Lewis v. United States

• Court: District Court, S.D. California
• Decided: October 21, 2019
• Docket: 3:18-cv-00911
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES R. LEWIS, Case No.: 3:18-cv-00911-L-KSC

12 Petitioner, ORDER DENYING PETITION FOR 13 v. WRIT OF HABEAS CORPUS WITHOUT PREJUDICE AND 14 UNITED STATES OF AMERICA, DENYING MOTION TO DISMISS

15 [ECF NO. 1] Respondent. 16

17 Petitioner, Senior Airman James R. Lewis, United States Air Force (hereinafter 18 “Petitioner”) filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 19 alleging that his due process rights were violated by the use of a propensity evidence jury 20 instruction during his court martial, and that he received ineffective assistance of appellate 21 counsel. Respondent filed an Answer and Return, and in the alternative Motion to Dismiss. 22 Petitioner filed a Traverse, and Opposition to the Motion to Dismiss. The Court has 23 considered the moving papers and exhibits, and for the reasons stated below, DENIES the 24 Petition. 25 I. BACKGROUND 26 In December 2012, Petitioner was convicted by a military tribunal at a general court 27 martial of one count of aggravated sexual assault and two counts of wrongful sexual 28 1 conduct in violation of Article 120, UCMJ, 10 U.S.C. § 920. Petitioner was sentenced to a 2 term of nine years confinement, forfeiture of all pay and allowances, reduction to E-1 3 grade, and dishonorably discharged.1 (Petition at 5 [ECF NO. 1.]) Petitioner was granted 4 parole in August 2017. (Id. at 6.) 5 Petitioner’s case was submitted for mandatory review before the Air Force Court of 6 Criminal Appeals (“AFCCA”), which affirmed the conviction. (Pet. at 5). The Court of 7 Appeals for the Armed Forces (hereinafter “CAAF”) denied Petitioner a second, 8 discretionary review. (Id.) In 2016 Petitioner submitted a writ of coram nobis to the 9 AFCCA, which was denied. (Id.) The AFCCA instructed Petitioner to seek relief through 10 a writ of habeas corpus in a federal district court. (Id.) Petitioner then filed a writ-appeal 11 petition to the CAAF, which was also denied. (Id.) 12 In May 2018, Petitioner filed the instant petition for writ of habeas corpus. (Pet. at 1 13 [ECF NO. 1.] He seeks an order granting the writ and ordering a rehearing, or in the 14 alternative, an order vacating and re-entering the judgment of conviction to allow a new 15 appeal. (Id. at 4.) 16 II. STANDARD 17 District courts have jurisdiction under 28 U.S.C. § 2241 to grant a writ of habeas 18 corpus to a prisoner who is “in custody in violation of the Constitution or laws or treaties 19 of the United States.” 28 U.S.C. § 2241; Estelle v. McGuire, 502 U.S. 62, 68 (1991) 20 (citing 28 U.S.C. § 2241). A prisoner is “in custody” for purposes of section 2241 if he 21 is physically confined or if he is subject to parole as a consequence of his conviction. 22 Maleng v. Cook, 490 U.S. 488, 491 (1989). 23 A. Jurisdiction 24 As a primary matter, Respondent contends that this Court lacks jurisdiction to hear 25 Petitioner’s claims, arguing that while this Court may review claims that challenges the 26

27 1 Petitioner states that on April 1, 2013, the Convening Authority approved the sentence and ordered that 28 1 constitutionality of a statute of conviction, it may not address claims such as Petitioner’s 2 that assert a “constitutional deviation in procedure and application of law,” if military 3 tribunals have fully and fairly adjudicated the issues. (Oppo at 5, 8-9 [ECF NO. 6.]) The 4 government claims the issues have been fully and fairly addressed by military tribunals 5 because the AFFCA addressed the issues Petitioner raises here when it denied his coram 6 nobis petition. (Id.) 7 When a military decision has already dealt fully and fairly with an allegation that is 8 raised in a writ petition before a federal court, the court cannot grant the writ simply to re- 9 evaluate the evidence adduced by the military court. Burns v. Wilson, 346 U.S. 137, 142 10 (1953); Schlesinger v. Councilman, 420 U.S. 738, 746 (1975) (“The valid, final judgments 11 of military courts, like those of any court of competent jurisdiction not subject to direct 12 review for errors of fact or law, have res judicata effect and preclude further litigation of 13 the merits.”) However, “[i]n habeas corpus proceedings, a court-martial conviction may be 14 deemed void because of constitutional defects.” Hatheway v. Sec'y of Army, 641 F.2d 1376, 15 1379-80 (9th Cir. 1981)(abrogated on other grounds in High Tech Gays v. Defense Indus. 16 Sec Clearance Office, 895 F.2 563 (9th Cir. 1990); see also Parker v. Levy, 417 U.S. 733 17 (1974). Federal courts may conduct habeas review where constitutional defects are so 18 serious that they can cause “lasting, serious harm in civilian life.” Hatheway, 641 F.2d at 19 1380. 