(HC)Gibbs v. Smith, No. 1:2007cv01563 - Document 54 (E.D. Cal. 2010)

Court Description: ORDER GRANTING IN PART Respondent's 49 Motion to Dismiss 1 Petition for Writ of Habeas Corpus; ORDER DENYING IN PART Petitioner's Petition for Writ of Habeas Corpus 1 ; ORDER DIRECTING the Entry of Judgement for Respondent, signed by Magistrate Judge Sheila K. Oberto on 11/15/2010. Case Closed (Martin, S)
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(HC)Gibbs v. Smith Doc. 54 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CURTIS A. GIBBS, 10 Petitioner, 11 12 v. 13 J. E. THOMAS, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:07-cv—01563-SKO-HC ORDER GRANTING IN PART RESPONDENT’S MOTION TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS (Docs. 49, 1) ORDER DENYING IN PART PETITIONER’S PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1) ORDER DIRECTING THE ENTRY OF JUDGMENT FOR RESPONDENT 16 17 18 Petitioner is a federal prisoner proceeding pro se in a 19 habeas corpus action pursuant to 28 U.S.C. § 2241. 20 28 U.S.C. § 636(c)(1), the parties have consented to the 21 jurisdiction of the United States Magistrate Judge to conduct all 22 further proceedings in the case, including the entry of final 23 judgment, by manifesting their consent in writings signed by the 24 parties or their representatives and filed by Petitioner on 25 November 7, 2007, and on behalf of Respondent on June 9, 2010. 26 Pursuant to Pending before the Court is Respondent’s motion to dismiss 27 the petition for lack of subject matter jurisdiction, filed on 28 September 8, 2010. Petitioner filed an opposition (doc. 53) on 1 Dockets.Justia.com 1 October 7, 2010.1 2 (doc. 51), filed on September 27, 2010, was deemed by a previous 3 order to be a partial opposition to the motion. 4 filed. Petitioner’s earlier objection to the motion No reply was 5 I. 6 On April 24, 1996, Congress enacted the Antiterrorism and In Personam Jurisdiction pursuant to 28 U.S.C. § 2241 7 Effective Death Penalty Act of 1996 (AEDPA), which applies to all 8 petitions for writ of habeas corpus filed after its enactment. 9 Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 10 F.3d 1484, 1499 (9th Cir. 1997). 11 for writ of habeas corpus on October 1, 2007. 12 applies to the petition. Petitioner filed his petition Thus, the AEDPA 13 With respect to jurisdiction over the person, 28 U.S.C. § 14 2241(a) provides that writs of habeas corpus may be granted by 15 the district courts “within their respective jurisdictions.” 16 writ of habeas corpus operates not upon the prisoner, but upon 17 the prisoner’s custodian. 18 of Kentucky, 410 U.S. 484, 494-495 (1973). 19 petition for writ of habeas corpus under 28 U.S.C. § 2241 must 20 file the petition in the judicial district of the petitioner's 21 custodian. 22 1990). 23 jurisdiction of the court at the time the petition is filed; 24 transfer of the petitioner thereafter does not defeat personal 25 jurisdiction that has once been properly established. A Braden v. 30th Judicial Circuit Court A petitioner filing a Brown v. United States, 610 F.2d 672, 677 (9th Cir. It is sufficient if the custodian is in the territorial Ahrens v. 26 27 28 1 Although Petitioner’s document was entitled, “Objection to the Respondent’s Motion to Dismiss,” the Court understands it to be an opposition to the motion. 2 1 Clark, 335 U.S. 188, 193 (1948), overruled on other grounds in 2 Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. at 3 193, citing Mitsuye Endo, 323 U.S. 283, 305 (1944); Francis v. 4 Rison, 894 F.2d 353, 354 (9th Cir. 1990). 5 Petitioner initially named the warden of the United States 6 Penitentiary at Atwater, California, the institution where he was 7 confined at the time the petition was filed; that institution was 8 within the territorial jurisdiction of this Court. 9 of Petitioner to a different custodial institution did not defeat The transfer 10 this Court’s jurisdiction. 11 to reflect the name of the warden of the institution to which 12 Petitioner was transferred. 13 14 Subsequently, the caption was amended (Doc. 17.) The Court concludes that it has in personam jurisdiction over the Respondent. 