Ninth Circuit Court of AppealsErickson v. Blanckensee, No. 19-16165, 2021 U.S. App. LEXIS 34289 (9th Cir. Nov. 18, 2021) . Kelly Erickson appeals pro se from the district court's order denying his 28 U.S.C. § 2241 habeas petition. Prior history: United States v. Erickson, 63 M.J. 504 (A.F. Ct. Crim. App. 2006) aff'd 65 M.J. 221 (C.A.A.F. 2007) cert. denied Erickson v. United States, 552 U.S. 952 (2007). A GP case in which the MJ sentenced him to Life w/poss. of parole. 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. 63 M.J. at 505. 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). 2021 U.S. App. LEXIS 34289, at *1-2. Court of Appeals for the Armed ForcesUnited States v. Horne. CAAF has granted on this issue: WHETHER THE CONDUCT OF THE TRIAL COUNSEL AND SPECIAL VICTIM'S COUNSEL CREATED AN INTOLERABLE STRAIN ON THE PUBLIC'S PERCEPTION OF THE MILITARY JUSTICE SYSTEM. For those who have been arguing that the current SVC program practices create a de facto TC, this might be of interest. The granted issue seems to be a recharacterization of a motion raised at trial and discussed by AFCCA. (1) whether trial counsel and the special victims’ counsel (SVC) created an appearance of unlawful influence by interfering with the attempt by the Air Force Office of Special Investigations (AFOSI) to interview JC’s spouse[.] At a hearing on the motion, the now former TC testified, Q [Trial Counsel]. Did you feel like the victim’s husband had any exculpatory evidence? Any evidence that the government was trying to hide from the defense by not interviewing him? Of note, SA DM [OSI] made contact with TSgt BC and made an appointment to interview him the following week. Before the interview took place, SA DM received a call from Captain (Capt) JP, who was JC’s SVC at the time. Capt JP told SA DM that the interview “needed to be cancelled” and that SA DM should contact TSgt BC through Capt JP. In addition, Capt JP sent an email to SA LJ at Ramstein AB to the effect that the AFOSI should contact Capt JP in order to speak with JC or TSgt BC. The findings and sentence were affirmed. However, one judge dissented on factual sufficiency grounds. The AFCCA will hold oral argument in United States v. Martinez on Dec. 10, 2021. One of the issues is, Issue II: Whether the military judge abused his discretion in failing to compel KMT to answer relevant questions to remedy her obstruction of access to witnesses and evidence. Air Force Court of Criminal AppealsUnited States v. Richard. Forum: Enlisted members. Findings: G2 1x A&B, 1x poss. CP (divers), 1x distro. CP (divers), 1x produce CP (divers). Sentence: 30 days and BCD. Issues:
Decision: No prejudicial error, findings and sentence affirmed. A good case for a relook at how certain, perhaps many offenses, have little or no impact on good order and discipline (but may well be service discrediting--which was not charged here). The court relies on United States v. Davis, 26 M.J. 445, 448 (C.M.A. 1988), which is still good law. But, it seems the Appellant may have a decent argument that Davis is inapplicable here. Davis was a cross-dresser on base case. The Appellant also emphasizes this part of the members' instruction, (With respect to “prejudice to good order and discipline,” the law recognizes that almost any irregular or improper act on the part of a service member could be regarded as prejudicial in some indirect or remote sense; however, only those acts in which the prejudice is reasonably direct and palpable is punishable under this Article.) I wonder if CAAF might take this case and decide there was a charging error here which led to an insufficiency? It would not have to overrule Davis, rather describe that case as inapposite on the facts. Navy-Marine Corps Court of Criminal AppealsUnited States v. Macko, __ M.J. ___ (N-M. Ct. Crim. App. 2021). Forum: MJA GP. Findings: Attempted sex abuse of child, sex abuse of a child, production and possession of CP, and attempted conspiracy to rape a child. (This appears to be a To-Catch-A-Predator case.) Sentence: 96 months, RIR, DD. Issues: (1) Specification 2 of Additional Charge II, alleging production of child pornography, fails to state an offense when Appellant did not produce, create, or manufacture pornographic material; and (2) the MJ judge erred in accepting Appellant’s guilty plea to this specification. Basically the Appellant alleges that the words "knowingly" or "wrongfully" were missing from the specification. During providency the Appellant agreed he was a "principal under Article 77, UCMJ, because he commanded, instructed, encouraged, and directed the minor victim to take the sexually explicit photographs of herself which constitute child pornography." The issue is waiver, which in this case, the court found to be affirmative. The court declines to review past the waiver because the issue is a loser anyway. As with the similar difference between “intentionally” and “knowingly,” we hold that “wrongfully” and “knowingly” describe “two states of mind [that] are not interchangeable” because they “describe differing states of criminal awareness.” Decision: No prejudicial error and affirmed. Note to PHO, SJA, TC: It might be a good idea to review the sample specification in the MCM at IV-142, some unnecessary litigation could have been avoided along with the very slim possibility that the specification is lost on appeal. Appellate practiceBut first, may I suggest the points made go equally to motions practice at trial. At the 2021 Summit of the Appellate Judges Education Institute on November 13, Judge James Earl Graves, Jr. of the Fifth Circuit made a plaintive plea: answer the question. After serving for a decade on the Mississippi Supreme Court before assuming his position on the federal appellate court, Graves said that too many advocates fail to follow that simple command. Justice Beth Watkins, who serves on a Texas Court of Appeals, moderated the panel and agreed wholeheartedly that answering the question posed seemed to be a stumbling point for lawyers. The "cleaned up" debate continues with a caution about overuse and misuse. Two recent posts on this blog ((Clean[] Up) Your House, Your Car, Your Life--Not Your Citations, Counterpoint: Use {cleaned up) or something like it) and my first post (Cleaned Up) Citations, discussed the citation parenthetical (cleaned up) and its use and potential for misuse. In a recent decision, the Eleventh Circuit cited an example of misuse that I thought it important to highlight. Worth the ReadMAJ Joshua B. Fix, The Revenge of Preemption. The Army Lawyer, No. 3, 2021. The military’s new statute criminalizing “revenge porn” is a well-intended law that suffers from serious flaws and requires careful revision. Congress intended the statute, Article 117a, Uniform Code of Military Justice (UCMJ), to prohibit and punish the unauthorized distribution of sexual images without the consent of the individuals depicted in the images. As drafted, however, Article 117a may actually inhibit—rather than enable—the prosecution of “revenge porn.” Congress should revise Article 117a to remedy the problems that inhibit prosecution, and match the function of the law to its purpose. Michael W. Drapeau, Real and Substantive reforms are coming to [Canada]. Nov. 23, 2021; commenting on "Liberals to study plan to move military prosecutors and defence lawyers to civilian justice system." Th[e reforms] would be akin to what has been taking place in Austria, Belgium, the Czech Republic, France, Germany, the Netherlands, and Lithuania who has more or less repealed military jurisdiction over crimes in peacetime and return such jurisdiction to ordinary courts of law. Cheers, Phil Cave
Donald G Rehkopf, Jr.
11/27/2021 11:59:25 am
Erickson is a troubling case. First, how does a case make it to a federal Circuit Court of Appeals without the Court assigning appellate counsel? The legal profession and judiciary should be ashamed.
Anonymous
11/28/2021 09:15:45 am
Welcome to the federal judiciary. Still amazed that many commentators on this site seem to think that an Accused would get more rights outside of the UCMJ and in the federal system.
Defense Counsel
11/28/2021 01:40:58 pm
There is no right to public appellate counsel on a 2241 unless the Court orders it. 2241 and 2255s are always pro se or retained counsel.
Donald G Rehkopf, Jr.
11/29/2021 10:09:20 am
DC: As a general proposition, you are correct. But many Circuits routinely assign appellate counsel once the case makes it to the appellate level.
Defense Counsel
11/29/2021 09:06:18 pm
Never seen an appellate counsel be assigned by the 9th or 3rd Circuits in any of the habeas cases I've done (and there were many). Moreover, few cases ever get an evidentiary hearing. Most are denied by the magistrate then the district judge adopting those findings. The appeal is then on the rulings below, not on the evidence. If the circuit believes the judge screwed up they will send it back. Comments are closed.
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