U.S. Dist. Ct. S.C.

Gere v. CO, NAVCONBRIG Charleston.

Gere is currently confined in the Navy Consolidated Brig in Charleston, South Carolina, brings this application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Respondent moved for summary judgment.

Petitioner presents two grounds for relief: (1) he was deprived of due process of law when the military judge denied defense counsel's request to compel production of SN's cell phone and (2) defense counsel was ineffective for not asserting prosecutorial misconduct based on the prosecution's failure to secure SN's cell phone. Respondent asserts the discovery issues were extensively litigated throughout Petitioner's military proceedings and thus are not properly reviewable here. Respondent also contends Petitioner did not argue his defense counsel was ineffective before the military courts and thus defaulted that claim.

The magistrate judge hearing the case recommend granting the dismissal motion.

In 2016, Petitioner's girlfriend's teenage daughter, SN, accused Petitioner of sexually assaulting her. In January 2019, Petitioner was found guilty by a military judge, sitting as a general court-martial, of attempted sexual assault of a child, sexual abuse of a child, and sexual assault of a child. Petitioner has exhausted his military appeals and now presents habeas claims concerning a discovery dispute over messages allegedly contained on SN's cell phone and ineffective assistance of counsel.

In 2020, AFCCA affirmed Gere's findings and sentence. CAAF denied review 81 M.J. 168 (C.A.A.F. 2021). The denial of review forclosed Gere from a direct appeal to the U.S. Supreme Court. A direct appeal available to every person, civilian or military and detainee at Gitmo, convicted in their courts. At AFCCA Gere had raised the following issues.

(1) Whether the military judge erred by denying a defense motion to compel production of a cellular phone belonging to the victim, SN.

(2) Legal and factual sufficiency.

(3) whether the military judge erred by admitting expert testimony at sentencing regarding the long-term effects of child sexual abuse in general.

(4) Post trial error.

(5) Post trial error. 

The discovery issues arise from a common problem in many cases involving smartphones and various applications such as Snapchat. Remember, MCIOs almost never ask a victim for permission to do a DFE on their smartphone. And of course prosecutors never use their power to obtain a search warrant. Often times they will rely on the victim's word or cherry-picked screenshots. This failure of course can impact the defense months later when charges are referred--in Gere, about 36 months later.

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