Threats v. Shartle

• Court: District Court, D. Arizona
• Decided: February 26, 2021
• Docket: 4:17-cv-00542
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Lonzell J. Threats, No. CV-17-0542-TUC-JAS (BGM)

10 Petitioner,

11 v. REPORT AND RECOMMENDATION

12 J.T. Shartle, Warden, 13 Respondent. 14 15 Currently pending before the Court is Petitioner Lonzell J. Threat’s Petition Under 16 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (“Petition”) 17 (Doc. 1). Respondent has filed an Answer to Petition for Writ of Habeas Corpus 18 (“Answer”) (Doc. 14), and Petitioner replied (Doc. 23). The Petition (Doc. 1) is ripe for 19 adjudication. 20 Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,1 this matter 21 was referred to Magistrate Judge Macdonald for Report and Recommendation. The 22 Magistrate Judge recommends that the District Court deny the Petition (Doc. 1). 23 24 I. FACTUAL AND PROCEDURAL BACKGROUND 25 A. Initial Charge and Sentencing 26 The military court made findings of fact and conclusions of law as follows: 27 1. On 22 September 2010, PFC KP alleged that she was raped, forcibly 28 1 Rules of Practice of the United States District Court for the District of Arizona. 1 sodomized, robbed, and kidnapped after physical training on Fort Campbell. Private First Class P later gave a description of the perpetrator as a black 2 Soldier about 5’6” or 5’7” in height weighing between 145 and 155 lbs who 3 know [sic] the victim. During that afternoon, the unit provided CID with a list of Soldiers in the unit who were not at physical training. The agents then 4 asked the unit which of those Soldiers were black males of medium size and 5 height. 6 2. During the early afternoon of 23 September 2010, SPC Johnson told CID that he observed an unknown black male walking and pacing back and 7 forth during physical training hours for approximately the prior two weeks. 8 3. In the afternoon of 23 September 2010, the accused was one of three 9 Soldiers requested to go to CID for in-depth canvas interviews, because of the physical description of the alleged perpetrator from PFC P and a list of 10 Soldiers in the unit that were not at physical training. In an abundance of 11 caution, all of these Soldiers were advised of their rights, in case they became subjects and made statements. 12 13 4. Special Agent Manor first interacted with the accused at approximately 1430 hours on 23 September 2010. Neither she nor any other 14 CID agent, on 23 or 24 September 2010, asked the accused about how much sleep he had the night prior nor whether he was on any prescription 15 medication. At approximately 1442 hours, she advised the accused of his 16 rights, and he waived his rights and agreed to discuss the incident without a lawyer. 17 18 5. After interviewing SSG Yukon Brown, CID agents asked PFC P if she knew SSG Brown well enough to recognize his voice. She stated that 19 she did and that her attacker was definitely not SSG Brown. 20 6. The accused became a suspect, after he made inconsistent statements 21 about when he came on post the day prior; stated that he was wearing stripped ACU’s [sic], which was similar to the description by PFC P and make [sic] 22 other suspicious statements[.] 23 Answer (Doc. 14), Findings of Fact & Conclusions of Law from Post-Trial Hr’g (Exh. 24 “26”) (Doc. 17-6) at 000291–92.2 25 On September 27, 2010, Petitioner was charged with one (1) count of attempted 26

27 2 Page citations for Respondent’s exhibits refer to the Bates Stamp for ease of reference. 28 All other page citations refer to the Case Management/Electronic Case Files (“CM/ECF”) page number. 1 murder, one (1) count of rape, four (4) counts of robbery, two (2) counts of sodomy, four 2 (4) counts of aggravated assault, and one (1) count of kidnapping. See Answer (Doc. 14), 3 Charge Sheet 9/27/2010 (Exh. “50”) (Doc. 18). On December 2, 2010, Lieutenant Colonel 4 Joseph B. Morse recommended that the charges and specifications in the case of Sergeant 5 Threats be tried by a general court-martial. See Answer (Doc. 14), LTC Morse Memo. to 6 CMDR, Ft. Campbell Installation 12/2/2010 (Exh. “45”) (Doc. 18). On May 17, 2011, 7 following the court-martial, Petitioner was found guilty of one (1) specification of rape, 8 one (1) specification of robbery, two (2) specifications of forcible sodomy, one (1) 9 specification of assault with a dangerous weapon, one (1) specification of assault 10 consummated by a battery, and one (1) specification of kidnapping. Answer (Doc. 14), 11 MAJ GEN McConville Memo. to CMDR 11/5/2011 (Exh. “28”) (Doc. 17-7) at 000316; 12 Answer (Doc. 14), Dept. of the Army Rpt. of Result of Trial (Exh. “37”) (Doc. 17-9). 13 Petitioner “was sentenced to be reduced to the grade of E1, to forfeit all pay and allowances, 14 to be confined for fifty (50) years and to be dishonorably discharged from the service.” 15 Answer (Doc. 14), Exh. “28” at 000316. Staff Judge Advocate Lieutenant Colonel Morse 16 recommended that the findings and sentence be approved and, except for the dishonorable 17 discharge, ordered executed. Answer (Doc. 14), LT COL Morse Memo. to CMDR 18 6/8/2011 (Exh. “34”) (Doc. 17-9) at 000388. Petitioner was also to “be credited with one- 19 hundred seventy-five (175) days confinement against the sentence to confinement.” Id. 20 B. Post-Trial Matters 21 1. Post-Trial Brief 22 On September 11, 2011, counsel for Petitioner made post-trial submissions 23 “pursuant to [Rules for Court-Martial (R.C.M.)] 1105 and R.C.M. 1106, and Article 38(c) 24 of the Uniform Code of Military Justice (UCMJ).” Answer (Doc. 14), CPT Moy, Defense 25 Counsel, Memo. to LT COL Bovarnick 9/11/2011 (Exh. “29”) (Doc. 17-7). Petitioner 26 sought disapproval of “the findings and sentence and [an] order [for] a new hearing based 27 on not having effective counsel.” Id., Exh. “29” at 000319. Alternatively, Petitioner 28 requested a “post-trial Article 39(a) session pursuant to R.C.M. 1102(d) to allow SGT 1 Threats to argue ineffective assistance of counsel.” Id., Exh. “29” at 000319. Petitioner’s 2 ineffective assistance claim included 1) “numerous alleged failures to uncover and research 3 leads”; 2) an alleged “failure to inform SGT Threats of his rights to counsel properly”; and 4 3) an alleged “failure to uncover that a CID eyewitness stated that SGT Threats was not 5 the attacker.” Id., Exh. “29” at 000319. 6 Regarding defense counsel CPT Vargas’s alleged failure to investigate, Petitioner 7 first asserted that CPT Vargas did not believe that CID Agent SA Bullock threatened 8 Petitioner with releasing his family’s information to the family of the victim. Id., Exh. 9 “29” at 000320. Petitioner further asserted that CPT Vargas did not ask SA Bullock about 10 the alleged threats on the record. Answer (Doc. 14), CPT Moy Memo. to LT COL 11 Bovarnick 9/11/2011 (Exh. “29”) (Doc. 17-7) at 000320. Petitioner argued that the alleged 12 threats would have explained why he made statements to CID, and CPT Vargas’s 13 assistance was ineffective. Id., Exh. “29” at 000320. Second, Petitioner further asserted 14 that the victim “made some inconsistent statements that were not exploited by CPT 15 Vargas.” Id., Exh. “29” at 000321. Petitioner alleges that this failure was ineffective 16 assistance of counsel. Id., Exh. “29” at 000321. Third, Petitioner argued that “[t]he DNA 17 evidence is [sic] this case is mostly weak, except for PFC P[’s] DNA on a glove allegedly 18 found in SGT Threats storage area.” Id., Exh. “29” at 000321. Petitioner further argued 19 that because there were two gloves found in his storage area, both left handed; one size 11 20 and one size 10; one with SGT Threats’s name written inside, one without; and no 21 identification by the laboratory regarding which glove had the victim’s DNA, CPT Vargas 22 was ineffective for not investigating which glove contained the victim’s DNA further. 