Opinion
CV-22-00208-TUC-RCC-BGM
03-21-2023
Brent Andrew Burke, Petitioner, v. M. Gutierrez,[1] Respondent.
REPORT AND RECOMMENDATION
Honorable Bruce G. Macdonald United States Magistrate Judge
Currently pending before the Court is Petitioner Brent Andrew Burke's pro se Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (“Petition”) (Doc. 1.) Respondents have filed a Return and Answer. (“Answer”) (Doc. 18.) Petitioner filed a Response to Answer which the Court will construe as a Reply (“Reply”) (Doc. 22). The Petition is ripe for adjudication. This matter was referred to Magistrate Judge Macdonald for Report and Recommendation. (Doc. 4.) As more fully set forth below, the Magistrate Judge recommends that the district court, after its independent review, dismiss the Petition (Doc. 1).
I. PROCEDURAL BACKGROUND
This is Petitioner's fifth post-conviction attack. This matter arises from a pro se habeas petition filed on May 2, 2022, pursuant to 28 U.S.C. § 2241. (Doc. 1). Petitioner claims that (1) “[t]he U.S. Army's court-martial judgement [ sic ] vacated and an order entered dissmissing [ sic ] the charges with prejudice under the Fifth Amendment Double Jeopardy clause and 10 U.S.C. 844 Art. 44” and (2) “[u]nder 10 USC § 802 . . . the U.S. Army's court-martial judgement [sic] should be vacated and an ordered entered dissmissing [sic] charges with prejudice as I was not a person covered by §802 and therefore was no court-martial jurisdiction.” (Doc. 1 at 4-5). This is the second habeas petition filed by Petitioner in federal court. The matters now raised were either previously considered and rejected by the District Court for the District of Kansas and the U.S. Court of Appeals for the Tenth Circuit or received “full and fair consideration” through the military court system. Petitioner's habeas petition is without merit and is denied in its entirety.
A. Petitioner's Court-Martial
On May 8, 2012, a panel of officers and enlisted members sitting as a general court-martial convicted Sergeant Brent A. Burke [Petitioner] at Fort Campbell, Kentucky of two specifications of premeditated murder, one specification of felony murder, one specification of burglary, three specifications of child endangerment, and one specification of impeding an investigation, (Doc. 18-2 at 3, AR 2677), in violation of Articles 118, 129, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 918, 929, 134 (2006) [UCMJ]. (Doc. 18-1 at 20, AR 2475) (Doc. 18-2 at 18, AR 2851). Petitioner was sentenced to a reprimand, reduction in rank to Private (E-1), forfeiture of all pay and allowances, confinement for life without eligibility for parole, and discharge from the service with a dishonorable discharge. (Doc. 18-1 at 23, AR 2673). The convening authority approved the sentence as adjudged. (Doc. 18-1 at 26, AR 2676). Petitioner was represented at his court-martial by Captains Nathan Brown and Christopher Coleman, his detailed military attorneys, and by his personally selected civilian attorneys, Mr. John Shaughnessy, and Mr. William Carter. (Doc. 18-1 at 3, AR 005). In military cases, the post-trial process begins with defense submission of matters to the convening authority. See Rules for Courts-Martial (“R.C.M.”) 1105. Thereafter, Petitioner's case was forwarded to the Army Court of Criminal Appeals [ACCA] for mandatory review under Article 66, UCMJ, 10 U.S.C. § 866(b). Petitioner was represented by appointed military appellate counsels, Captain Brian Sullivan, and Captain Ryan T. Yoder, during appellate proceedings before the ACCA. (Doc. 18-1 at 46, AR 2708) (Doc. 18-1 at 101, AR 2763). On October 7, 2013, Petitioner submitted matters to the convening authority pursuant to R.C.M. 1105. (Doc. 18-2 at 26 99, AR 2874-2933). Those matters included both a letter from his military attorney, as well as a personal letter. Id. In those matters, Petitioner alleged, among other things, that the Army lacked personal jurisdiction at the time of his trial and that his statements were in violation of his Fifth Amendment rights. See id. The convening authority considered his submissions and denied relief. (Doc. 18-2 at 21, AR 2869).
Unlike courts of standing jurisdiction, courts-martial are convened by military officers who have been granted that authority under the Uniform Code of Military Justice [UCMJ] [1998 ed.], Article 18, 10 U.S.C. § 818 (now Article 22, 10 U.S.C. § 822). The convening authority is a commander with designated authority to convene a military court. Art. 22-24, UCMJ, 10 U.S.C. §§ 822-24. Under the UCMJ, Rule for Courts-martial [R.C.M.] 1107, once a military judge or court members have adjudged a sentence, the convening authority takes action on the sentence and may disapprove a legal sentence or change the nature of the punishment as long as the severity of the punishment is not increased. Prior to taking action, the convening authority must consider the result of trial, the recommendation of the staff judge advocate, and any matters submitted by the accused, including requests for clemency and matters in mitigation. The convening authority may consider the record of trial, the personnel records of the accused and other appropriate matters. If other matters considered are adverse to the accused, the accused has a right to be notified and have an opportunity to rebut.
Pursuant to R.C.M. 1105(b)(1), the accused may submit to the convening authority any matters that may reasonably tend to affect the convening authority's decision whether to disapprove any findings of guilt or to approve the sentence. The convening authority is only required to consider written submissions. Pursuant to subsection 2. Submissions are not subject to the Military Rules of Evidence and may include: (A) Allegations of errors affecting the legality of the findings and sentence; (B) Portions or summaries of the record and copies of documentary evidence offered or introduced at trial; (C) Matters in mitigation which were not available for consideration at the court-martial; and (D) Clemency recommendations by any member, the military judge, or any other person.
