Court-Martial Trial Practice Blog
Here is another case where a military prisoner has sought habeas corpus relief, in the Kansas District Court (the Tenth Circuit).
Valois v. Commandant, USDB
The case provides a fascinating discussion of the maze and complexities of DoD and Service regulations the award of good time credit, work abatement, and such, applicable to clients confined at the USDB.
Valois challenges the amount of good conduct time (“GCT”) credit that will be administratively deducted from his sentence.
On June 30, 2006, Valois was transferred to the United States Disciplinary Barracks (“USDB”) in Fort Leavenworth, Kansas, where he is presently serving his sentence. On May 11, 2010, Valois filed a claim for administrative relief with the Commandant of the USDB, contesting the amount of good time that was being credited against his sentence. This request was denied on May 12, 2010. Valois repeated the request on May 14, 2010, and it was again denied on May 26, 2010. On June 17, 2010, Valois filed a complaint under Article 138 of the UCMJ on June 17, 2010, which was denied on August 5, 2010. He filed additional Article 138 complaints on June 8 and 28, 2011, both of which were denied. On September 12, 2012, the Air Force Court of Criminal Appeals denied his pro se Writ of Habeas Corpus without prejudice due to lack of counsel. Valois submitted a motion for reconsideration but on February 11, 2013, sought dismissal. Four days later, on February 15, 2013, Valois filed the instant petition.
In his petition, Valois asserts two arguments. First, he contends he is entitled to GCT credit of ten days rather than five days per month. Specifically, he contends that the Secretary of the Air Force has the authority to determine the award of GCT, and that Air Force Joint Instruction (“AFJI”) 31-215, which provides for GCT at the rate of ten days per month, controls. Valois argues that later amendments or modifications to AFJI 31-215 were either invalid or have expired. Second, Valois argues that changes in GCT after his conviction constitute an ex post facto violation of the Constitution.
The arguments asserted by Valois are related. First, he contends that Congress has authorized the Secretary of each military service group to establish military correctional facilities and provide regulations for their operation. From this, he reasons that the Secretary of the Air Force controls the award of GCT. Next, Valois contends that Air Force regulations, not those of the Department of Defense (“DoD”), control his GCT. He argues that DoD regulations, which purportedly amended the Air Force regulations, are not valid because they expired and were not properly activated again. Finally, based upon these arguments, Valois contends that the less generous GCT rate under the DoD regulations illegally increases his time in confinement in violation of the Ex Post Facto Clause of the United States Constitution.
The Court first examines the maze of GCT regulations that the Air Force and DoD have issued over the last 50 years. These regulations are not always uniform and their effective dates and subsequent cancellations are often difficult to discern. The Honorable Richard D. Rogers has previously explained the problem with military regulations on issues of parole and GCT:
[T]he military regulations governing parole and good time for prisoners at the USDB are difficult to locate and decipher. Piecemeal changes have been made numerous times; some are Department of Defense directives while others are Army and Air Force regulations. Some contain disorganized provisions on the same subject, some are poorly written with seeming inconsistencies, and some subjects seem not to be adequately addressed. These regulations are not in the Code of Federal Regulations or available to the court through normal research channels. Instead, the court must rely on excerpts selected by the parties and provided with the pleadings.
Young v. Nickels, 59 F. Supp.2d 1137, 1139 (D. Kan. 1999).
Like military counsel, “With some trepidation, the Court enters the military labyrinth of regulations.” After entering and leaving that labyrinth the court denies relief.
Part of Valois’ claim is that he received IAC when taking his PTA because he was wrongly advised of his likely good time credit. The court cites to United States v. Griffitts, No. 201000673, 2011 WL 4985719 at * 4 (N-M. Ct. Crim. App. Oct. 20, 2011)(defense counsel’s mistaken reliance on outdated Navy instruction which awarded ten days GCT credit did not lead to improvident plea and was not ineffective assistance of counsel).