CAAFlog » Collateral Review

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.

In an order available here, and discussed in a Marine Corps Times article here, United States District Judge Joseph Bianco vacates the Board of Inquiry that ordered the honorable discharge of Marine Major Jason Brezler for misconduct related to mishandling classified information.

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In a published decision in Chapman v. United States, 75 M.J. 596, No. 2014-16 (A.F. Ct. Crim. App. Feb. 18, 2016) (link to slip op.), a three-judge panel of the Air Force CCA finds that the court lacks jurisdiction to consider a petition for a writ of habeas corpus because the court-martial is final under Article 76. The decision is in harmony with a conclusion of the Army CCA in a capital case.

In 2002 the petitioner was sentenced to confinement for life with the possibility of parole for convictions of attempted premeditated murder, rape, sodomy, and burglary. The findings and sentence were affirmed and direct appellate review of the case is complete. United States v. Chapman, No. 35564 (A.F. Ct. Crim. App. 14 July 2006) (unpub. op)., aff’d, 65 M.J. 289 (C.A.A.F. 2007) (summary disp.), cert. denied, 552 U.S. 952 (2007).

Writing for the CCA, Senior Judge Fisher explains that:

We agree with our sister service court that military courts do not have jurisdiction over habeas corpus petitions when a court-martial has completed direct review under Article 71, UCMJ, and is final under Article 76, UCMJ. Gray v. Belcher, 70 M.J. 646, 647 (Army Ct. Crim. App. 2012); see also United States v. Denedo, 556 U.S. 904, 920 n.1 (2009) (Roberts, C.J., dissenting) (noting that the Supreme Court has never questioned that Article 76, UCMJ, limits the jurisdiction of military courts). *FN

We find additional support for this conclusion in the Supreme Court’s rationale when they concluded that military courts have jurisdiction over coram nobis petitions even after the proceedings are final under Article 76, UCMJ. Denedo, 556 U.S. at 916– 17. In doing so, they relied upon a coram nobis petition being an extension of the original proceeding. Denedo, at 912–13. Habeas corpus, conversely, is considered a separate civil case and record. See United States v. Morgan, 346 U.S. 502, 505 n.4 (1954). Consequently, a habeas corpus petition is not an extension of the direct appeal, and the rationale in Denedo does not apply to extend jurisdiction beyond the finality of Article 76, UCMJ.


*FN The Navy-Marine Corps Court of Criminal Appeals reached a different conclusion in Fisher v. Commander, 56 M.J. 691 (N-M. Ct. Crim. App. 2001). However, that court relied on Dew v. United States, 48 M.J. 639 (Army Ct. Crim. App. 1998), which was repudiated in United States v. Arness, 74 M.J. 441, 443 (C.A.A.F. 2015) [(CAAFlog case page)]. Because the underlying rationale has been rejected, we conclude Fisher is no longer persuasive authority on this issue.

Slip op. at 3.

CAAF will hear oral argument in the Air Force case of United States v. Arness, No. 14-8014/AF (CAAFlog case page), on Tuesday, February 10, 2015. The case initially went to CAAF as a writ-appeal of a decision of the Air Force CCA. Petitioner/Appellant (hereinafter “Appellant”) is a Lieutenant Colonel who was convicted of various offenses at a general court-martial and sentenced to confinement for 11 months and a reprimand. That sentence is below the jurisdictional threshold for automatic review by the Air Force CCA under Article 66(b), and so instead the court-martial was reviewed by the Judge Advocate General of the Air Force pursuant to Article 69.

Nevertheless, Appellant sought collateral review by the Air Force CCA in the form of a writ of error coram nobis under the All Writs Act, alleging 13 errors in the court-martial proceedings. The CCA concluded that it had jurisdiction to review the Appellant’s petition, but that he was not entitled to relief. Appellant then appealed to CAAF, raising the same 13 errors. See Gov’t Br. at 2. But CAAF specified a different issue for review:

Whether the United States Air Force Court of Criminal Appeals had jurisdiction to entertain a writ of error coram nobis where there was no statutory jurisdiction under Article 66(b)(1), UCMJ, on the underlying conviction and the case was not referred to the Court of Criminal Appeals by the Judge Advocate General under Article 69(d)(1), UCMJ, and where the Court of Criminal Appeals relied on potential jurisdiction under Article 69(d), UCMJ, as its basis for entertaining the writ (citing Dew v. United States, 48 M.J. 639 (Army Ct. Crim. App. 1998)).

