United States v. Best

• Court: Navy-Marine Corps Court of Criminal Appeals
• Decided: June 13, 2019
• Docket: 201700363
• Status: Published

Opinion

This opinion is subject to administrative correction before final disposition.

Before HUTCHISON, TANG, and LAWRENCE, Appellate Military Judges.

_________________________

In Re Shanon L. BEST Master Chief Hospital Corpsman (E-9), U.S. Navy Petitioner

UNITED STATES Respondent

No. 201600134

Decided: 14 June 2019.

Review of Petition for Extraordinary Relief in the Nature of a Writ of Habeas Corpus. Military Judge: Captain Robert J. Crow, JAGC, USN. Sentence adjudged 4 November 2015 by a general court-martial con- vened at Naval Air Station Jacksonville, Florida, consisting of officer members. Sentence approved by convening authority: confinement for 30 years and a dishonorable discharge.

For Appellant: Lieutenant R. Andrew Austria, JAGC, USN.

For Appellee: Lieutenant Clayton S. McCarl, JAGC, USN

Senior Judge HUTCHISON delivered the opinion of the Court, in which Senior Judge TANG and Judge LAWRENCE joined.

PUBLISHED OPINION OF THE COURT _________________________ In Re Best, No. 201600134

HUTCHISON, Senior Judge: Petitioner, a member of the U.S. Navy confined at the United States Disci- plinary Barracks, Fort Leavenworth, Kansas, seeks extraordinary relief from this court in the nature of a writ of habeas corpus under the All Writs Act, 28 U.S.C. § 1651(a). Petitioner claims that his immediate release from confine- ment is required in light of the Court of Appeals for the Armed Forces’ (CAAF) decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018), because he was improperly convicted of charges for which the statute of limitations had expired. In the alternative, he seeks a rehearing so that he may properly raise the issue of the expired statute of limitations in light of Mangahas. We disagree. We find that while we have jurisdiction to consider this peti- tion, the CAAF’s ruling in Mangahas is one of procedure and therefore without retroactive effect to a case which had already completed direct appellate re- view. As such, petitioner is not entitled to relief.

I. BACKGROUND

Petitioner was charged with, inter alia, two specifications of raping his stepdaughter, LN, over the course of several years, beginning when she was a child. Charge I, Specification 1, alleged rape on divers occasions between 5 De- cember 1999 and 4 December 2003, when LN was between the ages of 12 and 16, and Charge I, Specification 2, alleged rape on divers occasions between 5 December 2003 and 30 September 2007, after LN had turned 16. The sworn charges were received by the officer exercising summary court-martial juris- diction on 3 April 2015. On 4 November 2015, a panel of officer members sitting as a general court- martial convicted petitioner, contrary to his pleas, of two specifications of rape and one specification of obstruction of justice, in violation of Articles 120 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 (2000) and 10 U.S.C. § 934 (2012), 1 respectively. The convening authority (CA) approved the adjudged sentence of 30 years’ confinement and a dishonorable discharge and, with the exception of the dishonorable discharge, ordered it executed. On direct appeal, after considering the assignments of error raised by peti- tioner and conducting our own review under Articles 59 and 66, UCMJ, we

1 Unless otherwise indicated, all citations to the UCMJ are to articles in effect in 2015. Several articles were substantially revised or, in the case of Article 71, entirely repealed by the Military Justice Act of 2016. These revised articles, which are printed in 2019 edition of the Manual for Courts-Martial, are generally applicable only to cases referred to court-martial on or after 1 January 2019.

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affirmed the findings and sentence. United States v. Best, 2017 CCA LEXIS 345 (N-M. Ct. Crim. App. 2017) (unpub. op.). The petitioner sought review of his case at the CAAF, which was denied. United States v. Best, 77 M.J. 20 (C.A.A.F. 2017). He then petitioned the Judge Advocate General of the Navy for a new trial pursuant to Article 73, UCMJ, which was also denied. Petitioner remains confined at the United States Disciplinary Barracks, Fort Leavenworth, Kansas, with a normal release date of 2 November 2045. The petitioner’s dishonorable discharge has not yet been executed.

