The Kevin J. Barry Writing Award for Excellence honors an outstanding scholarly article on military legal topics published in a calendar year.
The award is named for an outstanding scholar and peerless advocate of reform: Kevin J. Barry, a founder and longtime director of NIMJ. Captain Barry retired from the Coast Guard after 25 years of service that included duty as an operations officer, navigator, trial and defense counsel, staff judge advocate, and trial and appellate judge.
As a lawyer, scholar, citizen, and gentleman, Kevin Barry is a model for those who work to improve military justice.
The award carries a $250 prize and certificate.
Articles published in an academic journal, law review, or similar forum during 2021 are eligible for that year’s award (including articles dated in an earlier year but which actually appear later; some law journals take so long to release their issues that an article dated 2017 might actually appear in 2018).
This award is intended to recognize substantial scholarship and will be evaluated for “excellence in military legal studies,” with the winner selected by a committee of law professors and practitioners, keeping in mind NIMJ’s mission to improve public understanding of military justice.
If no article is deemed appropriate for the award, the committee may elect not to make an award for that year. If more than one article is deemed worthy of recognition, the committee may honor such articles with honorable mention.
Copies of the winning and honorable articles will be published on NIMJ’s website if permitted by the author. Interested scholars should submit their articles to the NIMJ email (email@example.com) with details of its publication, the author’s name, email, and phone number no later than midnight on 31 December 2021.
Jeff Schogol, The Marine Corps may have blown its case against special operators accused of killing a former Green Beret. Task & Purpose, December 14, 2021. Basically, the Deputy for the Judge Advocate Division is alleged to have committed UCI.
One of the Marine Corps’ top lawyers is being accused of interfering in the case of a Navy corpsman and two Marine Raiders who have been charged with the death of an American contractor after a 2019 altercation in Iraq.
The reporting appears to be based partly on affidavits and motions filed in court.
Readers will be comforted to know that "Brenden" was disabused by editor Marcus Fulton in a later tweet.
"We were appalled but hardly surprised to learn that the head uniformed attorneys, known as the judge advocate generals or TJAGs, for some of the military services are lobbying Congress to remove the provision that would place the new Office of the Special Victim Prosecutor under the service secretaries and instead allow the TJAGs to retain control. To be clear, it is the TJAGs who have vociferously opposed meaningful changes to the military justice system for more than a decade. This is yet another attempt to undermine reform, no matter the damage or cost to morale, readiness, and order. And, it shows utter contempt for the principle of civilian control of the military."
Military justice reform must ensure Special Victim prosecutors are under civilian control
By Jackie Speier and Lynn Rosenthal
UPDATE: Prof. Dunlap today takes these authors to task for using the term "lobbying," and for the general notion that communication lines should be shut between TJAGs and Congress -- "To be clear, Cong. Speier and Ms. Rosenthal have every right to vigorously advocate their plan, but Congress should also welcome the views of those still-serving who may dissent from all or part of it. It is only through open-minded dialogue can we hope to devise what is really the best way to handle what everyone agrees is a critically important issue for America’s military."
Comment: I agree with Prof. Dunlap's words in the excerpt above. However, we must be careful not to convert "open-minded dialogue" into a presumption that one voice (which happens to be the unelected voice) is correct on the basis of "expertise." He has done that in the past, and that is an inversion of civilian control norms--something I said last summer.
Civilian Deaths Mounted as Secret Unit Pounded ISIS--
An American strike cell alarmed its partners as it raced to defeat the enemy.
"As bad strikes mounted, the four military officials said, Talon Anvil’s partners sounded the alarm. Pilots over Syria at times refused to drop bombs because Talon Anvil wanted to hit questionable targets in densely populated areas. Senior C.I.A. officers complained to Special Operations leaders about the disturbing pattern of strikes. Air Force teams doing intelligence work argued with Talon Anvil over a secure phone known as the red line. And even within Talon Anvil, some members at times refused to participate in strikes targeting people who did not seem to be in the fight."
"[T]he Delta operators were under enormous pressure to protect allied ground troops and move the offensive forward, the former task force member said, and felt hobbled by the safeguards. So in early 2017, they found a way to strike more quickly: self-defense.
Most of Operation Inherent Resolve’s restrictions applied only to offensive strikes. There were far fewer restrictions for defensive strikes that were meant to protect allied forces under imminent threat of harm. So Talon Anvil began claiming that nearly every strike was in self-defense, which enabled them to move quickly with little second-guessing or oversight, even if their targets were miles from any fighting, two former task force members said."
