Murphy writ explained

Over at the Sacratentorium, there's an explanation of the Murphy writ, which CAAF denied in a daily journal entry posted today. Murphy v. Smolen, __ M.J. ___, Misc. No. 07-8018/AF (C.A.A.F. July 30, 2007). So far I've swung and missed at trying to get information about the writ, so the post is quite informative. Thanks, Sacrebleumentum!

All Moreno, all the time

Thanks to the No Man, you can now read NMCCA's two recent Moreno opinions via links on the new CAAFlog web page: www.caaflog.com.

More Moreno

CAAF's Daily Journal here provides a nice glimpse at what is an on-going drama in the Navy-Marine Corps Trial Judiciary. Moreno is being retried. I don't have all the details, but there were apparently cross-extraordinary writs from the trial level to NMCCA. NMCCA decided the writs, partially barring introduction of some critical government evidence. A writ-appeal went up to CAAF on other issues. Presumably, the case now goes back to the trial level where the government will have to decide how to proceed without some of its evidence.

The really interesting part to me is NMCCA's decision appears to be classified. I cannot find it anywhere. Any dead or mythological bloggers out there that have extra-sensory powers that can help track down the missing NMCCA opinion?
(As an aside, nice to hear from you ADM Nelson, it's been a while)

This is in addition to the writ of prohibition that CAAF denied at 64 M.J. 238 on 31 Oct 2006.

Why wouldn't the opinion be posted on NKO or the website?

And remember footnote 19 in the Moreno opinion suggesting that there might be Sixth Amendment prejudice if there was a problem on retrial . . . .

Moreno appears to be a problem for the government that is not going away.

H.R. 3174 is finally on Thomas

Here's the Thomas link to Rep. Susan Davis's Equal Justice for Our Military Act, H.R. 3174.

Blue and silver replaces burgandy and gold

CAAF has issued its latest soft-cover rules booklet, as amended through August 1, 2007. Toss the old burgandy and gold edition - this edition is blue and silver.

CAAFLog will probably view this as some silent tribute by CAAF to JMTG's Air Force heritage.

CAAF grants voir dire issue

Hear, hear! CAAF will be considering whether a TC abused the voir dire process by using it as a subterfuge for seeking the members' promise to vote guilty under the facts of the case. The granted issue in United States v. Nieto, __ M.J. ___, No. 07-0495/MC (C.A.A.F. July 27, 2007), is:

WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT THE MILITARY JUDGE DID NOT COMMIT PLAIN ERROR WHEN HE PERMITTED THE TRIAL COUNSEL TO ASK HYPOTHETICAL VOIR DIRE QUESTIONS THAT PRESENTED THE MEMBERS WITH SUCH DETAILED FACTS ABOUT APPELLANT'S CASE THAT THE TRIAL COUNSEL WAS IN EFFECT COMMITTING THE MEMBERS TO RETURN A VERDICT OF GUILTY PRIOR TO THE PRESENTATION OF EVIDENCE, ARGUMENT, AND INSTRUCTIONS.

Here is a link to the lower court's opinion. United States v. Nieto, NMCCA 200600977 (N-M. Ct. Crim. App. Apr. 5, 2007). I will reproduce NMCCA's analysis of this issue in full: "We find the appellant’s second assignment of error without merit." Nieto, slip op. at 4 n.2. No doubt CAAF will have something more interesting to say.

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.

H.R. 3174 watch

H.R. 3174, the Equal Justice for Our Military Act, would amend both 28 U.S.C. 1259 and Article 67a of the UCMJ. Apparently the former amendment is paramount, because the bill has been referred to the House Judiciary Committee rather than to HASC, of which the bill's sponsor (Susan Davis) is a member and one of the bill's co-sponsors (Ike Skelton) is the chairman. None of the four current co-sponsors is a House Judiciary Committee member.

We'll continue to track the bill's progress.

