For those of us who get excited about jurisdictional and venue issues surrounding attempts to litigate military justice-related matters in federal district court (a group that, sadly, includes me), here’s a treat: a new U.S. district court opinion rejecting a military member’s challenge to the mandatory supervised release program. Moutrie v. Secretary of the Army, __ F. Supp. 2d __, No. CV 09-4456-SVC (RC) (C.D. Cal. July 7, 2010). In the decision, Judge Wilson adopts Magistrate Judge Chapman’s report and recommendation.
Moultrie was put on mandatory supervised release to serve out the final portion of his court-martial sentence. He challenged being put on that program. Here’s what may be the most interesting aspect of the case: Magistrate Judge Chapman rejected DOJ’s argument that the United States District Court for the Central District of California didn’t have jurisdiction. Magistrate Judge Chapman rejected the argument that the proper respondent was the Commandant of the USDB. She reasoned, “[P]etitioner was not physically confined when he filed the pending habeas corpus petition; therefore, the USDB Commandant is not the proper respondent. Rather, the proper respondent is petitioner’s probation/parole officer who supervises his MSR.” This view, which appears to be legally correct, is significant since the United States District Court for the District of Kansas has already rejected a challenge to the MSR program. Huschak v. Gray, 642 F. Supp. 2d 1268 (D. Kan 2009). Had DOJ’s jurisdictional argument prevailed, then all challenges to MSR by former USDB prisoners would be channeled to the United States District Court for the District of Kansas, where they would be rejected pursuant to Huschak, at least until an unsuccessful petitioner sought review from the 10th Circuit. (Huschak didn’t.) To the extent that other districts follow Moultrie, challenges to MSR can be relitigated in any district in which a former USDB inmate reports to a probation/parole officer.
That said, Moultrie was no more successful challenging the program in the United States District Court for the Central District of California than Huschak had been in the Sunflower State. Magistrate Judge Chapman concluded that the MSR program was statutorily authorized, following both the Huschak opinion and the Air Force Court’s Pena opinion. United States v. Pena, 61 M.J. 776 (A.F. Ct. Crim. App. 2005), aff’d, 64 M.J. 259 (C.A.A.F. 2007). She also quickly rejected Moultrie’s constitutional challenge to the MSR program, explaining: “[P]etitioner’s claims are conclusory and insufficient to warrant habeas corpus relief since, among other reasons, petitioner has not shown he lost any good conduct credit when placed on MSR or that his punishment has been increased beyond his 112-month sentence.” Magistrate Judge Chapman noted that her approach to the constitutional question was different than that in Huschak: “Having reached this conclusion, it is unnecessary to address respondent’s claim that petitioner waived Grounds Two and Three by failing to present those claims to the military courts. See . . . Huschak, 642 F. Supp. 2d at 1278 (petitioner waived claim that ‘MSR program violated petitioner’s liberty interest in good conduct time and earned abatement days without due process’ when petitioner ‘did not raise this issue before the military courts, where review would be available’).” But, as Magistrate Judge Chapman also noted, Huschak also rejected the constitutional challenge on the merits.