15 The Court has further concluded that it has subject matter 16 jurisdiction to review Petitioner’s claims pursuant to 28 U.S.C. 17 § 2241. 18 jurisdiction is more thoroughly discussed below in connection 19 with Petitioner’s specific claims. However, the scope of the Court’s subject matter 20 II. 21 Title 28 U.S.C. § 2241 provides that writs of habeas corpus Proceeding by a Motion to Dismiss 22 may be granted by a district court within its jurisdiction only 23 to a prisoner whose custody is within enumerated categories, 24 including but not limited to custody under the authority of the 25 United States or custody in violation of the Constitution, laws, 26 or treaties of the United States. 27 (3). 28 28 U.S.C. § 2241(a), (c)(1), A district court must award a writ of habeas corpus or issue 3 1 an order to show cause why it should not be granted unless it 2 appears from the application that the applicant is not entitled 3 thereto. 4 Section 2254 Cases (Habeas Rules) is applicable to proceedings 5 brought pursuant to § 2241. 6 permits the filing of “an answer, motion, or other response,” and 7 thus it authorizes the filing of a motion in lieu of an answer in 8 response to a petition. 9 Adoption and 2004 Amendments. 28 U.S.C. § 2243. Rule 4 of the Rules Governing Habeas Rule 1(b). Rule 4, Habeas Rule 4 Advisory Committee Notes, 1976 This gives the Court the 10 flexibility and discretion initially to forego an answer in the 11 interest of screening out frivolous applications and eliminating 12 the burden that would be placed on a respondent by ordering an 13 unnecessary answer. 14 Rule 4 confers upon the Court broad discretion to take “other 15 action the judge may order,” including authorizing a respondent 16 to make a motion to dismiss based upon information furnished by 17 respondent, which may show that a petitioner’s claims suffer a 18 procedural or jurisdictional infirmity, such as res judicata, 19 failure to exhaust state remedies, or absence of custody. 20 Advisory Committee Notes, 1976 Adoption. Id. The Supreme Court has characterized as erroneous the view 21 that a Rule 12(b)(6) motion is appropriate in a habeas corpus 22 proceeding. 23 434 U.S. 257, 269 n. 14 (1978). 24 language of Rule 4, it has been held in this circuit that motions 25 to dismiss are appropriate in cases that proceed pursuant to 28 26 U.S.C. § 2254 and present issues of failure to exhaust state 27 remedies, O’Bremski v. Maas, 915 F.2d 418, 420 (9th Cir. 1990) (a 28 motion to dismiss for failure to raise any issue of federal law, See, Browder v. Director, Ill. Dept. of Corrections, However, in light of the broad 4 1 which was based on the insufficiency of the facts as alleged in 2 the petition to justify relief as a matter of law, was evaluated 3 under Rule 4); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 4 1989) (procedural default in state court); Hillery v. Pulley, 533 5 F.Supp. 1189, 1194 n. 12 (E.D.Cal. 1982) (a motion to dismiss for 6 failure to exhaust state remedies is appropriately considered 7 after receipt of evidence pursuant to Rule 7(a) to clarify 8 whether or not the possible defect, not apparent on the face of 9 the petition, might preclude a hearing on the merits, and after 10 the trial court has determined that summary dismissal is 11 inappropriate). 12 13 14 Analogously, a motion to dismiss is appropriate in a proceeding pursuant to 28 U.S.C. § 2241. Here, Respondent’s motion to dismiss is based on lack of 15 subject matter jurisdiction. 16 limited jurisdiction which has a continuing duty to determine its 17 own subject matter jurisdiction and to dismiss an action where it 18 appears that the Court lacks jurisdiction. 19 12(h)(3); CSIBI v. Fustos, 670 F.2d 134, 136 n.3 (9th Cir. 1982) 20 (citing City of Kenosha v. Bruno, 412 U.S. 507, 511-512 (1973)); 21 Billingsley v. C.I.R., 868 F.2d 1081, 1085 (9th Cir. 1989). 22 Respondent’s motion is similar in procedural posture to a motion 23 to dismiss for failure to exhaust state remedies or for state 24 procedural default. 25 factual disputes. 