U.S. District Court for the District of Kansas decision on military’s mandatory supervised release program
Judge Richard D. Rogers of the United States District Court for the District of Kansas has probably decided more collateral challenges to court-martial convictions than any judge in history. He is currently the presiding judge in the military death row habaes case of Gray v. Gray.
Judge Rogers issued a published opinion dealing with a comprehensive, albeit pro se, challenge to the military’s involuntary mandatory supervised release (MSR) program that I’ve overlooked until now. See Huschak v. Gray, 642 F. Supp. 2d 1268 (D. Kan. 2009). The opinion is available on the court’s website here.
Huschak was convicted by an Air Force court-martial based on his guilty pleas in 2002. He received a sentence that included 10 years of confinement, though the CA reduced that to 8 years. AFCCA affirmed in 2004. CAAF granted review and summarily affirmed in 2005. United States v. Huschak, 61 M.J. 154 (C.A.A.F. 2005).
In May 2007, the Air Force Clemency and Parole Board notified Huschak that he would be placed on involuntary mandatory supervised release from his minimum release date in December 2007 until his maximum release date in September 2010. He was actually placed on MSR on 30 November 2007, but Huschack was returned to the USDB in March 2008 because he failed to participate in sex offender treatment and failed to obtain employment. His MSR status was subsequently formally revoked and he was denied credit for the roughly three months plus a week that he spent on MSR. As a function of being placed on MSR and then having that status revoked, Huschak also lost his good conduct time and his earned abatement credit.
Huschak raised a number of challenges to the MSR program, all of which failed.
First, he argued that the program isn’t authorized by statute. Wrong, ruled Judge Rogers. He ruled that the program is authorized by 10 U.S.C. § 952, which allows the service secretaries to “provide a system of parole.” Judge Rogers ruled that “MSR is a ‘parole’ system.” 642 F. Supp. 2d at 1276.
Second, Huschak argued that being placed on MSR increased his sentence in violation of the Double Jeopardy Clause. Judge Rogers ruled that this issue could have been raised before the military courts and is therefore waived. That’s a reminder of how narrow the potential avenue is for a military prisoner to make a successful collateral attack under 10th Circuit case law. Even though Huschak wasn’t even notified that he might be placed on involuntary MSR until after all of his military appeals were complete, Judge Rogers ruled that he couldn’t raise this claim on Article III habeas review because it could have been raised in the military courts. But Judge Rogers went on to say that even if he had reached the claim’s merits, he would have rejected it, relying on Supreme Court caselaw holding that revocation of parole doesn’t violate the Double Jeopardy Clause. Id. at 1277. Judge Rogers also looked at the facts of this case: “Petitioner was sentenced to eight years of confinement. Had petitioner conformed to the conditions of MSR, he would have served less than eight years of confinement. However, his violation of the conditions will not cause petitioner to serve more than eight years of confinement. Therefore, MSR has not increased petitioner’s punishment. . . . Petitioner argues that if he had not been forced to accept MSR, then he would have been released from confinement prior to eight years with the receipt of credit for good conduct. This is immaterial. The AFC&PB had the authority to place petitioner on MSR. Petitioner had no right to expect that he would serve less than eight years confinement, especially if he failed to abide by the conditions of MSR.” Id.
Huschak’s next claim is that “the MSR program violated petitioner’s liberty interest in good conduct time and earned abatement days without due process.” Judge Rogers again held that the issue was waived because Huschak could have raised the issue in the military appellate system years before the event he complained of occurred. (Okay, the last eight words of the previous sentence are my embellishment.) But again, Judge Rogers proceeded to indicate that he would have denied the claim on the merits. He ruled that Huschakreceived the benefit of his good conduct time when he was placed on MSR shortly before his minimum release date. He lost his good conduct time as a consequence of having his MSR revoked, but he received due process as part of the MSR revocation process.
Huschak then argued that his reconfinement violated military regulations. Judge Rogers again concluded that the issue was waived but that even if it were properly before him it wouldn’t succeed. Huscak argued that military regulations define good conduct time as an abatement of confinement. Because his confinement between his minimum release date and his maximum release date had been abated, he argues, he couldn’t be reconfined. Judge Rogers concluded that the regulation allows conditions to be placed on the abatement, observing that the MSR program wouldn’t work if the abatement was unconditional. Construing the regulations as Huschak proposes, Judge Rogers observed, “would, in effect, abrogate the operation of the MSR program.” Id. at 1279.
Huschack then argued that he couldn’t be placed on MSR because it wasn’t part of his announced sentence. Judge Rogers ruled that he could reach the merits of this question because the United States hadn’t argued that habeas review of this challenge was foreclosed. See id. at 1280 n.5. But Judge Rogers quickly disposed of this claim, contrasting the military MSR program — which doesn’t last beyond the period of adjudged and approved confinement — and its federal civilian counterpart, which must be part of the adjudged sentence because it kicks in after the adjudged confinement is served.
Huschak also argued that his guilty pleas were improvident because he wasn’t advised of the possibility of being placed on involuntary MSR. Judge Rogers held this issue was waived by failure to raise it in the military appellate system. But again, he proceeded to reject the claim’smerits: “Parole is not a matter which must be discussed witha defendant prior to a guilty plea. The Supreme Court has noted that it has never held ‘that the United States Constitution requires the State to furnish a defendant with information about parole eligibility in order for the defendant’s plea of guilty to be voluntary, and indeed such a constitutional requirement would be inconsistent with the current rules of procedure governing the entry of guilty please in the federal courts.'” Id. at 1281 (quotingHill v. Lockhart, 474 U.S. 52, 56 (1985)). Judge Rogers concluded, “The possibility that petitioner would be involuntarily placed on MSR was a collateral consequence of his guilty plea, and the failure of the court to warn him of that possibility did not render his plea involuntary or improvident.” Id.
Finally, Huschak argued that being required to participate in a sex offender treatment program violated his Fifth Amendment right against self-incrimination. Judge Rogers reached this claim’s merits because the United States didn’t argue that the issue was foreclosed. Id.at 1281 n.6. Judge Rogers didn’t suggest that such an argument couldn’t ever succeed, but held that Huschak had not presented a sufficient factual basis to prevail. He wrote, “Petitioner must establish that the risk of incrimination from compelled testimony was substantial and real.” Id.at 1282. “Persons asserting a Fifth Amendment privilege are not exonerated from answering merely because they declare that in so doing they would incriminate themselves — their say-so does not of itself establish the hazards of incrimination.” Id. But “petitioner does not state whether petitioner would have been required to admit his guilt regarding matters beyond those counts to which he has already pleaded guilty and been punished.” Id. Judge Rogers also noted that “when the only consequence to a refusal to answer questions is the revocation of supervised release as opposed to criminal liability, courts have found that the Fifth Amendment right to self-incrimination is not implicated.” Id.
Looking at both the United States District Court for the District of Kansas and Tenth Circuit PACER systems, it doesn’t appear that Huschak appealed the adverse ruling.