23 Answer (Doc. 14), CPT Moy Memo. to LT COL Bovarnick 9/11/2011 (Exh. “29”) (Doc. 24 17-7) at 000321. Petitioner reasons that if the DNA was on the unmarked glove, it would 25 exonerate him. Id., Exh. “29” at 000321. Fourth, Petitioner asserted that “CPT Vargas 26 failed to get into evidence that SGT Threats received an Army Emergency Relief (“AER”) 27 loan of $1000.00 shortly before the incident occurred. Id., Exh. “29” at 000321. 28 Petitioner also alleged that “CPT Vargas stated that he believed SGT Threats was 1 guilty[,] . . . [and] continued that if SGT Threats didn’t like it he could fire CPT Vargas but 2 that it would be a waste of money because of the impending trial date and that no attorney 3 could get prepared in time.” Id., Exh. “29” at 000321. Petitioner further alleged that CPT 4 Vargas informed him that he would have to pay for a civilian attorney, and that Petitioner 5 would be unable to get another Trial Defense Service (TDS) counsel at no expense. Id., 6 Exh. “29” at 000321. Petitioner asserted that CPT Vargas’s advice fell below the 7 professional standard of conduct. Answer (Doc. 14), CPT. Moy Memo. to LT. COL. 8 Bovarnick 9/11/2011 (Exh. “29”) (Doc. 17-7) at 000321. 9 Petitioner further asserted that he “was brought in to CID on 23 September primarily 10 because he met a description from SPC Kevin Johnson and was not at the PT formation on 11 the day in question, 22 September 2010.” Id., Exh. “29” at 000321. Petitioner alleged that 12 SPC Johnson “was requested as a government witness and flew back to Fort Campbell, 13 TN[,] [where] [u]pon arriving at Fort Bragg he saw SGT Threats and greeted him in the 14 TDS office.” Id., Exh. “29” at 000322. Petitioner further alleged that “CPT Vargas never 15 spoke to SPC Johnson[,] [and] [h]ad he done so, CPT Vargas would have realized that SPC 16 Johnson would have affirmatively stated that SGT Threats was not the individual he saw 17 around the barracks.” Id., Exh. “29” at 000322. 18 2. Letter from Petitioner 19 Attached to CPT Moy’s memorandum was a letter written by Petitioner to MAJ 20 GEN McConville. Answer (Doc. 14), CPT Moy Memo. to LT COL Bovarnick 9/11/2011 21 (Exh. “29”) (Doc. 17-7), Threats Ltr. to MAJ GEN McConville (App’x “A”) (Doc. 17-8) 22 at 000330–000340. Petitioner reiterated many of the claims put forth by CPT Moy on his 23 behalf. See id., Exh. “29,” App’x “A.” Petitioner alleged that CPT Vargas believed that 24 Petitioner was guilty and failed to follow-up on issues Petitioner sought him to investigate. 25 Id., Exh. “29,” App’x “A” at 000330–000331. Petitioner further alleged that CPT Vargas 26 informed Petitioner that he “could fire him & hire another attorney, but I’d be wasting 27 money because of how close the trial was it wouldn’t be enough time for a new attorney to 28 get up to date.” Id., Exh. “29,” App’x “A” at 000331. Petitioner stated that he had his wife 1 call the Judge Advocate General’s (JAG) office, but she was unable to obtain an 2 appointment for him. Id., Exh. “29,” App’x “A” at 000331. Petitioner alleged that SA 3 Bullock threatened to give information regarding Petitioner’s family to the victim’s family. 4 Answer (Doc. 14), CPT Moy Memo. to LT COL Bovarnick 9/11/2011 (Exh. “29”) (Doc. 5 17-7), Threats Ltr. to MAJ GEN McConville (App’x “A”) (Doc. 17-8) at 000331. 6 Petitioner further alleged that CPT Vargas did not believe that this had occurred. Id., Exh. 7 “29,” App’x “A” at 000331. Petitioner also alleged that SPC Johnson made a statement 8 regarding a “black male that fit PFC P[’s] vague discription [sic] of her attacker” that SPC 9 Johnson saw “hanging around the unit[.]” Id., Exh. “29,” App’x “A” at 000332. Petitioner 10 argued that he “met the discription [sic] given by Spc. Johnson exactly.” Id., Exh. “29,” 11 App’x “A” at 000332. Petitioner then alleged that SPC Johnson “was flown out 15 Mar 12 2011 to back up his statement, he told the prosecuter [sic], only after finding out I was 13 being accused, that I wasn’t the person he saw.” Id., Exh. “29,” App’x “A” at 000332. 14 Petitioner asserted that SSG Brown was also a possible suspect, but Petitioner was targeted 15 because of his clothing. Answer (Doc. 14), CPT Moy Memo. to LT COL Bovarnick 16 9/11/2011 (Exh. “29”) (Doc. 17-7), Threats Ltr. to MAJ GEN McConville (App’x “A”) 17 (Doc. 17-8) at 000332. Petitioner also alleged that the victim’s statement was “full of 18 inconsistencies” and that she “brought up a few things that was [sic] not true[.]” Id., Exh. 19 “29,” App’x “A” at 000332–000333. Petitioner alleged that he told CPT Vargas that his 20 “interrigation [sic] wasn’t a question asking process, it was a finger pointing, you did this 21 process.” Id., Exh. “29,” App’x “A” at 000333. Petitioner also urged that the victim 22 “changed parts of her story to better suit me make the already horrible charges I was facing 23 worse.” Id., Exh. “29,” App’x “A” at 000334. Petitioner challenged the DNA evidence 24 arguing that his DNA was not found in her vaginal swabs and that the “dna found in her 25 panties, the chance of occurrence is 1 of 645 black males.” Id., Exh. “29,” App’x “A” at 26 000335. Petitioner argued that the DNA evidence found on the gloves was inconsistent 27 with the victim’s statement. Answer (Doc. 14), CPT Moy Memo. to LT COL Bovarnick 28 9/11/2011 (Exh. “29”) (Doc. 17-7), Threats Ltr. to MAJ GEN McConville (App’x “A”) 1 (Doc. 17-8) at 000336. Petitioner explained that the money he had in his wallet was due 2 to receipt of a $1000.00 AER loan. Id., Exh. “29,” App’x “A” at 000337. Petitioner noted 3 that he had told his defense lawyer, CPT Vargas, this information, but CPT Vargas refused 4 to question a witness during trial about Petitioner’s receipt of the loan. Id., Exh. “29,” 5 App’x “A” at 000337. Petitioner asserted that “[d]uring [his] confinement [he] asked Cpt 6 Vargas to look into several things that would prove [he was] innocent.” Id., Exh. “29,” 7 App’x “A” at 000337. Additionally, Petitioner took issue with SA Mannor having drafted 8 the report regarding his interrogation alleging that she had not been present. Id., Exh. “29,” 9 App’x “A” at 000337–000338. Petitioner admitted that the report was not used at trial. 10 Answer (Doc. 14), CPT Moy Memo. to LT COL Bovarnick 9/11/2011 (Exh. “29”) (Doc. 11 17-7), Threats Ltr. to MAJ GEN McConville (App’x “A”) (Doc. 17-8) at 000337–000338. 12 Petitioner also alleged that SA Joubert was not truthful regarding questioning Petitioner 13 about his dominant hand. Id., Exh. “29,” App’x “A” at 000338. Based on these allegations, 14 Petitioner sought a retrial. Id., Exh. “29,” App’x “A” at 000338. 15 3. Post-Trial Supplement 16 On October 5, 2011, a post-trial hearing under Article 39(a) was recommended, so 17 the military judge could “determine the legal sufficiency of the adjudged findings and 18 sentence.” Answer (Doc. 14), LTC Edwards Memo. to CMDR, 101st Airborne Division 19 (Air Assault) and Ft. Campbell 10/5/2011 (Exh. “28”) at 000317. On December 12, 2011, 20 defense counsel submitted new information alleging that Petitioner’s prior defense counsel, 21 CPT Vargas did not investigate SSG Brown as the perpetrator and therefore provided 22 ineffective assistance. Answer (Doc. 14), CPT Moy Memo. to LTC Bovarnick 12/12/2011 23 (Exh. “27”). 