Whatever happened

We follow from time to time military appellants after their court-martial is final through the court-martial appeals process to see what happened to the appellant.
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The Volokh Conspiracy notes,

Airman faces court martial for sexually assaulting four female airmen. The jury is instructed that if they determine he committed one of the crimes, they may consider that as evidence showing his propensity to having committed any of the other crimes. They convict. A year after his conviction becomes final, the Court of Appeals for the Armed Forces holds the instruction unconstitutional in a different case. Ninth Circuit: Alas, the decision doesn't apply retroactively.

​Lewis v. United States, __ F.3d ___, 2021 U.S. App. LEXIS 1952 (9th Cir. 2021), a habeas corpus case filed by counsel assigned to the Air Force Appellate Defense shop—one of several that we have been seeing--and good for them!

Lewis was convicted in 2012 for aggravated sexual assault and specifications of wrongful sexual contact. He got nine years confinement. United States v. Lewis, No. ACM 38321, 2014 CCA LEXIS 760 (A.F. Ct. Crim. App. Oct. 9, 2014) (unpub.), rev. den. 74 M.J. 263 (C.A.A.F. 2015). Because CAAF did not grant his petition, Lewis was one of many cases denied direct appeal to the U. S. Supreme Court—that’s the discriminatory effect of Article 67a(a), UCMJ, 10 U.S.C. § 867a(a); see also 28 U.S.C. 1259(3).
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CAAF decided United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) and then United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017), after Lewis’s conviction was final. Lewis petitioned AFCCA for a writ of coram nobis. Lewis v. United States, 76 M.J. 829 (A.F. Ct. Crim. App. 2017), pet. den. 77 M.J. 106 (C.A.A.F. 2017). The AFCCA determined that coram nobis did not lie because Lewis could have filed a petition for habeas corpus in the federal district court and he had not shown his confinement was “served.” 76 M.J. at *7. The court went on to hold that even if Lewis met the coram nobis standard, Hills was anyway not retroactive. Id. at *9. In a footnote, AFCCA said,

​We recognize this conclusion is somewhat at odds with the recent decision of our sister court, in a related but distinct context, in United States v. Hoffman, 76 M.J. 758 (A. Ct. Crim. App. 2017) (finding Hills did not establish a "new rule" for purposes of determining whether the appellant's failure to object to Mil. R. Evid. 414 instructions waived the issue on appeal).

​Id. at 835, n.4. (emphasis added).

Lewis’s case was final before Hills established a new rule of criminal procedure.  Accordingly, we consider whether an exception to the general rule of non-retroactivity applies. New substantive rules—including "decisions that narrow the scope of a criminal statute" and "constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish"—generally do apply retroactively. However, new rules of criminal procedure—rules that "merely raise the possibility that someone convicted with the use of the invalidated procedure might have been acquitted otherwise"—generally do not apply retroactively.
 
Id. at 352.

​Lewis’s petition in the Southern District of California was denied. Lewis v. United States, No. 3:18-cv-00911-L-KSC, 2019 U.S. Dist. LEXIS 181875 (D.C.S.D. Ca. Oct. 21, 2019). Lewis sought habeas corpus relief based on the later decision in United States v. Hills and Hukill.
 
The Ninth Circuit took up Lewis’s appeal and held that Hills was correct but was not to be applied retroactively on collateral attack because it was a new rule and was not a substantive rule or a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.
 
The court noted that retroactivity is ruled by Teague v. Lane, 489 U.S. 288 (1989) which precludes retroactivity based on a new rule. The court finds the "first clue" in CAAF’s observation that Hills was a case of “first impression.” Hills, 75 M.J. at 353. As with everything, there is a narrow exception,

A new rule may be retroactively applied if it is “substantive.” Id. at 351. “A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes. . . . In contrast, rules that regulate only the manner of determining . . . culpability are procedural.” Id. at 353. The Hills rule clearly falls into the latter category.
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Slip op. at 12.

The Hills rule is a far cry from the “extremely narrow” class of “watershed” procedural rules exempt from Teague non-retroactivity. “To fall within this exception, a new rule must meet two requirements: Infringement of the rule must seriously diminish the likelihood of obtaining an accurate conviction, and the rule must alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” Tyler, 533 U.S. at 665 (internal quotations and citations omitted). Hills satisfies neither of these requirements.
 
Slip op. at 13.

The court in a footnote dropped this comment, Similarly, we decline to reach the question of whether the district court erred when it held, in the alternative, that Lewis’s constitutional claims received “full and fair consideration” in the military courts, such that they would be barred from review in the federal civilian courts. This is the general standard applied to most military prisoner habeas petitions.
 
Lewis is not the only case seeking habeas based on Hills. We have, for example, Evans v. Horton, 792 Fed. Appx. 568 (10th Cir. 2019), the appellate court most often hearing (usually pro se) military prisoner habeas cases.
 
A court-martial tried and convicted Evans of raping and assaulting a female German citizen and of obstructing justice. The court-martial sentenced Evans to 20 years' confinement, reduced his grade to E-1, and ordered his dishonorable discharge.

Evans appealed to the Air Force Court of Criminal Appeals, challenging the sufficiency of the evidence and the severity of his sentence. The appellate court affirmed the court-martial's findings and sentence. See United States v. Evans, ACM 38651, 2015 CCA LEXIS 445, 2015 WL 6657428, at *1 (A.F. Ct. Crim. App. Oct. 22, 2015) (unpublished). Evans then sought review by the Court of Appeals for the Armed Forces, again challenging the sufficiency of the evidence. That court declined review. See United States v. Evans, 75 M.J. 288, 288 (C.A.A.F. 2016) (unpublished).

Evans v. Horton, 792 F. App'x 568, 569-70 (10th Cir. 2019).

The court noted that Hills was not retroactive because of Teague. Interesting that the Lewis court did not discuss Evans. The Evans court denied his appeal based on a failure to object to the instruction not on Hills  retroactivity--thus avoiding the retroactivity issue. The court went on to say that,

On the contrary, and as the government points out, litigants in other cases taking place around the same time as Evans's 2014 trial and 2015 appeal raised this very argument. See, e.g., Hills, 75 M.J. at 352 (noting that criminal acts occurred in 2012 and appeal to Army Court of Criminal Appeals occurred in 2015; accepting argument that Rule 413 only allows admission of evidence of uncharged conduct); United States v. Bass, 74 M.J. 806, 815 (N-M. Ct. Crim. App. 2015) (rejecting Rule 413 argument later accepted in Hills). And "cause will not be found where the 'basis of a constitutional claim is available, and other defense counsel have perceived and litigated that claim.'" Clanton v. Muncy, 845 F.2d 1238, 1242 (4th Cir. 1988) (quoting Engle, 456 U.S. at 134). Thus, Evans fails to show cause to excuse his failure to raise this issue before the military courts.

Evans v. Horton, 792 F. App'x 568, 571 (10th Cir. 2019).

For me, one take-away from Evans is to demonstrate the importance of tracking issues raised on appeal. Petitions for review at CAAF are an excellent source for trial motions where you have an issue similar to that petitioned. Of course, you need to be sure in your motion that you recognize adverse authority. While you might often lose at trial, you have preserved the issue and, if CAAF grants a petition on that issue and rules in that appellant's favor, your client may benefit from a new rule  issued during your client's appeal. Griffith v. Kentucky, 479 U.S 314, 328 (1987) (holding "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases . . .pending on review"); see also Whorton v. Bockting, 127 S. Ct. 1173, 1181, 167 L. Ed. 2d 1 (2007) (declaring Crawford to be a new rule of law).

Cheers, Phil Cave.