On the heels of that decision comes Friday's D.C. U.S. district court opinion dealing with the proper scope of review for a collateral challenge to a court-martial conviction. Oppermann v. United States, Civil Action No. 06-1824(EGS), 2007 U.S. Dist. LEXIS 43270 (D.D.C. June 15, 2007).
The law in this area is a complete mess. As I discuss in my upcoming article in the Military Law Review, here's the governing standard in the 10th Circuit, which due to the USDB's location probably handles far more such collateral challenges than any other circuit:
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.), cert. denied, 540 U.S. 973 (2003).
That hardly seems like a standard likely to promote justice. Indeed, the 10th Circuit's case law is so bad that if an issue is raised to a CCA and the CCA simply blows it off in a one-liner, it is considered fully and fairly reviewed and not susceptible to substantive Article III review. See Watson v. McCotter, 782 F.2d 143, 145 (10th Cir. 1986) ("When 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 consider the issue meritorious or requiring discussion.").
While Sacramentum and I appear to disagree about the proper scope of Article III courts' collateral review of court-martial convictions, we seem to agree that the law needs further clarification. Of course, after the Supreme Court's truly frightening and unjust ruling on Friday in Bowles v. Russell, No. 06-5306, maybe I should be content to let sleeping dogs lie and be grateful that at least the Third Circuit and the D.C. Circuit allow for more meaningful Article III review of court-martial convictions than does the 10th Circuit.