24 4. Post-Trial Findings of Fact & Conclusions of Law 25 On December 21, 2011, Colonel Grammel issued his Findings of Fact & 26 Conclusions of Law from Post-Trial Hearing. Answer (Doc. 14), Findings of Fact & 27 Conclusions of Law from Post-Trial Hr’g (Exh. “26”) (Doc. 17-6). The court found that 28 “CID agents asked PFC P if she knew SSG Brown well enough to recognize his voice[,] 1 [and] [s]he stated that she did and that her attacker was definitely not SSG Brown.” Id., 2 Exh. “26” at 000292. The court noted that “[t]he accused became a suspect, after he made 3 inconsistent statements about when he came on post the day prior; stated that he was 4 wearing stripped ACU’s, which was similar to the description by PFC P and make [sic] 5 other suspicious statements[.]” Id., Exh. “26” at 000292. The court further found that 6 “Special Agent Bullock never threatened the accused[,] . . . [and] [a]t the post-trial hearing, 7 the testimony of SA Bullock was more credible than the testimony of the accused.” Id., 8 Exh. “26” at 000292. The court also found that CPT Vargas fully advised Petitioner of his 9 rights to counsel and corresponded regularly with him. Id., Exh. “26” at 000293. The court 10 noted that “CID agents confirmed with Army Community Services that the accused had 11 received an Army Emergency Relief loan in the amount of $1,000.00 in September 2010.” 12 Answer (Doc. 14), Findings of Fact & Conclusions of Law from Post-Trial Hr’g (Exh. 13 “26”) (Doc. 17-6) at 000293. The court found that CPT Vargas listened to information 14 provided by Petitioner, “used some of the information, and followed certain leads[,] [but] 15 [a]fter consideration, the defense counsel decided to not pursue some of the leads, because 16 they were not helpful to the case.” Id., Exh. “26” at 000294. CPT Vargas considered and 17 rejected follow-up regarding the victim’s statement that Petitioner was her squad leader, 18 although he was not; the difference between the ammunition described by the victim and 19 that found in Petitioner’s quarters; SPC Johnson’s observations; SSG Brown as a person 20 of interest; and the AER loan to Petitioner. Id., Exh. “26” at 000294. The court found that 21 “[t]he accused never told CPT Vargas about which hand the gloves were for or whether 22 CID asked the accused about his dominant hand.” Id., Exh. “26” at 000294. 23 The court noted that at Petitioner’s arraignment, “the military judge advised the 24 accused of his rights to counsel[,] [t]he accused stated that he understood and had no 25 questions[,] . . . [and] he wanted to be represented by CPT Vargas alone.” Id., Exh. “26” 26 at 000294. The court further noted that CPT Vargas requested appointment of a DNA 27 expert and a forensic psychologist, and both requests were granted. Answer (Doc. 14), 28 Findings of Fact & Conclusions of Law from Post-Trial Hr’g (Exh. “26”) (Doc. 17-6) at 1 000294–000295. The court also acknowledged that CPT Vargas filed a motion to suppress 2 Petitioner’s statements based on the length and manner of the interrogation. Id., Exh. “26” 3 at 000294. The court held “that the government satisfied its burden of prove [sic] by a 4 preponderance of the evidence that [Petitioner’s] statements were voluntary, and the 5 motion [to suppress] was denied.” Id., Exh. “26” at 000295. 6 The court recognized “CPT Vargas’s trial strategy was to focus on what he assessed 7 to be the two main parts of the prosecution’s case against the accused – the statements to 8 CID and the DNA evidence.” Id., Exh. “26” at 000295. CPT Vargas requested and was 9 granted additional funding for the defense’s DNA expert. Id., Exh. “26” at 000296. CPT 10 Vargas also requested assistance from his senior defense counsel, MAJ Kranz, due to the 11 complexity of the case. Answer (Doc. 14), Findings of Fact & Conclusions of Law from 12 Post-Trial Hr’g (Exh. “26”) (Doc. 17-6) at 000296. The court noted that this request was 13 granted and MAJ Kranz “assessed the case and discussed trial strategy with CPT Vargas.” 14 Id., Exh. “26” at 000296. “Major Kranz detailed himself as the assistant defense counsel 15 so that he would be available to assist CPT Vargas.” Id., Exh. “26” at 000296. The court 16 observed that “[t]he issue of a new defense counsel from TDS was never brought up before 17 post-trial[;] [t]he accused never said that he wanted one or said that he was displeased with 18 CPT Vargas[;] [and] [t]he accused never said that he no longer wanted CPT Vargas to be 19 his attorney . . . before or during the trial.” Id., Exh. “26” at 000296. The court further 20 observed that at an Article 39(a) session prior to trial, Petitioner confirmed to the military 21 judge that he wished to be represented by CPT Vargas and MAJ Kranz. Id., Exh. “26” at 22 000296. The court found that during trial, defense counsel cross-examined the victim 23 regarding her inability to identify her assailant despite speaking with Petitioner daily prior 24 to the attack; whether she told agents about starting to see spots; that she brought up her 25 fiancé first; and that she did not have any bruising or other injuries to her neck. Answer 26 (Doc. 14), Findings of Fact & Conclusions of Law from Post-Trial Hr’g (Exh. “26”) (Doc. 27 17-6) at 000297. The court further found that defense counsel relitigated the voluntariness 28 of Petitioner’s statements when cross-examining SA Manor, SA Bullock, SA Yeatts, SA 1 Joubert, and SA Wallace. Id., Exh. “26” at 000297. The court also found that “[w]hen 2 cross-examining Ms. Lyons, one of the defense counsel’s topics was possible alternate 3 causes of the petechiae found on PFC P[.]” Id., Exh. “26” at 000297. The court noted that 4 CPT Vargas’s cross-examination of the DNA examiner, Ms. Courtney Tourre, “included 5 the limited significance of the statistical findings for the DNA on the panties and the DNA 6 on the car seat fabric swatch, as well as the absence of evidence of DNA in other locations 7 where it might have been expected.” Id., Exh. “26” at 000297. 8 The court “applied the three-pronged test from United States v. Polk, 32 M.J. 150, 9 153 (C.M.A. 1991).” Answer (Doc. 14), Findings of Fact & Conclusions of Law from 10 Post-Trial Hr’g (Exh. “26”) (Doc. 17-6) at 000298. The court delineated the Polk test 11 noting that “[t]he first prong asks whether the allegations are true, and if they are, whether 12 there is a reasonable explanation for counsel’s action in the defense of the case.” Id., Exh. 13 “26” at 000298. The court found “[t]he first allegation . . . that CPT Vargas misadvised 14 the accused about the accused’s rights to counsel . . . [wa]s not true.” Id., Exh. “26” at 15 000298. The court found “[t]he second allegation . . . that CPT Vargas failed to explore 16 on the record an additional possibility that the accused’s statements were involuntary 17 because SA Bullock threatened to release personal information about SGT Threats’ family 18 to the family of PFC P . . . [wa]s true.” Id., Exh. “26” at 000298. The court reviewed CPT 19 Vargas’s explanation for not exploring that possibility on the record and found it 20 reasonable. Id., Exh. “26” at 000298. The court found “[t]he third allegation was that CPT 21 Vargas failed to exploit certain parts of PFC P[’s] testimony, specifically her description 22 of the ammunition she saw[] versus the ammunition found in the accused quarters and her 23 testimony about the attacker’s belief that she had a son.” Id., at Exh. “26” at 000299. The 24 court reviewed CPT Vargas’s decision-making regarding the ammunition, as well as the 25 victim’s testimony regarding the attacker’s belief that she had a son, as well as her 26 testimony regarding her duty relationship with Petitioner. Answer (Doc. 14), Findings of 27 Fact & Conclusions of Law from Post-Trial Hr’g (Exh. “26”) (Doc. 17-6) at 000299. The 28 court found CPT Vargas’s explanations reasonable and his cross-examinations focused and 1 effective. Id., Exh. “26” at 000299. The court described Petitioner’s fourth allegation 2 regarding CPT Vargas’s alleged failure to “draw attention to the fact that one of the two 3 left-handed gloves was one size 11 with the accused’s name written on it and one was size 4 10 without writing on it.” Id., Exh. “26” at 000299. The court found this allegation to be 5 true, but that Petitioner’s failure to mention this to CPT Vargas before trial, as well as the 6 “little difference between size 10 and size 11 gloves, [that] people do not write on all their 7 gloves, and [that] both gloves were found in the accused’s storage shed[,]” were reasonable 8 explanations as to why defense counsel did not inquire further. Id., Exh. “26” at 000299. 