II. DISCUSSION

A. Jurisdiction “Every federal appellate court has a special obligation to satisfy itself . . . of its own jurisdiction.” Loving v. United States, 62 M.J. 235, 239 (C.A.A.F. 2005) (alteration in original) (internal quotation marks omitted) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). In evaluating our jurisdiction, we begin with the Constitution, recognizing that this court was established by Congress acting under Article I. Loving, 62 M.J. at 239. “Article I courts are courts of special jurisdiction created by Congress that can- not be given the plenary powers of Article III courts. The authority of the Arti- cle I court is not only circumscribed by the Constitution, but limited as well by the powers given to it by Congress.” Id. (citation omitted). Our sister courts’ decisions in Chapman v. United States, 75 M.J. 598 (A.F. Ct. Crim. App. 2016), and Gray v. Belcher, 70 M.J. 646, 647 (Army Ct. Crim. App. 2012), analyzed Loving and the Supreme Court’s decision in United States v. Denedo, 556 U.S. 904 (2009), and concluded that they were without jurisdic- tion to entertain writs of habeas corpus after a court-martial was final under Article 76, UCMJ. We directed the parties to specifically brief whether we have jurisdiction to consider this petition. In order to determine whether we have proper jurisdiction over the present petition, we first analyze the sources of our authority, including the All Writs Act, 28 U.S.C. § 1651, and our statutory jurisdiction provided by Article 66, UCMJ. We then examine Article 76, UCMJ, to determine whether the peti- tioner’s court-martial is final.

1. The All Writs Act The All Writs Act authorizes “all courts established by Act of Congress [to] issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a); see also Denedo, 556 U.S. at 911; RULE FOR COURTS-MARTIAL (R.C.M.) 1203(b), MAN- UAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.), Discussion. “[M]ilitary

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courts, like Article III tribunals, are empowered to issue extraordinary writs under the All Writs Act.” LRM v. Kastenberg, 72 M.J. 364, 367 (C.A.A.F. 2013) (alteration in original) (quoting Denedo, 556 U.S. at 911). The All Writs Act does not, however, provide “an independent grant of jurisdiction, nor does it expand [our] existing statutory jurisdiction.” Id.

2. Statutory jurisdiction We first look to Article 66, UCMJ, which establishes the subject matter jurisdiction for the military courts of criminal appeals. Article 66(b) states, The Judge Advocate General shall refer to a Court of Criminal Appeals the record in each case of trial by court-martial—(1) in which the sentence, as approved, extends to death, dismissal of a commissioned officer, cadet, or midshipman, dishonorable or bad-conduct discharge, or confinement for one year or more; and (2) except in the case of a sentence extending to death, the right to appellate review has not been waived or an appeal has not been withdrawn under section 861 of this title (article 61). (Emphasis added). Indeed, this case was previously referred to our court pur- suant to this provision, and we affirmed petitioner’s conviction. Best, 2017 CCA LEXIS 345. As his appeal to CAAF was denied, Best, 77 M.J. 20, there is a final judgment as to the legality of the proceedings under Article 71, UCMJ. 2 How- ever, our superior court explained that a final judgment, under Article 71, UCMJ, is distinct from “finality” under Article 76, UCMJ. Loving, 62 M.J. at 240. “[F]inality under Article 76 [is] the terminal point in the proceedings [while] ‘a final judgment as to the legality of the proceedings’ under Article 71(c)(1) . . . establishes the point of completion of the direct legal review.” Id. In Loving, a death penalty case, the CAAF determined that the military courts had jurisdiction over habeas corpus petitions after final judgment but before the case is final under Article 76, UCMJ. “As finality under Article 76 is the terminal point for proceedings within the court-martial and military jus- tice system, . . . jurisdiction continues until a case is final.” Id. The court held that because Article 76, UCMJ, required that the President approve a death sentence before the sentence is final, and the President had not yet done so, the case was not final and the court had jurisdiction. “Implicit in this conclu- sion was that if the proceedings were final under Article 76, UCMJ, the mili- tary courts would not have jurisdiction.” Chapman, 75 M.J. at 600.