20 In Hatheway, the Ninth Circuit affirmed the district court’s exercise of jurisdiction 21 over petitioner’s claims that the court martial proceedings violated his due process and 22 equal protection rights, and that Article 125 of the Uniform Code of Military Justice was 23 unconstitutional. See Hatheway, 641 F.2d 1380 (“[w]e hold that in alleging that Article 24 125 is unconstitutional and that the court-martial proceedings violated his rights to due 25 process and equal protection, he has alleged such fundamental defects.”). The Hatheway 26 court found that “although he has not been imprisoned, his conviction resulted in a 27 dishonorable discharge that can cause ‘lasting, serious harm in civilian life’ and ‘[g]iven 28 1 the seriousness of the harm, we think constitutional defects such as he has alleged would 2 justify holding he conviction void.’” Id. 3 Here, Petitioner claims that the use of a propensity evidence jury instruction violated 4 his constitutional rights to the presumption of innocence and due process, and resulted in 5 his incarceration, dishonorable discharge and loss of benefits. (Oppo at 8-9). While 6 Petitioner is not challenging the facial constitutionality of the statute under which he was 7 convicted, he has sufficiently alleged a constitutional defect in the court martial 8 proceedings that would support a finding that his court martial was void, even if the claims 9 were fully and fairly adjudicated, because the consequences of his conviction are serious 10 and may cause “lasting, serious harm in civilian life.” Hatheway, 641 F.2d at 1380. 11 Accordingly, the Court finds that de novo review of Petitioner’s constitutional claims is 12 mandated. Id.; see also Rich v. Stackley, 2018 WL 1791887 (S.D. Cal. April 16, 2018) 13 (Petitioner raised three constitutional challenges to his general court-martial conviction for 14 aggravated sexual abuse of a child and court conducted de novo review). 15 B. Propensity Jury Instruction 16 Petitioner argues that during his court martial the panel was given a propensity jury 17 instruction pursuant to Military Rule of Evidence 413 which advised them that they could 18 consider evidence of one of the charged offenses as evidence of his propensity to commit 19 another offense charged in the same case, but this instruction has since been found 20 unconstitutional in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) and United States 21 v. Hukill, 76 M.J. 2019 (C.A.A.F. 2017). (Pet. at 2, 11 [ECF NO. 1.]) He contends that his 22 constitutional rights were violated by the giving of the instruction, and requests that the 23 Court grant his petition and order a rehearing so he may be tried without the instruction. 24 (Id. at 3). Should the Court disagree, Petitioner requests that the Court vacate and re-enter 25 the judgment of conviction to allow him to file a direct appeal asserting these grounds. (Id. 26 at 20). 27 Respondent acknowledges that the propensity jury instruction used in Petitioner’s 28 court martial was found unconstitutional in Hills, but argues that the holding of Hills is 1 inapplicable to Petitioner because that case was decided after Petitioner’s conviction, and 2 the rule cannot be applied retroactively. (Id. at 9-10 [ECF NO. 6.]) 3 In military court-martials, evidence of prior sexual assaults is admissible to show 4 propensity under Military Rule of Evidence 413 which states: “[i]n a court-martial in which 5 the accused is charged with an offense of sexual assault, evidence of the accused's 6 commission of one or more offenses of sexual assault is admissible and may be considered 7 for its bearing on any manner to which it is relevant.” Mil.R.Ev. 413. Where a defendant 8 has been found guilty or pled guilty to an offense that is used as propensity evidence in a 9 sexual assault case, courts traditionally hold that the prior offense is admissible because 10 the defendant is no longer presumed innocent of the prior charge. See generally Wright, 11 53 M.J. at 479. 12 The jury instruction regarding propensity evidence, as given in this case, states: 13 Evidence that the Accused committed the offenses of sexual assault alleged in Specifications one through four of the Charge may be considered 14 by you with regard to one another for an additional basis with regard to one 15 another under certain circumstances. First, those offenses may have no bearing on your deliberations in relation to one another unless you first 16 determine by a preponderance of the evidence, that is more likely than not, 17 any of those alleged offenses of sexual assault occurred. If you determine by a preponderance of the evidence any of those 18 alleged offenses occurred, even if you are not convinced beyond a 19 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 20 matter to which it is relevant in relation to the remainder of those offenses of 21 sexual assault; that is Specifications one through four of the Charge. You may also consider the evidence of those other offenses for its 22 tendency, if any, to show the Accused’s propensity or predisposition to 23 engage in acts of sexual assault. You may not, however, convict the Accused of any offense solely because you believe he committed some other 24 offense or solely because you believe the Accused has a propensity or 25 predisposition to engage in acts of sexual assault.