9 The court further observed that “there facts [we]re insignificant and would have no 10 impact[.]” Id., Exh. “26” at 000299. The court described the fifth allegation as CPT Vargas 11 “not successfully introduc[ing] evidence showing that the accused received an Army 12 Emergency Relief loan.” Answer (Doc. 14), Findings of Fact & Conclusions of Law from 13 Post-Trial Hr’g (Exh. “26”) (Doc. 17-6) at 000299. The court determined this allegation 14 to be true, and that CPT Vargas provided “no reasonable explanation for . . . not checking 15 into the details of such a loan.” Id., Exh. “26” at 000299. The court found “[t]he sixth 16 allegation . . . that CPT Vargas did not speak with or present the testimony of SPC Johnson 17 . . . [wa]s true.” Id., Exh. “26” at 000300. The court noted that “Specialist Johnson 18 observed an unknown black male walking back and forth during physical training hours 19 for the two weeks prior to 22 September 2010[;] [h]owever, SPC Johnson did not observe 20 the person with PFC P on 22 September 2010.” Id., Exh. “26” at 000300. The court further 21 noted that “Specialist Johnson’s description of the person’s clothing differed from the 22 description by PFC P[,]” and SPC Johnson’s description did not result in Petitioner being 23 asked to go to CID. Id., Exh. “26” at 000300. The court accepted that “Captain Vargas 24 read SPC Johnson’s statement and decided it was not relevant.” Answer (Doc. 14), 25 Findings of Fact & Conclusions of Law from Post-Trial Hr’g (Exh. “26”) (Doc. 17-6) at 26 000300. The court further noted that “[t]here was also an allegation that CPT Vargas did 27 not pursue whether or not the accused was PFC P[’s] actual squad leader[,] . . . which [wa]s 28 true.” Id., Exh. “26” at 000300. The court found CPT Vargas’s assertion that this fact was 1 not relevant incorrect, but agreed with his statement that it would not exonerate Petitioner. 2 Id., Exh. “26” at 000300. The court observed that if the victim’s assailant had been her 3 squad leader, she would have been expected to recognize him. Id., Exh. “26” at 000300. 4 The court further observed that “[t]his weakness in the government’s case was obvious to 5 the finder of fact, and the defense counsel exploited this fact during cross-examination of 6 PFC P[.]” Id., Exh. “26” at 000300. The court found CPT Vargas’s explanation 7 reasonable. Answer (Doc. 14), Findings of Fact & Conclusions of Law from Post-Trial 8 Hr’g (Exh. “26”) (Doc. 17-6) at 000300. “Lastly, there was an allegation that CPT Vargas 9 did not interview SSG Brown[,] . . . [which the court found] [wa]s true.” Id., Exh. “26” at 10 000300. The court found that although “Staff Sergeant Brown was initially a person of 11 interest[,] . . . investigated by CID[,] Private First Class P kn[ew] SSG Brown, and . . . said 12 that [her attacker] was definitely not SSG Brown.” Id., Exh. “26” at 000300. The court 13 further found that “[t]here was nothing that would indicate to a defense counsel that an 14 interview with SSG Brown would be anything but futile[,]” and therefore CPT Vargas’s 15 explanation was reasonable. Id., Exh. “26” at 000300. 16 The court described the second prong of Polk to require “if the allegations are true, 17 [the court must assess] whether the accused has proven that the defense counsel’s ‘level of 18 advocacy fell measurably below’ an objective standard of reasonableness.” Id., Exh. “26” 19 at 000300. “The only allegation that was true, without a reasonable explanation, and 20 survives to the second prong[,] was the failure to further investigate the AER loan.” 21 Answer (Doc. 14), Findings of Fact & Conclusions of Law from Post-Trial Hr’g (Exh. 22 “26”) (Doc. 17-6) at 000300. The court considered any deficiencies “in context of the 23 defense counsel’s performance throughout the whole case.” Id., Exh. “26” at 000301. 24 After review of defense counsel’s performance, the court found that “[t]he errors were no[t] 25 so serious as to deprive the accused of a fair trial whose result is reliable.” Id., Exh. “26” 26 at 000301. The court further found that “[c]onsidering the advocacy of the defense counsel 27 throughout the entire case, it did not fall significantly below what we ordinarily expect 28 from fallible lawyers.” Id., Exh. “26” at 000301. The court observed that “[e]ven if the 1 accused had proven the second prong, the accused failed to prove the third prong[,] . . . 2 [and] [t]here were no errors that were so serious as to deprive the accused of a fair trial.” 3 Id., Exh. “26” at 000301. 4 The court also considered whether “the Specification of Charge VI [f]ail[ed] to 5 [s]tate an [o]ffense.” Answer (Doc. 14), Findings of Fact & Conclusions of Law from 6 Post-Trial Hr’g (Exh. “26”) (Doc. 17-6) at 000301. The court observed that “[t]he accused 7 never challenged the sufficiency of the Specification of Charge VI during the post-trial 8 phase, until the court raised the issue and requested briefs on it.” Id., Exh. “26” at 000302. 9 The court concluded that “[t]he Specification of Charge VI, when liberally construed, states 10 the offense of kidnapping.” Id., Exh. “26” at 000303. The court further noted that the 11 “factual allegations along with the record of trial sufficiently protect the accused against 12 double jeopardy.” Id., Exh. “26” at 000303. 13 On January 3, 2012, Petitioner petitioned for clemency seeking a reduction in his 14 time of confinement. See Answer (Doc. 14), LT Moy Memo. to LTC Bovarnick 1/3/2012 15 (Exh. “25”). On January 4, 2012, LTC Bovarnick adopted the June 8, 2011 advice and 16 recommendations by his predecessor, found Petitioner’s ineffective assistance of counsel 17 allegations to be without merit, and recommended approval of “the findings and sentence 18 and, except for that part of the sentence extending to a dishonorable discharge, order it 19 executed.” Answer (Doc. 14), LTC Bovarnick Memo. to CMDR, 101st Airborne Division 20 (Air Assault) and Fort Campbell 1/4/2012 (Exh. “24”). On January 4, 2012, Major General 21 McConville approved and executed Petitioner’s sentence, “except for that part of the 22 sentence extending to a dishonorable discharge[.]” Answer (Doc. 14), Action 1/4/2012 23 (Exh. “23”); see also Answer (Doc. 14), Gen. Court-Martial Order No. 1 1/4/2012 (Exh. 24 “22”) at 000181. 25 C. Appellate Review 26 1. United States Army Court of Criminal Appeals 27 a. Initial appeal 28 On February 8, 2012, the record of trial was referred to the United States Army 1 Court of Criminal Appeals (“ACCA”) for appellate review and counsel appointed. Answer 2 (Doc. 14), Referral and Designation of Counsel 2/8/2012 (Exh. “21”). On January 3, 2013, 3 after multiple extensions of time, Petitioner filed his appellate brief. See Answer (Doc. 4 14), Br. on Behalf of Appellant (Exh. “16”) (Doc. 17); see also Answer (Doc. 14) Mot. for 5 Ext. of Time (Exhs. “17,” “18,” & “19”) (Doc. 17-1). Counsel asserted that “[t]he 6 government did not provide appellant with the required notice of the terminal element of 7 Article 134, UCMJ, which was the basis for the Charge VI and its Specification.” Answer 8 (Doc. 14), Exh. “16” at 000136. As such, counsel sought Petitioner’s kidnapping 9 conviction to be set aside. Id., Exh. “16” at 000139. Counsel also argued that in light of 10 this alleged error, a sentence rehearing was required. Id., Exh. “16” at 000139–000140. 