B. Military Appellate Procedural History.
On April 30, 2014, Petitioner's appellate counsel filed an appeal to the ACCA. (Doc. 18-1 at 28-52, AR 2690-2714). Counsel raised the following issues:
(1) United States v. Miranda requires that a suspect be read his rights when the suspect is interrogated while the subject's freedom of action is deprived in any significant way. Here Appellant's commander ordered appellant to report to the battalion headquarters to perform “special duty” where he was informed of his wife's death, he was not dismissed by his superiors or otherwise free to leave, and then was interviewed by civilian law enforcement. Thus, when the appellant was questioned, his freedom of action was deprived in a significant way, and the military judge abused his discretion when admitted appellant's statements to law enforcement absent Miranda warnings.
(2) Servicemembers must be read their Article 31(b), UCMJ rights when they are suspected of an offense and questioned by a party subject to the code or otherwise an agent of one subject to the code. Here, civilian law enforcement agents coordinated a suspect interview with Appellant's command, came onto the military installation, and conducted the interview in the battalion conference room, Appellant's appointed place of duty. In availing themselves of the benefits of using the military command and installation to conduct their suspect interview, the Government cannot show that the subtle pressures of the military
environment were not present, and thus, the military judge errored in ruling that Article 31(b) rights warning were not required prior to questioning.
(3) The military judge erred in failing to dismiss the specification of Additional Charge I as an unreasonable multiplication of charges with Specification 2 of Charge I and the Specification of Additional Charge II.Id. Concurrently, Petitioner directed the court's attention to certain matters raised by Petitioner personally pursuant to United States v. Grostefon. (Doc. 18-1 at 48, AR 2710).
United States v. Grostefon allows a petitioner to personally present issues before the courts of military review even if appellate defense counsel believes the issues lack merit. United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
Petitioner raised the following issues:
(1) [T]he military judge's error in failing to dismiss the charges for a lack of jurisdiction over appellant and for failing to dismiss charges under the 5th Amendment to the Constitution prohibiting double jeopardy as appellant had been tried four times in state court before this court-martial;
(2) The military judge erred in failing to dismiss the charges against appellant for violating Article 10, UCMJ, Rule for Courts-Martial 707, and the 5th Amendment to the Constitution;
(3) The military judge erred in failing to dismiss charges due to a defective preferral and defective pretrial advice;
(4) The military judge erred in failing to suppress evidence that was found in appellant's car, as the basis of the probable cause was appellant's unwarned statements to law enforcement;
(5) The military judge abused his discretion in admitting TB's hearsay statements that appellant was following her while she was in her car, that she wanted to leave appellant, that she didn't want appellant to know where she lived, that she would give up whatever she needed to in order to get a divorce from appellant, and that TB left her job earlier than planned because of appellant.
(6) The military judge erred in failing to grant the defense's voir dire challenges, under an implied bias theory, of Lieutenant Colonel (LTC) Smith and Major (MAJ) Montgomery.
(7) The evidence is factually insufficient to sustain a conviction.
(8) The military judge committed plain error when he failed to instruct the panel members to not consider Detective Larry Walker's testimony that “A lot of
times victims are murdered by their family and friends.”
(9) Appellant was deprived of effective assistance of counsel when his counsel agreed to the admissibility of Pros. Ex. 354 which contained prior consistent statements of EB and MP.
(10) The evidence is factually insufficient that appellant had a premediated design to kill KC a necessary element to Specification 2 of The Charge. There was no evidence admitted at trial that demonstrated that appellant held any ill-will towards KC or wanted to cause her harm.
(11) The evidence is factually and legally insufficient to sustain convictions for any of the specifications of Additional Charge III.
On August 28, 2014, the United States responded to Petitioner's appeal, arguing the first two allegations of error lacked merit and conceding the third allegation. (Doc. 18-1 at 53-97, AR 2715-2759). The United States stated that it had reviewed the matters personally submitted by Petitioner pursuant to Grostefon and submitted that they lacked merit. (Doc. 18-1 at 59 n. 4, AR 2721 n. 4).
On January 26, 2015, the ACCA heard oral argument on the first two issues identified by Appellate Counsel. (Doc. 18-1 at 103, AR 2765).
On February 26, 2015, the ACCA dismissed the findings of guilty of Additional Charge I and its Specification. (Doc. 18-1 at 109, AR 2776). The Court affirmed the remaining findings of guilty and affirmed the sentence. Id. The Court noted in its opinion that none of the issues Petitioner raised in his Grostefon submission merited “discussion or relief.” (Doc. 18-1 at 106 n. 1, AR 2768 n. 1).
On May 18, 2015, Petitioner appealed to the Court of Appeals for the Armed Forces [CAAF]. (Doc. 18-1 at 112, AR 2779). Contemporaneously, with the Petition for Grant of Review, Appellate Counsel moved to extend time to file the supplement to the Petition. (Doc. 18-1 at 113, AR 2780). That motion was granted. (Doc. 18-1 at 111, AR 2778).
On June 4, 2015, Petitioner submitted his Supplement to his Petition for Grant of Review. (Doc. 18-2 at 2, AR 2787). Appellate Counsel raised the following issues:
(1) Whether the military judge erred by admitting the Appellant's statements when the Kentucky State Police failed to advise Appellant of his rights under Miranda v. Arizona after he was suspended from his duties, surrendered his weapon, and ordered by his command to the battalion conference room but
was never informed he could leave or refuse questioning.
(2) Whether the Kentucky State Police were required to advise the Appellant of his rights under Article 31, UCMJ because they used the cloak of military authority to exert subtle pressure on the Appellant to answer questions.Id. Contemporaneously, Petitioner raised additional matters pursuant to Grostefon. (Doc. 18-2 at 9-11, AR 2831-2836). As raised before the ACCA, Petitioner specifically asserted, inter alia:
“1. The military judge erred in failing to dismiss the charges for lack of jurisdiction over appellant and for failing to dismiss charges under the 5th Amendment to the Constitution prohibiting double jeopardy as appellant had been tried four times in state court before this court-martial.
2. The military judge erred in failing to dismiss the charges against appellant for violating Article 10, UCMJ, Rule for Courts-Martial 707, and the 5th Amend to the Constitution.”Id. On June 12, 2015, the United States submitted a letter pursuant to C.A.A.F. R. Prac. P. 21 (c) (2) (i), where it declined to submit a formal reply to the supplement to the petition for grant of review, including the Grostefon issues. (Doc. 18-2 at 12, AR 2837). On July 27, 2015, CAAF denied the petition for grant of review of the ACCA's decision. (Doc. 182 at 14, AR 2839).
