Sunday, July 29, 2007

Interesting (and weird) 10th Circuit opinion on collateral review of court-martial convictions

Because the USDB is located in Kansas, the 10th Circuit is the most important Court of Appeals for developing the law of collateral review of court-martial convictions. In March, the 10th Circuit issued a potentially important (and weird) opinion on collateral review of a court-martial conviction -- but for an inmate confined at the Buena Vista Correctional Facility in Colorado, 700 miles due west of Fort Leavenworth. Ackerman v. Novak, 483 F.3d 647 (10th Cir. 2007).

Ackerman seems to suffer from a bad case of buyer's remorse. In 1995, he pled guilty at a general court-martial to rape and larceny. His PTA capped his life sentence at 27 years. ACCA affirmed and CAAF denied review. United States v. Ackerman, 46 M.J. 208 (C.A.A.F. 1996). In 2000, Ackerman filed a habeas petition claiming, among other things, that the evidence was insufficient to establish his guilt--a rather bizarre claim for a guilty plea case. The federal district court in Colorado denied and dismissed the petition and the 10th Circuit affirmed. Ackerman v. Novak, 66 Fed. Appx. 158 (10th Cir. 2003). Ackerman then filed a second habeas petition in U.S. district court. The district court denied the petition and the 10th Circuit dismissed his appeal. Ackerman v. Zenon, 150 Fed. Appx. 772 (10th Cir. 2005). The 10th Circuit held that 3 of the 5 issues raised in the second habeas petition had been raised in the first, and were barred as a successive petition. Id. at 775. The court held that the other 2 issues were not raised in the military justice system and were thus waived. Id.

Still a dissatisfied customer, Ackerman then filed a motion with the 10th Circuit seeking permission to file yet another habeas petition. This motion was the subject of the 10th Circuit's March opinion.

First, the 10th Circuit spanked Ackerman for repeatedly filing (or, in this instance, seeking to file) his habeas petition under 28 U.S.C. § 2254. The 10th Circuit told him for the third time that the proper vehicle for seeking habeas relief from confinement imposed by a court-martial is 28 U.S.C. § 2241.

The 10th Circuit then explained that under the Anti-Terrorism and Effective Death Penalty Act of 1996, a Circuit Court's permission is required to file a successive habeas petition under § 2254 or a successive federal post-conviction action under § 2255. But, the court noted, Ackerman's motion presented a question of first impression for the 10th Circuit: "whether a similar appellate-court pre-authorization requirement applies before a prisoner may file a second or successive writ of habeas corpus under § 2241." 483 F.3d at 639.

Following the AEDPA's enactment in 1996, 28 U.S.C. § 2244(a) provides:
No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in section 2255.

If the phrase "pursuant to a judgment of a court of the United States" includes a court-martial sentence, then the 10th Circuit's permission would be needed to file a successive petition. If a court-martial does not constitute a "court of the United States," then a successive habeas petition can be filed at the district court without a requirement to first seek the Circuit Court's permission.

The 10th Circuit held that a court-martial is not "a court of the United States" for purposes of Title 28 of the U.S. Code. The court explained that 28 U.S.C. § 451 defines "court of the United States" as "the Supreme Court of the United States, courts of appeals, district courts . . . and any court created by Act of Congress the judges of which are entitled to hold office during good behavior." The court observed that 10th Circuit precedent establishes that the "good behavior" provision applies only to "judges [who] have life tenure and may be removed only by impeachment." Ackerman, 483 F.3d at 650.

Interestingly, the United States itself took the position that a court-martial is not "a court of the United States" for § 2244(a)'s purposes, which appears to be tantamount to a government concession that a military habeas petitioner can file a successive petition without the Circuit Court's permission. See id. at 651. The 10th Circuit also cited a C.M.A. case, United States v. Rachels, 6 M.J. 232 (C.M.A. 1979), though it marred its opinion by stating that the "Court of Military Appeals" is "now the United States Court of Appeals for the Armed Services." Ackerman, 483 F.3d at 651.