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The decision in Klay et al. v. Panetta et al., No. 13-5081, slip op. (D.C. Cir. Jul 18, 2014), released today affirms the DC District Courts dismissal of Bivens claims against the military chain of command by a group of servicemembers that “allege that they were raped, sexually assaulted, or sexually harassed by their fellow Sailors and Marines, only to suffer retaliation from their superiors for reporting their plight.” The COurt affirms on grounds we’ve previously discussed from Chappell v. Wallace, 462 U.S. 296 (1983), here and here.

McClatchy report here.  Our prior coverage here (DDC dismissal) and here (use of Klay case in the Invisible War). Judges Rogers, Griffith, and Srinivasan file dthe opinion, with Judge Griffith filing a concurring opinion.  His concurrence takes a shot at counsel for the petitioners for raising a claim that SecDef Rumsfeld failed to follow an Act of Congress without a factual basis for it.


A service member convicted by a court-martial and serving a sentence to confinement in a military brig can earn various confinement credits including earned time (ET), good conduct time (GCT), and special acts abatement (SAA). GCT is the most common, and is earned automatically at the rate of 5 days of GCT credit for each month served, pursuant to Department of Defense Instruction (DoDI) 1325.07. The credits are applied against the time to serve, and the prisoner is normally informed of a computed “minimum release date” that can be significantly ahead of the end of the full term of confinement.

For example, an accused sentenced in 2003 to an unsuspended term of confinement of ten years might reach his minimum release date just six years later, in 2009, and then be released from confinement. Such was the case for one Mr. James Banks, who “served nearly twenty years in the Air Force before authorities learned that he had sexually abused his young daughter. When they did, the authorities initiated a court martial proceeding. The court ultimately found Mr. Banks guilty of various sex crimes, sentenced him to ten years in confinement, and he was dishonorably discharged. Following his court martial, Mr. Banks waived his right to appeal through the military court system and began to serve his sentence at Fort Leavenworth.” Banks v. United States, 431 F.App. 755, 756 (10th Cir. 2011) (slip op. avail. here).

The 10th Circuit considered Mr. Banks’ case because when he reached his minimum release date in 2009, he was released from Fort Leavenworth under the mandatory supervised release (MSR) program. MSR is an involuntary parole under the supervision of a U.S. Probation Officer. Military prisoners selected for MSR who refuse to participate in the program may forfeit all earned confinement credits, and could even face additional punitive action. Conversely, participation in the program constitutes acceptance of its terms and a waiver of all earned confinement credits. See DoDI 1325.07, para. 20.b.(4) and (5).

In other words, the prisoner who expects release at the “minimum release date” may instead be surprised by the choice of either more confinement or a close working relationship with a federal probation officer.

Mr. Banks wasn’t exactly thrilled with these options.

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Here is WaPo coverage of the latest turn in the Marine Corps’ bad publicity machine that.  Maj. James Weirick has filed a complaint with the Information Security Oversight Office, which oversees classification procedures across the federal government.

The former head of that office, J. William Leonard, endorsed his complaint.

“I am extremely concerned that the integrity of the classification system continues to be severely undermined by the complete absence of accountability in instances such as this clear abuse of classification authority,” he wrote in a letter to the agency’s directory, John P. Fitzpatrick.

And the drama continues.

Here is a letter on behalf of Capt. James Clement sent to the DoD IG asking him to address UCI by the Commandant in the handling of the corpse desecration cases in Afghanistan.  Pro bono counsel for Capt. Clement are the co-leader of Akin Gump’s white-collar practice, John Dowd, and a Senior Counsel from the firm, James Osborne.  Mr. Dowd is himself a former Marine Corps’ JA.  He’s previously represented Sen. McCain in the Keating 5 investigation and wrote the “Dowd Report” on Pete Rose for MLB Baseball.

Here is a link to the Complaint filed by Susan Burke on behalf of the victim in the Naval Academy sexual assault Art. 32 hearing held last week.  Thanks to many for forwarding it.

So Susan Burke has gone from witness in the Art. 32 hearing to advocate asking the Superintendent to disqualify himself, AP (via ABC News) report here:

A midshipman accusing three former U.S. Naval Academy football players of sexually assaulting her at an off-campus toga party has asked in a federal lawsuit for the school’s superintendent to remove himself from deciding whether the men will be court-martialed, her attorney said Thursday.

