In a published decision in Chapman v. United States, 75 M.J. 598, 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.

11 Responses to “The AFCCA agrees that military courts have no jurisdiction to grant habeas relief after a court-martial conviction is final”

  1. Don Rehkopf says:

    This is a case that CAAF needs to grant on to clean up a thoroughly muddied area of post-conviction relief.  Chapman’s rationale is very problematic for three differing reasons:  first, there is considerable authority to the contrary, both at CAAF and at SCOTUS that military courts were intended to have habeas jurisdiction and in fact do; second, Chapman relies on Burns v. Wilson, but that was a pre-UCMJ case, albeit decided by SCOTUS after the UCMJ went into effect; and third, perhaps the most important is the fact that under Chapman’s rationale that one can only seek habeas relief in federal court, federal courts will deny habeas relief because the prisoner has not litigated his complaints within the military justice system, i.e., an “exhaustion” type of argument. And so, the military prisoner is left without a remedy in most cases.
    The underlying problem for military prisoners is that unlike their State and federal counterparts, where there is a trial level court where they can seek relief – obviously that’s not possible under the UCMJ unless CAAF were to significantly modify its DuBay decision or Congress amends the UCMJ to accommodate this anomaly.  To say that a CCA has jurisdiction over a writ of error coram nobis but not that of habeas corpus is reminiscent of the old common law pleading system – something that has long been replaced in  American jurisprudence.
    Consider this scenario from a case I’m presently working on.  Client is convicted at a GCM, gets 15 years, case affirmed on appeal and client’s discharge becomes effective 2 years ago. In January of 2016, client is transferred from the DB to a BoP facility.  Last week, client’s former Company Commander comes forward and admits that (a) he refused to sign the Charge Sheet because he did not believe that the allegations had any merit and were made in retaliation of client’s filing for divorce; and (b) he did not testify at the c-m because the Brigade Commander “reminded” him that his promotion to 0-4 was coming up and that his OPR would be crucial to promotion.
    Now – for me  – there are 2 issues, one the IAC (along with a lot of other delicts) as the original DC never interviewed the CO, even though his name was at the top of the written list the accused gave his DC as “favorable” witnesses; the other, the clear inference of UCI.  Going into federal court on a habeas action for inter alia UCI, is going to get a judicial “huh?”  Yes, I know that I can pigeon-hole this under coram nobis, but that still leaves us with getting a DuBay hearing to “make a record” here.  So we have a “Catch-22” scenario in many ways.
    Comments appreciated.

  2. Zachary D Spilman says:

    (a) No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in section 2255.

    28 U.S.C. § 2244. See also Loving v. United States, 68 M.J. 1, 3-4 (C.A.A.F. 2009) (discussing application of this provision).

  3. Don Rehkopf says:

    That really doesn’t answer the question Zach – the phrase “shall be required” is not a per se prohibition and in conjunction with the latter phrase “that the legality of such detention has been determined . . . .” has been interpreted to prohibit successive petitions by the same petitioner in different jurisdictions, consistent with the approach in Sec. 2254 for State prisoners. But, if it’s an issue that has not been litigated in the military courts, then the argument is that the issue has not yet been determined by another federal court. There was an Army petitioner Roukis, who every time the BoP transferred him to another jurisdiction, filed a new 2241 petition
    The problem is, in addition to the one’s originally noted, that in federal court reviewing military cases on habeas, a different, far more restrictive standard of review is used.  And again, that does not address the exhaustion principle.

  4. Zachary D Spilman says:

    Fair point Don. But I don’t think you’re likely to face a serious exhaustion (Schlesinger deference, really, wouldn’t you agree?) argument in an Article III habeas action on the facts you describe. Moreover, corim nobis isn’t a bad option (again, considering the facts).

    Actually, it seems to me that your client can get two bites: corim nobis in the military (Article I) court and habeas in the district (Article III) court. But if you skip straight to habeas in the military court, then that’s the whole ballgame.

  5. Don Rehkopf says:

    Zach, your logic is good and I agree, and with my facts, coram nobis is a viable option, but there are some cases floating around – generally from the 10th Circuit, that have implicitly imposed an exhaustion requirement.  The whole area involving military prisoners is a muddled mess.  Here is a LINK to a decent law review article that is 50 years old, and things pretty much remain the same.
    The problem is “futility.”  The CCA’s certainly aren’t going bend over backwards to do much, and getting a DuBay hearing is only slightly more likely than winning the lottery.  But, if you don’t litigate it, I’m not prepared to have a federal judge say that we should have litigated it in the military and because we didn’t, it’s forfeited.  Hence the need imho for clarification.

  6. Don Rehkopf says:

    Whoops, forgot one thing.  It’s not really Schlesinger deference – although it acts like it – there’s a whole body of case law under 2241 and 2254 that pretty much mandates trying to litigate the issues in the original forum. And as we all know, absent a standing court-martial, that’s not possible. The theory like most exhaustion theories is that here, “maybe” the military justice system would grant relief and thus, no “federal” intervention by habeas would be necessary.

  7. Peter E. Brownback III says:

    Zachary Spillman,
        Is a military court-martial a “court of the United States” for the purposes of 28 USC 2244? See, ie., 28 USC 451.
        I am not and never have been an appellate person, so this is a real question not a snark. 

  8. Don Rehkopf says:

    COL Brownback:  That too is indeed a good question, but the definition in 451 includes this phrase:  “. . . any court created by Act of Congress the judges of which are entitled to hold office during good behavior.”  Some years back when I was working on one of the GTMO habeas cases – not one of yours – I ran across a federal judge’s ruling in a military habeas case that said the courts-martial did not meet this standard because military judges had no tenure. CAAF judges arguably meet this standard, so if CAAF were to decide issues in a military habeas case, that might trigger 2241, but as I noted above, it’s not a preclusion.

  9. Peter E. Brownback III says:

    Don Rehkopf,
       In one of the six zillion Khadr motions, I had occasion to rule that courts-martial and military commissions were NOT “court(s) of the United States”. However, I was interested to see if there had been some further developments in this area.

  10. Don Rehkopf says:

    COL Brownback – my apologies, that motion probably came from me indirectly. I worked extensively on Hicks and Hamdan, and shared legal research with Omar Khadr’s DC and that was one of the issues they were working on as I recall.  The closest recent case was Boumediene, (2008), but that was probably prior to Khadr’s litigation and does directly address the issue.  I don’t know if any of the pending cases in the DC Circuit raised this issue or not, but after Boumediene, I doubt that it matters.

  11. Zachary D Spilman says:

    You might be on to something Peter E. Brownback III. In particular, the different language used by Congress in 28 U.S.C. § 1651 (the All Writs Act, which unquestionably applies to military appellate courts) and in 28 U.S.C. § 2244 is notable. The former refers to “courts established by Act of Congress” while the latter refers to “a court of the United States.” 

    But (without doing serious research) I will again point to Schlesinger v. Councilman, 420 U.S. 738 (1975), and the Court’s invocation of comity to justify abstention from interfering in an ongoing court-martial. That seems to me to give strong support to the conclusion that a CCA (or CAAF, at least) is a court of the United States. 

    A court-martial, however, as opposed to a CCA or CAAF, is a different beast. “A court-martial is convened on an ad hoc basis, and its inherent authority is more questionable than that of a tribunal existing on a permanent basis.” United States v. Burnett, 27 M.J. 99, 104 (C.M.A. 1988).