Phil “My Liege” Cave calls my attention to this recent published 10th Circuit decision discussing the scope of review when considering collateral challenges to court-martial convictions.  Thomas v. United States Disciplinary Barracks, __ F.3d __, No. 09-3291 (10th Cir. Nov. 16, 2010). While offering no solace to Thomas himself, the 10th Circuit’s Thomas opinion seems to offer confined servicemembers a bit more hope than have recent 10th Circuit opinions:

Although our review of court-martial proceedings is narrow, it is not illusory. In Watson, we predicated our holding that full and fair consideration does not require a detailed opinion or certain other indications that a military court diligently reviewed the parties’ arguments. In a case where the briefing is cursory and no indications of full consideration otherwise exist, we may reach a different result. But the thoroughness and adequacy of the briefing in this case, together with the broad deference we grant to the military in collateral review of court-martial convictions, see Watson, 782 F.2d at 144, supports the district court’s determination that Thomas’s claims received full and fair consideration by the military court.

Id., slip op. at 10.

3 Responses to “10th Circuit issues interesting published decision on scope of collateral review of court-martial convictions”

  1. Cloudesley Shovell says:

    I got a chuckle out of the fact that in footnote 3, the Court did not cite Denedo for the proposition that military courts can issue coram nobis writs, relying instead on older precedent.

    As for “a bit more hope”, I don’t think the 10th Circuit was opening any new avenues to relief. Rather, I think the Court was just remarking that it is theoretically possible to get relief, even if such relief may occur only in certain very rare circumstances.

    Finally, if I may say, Rochester Thomas is one heck of name.

  2. Socrates says:

    One ambiguity in the decision is whether “the thoroughness and adequacy of the briefing” included the Respondent/Government’s extensive reply briefs, or if the Petitioner’s briefing ALONE satisfy the requirement.

    The unintended consequence of this decision is that a convicted servicember would be better served (in a habeas posture) by a mediocre appellate attorney having written a pro forma, obligatory, cursory, poorly reserched brief…than by submitting a top-shelf product.

    Concur with Cloudesley Shovell: Rochester Thomas should at least get some confinement credit for his name alone. He sounds too dignified for habeas action; he should be sipping martinis on his yacht with Thurston Howell the III (perhaps thats why he deserted the Army).

  3. Anon says:

    Rochester Thomas must have some kind of record for non-capital, post-trial litigation.

    But, it’s unfortunate that civilian courts’ military habeas cases keep pounding the Burns v. Wilson drum. Burns, first of all was a plurality opinion, where the opinion of the Court was authored by then CJ Vinson. It is notable for Justice Frankfurter’s “complaining” opinion that he [and other unnamed justices] had yet to have the opportunity to examine the appellate record, and so urged that the case be set down for further argument.

    While the Petition for reconsideration was pending, CJ Vinson died. One week after Earl Warren was sworn in as his replacement, the Court denied reconsideration, with CJ Warren recusing himself. Frankfurter’s dissent in the denial of reconsideration [346 U.S. 844(1953)], is remarkable for a number of reasons, not the least being his rejection of the “narrow” review of courts-martial by the federal judiciary.

    Ironically, Frankfurter also called for consideration of whether Johnson v. Zerbst “will be appropriately applied…in the military spherer.” 74 S.Ct. at 7, a question that CMA had answered two years ealier in US v. Clay, 1 C.M.R. 74, 78 (CMA 1951); and again a year earlier in U.S. v. Welch, 3 C.M.R. 136, 141 (CMA 1952).

    The Thomas opinion here assumes that a corum nobis action in a CCA is sufficient ignores the fact that in Loving’s original habeas action at the CAAf, they adopted the federal Massaro rule – at least in IAC cases – to have a trial level evidentiary hearing. While Loving obviously was a DP case, Massaro was not.

    I strongly suspect we’ll see some “refinement” in the law as Gray’s habeas case is litigated at the D.Ct. level in Kansas. Stay tuned.