U.S. Dist. Ct. S.C.

Gere v. CO, NAVCONBRIG Charleston.

Gere is currently confined in the Navy Consolidated Brig in Charleston, South Carolina, brings this application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Respondent moved for summary judgment.

Petitioner presents two grounds for relief: (1) he was deprived of due process of law when the military judge denied defense counsel's request to compel production of SN's cell phone and (2) defense counsel was ineffective for not asserting prosecutorial misconduct based on the prosecution's failure to secure SN's cell phone. Respondent asserts the discovery issues were extensively litigated throughout Petitioner's military proceedings and thus are not properly reviewable here. Respondent also contends Petitioner did not argue his defense counsel was ineffective before the military courts and thus defaulted that claim.

The magistrate judge hearing the case recommend granting the dismissal motion.

In 2016, Petitioner's girlfriend's teenage daughter, SN, accused Petitioner of sexually assaulting her. In January 2019, Petitioner was found guilty by a military judge, sitting as a general court-martial, of attempted sexual assault of a child, sexual abuse of a child, and sexual assault of a child. Petitioner has exhausted his military appeals and now presents habeas claims concerning a discovery dispute over messages allegedly contained on SN's cell phone and ineffective assistance of counsel.

In 2020, AFCCA affirmed Gere's findings and sentence. CAAF denied review 81 M.J. 168 (C.A.A.F. 2021). The denial of review forclosed Gere from a direct appeal to the U.S. Supreme Court. A direct appeal available to every person, civilian or military and detainee at Gitmo, convicted in their courts. At AFCCA Gere had raised the following issues.

(1) Whether the military judge erred by denying a defense motion to compel production of a cellular phone belonging to the victim, SN.

(2) Legal and factual sufficiency.

(3) whether the military judge erred by admitting expert testimony at sentencing regarding the long-term effects of child sexual abuse in general.

(4) Post trial error.

(5) Post trial error. 

The discovery issues arise from a common problem in many cases involving smartphones and various applications such as Snapchat. Remember, MCIOs almost never ask a victim for permission to do a DFE on their smartphone. And of course prosecutors never use their power to obtain a search warrant. Often times they will rely on the victim's word or cherry-picked screenshots. This failure of course can impact the defense months later when charges are referred--in Gere, about 36 months later.

Appellant alleges that the military judge abused his discretion in two ways. First, Appellant asserts the military judge made an erroneous finding of fact concerning the likelihood of recovering deleted messages from SN's phone; and second, that the military judge applied incorrect legal principles by requiring the evidence to be a "smoking gun" of recantation. We disagree and find the military judge's findings of fact were supported by the evidence and that correct legal principles were applied.
​
Appellant specifically sought extraction of SN's cell phone to recover deleted Snapchat conversations where SN had purportedly recanted her allegations against Appellant. Appellant contends that the military judge was clearly erroneous in his findings of fact regarding the likelihood of recovering deleted messages from SN's cellular phone. We agree with the military judge's conclusion that Appellant's motion to compel the cellular phone fails, because the Defense never established the sought-after Snapchat messages existed on the phone, a prerequisite for the production request. In his written ruling, dated 16 January 2019, the military judge found that Appellant had failed to establish by a preponderance of the evidence that any relevant evidence existed in the deleted text messages. The military judge's findings are supported by the testimony of SN, who denied recanting the allegations and unequivocally stated that she never sent Snapchat messages to that effect. Although JR disputed SN's claims about never recanting, JR agreed that SN never recanted her allegations via text message and testified that SN's recantations occurred exclusively during "voice to voice" telephone calls. Trial defense counsel offered no specific information that any other relevant evidence not already in the possession of the Defense was on the phone. We agree with the military judge that Appellant failed to establish that forensic analysis of the cellular phone in question would have revealed additional relevant or helpful evidence related to the deleted conversation beyond the evidence that was already available to the Defense.

While this case is focused on Snapchat, that's not the only application many have on a smartphone. See 2020 CCA LEXIS 429 at *12, for expert testimony of recovering anything from Snapchat. Also, the case demonstrates a thought about how word choice can interject difficulty into a case.

​Appellant next contends that the military judge erred when he required the evidence to be a "smoking gun," which is not the standard required by law. Appellant's contention is without merit. While the military judge did refer to a "smoking gun" in his ruling, it is evident from the entirety of the ruling that this was a colloquialism, and he required nothing more than a showing that the evidence was relevant and necessary. Nowhere in the ruling did the military judge discuss the legal standard as "smoking gun." In fact, in his conclusion the military judge demonstrated that he applied the correct legal principles when he wrote that Appellant failed to establish "by a preponderance of the evidence that the production of SN's cellular phone for analysis would lead to any relevant or necessary evidence . . . ." We conclude the military judge applied the correct legal principles and did not abuse his discretion in denying the defense motion to compel the production of SN's cellular phone for forensic extraction.

