Gray v. Payne

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 5, 2023
• Docket: 23-3079
• Status: Unpublished

Opinion

Appellate Case: 23-3079 Document: 010110963269 Date Filed: 12/05/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 5, 2023 _________________________________ Christopher M. Wolpert Clerk of Court SEAN A. GRAY,

Petitioner - Appellant,

v. No. 23-3079 (D.C. No. 5:23-CV-03006-JWL) KEVIN PAYNE, Commandant, United (D. Kan.) States Disciplinary Barracks,

Respondent - Appellee. _________________________________

ORDER AND JUDGMENT* _________________________________

Before PHILLIPS, KELLY, and McHUGH, Circuit Judges. _________________________________

Petitioner-Appellant Sean Gray was an active-duty member of the United

States Army. But after he pled guilty to sexually assaulting his adopted stepdaughter

and related crimes, he was dishonorably discharged and sentenced to 44 years’

confinement. Gray filed for postconviction relief under 28 U.S.C. § 2241,

challenging his court-martial convictions and sentence on ineffective-assistance-of-

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-3079 Document: 010110963269 Date Filed: 12/05/2023 Page: 2

counsel grounds. The district court denied his petition, so he filed this appeal.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s

judgment.

I. Background

In 2018, Gray pled guilty to multiple violations of the Uniform Code of

Military Justice, including sexual assault of a child, sexual assault, sexual assault

consummated by battery, assault, prejudice to good order and discipline, and failure

to obey an order. The victim—his adopted stepdaughter—was between the ages of

13 and 16 when Gray sexually assaulted her. At age 16, she gave birth to Gray’s

biological daughter, as confirmed by DNA testing.

In exchange for Gray’s plea, the Army agreed to dismiss without prejudice the

remaining charges, which included rape of a child, sexual abuse, and additional

sexual-assault and assault charges. Those charges related to another adopted

stepdaughter and the victim’s mother. A military judge sentenced Gray to a

reduction in rank, 44 years’ confinement, and a dishonorable discharge with

forfeiture of all pay and allowances. He is confined in the United States Disciplinary

Barracks (“USDB”) at Fort Leavenworth, Kansas.

Gray appealed to the United States Army Court of Criminal Appeals

(“ACCA”), arguing his defense counsel provided ineffective assistance in violation

of the Sixth Amendment by advising him to plead guilty to offenses he did not

commit, to agree to an incorrect stipulation of facts, and to lie during his providence

inquiry with the military judge. In a shift from his previous statements, he insisted

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the sex with the victim was consensual and occurred only after her sixteenth birthday.

The ACCA ordered his defense counsel to respond, and they provided lengthy

affidavits describing their representation. Gray also submitted affidavits, and he

requested a fact-finding hearing to resolve disputed questions of fact relating to his

legal representation. The ACCA deemed a hearing unnecessary, rejected Gray’s

argument, and affirmed his conviction and sentence. See R.1 at 102 (“find[ing] no

unethical behavior on the part of the defense counsel and conclud[ing] their

representation was not ineffective”).

The United States Court of Appeals for the Armed Forces (“CAAF”) denied

his petition for review of the ACCA’s decision. That denial concluded his direct

appeal and left him with only a “narrowly circumscribed” ability to seek collateral

review, Santucci v. Commandant, U.S. Disciplinary Barracks, 66 F.4th 844, 853

(10th Cir. 2023).2

In 2023, Gray filed the § 2241 habeas petition underlying this appeal in the

United States District Court for the District of Kansas. His petition was based on the

same ineffective-assistance claim that he raised in his military-court appeal. Before

briefing was complete, he filed an opposed discovery motion seeking a transcript of a

1 The record on appeal contains multiple sets of page numbers. All citations refer to the blue numbers. 2 “Congress . . . has largely exempted the court-martial from direct Article III review.” Santucci, 66 F.4th at 853. Santucci provides a helpful explanation of the process by which a servicemember can appeal a conviction within the military justice system, id. at 848 n.3, and the history behind the limited collateral review available in federal court, id. at 853-59. 3 Appellate Case: 23-3079 Document: 010110963269 Date Filed: 12/05/2023 Page: 4

phone call between another USDB inmate and the victim. During that call, the victim

supposedly told the inmate that she did not want to testify but her mother made her

do so. The district court denied the § 2241 petition on the ground that Gray failed to

show the military justice system had failed to give full and fair consideration to his

claim. It also denied Gray’s discovery motion. This timely appeal followed.