26 answer. A federal court is a court of Fed. R. Civ. P. Further, the motion does not raise material Finally, Respondent has not yet filed a formal 27 The Court therefore exercises its discretion to review 28 Respondent’s motion pursuant to its authority under Rule 4. 5 1 Further, as the following analysis demonstrates, the Court 2 will deny Respondent’s motion to dismiss in part and will 3 exercise its jurisdiction to consider Petitioner’s contentions to 4 the extent permissible under the standard of review applicable to 5 a petition brought pursuant to 28 U.S.C. § 2241 to review the 6 proceedings of a court-martial. 7 sufficient to permit a decision, there are no factual disputes 8 concerning the contents of the record, and the case has been 9 fully briefed. 10 III. 11 The petition was filed on October 1, 2007, when Petitioner The record before the Court is Background 12 was confined at the United States Penitentiary at Atwater, 13 California. 14 martial of murder pursuant to 10 U.S.C. § 9182 rendered on 15 December 13, 1990. 16 2.)3 17 Court of Military Review and then to the United States Court of Petitioner challenges his conviction by court- Petitioner is serving a life sentence. (Pet. Petitioner appealed the conviction to the Navy-Marine Corps 18 2 19 20 21 22 23 24 25 Title 10 U.S.C. § 918 provides: Any person subject to this chapter who, without justification or excuse, unlawfully kills a human being, when he– (1) has a premeditated design to kill; (2) intends to kill or inflict great bodily harm; (3) is engaged in an act which is inherently dangerous to another and evinces a wanton disregard of human life; or (4) is engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, rape of a child, aggravated sexual assault, aggravated sexual assault of a child, aggravated sexual contact, aggravated sexual abuse of a child, aggravated sexual contact with a child, robbery, or aggravated arson; is guilty of murder, and shall suffer such punishment as a court-martial may direct, except that if found guilty under clause (1) or (4), he shall suffer death or imprisonment for life as a court-martial may direct. 26 27 28 3 For the sake of clarity, the page numbers of filed documents are those which appear in the upper right-hand corner of the pages and are assigned by the Court’s electronic filing system. 6 1 Military Appeals. 2 was not service-related. (Id.) No contention is made that the crime 3 Petitioner raises three grounds in the petition: 4 Col. Stone, a member of the military jury, had prejudicial 5 conversations with other officers and a lawyer about Petitioner’s 6 case before the court martial proceedings, concealed them during 7 voir dire, and thereby committed a fraud upon the court and 8 denied Petitioner his rights pursuant to Article 25 of the 9 Uniform Code of Military Justice (UCMJ) and 10 U.S.C. § 825; 2) 10 the prosecution committed gross misconduct and thereby violated 11 Petitioner’s rights under the Due Process Clause of the 12 Fourteenth Amendment; and 3) Petitioner’s dishonorable discharge 13 was an administrative act that violated 5 U.S.C. § 551 and 32 14 C.F.R. § 45.3, and therefore Respondent lacks jurisdiction over 15 Petitioner; further, Petitioner is a “Title 10 U.S.C.” military 16 prisoner wrongfully held in federal prison pursuant to the 17 authority of title 18. 18 1) Lt. (Pet. 3-4.) Respondent previously moved to dismiss the petition on the 19 same grounds raised here, namely, that the Court lacks subject 20 matter jurisdiction to review Petitioner’s claims. 21 The motion was denied without prejudice because the record was 22 inadequate to permit the Court to determine the motion. 23 17, 3-5; 19, 1-2.) 24 (Doc. 9.) (Docs. Respondent briefly summarizes the facts of the offense as 25 found in “[d]ocuments submitted with his petition.” 26 No documents were attached to Petitioner’s five-page petition, 27 but the Court will assume that Respondent is referring to 28 Petitioner’s objections (doc. 18, filed August 18, 2008) to 7 (Mot. 1.) 1 earlier findings and recommendations, which included a document 2 entitled “ASSIGNMENT OF ERRORS AND BRIEF ON BEHALF OF APPELLANT,” 3 that was stamped received on December 4, 1991, by the United 4 States Navy-Marine Corps Court of Military Review. 