Gray v. PayneIn 2018, Gray pled guilty to allegations, including sexual assault of a child, sexual assault, sexual assault consummated by battery, assault, prejudice to good order and discipline, and failure to obey an order. The victim—his adopted stepdaughter—was between the ages of 13 and 16 when Gray sexually assaulted her. At age 16, she gave birth to Gray's biological daughter, as confirmed by DNA testing. In exchange for Gray's plea, the Army agreed to dismiss without prejudice the remaining charges, which included rape of a child, sexual abuse, and additional sexual assault and assault charges. Those charges related to another adopted stepdaughter and the victim's mother. A military judge sentenced Gray to a reduction in rank, 44 years' confinement, and a dishonorable discharge with forfeiture of all pay and allowances. His appeal to ACCA on IAC grounds failed and CAAF denied his petition.** He claimed defense counsel provided ineffective assistance by advising him to plead guilty to offenses he did not commit, to agree to an incorrect stipulation of facts, and to lie during his providence inquiry with the military judge. In a shift from his previous statements, he insisted the sex with the victim was consensual and occurred only after her sixteenth birthday. His pro se petition for habeas corpus followed. The Tenth Circuit denied his appeal of the district courts denial of his petition. "Federal courts are empowered under 28 U.S.C. § 2241 to entertain habeas petitions from military prisoners. But our review of court-martial proceedings is very limited." Santucci, 66 F.4th at 853 (internal quotation marks omitted); see also id. (describing the standard of review as "deferential" and noting that "the deference we give to military tribunals is even greater than that we owe to state courts" (internal quotation marks omitted)). Gray's inability to satisfy the second and fourth factors of Dodson caused his petition to fail. The district court found that the military courts adequately considered Gray's ineffective assistance claim. It highlighted the ACCA's efforts to supplement the record by requesting affidavits from Gray's counsel and concluded that the ACCA's opinion shows that it rejected the claim only after a complete record analysis—thus giving full and fair consideration to his claim. Gray's claim that the district court should have granted discovery also failed. Gray's discovery motion sought a transcript of a phone call between another USDB inmate and the victim, during which the victim supposedly told the inmate that she did not want to testify but her mother made her do so. The district court found that he had not shown good cause for discovery because (1) "the alleged statement by the victim does not suggest that petitioner did not commit the crime," and (2) "the facts at issue in the discovery request do not bear on the Dodson factors that preclude . . . merits review." ** We have noted the potential change to Supreme Court direct appeal based on the recent conference committee draft of the NDA 2024. See Gray v. Payne, No. 23-3079, 2023 U.S. App. LEXIS 32150, at *3 n.2 (10th Cir. Dec. 5, 2023).
A military judge, sitting as a general court-martial, convicted Appellant, contrary to his pleas, of providing alcohol to minors on divers occasions; wrongfully distributing marijuana on divers occasions; wrongfully distributing psilocybin (mushrooms) on divers occasions; wrongfully using mushrooms on divers occasions; sexually assaulting a child, GB; behaving in a disgraceful and dishonorable manner that seriously compromised his standing as an officer by wrongfully and dishonorably organizing individuals into a violent gang; wrongfully communicating a threat to AL on divers occasions; wrongfully communicating to MH a threat to injure ME by paying someone to assault ME; receiving consideration for arranging for KW, PW, WK, and other unnamed persons to engage in sexual intercourse with others; unlawfully entering ML's house; sexually assaulting a child, FT; wrongfully threatening to hurt, injure, or kill Captain (Capt) CM; wrongfully threatening to hurt, injure, or kill Special Agent (SA) JG; and wrongfully threatening to hurt, injure, or kill Airman Basic (AB) JS, in violation of Articles 92, 112a, 120b, 133, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 912a, 920b, 933, 934.3 The military judge sentenced Appellant to a dismissal, confinement for 25 years, and forfeiture of all pay and allowances. The military judge credited Appellant with 60 days of pretrial confinement credit. The convening authority approved the adjudged sentence. United States v. Brown, No. ACM 38864, 2017 CCA LEXIS 454, at *1-3 (A.F. Ct. Crim. App. July 6, 2017).
CAAF ultimately denied his petition for review. 78 M.J. 162 (C.A.A.F. 2018). There being no avenue to the Supreme Court. Unlike every other system in the U.S., an intermediate court, the CAAF, acts as a gatekeeper. So off to federal district court went Brown with a habeas petition. He did not fair well in the Ninth. See Brown v. United States, No. 21-55727 (9th Cir. Sept. 20, 2022) (unpub.). |
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