Rule 21(c)(2)(i) states that “as a discretionary alternative in the event a formal answer is deemed unwarranted, an appellee may file with the Clerk of the Court a short letter, within ten (10) days after filing of the appellant's supplement to the petition under Rule 21, setting forth one of the following alternative positions: (i) that the United States submits a general opposition to the assigned error(s) of law and relies on its brief filed with the Court of Criminal Appeals.”
C. First Petition for Writ of Habeas Corpus.
On October 22, 2015, Burke filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 in the United States District Court for the District of Kansas. See Burke v. Nelson, No. 15-3245-JWL, 2016 U.S. Dist. LEXIS 125741, at *1 (D. Kan. Sep. 14, 2016). In his petition, he raised two claims-(1) that he was not subject to court-martial jurisdiction at the time charges were preferred against him and (2) that his Fifth Amendment rights were violated because he was not advised of his Miranda rights or his Article 31(b) rights prior to questioning by police officers. See id. Following full briefing from both Respondent and Petitioner, the district court denied the petition for writ of habeas corpus. See id. With regard to Mr. Burke's jurisdictional challenge, the district court found:
The district court noted in a footnote that “Article 31 of the Uniform Code of Military Justice is the military's equivalent to the Miranda rights advisement. See 10 U.S.C. § 831(b).” See Burke v. Nelson, No. 15-3245-JWL, 2016 U.S. Dist. LEXIS 125741, at *1 n.1 (D. Kan. Sep. 14, 2016).
“The proper exercise of court-martial jurisdiction over an offense turns on one factor-the military status of the accused. Williams v. Weathersbee, 280 Fed.Appx. 684, 686 (10th Cir. 2008) (quoting Solorio v. United States, 483 U.S. 435, 439, 107 S.Ct. 2924, 97 L.Ed.2d 364 (1987)). Mr. Burke contends that the military lacked jurisdiction over him at the time charges were preferred against him on July 8, 2011 because his military term of service expired on May 25, 2011. The record reflects, however, that Mr. Burke was never discharged by the Army and there is no provision for an “automatic” discharge upon the expiration of an enlistment term. See Fricke, 509 F.3d at 1290 (discharge does not occur until, among other things, discharge certificate or certificate of release is ready for delivery). Thus, even assuming that Mr. Burke's term of service was scheduled to expire on May 25, 2011, the military undisputedly had jurisdiction over him on July 8, 2011. See id. (court-martial jurisdiction continues until the service member is discharged; mere expiration of a term of enlistment does not terminate court-martial jurisdiction); 10 U.S.C. § 802(a)(1) (all servicemen, including those awaiting discharge after expiration of their terms of enlistment, are subject to the Code of Military Justice).”Id. at **2-3.
Mr. Burke then appealed to the United States Court of Appeals for the Tenth Circuit. See Burke v. Nelson, 684 Fed.Appx. 676 (10th Cir. 2017). With regard to Mr. Burke's jurisdictional challenge, the Tenth Circuit found that “Burke is mistaken that he had a right to an automatic or constructive discharge from the United States armed forces.” Id. at 678. The Tenth Circuit explained:
“First, Burke claims that the military lacked the proper jurisdiction to try him. Court-martial jurisdiction did not attach to him, he says, until charges were preferred against him on July 8, 2011. By that time, he argues, because his ETS date had passed and because military regulations state that enlistment should end thirty days after an ETS date, he was no longer in the military and therefore beyond the reach of any court-martial.
But Burke is mistaken that he had a right to an automatic or constructive discharge from the United States armed forces. "[A]ll servicemen, 'including those awaiting discharge after expiration of their terms of enlistment' are subject to the Code of Military Justice." Fricke, 509 F.3d at 1290 (quoting Desjardins v. Department of Navy, 815 F.Supp. 96, 98 (E.D.N.Y. 1993) (quoting 10 U.S.C. § 802(a)(1))). The statute governing military discharge makes clear that a member of the armed forces "may not be discharged or released from active duty until his discharge certificate or certificate of release from active duty . . . and his final pay or a substantial part of that pay, are ready for delivery." 10 U.S.C. § 1168(a).
Burke attempts to counter this body of law by pointing to military regulations that he contends required his discharge before his court martial. In particular, he points to an Army regulation providing that "[i]f charges have not been preferred, the Soldier will not be retained more than 30 days beyond the ETS unless the general court-martial convening authority approves retention." Army Regulation 635-200, 1-22(b). Burke's ETS date was May 25, 2011. He was not charged until July 8, 2011, more than thirty days later.
But the regulation is not the only law applying here. Courts have already rejected any view that Regulation 1-22(b) provides an automatic discharge power. In United States v. Hutchins, 4 M.J. 190, 192 (C.M.A. 1978), the Court of Military Appeals acknowledged that the regulation obliges a court-martial convening authority to act when a service member is retained more than thirty days past his ETS date. Id. But it also concluded that the regulation "has no effect on court-martial jurisdiction." Id. Military regulations must yield to Congressional requirements for military discharge. Id. And the language Congress used leaves no room for any self-enforcing discharge. See
id.; 10 U.S.C. § 1168(a). Burke's citation to United States v. Russo, 23 C.M.A. 511, 1 M.J. 134, 135, 50 C.M.R. 650 (C.M.A. 1975) does nothing to change this. As Hutchins noted, the defendant in Russo was never subject to the Code of Military Justice, because recruiter misconduct and failure to meet enlistment standards rendered the enlistment void from its inception. 4 M.J. at 192. Here, no one disputes that Burke's enlistment was valid.
