In United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), CAAF held that charged offenses may not be used for propensity purposes under Mil. R. Evid. 413.

In Lewis v. United States, 76 M.J. 829, No. 2017-05 (A.F. Ct. Crim. App. Sep. 20, 2017) (link to slip op.) (discussed here), a three-judge panel of the Air Force CCA denied a petition for extraordinary relief in the nature of a writ of coram nobis that sought retroactive application of Hills to cases where the appeals are over and the conviction is final.

Now, rejecting a pair of petitions for extraordinary relief, a three-judge panel of the Navy-Marine Corps CCA follows suit and concludes that CAAF’s decision in Hills does not apply retroactively.

First, in Burleson v. United States, __ M.J. __, No. 200700143 (N.M. Ct. Crim. App. Feb. 26, 2018) (link to slip op.), the panel concludes that Hills is non-retroactive and that the petition seeks to reevaluate issues raised (but rejected) during the ordinary appeal. Next, in Pierre v. United, No. 201300257 (N.M. Ct. Crim. App. Mar. 8, 2018) (link to slip op.), the panel applies Burleson while noting that the petitioner was confined (and so should have filed a petition for a writ of habeas corpus).

Judge Woodard writes for the panel in both decisions.

In Burleson, Judge Woodard observes that:

We acknowledge that if the petitioner’s case were to come before us today on direct review, we would be bound by our superior court’s holding in Hills. For the purposes of this petition, we note the military judge in petitioner’s case did not repeat the precise instructional error in Hills. . . .

Slip op. at 3 n.6. Judge Woodard doesn’t specifically state that the CCA would have affirmed had it applied Hills, but he indicates that the CCA’s original review affirmed on grounds that were independent of Hills:

In their briefs, counsel addressed the MIL. R. EVID. 413 concerns raised at trial, the severance motion, and the petition for mistrial. The MIL. R. EVID. 413 propensity instruction and the prejudice arguably resulting from the use and misuse of sexual assault propensity evidence by the members in reaching their findings were central themes throughout the appellate defense counsel’s briefs.

In addressing the AOEs raised by appellate defense counsel, this court quoted the MIL. R. EVID. 413 propensity instruction, citing it as one of several factors for determining that the improperly considered extraneous material had no spillover effect or impact on the members’ decision to convict the petitioner of rape. We concluded that “[t]he members carefully reviewed the evidence, and rendered a verdict based on that evidence and not on the appellant’s propensity to commit sexual assaults.” Burleson, 2008 CCA LEXIS 386, at *17 (emphasis added).

Slip op. at 7-8 (emphasis in original). As bad as that fact is to Burleson’s chances of winning retroactive application of Hills, there’s also a strong waiver issue.

Back in 2010, CAAF summarily reversed one of Burleson’s convictions in light of its decision in United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) (discussed here). The case was then remanded for a sentence rehearing. During the sentence rehearing (that also occurred before Hills was decided), Burleson’s defense counsel argued that the use of charged offenses for propensity purposes required a mistrial because CAAF had reversed one of the charged offense convictions. But then:

The petitioner then leveraged the petition for mistrial reconsideration motion, as well as other motions filed prior to the resentencing hearing, to obtain a post-trial agreement with the CA. As consideration for the agreement, the petitioner agreed, among other things, to withdraw all pending motions and be sentenced by military judge alone. In return, the CA agreed to suspend all confinement adjudged in excess of 10 years.

Slip op. at 9. In other words, Burleson abandoned the issue in exchange for a lighter sentence. That’s not waiver mania; it’s just waiver. Judge Woodard explains:

The record establishes that the petitioner was fully aware of the matters addressed in the mistrial reconsideration motion, including the MIL. R. EVID. 413 issues it raised. The original motion had been fully litigated in front of him. Furthermore, it was also the basis of several AOEs raised before both this court and the CAAF. Finally, during the resentencing hearing, the military judge specifically directed his attention to the post-trial agreement provision concerning the waiver of the motion, and the petitioner stated that he understood the provision and its impact at his resentencing proceeding and on appeal, and that he was affirmatively and voluntarily waiving the motion. The petitioner voluntarily waived a known right—the petition for mistrial reconsideration motion and the MIL. R. EVID. 413 issues it addressed—at his resentencing proceeding.

Slip op. at 10 (emphasis added).

That leaves Burleson as a relitigation of issues raised during ordinary appellate review and as litigation of a waived issue. Put differently, Burleson is a terrible vehicle to litigate retroactive application of Hills because the case is heavy with reasons to reject the petition independent of whether Hills applies retroactively. Nevertheless, Judge Woodard dutifully considers retroactive application of Hills:

We find that Hills did create a new rule of criminal procedure. We further find that this new rule of criminal procedure does not apply retroactively to petitioner’s case.

Slip op. at 12. This is because:

We find that the new rule of criminal procedure announced in Hills does not fall within one of the two recognized exceptions to non-retroactivity. It is not one which prohibited punishment for certain conduct or prohibited a certain category of punishment for a class of defendants because of their status or offenses. Nor is it “one without which the likelihood of an accurate conviction [in petitioner’s case was] seriously diminished[,]” and it did not “constitute a previously unrecognized bedrock procedural element that [was] essential to the fairness of [petitioner’s] proceeding.” Bockting, 549 U.S. at 420, 418.

Slip op. at 16-17. This is the same conclusion reached by the Air Force CCA in Lewis.

Pierre is basically a Burleson trailer, with two twists. First, unlike in Burleson, the petitioner in Pierre did not litigate the 413 issue during ordinary review. Second, “the petitioner has not yet completed serving his sentence to confinement,” meaning that coram nobis is unavailable (because habeas corpus is available). Slip op. at 5.

Addressing the availability of habeas corpus, Judge Woodard explains:

When a petitioner “is still in confinement, coram nobis relief is unavailable.” United States v. Gray, 77 M.J. 5, 6 (C.A.A.F. 2017) (citing Loving v. United States, 62 M.J. 235, 254 (C.A.A.F. 2005)). If a petitioner “has a remedy other than coram nobis to rectify the consequences of the alleged errors, namely a writ of habeas corpus in the Article III courts: ‘an extraordinary remedy [such as coram nobis] may not issue when alternative remedies, such as habeas corpus, are available.’” Id. (quoting Denedo, 556 U.S. at 911) (modification in original). Because the petitioner is still serving his sentence to confinement he may seek habeas corpus relief. Thus, the petitioner fails to satisfy the second Denedo threshold requirement.

Slip op. at 5 (marks in original). Nevertheless, the CCA considers the merits of the petition and applies Burleson:

Even assuming, arguendo, that the petitioner had completed his sentence to confinement, the petitioner still fails to provide any new information which we can properly consider. We concede that the new information presented in the petition—the Hills decision—could not have been discovered through the exercise of reasonable diligence prior to his judgment. However, because Hills announced a new rule of criminal procedure that does not apply retroactively to his case, the petitioner cannot claim its benefit, and we cannot consider this new information to grant coram nobis review. Burleson, 2018 CCA LEXIS 87, at *29. Thus, he also fails to meet the fourth Denedo threshold requirement.

Slip op. at 5.

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