26 (Tr. at 97-98 [ECF NO. 10-6.]) 27 28 1 In Hills, the court held that the use of charged, but contested, conduct to show 2 propensity to commit other charged conduct in the same case violated the accused’s 3 constitutionally protected right to the presumption of innocence. Hills, 75 M.J. at 357. 4 The Hills Court stated “[i]t is antithetical to the presumption of innocence to suggest that 5 conduct of which an accused is presumed innocent may be used to show a propensity to 6 have committed other conduct of which he is presumed innocent.” Id. at 356. In United 7 States v. Hukill, the CAAF further clarified the holding of Hills, holding that evidence of a 8 charged and contested offense of which an accused is presumed innocent cannot be used 9 to demonstrate the propensity of the accused to commit a separately charged offense in the 10 same case regardless of the number of victims, the forum or whether the events are 11 connected. United States v. Hukill, 76 M.J. 219, 222 (C.A.A.F. 2016). 12 Petitioner acknowledges that Hills was decided after his direct appeal was 13 concluded, but contends that the Hills rule applies retroactively and he should be afforded 14 an opportunity to have it applied to his conviction and sentence. (Pet. at 11,16 [ECF NO. 15 1.]) Respondent counters that the AFCCA conducted an analysis the retroactivity of Hills, 16 and determined the holding announced a “new rule” that did not apply retroactively. 17 (Oppo. at 9 [ECF NO 6.]) 18 The Supreme Court has established a three-step process for determining whether a 19 constitutional rule of criminal procedure may be applied to cases on collateral review. 20 Beard v. Banks, 542 U.S. 406 (2004); Lambrix v. Singletary, 520 U.S. 518, 527–528 21 (1997). First, the court must determine when the conviction became final. Second, the 22 court must survey the legal landscape as it existed at the time a defendant’s conviction 23 became final to determine whether the rule was “dictated by precedent” and whether it 24 would have been “apparent to all reasonable jurists” that the rule was the logical extension 25 of preceding jurisprudence. Lambrix, 520 U.S. at 527-28; United States v. Chan, 792 F.3d 26 1151, 1155 (9th Cir. 2015). “[A] case announces a new rule if the result was not dictated 27 by precedent existing at the time the defendant's conviction became final.” Chaidez v. 28 United States, 568 U.S. 342, 347 (2013)(emphasis in original). A decision that alters the 1 existing legal landscape by announcing a new rule will apply “to all criminal cases still 2 pending on direct review” but only in limited circumstances to convictions that are already 3 final. Schriro v. Summerlin, 542 U.S. 348, 351–52 (2004). Third, the court must determine 4 if either of the two exceptions to the general rule against retroactive application to cases on 5 collateral revue applies. Beard, 542 U.S. at 406. 6 As to the first prong, Petitioner’s conviction became final when the CAAF denied 7 review on February 10, 2015. See Loving v. United States, 64 M.J. 132 (CAAF 2006)(“We 8 hold that a military justice case is final for purposes of Teague when ‘there is a final 9 judgment as to the legality of the proceedings’ under Article 71(c), UCMJ. Article 71(c)(1), 10 UCMJ.”) Hills was decided on June 27, 2016, therefore it is only applicable to Petitioner’s 11 case if it can be applied retroactively. 12 Second, the AFCCA, in its denial of Petitioner’s writ for coram nobis, conducted a 13 thorough analysis of the legal landscape that preceded Hills and determined that the rule it 14 announced was new: 15 Hills was not decided until [June 27, 2016]. However, the CAAF had previously rejected a facial constitutional challenge to Mil. R. Evid. 413 in 16 United States v. Wright, 53 M.J. 476, 483 (C.A.A.F. 2000) and suggested in 17 dicta that Mil. R. Evid. 413 could be applied to evidence of charged as well as uncharged offenses of sexual assault to show propensity. See United States 18 v. Burton, 67 M.J. 150, 152 (C.A.A.F. 2009) (“The Government may not 19 introduce similarities between a charged offense and prior conduct, whether charged or uncharged, to show . . . propensity without using a specific 20 exception within our rules of evidence, such as [Mil. R. Evid.] 404 or 413.”). 21 In addition, the version of the Military Judges’ Benchbook in use at the time the judgment in Petitioner’s case became final included a specific model 22 instruction regarding the use of a charged instance of sexual assault as 23 propensity evidence under Mil. R. Evid. 413. Military Judges’ Benchbook, Dept. of the Army Pamphlet 27–9, ¶ 7–13–1, Note 4.2 (10 Sep. 2014). 