United States District Court, S.D. California
JAMES R. LEWIS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
WITHOUT PREJUDICE AND DENYING MOTION TO DISMISS [ECF NO.
James Lorenz United States District Judge.
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.
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. (Petition at 5
[ECF NO. 1.]) Petitioner was granted parole in August 2017.
(Id. at 6.)
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.)
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.)
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).
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.)
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 (9th 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.
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.
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).
Propensity Jury Instruction
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).
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.])
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
(Tr. at 97-98 [ECF NO. 10-6.])
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).
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.])
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 (9th 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