2 Article 71(c)(1) provides in pertinent part, “A judgment as to legality of the pro- ceedings is final in such cases when review is completed by a Court of Criminal Appeals and . . . a petition [for review] is rejected by the Court of Appeals for the Armed Forces.”

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In Chapman, the Air Force Court of Criminal Appeals held that it was without jurisdiction to entertain Chapman’s writ of habeas corpus because his court-martial had “completed direct review under Article 71, UCMJ, and [was] final under Article 76, UCMJ.” Id. (citing Gray, 70 M.J. at 647). The court also relied on the Supreme Court’s decision in Denedo. In Denedo, the Court con- cluded that military courts have jurisdiction over writs of error coram nobis even after the proceedings are final pursuant to Article 76, UCMJ, because “an application for the writ is properly viewed as a belated extension of the original proceeding during which the error allegedly transpired.” 556 U.S. at 912-13. But because a habeas corpus petition is not an extension of the direct appeal, the Air Force court concluded that Denedo’s rationale does not apply and does not extend habeas jurisdiction beyond the finality of Article 76, UCMJ. The Army Court of Criminal Appeals reached a similar holding in Gray. In Gray, the court rejected Gray’s petition for habeas relief because his court-mar- tial had completed direct review and there was a final judgment as to the le- gality of the proceedings under Article 71, UCMJ. Unlike Loving, however, the President had approved his death penalty and ordered it executed, so the case was final under Article 76, UCMJ. Gray, 70 M.J. at 647. The court went on to explain that it had jurisdiction to hear a coram nobis petition, but that Gray did not meet the stringent requirements for such a petition because he had another remedy besides coram nobis—habeas relief from the Article III courts. Id. We find Chapman and Gray compelling, yet in direct conflict with estab- lished precedent of this court. In Fisher v. Commander, 56 M.J. 691 (N-M. Ct. Crim. App. 2001)—decided before Loving and Denedo—we held that Article 76, UCMJ, was not a bar to habeas jurisdiction under the All Writs Act. In so hold- ing, we relied on Dew v. United States, 48 M.J. 639, 647 (Army Ct. Crim. App. 1998). Fisher, 56 M.J. at 693. However, the “expansive approach [to jurisdic- tion] taken in . . . Dew” has been repudiated by the CAAF in United States v. Arness, 74 M.J. 441, 443 (C.A.A.F. 2015). Therefore, in light of Arness, Loving, and Denedo, and our sister courts’ holdings in Chapman and Gray, we question the continued viability of our holding in Fisher. But, because we conclude that the petitioner’s case was not final pursuant to Article 76, UCMJ, it is distin- guishable from Fisher, Chapman, and Gray. As a result, we have no occasion to revisit our holding in Fisher here, since “it is . . . unnecessary to the resolu- tion of this case,” and to do so “would constitute an advisory opinion.” United States v. Hamilton, 78 M.J. 335, 342 (C.A.A.F. 2019).

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3. “Finality” under Article 76 Article 76, UCMJ, states, in pertinent part: The appellate review of records of trial provided by this chapter, the proceedings, findings, and sentences of courts-martial as ap- proved, reviewed, or affirmed as required by this chapter, and all dismissals and discharges carried into execution under sen- tences by courts-martial following approval, review, or affirma- tion as required by this chapter, are final and conclusive. (Emphasis added). In Loving, the CAAF looked to Article 71(a), which requires approval by the President before a capital sentence can be executed, in deter- mining that a “capital case is final with[in] the meaning of Article 76 only after the President, acting under Article 71(a), approves it.” 62 M.J. at 240. The court held that “[o]nly after there is ‘a final judgment as to the legality of the proceedings’ is a sentence ripe for execution—that is ripe for ‘approval’ under either Article 71(a) (as to a death sentence) or Article 71(b) (as to dismissal or punitive discharge).” Id. at 243. Loving dealt with a death sentence, so the Article 71(a), UCMJ, require- ment that the President approve a death sentence before it is ripe for execution guided their reasoning. The petitioner here, on the other hand, was not sen- tenced to death, so we must look elsewhere to determine whether his sentence is final for Article 76, UCMJ, purposes. We need look no further than the plain text of Article 76, which declares final and conclusive only sentences, including discharges, “carried into execution under sentences by courts-martial following approval, review, or affirmation” as required by the UCMJ. 10 U.S.C. § 876 (emphasis added). We now look to the petitioner’s sentence. As discussed supra, the petitioner was sentenced to 30 years’ confinement and a dishonorable discharge. The con- vening authority ordered the confinement executed, but, consistent with Arti- cle 71(c)(1) 3 and R.C.M. 1113(c), did not order the dishonorable discharge exe- cuted. The Department of the Navy allows punitive discharges to be executed