24 Moreover, in the same year that Petitioner’s case became final, three Courts 25 of Criminal Appeals specifically held that evidence of charged offenses of sexual assault could properly be used under Mil. R. Evid. 413, only to be 26 overruled by Hills the following year. United States v. Barnes, 74 M.J. 692, 27 697–98 (A. Ct. Crim. App. 2015), rev. den., 75 M.J. 27 (C.A.A.F. 2015); United States v. Bass, 74 M.J. 806, 815 (N–M. Ct. Crim. App. 2015); United 28 1 States v. Maliwat, No. ACM 38579, 2015 WL 6655541, at *5-6, 2015 CCA LEXIS 443, at *14-15 (A.F. Ct. Crim. App. 19 Oct. 2015), rev’d, 76 M.J. 128 2 (14 Feb. 2017). Under these circumstances, we find the CAAF’s decision in 3 Hills broke new ground and would not have been “apparent to all reasonable jurists” in February 2015. 4

5 Lewis v. United States, 76 M.J. 829, 835 (A.F. Ct. Crim. App. 2017). 6 Up until the Hills decision, military caselaw and procedure regularly allowed 7 evidence of a charged offense to be used to show an accused’s propensity to commit 8 another charged offense, whether the accused had pled guilty to the charged offenses or 9 not. See generally, Burton, 67 M.J. at 152-53 (C.A.A.F. Jan. 15, 2009); Barnes, 74 M.J. at 10 697-98 (A.C.C.A. May 8, 2015). 11 Petitioner urges that Hills did not announce a new rule, but instead it merely clarified 12 and narrowed the holding announced of United States v. Wright, where the CAAF upheld 13 the constitutional validity of Rule 413 and held that evidence of charged conduct to which 14 the defendant had pled guilty is admissible to show propensity to commit other similar 15 charged conduct. (Pet. at 14 [ECF NO. 1.]) Petitioner claims that the court in Hills said that 16 the result in that case “seem[ed] obvious” in light of Wright. (Pet. at 15.) 17 Indeed, the Hills court stated that the Wright decision foreshadowed its holding: 18 “[a]s we noted in Wright … M.R.E. 413 ‘would be fundamentally unfair if it undermines 19 the presumption of innocence and the requirement that the prosecution prove guilt beyond 20 a reasonable doubt.’” Hills, 75 M.J. at 356. The court in Hills noted that, “[t]hough a 21 question of first impression, it seems obvious that it is impermissible to utilize M.R.E. 413 22 to show that charged conduct demonstrates an accused's propensity to commit ... the 23 charged conduct.” Id. at 353. The Hills Court noted that use of charged misconduct in this 24 manner did not comport with the purpose and structure of M.R.E. 413, or its counterpart, 25 Federal Rule of Evidence 413, which were drafted to address the use of uncharged, not 26 charged, conduct in sexual assault cases. Id. Although the Hills court concluded that its 27 holding was foreshadowed by the purpose and intent of the rule, the use of charged conduct 28 to show propensity was commonplace, therefore the legal landscape at the time would not 1 have alerted all reasonable jurists of the Court’s holding. For these reasons, the Court finds 2 that Hills announced a new rule. 3 Third, and finally, whether the new rule announced in Hills can be applied to 4 Petitioner’s case is dependent on whether it falls within one of the two recognized 5 exceptions to the general prohibition against retroactive application of new rules. The 6 parties agree that the question of retroactivity is governed by the holding in Teague v. Lane, 7 which dictated that “[u]less they fall within an exception to the general rule, new 8 constitutional rules of criminal procedure will not be applicable to those cases which have 9 become final before the new rules are announced.” 489 U.S. 288 (1989). A new rule may 10 be applied retroactively if it is substantive. “A rule is substantive rather than procedural if 11 it alters the range of conduct or the class of persons that the law punishes .... In contrast, 12 rules that regulate only the manner of determining the [accused’s] culpability are 13 procedural.” Schriro, 542 U.S. at 353. 