The Tenth

In 2018, Gray pled guilty to allegations, including sexual assault of a child, sexual assault, sexual assault consummated by battery, assault, prejudice to good order and discipline, and failure to obey an order. The victim—his adopted stepdaughter—was between the ages of 13 and 16 when Gray sexually assaulted her. At age 16, she gave birth to Gray's biological daughter, as confirmed by DNA testing.

In exchange for Gray's plea, the Army agreed to dismiss without prejudice the remaining charges, which included rape of a child, sexual abuse, and additional sexual assault and assault charges. Those charges related to another adopted stepdaughter and the victim's mother. A military judge sentenced Gray to a reduction in rank, 44 years' confinement, and a dishonorable discharge with forfeiture of all pay and allowances.

His appeal to ACCA on IAC grounds failed and CAAF denied his petition.** He claimed defense counsel provided ineffective assistance by advising him to plead guilty to offenses he did not commit, to agree to an incorrect stipulation of facts, and to lie during his providence inquiry with the military judge. In a shift from his previous statements, he insisted the sex with the victim was consensual and occurred only after her sixteenth birthday.

His pro se petition for habeas corpus followed. The Tenth Circuit denied his appeal of the district courts denial of his petition.

"Federal courts are empowered under 28 U.S.C. § 2241 to entertain habeas petitions from military prisoners. But our review of court-martial proceedings is very limited." Santucci, 66 F.4th at 853 (internal quotation marks omitted); see also id. (describing the standard of review as "deferential" and noting that "the deference we give to military tribunals is even greater than that we owe to state courts" (internal quotation marks omitted)).

To determine whether merits review of a military habeas corpus petition is appropriate, we consider four factors as articulated in Dodson v. Zelez, 917 F.2d 1250, 1252-53 (10th Cir. 1990):
1. "The asserted error must be of substantial constitutional dimension."
2. "The issue must be one of law rather than of disputed fact already determined by the military tribunals."
3. There must be no "[m]ilitary considerations [that] warrant different treatment of constitutional claims."
4. "The military courts must give adequate consideration to the issues involved and apply proper legal standards."
The fourth factor is "the most important." Santucci, 66 F.4th at 858 (internal quotation marks omitted).
In Santucci, we clarified that "as a necessary condition for full merits review of a given claim, a petitioner must demonstrate that the resolution of each of the Dodson factors weighs in the petitioner's favor." Only then can a petitioner "show that the military tribunals have not given full and fair consideration to [his] claim."

Gray's inability to satisfy the second and fourth factors of Dodson caused his petition to fail.

The district court found that the military courts adequately considered Gray's ineffective assistance claim. It highlighted the ACCA's efforts to supplement the record by requesting affidavits from Gray's counsel and concluded that the ACCA's opinion shows that it rejected the claim only after a complete record analysis—thus giving full and fair consideration to his claim.

Gray's claim that the district court should have granted discovery also failed.

Gray's discovery motion sought a transcript of a phone call between another USDB inmate and the victim, during which the victim supposedly told the inmate that she did not want to testify but her mother made her do so. The district court found that he had not shown good cause for discovery because (1) "the alleged statement by the victim does not suggest that petitioner did not commit the crime," and (2) "the facts at issue in the discovery request do not bear on the Dodson factors that preclude . . . merits review."

** We have noted the potential change to Supreme Court direct appeal based on the recent conference committee draft of the NDA 2024. See Gray v. Payne, No. 23-3079, 2023 U.S. App. LEXIS 32150, at *3 n.2 (10th Cir. Dec. 5, 2023).

Donald G Rehkopf, Jr.

12/9/2023 12:12:44

Burns v. Wilson (a plurality decision) is perhaps one of the most misunderstood and misapplied "military" decisions of our modern military jurisprudence. I have spent numerous hours researching the background of the case and its torturous trip to SCOTUS, And yet, like a judicial weed, it keeps popping up.

The problems begin with the facts: Burns and 2 other Airmen (who were all Black), were arrested for raping and murdering a white civilian employee on the US Airbase in Guam. Racial overtones permeated the case. Confessions were tortured out of them to the extent that the dissent at SCOTUS noted, "No court has considered the question whether repetitious questioning over a period of 5 days while the accused was held incommunicado without benefit of counsel violated the Fifth Amendment."

