Lewis v. United States (bit old, but interesting)

Lewis v. United States, 985 F.3d 1153 (9th Cir. 2021).

SUMMARY**
Habeas Corpus
The panel affirmed the district court's denial of a habeas corpus petition brought by Senior Airman James Lewis, United States Air Force, challenging his 2012 court-martial conviction for one count of aggravated sexual assault and two counts of wrongful sexual conduct.

In an unrelated case decided after the conviction became final, United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), the Court of Appeals for the Armed Forces held unconstitutional a pattern jury instruction on Military Rule of Evidence ("M.R.E.") 413 under which jurors may consider evidence of any one charged sexual offense as showing the defendant's propensity to have committed any of the other charged sexual offenses.

In his federal habeas petition filed after Hills was decided, Lewis argued that the M.R.E. 413 propensity instruction given at his court-martial was in violation of the Fifth Amendment as interpreted in Hills, and that he had been denied effective assistance of counsel on direct appeal when his appellate counsel failed to challenge the constitutionality of such instruction.

The panel held that Hills—which held that the use of a charged sexual offenses to show propensity to commit other charged sexual offenses violated the presumption of innocence and right to have all findings made clearly beyond a reasonable doubt, as guaranteed by the Fifth Amendment—announced a new rule, but that the rule does not fall under either exception for non-retroactivity, as it is neither a substantive rule nor a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding. The panel concluded that Hills therefore does not apply retroactively in Lewis's collateral attack on his court-martial conviction.