Army Court of Criminal Appeals
United States v. Thompson. Appellant pled guilty in accordance with a PTA to conspiracy to murder with premeditation and as an aider an abettor to premeditated murder. He was sentenced to Life and a DD.
On appeal ACCA sets aside the finding of x because the plea was improvident. A rehearing is allowed. Some briefs are available here. The issue is whether he had a "guilty mind." Or as ACCA says, "Actus non facit reum, nisi mens sit rea, 'the act alone does not amount to guilt; it must be accompanied by a guilty mind."' United States v. Hill, 55 Fed. 3d 1197, 1202 (6th Cir. 1995).
Appellant now asserts the military judge abused his discretion by accepting his plea of guilty, arguing that the record discloses a substantial basis in law and fact for questioning the plea. We agree. To quote Bailey, appellant's guilty plea admitted to an "evil-doing hand" but not an "evil-meaning mind." Stated another way, appellant's pica established the actus reus but not the requisite mens rea necessary for a conviction as a principal to premeditated murder under an aider and abettor theory.
Keep in mind this is a guilty plea case and must be analyzed for an abuse of discretion. See Moratalla, CAAFlog, Dec. 7, 2021. Essentially the court finds that Appellant's responses during the plea colloquy set up a substantial question because, "Guilty pleas "must be analyzed in terms of providence of the plea, not sufficiency of the evidence." United States v. Faircloth, 45 M.J. 1 72, 17 4 (C.A.A.F. 1996).
In Nye & Nissen v. United States, the Supreme Court made clear that the mens rea for criminal liability as a principal under an aider and abettor theory is one of shared intent. 336 U.S. 613 (1949). " In order to aid and abet another to commit a rime it is necessary that a defendant 'in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed."' Id. at 619 ( quoting L. Hand, J ., in United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938)). The Supreme Court reaffirmed its adherence to Judge Learned Hand's concept of shared intent in Rosemond v. United States, referring to Judge Hand's formulation, quoted above, as a "canonical
The court observes that "Federal Circuit Court jurisprudence" is informative in interpreting the similar statute of UCMJ art. 877. So it adopts a shared intent theory of liability. The court found a number of statements in providency to be unhelpful in affirming the plea.
Navy-Marine Corps Court of Criminal Appeals
United States v. Delgado.
Result. Findings and sentence affirmed.
Appellant was initially screened as a medium security prisoner. However, the Command Duty Officer [CDO] performing the screening decided to override this initial classification due to the length of Appellant’s sentence and classified him as a maximum security prisoner. As a result, Appellant was placed in segregated confinement away from general-population prisoners.
Appellant exhausted admin remedies, without success.
Court finds the Brig properly applied and followed instructions without any "ill motive."
Court is "reluctant to second guess" here.
Potential appellate case
United States v. Cadet JM. Trial starts Monday on allegations of sexual abuse of a child.
Cheers, Phil Cave
Federalism and Coronavirus Vaccination Mandates for Military Personnel
"Given the unique federalism issues governing the National Guard, however, the current showdown with Oklahoma raises two unique legal questions. First, does Governor Stitt have the legal power to exempt the Oklahoma National Guard from Defense Department vaccine mandates? Second, when push comes to shove, is there anything the Defense Department can do to enforce the mandate in the face of a state’s intransigence?
The answer to the first question is [NO]; and it is not even a close call. The National Guard is the modern umbrella term for the military entity that was called the “militia” at the time of the nation’s founding. Tracing their origins to pre-Revolutionary England, militia comprised citizen soldiers, who by law were often required to keep arms in their homes, belong to a local group that more resembled a rotary club than an army, and were ready to be called up to bear arms in times of public need. This made militia members distinct from the full-time military professionals of the regular army. And they both operated and were understood to operate under local regulations dictated by local needs for which local politicians were accountable."
Michel Paradis & Emily Eslinger
FY22 NDAA: A Missed Opportunity to Improve Military Justice
"Congress should clean up the unprincipled mess they have created in the military justice system under the FY22 NDAA, and instead pass MJIIPA as a standalone bill. Better still would be to amend MJIIPA to remove commanders’ prosecutorial authority over all crimes, even military-unique ones (which include capital offenses such as desertion). All criminal allegations against service members deserve fair, independent, and unbiased treatment, which is not what occurs under the current system. Those in uniform deserve far better than what they have just been handed."
Rachel E. VanLandingham (@rachelv12), a professor of law at Southwestern Law School, is a retired Air Force lieutenant colonel and former military attorney, the President of the National Institute of Military Justice, and co-author of Military Justice: Cases and Materials (Carolina Academic Press 3d ed. 2020).
