Air Force Court of Criminal Appeals

In in re Kawai, a pro se petition,

​On 29 January 2022, Petitioner requested this court grant him extraordinary relief in what he styled as a “Motion for Compassionate Release and Reduction in Sentence,” pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), and the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018). This court received, by mail, Petitioner’s request on 2 March 2022, and docketed his petition on 11 March 2022; the Court did not order briefs by the Government or Petitioner in response. We conclude we do not have jurisdiction to adjudicate Petitioner’s request and deny the petition. 

The petitioner was convicted in 2001 of various offenses related to his killing of another Airman. He is now at the U.S.P., Atwater, CA.

On 15 April 2021, Petitioner requested that the Federal Bureau of Prisons (BOP) make a motion on his behalf for a sentence reduction pursuant to the “extraordinary or compelling circumstances element codified in 18 U.S.C. § 3582(c)(1)(A)(i).” Petitioner argued he was a good candidate for compassionate release based on (1) the coronavirus disease 2019 (COVID-19) pandemic; (2) his age at the time his crimes were committed; (3) his lengthy term of imprisonment; (4) his rehabilitation efforts; and (5) his belief that he was not a public safety risk. On 25 May 2021, the BOP denied his request, stating that “[r]eleasing [Petitioner] prior to the completion of [his] sentence would greatly minimize the severity of the offense” and after considering the above factors, it “determined that [his] release would pose a danger to the safety of others or the community.” n.3.

n.3. Petitioner requested that the CAAF provide “extraordinary relief in the nature of a motion for compassionate release and reduction in sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i).” On 29 September 2021, our superior court dismissed Petitioner’s request for lack of jurisdiction. In re Kawai, 82 M.J. 28 (C.A.A.F. 2021) (mem).

As a collateral impact of courts-martial being ad hoc tribunals there is a problem.

Petitioner’s request for compassionate release under these particular statutes is a case of first impression for this court. However, while Petitioner did not style his request as a writ of habeas corpus, we will treat his petition as analogous to such in order to resolve the question of whether we have jurisdiction. The problem for Petitioner is the review of a motion for compassionate release is jurisdictional. “A motion to file for compassionate release can only be brought before the sentencing judge.” Ferguson v. United States, No. 1:22-cv10542, 2022 U.S. Dist. LEXIS 50986, at *2 (E.D. Mich. 21 Mar. 2022). Yet, “[g]eneral courts-martial are ad hoc proceedings which dissolve after the purpose for which they were convened has been resolved.” Witham v. United States, 355 F.3d. 501, 505 (6th Cir. 2004). Because Petitioner’s court was dissolved after his case, and because his case is final under Article 76, ​UCMJ, there is no sentencing court within the military service courts in which Petitioner may bring a motion under 18 U.S.C. § 3582(c)(1)(A)(i). 

Query: If Congress created standing military trial courts, coulld it avoid a problem for future 'Kawai's?'

However, Congress has charged federal district courts with exercising jurisdiction over habeas corpus petitioners who are imprisoned as a result of court-martial convictions. See Burns v. Wilson, 346 U.S. 137, 139 (1953); Chapman, 75 M.J. at 601; see also Gilliam v. Bureau of Prisons, No. 99-1222, 2000 U.S. App. LEXIS 3684, at *3 (8th Cir. 10 Mar. 2000) (unpub. op.). Federal district court is also the proper venue for Petitioner’s motion. See Owens, 2020 U.S. Dist. LEXIS 61460, at *2.

​Whether Petitioner styled his request as a writ of habeas corpus under 18 U.S.C. § 2241, or as a motion for compassionate release, the jurisdictional issue for this court is the same. We do not have jurisdiction over Petitioner’s request.

Cheers.