The case arose in January of 1949, before the UCMJ was enacted and almost 2 years before it went into effect. The case was tried under the Articles of War--no mention of "civilianizing" the court-martial process as prompted by now Art. 36, UCMJ, was made by the Court. Furthermore, virtually all of the precedent relied upon by the Court was pre-UCMJ, and generally inapplicable, something that as military justice has evolved since Burns, also gets overlooked.

Why Burns is relatively irrelevant in its holding and why much is nothing more than dicta, is that Burns and one co-defendant (the third took a plea to testify against the other two to escape the death penalty), had already had a "full and fair" consideration of their claims by the DC Circuit Court of Appeals: "The Court of Appeals affirmed the District Court's judgment, after expanding the scope of review by giving petitioners' allegations full consideration on their merits, reviewing in detail the mass of evidence
to be found in the transcripts of the trial and other proceedings before the military court."

Another problem surfaced at SCOTUS - only one copy of the Record had been sent to the Court and Justice Frankfurter refused to join either the majority or the dissent, instead issuing a "statement" urging reargument as he had not had a chance to review the Record prior to the Court's announcement of its decision.

The Tenth Circuit, the venue for USDB cases has caused much of the confusion in this area because its decisions (mostly by pro se Petitioners--as was Santucci) are all over the legal landscape. The seminal military habeas case post-Burns is Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911 (1976) (the Calley of My Lai infamy), which established the 4 prong test, which if erroneous over the past 45 years, either Congress of the Article III courts could have "fixed." Nothing has changed other than the Tenth Circuit finally adopted the "Calley Test" in Dodson v. Zelez, 917 F.2d 1250, 1252-53 (10th Cir. 1990). Yet, numerousTenth Circuit decisions since Dodson, simply ignore it.

Finally, Gray's "deference" argument has long since been repudiated. There are a number of cases that hold in constitutional law issues, that Article III Courts do NOT give any deference to Article I, courts' decisions in that arena.

The "separate society" argument has been pretty much abrogated by the combination of Article 36, UCMJ, and the SCOTUS opinion in Ortiz. That concept may have had some merit after the Civil War where numerous Army outposts were scattered throughout the Western Frontier, sometimes days away from headquarters, supplies, etc. But in an era of instant digital communications, quick airlift capabilities, it's become a useless appendage of military justice.

Trial Counsel

12/9/2023 14:29:29

Courts (with Congressional encouragement) have embraced finality in the Habeas contest as the overriding principle. This seems in line with how every other habeas petition is a huge uphill battle for procedural reasons, and courts almost never deal with the merits.

Not saying this is right, but I don’t think it is a military justice problem. It is a federal view of habeas problem generally.

Brenner Fissell

12/10/2023 19:15:10

Very accurate

Donald G Rehkopf, Jr.

12/11/2023 12:38:32

Respectfully disagree - it is a "military justice" problem. SCOTUS (and for that matter, CAAF) has held in Schlesinger v. Councilman, 420 U.S. 738 (1975), that Art. 76 is only a prudential consideration, not a jurisdictional bar. CAAF has held the same thing in Denedo v. United States, 66 M.J. 114, (CAAF 2008), aff’d 556 U.S. 904 (2009), where CAAF held: “Article 76 provides a prudential constraint on collateral review, not a jurisdictional limitation,” citing Schlesinger.

Military appellate courts have become "fixated" on "finality," agreed. But in federal court that's rarely litigated unless the Petitioner is pro se, which 90% generally are. The federal rule begins with this premise: "Conventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged." Sanders v. United States, 373 U.S. 1, 8 (1963).

That same year, SCOTUS held: "[C]onventional notions of finality in criminal litigation cannot be permitted to defeat the manifest federal policy that federal constitutional rights of personal liberty shall not be denied without the fullest opportunity for plenary federal judicial review." Fay v. Noia, 372 U.S. 391, 424 (1963), overruled on other grounds, Wainwright v. Sykes, 433 U.S. 72 (1977).

Lastly, the issue of military habeas cases is quite muddled, especially in pro se cases, where habeas relief comes via 29 USC S. 2241, Where a totally different process and rules apply to State and federal prisoners under sections 2254 and 2255, respectively.

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