The first thing notable about CAAF’s ruling in Templar v. Federal Bureau of Prisons, __ M.J. __, No. 11-8010/NA (C.A.A.F. Nov. 17, 2010), is that former Marine Sergeant Joseph Thomas has changed his name to Solomon Templar.  The second thing is that CAAF denied his habeas petition.

Thomas had been sentenced to death for killing his wife, but CAAF reversed his death sentence because the military judge provided the members with erroneous instructions concerning the sentence voting procedures.  United States v. Thomas, 46 M.J. 311 (C.A.A.F. 1997).  Thomas subsequently pleaded guilty under a PTA that required him to waive applying for clemency or parole.  NMCCA upheld that PTA term, while setting aside a PTA term that said Thomas wouldn’t accept clemency if granted by SECNAV.  United States v. Thomas, 60 M.J. 521 (N-M. Ct. Crim. App. 2004).  Thomas didn’t appeal that ruling to CAAF.  But in a later case, CAAF disagreed with NMCCA’s Thomas opinion and held that a PTA provision waiving the right to request clemency or parole violates R.C.M. 705(c)(1)(B).  United States v. Tate, 64 M.J. 269 (C.A.A.F. 2007).  I don’t know whether “Templar’s” petition for extraordinary relief was an attempt to apply Tate to his case, since CAAF”s denial of the petition doesn’t explain either the nature of the habeas petition or CAAF’s rationale for rejecting it.  Do any of our readers know?

In March, the United States District Court for the Eastern District of North Carolina issued this ruling denying Master Sergeant Timothy Hennis (Ret.)’s habeas petition seeking to stop his capital court-martial on double jeopardy grounds.  As the court-martial case was being litigated, Hennis’s counsel sought injunctive relief from the Fourth Circuit, which was denied in this order.  Hennis was then convicted and sentenced to death.  But the 4th Circuit litigation lives on. 

On Friday, the 4th Circuit issued this order granting Hennis’s counsel’s third request for an extension of time to file an opening brief in support of Hennis’s appeal of the Eastern District’s denial of habeas relief.  The brief is now due on 17 December.  The order notes that “[a]ny further request for extension shall be disfavored.”

Here’s a link to the United States’ response to the petitioner’s traverse in the capital habeas case of Gray v. Gray.

Military death row inmate Ronald Gray’s habeas case has been briefed and pending in the U.S. District Court for the District of Kansas since 7 January 2010.  On Thursday, Judge Rodgers issued this order.  Judge Rodgers accepted additional arguments that Gray’s replacement team of habeas counsel had moved that he accept.  He also gave the United States 30 days to file a surreply.

For those of us who get excited about jurisdictional and venue issues surrounding attempts to litigate military justice-related matters in federal district court (a group that, sadly, includes me), here’s a treat:  a new U.S. district court opinion rejecting a military member’s challenge to the mandatory supervised release program.  Moutrie v. Secretary of the Army, __ F. Supp. 2d __, No. CV 09-4456-SVC (RC) (C.D. Cal. July 7, 2010).  In the decision, Judge Wilson adopts Magistrate Judge Chapman’s report and recommendation.

Moultrie was put on mandatory supervised release to serve out the final portion of his court-martial sentence.  He challenged being put on that program.  Here’s what may be the most interesting aspect of the case:  Magistrate Judge Chapman rejected DOJ’s argument that the United States District Court for the Central District of California didn’t have jurisdiction.  Magistrate Judge Chapman rejected the argument that the proper respondent was the Commandant of the USDB.  She reasoned, “[P]etitioner was not physically confined when he filed the pending habeas corpus petition; therefore, the USDB Commandant is not the proper respondent.  Rather, the proper respondent is petitioner’s probation/parole officer who supervises his MSR.”  This view, which appears to be legally correct, is significant since the United States District Court for the District of Kansas has already rejected a challenge to the MSR program.   Huschak v. Gray, 642 F. Supp. 2d 1268 (D. Kan 2009).  Had DOJ’s jurisdictional argument prevailed, then all challenges to MSR by former USDB prisoners would be channeled to the United States District Court for the District of Kansas, where they would be rejected pursuant to Huschak, at least until an unsuccessful petitioner sought review from the 10th Circuit.  (Huschak didn’t.)  To the extent that other districts follow Moultrie, challenges to MSR can be relitigated in any district in which a former USDB inmate reports to a probation/parole officer.