Burke might have had a stronger argument had he timely objected to his retention in the military. See id. ("As no action was taken to separate the appellant from the service and appellant did not object to his retention, his military status was not terminated.") (emphasis added). But he did not. As referenced, five days before his ETS date, he signaled his intention to reenlist. He did not object to his military status until July 26, 2011, eighteen days after the military had brought charges against him. And "a demand [for discharge] made after the preferral of charges is too late." Id. at 191. But even a timely objection might not have been enough. In Dickenson v. Davis, 245 F.2d 317, 319 (10th Cir. 1957), at least sixty days had elapsed between a service member's request for discharge and charges being brought against him. We upheld court-martial jurisdiction because of the lack of formal discharge, noting that "the status of the accused as a soldier was unbroken and the charge against him was based upon an offense committed by him during his term of enlistment." Id. That description applies equally well to Burke.
In the armed forces, formalities matter. "Service in the military, whether by enlistment or otherwise, creates a status which is not and cannot be severed by breach of contract unfortified by a proper authoritative action." Id. Military inaction cannot substitute for the formalities that Congress has mandated for discharge. The bottom line is that "[w]hether [the military] should have discharged Petitioner or not, the fact remains that Petitioner was not discharged." Fricke, 509 F.3d at 1290. Burke's discharge papers and final pay were never ready for delivery. He remained a member of the military until his sentence that included a dishonorable discharge became final, and thus the military had proper jurisdiction to try him.Id. at 678-78.
As a result, the Tenth Circuit affirmed the District Court for the District of Kansas' order denying Petitioner's petition. See id. at 677.
D. Second Petition for Writ of Habeas Corpus.
On May 2, 2022, Mr. Burke filed a second petition for writ of habeas corpus (the instant petition). (Doc. 1.)
II. STANDARD OF REVIEW
Military prisoners may petition for habeas corpus relief under 28 U.S.C. § 2241 in federal courts. Burns v. Wilson, 346 U.S. 137, 139 (1953). However, the scope of review by federal courts of court-martial convictions is more limited than the review granted to state and federal prisoners. Id. at 139-42. The review is limited because the military has its own independent criminal justice system governed by the UCMJ, 10 U.S.C. §§ 801- 940, and the Manual for Courts-Martial. This system is all-inclusive and provides, inter alia, for a court-martial, post-trial clemency, appellate review, and review by the United States Supreme Court by writ of certiorari. Lips v. Commandant, Disciplinary Barracks, 997 F.2d 808, 810 (10th Cir. 1993); see also Davis v. Marsh, 876 F.2d 1446, 1447 (9th Cir. 1989) (federal courts have a limited role in reviewing military courts-martial).
“Congress has taken great care both to define the rights of those subject to military law and provide a complete system of review within the military system to secure those rights.” Burns, 346 U.S. at 140. Because of the independence of the military courts, special considerations are involved when federal district courts collaterally review court-martial convictions. Lips, 997 F.2d at 810. These special considerations are based “upon the appropriate demands of comity between two separate judicial systems.” New v. Cohen, 129 F.3d 639, 642 (D.C. Cir. 1997). Congress has created an autonomous military judicial system which maintains order and discipline in the armed services. Id. at 643.
The review of military convictions generally is limited to determining “whether the court-martial had jurisdiction of the person accused and the offense charged, and whether it acted within its lawful powers.” Sunday v. Madigan, 301 F.2d 871, 873 (9th Cir. 1962). This can include an inquiry of whether the military fairly considered each of a petitioner's claims. Id. De novo review is only warranted where “the military courts manifestly refused to consider” a petitioner's claims. Burns, 346 U.S. at 142. “[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 consider the issue meritorious or requiring discussion.” Watson v. McCotter, 782 F.2d 143, 145 (10th Cir. 1986) (emphasis added); see also United States ex rel. Thompson v. Parker, 399 F.2d 774, 776-77 (3d Cir. 1968) (holding that the military appellate court was not required to discuss a claim it found lacking in merit, and determining that where the CAAF issued a one-sentence denial of a petition for review, teamed with “the extensive discussion appearing in appellant's briefs concerning the alleged” constitutional violation, this amounted to full and fair consideration). The fact that the military court did not specifically address an issue in a written opinion is not controlling. Watson, 782 F.2d at 145. Where the military courts have given “full and fair consideration” to the claims presented in a petition, a federal court may not grant habeas relief “simply to re-evaluate the evidence.” Lips, 997 F.2d at 811 (quoting Burns, 346 U.S. at 146).
The 10th Circuit has set forth four specific requirements that must be met in order for a collateral attack of a military conviction to proceed to the merits in a district court:
Because of the presence of the military prison in Fort Leavenworth, Kansas, considerable attention on this area of law exists in the 10th Circuit, and several of the on-point unpublished opinions in this circuit draw from 10th Circuit jurisprudence. See Brown v. United States, No. CV 19-8507 MRW, 2021 U.S. Dist. LEXIS 122631, at *5 n.8 (C.D. Cal. June 29, 2021) (“[G]iven the relative paucity of civilian review of miltary conictions in this circuit, federal courts regularly cite to decisions from the Tenth Circuit, a court with considerable expertise in analyzing these types of cases.”).
(1) the asserted error is of substantial constitutional dimension; (2) the issue is one of law rather than of disputed fact already determined by the military tribunal; (3) there are no military considerations that warrant different treatment of constitutional claims; and (4) the military courts failed to give adequate consideration to the issues involved or failed to apply proper legal standards.Lips, 997 F.2d at 811 (10th Cir. 1993) (citing Dodson v. Zelez, 917 F.2d 1250 (10th Cir. 1990)). These requirements provide the essence of the hurdle that must be overcome by the petitioner to have the merits of his case reviewed by this Court, including that the military courts are presumed to have given full and fair consideration to each claim raised before them. See Armann v. McKean, 549 F.3d 279, 293 (3d Cir. 2008); Roberts v. Callahan, 321 F.3d 994, 997 (10th Cir. 2003).