11 Petitioner’s counsel also directed the appellate court to issues raised in Petitioner’s 12 Grostefon3 brief attached as an appendix. Answer (Doc. 14), Br. on Behalf of Appellant 13 (Exh. “16”), App’x “A.” Petitioner asserted four (4) grounds for relief, including 1) his 14 sentence was “extreme and overly harsh”; 2) ineffective assistance of trial counsel; 3) the 15 involuntary nature of his statements; and 4) insufficiency of the evidence. See Id., Exh. 16 “16,” App’x “A.” Petitioner’s ineffective assistance of counsel claim encompassed 17 counsel’s alleged failure to a) properly advise Petitioner regarding his right to counsel; b) 18 “investigate or raise the issue that appellant’s family was threatened by CID investigators”; 19 c) “investigate or present any evidence that appellant had received an AER loan just prior 20 to the alleged offenses”; d) “investigate or present evidence about SSG Yukon Brown at 21 trial”; e) “investigate or present evidence regarding SPC Johnson seeing an individual 22 lurking around the unit location prior to the alleged offenses”; and f) “file a motion to 23 suppress the search and seizure of appellant as a suspect in this case.” Id., Exh. “16,” 24 3 United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). The Court of Military Appeals 25 held that it “will require that when the accused specifies error in his request for appellate 26 representation or in some other form, the appellate defense counsel will, at a minimum, invite the attention of the Court of Military Review to those issues and, in its decision, the Court of Military 27 Review will, at a minimum, acknowledge that it has considered those issues enumerated by the accused and its disposition of them.” Grostefon, 12 M.J. at 436. 28 1 App’x “A” at 000143–000146. Regarding the sufficiency of the evidence, Petitioner 2 highlighted that a) “[t]here was another soldier in the unit who fit the profile and unique 3 characteristics detailed by PFC KP”; b) “[o]nly one glove seized from appellant’s house 4 tested positive for PFC KP’s DNA[,] . . . which was inconsistent with PFC KP’s 5 testimony”; c) “Specialist Johnson saw an individual fitting the [sic] PFC KP’s description 6 lurking around the unit area during PT hours during the weeks prior to the alleged 7 offenses”; and d) “[t]he profiles and ratios for the DNA attributed to appellant and found 8 in PFC KP’s car and underwear [we]re not overwhelming.” Id., Exh. “16,” App’x “A” at 9 000147–000148. Based on these alleged failures and deficiencies, Petitioner sought the 10 court to set aside his findings of guilt and sentence. Id., Exh. “16,” App’x “A” at 000146, 11 000148. 12 On July 31, 2013, the Government filed its response. Answer (Doc. 14), Br. on 13 Behalf of Appellee (Exh. “13”) (Doc. 17). On August 1, 2013, Petitioner formally moved 14 for the admission of additional Grostefon material. Answer (Doc. 14), Mot. to Attach 15 Additional Grostefon Matters (Exh. “12”) (Doc. 16). Petitioner asserted that 1) he did not 16 receive effective assistance of counsel because counsel allegedly “failed to move for a 17 change of venue”; and 2) the appellate court should consider additional material, including, 18 “[p]ersonal matters typed by appellant[,]” excerpts from Petitioner’s letter to his individual 19 military counsel, Second Platoon, Headquarters Service Company’s (“HSC”) alert roster, 20 and Petitioner’s Sprint telephone call log. Answer (Doc. 14), Exh. “12,” App’x “C” at 21 000079. Petitioner further urged that his phone records “establish that appellant had 22 contact with a member of his unit and learned of the attacks on PFC KP from his 23 leadership[,] . . . [which] explains why appellant mentioned PFC KP in his initial interview 24 with CID before the agent mentioned PFC KP.” Id., Exh. “12,” App’x “C” at 000080. On 25 August 6, 2013, Petitioner replied and asserted that the Government’s arguments were 26 speculative, further urging that the Government “failed to allege a terminal element in the 27 Specification of Charge VI and there is no mention in the record prior to closing argument 28 of the terminal elements.” Answer (Doc. 14), Reply Br. on Behalf of Appellant (Exh. “11”) 1 (Doc. 16) at 000062, 000064. 2 On September 4, 2013, the United States Army Court of Criminal Appeals issued a 3 Summary Disposition of Petitioner’s appeal. See Answer (Doc. 14), Summ. Disposition 4 (Exh. “10”) (Doc. 16). The appellate court held that “the Specification of Charge VI d[id] 5 not allege the Article 134, UCMJ, terminal element of conduct that is prejudicial to good 6 order and discipline (Clause 1) or of a nature to bring discredit upon the armed forces 7 (Clause 2).” Id., Exh. “10” at 000058. As such, the ACCA found that appellant was not 8 given “sufficient notice of the missing terminal element required to prove the kidnapping 9 offense” and set aside the findings of guilty to Charge VI and its Specification. Id., Exh. 10 “10” at 000058. The appellate court next considered whether reassessment of Petitioner’s 11 sentence was appropriate. Id., Exh. “10” at 000059. The court “initially note[d] the 12 evidence underlying the kidnapping charge was proper aggravation evidence which would 13 have been available to the military judge regardless of it appearing on the charge sheet.” 14 Id., Exh. “10” at 000059. Upon further consideration, the appellate court found “beyond a 15 reasonable doubt that appellant would have received a sentence on the remaining 16 convictions of no less than that approved by the convening authority.” Id., Exh. “10” at 17 000059. Accordingly, the ACCA set aside the findings of guilty to Charge VI and its 18 Specification, affirmed the remaining findings of guilty, and affirmed Petitioner’s 19 sentence. Answer (Doc. 14), Summ. Disposition (Exh. “10”) (Doc. 16) at 000059. The 20 appellate court also held that the matters personally raised by Petitioner pursuant to 21 Grostefon were without merit. Id., Exh. “10” at 000057. 22 b. Reconsideration 23 On October 3, 2013, Petitioner filed a motion for reconsideration and to file 24 additional Grostefon matters. See Answer (Doc. 14), Mot. Reconsideration and Mot. for 25 Leave to File Add’l Grostefon Matters Out of Time (Exh. “9”) (Doc. 15). Petitioner sought 26 reconsideration of the ACCA’s “decision affirming the remaining findings of guilty and 27 the sentence[.]” Id., Exh. “9” at 000043. Petitioner also sought to raise an additional 28 Grostefon matter alleging ineffective assistance of trial counsel resulted in Petitioner not 1 testifying during the suppression hearing. See id., Exh. “9,” App’x “A.” Petitioner urged 2 that if he had been allowed to testify, he could have testified that SA Bullock threatened 3 his family’s privacy, and that when Petitioner arrived at CID, he “was wearing the same 4 civilian clothing Spc. Johnson described in his statement” but not matching the victim’s 5 description. Id., Exh. “9,” App’x “A” at 000046–000047. Petitioner also urged that CPT 6 Vargas allegedly refused to question “the agents further as to why there [wa]s no 7 documentation of the interrogation.” Id., Exh. “9,” App’x “A” at 000047. Petitioner 8 asserted that his “testimony along with the agent’s inconsistencies, contradictions and lack 9 of documentation would have been vital to the courts [sic] decision.” Answer (Doc. 14), 10 Mot. Reconsideration and Mot. for Leave to File Add’l Grostefon Matters Out of Time 11 (Exh. “9”) (Doc. 15), App’x “A” at 000047. Petitioner further asserted that “[t]he DNA 12 used in [his] conviction [wa]s ineffective and no justice system would have acknowledged 13 the findings especially when the prosecution’s expert concluded the profiles found appear 14 so frequently, they could belong to any unknown, unrelated male.” Id., Exh. “9,” App’x 15 “A” at 000048. Petitioner also asserted that CPT Vargas should have argued a suggestive 16 line up and attacked the victim’s statements. Id., Exh. “9,” App’x “A” at 000048–000049. 