New New news

The SG's opposition in New is now up on the SG's web site. Here's a link.

The opposition's discussion of collateral review of court-martial convictions is both fascinating and significant. I have spent much of my legal career focused on the military death penalty, (In the Isaiah Berlin fox/hedgehog dichotomy, I am a hedgehog.) Because military death row is in Kansas, I have had a longstanding interest in the 10th Circuit's case law on the scope of review for habeas challenges to court-martial cases. And it is, in a word, awful. Here's the current 10th Circuit standard:

If the grounds for relief that Petitioner raised in the district court were fully and fairly reviewed in the military courts, then the district court was proper in not considering those issues. Likewise, if a ground for relief was not raised in the military courts, then the district court must deem that ground waived. The only exception to the waiver rule is that a petitioner may obtain relief by showing cause and actual prejudice.

Roberts v. Callahan, 321 F.3d 994, 997 (10th Cir.) (internal citations omitted), cert. denied, 540 U.S. 973 (2003).

It would be easier for a camel to go through the eye of a needle than for a military habeas case to slip into that gap between complete deference and waiver.

So it was heartening to read the Solicitor General's take on the collateral review issue. First, the SG quotes then-Judge Alito to establish that there IS a circuit split:

As one court of appeals recently noted, since this Court's decision in [Burns v. Wilson, 346 U.S. 137 (1953),] "[t]he degree to which a federal habeas court may consider claims of errors committed in a military trial has * * * been the subject of controversy and remains unclear." Brosius v. Warden, U.S. Penitentiary, 278 F.3d 239, 242 (3d Cir.) (Alito, J.), cert. denied, 537 U.S. 947 (2002).

SG's Brief in Opp at 11.

The SG then assures us that despite that circuit split,
courts of appeals have . . . been in broad agreement on two principles. First, the courts of appeals have generally held that, where the claims at issue have already been considered by the military courts, only claims involving fundamental or substantial constitutional errors are cognizable on collateral review. See, e.g., Bowling v. United States, 713 F.2d 1558, 1561 (Fed. Cir. 1983) (explaining that "the constitutional claims made must be serious ones"a nd "demonstrate convincingly that in the court-martial proceedings there has been such a deprivation of fundamental fairness as to impair due process"); Calley v. Callaway, 519 F.2d 184, 199 (5th Cir. 1975) (stating that "[t]he asserted error must be of substantial constitutional dimension"). Second, the courts of appeals have generally held that, even with regard to such constitutional claims, the decisions of the military courts are entitled to at least some degree of deference. See, e.g., Brosius, 278 F.3d at 245 (stating that "our inquiry in a military habeas case may not go further than our inquiry in a state habeas case" and assuming, for the sake of argument, that the deferential standard of 28 U.S.C. 2254(d) was applicable to the substantive determinations of military courts); Kauffman v. Secretary of the Air Force, 415 F.2d 991, 997 (D.C. Cir. 1969) (explaining that "the test of fairness requires that military rulings on constitutional issues conform to Supreme Court standards, unless it is shown that conditions peculiar to military life require a different rule").

Note two important things. First, applying those two principles would result in a much more searching scope of review than the 10th Circuit applies. As the 10th Circuit noted in one of its leading cases governing habeas review of court-martial cases, if an issue was "given full and fair consideration by the military courts," the the district court "should . . . den[y] the [habeas] petition." Lips v. Commandant, United States Disciplinary Barracks, 997 F.2d 808, 810 (10th Cir. 1993). Worse still, under 10th Circuit case law, "[W]hen an issue is briefed and argued before a military board of review, we have held that the military tribunal has given the claim fair consideration, even though its opinion summarily disposed of the issue with the mere statement that it did not find the issue meritorious or requiring discussion." Watson v. McCotter, 782 F.2d 143, 145 (10th Cir.), cert. denied, 476 U.S. 1184 (1986). So in the 10th Circuit, the barest of CCA brushoffs {e.g., "We find appellant's remaining 10 assignments of error to be without merit") is sufficient to preclude habeas reivew of even the weightiest constitutional issue.

Second, the SG didn't cite ANY 10th Circuit case law. Look at the opposition -- it cites cases from four courts: the 3d, 5th, D.C., and Federal Circuits. Discussing collateral review of court-martial convictions without mentioning the 10th Circuit is a little like discussing contemporary home-run hitters without mentioning Barry Bonds. And the reason is probably the same in both instances: it would be a little bit embarrassing to talk about.

So those of you who represent servicemembers who may ultimately have a habeas case in the 10th Circuit -- and particularly those of you who represent servicemembers in military death penalty cases -- squirrel away this SG opposition; it may prove quite useful if you ever seek cert asking the Supreme Court to review the 10th Circuit's scope of review in military habeas cases.