In Lewis v. United States, __ M.J. __, No. 2017-05 (A.F. Ct. Crim. App. Sep. 20, 2017) (link to slip op.), Senior Judge Johnson writes for a three-judge panel of the Air Force CCA and denies a petition for extraordinary relief in the nature of a writ of coram nobis.
The petition is based on CAAF’s decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), holding that charged offenses may not be used for propensity purposes under Mil. R. Evid. 413. The petitioner was convicted of numerous sexual offenses at a general court-martial during which the military judge allowed charged offenses to be used for propensity purposes, and the Air Force CCA affirmed the convictions in 2014. United States v. Lewis, No. 38321 (A.F. Ct. Crim. App. 9 Oct. 2014) (link to slip op.), pet. denied, 74 M.J. 263 (C.A.A.F. 2015). The extraordinary relief petition seeks retroactive application of Hills to the case.
The approved sentence, however, included confinement for nine years and the petitioner is still confined, creating a significant hurdle to coram nobis relief. There are six threshold requirements for a coram nobis petition:
(1) the alleged error is of the most fundamental character;
(2) no remedy other than coram nobis is available to rectify the consequences of the error;
(3) valid reasons exist for not seeking relief earlier;
(4) the new information presented in the petition could not have been discovered through the exercise of reasonable diligence prior to the original judgment;
(5) the writ does not seek to reevaluate previously considered evidence or legal issues; and
(6) the sentence has been served, but the consequences of the erroneous conviction persist.
Slip op. at 4-5 (citing United States v. Denedo, 66 M.J. at 113, 126 (C.A.A.F. 2008), aff’d, 556 U.S. 904 (2009)) (paragraphing added). Senior Judge Johnson explains that the second and sixth requirements aren’t satisfied in this case:
Petitioner remains in confinement; therefore, coram nobis is not the sole remedy available to him because he is eligible to seek a writ of habeas corpus from a federal district court. Similarly, Petitioner has failed to demonstrate his sentence to nine years of confinement has been served.
Slip op. at 5.
But Senior Judge Johnson also considers the underlying error, concluding that the “petition would fail on the issue of retroactive application of Hills.” Slip op. at 6.
“Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” Teague v. Lane, 489 U.S. 288, 310 (1989) (emphasis added).
Senior Judge Johnson explains that Hills announced a new rule of criminal procedure after the petitioner’s case was final:
Considering the state of the law at that time, we find that Hills did announce a “new rule” for purposes of Teague. In Teague, the Court stated:
In general . . . a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. . . . To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.
. . .
Hills was not decided until 27 June 2016. However, the CAAF had previously rejected a facial constitutional challenge to Mil. R. Evid. 413 in United States v. Wright, 53 M.J. 476, 483 (C.A.A.F. 2000) and suggested in dicta that Mil. R. Evid. 413 could be applied to evidence of charged as well as uncharged offenses of sexual assault to show propensity. . . . Moreover, in the same year that Petitioner’s case became final, three Courts of Criminal Appeals specifically held that evidence of charged offenses of sexual assault could properly be used under Mil. R. Evid. 413, only to be overruled by Hills the following year. . . .
Thus, Petitioner’s case was final before Hills established a new rule of criminal procedure.
Slip op. at 6-7.
But there are two exceptions to the non-retroactivity of new rules of criminal procedure:
First, the bar does not apply to rules forbidding punishment of certain primary conduct or to rules prohibiting a certain category of punishment for a class of defendants because of their status or offense. . . . The second exception is for watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.
Beard v. Banks, 542 U.S. 406, 416-17 (2004) (marks and citations omitted). The first exception isn’t implicated by this petition, but the second could be. Senior Judge Johnson, however, finds that it doesn’t apply:
To qualify as “watershed,” a new procedural rule must both be necessary to prevent an “impermissibly large risk” of an inaccurate conviction and alter bedrock procedural elements essential to a fair proceeding. Whorton v. Bockting, 549 U.S. 406, 418 (2007) (citations and internal quotation marks omitted). Since Teague was decided, the Court has identified no such watershed rules of criminal procedure meriting retroactive application, and has rejected several that were proposed. See id.
The new procedural rule announced in Hills was not a “previously unrecognized bedrock procedural element that is essential to the fairness” of a trial. Id. at 421. Rather, the CAAF interpreted a military rule of evidence regarding the use of admissible evidence of charged instances of sexual assault, a point it had not previously specifically addressed. Hills, 75 M.J. at 354. That Hills cited fundamental constitutional concerns is not enough to achieve watershed status. See Bockting, 549 U.S. at 418–21. Accordingly, Petitioner is not entitled to the requested relief.
Slip op. at 8.
This is the third time in recent memory that a CCA rejected retroactivity for CAAF decisions. The other two that spring to mind are Washington v. United States, 74 M.J. 560 (A. Ct. Crim. App. 2014), pet. denied, 74 M.J. 270 (2015) (discussed here) (rejecting retroactive application of United States v. Riley, 72 M.J. 115 (C.A.A.F. 2013) (CAAFlog case page)), and Calhoun v. United States, No. 2012-01 (A.F. Ct. Crim. App. 2012) (discussed here) (rejecting retroactive application of the Fosler/Humphries line of cases).