Hom Tanks in the comments wonders if the covered offenses in the NDAA will constitute most offenses actually tried. Per a preliminary look at Air Force data for FY21, the answer is "yes."
107 of 159 GCMs included a covered offense or 67% of all GCMs in FY21.
8 of 122 SpCMs included a covered offense or 6% of all SpCMs in FY 21.
Thus, while the number of offenses "covered" seems small in relation to the whole code, the reality will be that the new system will be the primary system meting out military justice. Of course, this could change should patterns of criminal conduct (or prosecutorial priorities) change.
The Air Force released their supplemental Covid-19 vaccination policy yesterday.
Notably, Attachment 2 addresses the Air Force's position on unvaccinated ANG members:
“the Secretary of the Air Force hereby withdraws consent for members not fully vaccinated to be placed on or to continue on previously issued Title 32 Active Guard and Reserve orders"
Find the Air Force Policy here.
Find the Military Times article here.
Elizabeth M. Berecin
The central issue in military justice reform has been whether all felonies, or only sex offenses, would be removed from the traditional commander-driven prosecution system. We now know the following offenses will be removed:
"‘(17) The term ‘covered offense’ means— 15 ‘‘(A) an offense under section 917a (article 16 117a), section 918 (article 118), section 919 17 (article 119), section 920 (article 120), section 18 920b (article 120b), section 920c (article 120c), 19 section 925 (article 125), section 928b (article 20 128b), section 930 (article 130), section 932 21 (article 132), or the standalone offense of child 22 pornography punishable under section 934 (ar23 ticle 134) of this title;"
United States v. Moratalla is the court's first full decision of the term. NMCCA decision here.
Appellant pled guilty to various offenses including a bank fraud (18 U.S.C. § 1344) charged as a UCMJ art. 134 offense. She was sentenced to 60 months (reduced to 48 IAW the PTA), RiR, (a likely meaningless) $1K x six, and a DD.
I note she was not charged with a conspiracy to violate the federal statute, which the facts suggest was a viable charge.
The specification read,
[K]nowingly execute or attempt to execute a scheme or artifice to defraud a financial institution, ABNB Federal Credit Union, or to obtain moneys, funds, credits, and assets owned by or under the custody and control of the ABNB Federal Credit Union, by means of false or fraudulent pretenses, representations, or promises . . . .
(Emphasis in the original). Appellant challenged the providence of the plea to the bank fraud.
Appellant sought funds to invest in her personal “house flipping business.” In order to secure those funds, Appellant enlisted the help of a coworker—BM2 Whiskey—who agreed to apply for a loan at ABNB Federal Credit Union. Their plan was for BM2 Whiskey to falsely represent to ABNB that he would use the loan proceeds to purchase Appellant’s vehicle. However, neither BM2 Whiskey nor Appellant believed that BM2 Whiskey was actually purchasing the vehicle. Rather, their intent was for the funds obtained from ABNB to be treated as an investment by BM2 Whiskey in Appellant’s business. Nevertheless, at the time of the loan transaction, Appellant transferred the vehicle’s title to BM2 Whiskey—a hallmark of a legal sale of a vehicle from one individual to another. The transfer of the title raised the specter that—despite her intentions—Appellant did not commit bank fraud because she actually did sell her vehicle to BM2 Whiskey consistent with the terms of the loan agreement.
The providence inquiry "arguably raised some question as to the providence of her plea, those responses—in the full context of the colloquy—did not give rise to a substantial question. We therefore hold that the military judge did not abuse his discretion in accepting Appellant’s guilty plea and we affirm[.] For acceptance of a guilty plea there needs be,
[D]espite the existence of an otherwise adequate basis for a plea, “[i]f an accused ‘sets up matter inconsistent with the plea’ at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea.” United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996) [.]
From the NMCCA and CAAF opinion.
Appellant admitted telling the petty officer to lie about the purpose for the loan.
Appellant admitted she "partnered" with the petty officer to lie to get the loan for the business.
They both "considered" the money to be for the business.
The transfer of the title and use of the car did not happen until after the money was given to Appellant. (Huuum, isn't that how buying a car works?)
CAAF emphasizes the attempt language of the specification and the statute, and notes, the language of the federal statute is broad and covers "Whoever knowingly executes, or attempts to[.]
We highlight the fact that the statute “punishes not [only] ‘completed frauds,’ but . . . [also] fraudulent ‘scheme[s],’ ” Loughrin v. United States, 573 U.S. 351, 364 United States v. Moratalla, No. 21-0052/NA Opinion of the Court 7 (2014) (alteration in original) (emphasis added) (quoting Neder v. United States, 527 U. S. 1, 25 (1999)), including attempted fraudulent schemes. In light of Appellant’s conduct and the breadth of this statute, we conclude that Appellant’s actions constituted—at a minimum—an attempt to execute a scheme to defraud ABNB.