The 10th Circuit reasoned that "[i]n contrast to Article III judges who hold office during good behavior, Article I military judges do not hold office during good behavior." Id. at 652. Accordingly, "we conclude that, although military justice courts are established by an Act of Congress, military judges are not entitled to hold office during 'good behavior,' and are not, therefore 'court[s] of the United States' under § 451." Id. "Thus, under § 2244(a), a prisoner convicted by a military court-martial is not in detention 'pursuant to a judgment of a court of the United States.' Id. Because § 2244(a) does not apply to Mr. Ackerman, there is no basis to conclude that he needs to obtain authorization from this court to file his proposed § 2241 petition in the district court." Id. at 653.

Following this ruling, Ackerman predictably filed his third habeas petition in federal district court in Colorado. See Ackerman v. Ried, Civil Action No. 07-cv-00894-BNB 2007, U.S. Dist. LEXIS 36533 (D. Colo. 2007). Note the new respondent: in this action, the respondent is the warden of the Colorado State Penitentiary, to which Ackerman had apparently been transferred from the Buena Vista Correctional Facility (also a state confinement facility) at some point. The habeas petition raised 6 issues. The magistrate judge ruled that 5 of the 6 issues were improperly raised because they had already been resolved by Ackerman's 2 previous habeas actions.

The remaining issue concerned Ackerman's place of confinement. He asserted that he is being held in a state prison contrary to 18 U.S.C. § 4083, which provides in relevant part: "Persons convicted of offenses against the United States or by courts-martial punishable by imprisonment for more than one year may be confined in any United States penitentiary."

Concerning this claim, the magistrate judge ruled:
As for Claim Five, Applicant fails to assert exhaustion of the claim. He simply states that he has raised the claim in lower courts, that the claim was ignored, and that the military courts will not do anything while he is held at the DOC. Furthermore, the Court finds no federal statute identified as 18 U.S.C.A. § 4083, upon which Applicant relies for his assertion that he should be returned to the United States Army's custody. Mr. Ackerman is directed to amend the Application, assert only Claim Five, and state what federal rights are being violated and how he has exhausted his remedies in this claim.

I'm not sure what the magistrate judge is trying to say. It reads to me as if he's saying there is no such statute at 18 U.S.C. § 4083. But that can't be what he means, since obviously there is such a statute. Alternatively, he may be saying that he doesn't understand what § 4083 has to do with Ackerman's claim -- but that also seems fairly self-evident. Ackerman seems to be attempting to use § 4083's authorization to confine a court-martial convict in a United States penitentiary to create a negative inference that a court-martial convict may not be confined in a state (rather than federal) penitentiary. Ackerman may be right and is probably wrong, but he does seem to assert a claim that his rights under a federal statute have been violated.

This case continues to demonstrate that habeas claims of court-martial convicts under § 2241 fly under the radar, unable to attract attention from either the Supreme Court (see United States ex rel. New v. Gates, 127 S. Ct. 2096 (2007)), or Congress. Sometimes, such as in the Ackerman case, this state of neglect benefits the convict. Sometimes, such as in Congress's omission of a counsel right for a military death row inmate seeking Article III habeas review (while according such a counsel right to state and federal death row inmates, 18 U.S.C. § 3599(a)(2)), this neglect harms the convict. But whether the effect is good or bad, such matters should be the product of reasoned choice, not blissful ignorance.

Throughout the history of military justice, attention and reform has come largely as the result of capital cases. The Ansell-Crowder dispute is probably the best example of this phenomenon, but the Somers mutiny (if it was a mutiny), Burns v. Wilson, 346 U.S. 137 (1953), and Reid v. Covert, 354 U.S. 1 (1957), are among many other examples. My guess is that if a military capital case ever enters Article III habeas review, that is when the Supreme Court, and possibly even Congress, will finally pay attention to these issues.


John O'Connor said...

Interesting list of reforms that you attribute, in part, to death penalty cases. My sense is that it's not the death penalty that have led to these changes in military law, for the most part, but the effect of a large number of civilians drafted into wartime service, and then coming back after the war with complaints about the military justice system. I think No Man has posted statistics before about the huge number of soldiers court-martialed during World War II, for example, and I suspect that this experience from drafted personnel was the impetus behind what became the UCMJ. The Ansell reforms similarly followed WWI as I recall.