5 76.) 6 (Doc. 18, 11- In the brief there are set forth “[u]ncontested [f]acts” 7 pertinent to the charge, which concerned the premeditated murder 8 of Mrs. Brenda Salomon on August 18, 1989. 9 Petitioner confessed to the killing, revealing that while at the (Id. at 17.) 10 Shipwreck Lounge, he encountered Salomon and then left the 11 lounge. 12 drunk, tapped on the window and asked Petitioner to take her out 13 to get something to eat. 14 some fast food. 15 to tell Petitioner where she lived, Petitioner stopped at a 16 telephone booth and told her to get out of his truck and call 17 someone to come to pick her up. 18 slapped him, and failed to leave the truck, he drove into a 19 wooded area, stopped, and ordered her out of the truck. 20 physical altercation ensued, and Petitioner pulled Salomon out of 21 the truck. 22 and attacked him as he tried to enter his truck, Petitioner 23 became enraged, hit her repeatedly, retrieved his “Ninja To” 24 sword from the truck, and struck Salomon so hard that the sword’s 25 handle detached from its blade. 26 severed her spinal cord and vertical arteries. 27 28 When Petitioner entered his truck, Salomon, who was very Petitioner agreed and bought Salomon When Salomon passed out several times and failed When she called him names, A When Salomon removed her shorts, taunted Petitioner, (Id. at 18, 21-23.) The blow (Id.) Petitioner returned to the lounge after retrieving the sword and throwing Salomon’s things out of the truck, and stayed there 8 1 until closing time. 2 the Camp Lejeune Marine Corps base, and multiple items of 3 corroborating evidence were found. 4 IV. The body was discovered in a wooded area on (Id. at 17-18.) Jurisdiction to Review Petitioner’s Conviction by Court-Martial and Scope of Review 5 The military justice system is independent of the federal 6 court system; it has its own source in the Constitution and 7 separate rules of procedure and doctrines of substantive law. 8 Davis v. Marsh, 876 F.2d 1446, 1447 (9th Cir. 1989). A court- 9 martial has jurisdiction to punish service members for “service10 connected” offenses, and the findings and sentences of a court11 martial are final and conclusive on all courts of the United 12 States. 10 U.S.C. § 876; Schlesinger v. Councilman, 420 U.S. 13 738, 745 & n.10 (1975). 14 With the exception of the United States Supreme Court’s 15 limited certiorari jurisdiction, the acts of a court-martial, 16 within the scope of its jurisdiction and duty, cannot be directly 17 reviewed by civil courts. Instead, Congress has given the power 18 of direct review to military entities and a specialized Court of 19 Military Appeals instead of Article III courts. Schlesinger v. 20 Councilman, 420 U.S. 738, 746 (citing Noyd v. Bond, 395 U.S. 683, 21 694 (1969)); Davis v. Marsh, 876 F.2d 1446, 1448 & n.3, 1449. 22 However, collateral relief from a judgment of a court23 martial may be sought where the judgment is void or without res 24 judicata effect because of a “lack of jurisdiction or other 25 equally fundamental defect....” Schlesigner v. Councilman, 420 26 U.S. at 746-47, 753; see, Davis v. Marsh, 876 F.2d 1446, 1448 27 (stating that court-martial determinations are “collaterally 28 9 1 reviewable for constitutional or jurisdictional error”). 2 Collateral review by habeas corpus is generally available only 3 when all available military remedies have been exhausted. 4 Schlesinger v. Councilman, 420 U.S. 738, 747, 753; Gusic v. 5 Schilder, 340 U.S. 128, 131 (1950); Davis v. Marsh, 876 F.2d at 6 1449. 7 of appeal in the military court system, it is waived absent a 8 showing of cause and prejudice. 9 1448. 10 If a claim raised on habeas was not raised at either level Davis v. Marsh, 876 F.2d 1446, In Burns v. Wilson, 346 U.S. 137, 139, 142-46 (1953), a 11 plurality of justices decided that a federal court has 12 jurisdiction pursuant to 28 U.S.C. § 2241 to consider claims of 13 fundamental, 14 martial. 15 federal court’s review of judgments of civil courts. 16 federal civil court may determine whether a military tribunal has 17 given fair consideration to each claim and thus has dealt fully 18 and fairly with an allegation. 