While I appreciate this may all make sense in the big scheme of things, I wonder if it would have been appropriate to also (or instead) charge a conspiracy and perhaps avoided some litigation?
Cheers, Phil Cave
The report of the U.S. Court of Appeals for the Armed Forces for the October 2020 Term (which ended on September 30, 2021) is now available online.
Court of Appeals for the Armed Forces
United States v. Bench. The court has granted an issue.
Whether Lying To A Witness About Appellant's Presence In The Courtroom To Secure Testimony Materially Prejudices Appellant's Sixth Amendment Right To Confrontation.
A panel convicted Appellant of 2x sex abuse of a child and 1x indecent conduct. They sentenced him to 12 years, TF, RiR2E4, DD.
Before AFCCA, and
On appeal, Appellant raises five assignments of error: (1) whether the military judge erred when he admitted statements of a minor child to a therapist; (2) whether Specification 3 of Charge I (alleging sexual abuse of BC) is factually and legally sufficient; (3) whether the record sufficiently demonstrates compliance with Mil. R. Evid. 603 for one child witness, EC; (4) whether the Specification of Charge II (alleging indecent conduct) is factually and legally sufficient; and (5) whether the sentence is unduly severe. As we rely on the same law and standard for issues (2) and (4), we combine the issues into one analysis. We also consider facially unreasonable appellate delay as this opinion was released more than 18 months after docketing.
I don't see anything in the AFCCA opinion related to the granted issue.
Just yesterday some of us asked the question whether the "war" was over and if so, so what.
Abu Zubaydah, the Guantánamo detainee who was tortured close to death by the CIA and who has been held without charge by the US for nearly 20 years, has petitioned a federal court for his release on grounds that America’s wars in Afghanistan and with al-Qaida are over.
Ed Pilkington, ‘Enemy combatant’ held at Guantánamo petitions for release because war is over. The Guardian, Dec. 3, 2021.
On January 1, 2021, the “William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021” became law. Section 554 of the NDAA, “Inspector General Oversight of Diversity and Inclusion in Department of Defense; Supremacist, Extremist, or Criminal Gang Activity in the Armed Forces,” established oversight requirements for programs that are essential to the effectiveness of the DoD, the safety of its military and civilian personnel, and the trust in which it is held by the American people. Section 554(b) requires the Secretary of Defense (SecDef) to establish standard policies, processes, mechanisms, and reporting requirements for prohibited activities, and to submit an annual report to the appropriate congressional committees detailing the implementation of Section 554(b) requirements.
Ten members of the Air Force were investigated for trespassing at the U.S. Capitol during the Jan. 6 pro-Trump riot that briefly shut down Congress, according to new extremism statistics released in a Defense Department inspector general report.
Konstantin Toropin and Travis Tritten, 10 Airmen Investigated for Trespassing at Capitol Riot, New Military Extremism Report Shows. Military.com, Dec. 2, 2021.
Some key points of the report.
From the conclusion.
Although the DoD has not yet issued standard, DoD-wide policy, the DoD has taken the initial steps to fulfill Section 554 requirements. The DoD is in the process of defining extremist activity and updating DoD Instruction 1325.06, which will provide guidance for handling prohibited activities by members of the Armed Forces. A clear definition of extremism reflected in the updated DoD Instruction will enable the Military Departments to identify, track, and report allegations of prohibited activities as required by Section 554.
"As either an authority on civilian protections in urban warfare, or as a commander’s reference for conducting such operations, I regret to report that, in my opinion, this ICRC Handbook is poorly conceived and lacks trustworthy guidance appropriate to its subject."
Read the full review here, of the ICRC's Reducing Civilian Harm in Urban Warfare: A Commander’s Handbook
Comment: As the editor of a book review journal, it is always refreshing to read a trenchant review that does not merely summarize and praise the author.
Yesterday. I read Geoff Ziezulewicz's article, Family of sailor who died by suicide in brig appeals Navy’s denial of medical negligence claim. Navy Times, Nov. 30, 2021.
I had a flashback to one client from almost 20 years ago. Some might say he killed himself for a stupid reason. That would be a "rational" thought perhaps. He had been back at the USDB several weeks when I got the MJ's findings and conclusions from a Dubay hearing. I was mildly ecstatic because there was a good chance ACCA would grant a new trial, so I promptly mailed everything to the client. When the client went to the mailroom to get the letter they refused to give it over. He reacted very badly by grabbing a pencil and stabbing himself in the hand. That got him moved to the SHU where shortly after, he hanged himself.
