Lewis v. United States

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE AND DENYING MOTION TO DISMISS [ECF NO. 1]

          Hon. M James Lorenz United States District Judge.

         Petitioner, Senior Airman James R. Lewis, United States Air Force (hereinafter “Petitioner”) filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 alleging that his due process rights were violated by the use of a propensity evidence jury instruction during his court martial, and that he received ineffective assistance of appellate counsel. Respondent filed an Answer and Return, and in the alternative Motion to Dismiss. Petitioner filed a Traverse, and Opposition to the Motion to Dismiss. The Court has considered the moving papers and exhibits, and for the reasons stated below, DENIES the Petition.

         I. Background

         In December 2012, Petitioner was convicted by a military tribunal at a general court martial of one count of aggravated sexual assault and two counts of wrongful sexual conduct in violation of Article 120, UCMJ, 10 U.S.C. § 920. Petitioner was sentenced to a term of nine years confinement, forfeiture of all pay and allowances, reduction to E-1 grade, and dishonorably discharged.^[1] (Petition at 5 [ECF NO. 1.]) Petitioner was granted parole in August 2017. (Id. at 6.)

         Petitioner's case was submitted for mandatory review before the Air Force Court of Criminal Appeals (“AFCCA”), which affirmed the conviction. (Pet. at 5). The Court of Appeals for the Armed Forces (hereinafter “CAAF”) denied Petitioner a second, discretionary review. (Id.) In 2016 Petitioner submitted a writ of coram nobis to the AFCCA, which was denied. (Id.) The AFCCA instructed Petitioner to seek relief through a writ of habeas corpus in a federal district court. (Id.) Petitioner then filed a writ-appeal petition to the CAAF, which was also denied. (Id.)

         In May 2018, Petitioner filed the instant petition for writ of habeas corpus. (Pet. at 1 [ECF NO. 1.] He seeks an order granting the writ and ordering a rehearing, or in the alternative, an order vacating and re-entering the judgment of conviction to allow a new appeal. (Id. at 4.)

         II. Standard

         District courts have jurisdiction under 28 U.S.C. § 2241 to grant a writ of habeas corpus to a prisoner who is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241; Estelle v. McGuire, 502 U.S. 62, 68 (1991) (citing 28 U.S.C. § 2241). A prisoner is “in custody” for purposes of section 2241 if he is physically confined or if he is subject to parole as a consequence of his conviction. Maleng v. Cook, 490 U.S. 488, 491 (1989).

         A. Jurisdiction

         As a primary matter, Respondent contends that this Court lacks jurisdiction to hear Petitioner's claims, arguing that while this Court may review claims that challenges the constitutionality of a statute of conviction, it may not address claims such as Petitioner's that assert a “constitutional deviation in procedure and application of law, ” if military tribunals have fully and fairly adjudicated the issues. (Oppo at 5, 8-9 [ECF NO. 6.]) The government claims the issues have been fully and fairly addressed by military tribunals because the AFFCA addressed the issues Petitioner raises here when it denied his coram nobis petition. (Id.)

         When a military decision has already dealt fully and fairly with an allegation that is raised in a writ petition before a federal court, the court cannot grant the writ simply to re-evaluate the evidence adduced by the military court. Burns v. Wilson, 346 U.S. 137, 142 (1953); Schlesinger v. Councilman, 420 U.S. 738, 746 (1975) (“The valid, final judgments of military courts, like those of any court of competent jurisdiction not subject to direct review for errors of fact or law, have res judicata effect and preclude further litigation of the merits.”) However, “[i]n habeas corpus proceedings, a court-martial conviction may be deemed void because of constitutional defects.” Hatheway v. Sec'y of Army, 641 F.2d 1376, 1379-80 (9th Cir. 1981)(abrogated on other grounds in High Tech Gays v. Defense Indus. Sec Clearance Office, 895 F.2 563 (9^th Cir. 1990); see also Parker v. Levy, 417 U.S. 733 (1974). Federal courts may conduct habeas review where constitutional defects are so serious that they can cause “lasting, serious harm in civilian life.” Hatheway, 641 F.2d at 1380.

         In Hatheway, the Ninth Circuit affirmed the district court's exercise of jurisdiction over petitioner's claims that the court martial proceedings violated his due process and equal protection rights, and that Article 125 of the Uniform Code of Military Justice was unconstitutional. See Hatheway, 641 F.2d 1380 (“[w]e hold that in alleging that Article 125 is unconstitutional and that the court-martial proceedings violated his rights to due process and equal protection, he has alleged such fundamental defects.”). The Hatheway court found that “although he has not been imprisoned, his conviction resulted in a dishonorable discharge that can cause ‘lasting, serious harm in civilian life' and ‘[g]iven the seriousness of the harm, we think constitutional defects such as he has alleged would justify holding he conviction void.'” Id.

         Here, Petitioner claims that the use of a propensity evidence jury instruction violated his constitutional rights to the presumption of innocence and due process, and resulted in his incarceration, dishonorable discharge and loss of benefits. (Oppo at 8-9). While Petitioner is not challenging the facial constitutionality of the statute under which he was convicted, he has sufficiently alleged a constitutional defect in the court martial proceedings that would support a finding that his court martial was void, even if the claims were fully and fairly adjudicated, because the consequences of his conviction are serious and may cause “lasting, serious harm in civilian life.” Hatheway, 641 F.2d at 1380. Accordingly, the Court finds that de novo review of Petitioner's constitutional claims is mandated. Id.; see also Rich v. Stackley, 2018 WL 1791887 (S.D. Cal. April 16, 2018) (Petitioner raised three constitutional challenges to his general court-martial conviction for aggravated sexual abuse of a child and court conducted de novo review).