3 “If a sentence extends to death, dismissal, or a dishonorable or bad-conduct dis- charge . . . that part of the sentence extending to death, dismissal, or a dishonorable or bad-conduct discharge may not be executed until there is a final judgment as to the legality of the proceeding . . . .”

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only after the completion of both direct appellate review and the initial clem- ency review. 4 The initial clemency review for prisoners with an approved sen- tence to confinement for 30 years or more occurs only after the prisoner serves at least 10 years of confinement. 5 As the petitioner has not had his initial clem- ency review, the government concedes that his dishonorable discharge has not yet been executed. 6 Since the dishonorable discharge has not been “executed,” the case is not final under Article 76. See Loving, 62 M.J. at 244 (“But this case is not final under Article 76 because the President has not ordered the sentence executed.”); Chapman, 75 M.J. at 602 (case is final under Article 76, UCMJ, when “all portions of the sentence have been ordered executed”). Since petitioner’s court-martial is not final under Article 76, we retain ju- risdiction to consider his petition for habeas corpus. Accordingly, we turn to the merits of his petition.

B. Retroactivity of United States v. Mangahas In determining whether petitioner is entitled to relief, we are mindful that issuance of a writ is “a drastic remedy that should be used only in truly ex- traordinary situations.” Aviz v. Carver, 36 M.J. 1026, 1028 (N-M. Ct. Crim. App. 1993). The petitioner has the heavy burden of establishing a “clear and indisputable right to the requested relief.” Denedo v. United States, 66 M.J. 114, 126 (C.A.A.F. 2008) (citing Cheney v. United States Dist. Court, 542 U.S. 367, 381 (2004)). At the time of petitioner’s offenses, Article 43 provided: (a) A person charged with absence without leave or missing movement in time of war, or with any offense punishable by death, may be tried and punished at any time without limitation. (b)(1) Except as otherwise provided in this section (article), a person charged with an offense is not liable to be tried by court- martial if the offense was committed more than five years before

4 Sec’y of the Navy, SECNAVINST 5815.3J, Dep’t of the Navy Clemency and Parole Systems at ¶ 415 (2003) (“Approved, unsuspended punitive discharges . . . will not be executed until the initial mandatory clemency review . . . has been completed or waived[.]”). 5 Id. at ¶ 403(d)(3); Dep’t of Defense, DODI 1325.07, Admin. of Military Corr. Fa- cilities and Clemency and Parole Auth., 25-26, 28 (Change 3, 2018). See also Govern- ment Answer of 1 Apr 19 at 4. 6 See Government Answer of 1 Apr 19 at 4.

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the receipt of sworn charges and specifications by an officer ex- ercising summary court-martial jurisdiction over the command. 10 U.S.C. § 843 (1986) (emphasis added). 7 In 1997, Article 120, UCMJ, clearly included in its language a maximum punishment of death. 10 U.S.C. § 920 (1997). However, the Supreme Court in Coker v. Georgia, 433 U.S. 584 (1977), had already held that the death sentence was an unconstitutional punishment for the offense of rape. 8 Id. at 592. Despite this Supreme Court precedent, the CAAF had interpreted Article 43 to exempt rape from the five-year statute of limitations because, under the UCMJ, rape was an “offense punishable by death.” See Willenbring v. Neurauter, 48 M.J. 152, 178, 180 (C.A.A.F. 1998). In Mangahas, on an interlocutory appeal, the CAAF specified the following issue: In light of Coker v. Georgia, and United States v. Hickson, 22 M.J. 146, 154 n.10 (C.M.A. 1986), was the offense of rape of an adult woman, a violation of Article 120 UCMJ, 10 U.S.C. § 920 (Supp. II 1997), a crime punishable by death within the meaning of Article 43, UCMJ, 10 U.S.C. § 843 (1994).