If you practice long enough, there is a good chance of an accused committing suicide, being stopped in the act, or seriously thinking about it.
A lot of attention has rightly been given to the issue of military suicides and their prevention. For complaining witnesses that's a big part of their program. But I wonder if we give sufficient attention to the mental health and stresses on the accused, especially those who may already have a "history" of mental health issues. In some cases it might be easy to simply to suggest a diagnosis of anxiety due to legal proceedings, but in others?
There are two earlier comments of mine on this subject; Jan. 16, 2010 and Feb. 5, 2010.
Let me say that over the years I have come across many leaders who care and are concerned about the potential mental health and suicide issues with those accused.
Last night I had reread United States v. Nelson. It is worth the read within a larger context as a moment of learning and reflection.
I'm asking you to be sensitive about what may be going on in the accused's mind and to be alert to potential mental health issues. Some issues may be relevant to the case and certainly relevant to a life.
A modest proposal. Many years ago now, at what was then NLSO Norfolk, the government was concerned about the number of R.C.M. 706 requests--they are time consuming and a "burden." So the STC and I got together and developed an in-house "R.C.M. 706A" evaluation, coordinated with the clinic. We agreed that a referral to mental health after preferral would be treated as privileged under the real R.C.M. 706. It was a little more complex than that in operation. But the number of 706 requests went down, there was a better screening mechanism to justify a real 706, and concerns about the accused's mental health were identified and addressed.
This might be done as a modification to the rules on command directed mental health evaluations or through an R.C.M. 706A.
Some final comment on the issue of bi-polar disorder as a defense.
Appellant points to our decisions in United States v. Martin, 56 M.J. 97 (C.A.A.F. 2001), and Harris, 61 M.J. at 391, for the proposition that "[t]he military judge must have known that a bipolar disorder was a viable defense for Appellant." However, these cases establish that bipolar disorder, like other disorders, may exist with enough severity to raise a substantial question regarding the issue of the accused's mental responsibility. However, the disorder does not negate responsibility in all cases. Martin was a contested case in which the defense was attempting to carry its burden of proving lack of mental responsibility due to the severity of the accused's bipolar condition. 56 M.J. at 100-01. Two defense psychiatrists testified that Martin's condition was severe enough that he was unable to appreciate the nature and quality or wrongfulness of his conduct. Id. Conversely, three government psychiatrists testified that Martin could appreciate the wrongfulness of his acts at the time of the offenses. Id. at 101. The question was whether Martin had carried his burden in proving the defense of lack of mental responsibility by clear and convincing evidence, and we concluded that a reasonable jury could have concluded that he did not. Id. at 110.
United States v. Shaw, 64 M.J. 460, 463 (C.A.A.F. 2007).
There is no premium placed upon lay opinion as opposed to expert opinion, nor on “objective” as opposed to “subjective” evidence. Thus, the court below applied an improper test by requiring “clear and convincing objective evidence, not merely subjective medical opinion” of a lack of mental capacity.”
United States v. Dubose, 47 MJ 386, 388-89 (C.A.A.F. 1998).
The CAAF considers that the LMR affirmative defense enjoys a “special status,” which “in part reflects the recognition that combat and other operational conditions may generate or aggravate certain mental health conditions, such as post-traumatic stress disorder.” 64 M.J. at 462. “Historically [the court] has given preferential treatment [to the defense of LMR] even though the matter was not litigated at trial.” United States v. Navarette, 79 M.J. 123, 129 (C.A.A.F. 2021) (Stucky, C.J., dissenting).
Write something about yourself. No need to be fancy, just an overview.
Pentagon Chief Orders New Inquiry Into U.S. Airstrike That Killed Dozens in Syria
"The investigation by Gen. Michael X. Garrett, the four-star head of the Army’s Forces Command, will examine the strike, which was carried out by a shadowy, classified Special Operations unit called Task Force 9, as well as the handling of the task force’s investigation by higher military headquarters and the Defense Department’s inspector general, the official said. General Garrett will have 90 days to review inquiries already conducted into the episode, and further investigate reports of civilian casualties, whether any violations of laws of war occurred, record-keeping errors, whether any recommendations from earlier reviews were carried out, and whether anyone should be held accountable, said the official, who spoke on condition of anonymity because the investigation had not been announced."
Comment: This is a welcome indication that SECDEF is taking this matter seriously. The question on the mind of many, though, is whether an internal investigation is sufficiently independent. Some reactions below.
Ninth Circuit Court of Appeals
Erickson 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.
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.
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