14 Although the Ninth Circuit has yet to weigh in on the issue, the Tenth Circuit, which 15 frequently addresses habeas petitions from military personnel, held that Hills announced a 16 new procedural rule that does not apply retroactively. See Evans v. Horton, 2018 WL 17 6305654 (10th Cir. 2018). As the Evans Court held, Hills did not alter the range of conduct 18 or class of persons that the law punishes or modify the elements of the charged sexual 19 assault offenses, therefore it is not a substantive rule within the meaning of Teague. Shriro 20 at 353. Instead, it invalidated an existing evidentiary procedure used to introduce evidence 21 of other charged but not admitted, sexual misconduct to show propensity to commit 22 charged conduct. Id. at 352. Therefore, Hills announced a new criminal procedural rule. 23 Retroactive application for new rules of criminal procedure is only permissible for 24 “watershed rules.” Shriro, 542 U.S. at 351-52. “A rule is viewed as a watershed rule if it 25 is necessary to prevent an impermissibly large risk of an inaccurate conviction and if it 26 alters our understanding of the bedrock procedural elements essential to the fairness of the 27 proceeding.” Whorton v. Bockting, 549 U.S. 406, 418 (2007) (internal quotations and 28 citations omitted). A new procedural rule must be “fundamental” in more than an abstract 1 sense; it must be one ‘“without which the likelihood of an accurate conviction is seriously 2 diminished.’ ... This class of rules is extremely narrow, and ‘it is unlikely that any ... ‘ha[s] 3 yet to emerge.’” Schriro, 542 U.S. at 351-52. The rule in Hills does not qualify as a 4 watershed rule because it was not “necessary to prevent an impermissibly large risk of an 5 inaccurate conviction,” but instead is a rule that limits one factor that could have influenced 6 the outcome of a trial. Whorton, 549 U.S. at 407 (2007). 7 Petitioner argues that the CAAF and CCA have set aside many convictions and 8 authorized new trials where the government employed the unconstitutional propensity 9 instruction at issue in this case. (Pet. at 13 [ECF NO 1.) However, those cases were heard 10 on direct appeal permitting application of the new Hills rule, and the convictions were only 11 overturned in cases where the evidence was not robust enough to be certain that the verdict 12 was not influenced by the propensity jury instruction. See generally United States v. 13 Guardado, 77 M.J. 90 (C.A.A.F. 2017); United States v. Robertson, 77 M.J. 365 (C.C.A 14 2018); United States v. Moynihan, 2018 WL 6334226 (C.C.A. 2019). Even if this Court 15 applied the Hills rule to Petitioner’s case and found constitutional error, such error is 16 harmless because the evidence was sufficient to conclude that the ve115-rdict was 17 supported regardless of the jury instruction. Hukill, 76 M.J. at 222 (“where such 18 constitutional error exists, the Government must ‘prove there was no reasonable possibility 19 that the error contributed to [the] verdict.’”) In so determining, the Court balances the 20 sufficiency of the evidence against the prosecution’s reliance on propensity evidence. Id. 21 Here, the victims convincingly testified about the events of the assaults during the 22 court martial. Senior Airman K testified that in late 2010 Petitioner came to her dorm room 23 seeking emotional support because his wife was suicidal. (Tr. at 90-91) [ECF NO 10-7.]) 24 She explained that she had taken cold medicine which made her drowsy before he came 25 over, so she put on a pot of coffee but fell asleep at her kitchen table, only to wake up in 26 her bed with Petitioner having sex with her. (Id.) She stated: 27 A: I woke up in pain. 28 Q: Why were you in pain? 1 A: He was inside me. His penis was inside me and I had never had sex before 2 and it hurt. 3 (Id. at 91.) 4 Similarly, Airman Y testified that after having dinner and watching a movie with a 5 group of colleagues including Petitioner, he helped her bring laundry to her dorm room and 6 the two watched a movie with her on her bed and him on the couch. (Tr. at 79-80 [ECF 10- 7 8.]) Airman Y stated that she fell asleep on the bed and woke up with Petitioner laying on 8 her bed and touching her breast. (Id.) She attempted to move away from him, but he 9 continued touching her breast and vagina area over her clothes. (Id. at 80-81). She stated 10 he moved her shorts and underwear to the side and then “he penetrated me with his fingers 11 and he ended up climbing on top of me and penetrated me with the tip of his penis three or 12 four times.” (Id. at 81). When asked why she didn’t scream or fight him, she stated “I had 13 been molested and sexually assaulted when I was younger so that is just my natural 14 reaction” and she “did not really know what he was capable of.” (Id.) 15 Airman D testified that in December 2010, she and her roommate, along with 16 Petitioner, were drinking alcohol and after becoming intoxicated, she and her roommate 17 went to their respective bedrooms to go to sleep. (Tr. at 2 [ECF NO 10-8.]) Airman D 18 thought Petitioner had departed when she went to sleep, but she woke up to find Petitioner 19 on top of her with her pajamas down around her knees and him “inside her.” (Id. at 3). 