III. THE ABUSE OF THE WRIT DOCTRINE
A. The Abuse of the Writ Doctrine.
Respondent recognizes that, because Petitioner is a military prisoner convicted by a general court martial, the second or successive prohibitions of 28 U.S.C. §2244 may not apply. See Ackerman v. Novak, 483 F.3d 647, 653 (10th Cir. 2007) (military prisoner is not in custody “pursuant to the judgment of a court of the United States.”). However, the Supreme Court determined that “Congress did not intend § 2244(b) to foreclose application of the court-announced principles defining and limiting a district court's discretion to entertain abusive petitions.” McCleskey v. Zant, 499 U.S. 467, 487 (1991); see also Delo v. Stokes, 495 U.S. 320, 321-322 (1990) (district court abused discretion in entertaining a new claim in a fourth federal petition that was an abuse of the writ). In fact, “the Supreme Court has made it clear that, even with respect to abuse of the writ scenarios not governed in terms by AEDPA [Antiterrorism and Effective Death Penalty Act], its provisions ‘certainly inform [judicial] consideration.'” Perez Zayas v. Ins, 311 F.3d 247, 257 (3d Cir. 2002) (citing Calderon v. Thompson, 523 U.S. 538, 558 (1998)). The Court should dismiss this Petition pursuant to the abuse of the writ doctrine. Under the common law “abuse of the writ” doctrine, a court need not entertain a petition that abuses the habeas process. Esposito v. Ashcroft, 392 F.3d 549, 550 (2d Cir. 2004). “A second or successive [petition] may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.” Parks v. Reynolds, 958 F.2d 989, 994 (10th Cir. 1992) (citation omitted); see also McCleskey, 499 U.S. at 470 (1991) (finding "[t]he doctrine of abuse of the writ defines the circumstances in which federal courts decline to entertain a claim presented for the first time in a second or subsequent petition for a writ of habeas corpus.'). “[A] petitioner can abuse the writ by raising a claim in a subsequent petition that he could have raised in his first, regardless of whether the failure to raise it earlier stemmed from a deliberate choice.” Id. at 489; see also James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002) (same); Esposito, 392 F.3d at 550 (stating “[o]ne frequently recognized indicator of abusiveness is whether the petitioner could have asserted his present claims in his prior petition.”); Delo, 495 U.S. at 321-22 (holding claims raised for the first time in a fourth federal habeas petition abused the writ because they “could have been raised” or “developed” in the first federal habeas petition); Kuhlmann v. Wilson, 477 U.S. 436, 444 n. 6 (1986) (plurality opinion) (petition that raises grounds “available but not relied upon in a prior petition” is an example of abuse of the writ); Straight v. Wainwright, 476 U.S. 1132, 1133 (1986) (Powell, J., joined by three Justices, concurring in denial of stay) (new arguments in second petition that “plainly could have been raised earlier” constitute abuse of the writ); Rose v. Lundy, 455 U.S. 509, 521 (1982) (plurality opinion) (prisoner who proceeds with exhausted claims in first federal petition and deliberately sets aside his unexhausted claims risks dismissal of subsequent federal petitions).
The government bears the initial burden of pleading abuse of the writ, and, if it meets this burden, the petitioner must show cause and prejudice or a fundamental miscarriage of justice to excuse a failure to raise the claim earlier. See McCleskey, 499 U.S. at 494-95; see also Murray, 477 U.S. at 491 (same). “To excuse an abuse of the writ, a successive habeas petitioner must show either cause and prejudice, or probable actual innocence.” LaRette v. Bowersox, 70 F.3d 986, 987 (8th Cir. 1995). To satisfy the “cause” requirement, a petitioner must show that some external impediment prevented him from presenting his claim in a timely and procedurally proper manner. See Noble v. Barnett, 24 F.3d 582, 586 (4th Cir. 1994). The court need not review the prejudice prong when the petitioner fails to establish the cause prong. See Washington v. Delo, 51 F.3d 756, 761 (8th Cir. 1995).
B. Petitioner's second habeas petition raises grounds that were either not raised in his first habeas petition or were already considered on the merits in federal court.
As grounds for habeas relief in the instant Petition, Petitioner lists (1) “[t]he U.S. Army's court-martial judgement [ sic ] vacated and an order entered dissmising [ sic ] the charges with prejudice under the Fifth Amendment Double Jeopardy clause and 10 U.S.C. 844 Ar. 44” and (2) “[u]nder 10 USC § 802 . . . the U.S. Army's court-martial judgement [sic] should be vacated and an ordered entered dismissing charges with prejudice as I was not a person covered by §802 and therefore was no court-martial jurisdiction.” (Doc. 1 at 4-5). However, because this is Petitioner's second habeas petition, his claims are not entitled to habeas relief. Despite the ability to do so, Petitioner failed to raise his Ground One claim (Fifth Amendment Double Jeopardy claim) in his first habeas petition in 2015. See Burke v. Nelson, No. 15-3245-JWL, 2016 U.S. Dist. LEXIS 125741, at *1 (D. Kan. Sep. 14, 2016). Conversely, he raised his Ground 2 claim (lack of court-martial jurisdiction) in his first habeas petition, and it was rejected on the merits by both the District Court for the District of Kansas and the Court of Appeals for the Tenth Circuit. As a result, this second habeas petition (Doc. 1) should be dismissed as an abuse of the writ.
i. Petitioner failed to raise his claim in Ground One in his first federal habeas petition.
In 2015, Petitioner submitted his first habeas petition and argued “that he was not subject to court-martial jurisdiction at the time charges were preferred against him and that his Fifth Amendment rights were violated because he was not advised of his Miranda rights or his Article 31(b) rights prior to questioning by police officers.” Burke v. Nelson, No. 15-3245-JWL, 2016 U.S. Dist. LEXIS 125741, at *1 (D. Kan. Sep. 14, 2016). At the time of his first petition, Petitioner was certainly aware of the double jeopardy argument that he now makes, but he chose not to raise it to the district court. This is demonstrated by the fact that he raised this same double jeopardy argument in the Grostefon matters he submitted to the ACCA and CAAF during his military appellate process. Specifically, in his Grostefon matters submitted to the ACCA, Petitioner stated:
Again, pursuant to United States v. Grostefon, petitioner is allowed to personally present issues before the courts of military review even if appellate defense counsel believes the issues lack merit. United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
1. Appellant requests that you consider all the matters raised in his clemency submission, most notably the military judge's error in failing to dismiss the charges for a lack of jurisdiction over appellant and for failing to dismiss charges under the 5th Amendment to the Constitution prohibiting double jeopardy as appellant had been tried four times in state court before this court-martial.
