New Scholarly Critique of Habeas Standard of Review

A new student note in the Texas Law Review critiques the standard of review for the collateral review of court-martial convictions. 

Clara Crenshaw, Habeas Review of Courts-Martial: Revisiting the Burns Standard, 99 Tex. L. Rev.

Abstract:

"The 1953 Supreme Court decision Burns v. Wilson, which articulated the standard of review for military habeas corpus petitions, has left the legal community unashamedly confused. While there was no majority opinion, the standard of review advanced by the plurality has largely been taken as the rule emanating from the Court. Accordingly, the test for determining if habeas review is appropriate is whether the military court has given “full and fair consideration” to the claims. Circuit courts of appeal have struggled ever since this decision to configure exactly what “full and fair consideration” means, resulting in many different approaches.

This Note argues that, based on historical analyses and legal developments, a modified version of the Fifth Circuit’s four-prong inquiry in Calley v. Callaway would be a satisfactory solution to the current confusion. This new standard would open the door to many more successful military habeas petitions, while at the same time protecting the distinctive nature of military law. It would do this by properly differentiating between military factual and legal determinations. Factual determinations would be brought in line with civilian habeas, while the military’s special policy needs would be considered in legal determinations. More importantly, however, it would provide a cohesive standard across jurisdictions. The strength of a military prisoner’s habeas petition should not be based upon where he or she is incarcerated."