Court-Martial Trial Practice Blog
What happened after—trial, CCA review, and in the case below at CAAF. From time to time I find it interesting to follow habeas cases involving a military petitioner. So, here is Santucci v. Commandant, No. 19-3116-JWL (D.C. Kan. May 26, 2020).
The ACCA decision.
The CAAF decision without opinion, is at 2017 CAAF LEXIS 522 (C.A.A.F. May 4, 2017).
“In the above referenced case, on further consideration of the granted issues, and in view of United States v. Ortiz, 76 M.J. 189 (C.A.A.F. 2017), it is ordered that the decision of the United States Army Court of Criminal Appeals is hereby affirmed.”
Generally, Ortiz was resolved on its factual record and distinguished other cases where a Hills error was found prejudicial. The ACCA said,
At ACCA:
“[T]he military judge never issued a ruling admitting evidence under Mil. R. Evid. 414. Instead, he set conditions under which propensity evidence could be used. The conditions were a balance of the things allowable under Mil. R. Evid. 414 and the due process rights of appellant. Presumably, had the government met the conditions, the military judge would have then allowed the government to argue propensity and that decision would have been error, which is to say the military judge’s conditional ruling could have become an error.
Reviewing the record, we find that though the government filed notice of an intent to offer evidence under Mil. R. Evid. 414, no such evidence was actually offered or admitted. The closest the government came to connecting the offenses was in the last line of argument where the trial counsel stated appellant was not a first time offender. The military judge immediately challenged the trial counsel on this statement. The military judge’s questions of the trial counsel and the trial counsel’s retraction of this statement make it clear that the military judge was not considering this a permissible argument under any rule, to include Mil. R. Evid. 414.”
The government case was strong and the defense weak and it was a judge alone case. United States v. Ortiz, No. ARMY 20150267, 2017 CCA LEXIS 788, at *10-11 (A. Ct. Crim. App. Dec. 20, 2017). Back to the District.
“Petitioner presents three claims for relief: (1) the military judge erred in failing to provide an instruction on mistake in fact; (2) the military judge erred in giving an erroneous propensity instruction; and (3) petitioner’s trial defense counsel provided ineffective assistance.”
Quite few of our former clients submit pro se petitions for a writ of habeas corpus. Most of them go the way of Santucci. For those who wonder, the standard of review in the 10th Circuit (which covers the USDB) is pretty standard and strict. Other circuits follow the 10th and adopt it’s standards. When you talk to your clients about “going to a real court” or “I’ll file a writ” here is the standard their case will be reviewed under–and which was used in Santucci.
“A federal habeas court’s review of court-martial proceedings is narrow. Thomas v. U.S. Disciplinary Barracks, 625 F.3d 667, 670 (10th Cir. 2010). The U.S. Supreme Court has explained that “[m]ilitary law, like state law, is a jurisprudence which exists separate from the law which governs in our federal judicial establishment,” and that “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.” Nixon v. Ledwith, 635 F. App’x 560, 563 (10th Cir. Jan. 6, 2016)(unpublished)(quoting Burns v. Wilson, 346 U.S. 137, 140 (1953)).
The federal habeas court’s review of court-martial decisions generally is limited to jurisdictional issues and to a determination of whether the military courts gave full and fair consideration to the petitioner’s constitutional claims. See Fricke v. Secretary of Navy, 509 F.3d 1287, 1290 (10th Cir. 2007).*
“[W]hen a military decision has dealt fully and fairly with an allegation raised in [a habeas] application, it is not open to a federal civil court to grant the writ simply to re-evaluate the evidence.” Thomas, 625 F.3d at 670; see also Watson v. McCotter, 782 F.2d 143, 145 (10th Cir. 1986). Instead, it is the limited function of the federal courts “to determine whether the military have given fair consideration to each of the petitioner’s claims.” Thomas, id. (citing Burns, 346 U.S. at 145). A claim that was not presented to the military courts is deemed waived. Id. (citing Roberts v. Callahan, 321 F.3d 994, 995 (10th Cir. 2003)).”
*A historical tidbit. LCDR Fricke was a resident of the USDB (United States v. Fricke, 53 M.J. 149 (C.A.A.F. 2000)—while confined he upset a player during an inmate baseball game who decided to use a baseball bat to remedy the situation with deathly consequences. Fricke was a month away from being released from the USDB. His assailant was Chapman a resident for life for taking a life. Here’s a link to United States v. Chapman’s first case [https://afcca.law.af.mil/content/afcca_opinions/cp/chapman-35564.u.pdf]. The Army conducted the second Chapman trial.