Brown v. Kendall, et al
Brown is a decision from a district court in Maryland on a military habeas corpus petition (2023 U.S. Dist. LEXIS 52797). (United States v. Brown (AFCCA).)
Jamie L. Brown filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the validity of his court-martial by the United States Air Force (the "Air Force"). ECF 1 & 4. The respondents, Frank Kendall, Secretary of the Air Force, and Thomas Shubert, President of the Air Force Clemency & Parole Board, move to dismiss the petition. ECF 16. The motion is fully briefed. ECF 18 & 21. No hearing is necessary. See Loc. R. 105.6 (D. Md. 2021). For the following reasons, the petition is dismissed for failure to state a claim.
Brown is a useful review of how military habeas corpus petitions might be disposed of. Brown was on parole when he filed his petition, but was released from parole three days after the filing.
1. Brown continues the principle that the petitioner does not have to be confined to seek habeas corpus.
2. Brown restates the principle that it is the petitioner's status at the time of filing that gives jurisdiction.
3. Brown holds that it is the president of the Clemency & Parole Board (not the Service secretary) who is the "immediate custodian" for habeas purposes for those on parole. If the person is still confined then it is the commander or commanding officer of the confinement facility who holds the body.
Brown claims that the military judge overseeing the court-martial panel in his case violated his due process rights by (1) permitting the panel to return findings by less than a unanimous verdict; (2) instructing the panel as to uncharged theories of criminal liability; and (3) excluding potentially exculpatory evidence and refusing to permit Brown to cross examine a witness based on that evidence. The respondents argue that Brown's claims were fully and fairly considered by the military courts.
The district court judge follows the 10th Circuit jurisprudence because (in a footnote)
Courts "consistently justify adoption of the Tenth Circuit's standard on the basis that the United States Disciplinary Barracks are located at Fort Leavenworth, Kansas, which has enabled the Tenth Circuit to develop expertise and a significant body of case law in this area." Anderson v. Bolster, No. 1:19cv75 (LO/TCB), 2020 WL 5097516, at *4 n.4 (E.D. Va. Aug. 27, 2020), aff'd, No. 20-7707, 2022 WL 4998074 (4th Cir. Oct. 4, 2022) (unpublished).
Ultimately the district court judge determined that all the claims had been fully and fairly considered and not subject to redetermination in a habeas petition.
In response to an earlier post, Rob Feldmeier (who represented Brown at AFCCA and before the district court) noted that "If the claim is jurisdictional, the full and fair standard doesn't apply - the standard of review is de novo."
Brown attempts to sidestep [this] problem by arguing that his Ramos claim is a jurisdictional claim and not subject to the Burns full-and-fair-consideration analysis. He cites Larrabee v. Braithwaite, 502 F. Supp. 3d 322, 327 (D.D.C. 2020), rev'd sub nom. Larrabee v. Del Toro, 45 F.4th 81 (D.C. Cir. 2022), for the proposition that a court-martial is void if the statute creating it is unconstitutional and void "because courts-martial have no inherent jurisdiction or independent existence." ECF 18, at 2-3. He contends that the court-martial in his case is void because "the portion of the UCMJ authorizing non-unanimous panel verdicts is unconstitutional and void" under Ramos. Id. In short, he reads Larrabee as rendering any constitutional challenge to the statutory procedures of the military courts a jurisdictional claim. But Larrabee did not say that.
Within the decision the district court judge hews to
the Tenth Circuit's recent and repeated affirmations that full and fair consideration is given when a claim is adequately and thoroughly briefed, even if the military courts summarily disposed of the claim.
Donald G Rehkopf, Jr.
Use extreme CAUTION when relying on this decision. Much of its analysis is either simply wrong or greatly flawed. E.g., its reliance on Burns v. Wilson is a prime example. Whether or not Burns has any modern precedential value, is dubious. First, it was a pre-UCMJ case tried (and appealed) under the former Articles of War. Second, it was a plurality decision. Third, it was a classic "rush to judgment" case as Justice Franfurter's separate opinion notes some of the problems, e.g., only one copy of the Record was provided to the Court and Frankfurter did not have the opportunity to read it prior to the Court's decision, and urged re-argument -- especially since it was a racially infused death penalty case. Finally, much of the precedent relied upon by the plurality has long since been abrogated, starting with the enactment of the UCMJ, and later SCOTUS decisions such as Boumediene.
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