The Fourth Circuit just issued this published opinion denying habeas relief on military death row inmate Timothy Hennis’s case. The court ruled that the distict court correctly applyed Councilman absention to dismiss Hennis’s habeas petition without prejudice. See Schlesinger v. Councilman, 420 U.S. 738 (1975). Former Navy military judge, and now Circuit Judge, Wynn wrote for a unanimous panel that also included Judges King and Gregory.
Judge Wynn’s opinion notes the general rule that a court-martial doesn’t have jurisdiction “to try an enlisted man for an offense committed in a prior enlistment from which he has an honorable discharge, regardless of the fact that he has subsequently reenlisted in [a military] service and was serving under such reenlistment at the time the jurisdiction of the court was asserted.” Hirshberg v. Cooke, 336 U.S. 210 (1949). The opinion also notes the Clardy Exception, which provides that “where a servicemember is discharged prior to the expiration of his [ETS] for the specific purpose of immediate reenlistment, . . . he can be tried for offenses committed in the earlier enlistment.” United States v. Clardy, 13 M.J. 308, 310 (C.M.A. 1982). And the opinion observed that “there was (and remains) an open factual dispute between the parties regarding the date on which Hennis’s previous term of enlistment was to end,” which could have the effect of placing the offenses within or outside the Clardy Exception.
The Fourth Circuit upheld the district court’s decision not to reach the merits of the Clardy Exception’s applicability due to the Councilman absention principles. 420 U.S. 738.
The Fourth Circuit emphasized that unless the Supremes resolves the matter upon a cert petition seeking review of CAAF’s decision in the case, Hennis will be able to seek habeas relief on his jurisdictional claim following the completion of direct appeal within the military justice system.
Finally, the Fourth Circuit remanded the case to the United States District Court for the Eastern District of North Carolina for correction of erroneous language in the district court’s judgment. (The error was that the judgment purported to grant the respondents’ summary judgment motion on the merits when the judge’s decision dismissed the habeas petition without prejudice and without reaching its merits.)