U.S. district court rejects Loving's FOIA suit

In a published opinion, Judge Ellen Segal Huvelle of the U.S. District Court for the District of Columbia on Thursday rejected Army Private Dwight Loving's FOIA suit seeking documentation concerning the Executive Branch's consideration of whether to approve his death sentence. Loving v. Department of Defense, __ F. Supp. 2d ___, Civil Action No. 06-1655 (ESH), 2007 WL 2137759 (D.D.C. July 26, 2007). By the time of the court's ruling, the litigation had boiled down to 4 documents:

[(1)] A 31-page memorandum from the Judge Advocate General of the Army to the Secretary of the Army (forwarded to the President pursuant to R.C.M. 1204(c)(2)) reflecting the Judge Advocate General's analysis of plaintiff's case and recommendation as to whether the Secretary should recommend that the President approve plaintiff's death sentence, dated January 13, 2004;

[(2)] A one-page memorandum addressed from the Secretary of the Army to the President "containing the [Secretary's] recommendation regarding whether or not PVT Loving's death sentence should be approved," dated November 8, 2004;

[(3)] A one-page memorandum from the Secretary of Defense to the President forwarding plaintiff's military court-martial capital case to the President for action, dated January 8, 2006;

[(4)] An undated one-page memorandum from the DoD Office of the General Counsel to the Counsel to the President concerning "The President's Action in Two Military Capital Cases."

DOD argued that it didn't have to disclose these documents because they fell within FOIA Exemption 5, which permits the withholding of "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). The court agreed, concluding that the first three documents fall within the presidential communications privilege while the fourth falls within the deliberative process privilege.

We previously discussed the case here, on the sixth day of CAAFlog's existence.

ACCA rules a lab report is testimonial hearsay for Crawford purposes

ACCA has released a significant published opinion. United States v. Williamson, __ M.J. ___, No. ARMY 20030855 (A. Ct. Crim. App. July 25, 2007).

ACCA holds "that, under the circumstances of this case, [a] laboratory report [identifying a substance as marijuana and providing its weight] is testimonial under Crawford [v. Washington, 541 U.S. 36 (2004),] and, therefore, was improperly admitted under Mil. R. Evid. 803(6)." Williamson, slip op. at 2.

ACCA emphasizes that this holding "is limited to the facts of this
case." Id., slip op. at 18. The court explains that it bases its holding "primarily on the fact that the 'statement' is a post-apprehension laboratory report, requested after local police arrested appellant." Id., slip op. at 20 (footnote omitted). ACCA explains that "although we find generating the USACIL forensic report akin to an 'objective cataloging of unambiguous factual matters[,]' Rankin, 64 M.J. at 352, i.e., the identity and amount of a controlled substance, we also find the laboratory technician's 'statements' responded to a law enforcement inquiry, and the 'primary purpose for making, or eliciting, the [report]' was to produce evidence 'with an eye toward trial,' i.e., the report was produced months after appellant's arrest, and after the government preferred the charge alleging narcotics possession with intent to distribute. Id." Williamson, slip op. at 20 (footnote omitted).

Despite finding constitutional error, ACCA held that the erroneous admission of the lab report was harmless beyond a reasonable doubt. Id., slip op. at 26.

The opinion includes the following implausible observation: "Although the USACIL is a division of the CID (the Army's law enforcement branch), the USACIL does not function as a prosecution support tool; rather, by its own mission statement, USACIL exists to render neutral support to the CID by 'examin[ing] crime-related evidence to assist investigators in solving crime.' U.S. Army Criminal Investigation Command, at http://www.cid.army.mil/mission2.htm (last visited 23 July 2007) (emphasis added)." Id., slip op. at 7 n.8. If only we had any Army readers, I would ask if any of them believed that USACIL is neutral and doesn't function to support the prosecution.

Extraneous question of the day: Why on earth does the Williamson opinion include the Registered Trademark symbol after its references to U.S. Postal Service Express Mail and a FedEx USA Airbill? See id., slip op. at 5.