II. Analysis

A. Reviewability and Standard of Review for Military Habeas Petitions

“Federal courts are empowered under 28 U.S.C. § 2241 to entertain habeas

petitions from military prisoners. But our review of court-martial proceedings is very

limited.” Santucci, 66 F.4th at 853 (internal quotation marks omitted); see also id.

(describing the standard of review as “deferential” and noting that “the deference we

give to military tribunals is even greater than that we owe to state courts” (internal

quotation marks omitted)).

To determine whether merits review of a military habeas corpus petition is

appropriate, we consider four factors as articulated in Dodson v. Zelez, 917 F.2d

1250, 1252-53 (10th Cir. 1990):

1. “The asserted error must be of substantial constitutional dimension.” Id. at 1252 (italics and internal quotation marks omitted).

2. “The issue must be one of law rather than of disputed fact already determined by the military tribunals.” Id. (italics and internal quotation marks omitted).

3. There must be no “[m]ilitary considerations [that] warrant different treatment of constitutional claims.” Id. at 1252-53 (italics and internal quotation marks omitted).

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4. “The military courts must give adequate consideration to the issues involved and apply proper legal standards.” Id. at 1253 (italics and internal quotation marks omitted).

The fourth factor is “the most important.” Santucci, 66 F.4th at 858 (internal

quotation marks omitted).

In Santucci, we clarified that “as a necessary condition for full merits review

of a given claim, a petitioner must demonstrate that the resolution of each of the

Dodson factors weighs in the petitioner’s favor.” Id. at 859 (emphasis added). Only

then can a petitioner “show that the military tribunals have not given full and fair

consideration to [his] claim.” Id.

The district court concluded that Gray had not shown he could satisfy all four

Dodson factors. It focused on the second and fourth factors and, finding them

lacking, declined to reach the merits of his habeas petition. We review the district

court’s denial of habeas relief de novo. Id. at 871.

B. The Second Dodson Factor

We start by assessing whether Gray’s ineffective-assistance claim presents

only a question of law. The district court concluded it does not—reasoning that the

ACCA reviewed multiple conflicting fact-based affidavits and “applied fact-based

factors in holding that a hearing was not required to resolve those issues of fact.” R.

at 1154. We agree.

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Gray’s argument on the second Dodson factor is hard to decipher.3 He seems

to be saying the district court should not even have applied this factor to his claim

because an ineffective-assistance claim presents a mixed question of law and fact

under Strickland v Washington, 466 U.S. 668, 698 (1984). But his acknowledgment

that the Strickland standard is “in direct contradiction to the second Dodson factor,”

Aplt. Br. at 7, amounts to a concession that this factor cannot weigh in his favor.

After all, it would be illogical to say that an issue reviewable under a mixed-question

standard is purely “one of law,” Dodson, 917 F.2d at 1252 (italics and internal

quotation marks omitted), unless no issues of disputed fact exist. Although Gray now

insists that is the case, he told both the ACCA and the CAAF that disputed facts exist

and that the factual disparity between his affidavits and his defense counsel’s

affidavits was “outcome determinative.” See R. at 56-57, 60, 165. And he told the

ACCA that a hearing was required because “disputed questions of fact [were]

introduced by conflicting post-trial affidavits.” R. at 110 (capitalization

standardized).

Gray also says that applying the second Dodson factor “to

[ineffective-assistance] cases brought forth in habeas petitions by military prisoners

3 Because Gray proceeds pro se, we liberally construe his pleadings and his appeal brief. See Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003). But we do not act as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

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is, in effect, a bar to habeas and thus unconstitutional,” Aplt. Br. at 9. But he

presents no support for this novel argument.

Under these circumstances, Gray has not demonstrated the second Dodson

factor weighs in his favor. Our analysis could begin and end here, given that his

failure to satisfy even one factor is fatal under Santucci. Nevertheless, we will

consider his argument on the fourth, and most important, Dodson factor, to reassure

him that he has received full and fair consideration in this court as well.