(Doc. 18-1 at 48, AR 2710). Similarly, in his Grostefon matters submitted to the CAAF, Petitioner argued:
1. The military judge erred in failing to dismiss the charges for lack of jurisdiction over appellant and for failing to dismiss charges under the 5th Amendment to the Constitution prohibiting double jeopardy as appellant had been tried four times in state court before this court-martial.
(Doc. 18-2 at 9, AR 2831). Thus, Petitioner had full knowledge of the facts central to this claim. He could have raised or developed this claim in his first petition. See Kuhlmann, 477 U.S. at 444 n. 6. He simply chose not to. He cannot show cause for such a failure because he cannot point to an external impediment that prevented him from presenting his claim in a timely and procedurally proper manner. See Noble v. Barnett, 24 F.3d 582, 586 (4th Cir. 1994).
ii. Petitioner's claim in Ground Two was already denied on the merits in federal court.
Petitioner already raised his claim in Ground Two (lack of court-martial jurisdiction) in his first habeas petition in federal court. He specifically argued that he was entitled to habeas relief because “[t]he military had no morale or legal jurisdiction over me when they charged me on 8 July 2011.” (Doc. 18-2 at 91-99, AR 3067-3075). In denying Petitioner's request for habeas relief, the District Court for the District of Kansas held:
Petitioner admits this in his discussion of his “Third appeal.” (Doc. 1 at 3-4.)
Mr. Burke contends that the military lacked jurisdiction over him at the time charges were preferred against him on July 8, 2011 because his military term of service expired on May 25, 2011. The record reflects, however, that Mr. Burke was never discharged by the Army and there is no provision for an "automatic" discharge upon the expiration of an enlistment term. See Fricke, 509 F.3d at 1290 (discharge does not occur until, among other things, discharge certificate or certificate of release is ready for delivery). Thus, even assuming that Mr. Burke's term of service was scheduled to expire on May 25, 2011, the military undisputedly had jurisdiction over him on July 8, 2011. See Id. (court-martial jurisdiction continues until the service member is discharged; mere expiration of a term of enlistment does not terminate courtmartial jurisdiction); 10 U.S.C. § 802(a)(1) (all servicemen, including those awaiting discharge after expiration of their terms of enlistment, are subject to the Code of Military Justice).Burke v. Nelson, No. 15-3245-JWL, 2016 U.S. Dist. LEXIS 125741, at *2-3 (D. Kan. Sep. 14, 2016).
In affirming the district court's denial of Petitioner's habeas request, the Tenth Circuit held:
In the armed forces, formalities matter. “Service in the military, whether by enlistment or otherwise, creates a status which is not and cannot be severed by breach of contract unfortified by a proper authoritative action.” Id. Military inaction cannot substitute for the formalities that Congress has mandated for discharge. The bottom line is that "[w]hether [the military] should have discharged Petitioner or not, the fact remains that Petitioner was not discharged.” Fricke, 509 F.3d at 1290. Burke's discharge papers and final pay were never ready for delivery. He remained a member of the military until his sentence that included a dishonorable discharge became final, and thus the military had proper jurisdiction to try him.Burke v. Nelson, 684 Fed.Appx. 676, 679 (10th Cir. 2017).
In Ackerman v. Zenon, petitioner, a military prisoner proceeding pro se, sought review of the District Court for the District of Kansas' denial of his second petition for a writ of habeas corpus under 28 U.S.C. §2241. Id. The Tenth Circuit found that three of petitioner's claims “were all raised in his first petition in federal court and decided on the merits.” Id. As a result, the Tenth Circuit concluded that all three claims were “barred from review without a showing of factual innocence.” Id.; see also Kuhlmann, 77 U.S. at 454 (finding that review of a successive application for relief on claims already considered and rejected by a federal court is only appropriate when “the prisoner supplements his constitutional claim with a colorable showing of factual innocence.”).
Petitioner already argued that the court-martial lacked jurisdiction over him in both a federal district and circuit court. See Burke v. Nelson, No. 15-3245-JWL, 2016 U.S. Dist. LEXIS 125741, at *2-3 (D. Kan. Sep. 14, 2016); see also Burke v. Nelson, 684 Fed.Appx. 676, 679 (10th Cir. 2017). Like in Ackerman, his claim was decided on the merits and rejected, twice. Id. In the instant Petition, he raises the same argument, but does not supplement “his constitutional claim with a colorable showing of factual innocence.” Kuhlmann, 477 U.S. at 454.
IV. THE CLAIMS WERE FULLY AND FAIRLY CONSIDERED BY THE MILITARY COURTS
Petitioner raised both claims before the ACCA and CAAF and does not argue that the military courts either failed to adequately consider the issues involved or failed to apply the proper legal standards. Petitioner has the burden to show that military review was “legally inadequate” to resolve his claims. Burns, 346 U.S. at 146. Petitioner cannot meet this burden. Thus, Petitioner's claims must fail because they have been fully and fairly considered by the military appellate courts.
A. Petitioner's Double Jeopardy Claim Was Fully and Fairly Considered In The Military Appellate Proceedings.
Petitioner's argument that his court-martial violated the Fifth Amendment's Double Jeopardy clause was fully and fairly considered by both the ACCA and the CAAF. As discussed above, he raised this argument in the Grostefon matters he submitted to both courts. (Doc. 18-1 at 48, AR 2710) (Doc. 18-2 at 9, AR 2831). In response to all of Petitioner's Grostefon matters, the ACCA found that none of them “merit discussion or relief.” (Doc. 18-2 at 6 n. 1, AR 2821 n. 1). Likewise, the CAAF summarily denied further review of the issue after considering Petitioner's petition for grant of review, additional Grostefon matters, and the ACCA's opinion. (Doc. 18-2 at 14, AR 2839). Importantly, Petitioner does not argue that the military courts' review was “legally inadequate” to resolve his claim. Burns, 346 U.S. at 146. As result, this Court should deny Petitioner relief for his claim in Ground One because the military courts thoroughly reviewed this claim, gave it full and fair consideration, and denied it on the merits. Burns, 346 U.S. at 142.