20 When asked to clarify her statement, Airman D testified: 21 Q: What does that mean? 22 A: His penis was inside my vagina. 23 Q: Was this occurring at the time you opened your eyes and woke up? 24 A: Yes, Sir. 25 (Id.) 26 Airman B testified that on June 16, 2012, she and her roommate, Jacquelyn Tobin, 27 returned to their dorm after an evening of heavy social drinking, with Petitioner along as 28 Tobin’s date. (Tr. at 134 [ECF NO. 10-8.]) After Airman B went to bed, she woke up to 1 find Petitioner naked and kneeling over her, with Tobin yelling at Petitioner to leave the 2 room. (Id.) Later in the evening, Airman B awoke to someone in her bed who she assumed 3 was her boyfriend, who was touching her and tried to roll her over on to her stomach. (Id.) 4 Airman B turned toward Petitioner and saw him lick his fingers, “then he moved his hand 5 underneath the sheets at which point I am assuming …. he was masturbating.” (Id.) Senior 6 Airman B‘s testimony was supported by Airman First Class Christopher Schick and 7 Jacquelyn Tobin, lending credence to her description of the events. (Tr. at 18 [ECF NO 8 10-9.]; Tr. at 5-8 [ECF NO. 10-6.]) 9 On cross examination, defense counsel pointed to inconsistencies in the witness 10 statements, and explored the possibility that each of the women could not accurately recall 11 the events due to being drunk or medicated. (Tr. at 16-28 [ECF NO 10-8.]) Counsel asked 12 whether the victims conspired to accuse Petitioner, and questioned whether any of the 13 women had a romantic or sexual interest in Petitioner.( Tr. at 113-123 [ECF NO 10-8.]) 14 The prosecutor in closing emphasized at the outset that the government had the 15 burden to prove each offense beyond a reasonable doubt: 16 Now the government owns both legally and morally the responsibility to prove each one of those offenses beyond the reasonable doubt. And that 17 is a responsibility that we embrace in this case. Because the evidence that 18 you heard in this court, the actual evidence in this case established beyond a reasonable doubt that he committed each one of those offenses. 19 Since we have that burden, it is appropriate for us to start the 20 discussion with just that. Each offense, each element, and evidence which shows that those elements are met beyond a reasonable doubt. 21

22 (Tr. at 101 [ECF NO. 10-6.]) 23 After summarizing the testimony of each victim, the prosecutor stated that there was 24 proof beyond a reasonable doubt that Petitioner committed these crimes “as to each one of 25 these circumstances, each individual, each charged individual.” (Id. at 114). 26 The prosecutor then instructed the panel it could consider propensity evidence, 27 explaining: 28 1 The Military Judge has instructed you that you could take the facts of the similarity of each of these offenses over time to show that this Accused, 2 Airman Lewis, has the propensity to engage in this type of crime. He has 3 the propensity to engage in sexual assault. It’s not proof in itself to commit each of these offenses, but it ties them together. 4 It is the glue that established the foundation proof beyond a 5 reasonable doubt. The reasoning [sic] you can assume that he has the propensity to engage in misconduct is because of the similarities of each of 6 these activities. Each case, he enters a woman’s room at night, when they are 7 not in the position to communicate on their own. Airman D’s case because of alcohol. Airman K ‘s case because of 8 sleep medication. Airman Y because of the assumption she was asleep and 9 with Airman B the same. Each of those situations he engaged in conduct and did so each and every time. It established he has the propensity and 10 desire to do just what he did in each case, and he did, time after time, after 11 time, after time after time, he committed each one of these offenses. Airman D, 21 years old. First duty assignment, Barksdale Air Force 12 base. A woman in her bed, he pulls down her pants, he puts his penis in her 13 vagina while she’s asleep, and committed the offense. Airman K, 24 years old. A woman in her bed, he puts his penis in her vagina. Committed the 14 offense. Airman Y, asleep in her bed, gropes her breast, gropes her vagina, 15 pushes his penis against her vagina. He committed the offense. Airman B, asleep in her bed. He gropes her breasts and vagina. Committed the offense. 16 Add a little extra to it, he decides to masturbate in front of her. 17 The Accused is a serial offender. The evidence establishes beyond a reasonable doubt that he committed each one of these offenses. 18

19 (Tr. at 115-16 [ECF NO 10-6.])