You might see more of the same with the large number of reservists mobilized and sent to war in Iraq and Afghanistan, though I suspect the effect of war on changes to the military justice system will be less pronounced now that we have an all-volunteer army.

Your reference to the Ansell-Crowder debates and Reid v. Covert in the same sentence also made me think. One of the military justice commentators I have enjoyed reading the most was Colonel Frederic Bernays Wiener. If you read his take on the Ansell-Crowder debate, he seems to think Ansell as little better than a Communist sympathizer, while Wiener actually represented the petitioner in Reid v. Covert, successfully invalidating court-martial jurisdiction over dependents.

Dwight Sullivan said...

As Warner Wolf would say, let's go to the videotape. Remember that the Ansell-Crowder dispute arose from Brigadier General Samuel T. Ansell's frustration over a death penalty case -- in fact, 13 death penalty cases. Thirteen African-American soldiers were executed in 1917 as the result of offenses allegedly committed during a riot in Houston, Texas. They were executed a mere twelve days after their court-martial ended. General Ansell objected that this rendered it impossible for the Judge Advocate General to exercise his statutory power to "review" and "revise" court-martial results. There is a wonderful but hard to find book about this incident and its aftermath: John M. Lindley, "A Soldier Is Also a Citizen": The Controversy over Military Justice, 1917-1920 (1990). To get a copy, I had to track down the author and buy it from him -- but it was well worth the effort.

I also have little doubt that the Supreme Court would not have felt compelled to address the habeas standard for court-martial convictions in 1953 but for the fact that Burns v. Wilson, 346 U.S. 137 (1953). (In fact, Burns arose from two Air Force death penalty cases and both petitioners were ultimately executed. See Airmen Hanged in Guam, N.Y. TIMES, Jan. 28, 1954, at 7.)

But JO'C is right about Reid v. Covert. The widow Covert (she killed her husband) and the widow Smith (she killed her husband) were both doing life. BUT, but Justice Frankfurter (to whom Frederick Bernays Wiener dedicated his book Civilians Under Military Justice) and Justice Harlan emphasized that they were limiting their concurrence in the Court's holding to the trial of dependents for capital offenses. See Reid v. Covert, 354 U.S. 1, 45 (1957) (Frankfurter, J., concurring) ("In making this adjudication, I must emphasize that it is only the trial of civilian dependents in a capital case in time of peace that is in question."); id. at 65 (Harlan, J., concurring) ("I concur in the result, on the narrow ground that where the offense is capital, Article 2 (11) cannot constitutionally be applied to the trial of civilian dependents of members of the armed forces overseas in times of peace.").

The Supreme Court has often first announced criminal procedural rules in capital cases and then later considered whether they extended to non-capital cases as well. Gideon v. Wainwright, 372 U.S. 335 (1963), may be the most prominent example -- extending the established right to counsel for an indigent defendant in a capital case to all indigent felony defendants.

It is also instructive that of the eight military justice cases to receive plenary consideration by the Supremes since the Military Justice Act of 1983, one of them was a death penalty case. Loving v. United States, 517 U.S. 748 (1996).

I would be shocked if the empirical data didn't support the proposition that the Supreme Court grants cert in capital cases at a far higher rate than it does in non-capital criminal cases. I tried to do a couple of quick electronic searches to see if I could verify or refute that assumption, but I didn't find anything. If a more exhaustive search still whiffs, this would be an OUTSTANDING topic for a law review article or note for some under-employed academician or law review editor in search of a note topic.

John O'Connor said...

But all of that just begs the question. It might be true that a lot of these cases began as death-specific holdings but were later extended to cover non-death cases too (as with the personal jurisdiction cases of the 1950s). But my point is that it strikes me as highly unlikely that even the death-specific changes to the system would have had much traction in (as the case may be) Congress or the Supreme Court but for a popular sentiment that the military justice system as constructed was unfair, and that public sentiment almost certainly arose out of civilians getting drafted and subjected to courts-martial.

I would assume that the Supreme Court grants cert in more death penalty cases than non-death cases, as well it probably should. Just as the court probably grants in more non-capital murder cases than larcenies or jaywalking cases. While their obviously are exceptions (think sodomy statutes) but I dare say that in the macro sense the issues get meatier (and better litigated below) the higher the stakes.