The NMCCCA decided In re Jordan, M.J. , 2020 WL 5047423 (NMCCA 2020)(En Banc), on 27 August 2020. At first blush, the decision seems innocuous enough–another sex offender seeking redress because of an alleged victim “recantation.” This essay does not address the factual issues of guilt or innocence. Rather, it addresses the subtle, death-knell of military habeas corpus or alternatively, the unconstitutionality of Article 76, UCMJ.
That Article provides in relevant part:
The appellate review of records of trial provided by this chapter, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this chapter, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by this chapter, are final and conclusive. [Emphasis added].
“Finality,” has, since Schlesinger v. Councilman, 420 U.S. 738, 752 (1975), clearly been subject to an exception as stated in Councilman:
We read the statements attending congressional consideration as addressing the particular concern that Art. 76 not be taken as affecting the availability of habeas corpus, a concern of special significance because of the vital interests the writ protects and because it is the most common mode of collateral relief from court-martial convictions. But an affirmative intent to preclude all other forms of collateral relief, on whatever ground, cannot be inferred from these scattered statements in the legislative history. Restraint on liberty, although perhaps the most immediately onerous, is not the only serious consequence of a court-martial conviction. [emphasis added].
See also, Burns v. Wilson, 346 U.S. 137, 142 (1953)(Plurality) [“finality” only means that “a federal civil court [cannot] grant the writ simply to re-evaluate the evidence.”] Conversely, Councilman and Burns stand for the proposition that habeas corpus is available to military petitioners for legal or constitutional issues–indeed, both cases originated as habeas cases.
Add to that, what is probably the crux of the issue, the “exhaustion of military remedies” doctrine, mandated by Gusik v. Schilder, 340 U.S. 128, 130-32 (1950), and its progeny. That appears to be what Mr. Jordan was attempting to do by the filing of his petition for extraordinary relief in the form of a writ of habeas corpus. As the opinion notes, Petitioner is confined in the BoP's FCI Petersburg, Virginia. Whether right or wrong in its analysis, the effect on Jordan is to deny him any right to federal habeas corpus. The chest-thumping of CAAF, and now the last CCA, spouting that Article 76's “finality” provisions-with the possible exception of coram nobis relief (if anyone can now qualify)-is nothing more than a legal illusion. Their remedy is the familiar refrain, “Go to the federal, Article III, courts for relief,” and is as hollow as an alcoholic's leg.
Here's why. In Jordan the Court pointed out that “These are not new claims. Petitioner raised the substance of these same matters at trial, and they were considered in full by this Court in affirming his conviction and by our superior court in denying review.” Slip. Opn. at 13.
While Jordan can in theory seek habeas relief, being imprisoned in Virginia, puts him within the jurisdiction of the Fourth Circuit Court of Appeals. And for Jordan, that mean no habeas relief. Why? A case styled Willenbring v. United States, 178 Fed.Appx. 223 (4th Cir. 2006)[unpub.][yes, that Willenbring as regular CAAFlog readers will remember], the Fourth Circuit adopted the Tenth Circuit’s “rule,” that other than in personam or subject-matter jurisdictional inquiries, Article III, courts cannot provide habeas relief where the military courts have “fully and fairly reviewed the petitioner's claims, the federal court cannot review them.” See Roberts v. Callahan, 321 F.3d 994, 995 (10th Cir.2003). Id. at 224.
Thus, absent CAAF changing course or the Circuit Courts of Appeal which have adopted the Robert's Rule from the Tenth [the USDB Circuit], which is equally as unlikely, Mr. Jordan is, in the vernacular, SOL. So the question becomes, is the current interpretation that under Article 76, UCMJ, pertaining to “finality,” in practice a suspension of the right to seek habeas corpus relief? By adopting the “fully and fairly considered” rule, the federal Circuit Courts of Appeal, they have effectively shut the door to habeas relief for military prisoners. If that is the correct interpretation of Article 76's “finality” provision, then–at least as applied to prisoners such as Mr. Jordan–is Article 76, UCMJ, unconstitutional as a judicial suspension of the Great Writ?
Recently, in United States v. Stanley, 2020 WL 4582599 (ACCA 2020)[unpub.], the Court used this language: “we have given full and fair consideration to the matters personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find them to be without merit.” Id. at n.3. His Grostefon claim was IAC. Whatever the merits of the IAC claim, the “full and fair consideration” rule now bars any habeas relief however theoretically egregious the claimed ineffectiveness was.
Juxtapose Jordan and Stanley with Gray v. Gray, 645 Fed.Appx. 624 (10th Cir. 2016)[Unpub.][Petitioner Gray is an Army death row inmate at the USDB]. There, the Court first noted, “the operative defect (lack of exhaustion) cannot be cured by amendment and the resultant dismissal effectively excludes Gray from federal court under present circumstances.” Id. at 625 [emphasis added]. Why? The Court explained: “[a] prisoner challenging a court martial conviction through 28 U.S.C. § 2241 must exhaust all available military remedies.” [citing inter alia, Councilman, supra.]
Gray–like most military death penalty cases–has had a long and torturous appellate/post- conviction history. [Disclaimer: I authored an amicus curiae brief for NACDL in Gray’s direct appeal seeking certiorari in 2000]. The origin of the “fully and fairly” Article 76, UCMJ, bar to extraordinary relief, is traceable to Gray’s seeking coram nobis relief. After being denied by ACCA, CAAF, on his writ-appeal, held: “In the absence of any statutory authority to provide extraordinary relief for a capital case that is final for all purposes under the UCMJ, we lack jurisdiction to hear Appellant’s writ-appeal petition for coram nobis.” Id. at 6 [Gray sought coram nobis relief or alternatively, habeas relief]. CAAF’s rationale was: “He has a remedy other than coram nobis to rectify the consequences of the alleged errors, namely a writ of habeas corpus in the Article III courts. . . .” United States v. Gray, 77 M.J. 5, 6 (CAAF 2017). See also, Cauley, Stuck Between a CAAF and a Hard Place: The Coram Nobis Petition of Private Ronald Gray and the Weakening of Military Justice, 97 N.C. L. Rev. 995 (2018). [at: https://scholarship.law.unc.edu/nclr/vol97/iss4/6].
Can the military appellate courts “kill” habeas corpus rights for military prisoners? The answer unfortunately is “yes.” Joseph Heller’s book, Catch-22, lives on in military justice.
Donald G. Rehkopf, Jr.
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