20 Although it is true that the prosecution drew comparisons and even suggested that 21 those similarities were the “glue” that formed the foundation of reasonable doubt, the 22 instructions repeatedly reminded the jurors that the government had the burden to prove 23 each charge beyond a reasonable doubt: 24 You may not, however, convict the Accused of any offense solely 25 because you believe he committed some other offense or solely because you 26 believe the Accused has a propensity or predisposition to engage in acts of sexual assault. 27 In other words, you cannot use this evidence to overcome a failure of 28 proof in the government’s case, if you perceive any to exist. The Accused 1 may be convicted of an alleged offense only if the prosecution has proven each element beyond a reasonable doubt. 2 Each offense must stand on its own and proof of one offense carries 3 no inference that the Accused is guilty of any other offense. In other words, proof of one sexual assault offense creates no inference that the Accused is 4 guilty of any other sexual assault offense. However, it may demonstrate that 5 the Accused has a propensity to commit that type of offense. The prosecution’s burden of proof to establish the Accused’s guilt beyond a 6 reasonable doubt remains as to each and every element of each offense 7 charged.

8 (Tr. at 98 [ECF NO 10-6.]) 9 Similarly, the propensity instruction cautioned that “[e]ach offense must stand on 10 its own and you must keep the evidence of each offense separate. Stated differently, if you 11 find or believe that the Accused is guilty of one offense, you may not use that finding or 12 belief as a basis for inferring, assuming, or proving that he committed any other offense.” 13 (Tr. at 96 [ECF NO 10-6.]) Despite the prosecution’s reliance on propensity evidence in 14 closing argument, there was sufficient corroborated testimonial evidence, along with 15 repeated instruction that the panel had to find each charged offense supported by proof 16 beyond a reasonable doubt, to conclude that even if it was error for the panel to be 17 instructed that it could consider propensity evidence, any error was harmless. Chapman v. 18 California, 386 U.S. 18, 24 (1967). 19 For the foregoing reasons, the Court finds that Hills announced a new rule of 20 criminal procedure which does not fall under an exception warranting retroactive 21 application to Petitioner’s case. Furthermore, there was no reasonable possibility that any 22 alleged error contributed to the verdict in light of the substantial evidence and instructions 23 presented at the court martial. Therefore, the Court DENIES Petitioner’s request for a new 24 trial based on the retroactivity of Hills to his case. 25 C. Ineffective assistance of counsel 26 Petitioner contends he received ineffective assistance of counsel under the Sixth 27 Amendment because his appellate attorney failed to raise a challenge to the propensity jury 28 1 instruction on appeal despite the issue being preserved during his court martial. (Mot. at 18 2 [ECF NO. 1.]) According to Petitioner, this is the first opportunity he has had to raise this 3 argument because the military courts did not have jurisdiction to hear this claim. (Id. at 13- 4 14). 5 Respondent counters that Petitioner is foreclosed from raising this issue here because 6 he did not first raise it before the military courts, specifically in either his writ of coram 7 nobis or on his writ appeal. (Oppo. at 15 [ECF NO 6.]) Should the Court disagree, 8 Respondent argues that Petitioner cannot meet his burden to show he received ineffective 9 assistance of counsel because it was reasonable for appellate counsel to decline to raise this 10 issue on appeal considering that this use of charged conduct to show propensity was settled 11 law and accepted practice in military sexual assault trials. (Id. at 12). Even if appellate 12 counsel should have raised the issue on appeal, the government contends that Petitioner 13 cannot show there would have been a different result, as required to demonstrate ineffective 14 assistance of counsel. (Id.) 15 For this Court to review Petitioner’s claim, he must 1) allege a violation of a 16 constitutional right, and 2) exhaust his remedies. Khalsa v. Weinberger, 779 F.2d 1393, 17 1398 (9th Cir. 1985). A claim of ineffective assistance of counsel necessarily implicates 18 the constitutionally protected right to counsel under the Sixth Amendment, therefore 19 Petitioner has met the first requirement. With regard to exhaustion, a plaintiff's failure to 20 raise federal constitutional claims in the military court system will generally procedurally 21 default that plaintiff from raising those issues when collaterally attacking a court martial, 22 absent a showing of cause and prejudice. Davis v. Marsh, 876 F.2d 1446, 1448 (9th Cir. 23 1989). 24 Although Petitioner claims he could not have raised the issue sooner, it appears the 25 AFCCA could have heard that claim. The AFCCA in its order denying Petitioner’s writ of 26 coram nobis provided that, “[t]he All Writs Act, 28 U.S.C. § 1651(a), grants this court 27 authority to issue extraordinary writs necessary or appropriate in aid of its jurisdiction.” 