROPORTIONALITY REVIEW IN THIS CASE WAS INSUFFICIENT AS A MATTER OF LAW IN VIOLATION OF THE FIFTH, SIXTH AND EIGHTH AMENDMENTS

CLAIM EIGHTEEN

THE MANNER IN WHICH THE GOVERNMENT WOULD CARRY OUT PETITIONER’S EXECUTION VIOLATES THE EIGHTH AMENDMENT

11 Responses to “Gray habeas petition filed”

  1. Mike "No Man" Navarre says:

    The logic behind 16 is so solid that I just don’t see how Mr. Obama will be executing the first Servicemember in 40 years.

  2. Anonymous says:

    Is there no finality to be had in a court-martial? Totally absent from their petition is any claim that Gray is innocent. Just carry out the sentence already. He deserves it.

  3. Anonymous says:

    You’re an idiot. Claims 2-7, 9, 11, 13 and 14 all imply he may have been innocent. Just get out of the practice of law already. The world deserves it.

  4. Anonymous says:

    Is it me or have counsel thrown the concept of brief your strongest issue first out the window? Not a knock, just an observation. I can think of reasons for briefing this way; however, I just can see a appellate judge sharpening the executioner’s axe before getting to the meat of the case.

  5. Anonymous says:

    “may have been innocent”? Either he murdered people or he didn’t. Is there a factual dispute anywhere in this case?

  6. Anonymous says:

    Too bad they couldn’t file in the Sixth.

    “Ineffective assistance” here means the defendant got the death penalty.

  7. Dew_Process says:

    Anon 1445: Actually, according to the Record, Claim One is an extremely strong point. The Defense objected at trial to the “less than 12” the MJ offered to adjourn so the CA could appoint more members to eliminate the issue, and it was the TC who objected and the MJ went along.

    Notably, after Gray’s conviction, Congress changed the law back to what it had been since George Washington’s time up to 1951, 12 members in capital cases unless otherwise unfeasible due to the exigencies of the situation. There was no legal impediment to having 12 members – indeed, 15 were originally detailed.

    Tactically, and of course we can agree to disagree here – it may make sense to “lead” with an issue that’s not too UCMJ complex – being convicted and sentenced to death by a panel of six members. Here’s the exchange:
    _______________________________
    MJ: Well, I interrupted my thought merely because if the government were to be of the mind that they wanted to have twelve members, I certainly wouldn’t contest it.

    TC: We are not, Your Honor.

    MJ: All right. Based upon the rationalization advanced previously, the motion for requirement of at least twelve members is denied. [R. 770].
    _____________________________

    The “effect” was that the TC ended up controling the size of the panel!

    [DISCLAIMER: I briefed this issue for an Amicus at SCOTUS in Gray’s first attempt at cert, and relied heavily on COL Sullivan’s seminal article, “Playing the Numbers: Court-Martial Panel Size and the Military Death Penalty,” 158 Mil.L.Rev. 1 (1998). If you haven’t read that article, I commend its scholarship.]

  8. Anonymous says:

    Remember folks this is just the initial petition. Expect numerous briefs to follow.

  9. Cloudesley Shovell says:

    I know nothing of the specifics of collateral habeas review in death penalty cases.

    Since most (if not all) of these issues were litigated and decided adversely to Gray in the military justice system, why does he get a second bite at them via habeas? Or is that normal?

  10. Anonymous says:

    “Death is different” as they say, but you get one habeas shot in the federal system.

  11. Anonymous says:

    One habeas, that is, unless you’re Denedo and out of custody.