With regard to the petitioner, his convictions and sentence became final under Article 71(c)(1)(A), UCMJ, on 16 November 2010. Consequently, the decisions in Fosler and Humphries will not be retroactive in the petitioner’s case unless their application would constitute a new rule of substantive law or amount to a “watershed” rule of criminal procedure.
The new rule announced in Fosler and Humphries does not amount to a substantive change to the law. The Court’s decisions do not “necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him.” Schriro, 542 U.S. at 352. Rather, these holdings, in essence, required the Government to allege the terminal element of an Article 134, UCMJ, offense with greater specificity than had been permitted in the past. Indeed, the Fosler Court described this requirement in terms of procedural due process – “No principle of procedural due process is more clearly established than . . . notice of specific charge.” Fosler, 70 M.J. at 229.
Nor do Fosler or Humphries establish a new watershed rule of criminal procedure. Such rules are rare and apply “only to a small core of rules requiring the observance of those procedures that . . . are implicit in the concept of ordered liberty.” Graham v. Collins, 506 U.S. 461, 478 (1993) (citing Teague, 489 U.S. at 311) (internal quotation marks omitted). Such rules must “improve [the] accuracy” of criminal proceedings and “alter [the Court’s] understanding of the bedrock procedural elements essential to the fairness of [those] proceeding[s].” Sawyer v. Smith, 497 U.S. 227, 241-42 (1990) (citing Teague, 489 U.S. at 311) (internal quotation marks omitted). Further, the new procedural rule must be so “fundamental” that “without [it] the likelihood of an accurate conviction is seriously diminished.” Schriro, 542 U.S. at 352 (emphasis in the original) (citations omitted). Fosler and Humphries impose a stricter notice requirement for offenses charged under Article 134, UCMJ, but do not amount to a watershed rule of criminal procedure that requires retroactive application. Given that the military judge properly instructed the members on the terminal elements of Article 134, UCMJ, during the petitioner’s court-martial, we do not find that the “likelihood of an accurate conviction was seriously diminished.” Id.