17 Finally, Petitioner again pointed to SPC Johnson’s statement that Petitioner was not the 18 individual SPC Johnson described to CID. Id., Exh. “9,” App’x “A” at 000048–000049. 19 On October 17, 2013, the United States Army Court of Criminal Appeals issued its 20 Summary Disposition on Reconsideration. Answer (Doc. 14), ACCA Summ. Disp. on 21 Recon. 10/17/2013 (Exh. “8”) (Doc. 15). The ACCA held that “Appellant’s request for 22 reconsideration is granted and we have now considered appellant’s additional Grostefon 23 matters in our reconsideration of this case[,] . . . [and] find these matters to be without 24 merit. Id., Exh. “8” at 000041. As such, the court “again set aside Charge VI and its 25 Specification and AFFIRM[ED] the remaining findings of guilty . . . [and] the approved 26 sentence.” Id., Exh. “8” at 000041. 27 2. United States Court of Appeals for the Armed Forces 28 On December 16, 2013, counsel for Petitioner petitioned the United States Court of 1 Appeals for the Armed Forces (“CAAF”) for review. Answer (Doc. 14), Pet. for Grant of 2 Review (Exh. “7”) (Doc. 15). On January 3, 2014, counsel for Petitioner filed a 3 Supplement to Petition for Grant of Review. Answer (Doc. 14), Suppl. to Pet. for Grant of 4 Review (Exh. “3”) (Doc. 15). In the supplement, counsel stated they had “carefully 5 examined the record of trial in the case, do not admit that the findings and the sentence are 6 correct in law and fact, and submit the case upon its merits to [the CAAF].” Id., Exh. “3” 7 at 000006. Additionally, Petitioner submitted a Grostefon brief. See id., Exh. “3,” App’x 8 “A” at 000010–000024. Petitioner reiterated that he had been denied effective assistance 9 of trial counsel resulted in Petitioner not testifying during the suppression hearing. Id., 10 Exh. “3,” App’x “A” at 000010. Petitioner reviewed how his testimony may have changed 11 the outcome of his case including alleging that 1) “SA Bullock threatened to jeopardize 12 [his] family’s privacy”; 2) Petitioner was singled out because upon arriving at CID, he 13 “was wearing the same civilian clothing Spc. Johnson described in his statement prepared 14 an hour prior to [Petitioner’s] arrival at CID[,]” but which did not match the victim’s 15 description of the attacker’s clothing; and 3) trial counsel failed to inquire regarding the 16 lack of documentation from Petitioner’s interrogation. Id., Exh. “3,” App’x “A” at 17 000010–000011, 000014–000021. Petitioner also reiterated that “[t]he DNA used in [his] 18 conviction [wa]s ineffective and no justice system would have acknowledged the findings 19 especially when the prosecution’s expert concluded the profiles found appear so frequently, 20 they could belong to any unknown, unrelated male.” Answer (Doc. 14), Suppl. to Pet. for 21 Grant of Review (Exh. “3”) (Doc. 15), App’x “A” at 000011. Petitioner questioned the 22 victim’s statements and highlighted Spc. Johnson’s additional statement that “the unknown 23 African American male he described was not [Petitioner].” Id., Exh. “3,” App’x “A” at 24 000012–000013. Petitioner also alleged that his “Sixth Amendment Rights were 25 violated[,] [because] [d]uring the Post Trial hearing [he] was not afforded the right to 26 confront KP or Spc. Johnson.” Id., Exh. “3,” App’x “A” at 000013. Petitioner further 27 asserted that trial counsel was ineffective because counsel allegedly 1) failed to question 28 Spc. Johnson; 2) failed to investigate a person of interest; 3) failed to look into Petitioner’s 1 AER loan; 4) failed to question CID agents regarding threatening Petitioner, their lack of 2 documentation, and conflicting testimonies; 5) failed to attack the victim’s statements; 6) 3 told Petitioner that he thought Petitioner was guilty; 7) did not sufficiently follow-up 4 regarding the issues counsel raised. Id., Exh. “3,” App’x “A” at 000021–000023. 5 On January 10, 2014, the Government opposed the petition for review, relying on 6 its brief before the ACCA. Answer (Doc. 14), Mem. for Clerk of Ct., CAAF 1/10/2014 7 (Exh. “2”) (Doc. 15). On April 22, 2014, the CAAF issued its order denying the petition 8 for review. Answer (Doc. 14), CAAF Order Denying Pet. (Exh. “1”) (Doc. 15). 9 D. The Instant Habeas Proceeding 10 On November 6, 2017, Petitioner filed his Petition Under 28 U.S.C. § 2241 for a 11 Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1). Petitioner asserts one (1) 12 ground for relief. See Petition (Doc. 1). Petitioner alleges “actual and factual innocence 13 of a statutorily ineligible sentence.” Id. at 4. In support of this claim, Petitioner asserts 14 that “the DNA report states a match to 1 in 6 percentile, of a match to 1 in 14 percentile[,] 15 . . . mean[ing] the DNA match was so degraded it would match 1 in 6 people to 1 in 14 16 people tested, proving out Petitioner’s actual and factual innocence of the aforementioned 17 charges.” Id. Petitioner further asserts that “Specialist Kevin Johnson who was specifically 18 flown in to testify by the Prosecution, was told not to testify when it became known that 19 said Kevin Johnson stated it was not Petitioner that he saw prior to aforementioned crimes 20 were done to Private First Class KP.” Id. Petitioner also argues that his $1,000.00 Army 21 Emergency Relief (“AER”) loan was verified by CID on September 28, 2010, but at the 22 Article 32 Hearing on October 19, 2010, CID denied verifying the loan. Id. Finally, 23 Petitioner urges that the victim’s description of her attacker did not match him. Id. 24 On April 30, 2018, Respondent filed his Answer (Doc. 14) and on June 13, 2018, 25 Petitioner replied (Doc. 23). 26 . . . 27 . . . 28 . . . 1 II. STANDARD OF REVIEW 2 A. In General 3 “The writ of habeas corpus shall not extend to a prisoner unless . . . [h]e is in custody 4 in violation of the Constitution or laws or treaties of the United States[.]” 28 U.S.C. § 5 2241(c). “The military justice system is independent of the federal court system, with its 6 own source in the constitution, its own rules of procedure and its own doctrines of 7 substantive law.” Davis v. Marsh, 876 F.2d 1446, 1447 (9th Cir. 1989). “The statute which 8 vests federal courts with jurisdiction over applications for habeas corpus from persons 9 confined by the military courts is the same statute which vests them with jurisdiction over 10 the applications of persons confined by the civil courts[,] [b]ut in military habeas corpus 11 the inquiry, the scope of matters open for review, has always been more narrow than in 12 civil cases.” Burns v. Wilson, 346 U.S. 137, 139, 73 S. Ct. 1045, 1047, 97 L. Ed. 1508 13 (1953) (citations omitted). “Military law, like state law, is a jurisprudence which exists 14 separate and apart from the law which governs in our federal judicial establishment.” Id. 15 at 140, 73 S. Ct. at 1047. Thus, “[w]hen individuals punished by courts-martial seek 16 redress in the federal courts, the military justice system is thus often analogized to state 17 court systems.” Davis, 876 F.2d at 1447 (citing Noyd v. Bond, 395 U.S. 683, 693–94, 89 18 S. Ct. 1876, 1882–83, 23 L. Ed.2d 631 (1969); Gusik v. Schilder, 340 U.S. 128, 131–32, 19 71 S. Ct. 149, 151–52, 95 L. Ed. 146 (1950)). Moreover, because “the rights of men in the 20 armed forces must perforce be conditioned to meet certain overriding demands of 21 discipline and duty, and the civil courts are not the agencies which must determine the 22 precise balance to be struck in this adjustment[,] . . . Congress has taken great care both to 23 define the rights of those subject to military law, and provide a complete system of review 24 within the military system to secure those rights.” Burns, 346 U.S. at 140, 73 S. Ct. at 25 1048. 