The suit filed in Maryland seeks a court order directing Vice Adm. Michael Miller to recuse himself, Attorney Susan Burke said. It says that as the head of the school, Miller is likely to be biased and that he did nothing to prevent lengthy and abusive testimony during a military court hearing on the accusations.

Ms. Burke has interesting notions of standing so this should be . . . interesting, see Cioca v. Rumsfeld here and here.  H/t LB

Here is a link to the cover story of this week’s Marine Corps Times.  The article, titled, “Whistle-blower alleges reprisal by Marine brass, says he won’t back down,” tells the tale of USMC judge advocate (and CAAFlog commenter) Major James Weirick.  It details his run in with other USMC judge advocates relating to alleged UCI in the Marine Corps’ prosecution of the corpse desecration cases in Afghanistan and his DOD IG complaint.  H/T Babu

CAAF today issued a 3-2 decision in LRM v. Kastenberg concluding that the trial judge erred by denying A1C LRM, the alleged victim of a sexual assault, the right to be heard through counsel at the accused’s court-martial, and that the Air Force CCA erred in concluding it lacked jurisdiction to hear A1C LRM’s appeal.  Chief Judge Baker delivered the decision of the court, with Judge Ryan dissenting and Judge Stucky concurring in part and dissenting in part and in the result.

CAAF did not issue the requested mandamus, but instead “returned [the record] to the Judge Advocate General of the Air Force for remand to the military judge for action not inconsistent” with CAAF’s opinion.

Lots of analysis to follow.

CAAF now has only one case left from this term:  United States v. Salyer. 

Here is the SCOTUS decision in US v. Kebodeaux, No. 12-418:

The upshot is that here Congress did not apply SORNA to an individual who had, prior to SORNA’s enactment,been “unconditionally released,” i.e., a person who was not in “any . . . special relationship with the federal government,” but rather to an individual already subject to federal registration requirements that were themselves a valid exercise of federal power under the Military Regulation and Necessary and Proper Clauses. But cf. post, at 1 (SCALIA, J., dissenting). . . .

We conclude that the SORNA changes as applied toKebodeaux fall within the scope Congress’ authority underthe Military Regulation and Necessary and Proper Clauses. The Fifth Circuit’s judgment to the contrary is reversed,and the case is remanded for further proceedings consistentwith this opinion.

Justices Scalia and Thomas dissented.

Here is US District Judge Ellen Lipton Hollander’s opinion in the CCR case.  From the “Conclusion” section of the opinion denying CCR’s request for a preliminary injunction:

In sum, as to certain aspects of plaintiffs’ claims, I do not find that there is a substantial likelihood of success on the merits. And, in light of the actions taken by defendants after this case was filed—to release documents, to commit to expedited release of documents going forward, and to permit unofficial transcription of proceedings by privately retained stenographers—I do not see a substantial likelihood of irreparable harm in the absence of a preliminary injunction. Under these circumstances, the balance of the equities and the public interest do not favor granting a preliminary injunction.

In considering the equities of the case and the public interest, I am mindful of the keen public interest in the court-martial, the right of public access to such proceedings, as well as the extraordinary nature of the relief plaintiffs seek. They ask this Court to intervene collaterally in an ongoing court-martial and issue dictates to the military judge conducting the proceedings, in regard to the management of public disclosures. In light of the measures that defendants have taken to provide the press and the public with access to the ongoing court-martial proceedings, such preliminary, equitable relief is not warranted here. Therefore, plaintiffs’ motion for preliminary injunction is denied by the Order that accompanies this Memorandum.

CCR v. Lind, No. 1:13-cv-01504-ELH, slip op. at 41-42 (D.Md. Jun. 19, 2013). H/t EF

The Washington Post reports in this AP story that the petitioners who sought access to the PFC Manning court-martial, and whose petition was rejected by the ACCA and CAAF on jurisdictional grounds, have refiled in U.S. District Court in Baltimore.

CAAF decided The Center for Constitutional Rights, Glenn Greenwald, Jeremy Sachill, The Nation, Amy Goodman, Democracy Now!, Chase Madar, Kevin Gosztola, Julian Assange, and Wiki[shhh] v. The United States of America and Chief Judge Colonel Denise Lind, No. 12-8027/AR, (opinion) (CAAFlog case page) on April 16, 2013, finding that the Appellants failed to establish that CAAF or the CCA has jurisdiction to grant the relief requested.