National Institute of Military Justice
  • Home
  • About
    • Officers
    • Board of Directors
    • Fellows
  • Orders Project
    • Contact Us
    • Who We Are
    • Sourcebook
  • Trans Rep. Project
  • CAAFlog
  • Global Reform
  • Library
    • Amicus Briefs
    • Position Papers & Letters
    • Reports
    • Gazette
    • Miscellaneous
    • General Military Law
  • Links
    • State Codes
    • Non-DoD Organizations
    • Foreign Systems
  • Prizes
  • Contact Us
  • Donate
  • Home
  • About
    • Officers
    • Board of Directors
    • Fellows
  • Orders Project
    • Contact Us
    • Who We Are
    • Sourcebook
  • Trans Rep. Project
  • CAAFlog
  • Global Reform
  • Library
    • Amicus Briefs
    • Position Papers & Letters
    • Reports
    • Gazette
    • Miscellaneous
    • General Military Law
  • Links
    • State Codes
    • Non-DoD Organizations
    • Foreign Systems
  • Prizes
  • Contact Us
  • Donate

CAAFlog

Full and fair

11/17/2022

2 Comments

 
United States v. Ballard, 79 M.J. 675 (A. F. Ct. Crim. App. 2019) pet. denied 79 M.J. 420 (C.A.A.F. 2020).
​Ballard pled guilty to (1) one specification of rape of a child, six specifications of aggravated sexual contact with a child, and one specification of indecent liberties with a child, in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920;1 (2) one specification of rape of a child and three specifications of sexual abuse of a child, in violation of Article 120b, UCMJ, 10 U.S.C. § 920b;2 and (3) three specifications of sodomy of a child, in violation of Article 125, UCMJ, 10 U.S.C. § 925.3 The military judge sentenced Appellant to a dishonorable discharge, confinement for 50 years and one day, forfeiture of all pay and allowances, and reduction to the grade of E-1. The convening authority approved only 40 years of confinement in accordance with the PTA and approved the remainder of the adjudged sentence.
​On appeal, he argued a lack of authority to recall him for prosecution from retirement and therefore lack of jurisdiction. AFCCA denied relief and CAAF denied his petition.
 
Ballard then filed a pro se petition for habeas corpus against the Secretary of the Air Force in the U. S. District Court for the District of Columbia.
 
In dismissing the petition the district court relied on three principles: a military prisoner (or one otherwise entitled to habeas relief) must file under 28 U.S.C. § 2241 not 2255, the respondent is the person in charge of the confinement facility, and venue is where the prison facility is located.
 
Ballard must now file in the federal district court in Kansas; where he is likely to lose based on the 10th Circuit’s case law regarding “full and fair consideration” of his legal issues in the military courts. Interestingly, the court did write on the merits of the claim and considered the Circuit’s decision in Larrabee.
A federal court may grant habeas corpus relief where a prisoner demonstrates that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c). However, a federal court's review of court-martial proceedings is limited. Thomas v. U.S. Disciplinary Barracks, 625 F.3d 667, 670 (10th Cir. 2010). The 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 "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, 73 S. Ct. 1045, 97 L. Ed. 1508 (1953)). "[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.2d at 670 (quoting Burns, 346 U.S. at 142). Instead, it is the limited function of the civil courts "to determine whether the military have given fair consideration to each of the petitioner's claims." Id. (citing Burns, 346 U.S. at 145).
​
For claims that were presented to the military courts, this court must determine whether those courts "fully and fairly reviewed" each claim. Id. If a claim was presented but not given full and fair consideration, then "the scope of review by the federal civil court expand[s]." Id. (citing Lips v. Commandant, 997 F.2d 808, 811 (10th Cir. 1993)).
Drinkert v. Johnston, No. 22-3045-JWL, 2022 U.S. Dist. LEXIS 152522, at *9 (D. Kan. Aug. 24, 2022). For those who wonder about the many times an appellate court has said that 'it considered the issues but find they lack merit--that is all' or words to that effect.
"An issue has been given full and fair consideration when it has been briefed and argued at the military court, even if that court summarily disposed of the issue." Williams v. Ledwith, 671 F. App'x 719, 721 (10th Cir. 2016) (unpublished) (citing Roberts, 321 F.3d at 997; Watson v. McCotter, 782 F.2d 143, 145 (10th Cir. 1986)); see also Squire, 674 F. App'x at 826 ("Even a military court's summary disposition of a claim can show adequate consideration of the issues involved."); Burke v. Nelson, 684 F. App'x 676, 680 (10th Cir. 2017) (unpublished) (citing Watson, 782 F.2d at 145) ("[W]hen it comes to court-martial rulings on constitutional claims, our review is sharply limited: so long as the claim was briefed and argued before a military court, we must deny the claim.").
Id, at *11 (emphasis added).
2 Comments
Robert Feldmeier
11/17/2022 19:18:26

