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.

Calhoun v. United States, Misc. Dkt. No. 2012-01, slip op. at 4 (A.F.Ct.Crim.App. Dec 3, 2012).

6 Responses to “AFCCA finds Fosler/Humphries not retroactive to final cases, denies habeas relief”

  1. Peanut Gallery says:

    How does shifting from “fairly implied” to Schmuck not qualify as a rule that improves the accuracy of criminal proceedings?  Seems to me that all the hand-wringing and Skyfall claims by the Government and the appellate courts might make a prima facie case that the bedrock procedural elements had indeed been altered.

  2. Peanut Gallery says:

    Sorry, wrong case.  Not Schmuck, but to whatever that case was that said statutory elements must be pleaded (was it Winship?).

  3. stewie says:

    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.
     
    It is certainly true that not having to allege at all is less specificity than we have now, where we, you know, have to allege.
     
    “No principle of procedural due process is more clearly established than . . . notice of specific charge.”
     
    But it’s not you know, bedrock, or anything.
     

  4. Michael A says:

    Could you not make all those same arguments re: the confrontation clause and the requirement that the jury find all elements of the offense beyond a reasonable doubt?  But we know that Crawford and Ring are not watershed rules such that they are retroactive to cases on collateral review.

  5. stewie says:

    I think a rule of evidence is somewhat different from whether or not an offense states an offense.

    I think it also compelling that the court in Folser said, hey this has been the rule forever, don’t know why you guys haven’t been following it.

    Crawford (and Ring) were, this is what the rule should have been forever, so change it.

  6. stewie says:

    whether or not a charge states an offense.