Ninth Circuit Court of Appeals

Kelly Erickson appeals pro se from the district court's order denying his 28 U.S.C. § 2241 habeas petition. 

Erickson's first contention is that the military did not have jurisdiction to court-martial him for any military offenses committed prior to his enlistment in the U.S. Air Force on August 29, 2001. Although Erickson was enlisted in the U.S. Army from January 22, 1993, to June 13, 2001, he argues that his separation from that service permanently severed all military jurisdiction for any offenses alleged to have occurred during his time in the Army.

​To the extent that Erickson argues § 803(a) is unconstitutional as applied to him, this argument is without merit. Congress is empowered to pass legislation, such as § 803(a), providing "for the Government and Regulation of the land and naval Forces." U.S. Const. art. I, § 8, cl. 14. See also Kinsella v. United States ex. rel Singleton, 361 U.S. 234, 236-37 (1960). And the chief case upon which Erickson relies, United States ex. rel. Hirshberg v. Cooke, 336 U.S. 210 (1949), does not apply because of the 1992 amendments to § 803(a). See Willenbring v. Neurauter, 48 M.J. 152, 161 (C.A.A.F. 1998) (observing that § 803(a) "close[d] the loophole left by Hirshberg when there is a break in military service"), overruled on other grounds by United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018).
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​The appellant initially asserted four errors for our consideration: (1) sentence is inappropriately severe; (2) ineffective assistance of counsel because his trial defense counsel erroneously advised him that he would be eligible for parole in 10 years so he rejected a pretrial agreement (PTA) that would have limited his confinement to 38 years; (3) MJ erred by admitting uncharged misconduct; and (4) trial counsel improperly compared him to Osama Bin Laden, Adolph Hitler, and the Devil during his sentencing argument. In a supplemental filing, the appellant raised four additional errors: (1) pleas were improvident because of his mental and emotional state at trial; (2) the court-martial lacked jurisdiction to try him because Article 3(a), UCMJ, 10 U.S.C. § 803(a), is unconstitutional as applied; (3) his plea to Charge I and its Specification was improvident; and (4) his plea to Charge IV, Specification 5 was improvident.

Following military court proceedings, a federal court may only grant a writ of habeas corpus to "guard against the military courts exceeding their jurisdiction, and to vindicate constitutional rights." Broussard v. Patton, 466 F.2d 816, 818 (9th Cir. 1972) (citations omitted). Review of habeas proceedings "involving military convictions is limited to determining whether the court-martial had jurisdiction of the person accused and the offense charged and whether it acted within its lawful powers." Id. at 818 (citing Sunday v. Madigan, 301 F.2d 871 (9th Cir. 1962)). "[O]nce it has been concluded by the civil courts that the military had jurisdiction and dealt fully and fairly with all such claims, it is not open to such courts to grant the writ simply to re-evaluate the evidence." Id. (quoting Sunday, 301 F.2d at 873). "[I]t is not the duty of civil courts simply to repeat that process—to re-examine and reweigh each item of evidence . . . . It is the limited function of the civil courts to determine whether the military have given fair consideration to each of these claims." Burns v. Wilson, 346 U.S. 137, 144, 73 S. Ct. 1045, 97 L. Ed. 1508 (1953).

Air Force Court of Criminal Appeals

​Seventeen years ago, in the early morning hours of 5 July 2004, Appellant murdered Senior Airman (SrA) AS and SrA AS’s wife, Ms. JS, with a knife. Appellant attempted to murder another Airman, SrA JK, who survived despite suffering grievous wounds inflicted at Appellant’s hands. Later that day, Appellant was apprehended by military law enforcement, and he subsequently confessed to the offenses. Appellant was charged with two specifications of premeditated murder and one specification of attempted premeditated murder, in violation of Articles 118 and 80, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 918, 880.2 These specifications were referred as capital to a general court-martial, and just over a year after his attack, Appellant was found guilty of all three offenses and sentenced to death. 

His approach to the argument was to repeatedly ask the members what they “stand for” and where they would “draw the line.” 

Trial counsel characterized the members’ sentencing decision in terms of the members accepting risk on others’ behalf multiple times.

Although trial counsel’s argument did discuss the specifics of the offenses in the case, his presentation was heavily focused on his entreaty to the members to send a message about what they would personally stand for both regarding Appellant’s case and in the future.

Trial counsel described the members’ obligations in notably personal terms, such as when he asked the members, “From E-6 to O-6, where else in your career will you have the opportunity to draw the line as an individual, and as an Airman on what you will allow?” Trial counsel further told the members their sentence will tell the victims’ families “where you stand as an individual . . . where you stand as an Airman.”

Although trial counsel disparaged the Defense’s evidence as being “hokum” and “ridiculous,” those comments were isolated, infrequent, and limited in scope, such that even if they amounted to error, they did not prejudice Appellant. We decline Appellant’s invitation to read these comments as attacks on trial defense counsel[.]

We find indications that trial counsel accused trial defense counsel personally of making “a blatant mischaracterization” of certain matters and misrepresenting others more concerning. 

​We do find error, however, in trial counsel repeatedly asking the members what their sentence would say about them personally. Trial counsel not only invited the members to consider how they themselves would be seen by others based upon their sentence, he told the members that their sentence would communicate to the victims’ families where they stand “as an individual . . . as an Airman.” Asking members to consider how they would be judged by others by virtue of the sentence they mete out amounts to “an inflammatory hypothetical scenario with no basis in evidence” and is improper.

After his [Sec Austin] remarks, the House Armed Services Committee announced it would investigate the matter. “Both the incident and the efforts to cover it up are deeply disturbing,” Representative Adam Smith, Democrat of Washington and the chairman of the panel, said in an email to The Times.