If the claim is jurisdictional, the full and fair standard doesn't apply - the standard of review is de novo.

Reply
Donald G Rehkopf, Jr.
11/26/2022 15:36:56

Drinkert filed an appeal at the 10th Circuit on Oct 24, 2022 (No. 22-3208). The 10th Circuit's "full and fair consideration" jurisprudence is all over the place, beginning with their misreading of the source of the "full and fair" principle in Burns v. Wilson. However, that Circuit's jurisprudence on this, where an appellant has been represented by counsel accurately points out that questions involving legal or constitutional issues, are not barred from Article III, court's review of habeas petitions.

What is barred, consistent with Burns and other cases, including the Tenth Circuits, is review of factual matters that have been given "full and fair" consideration by military courts - something that is frequently stated in CCA opinions, but which in fact is meaningless in most cases, especially in, e.g., IAC cases where there is no DuBay hearing to develop a factual record.

Reply

Your comment will be posted after it is approved.


Leave a Reply.

    Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
    Picture
    Co-editors:
    Phil Cave
    Brenner Fissell
    Links

    ​SCOTUS
    CAAF

    -Daily Journal
    -2025 Ops
    ​
    ACCA
    AFCCA
    CGCCA
    NMCCA
    JRAP
    JRTP


    UCMJ

    Amendments to UCMJ Since 1950 (2024 ed.)

    Amendments to RCM Since 1984 (2024 ed.)

    Amendments to MRE Since 1984 (2024 ed.)
    ​
    ​
    MCM 2024
    ​
    MCM 2023

    MCM 2019
    MCM 2016
    MCM 2012
    MCM 1995

    ​
    UMCJ History

    Global Reform
    Army Lawyer
    JAG Reporter
    ​
    Army Crim. L. Deskbook

    J. App. Prac. & Pro.

    Dockets

    Air Force

    Art. 32.
    Trial.

    Army

    Art. 32.
    Trial.

    Coast Guard

    Art. 32.
    Trial.
    ​"Records."

    Navy-Marine Corps

    Art. 32.
    Trial.
    "Records."

    Archives

    June 2025
    May 2025
    April 2025
    March 2025
    February 2025
    January 2025
    December 2024
    November 2024
    October 2024
    September 2024
    August 2024
    July 2024
    June 2024
    May 2024
    April 2024
    March 2024
    February 2024
    January 2024
    December 2023
    November 2023
    October 2023
    September 2023
    August 2023
    July 2023
    June 2023
    May 2023
    April 2023
    March 2023
    February 2023
    January 2023
    December 2022
    November 2022
    October 2022
    September 2022
    August 2022
    July 2022
    June 2022
    May 2022
    April 2022
    March 2022

    Categories

    All
    ByTheNumbers
    Case2Watch
    CrimLaw
    Evidence
    Fed. Cts.
    Habeas Cases
    IHL/LOAC
    Legislation
    MilJust Transparency
    NewsOWeird
    Opinions ACCA
    Opinions-ACCA
    Opinions AFCCA
    Opinions CAAF
    Opinions CGCCA
    Opinions NMCCA
    Readings
    Sentenciing
    Sex Off. Reg.
    Sexual Assault
    Supreme Court
    Unanimous Verdicts

    RSS Feed

Proudly powered by Weebly