So, the AFCCA clearly addressed the discovery issue. Whether you disagree with the conclusion becomes irrelevant once CAAF denied the petition.

In 2021, AFCCA is presented with Gere v. United States, a new trial petition.

While his appeal was pending before this court, Petitioner petitioned The Judge Advocate General of the Air Force for a new trial pursuant to Article 73, UCMJ, 10 U.S.C. § 873. In accordance with Rule for Courts-Martial (R.C.M.) 1210(e), the petition was referred to this court and docketed on 18 November 2020. Respondent submitted an answer to the petition on 16 December 2020, and Petitioner replied to Respondent's answer on 23 December 2020.
Petitioner asserts that he is entitled to a new trial based on newly discovered evidence that SN, the victim in his case, allegedly falsely reported an unrelated sexual assault approximately one year before Petitioner's trial. Finding no such relief is warranted, we deny the petition.

Gere v. United States, No. 2020-06, 2021 CCA LEXIS 10, at *2 (A.F. Ct. Crim. App. Jan. 12, 2021) (memorandum op.). In support of the petition Gere produced a police report and investigation of the alleged incident and a

"cease and desist" letter, dated 11 May 2020, to his petition that was sent to SN's father, MN, from the school board demanding that MN stop making allegations that the school board "covered up a sex crime" in 2017 and that the school district had "threatened" him if he continued to voice his concerns. The letter highlights the school board's frustrations with MN's persistent complaints that SN's report of sexual assault was not handled appropriately by the school and states that SN's complaint was fully investigated and closed due to lack of evidence.

2021 CCA LEXIS 10, at *8-9. The petition was denied because, "Petitioner has failed to meet his burden to demonstrate that he is entitled to a new trial. Petitioner has not demonstrated that the evidence could not have been discovered before trial in the exercise of due diligence, and also fails to show that the evidence would have probably produced a substantially more favorable result." See note 6.

Based on the defense interviews at trial, the one question the defense failed to ask the complaining witness is, "Have you ever made any other sexual assault allegations before today (the date of the interview)? Had she denied that or the SVC intervened to cut off the question, now what? Had she admitted that but refused to provide details, shirley, the defense would have been on a better footing at trial. Of course, I'm also curious as to why the Gubmint didn't know anything about that either if there had been a full and fair investigation?

​Petitioner has not raised that his trial defense counsel were ineffective and we do not see the issue reasonably raised in the record. See United States v. Gooch, 69 M.J. 353, 361-62 (C.A.A.F. 2011).

Back to the Brig.

The district court acknowledges that a military prisoner may seek habeas relief under 28 U.S.C. 2241.

​However, "when 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." Id. at 142. Thus, while a "federal court possesses jurisdiction over" a § 2241 petition regarding a military decision, it "`cannot review' claims `fully and fairly reviewed' by the military courts." Ward v. United States, 982 F.3d 906, 912 (4th Cir. 2020) (citing United States v. Willenbring, 178 F. App'x 223, 224-25 (4th Cir. 2006)). "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." Burns, 346 U.S. at 144.

We have noted before this is the same tough standard applied in the federal courts which have jurisdiction over the USDB. Here is why this case is also relevant to appellate counsel.

In Ground Two, Petitioner claims his defense counsel was ineffective for failing to raise prosecutorial misconduct. Respondent asserts Petitioner failed to present this claim to the military courts and has thus waived it absent a showing of cause and prejudice.
Claims that were not raised in the military courts are deemed to be waived. Roberts v. Callahan, 321 F.3d 994, 995 (10th Cir. 2003). A federal district court will only review the merits of an unexhausted, waived claim upon a showing of cause for the default and actual prejudice resulting from the alleged error. Lips, 997 F.2d at 812.
​
In his response to the motion for summary judgment, Petitioner asserts for the first time that his appellate counsel's failure to raise the issue on appeal constitutes cause and prejudice to excuse the default. Petitioner relies on Martinez v. Ryan, 566 U.S. 1, 17 (2012), which created a narrow exception to procedural default for claims of ineffective assistance of counsel not raised at initial review collateral proceedings, that have some merit, and have been brought by habeas petitioners in § 2254 cases. Petitioner has not cited, and the court is unaware of, any authority suggesting Martinez applies under § 2241 and in the military context. Further, the Supreme Court made clear that its holding in Martinez did not "concern attorney errors in other types of proceedings." 566 U.S. at 16; see also Davila v. Davis, 137 S. Ct. 2058, 2062-63 (2017) (declining to extend Martinez exception to claims of ineffective assistance of appellate counsel).

However, even assuming Martinez is applicable, Petitioner fails to satisfy its elements. First, Petitioner has not argued, only baldly asserted, that appellate counsel was ineffective for failing to present a claim of ineffective assistance of defense counsel. Second, Petitioner fails to show his underlying ineffective assistance of counsel claim has some merit.

Cheers, Phil Cave

​