19 142-44. 20 Whelchel v. McDonald, 340 U.S. 122, 124 (1950). 21 constitutional error in the proceedings of a court- However, the scope of review differs from that of a Id. A Burns v. Wilson, 346 U.S. 137, A defendant must have an opportunity to tender an issue. The plurality in Burns further decided that if a military 22 court has manifestly refused to consider a claim of fundamental 23 unfairness, then a district court is empowered to review it de 24 novo. 25 court may not reweigh the evidence relevant to the allegations in 26 the petition or otherwise evaluate the correctness of the 27 military’s evaluation of the evidence. 28 137, 144; Whelchel v. McDonald, 340 U.S. 122, 149. Burns v. Wilson, 346 U.S. 137, 142-43. 10 However, a civil Burns v. Wilson, 346 U.S. 1 In Burns, the opinions of the military reviewing courts 2 revealed that before rejecting the petitioners’ contentions, the 3 military courts scrutinized trial records to review the 4 procedures afforded the petitioners and to ascertain whether the 5 decisions of the trial court were justified. 6 144-46. 7 the trial court pursuant to which evidence pertinent to the 8 claims was admitted and considered. 9 issues were explored or were available for exploration. Burns, 346 U.S. at The trial records reflected an inquiry on the part of Further, the pertinent The 10 plurality in Burns concluded that under such circumstances, the 11 petitioners had failed to show that the military review was 12 legally inadequate to resolve their claims. Burns, 346 U.S. at 13 146. 14 The standard of review for full and fair consideration by a 15 court-martial has consistently been applied to habeas petitions 16 in this circuit. 17 1974) (a claim of deprivation of fundamental due process of law 18 by denial of counsel at a summary court-martial was to be 19 evaluated on remand under the “fully and fairly” considered test 20 of Burns v. Wilson (internal quotation marks omitted), overruled 21 on other grounds by Middendorf v. Henry, 425 U.S. 25, 48 (1976); 22 Broussard v. Patton, 466 F.2d 816, 818-19 (9th Cir. 1972) (a 23 claim that the statute of limitations barred a court-martial 24 proceeding was rejected because the military gave full and fair 25 consideration to each of the petitioner’s claims); Sunday v. 26 Madigan, 301 F.2d 871, 873 (9th Cir. 1962) (after articulation of 27 the Burns standard, a claim of lack of jurisdiction was evaluated 28 by determining the time the pertinent statute took effect); Daigle v. Warner, 490 F.2d 358, 366 (9th Cir. 11 1 Mitchell v. Swope, 224 F.2d 365, 366-67 (9th Cir. 1955) (a claim 2 concerning denial of a continuance to prepare for trial was 3 determined to have been fully and carefully examined by the 4 military’s Board of Review). 5 In the present case, Petitioner acknowledges that his case 6 was reviewed by both the Navy-Marine Corps of Military Review and 7 the United States Court of Military Appeals. (Pet. 2.) 8 V. 9 Review of the record before this Court shows that Lt. Col. Stone’s Pretrial Conversations 10 Petitioner’s second claim, that Lt. Col. Stone committed a fraud 11 upon the Court concerning alleged pretrial conversations and 12 thereby deprived Petitioner of rights, was considered in the 13 military post-trial proceedings. 14 15 A. Facts On or about December 18, 1991, Petitioner, who was 16 represented by appellate defense counsel, filed his opening brief 17 in the United States Navy-Marine Corps Court of Military Review. 18 (Mot., Ex. 1 [doc. 49-1], 2.) 19 that the military trial judge erred by denying Petitioner’s post- 20 trial motion, made almost two months after Petitioner’s 21 conviction and sentence, for a mistrial based upon newly 22 discovered evidence of a court member’s undisclosed pre-trial 23 communications with a third party about Petitioner’s case. 24 at 36, 36-41.) 25 In the brief, Petitioner argued The facts of the conversations were detailed. (Id. In connection 26 with the motion for a new trial, William R. Fisher, who had been 27 a captain in the Marine Corps and Marine defense counsel before 28 leaving active duty in November 1989, testified that in September 12 1 or October 1989, he spoke briefly to Stone about Petitioner’s 2 case at the Officer’s Club in a conversation in which several 3 other officers, including Major Frederick Keegan, participated. 