That said, Moultrie was no more successful challenging the program in the United States District Court for the Central District of California than Huschak had been in the Sunflower State.  Magistrate Judge Chapman concluded that the MSR program was statutorily authorized, following both the Huschak opinion and the Air Force Court’s Pena opinion.  United States v. Pena, 61 M.J. 776 (A.F. Ct. Crim. App. 2005), aff’d, 64 M.J. 259 (C.A.A.F. 2007).  She also quickly rejected Moultrie’s constitutional challenge to the MSR program, explaining:  “[P]etitioner’s claims are conclusory and insufficient to warrant habeas corpus relief since, among other reasons, petitioner has not shown he lost any good conduct credit when placed on MSR or that his punishment has been increased beyond his 112-month sentence.”  Magistrate Judge Chapman noted that her approach to the constitutional question was different than that in Huschak:  “Having reached this conclusion, it is unnecessary to address respondent’s claim that petitioner waived Grounds Two and Three by failing to present those claims to the military courts.  See . . . Huschak, 642 F. Supp. 2d at 1278 (petitioner waived claim that ‘MSR program violated petitioner’s liberty interest in good conduct time and earned abatement days without due process’ when petitioner ‘did not raise this issue before the military courts, where review would be available’).”  But, as Magistrate Judge Chapman also noted, Huschak also rejected the constitutional challenge on the merits.

When we last visited the habeas appeal of Hennis v. Hemlick, No. 10-6400, the Fourth Circuit denied a request to halt retired Army Master Sergeant Timothy Hennis’s capital court-martial pending its resolution of his appeal of the United States District Court for the Eastern District of North Caolina’s denial of his habeas petition.   Hennis v. Hemlick, No. 10-6400 (4th Cir. Apr. 1, 2010). The court-martial proceeded and Hennis was convicted and sentenced to death.

Now the Fourth Circuit has issued this briefing order, under which Hennis’s brief is due on 16 August and the government’s brief is due on 17 September.

Here’s an order from the Eleventh Circuit granting SPC Marc Hall’s motion to voluntarily dismiss his appeal with prejudice as moot.  You will recall that Hall is the Soldier currently facing charges for, among other offenses, making a really bad rap song protesting the stop loss policy in which he allegedly threatens violence against other Army personnel.  His counsel filed suit in the United States District Court for the Southern District of Georgia seeking to prevent his deployment.  That court denied relief in this decision, which led to the now-dismissed appeal.  The rap song is available here.  [EXPLICIT LYRICS WARNING]

The United States today filed this brief in the Fourth Circuit opposing retired Master Sergeant Hennis’s request that proceedings in his capital court-martial be enjoined.

Here’s a link to retired Master Sergeant Timothy Hennis’s latest filing in support of his habeas petition attempting to halt his capital court-martial at Fort Bragg.  As we noted here, U.S. District Court Judge Boyle ordered additional briefing on the habeas petition.  The Respondents’ additional brief is here.  The petition is now ripe for a ruling.

An AUSA today filed this opposition to Retired Master Sergeant Timothy Hennis’s renewed request  that the U.S. District Court for the Eastern District of North Carolina stay his ongoing court-martial proceedings while obtaining additional briefing in his habeas challenge to the court-martial.

And the Fayetteville Observer reports here that court-martial proceedings have ended for the week with a seventh member being seated.

Counsel for Retired Master Sergeant Timothy Hennis today filed this “Renewed Request for a Stay” in U.S. District Court for the Eastern District of North Carolina, seeking to stop his capital court-martial while Judge Boyle considers a habeas challenge to the proceedings.  The military judge in the case, Judge Parrish, declined earlier today to stop the trial pending Judge Boyle’s ruling.

The News & Observer reports here that “Frank Spinner, a Colorado attorney on Hennis’ defense team, said this afternoon that he and the other lawyers will decide by Tuesday morning whether to ask the military judge to halt the court-martial until Boyle issues a final decision. Panel selection is scheduled to begin Tuesday.”

Judge Boyle just issued this order directing additional briefing in the habeas case challenging the capital court-martial proceedings at Fort Bragg in United States v. Hennis.  The order provides:

The Court hereby directs Respondents [essentially the Army] to file a supplemental memorandum on or before March 8, 2010, addressing the following issues:  (1) double jeopardy; (2) abstention; (3) declining to entertain this petition until Petitioner has exhausted all avaivable military remedies; and (4) Petitioner’s status as a member of the military durnig the time between his expiration of term of service (“ETS”) date during his State incarceration, his subsequent release from State custody, and his re-enlistment.  Petitioner is directed to file a supplemental memorandum in response addressing the same issues on or before March 15, 2010.

According to this Daily Comet report, following a hearing today, Judge Boyle declined to make an immediate ruling on Retired Master Sergeant Timothy Hennis’s suit attempting to prevent the Army from court-martialing him.  We’ll periodically check over the weekend to see if a ruling is posted on PACER.  Here’s a link to the News & Observer‘s report on the hearing.

The 11th Circuit today denied Specialist Marc Hall’s request for a stay pending appeal, ruling:

Petitioner’s motion for a stay pending appeal is DENIED, as he does not qualify for such relief.  See, e.g., Nken v. Holder, __ U.S. __, 129 S.Ct. 1749, 1760-1761 (2009).  The Clerk is directed to process any motion for reconsideration as a non-emergency matter.

We’ve posted the ruling here.