16 June 2007

Habeas Corpus

Army attorneys are wrestling with a recent ruling by a U.S. magistrate judge, that was upheld by a U.S. district judge, that seems to misapply the rules for habeas corpus hearings of court-martial convictions.

In 1953, the Supreme Court held that federal habeas petitions of court-martial convictions would he reviewed differently than federal or state habeas petitions. "[W]hen a military decision has dealt fully and fairly with an allegation raised in [a habeas petition], it is not open to a federal civil court to grant the writ simply to re-evaluate the evidence." Burns v. Wilson, 346 U.S. 137, 142 (1953). "[W]hen an issue is briefed and argued before a military board of review, . . . the military tribunal has given the claim fair consideration, even though its opinion summarily disposed of the issue with a mere statement that it did not consider the issue meritorious or requiring discussion." Watson v. McCotter, 782 F.2d 143, 145 (10th Cir. 1986) (citation omitted).

After shooting a fellow soldier in Germany, Kurtis E. Armann was charged with attempted premeditated murder and conspiracy to commit premeditated murder. Prior to trial, a sanity board concluded that he was not suffering from a severe mental disease or defect at the time of the offenses and he was competent to assist in his defense. In March 1999, pursuant to a pretrial agreement that capped his confinement at 35 years, he pled guilty and was sentenced to a dishonorable discharge and confinement for 38 years. Armann v. Warden, Civil No. 04-118, 2007 U.s. Dist. LEXIS 39660 at *3-*4 (W.D. Pa. May 31, 2007).

The defense filed an appeal at the ACCA which included the apellant's personal submission under United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), alleging a lack of mental responsibility for the offenses. In support of that alleged error, the appellant noted 7 medications he had been prescribed upon arrival at the USDB. On 24 April 2001, the ACCA affirmed the findings and sentence and stated it had specifically considered the matters he had raised. Armann, 2007 U.S. Dist. LEXIS 39660 at *4-*5.

Armann's counsel filed a petition at the CAAF which included a Grostefon assertion slightly different from the one he alleged at ACCA. This time, he alleged "that he lacked sufficient mental capacity to stand trial because he had been administered toxic amounts of psychoactive substances from october 1998 through March 1999." Id. at *5. He also asked for a new trial based on newly discovered evidence. The Government did not file a separate brief, objected to the submission of new matters, and responded to allegations that the appellant was incapacitated by the drugs he was prescribed. The CAAF granted the motion to submit additional evidence, denied a petition for a new trial, and affirmed the findings and sentence as approved by the convening authority. Id. at *8-*9.

After briefly surveying the different manner in which the circuits have applied the Burns decision, the district judge focused on the 3d Circuit interpretation which is less deferential than that of the 10th Circuit. See Brosius v. Warden, 278 F.3d 239 (3d Cir.), cert. denied, 537 U.S. 947 (2002) (opinion by Judge Alito). In that case, the 3d Circuit concluded that "at least absent a challenge to the constitutionality of the statute under which the defendant was convicted, . . . inquiry in a military habeas case may not go further than our inquiry in a state habeas case."
Armann, 2007 U.S. Dist. LEXIS 39660 at *18 (quoting Brosius, 278 F.3d at 245). The 3d Circuit applied the habeas standard set forth in 28 U.S.C. § 2254(d), "which conditions habeas relief on a showing that the prior adjudication of the claim 'resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,' or 'resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented.'" Id. at 19 (quoting Brosius, 278 F.3d at 245).

The district judge then quoted, approvingly, from the magistrate judge's decision ordering an evidentiary hearing. The magistrate judge decided that since the issue of the petitioner's competency was first litigated at the CAAF and the Government relied on its brief before the ACCA, the

"issue was not fully briefed or argued before the CAAF. Moreover, the CAAF's order affirming the ACCA's decision did not in any way acknowledge the comptetency issue.

. . . .
"Given the constitutional implications raised by Petitioner's competency argument . . . this Court is unwilling to imply that the competency issue was given full and fair consideration by the CAAF, without more concrete evidence of record to support such an implication."
Id. at 21 (quoting the magistrate judge's decision).

My thoughts:

(1) When courts talk about an issue being fully briefed, they mean that the losing party had an opportunity to fully brief the issue. Who cares whether the winning party briefs the issue?

(2) Of course Armann didn't present much on the issue to the CAAF because the military attorney felt ethically obligated not to brief the issue.

(3) The district court's decision in this case is reminiscent of the CAAF's decisions regarding Suzuki/Sales. If the CCA's don't say the magic words -- the judges are sure that the sentence approved is no more than what the court members would have adjudged absent the error -- the CAAF remands. It looks like the CAAF failed to say the magic words acknowledging that they had considered the Grostefon issues. But why would the CAAF have to do so when they were deciding whether to grant the accused's petition for review? Of course the CAAF considered it before it denied review. Shouldn't there be a presumption that courts do what they are supposed to do?

(4) I think the District Court is just wrong on this one. As the circuits appear to use different standards, perhaps the Army should try to push for an appeal to resolve the issue. It would be nice if the Army let us know what they are thinking and doing about the case.

(5) I wonder how many military habeas cases are heard in PA, as opposed to KS, where the DB is located.

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