Military habeas

Livingston v. Commandant

Petitioner, a military prisoner, filed through counsel a petition for habeas corpus under 28 U.S.C. § 2241, in which he challenges certain convictions and his sentence imposed by a court martial. For the reasons set forth below, the Court denies the first two claims asserted in the petition. By consent of the parties, proceedings with respect to the petition's third claim, by which petitioner asserts that a unanimous verdict was required, is hereby stayed.
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In his third claim, petitioner asserts that the trial court erred in failing to require the panel to convict him by unanimous verdict. Recently, the CAAF ruled that there is no constitutional right to a unanimous panel decision in a military court martial, although the defendant in that case has filed a petition for certiorari in the United States Supreme Court. See United States v. Anderson, 83 M.J. 291 (C.A.A.F. 2023), pet. for cert. filed (U.S. Oct. 26, 2023). In light of that ruling and the pending petition for certiorari, the parties have agreed that the Court should stay proceedings on this claim — as it has stayed other cases raising the same issue — until appeals have been concluded in Anderson. Accordingly, the Court hereby stays proceedings on the petition's third claim, and this case remains pending to that extent.

In 2019, petitioner pleaded guilty to certain offenses and was convicted of other offenses — including rape and sexual assault — in a court martial after a trial before a panel of officers. On direct appeal, the United States Army Court of Criminal Appeals (ACCA) set aside one conviction, but it affirmed petitioner's other convictions, of which rulings the United States Court of Appeals for the Armed Forces (CAAF) denied review. See United States v. Livingston, 2022 WL 705828 (A.C.C.A. Mar. 8, 2022), rev. denied, 82 M.J. 440 (C.A.A.F. July 25, 2022).

That denial precluded direct review to the U.S. Supreme Court.