Federal courts have “consistently held full and fair consideration does not require a detailed opinion by the military court.” See, e.g. Thomas, 625 F.3d at 671; Watson, 782 F.2d at 145 (“When an issue is briefed and argued before a miliary 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.”).
B. Petitioner's Jurisdiction Claim Was Fully and Fairly Considered In The Military Proceedings.
Petitioner also alleges that the court-martial lacked personal jurisdiction over him because he “was not a person covered by §802.” (Doc. 1 at 5.) However, like his Ground One claim, this issue was also fully and fairly considered by the military courts. Watson, 782 F.2d at 145. The record establishes that Petitioner challenged the court-martial's jurisdiction during his trial. The military trial judge conducted a hearing on the Defense Motion to Dismiss for Lack of Personal Jurisdiction and considered all exhibits presented by the Defense. (Doc. 18-1 at 6, AR 50). The military judge then made findings of fact and explained why the Army had jurisdiction over Petitioner. (Doc. 18-1 at 16, AR 68-70). Following trial, Petitioner challenged the court-martial's jurisdiction in his matters submitted to the convening authority pursuant to RCM 1105. (Doc. 18-2 at 28, AR 2876). Petitioner further raised the issue on appeal to the ACCA in his Grostefon matters. (Doc. 18-1 at 48, AR 2710). In its opinion, the ACCA acknowledged Petitioner's Grostefon matters, finding “none of which merit discussion or relief.” (Doc. 18-1 at 106 n. 1, AR 2768 n. 1). Petitioner then raised the same issue in his personal matters to the CAAF. (Doc. 18-2 at 9, AR 2831). After review of Petitioner's request, the CAAF denied further review. (Doc. 18-2 at 14, AR 2839). This issue was specifically briefed, reviewed, and disposed of by the military courts at each and every level. Petitioner fails to state any reason why these reviews were inadequate. This Court finds that the issue has been given full and fair consideration and must be dismissed.
C. Assuming Arguendo Petitioner's Claims Were Not Fully and Fairly Litigated.
Petitioner's claims received full and fair consideration on the merits and on appeal, and this Court should go no further. However, assuming arguendo this Court were to review Petitioner's claims, no relief is due.
i. Fifth Amendment's Double Jeopardy clause is not implicated because two different sovereigns prosecuted Petitioner.
The Double Jeopardy Clause of the Fifth Amendment provides that no person may be “twice put in jeopardy” “for the same offence.” The Supreme Court has “long held that a crime under one sovereign's laws is not “the same offence” as a crime under the laws of another sovereign.” Gamble v. United States, 139 S.Ct. 1960, 1964 (2019). As a result, the law is well-settled that multiple prosecutions of an accused by different sovereigns violate neither double jeopardy nor due process. See Bartkus v. Illinois, 359 U.S. 121 (1959); see also United States v. Stokes, 12 M.J. 229, 230 (C.M.A. 1982). Thus, the Fifth Amendment's shield from double jeopardy only extends to prosecutions by the same sovereign.
“Under this ‘dual-sovereignty' doctrine, a State may prosecute a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute.” Id. As separate sovereigns, the federal government and each state “[have] the power, inherent in any sovereign, independently to determine what shall be an offense against its authority and to punish such offenses, and in doing so each ‘is exercising its own sovereignty, not that of the other.'” United States v. Wheeler, 435 U.S. 313, 320 (1978) (quoting United States v. Lanza, 260 U.S. 377, 382 (1922)); see also United States v. Lara, 541 U.S. 193, (2004); Heath v. Alabama, 474 U.S. 82 (1985).
Dual state and federal prosecutions might run afoul of the general rule permitting prosecutions if one authority was acting as a “tool” of the other, or if the state prosecution merely was “a sham and a cover for a federal prosecution.” Bartkus, 359 U.S. at 123-24. The Court further stated that “at some point the cruelty of harassment by multiple prosecutions by a State would offend due process ....” Id. at 127. This exception, however, is considered extremely narrow and extraordinarily difficult to establish. See United States v. Raymer, 941 F.2d 1031, 1037 (10th Cir. 1991); see also United States v. Bernhardt, 831 F.2d 181, 182 (9th Cir. 1987); United States v. Rashed, 234 F.3d 1280, 1282 (D.C. Cir. 2000); United States v. Guzman, 85 F.3d 823, 827 (1st Cir. 1996); United States v. Figueroa-Soto, 938 F.2d 1015, 1019 (9th Cir. 1991). It is limited “to situations in which one sovereign so thoroughly dominates or manipulates the prosecutorial machinery of another that the latter retains little or no volition in its own proceedings.” Guzman, 85 F.3d at 827. Even in Guzman, where the evidence indicated that an agent of the United States traveled to the island of St. Maarten, alerted St. Maarten Police to the defendant's presence on a ship smuggling drugs, participated in a search for drugs on board, and testified at trial, the court held that those facts demonstrated “nothing more than the rendering of routine intergovernmental assistance.” Id. at 828. The court concluded that “[cooperative law enforcement efforts between independent sovereigns are commendable, and, without more, such efforts will not furnish a legally adequate basis for invoking the Bartkus exception to the dual sovereign rule.” Id. Some courts have even questioned whether the exception exists at all. See United States v. Brocksmith, 991 F.2d 1363, 1366 (7th Cir. 1993); United States v. Patterson, 809 F.2d 244, 247 n.2 (5th Cir. 1987).
Petitioner essentially argues that, because he was tried by the Commonwealth of Kentucky in Hardin County on four different occasions (all resulting in a mistrial), the Army's subsequent prosecution at a general court-martial violated the Fifth Amendment's Double Jeopardy Clause. This is simply wrong. The Commonwealth of Kentucky prosecuted Petitioner under state law. The United States Army prosecuted Petitioner under federal law (UCMJ). Petitioner does not allege that the Commonwealth of Kentucky was acting as a tool of the United States Army or vice-versa. Simply put, based on the principle of dual sovereigns, the Fifth Amendment's Double Jeopardy Clause is inapplicable here. This claim should be dismissed.
ii. The Army had jurisdiction over Petitioner during his court-martial.