7In 2006, Congress amended Article 43(a). At the time of petitioner’s court-martial, Article 43(a) provided: (a) A person charged with absence without leave or missing move- ment in time of war, with murder, rape, or rape of a child, or with any other offense punishable by death, may be tried and punished at any time without limitation. 8 Kennedy v. Louisiana, 554 U.S. 407 (2008), likewise invalidated the death penalty as a permissible punishment for the crime of rape of a child. Kennedy had not been decided at the time of the offenses alleged in Charge I, Specification 1. Coker only found that the death penalty for rape of an adult woman was unconstitutional. Coker, 433 U.S. at 597. As a result, no precedent from the Supreme Court or from CAAF pro- scribed the death penalty for rape of a child at the time the petitioner first raped LN. Arguably, therefore, the CAAF’s holding in Mangahas—that the five-year statute of limitations in Article 43, UCMJ, applied because the Supreme Court’s holding in Coker came “decades prior” to Mangahas’ alleged crime—does not necessarily apply to the petitioner’s misconduct in Specification 1. Mangahas, 77 M.J. at 223. We need not de- cide today, however, the full extent of the CAAF’s holding in Mangahas and whether it applies to crimes such as the petitioner’s. We reach this conclusion, because even assuming CAAF’s holding in Mangahas applies to Specification 1, we conclude it does not apply retroactively.

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77 M.J. at 222 (internal citation omitted). The court answered the specified issue in the negative, expressly overruling Willenbring and dismissing as time- barred the rape charge brought against the appellant in Mangahas eighteen years after the alleged incident. Id. The petitioner now seeks to have this court apply Mangahas retroactively to bar prosecution for his offenses, arguing that in deciding Mangahas, the CAAF created a new substantive rule of constitutional law that applies retro- actively. See Montgomery v. Louisiana, 136 S. Ct. 718, 728 (2016) (“[C]ourts must give retroactive effect to new substantive rules of constitutional law.”); Teague v. Lane, 489 U.S. 288 (1989) (establishing the framework for determin- ing whether a new rule has retroactive application). Because he was charged in 2015 for offenses that occurred between 1999 and 2007, applying Mangahas retroactively would place his conduct outside the default five-year statute of limitations at the time he was charged. We find, consistent with the United States District Court for the District of Kansas, 9 that CAAF’s holding in Mangahas creates a new rule of procedure, rather than a substantive rule of constitutional law, and it therefore does not apply retroactively to provide petitioner relief. When a decision results in a new rule, “that rule applies to all criminal cases still pending on direct review,” but “[a]s to convictions that are already final . . . the rule applies only in limited circumstances.” Schriro v. Summerlin, 542 U.S. 348, 351 (2004). As we noted above, because there has been a final judgment as to the legality of the pro- ceedings under Article 71, UCMJ, the petitioner’s case has completed direct review. In Teague, the Supreme Court established a roadmap for analyzing retroactive application of new rules. The Court noted two exceptions to this general bar on retroactivity. 489 U.S. at 311-12. In Schriro, the Supreme Court succinctly explained the Teague analysis as follows: New substantive rules generally apply retroactively. This in- cludes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State’s power to punish. Such rules apply retroac- tively because they necessarily carry a significant risk that a de- fendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him.

