Full and fair
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).
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).
If the claim is jurisdictional, the full and fair standard doesn't apply - the standard of review is de novo.
Donald G Rehkopf, Jr.
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.
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