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.)

16 Responses to “Breaking News: 4th Circuit denies relief in Hennis’s habeas case”

  1. Dew_Process says:

    Not surprising considering how poorly the issue was briefed by the petitioner/appellant.

  2. Phil Cave says:

    But DP, isn’t that the right result.  Hennis has a pending 66, with potential 67, and potential Supremes?  Can’t the habeas wait.  Who knows — heh, heh — he may get relief anywhere in that process.

  3. Cheap Seats says:

    Or he’ll die of old age before it gets there…

  4. Dew_Process says:

    Well, my point is that he shouldn’t have to wait — it’s purely a question of constitutional law (not statutory) and the cases are legion that you can litigate that via a interlocutory litigation.  Consider then LT Watada’s successful “former jeopardy” litigation . . . .

  5. Atticus says:

    Mr. Cave, Cheap Seats-

    You guys are jesting right?  Name the last DP case a CCA did not eventually find a way to bounce.  It might take them a decade, complete with multiple remands for Dubays and the rollover of about 40 different panels, but they will get there.  See Quintanilla and Walker for example.  Still in their forties.  And Hennis could be released even though there’s DNA in his case.

  6. Michael Lowrey says:

    Hennis is already 53 or maybe 54 years old. He may well die of old age (or something else) before all appeals are exhausted and he’s executed.

  7. Cheap Seats says:

    Exactly!  That’s my point of dying of old age.  The 4th Circuit knows that they likely have a decade or so before this case is ripe (under their logic).  As such, they will punt this football down the field, waiting for CCA/CAAF relief or death of the accused (from something other than lethal injection).
    So, yes, there was a jest, but a tongue-in-cheek one.

  8. Cap'n Crunch says:

    Maybe they figure he did it, know that there was no jurisdiction, but figure that this guy should be locked up as long as possible and they want to punt the football down the field.

    In my mind, to be honest, Hennis sort of brought this on himself.  He should have gotten out of the military and ended jurisdiction.  But my guess is he wanted that pension.  Fat good it is doing for him now.

  9. Dwight Sullivan says:


    I’m not taking any position on the specifics of the Hennis case, which I certainly haven’t studied in sufficient depth to have an informed opinion.  But as a result of Mr. Mills and USACIL, we know that DNA evidence is far from infallible.

  10. Dew_Process says:

    To follow up on Col Sullivan’s comments, Brother Cave’s blog notes that the DNA evidence in the Hennis case is far from clear and was initially done in the NC SBI Crime Lab which was found to be problematic at best:

  11. Michael Lowrey says:

    The NC SBI Crime Lab is currently in the middle of a scandal that’s just as bad as the USACIL mess — two murder convictions have been overturned, with in one case the defendant being found actually innocent while the over case is pending retrial — but that does not currently extend to DNA testing. The issues at the SBI lab to date center on a failure to turn over exculpatory evidence and overstating the conclusions from blood splatter analysis. That’s not to say that DNA testing could not be called into question in the future. It’s a developing situation, we’ll have to wait and see.

  12. Atticus says:

    From the link in Dew’s post above: “The defense lawyers have done their own DNA testing and have not shared the results with prosecutors.”  If your own DNA testing exonerated your guy, why would you ever not show it to the Government?  I guess the G could try and spin it, etc.  But why would you wait until trial to spring it?  Sounds dangerous to me.  That is, if it exonerates your guy.  Maybe it didn’t.  Maybe it incriminated him.  My question is, where did they get the Hennis blood sample used to do the testing?  Was it from the 80s or did he give them a new one? 

  13. Michael Lowrey says:

    Atticus, presumably from the 1980s. Hennis retired in July 2004. In spring 2005, a Cumberland County cold case detective sent samples to the SBI lab for DNA testing.

  14. Atticus says:

    I confess I’m not as familar with the exact issues at USACIL.  Was it people deliberately falsifying results to get a specfic suspect or was it poor procedures, mistakes, etc?  Is the problem at the NC lab someone deliberately framing a suspect or is it bad procedures/mistakes?  Because if we are saying bad procedures/mistakes, doesn’t it seem extremely coincidental it would happen to Hennis?  You almost have to go with somebody conspired to frame him up.  If so, is there any evidence to support that theory?  Just wondering. 

  15. Michael Lowrey says:

    The problem at the N.C. SBI crime lab was a combination of bad procedures and an analyst with a strong pro-prosecution bias. A brief summary of the two big cases:
    Greg Taylor: Guy on the prowl for crack late at night in 1991 gets his SUV stuck in a cul de sac. Also found in the same cul de sac was the body of a prostitute. An initial test by the SBI crime lab showed the presence of blood in the SUV. Taylor was convicted of first degree murder in 1993 and sentenced to life in prison. Among the problems in the case: the SBI lab at the time did a further, better test that showed no blood in the SUV. The lab’s procedures at the time were against releasing such test results and they weren’t shared in this case. In 2010, a special three-judge panel found Taylor innocent of the murder. He’s now suing the crime lab. The state AG identified 229 other cases were test results were not shared. In most of those cases, this is likely to be a harmless error. These result sharing/procedural issues are pretty much not at issue from cases from 2004 on.
    Michael Peterson: Successful Durham novelist is accused of killing his wife, whose body was found at the bottom of a bloody staircase in their house in 2001. Peterson was convicted of first-degree murder and sentenced to life without the possibility of parole. Key evidence at trial was blood splatter analysis done by SBI Agent Duane Deaver. Last month, a judge ordered a new trial, finding that Deaver had mislead the court in the original trial by grossly overstating his experience and drawing conclusions that the evidence/science simply does not support.
    Deaver was the same agent that did the blood work in the Taylor case. The SBI fired him about a year ago. The Raleigh News & Observer has done some reporting that Deaver always had a strong pro-prosecution bias.
    Nothing obvious so far that would help Hennis as the lab’s DNA testing has to date not come into question, but the scandal hasn’t run its course yet.

  16. Don Rehkopf says:

    The problems with the NC SBI Crime Lab were not limited to one rogue serologist or section.  They had a policy of not releasing “exculpatory” information or information that wasn’t “pro-prosecution.”  Or simply not doing testing that might help an accused.  The 229 figure was a result of random re-examination of files — not all case-files from the time period were re-looked at.

    I have a case from 2001 out of Ft. Bragg where the SBI did the “forensic” testing.  Through the assistance of a very professional Assistant AG, she pulled out the original crime lab files on my case.  DNA testing on cigarette butts found at the scene was cancelled when the lead detective ascertained that my client was a non-smoker.  The butts have since “disappeared.”  Furthermore, a report that the alleged co-defendant did not have Gun Shot Residue [GSR] on her hands is not supported by the raw lab notes the AAG obtained — but was consistent with the prosecution’s theory that my client, not the co-defendant was the shooter.  At the time, the SBI’s policy was that no lab notes would be released.  For reasons that no one now remembers, USACIL was not involved with any of the forensic testing.

    Hennis’s case was not on the list of randomly reviewed case files, so unless his current attorneys make an application for copies of the complete SBI Lab’s case file in his case, there’s no way to know about the accuracy of the DNA testing that they did.  As I seem to recall from news reports at the time, Hennis’s trial defense counsel moved to have the SBI’s DNA testing re-done by USACIL which the MJ denied.