9 See Nixon v. Hilton, No. 18-3139-JWL, 2018 U.S. Dist. LEXIS 183106 (D. Kan. Oct. 25, 2018) (unpub. op.).

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New rules of procedure, on the other hand, generally do not apply retroactively. They do not produce a class of persons con- victed of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the in- validated procedure might have been acquitted otherwise. Be- cause of this more speculative connection to innocence, we give retroactive effect to only a small set of watershed rules of crimi- nal procedure implicating the fundamental fairness and accu- racy of the criminal proceeding. That a new procedural rule is fundamental in some abstract sense is not enough; the rule must be one without which the likelihood of an accurate conviction is seriously diminished. This class of rules is extremely narrow, and it is unlikely that any . . . ha[s] yet to emerge. Schriro, 542 U.S. at 351-52 (alterations and emphasis in original) (citations and internal quotation marks omitted). The determination of retroactive ap- plication depends largely “on whether the new rule itself has a procedural func- tion or a substantive function—that is, whether it alters only the procedures used to obtain the conviction, or alters instead the range of conduct or class of persons that the law punishes.” Welch v. United States, 136 S. Ct. 1257, 1266 (2016). “A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes. In contrast, rules that regulate only the manner of determining the [Petitioner’s] culpability are pro- cedural.” Schriro, 542 U.S. at 353 (emphasis in original) (internal citations omitted). The petitioner attempts to force the Mangahas rule into the first Teague exception, the “substantive law” category, citing three flawed rationales: (1) that Mangahas sets forth a new rule of constitutional law; (2) it affects the reach of Article 120 via the interpretation of Article 43, UCMJ; and (3) that it directly alters the “range of conduct,” as well as the “class of persons,” subject to punishment for sexual offenses under the UCMJ. However, the rule in Man- gahas—that because rape was not punishable by death, it was not exempt from the statute of limitations set forth in Article 43, UCMJ—only alters the proce- dures by which one can be charged—specifically, the time limit before which one must be charged—not the underlying conduct. See generally Nixon v. Hil- ton, No. 18-3139-JWL, 2018 U.S. Dist. LEXIS 183106, at *11-12 (D. Kan. Oct. 25, 2018) (unpub. op.) (analyzing a petition for habeas corpus seeking to apply Mangahas retroactively and holding that “the new rule in Mangahas does not fit within either of the non-retroactivity exceptions set forth in Teague”); Hill v. Rivera, No. 2:17CV00003-JLH, 2018 U.S. Dist. LEXIS 200223, at *8 (E.D. Ark. Nov. 27, 2018) (unpub. op.) (“The Mangahas rule is not substantive.”).

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Nothing in Mangahas alters the criminality of the petitioner’s underlying con- duct; he remains guilty of the acts of rape and rape of a child and merely seeks relief citing the now-invalidated procedure by which he was convicted. The second exception created by Teague is for “watershed rules of criminal procedure,” without which the accuracy and “fundamental fairness” of the criminal proceeding are questionable. Teague, 489 U.S. at 311-15. “In order to qualify as watershed, a new rule must meet two requirements. First, the rule must be necessary to prevent an impermissibly large risk of an inaccurate con- viction. Second, the rule must alter our understanding of the bedrock proce- dural elements essential to the fairness of a proceeding.” Whorton v. Bockting, 549 U.S. 406, 418 (2007) (citations and internal quotation marks omitted). This exception is “extremely narrow,” and “it is unlikely that any such rules ha[ve] yet to emerge.” Id. at 417 (alteration in original) (citation and internal quota- tion marks omitted). Indeed, since Teague, the Supreme Court “ha[s] rejected every claim that a new rule satisfied the requirements for watershed status.” Id. at 418. See Hill v. Rivera, 2018 U.S. Dist. LEXIS 200223, at *10 (“The [Man- gahas] rule here is not a watershed procedural rule that applies retroac- tively.”). We, likewise, reject the petitioner’s claim that Mangahas announced a “watershed rule.” Because we find that Mangahas does not have retroactive application, we conclude that the petitioner has failed to establish a “clear and indisputable right to the requested relief.” Cheney, 542 U.S. at 381.

III. CONCLUSION

The Petition for Extraordinary Relief in the Nature of a Writ of Habeas Corpus is DENIED. Senior Judge TANG and Judge LAWRENCE concur.

FOR THE COURT:

RODGER A. DREW, JR. Clerk of Court