Week in Review

United States District Court, D. Kansas

Miller v. United States.

This matter is a petition for a writ of habeas corpus filed under 28 U.S.C. § 2241. Petitioner is confined at the Joint Regional Correctional Facility at Fort Leavenworth, Kansas. Petitioner challenges his conviction by general court-martial. 

This matter is before the Court on Petitioner's motion for temporary release. Respondent has filed a response to the motion and Petitioner has replied. The Court finds that temporary release pending a decision on the petition is not warranted in this case.

Pros se petitions from those confined at the USDB and JRCF are quite common. The 10th Circuits "full and fair consideration" standard on a federal habeas is tough, and so most petitions from there are pro se. I may be wrong, but I think this is the first in many years where the petitioner has asked for release pending decision. Perhaps this is a case where the court already perceives the petitioner will lose on the merits.

Court of Military Appeals

United States v. Howe. Appellant was charged and convicted of using contemptuous words against the President of the United States and conduct unbecoming an officer. Charges of public use of language disloyal to the United States with design to promote disloyalty and disaffection among the troops and civilian populace, were dismissed pretrial. Appellant was sentenced to a dismissal, TF, and two years at-hard-labor. The CA commuted one year of confinement. On appeal, he challenged his conviction on First Amendment grounds and other legal issues. The Army Board of Review affirmed the findings and sentence. CoMA denied a petition for review and a petition for reconsideration of the denial. There was no direct avenue to the Supreme Court, and there wouldn't be if the case arose today.

See also Col Jeremy S. Weber, USAF, The Curious Court-Martial of Henry Howe. 55 Tulsa L. Rev. 109 (2019).

The author reviews the character and events leading up to the, so far, only conviction of an active duty officer for violating Article 88, UCMJ.

Howe was not on duty and wore civilian clothes. A newspaper report shortly after the demonstration noted that spectators did not notice Howe was a military member. In the interview for this article, Howe stated he believed his actions were in  compliance with Army regulations. A review of Army regulations in effect at the time seems to support his position.

AV2 v. Cook.

Summary Disposition
 
No. 22-0009/AR. AV2, Appellant v. John H. Cook, Colonel, U.S. Army, Appellee and Clinton Murray, Master Sergeant, U.S. Army, Real Party in Interest. CCA 20210409. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is denied.

The ACCA opinion does not appear on its public website.

Air Force Court of Criminal Appeals

In re KC. In this writ petition, the AFCCA denied the petition finding no abuse of discretion by the miiltary judge. At a Dubay hearing, the government sought to have all witnesses testify remotely. The MJ denied the motion. The complaining witness,

contends that her travel to the United States from Australia for the hearing violates: her “right to be reasonably protected from the accused,” see Article 6b(a)(1), UCMJ, 10 U.S.C. § 806b(a)(1); her “right to be treated with fairness and with respect for [her] dignity and privacy,” see Article 6b(a)(8), UCMJ, 10 U.S.C. § 806b(a)(8); and her “right to proceedings free from unreasonable delay,” see Article 6b(a)(7), UCMJ, 10 U.S.C. 806b(a)(7). Petitioner argues that requiring in-person testimony violates her Article 6b, UCMJ, rights because: (1) it will subject her to ongoing fear of TSgt Leipart and his family; (2) requiring her to travel halfway around the world for a hearing during the COVID-19 pandemic  ​is cruel and “defies tenets of basic dignity and fairness;” and (3) delaying the hearing is unreasonable when remote testimony is a viable option.

The Dubay issue is whether the CW committed fraud upon the court--a factual and credibility issue.

Army Court of Criminal Appeals

United States v. Rudometkin.

Military Commissions

Here is a link to the transcript for the sentencing hearing in Khan.

​Unofficial/Unauthenticated Transcript of the Majid Shoukat Khan Motions Hearing Dated 10/29/2021 from 9:52 AM to 4:38 PM

Cheers