26 “In military habeas corpus cases, even more than in state habeas corpus cases, it 27 would be in disregard of the statutory scheme if the federal civil courts failed to take 28 account of the prior proceedings—of the fair determinations of the military tribunals after 1 all military remedies have been exhausted.” Burns, 346 U.S. at 142, 73 S. Ct. at 1048–49. 2 As such, “when a military decision has dealt fully and fairly with an allegation raised in 3 that application, it is not open to a federal civil court to grant the writ simply to re-evaluate 4 the evidence.” Burns, 346 U.S. at 142, 73 S. Ct. at 1049 (citing Whelchel v. McDonald, 5 340 U.S. 122, 71 S. Ct. 146, 95 L. Ed. 141 (1950)); see also Roberts v. Callahan, 321 F.3d 6 994, 995 (10th Cir. 2003); Lips v. Commandant, U.S. Disciplinary Barracks, 997 F.2d 808, 7 810, 811 (10th Cir. 1993). “It is the limited function of the civil courts to determine 8 whether the military have given fair consideration to each of [Petitioner’s] claims.” Burns, 9 346 U.S. at 144, 73 S. Ct. at 1050 (citations omitted). 10 B. Exhaustion and Waiver 11 “Military prisoners must exhaust military remedies before seeking relief in federal 12 court.” Davis v. Marsh, 876 F.2d 1446, 1449 (9th Cir. 1989) (citing Gusik v. Schilder, 340 13 U.S. 128, 131–32, 71 S. Ct. 149, 151–52, 95 L. Ed. 146 (1950)). “The doctrine of waiver 14 rests on many of the same considerations underlying the doctrines of exhaustion and 15 abstention, including the respect due a parallel and independent system of justice, the 16 desirability of resolving claims without the need for duplicative litigation, and the benefits 17 of having constitutional decisions made in the first instance by a judge with the opportunity 18 to view counsel, witnesses and jury.” Id. (citations omitted). “To obtain federal habeas 19 review of claims based on trial errors to which no objection was made at trial, or of claims 20 that were not raised on appeal, a state prisoner must show both cause excusing the 21 procedural default and actual prejudice resulting from the error.” Lips v. Commandant, 22 U.S. Disciplinary Barracks, 997 F.2d 808, 812 (10th Cir. 1993) (citing Murray v. Carrier, 23 477 U.S. 478, 491, 106 S. Ct. 2639, 2647, 91 L. Ed. 2d 397 (1986); Wainwright v. Sykes, 24 433 U.S. 72, 87, 97 S. Ct. 2497, 2506–07, 53 L. Ed. 2d 594 (1977)). The Ninth Circuit 25 Court of Appeals has recognized that “[t]he Sykes cause-and-prejudice exception 26 guarantees that the waiver rule ‘will not prevent a federal habeas court from adjudicating 27 for the first time the federal constitutional claim of a defendant who in the absence of such 28 an adjudications will be the victim of a miscarriage of justice.’” Davis, 876 F.2d at 1450 1 (citing Sykes, 433 U.S. at 91, 97 S. Ct. at 2508)). The Davis court thus held that “[w]hile 2 the analogy between the military justice system and a state court system is not perfect, the 3 two are sufficiently congruent to justify adopting an identical waiver rule.” Davis, 876 4 F.2d at 1450. 5 “[T]he existence of cause for a procedural default must ordinarily turn on whether 6 the prisoner can show that some objective factor external to the defense impeded counsel’s 7 efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 8 106 S. Ct. 2639, 2645, 91 L. Ed. 2d 397 (1986); see also Martinez-Villareal v. Lewis, 80 9 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally 10 defaulting his claims of ineffective assistance of counsel, [as such] there is no basis on 11 which to address the merits of his claims.”). In addition to cause, a habeas petitioner must 12 show actual prejudice, meaning that he “must show not merely that the errors . . . created 13 a possibility of prejudice, but that they worked to his actual and substantial disadvantage, 14 infecting his entire trial with error of constitutional dimensions.” Murray, 477 U.S. at 494, 15 106 S. Ct. at 2648 (emphasis in original) (internal quotations omitted). Without a showing 16 of both cause and prejudice, a habeas petitioner cannot overcome a waiver and gain review 17 by the federal courts. Id., 106 S. Ct. at 2649. 18 The Supreme Court has recognized, however, that “the cause and prejudice standard 19 will be met in those cases where review of a state prisoner’s claim is necessary to correct 20 ‘a fundamental miscarriage of justice.’” Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 21 2546, 115 L. Ed. 2d 640 (1991) (quoting Engle v. Isaac, 456 U.S. 107, 135, 102 S. Ct. 22 1558, 1572–73, 71 L. Ed. 2d 783 (1982)). “The fundamental miscarriage of justice 23 exception is available ‘only where the prisoner supplements his constitutional claim with a 24 colorable showing of factual innocence.’” Herrara v. Collins, 506 U.S. 390, 404, 113 S. 25 Ct. 853, 862, 122 L. Ed. 2d 203 (1993) (emphasis in original) (quoting Kuhlmann v. Wilson, 26 477 U.S. 436, 454, 106 S. Ct. 2616, 2627, 91 L. Ed. 2d 364 (1986)). Thus, “‘actual 27 innocence’ is not itself a constitutional claim, but instead a gateway through which a habeas 28 petitioner must pass to have his otherwise barred constitutional claim considered on the 1 merits.” Herrara, 506 U.S. at 404, 113 S. Ct. at 862; see also Schlup v. Delo, 513 U.S. 2 298, 315, 115 S. Ct. 851, 861, 130 L Ed. 2d 808 (1995). Petitioner must establish new 3 facts that “raise[] sufficient doubt about [his] guilt to undermine confidence in the result of 4 the trial without the assurance that that trial was untainted by constitutional error.” Schlup, 5 513 U.S. at 317, 115 S. Ct. at 862; see also Narula v. Yakubisin, 650 Fed. App’x 337 (9th 6 Cir. 2016). 7 8 III. ANALYSIS 9 Petitioner’s sole claim for relief is that he is “actually and factually innocent” of the 10 charges against him. Petition (Doc. 1) at 4. As discussed in Section II, supra, habeas relief 11 is available only to those alleging a constitutional violation. “‘[A]ctual innocence’ is not 12 itself a constitutional claim, but instead a gateway through which a habeas petitioner must 13 pass to have his otherwise barred constitutional claim considered on the merits.” Herrara, 14 506 U.S. at 404, 113 S. Ct. at 862; see also Schlup v. Delo, 513 U.S. 298, 315, 115 S. Ct. 15 851, 861, 130 L Ed. 2d 808 (1995). Petitioner has not explicitly alleged any constitutional 16 violation in his Petition (Doc. 1) and has failed to establish new facts that “raise[] sufficient 17 doubt about [his] guilt to undermine confidence in the result of the trial without the 18 assurance that that trial was untainted by constitutional error.” Schlup, 513 U.S. at 317, 19 115 S. Ct. at 862; see also Narula v. Yakubisin, 650 Fed. App’x 337 (9th Cir. 2016). As 20 such, Petitioner’s Petition (Doc. 1) should be dismissed. The Court will, however, give 21 Petitioner’s claims their broadest construction and address each supporting argument in 22 turn. 23 A. DNA Evidence 24 Petitioner asserts that “the DNA report states a match to 1 in 6 percentile, of a match 25 to 1 in 14 percentile[,] . . . mean[ing] the DNA match was so degraded it would match 1 in 26 6 people to 1 in 14 people tested, proving out Petitioner’s actual and factual innocence of 27 the aforementioned charges.” Petition (Doc. 1) at 4. Petition did not raise this specific 28 issue before the military courts, and as such it was waived. 