Last week, the AFCCA decided United States v. O'Bryan, a case about cruel and unusual punishment.
Appellant was convicted of possessing child pornography and sentenced to, among other things, 30 months’ confinement. He sought post-conviction relief because he claimed that his repeated assault by other prisoners while placed in the prison’s general population constituted cruel and unusual punishment or otherwise rendered his conviction inappropriately severe. In a unanimous opinion, the AFCCA affirmed his conviction.
I. The Prison officials Were Not Deliberately Indifferent to Appellant’s Health and Safety
Appellant had the burden of proving that the prison officials had a culpable state of mind in deliberately ignoring Appellant’s health and safety. However, Appellant only indicated that he was “afraid for his safety” and that the officials “lied’ to him because he was not supposed to be placed in the general population. Without evidence showing that the prison officials knew that his health and safety were at risk, and that they deliberately disregarded those risks, Appellant failed to meet his burden.
II. Appellant Did Not Exhaust Administrative Remedies Before Filing This Lawsuit
Although Appellant conceded that he did not seek administrative relief, he claimed that (1) he effectively filed an Article 138 complaint and, alternatively, (2) his failure was excused because the “unusual or egregious” circumstances would have made a complaint futile. However, the Court construed Article 138 to require complaints to be actually, not effectively, filed. Accordingly, the Court found Appellant’s futility theories unavailing because if he actually filed complaints with prison officials, he could have been taken out of the general population or transferred to military prison.
 The Court evaluated Appellant’s challenges under the Eighth Amendment, and Articles 55 and 58 of the UCMJ, reaching the same conclusion under each one.
 Judge D. Johnson authored the majority opinion, which was joined by Judges Mink and Lewis.
 The Court also discussed Article 66, UCMJ, which gives it discretion to provide relief based on the conditions of post-trial confinement. The Court concluded, after considering the entire record, that there was no evidence that Appellant’s sentence was inappropriately severe.
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