On June 26, 2017, a petition for a writ of habeas corpus under 28 U.S.C. § 2241 was filed in Rich v. Stackley, Secretary of the Navy, No. 3:17-cv-01298-GPC-JMA. A copy of the petition is available here.

The petitioner was a petty officer in the Navy who, in 2014, was convicted of multiple child sexual offenses and sentenced to confinement for seven years and a dishonorable discharge. The NMCCA affirmed the findings and sentence in 2015 (link to slip op.). CAAF denied review in 2016.

The habeas petition makes three claims. First, it asserts that a court-martial member was dishonest during voir dire, depriving the petitioner of a fair and impartial panel. Second, it asserts that a statement was improperly admitted into evidence under hearsay exceptions. Finally, it asserts that the convictions are factually and legally insufficient. The NMCCA analyzed and disagreed with each of these assertions of error.

Last week the district court ordered a response to the petition. A copy of the order is here. A news headline (here) claims that this order “Overrules Military Court, Reopens Molestation Case,” but that’s totally false. The order is a routine scheduling order under Fed. R. App. P. 21(b)(1). The order also mixes up the parties, naming Stackley as the petitioner.

The petition faces incredibly long odds because the three claims were already considered by the CCA. In Burns v. Wilson the Supreme Court explained that:

The military courts, like the state courts, have the same responsibilities as do the federal courts to protect a person from a violation of his constitutional rights. In military habeas corpus cases, even more than in state habeas corpus cases, it would be in disregard of the statutory scheme if the federal civil courts failed to take account of the prior proceedings — of the fair determinations of the military tribunals after all military remedies have been exhausted. . . . these provisions do mean that, when a military decision has dealt fully and fairly with an allegation raised in that application, it is not open to a federal civil court to grant the writ simply to reevaluate the evidence.

346 U.S. 137, 142 (1953). Put differently, “had the military courts manifestly refused to consider [the] claims, the District Court was empowered to review them de novo.” Id. But “it is the limited function of the civil courts to determine whether the military have given fair consideration to each of these claims.” Id. at 144.

The petition in Rich does not explain why the CCA’s consideration of the issues was either a manifest refusal to consider the claims or not a fair consideration of the claims.

2 Responses to “A collateral challenge to a court-martial conviction”

  1. Dew_Process says:

    This case raises an issue that Burns v. Wilson did not resolve – indeed, the viability of Burns itself is questionable. There was no “majority” opinion in Burns, only a plurality and that opinion has been undermined by two salient factors. First, Burns arose pre-UCMJ. As Justice Frankfurter noted in his separate opinion [neither concurring nor dissenting]:
     

    While this case arose prior to the new Code of Military Justice, 64 Stat. 107, it necessarily will have a strong bearing upon the relations of the civil courts to the new Court of Military Appeals. The short of it is that I believe this case should be set down for reargument.
     

    346 U.S. at 150. Thus, the impact of Article 36, UCMJ, was as Justice Frankfurter implies, was not addressed by the Court.
     
    Second, habeas jurisprudence has changed considerably since Burns which also was addressed by Justice Frankfurter. Specifically, at the time, federal habeas review of state prisoners’ habeas petitions was likewise limited to the jurisdictional issue and the “full and fair consideration” issue – something that has not been the law for many years. Even so, as Justice Frankfurter noted:
     

    I cannot agree that the scope of inquiry is the same as that open to us on review of State convictions; the content of due process in civil trials does not control what is due process in military trials.
     

    Id. at 149. The current habeas corpus statute, 28 USC 2241, does not differentiate between “regular” federal prisoners and those detained as a result of a court-martial conviction and sentence. Congress could have limited the scope of habeas relief for military prisoners as it did in 28 USC 2241(e) [aliens and “enemy combatants”], but did not. Whatever ambiguity remained from Burns was effective resolved [and arguably abrogates Burns] in Boumediene v. Bush, 553 U.S. 723 (2008), which held that the “enemy combatants” held at GTMO could invoke federal habeas corpus proceedings under sec. 2241 to challenge the legality of their on-going detentions. If the holding by the plurality in Burns is still the law vis-à-vis military prisoners, the perverse result is that the GTMO prisoners have more rights than do U.S. military prisoners.
     
    This is one of those “stay tuned” cases that could bring much needed clarity to an obscure, yet highly important, portion of “military justice.”

  2. Zachary D Spilman says:

    I think Burns – which has been relied upon innumerable times since – is clearly based on the UCMJ’s appellate system (a system that became more robust as time passed). Moreover, the statutory scheme discussion from Burns is analogous to the statutory scheme discussion in Jackson v. Virginia, 443 U.S. 307, 323 (1979), where the Court observed that:

    A judgment by a state appellate court rejecting a challenge to evidentiary sufficiency is, of course, entitled to deference by the federal courts, as is any judgment affirming a criminal conviction. But Congress, in § 2254, has selected the federal district courts as precisely the forums that are responsible for determining whether state convictions have been secured in accord with federal constitutional law.

    Congress could have made a similar selection for military cases, but it didn’t.

    Nevertheless, there may well be strong arguments in favor of abandoning Burns and allowing a more robust habeas review of military convictions. This petition, however, doesn’t make those arguments.