C. The Fourth Dodson Factor

The district court found that the military courts adequately considered Gray’s

ineffective-assistance claim. It highlighted the ACCA’s efforts to supplement the

record by requesting affidavits from Gray’s counsel and concluded that the ACCA’s

opinion shows that it rejected the claim only after a complete record analysis—thus

giving full and fair consideration to his claim. Here, too, we agree.

Gray’s arguments on the fourth Dodson factor rest on two inconsequential

omissions in the district court’s ruling. First, he faults the district court for not

addressing the ACCA’s failure to properly cite the affidavits, “which showed clear

negligence in their analysis of the affidavits and therefore a lack of adequate

consideration,” Aplt. Br. at 5. Second, he faults the district court for not specifically

addressing the CAAF’s rejection of the petition for grant of review, even though it

did speak broadly of “the military courts,” R. at 1155. Gray might be conflating

adequate consideration by the district court with adequate consideration by the

military court. In any event, our independent record review shows the military courts

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adequately considered4 Gray’s ineffective-assistance claim and applied proper legal

standards. Gray has not demonstrated the fourth Dodson factor weighs in his favor.

D. Discovery and Procedural Motions

Last, we turn to Gray’s argument that the district court abused its discretion in

denying his motions for discovery and for an extension of time and in delaying its

ruling on those motions until it resolved his habeas petition. “We review pretrial

discovery rulings for abuse of discretion.” King v. PA Consulting Grp., Inc., 485

F.3d 577, 590 (10th Cir. 2007). “District courts are properly granted broad discretion

over discovery and scheduling matters; otherwise, they would be unable to

effectively manage their caseloads.” Id. at 591. Likewise, we review a district

court’s denial of a motion for an extension of time for abuse of discretion.

Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238, 1242 (10th Cir.

2010).

As Gray recognized in district court, see Suppl. R. at 4, habeas petitioners are

not entitled to discovery as a matter of ordinary course. Bracy v. Gramley, 520 U.S.

899, 904 (1997). Instead, a district court has discretion to permit discovery upon a

showing of good cause. See id. Good cause is established where “the petitioner may,

4 The district court used the phrase “full and fair consideration” when discussing the fourth Dodson factor. See R. at 1155. Gray says the district court erred by using this phrase because the fourth factor references “adequate consideration.” See Aplt. Br. at 11. We discern no meaningful error. The district court clearly assessed the adequacy of the military courts’ consideration. Moreover, the aim of the Dodson test as a whole is to assess whether the military courts gave full and fair consideration, so that phrasing is appropriate too. 8 Appellate Case: 23-3079 Document: 010110963269 Date Filed: 12/05/2023 Page: 9

if the facts are fully developed, be able to demonstrate that he is entitled to relief.”

Id. at 909 (ellipsis and internal quotation marks omitted).

Gray’s discovery motion sought a transcript of a phone call between another

USDB inmate and the victim, during which the victim supposedly told the inmate

that she did not want to testify but her mother made her do so. The district court

found that he had not shown good cause for discovery because (1) “the alleged

statement by the victim does not suggest that petitioner did not commit the crime,”

and (2) “the facts at issue in the discovery request do not bear on the Dodson factors

that preclude . . . merits review.” R. at 1156.

On appeal, Gray asserts that the transcript would support his ineffective-

assistance claim because his attorneys would not have advised him to plead guilty

had they recognized the victim’s motive to fabricate and done their job effectively.

But even assuming that statement is true, the district court correctly reasoned that the

requested discovery has no relationship to any of the Dodson factors. Gray disagrees

with the notion that a court must base its discovery ruling on whether the facts sought

in discovery “bear on issues barring the court’s review of the merits of the case.”

Aplt. Br. at 15. But whether the district court could review the merits of Gray’s case

was a threshold question, and it is axiomatic that discovery must be relevant or

calculated to lead to the discovery of relevant evidence. Therefore, the district court

did not abuse its discretion in denying the discovery motion.

Gray also sought an extension of time to file a traverse (i.e., a reply) in support

of his habeas petition. He had filed a reply, but he wanted an opportunity to alter it

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after the district court issued its discovery ruling. Having denied the habeas petition

and the motion for discovery, the district court logically denied the motion for an

extension as moot and thus did not abuse its discretion.

III. Conclusion

We affirm the judgment of the district court. We grant Gray’s motion for

leave to proceed on appeal without prepayment of costs or fees.

Entered for the Court

Gregory A. Phillips Circuit Judge