28 Lewis, 76 M.J. at 833. However, ineffective assistance of counsel can constitute cause for 1 overcoming a procedural default. Murray v. Carrier, 477 U.S. 478, 488 (1986)(ineffective 2 assistance of counsel is cause for procedural default.) Therefore, the Court will consider 3 his claim. 4 In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a 5 two-prong test to determine whether counsel’s assistance was so defective as to require 6 reversal of a conviction. First, petitioner must show that counsel’s performance was 7 deficient. Id. at 687. In order to prove deficient performance, petitioner must demonstrate 8 that counsel “made errors so serious that counsel was not functioning as the ‘counsel’ 9 guaranteed the defendant by the Sixth Amendment.” Id. In other words, petitioner must 10 demonstrate that counsel’s representation fell below an objective standard of 11 reasonableness, considering all the circumstances presented in a particular case. Id. at 688. 12 The Supreme Court further elaborated that there is a “strong presumption that counsel’s 13 conduct falls within the wide range of reasonable professional assistance. . . .” Id. at 699. 14 The second prong of the Strickland test requires petitioner to prove that counsel’s 15 deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. In order to 16 prove prejudice, petitioner must demonstrate that counsel’s errors were so serious as to 17 deprive the defendant of a fair and reliable trial. Id. Otherwise stated, the petitioner must 18 demonstrate that there is a reasonable probability that, but for counsel’s defective 19 assistance, the result of the proceeding would have been different. Id. at 694. 20 Petitioner has not demonstrated that he received deficient representation from 21 appellate counsel. First, there was no obvious error in appellate counsel’s failure to raise 22 the jury instruction issue on appeal because guiding precedent up to and around the time 23 of Petitioner’s appeal indicated that the jury instruction used at Petitioner’s court martial 24 was constitutional, therefore it would have appeared futile to raise the claim. See Rupe v. 25 Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (“the failure to take a futile action can never be 26 deficient performance”). Further, the jury instructions were directly from a military 27 judge’s handbook which guided the tribunal. If anything, bringing the argument up would 28 have been directly contrary to authority at that time. 1 As to the second prong, even if Petitioner’s attorney committed error by failing to 2 raise the challenge to the jury instruction, Petitioner would have to show that, “the ailing 3 instruction by itself so infected the entire trial that the resulting conviction violates due 4 process” to demonstrate he suffered prejudice. Cupp v. Naughten, 414 U.S. 141, 147 5 (1973). Petitioner claims that military courts have reversed many convictions on the basis 6 of the instruction, therefore his case would have turned out differently had his attorney 7 challenged the instruction on appeal. (See Pet. at 13 [ECF NO 1.]) Respondent counters 8 that although Hills has been applied to a variety of military cases, many upheld the original 9 conviction finding that evidence of guilt was overwhelming and any instructional error was 10 harmless. (Oppo at 17 [ECF NO 6 .]) 11 The Court must view the instruction “in the context of the overall charge” including 12 “testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and 13 instruction of the jury by the judge.” Cupp, 414 U.S. at 146-47. The propensity instruction 14 was but one factor the jury weighed when determining Petitioner’s guilt. As noted above, 15 the testimony of the witnesses was compelling in the present case. The panel was instructed 16 it must convict only if it found beyond a reasonable doubt that Petitioner committed each 17 of the alleged offenses. Though the prosecutor argued that the panel could consider the 18 similarities of the charges pursuant to the propensity instruction, counsel’s argument also 19 noted that each charge must be proven beyond a reasonable doubt. Taken as a whole, the 20 record demonstrates that the instruction did not so infect the entire trial that Petitioner’s 21 conviction violated his due process rights. Id. Petitioner has failed to demonstrate that he 22 received ineffective assistance of counsel in violation of his Sixth Amendment rights. 23 Therefore, this Court DENIES Petitioner’s ineffective assistance of counsel claim. 24 // 25 // 26 // 27 // 28 1 CONCLUSION AND ORDER 2 For the foregoing reasons, the Court DENIES Petitioner’s petition for writ of habeas 3 corpus pursuant to 28 U.S.C. § 2241 without prejudice and DENIES Respondent’s Motion 4 Dismiss as moot. 5 IT IS SO ORDERED. 6 || Dated: October 21, 2019

g H6nH James CorenzH 9 United States District Judge

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