1 Petitioner cannot show cause and prejudice to overcome this waiver. “[T]he 2 existence of cause for a procedural default must ordinarily turn on whether the prisoner can 3 show that some objective factor external to the defense impeded counsel’s efforts to 4 comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S. 5 Ct. 2639, 2645, 91 L. Ed. 2d 397 (1986). In addition to cause, a habeas petitioner must 6 show actual prejudice, meaning that he “must show not merely that the errors . . . created 7 a possibility of prejudice, but that they worked to his actual and substantial disadvantage, 8 infecting his entire trial with error of constitutional dimensions.” Murray, 477 U.S. at 494, 9 106 S. Ct. at 2648 (emphasis in original) (internal quotations omitted). Without a showing 10 of both cause and prejudice, a habeas petitioner cannot overcome the procedural default 11 and gain review by the federal courts. Id. at 494, 106 S. Ct. at 2649. Here, Petitioner has 12 not shown cause and cannot overcome the procedural default and gain review here. See 13 Murray, 477 U.S. at 494, 106 S. Ct. at 2649. As noted above, neither has Petitioner 14 demonstrated a fundamental miscarriage of justice. The record before this Court is devoid 15 of evidence supporting a showing of factual innocence. As such, the Court finds that 16 Petitioner’s claims are procedurally barred and he is not entitled to habeas review. 17 To the extent that Petitioner’s claim regarding DNA can be construed as 18 encompassed by one of the many arguments regarding the DNA evidence raised in one of 19 his many Grostefon briefs to the military courts, it was fully and fairly considered even 20 where summarily denied. Armann v. McKean, 549 F.3d 279, 292–93 (3d Cir. 2008); 21 Roberts v. Callahan, 321 F.3d 994, 997 (10th Cir. 2003); see also Tillery v. Shartle, 2017 22 WL 4337343 at *4 (D. Ariz. September 29, 2017). 23 B. SPC Kevin Johnson 24 Petitioner asserts that “Specialist Kevin Johnson who was specifically flown in to 25 testify by the Prosecution, was told not to testify when it became known that said Kevin 26 Johnson stated it was not Petitioner that he saw prior to aforementioned crimes were done 27 to Private First Class KP.” Petition (Doc. 1) at 4. Petitioner raised this issue to the trial 28 court during post-trial proceedings. Answer (Doc. 14), CPT Moy Memo. to LT COL 1 Bovarnick 9/11/2011 (Exh. 29) (Doc. 17-7), Threats Ltr. to MAJ Gen McConville (App’x 2 “A”) (Doc. 17-8) at 000332. The trial court addressed the issue in its Findings of Fact & 3 Conclusions of Law. Answer (Doc. 14), Findings of Fact & Conclusions of Law from 4 Post-Trial Hr’g (Exh. “26”) (Doc. 17-6) at 000300. Petitioner also raised this issue within 5 a claim for ineffective assistance of counsel and insufficiency of the evidence to the ACCA. 6 Answer (Doc. 14), Br. on Behalf of Appellant (Exh. “16”) (Doc. 17), App’x “A” at 7 000143–000148. The ACCA found Petitioner’s claims were without merit. Answer (Doc. 8 14), Summ. Disposition (Exh. “10”) (Doc. 16) at 000057. Petitioner again raised the issue 9 on reconsideration, and the ACCA summarily disposed of it. Answer (Doc. 14), Mot. 10 Reconsideration and Mot. for Leave to File Add’l Grostefon Matters Out of Time (Exh. 11 “9”) (Doc. 15), App’x “A” at 000048–000049; Answer (Doc. 14), ACCA Summ. Disp. on 12 Recon. 10/17/2013 (Exh. “8”) (Doc. 15). Finally, Petitioner raised the issue to the CAAF 13 in his Grostefon brief, which was summarily denied. Answer (Doc. 14), Suppl. to Pet. for 14 Grant of Review (Exh. “3”) (Doc. 15), App’x “A” at 000012–000013; Answer (Doc. 14), 15 CAAF Order Denying Pet. (Exh. “1”) (Doc. 15). As such, the issue was fully and fairly 16 presented to the military courts and Petitioner is not entitled to review here. 17 C. AER Loan 18 Petitioner argues that his $1,000.00 Army Emergency Relief (“AER”) loan was 19 verified by CID on September 28, 2010, but at the Article 32 Hearing on October 19, 2010, 20 CID denied verifying the loan. Petition (Doc. 1) at 4. Petitioner mentioned the AER loan 21 to the trial court during post-trial proceedings. Answer (Doc. 14), CPT Moy Memo. to LT 22 COL Bovarnick 9/11/2011 (Exh. 29) (Doc. 17-7), Threats Ltr. to MAJ Gen McConville 23 (App’x “A”) (Doc. 17-8) at 000337. The trial court addressed the issue in its Findings of 24 Fact & Conclusions of Law. Answer (Doc. 14), Findings of Fact & Conclusions of Law 25 from Post-Trial Hr’g (Exh. “26”) (Doc. 17-6) at 000293, 000031–000030. Petitioner also 26 raised this issue within a claim for ineffective assistance of counsel to the ACCA. Answer 27 (Doc. 14), Br. on Behalf of Appellant (Exh. “16”) (Doc. 17), App’x “A” at 000143– 28 000146. The ACCA found Petitioner’s claims were without merit. Answer (Doc. 14), 1 Summ. Disposition (Exh. “10”) (Doc. 16) at 000057. Finally, Petitioner raised the issue as 2 part of an ineffective assistance of counsel claim, in his Grostefon brief to the CAAF, which 3 was summarily denied. Answer (Doc. 14), Suppl. to Pet. for Grant of Review (Exh. “3”) 4 (Doc. 15), App’x “A” at 000021–000023; Answer (Doc. 14), CAAF Order Denying Pet. 5 (Exh. “1”) (Doc. 15). As such, the issue was fully and fairly presented to the military courts 6 and Petitioner is not entitled to review here. 7 D. Description of Attacker 8 Finally, Petitioner urges that the victim’s description of her attacker did not match 9 him. Petition (Doc. 1) at 4. Petitioner raised this issue within a claim for insufficiency of 10 the evidence to the ACCA. Answer (Doc. 14), Br. on Behalf of Appellant (Exh. “16”) 11 (Doc. 17), App’x “A” at 000147–000148. The ACCA found Petitioner’s claims were 12 without merit. Answer (Doc. 14), Summ. Disposition (Exh. “10”) (Doc. 16) at 000057. 13 Petitioner also raised the issue to the CAAF in his Grostefon brief as part of an ineffective 14 assistance of counsel claim, which was summarily denied. Answer (Doc. 14), Suppl. to 15 Pet. for Grant of Review (Exh. “3”) (Doc. 15), App’x “A” at 000021–000023; Answer 16 (Doc. 14), CAAF Order Denying Pet. (Exh. “1”) (Doc. 15). As such, the issue was fully 17 and fairly presented to the military courts and Petitioner is not entitled to review here. 18 19 IV. CONCLUSION 20 The Court finds that Petitioner’s claims were fully and fairly presented to the 21 military courts and Petitioner is not entitled to review. Burns v. Wilson, 346 U.S. 137, 142, 22 73 S. Ct. 1045, 1049, 97 L. Ed. 1508 (1953) (citing Whelchel v. McDonald, 340 U.S. 122, 23 71 S. Ct. 146, 95 L. Ed. 141 (1950)); see also Roberts v. Callahan, 321 F.3d 994, 995 (10th 24 Cir. 2003); Lips v. Commandant, U.S. Disciplinary Barracks, 997 F.2d 808, 810, 811 (10th 25 Cir. 1993). To the extent that Petitioner did not present his claim regarding DNA evidence 26 to the military courts, it has been waived. As such, the Court recommends the Petition 27 (Doc. 1) be denied. 28 V. RECOMMENDATION 2 For the reasons delineated above, the Magistrate Judge recommends that the District || Judge enter an order DENYING Petitioner Lonzell J. Threat’s Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1). 5 Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil Procedure, || any party may serve and file written objections within fourteen (14) days after being served || with a copy of this Report and Recommendation. Any response to a party’s objections 8 || shall be filed on or before March 24, 2021. No replies shall be filed unless leave is granted 9|| from the District Court. If objections are filed, the parties should use the following case number: CV-17-0542-TUC-JAS. 11 Failure to file timely objections to any factual or legal determination of the 12|| Magistrate Judge may result in waiver of the right of review. 13 Dated this 26th day of February, 2021. i Sry Peel 15 ‘United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28

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