         B. Propensity Jury Instruction

         Petitioner argues that during his court martial the panel was given a propensity jury instruction pursuant to Military Rule of Evidence 413 which advised them that they could consider evidence of one of the charged offenses as evidence of his propensity to commit another offense charged in the same case, but this instruction has since been found unconstitutional in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) and United States v. Hukill, 76 M.J. 2019 (C.A.A.F. 2017). (Pet. at 2, 11 [ECF NO. 1.]) He contends that his constitutional rights were violated by the giving of the instruction, and requests that the Court grant his petition and order a rehearing so he may be tried without the instruction. (Id. at 3). Should the Court disagree, Petitioner requests that the Court vacate and re-enter the judgment of conviction to allow him to file a direct appeal asserting these grounds. (Id. at 20).

         Respondent acknowledges that the propensity jury instruction used in Petitioner's court martial was found unconstitutional in Hills, but argues that the holding of Hills is inapplicable to Petitioner because that case was decided after Petitioner's conviction, and the rule cannot be applied retroactively. (Id. at 9-10 [ECF NO. 6.])

         In military court-martials, evidence of prior sexual assaults is admissible to show propensity under Military Rule of Evidence 413 which states: “[i]n a court-martial in which the accused is charged with an offense of sexual assault, evidence of the accused's commission of one or more offenses of sexual assault is admissible and may be considered for its bearing on any manner to which it is relevant.” Mil.R.Ev. 413. Where a defendant has been found guilty or pled guilty to an offense that is used as propensity evidence in a sexual assault case, courts traditionally hold that the prior offense is admissible because the defendant is no longer presumed innocent of the prior charge. See generally Wright, 53 M.J. at 479.

The jury instruction regarding propensity evidence, as given in this case, states:

Evidence that the Accused committed the offenses of sexual assault alleged in Specifications one through four of the Charge may be considered by you with regard to one another for an additional basis with regard to one another under certain circumstances. First, those offenses may have no bearing on your deliberations in relation to one another unless you first determine by a preponderance of the evidence, that is more likely than not, any of those alleged offenses of sexual assault occurred.

If you determine by a preponderance of the evidence any of those alleged offenses occurred, even if you are not convinced beyond a reasonable doubt that the Accused is guilty of that offense, you may nonetheless then consider the evidence of that offense for its bearing on any matter to which it is relevant in relation to the remainder of those offenses of sexual assault; that is Specifications one through four of the Charge.

You may also consider the evidence of those other offenses for its tendency, if any, to show the Accused's propensity or predisposition to engage in acts of sexual assault. You may not, however, convict the Accused of any offense solely because you believe he committed some other offense or solely because you believe the Accused has a propensity or predisposition to engage in acts of sexual assault.

(Tr. at 97-98 [ECF NO. 10-6.])

         In Hills, the court held that the use of charged, but contested, conduct to show propensity to commit other charged conduct in the same case violated the accused's constitutionally protected right to the presumption of innocence. Hills, 75 M.J. at 357. The Hills Court stated “[i]t is antithetical to the presumption of innocence to suggest that conduct of which an accused is presumed innocent may be used to show a propensity to have committed other conduct of which he is presumed innocent.” Id. at 356. In United States v. Hukill, the CAAF further clarified the holding of Hills, holding that evidence of a charged and contested offense of which an accused is presumed innocent cannot be used to demonstrate the propensity of the accused to commit a separately charged offense in the same case regardless of the number of victims, the forum or whether the events are connected. United States v. Hukill, 76 M.J. 219, 222 (C.A.A.F. 2016).

         Petitioner acknowledges that Hills was decided after his direct appeal was concluded, but contends that the Hills rule applies retroactively and he should be afforded an opportunity to have it applied to his conviction and sentence. (Pet. at 11, 16 [ECF NO. 1.]) Respondent counters that the AFCCA conducted an analysis the retroactivity of Hills, and determined the holding announced a “new rule” that did not apply retroactively. (Oppo. at 9 [ECF NO 6.])

         The Supreme Court has established a three-step process for determining whether a constitutional rule of criminal procedure may be applied to cases on collateral review. Beard v. Banks, 542 U.S. 406 (2004); Lambrix v. Singletary, 520 U.S. 518, 527-528 (1997). First, the court must determine when the conviction became final. Second, the court must survey the legal landscape as it existed at the time a defendant's conviction became final to determine whether the rule was “dictated by precedent” and whether it would have been “apparent to all reasonable jurists” that the rule was the logical extension of preceding jurisprudence. Lambrix, 520 U.S. at 527-28; United States v. Chan, 792 F.3d 1151, 1155 (9^th Cir. 2015). “[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final.” Chaidez v. United States, 568 U.S. 342, 347 (2013)(emphasis in original). A decision that alters the existing legal landscape by announcing a new rule will apply “to all criminal cases still pending on direct review” but only ...