Petitioner alleges that “[o]n May 25, 2011 my ETS [Expiration Term of Service] was up or unequivocally passed and I was no longer a member of the U.S. Army. . . . I was no longer a covered person subject to 10 USC § 801 et. seq. and the U.S. Army did not have jurisdiction over me or to prosecute me.” (Doc. 1 at 5.) However, it is clear from the record that the Army did, in fact, have jurisdiction over Petitioner at all relevant times. Jurisdiction under the UCMJ exists over “members of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment.” Article 2, UCMJ, 10 U.S.C. § 802 (a) (1). Military jurisdiction continues until a servicemember's military status is terminated by discharge from his enlistment. United States v. Poole, 30 M.J. 149, 149 (C.M.A. 1990). There is no “constructive discharge” when a servicemember is retained on duty beyond the end of an enlistment. Id. The military's jurisdiction over a servicemember does not necessarily cease with the “mere expiration of the period of enlistment.” United States v. Klunk, 3 U.S.C.M.A. 92, 94, 1953 CMA LEXIS 765, *3-4, 11 C.M.R. 92, 94 (C.M.A. 1953). “Certain formalities of discharge are distinctly contemplated and, while a military person is awaiting their accomplishment, he remains fully subject to the terms of the Uniform Code of Military Justice, as specifically provided in its Article 2(1).” Id. “A person subject to the Code continues in service until the formalities of a discharge or release from active duty have been met or he objects to his continued retention and a reasonable time expires without appropriate action by the Government.” United States v. Hutchins 4 M.J. 190, 192 (C.M.A. 1978). A member of an armed force may not be discharged or released from active duty until his discharge certificate or certificate of release from active duty, respectively, and his final pay or a substantial part of that pay, are ready for delivery to him or his next of kin or legal representative. United States v. King, 27 M.J. 327, 329 (C.A.A.F. 1989).
The record makes it clear that the military had jurisdiction over Petitioner at the time of his court-martial. Petitioner enlisted in the Army on May 26, 2006, for a period of five years. (Doc. 18-1 at 16, AR 68) (Doc. 18-2 at 88, AR 2960). He had no subsequent reenlistments. Based on this, Petitioner's expiration term of service (ETS) date was May 25, 2011. (Doc. 18-1 at 17, AR 69). At the time of his ETS, Petitioner was confined by the Commonwealth of Kentucky on state criminal charges; however, on May 20, 2011, Petitioner, via his attorney, sent an email letter to his commander notifying the commander of his desire to re-enlist. (Doc. 18-1 at 9, AR 57) (Doc. 18-1 at 17, AR 69). On June 29, 2011, the state criminal charges pending against Petitioner were dismissed without prejudice. Petitioner was released by the Commonwealth of Kentucky into the custody of the U.S. Army. (Doc. 18-1 at 17, AR 69). Charges were preferred against Petitioner on July 8, 2011. (Doc. 18-1 at 17, AR 69) (Doc. 18-2 at 18, AR 2851). At no time prior to preferral of charges did Petitioner receive a discharge certificate or any other notice of discharge. (Doc. 18-1 at 17-18, AR 69-70). Furthermore, at no time prior to July 29, 2011, did Petitioner object to his continued retention. (Doc. 18-1 at 17, AR 69). To the contrary, Petitioner stated, through his attorney, that he wished to reenlist and remain in the Army. Id. Therefore, the record shows that the Army had personal jurisdiction over Petitioner at the time charges were preferred. This jurisdiction continued through trial and punishment. Like Petitioner's argument in Ground One, his argument in Ground Two is simply wrong. It should be denied.
In actuality Petitioner never reached his ETS date on May 25, 2011. An enlisted member confined by civilian authorities for more than one day in connection with a trial must make up any time lost during that period of confinement unless that confinement ends in a final disposition of the charge or there is an acquittal. 10 U.S.C. § 972 (2006). Petitioner was confined by the Commonwealth of Kentucky on October 15, 2007. (Doc. 18-1 at 16, AR 68). On June 29, 2011, the Commonwealth of Kentucky dismissed the criminal charge against Petitioner without prejudice and released Petitioner from confinement. (Doc. 18-1 at 17, AR 69). This dismissal did not bar further state proceedings against Petitioner and, therefore, it was not a final disposition of the charge, nor is it an acquittal. Accordingly, pursuant to 10 U.S.C. § 972, when Petitioner returned to military control on June 30, 2011, he was required to make up the time spent in civilian confinement. On July 26, 2011, a computation was completed and determined that Petitioner's ETS date, based on the 1,354 days he spent in civilian confinement, was extended to March 1, 2015. (Doc. 18-1 at 13, AR 61).
V. CONCLUSION
The Court finds it appropriate to deny the Petition because it abuses the writ of habeas corpus. But even if not an abuse, the Petition should be denied because the stated grounds for relief received full and fair consideration by the military courts. Assuming arguendo Petitioner's claims were not fully and fairly litigated by the military courts, Petitioner's grounds for relief are without merit. Petitioner's court-martial did not violate the Fifth Amendment's Double Jeopardy Clause, and the military possessed jurisdiction over Petitioner at the time he was charged and, therefore, throughout his trial and sentence.
VI. RECOMMENDATION
For the reasons delineated above the Magistrate Judge recommends that the District Judge enter an order DISMISSING Petitioner's Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1) because the stated ground for relief received full and fair consideration by the military courts.
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No replies shall be filed unless leave is granted from the District Court. If objections are filed, the parties should use the following case number:
CV-22-00208-TUC-RCC
Failure to file timely objections to any factual or legal determination for the Magistrate Judge may result in waiver of the right of review. The Clerk of the Court shall send a copy of this Report and Recommendation to all parties.