4 Everyone was familiar with the case from local media, and the 5 subject somehow came up; Fisher described the circumstances of 6 Salomon’s death to Stone and opined that the case was not about 7 guilt or innocence, but was about the type of punishment that the 8 accused would receive. 9 Fisher that Stone had been detailed to appellant’s court, Fisher (Id. at 36-37.) When Stone later told 10 told Stone that he could not discuss the case further with him. 11 (Id. at 37.) 12 Keegan also testified that although he recalled discussing 13 Petitioner’s case with others, he did not specifically recall 14 discussing it with Fisher. 15 admonish someone, possibly Fisher, that he could not listen to 16 that because he might be a member on the court. 17 Keegan did recall hearing Stone (Id. at 38.) Stone denied ever having conversed with Fisher about the 18 case or telling Fisher that he could not discuss the case. 19 was possible, however, that Stone could have happened upon the 20 conversation of others about the case, but he would not have 21 known the topic of the conversation. It (Id. at 38-39.) 22 In the brief, Petitioner argued that the military judge 23 erred in finding that no appearance of unfairness existed and in 24 denying the Petitioner’s motion for a mistrial. 25 (Id. at 39-41.) The United States responded in its reply brief with 26 additional facts from the testimony, including Fisher’s admission 27 that the conversation might never have occurred or that Stone was 28 not paying attention; further, the conversation was a light 13 1 conversation while standing at the bar on a “free beer night.” 2 (Mot., Ex. 2, 50-52.) 3 conceal the fact that such a conversation had occurred. 4 the other possible participants recalled the conversation. 5 at 51-52.) 6 Fisher opined that Stone would never None of (Id. In its brief, the United States noted the military judge’s 7 findings of fact, namely, that Stone did not hear the 8 conversation and that there was no evidence that Stone knew 9 anything about the case before the trial; thus, the appearance of 10 unfairness did not exist. 11 that there was no substantial evidence that the alleged 12 conversation occurred and requested that Petitioner’s contention 13 on that ground be denied because there was no demonstration of 14 manifest injustice. 15 (Id. at 54.) The United States argued (Id. at 54-55.) Petitioner’s motion for oral argument was granted, and 16 argument was scheduled for August 6, 1992. 17 49-3], 2.) 18 Corps Court of Military Review affirmed the findings of 19 Petitioner’s guilt and the sentence, stating in pertinent part: 20 21 22 (Mot., Ex. 3 [doc. On December 24, 1992, the United States Navy-Marine We have examined the record of trial, the assignments of error, and the Government’s reply thereto, and have concluded that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. 23 (Mot., Ex. 4 [doc. 49-3], 4.) 24 With the assistance of counsel, Petitioner sought review by 25 the United States Court of Military Appeals. (Mot., Ex. 5 [doc. 26 49-3], 6.) A general opposition submitted by the United States 27 in that proceeding on May 5, 1993, reflects that it relied on the 28 14 1 brief filed in the United States Navy-Marine Corps Court of 2 Military Review and the decision of that court; otherwise, the 3 right to file a full answer or other briefing was waived absent a 4 request by the court. 5 granted the petition for review and affirmed the decision on 6 January 26, 1994. 7 8 9 B. (Mot., Ex. 6 [doc. 49-3], 8.) The court (Mot., Ex. 7 [doc. 49-3], 10.) Analysis Based on the record of the court-martial and the ensuing appeals in the military courts, the Court concludes that the 10 issue concerning concealment of alleged pretrial conversations of 11 a member of the court was raised and was fully and fairly 12 considered by the military tribunals. 13 and considered by the trial court, which made an informed 14 determination that the alleged conduct did not occur and that a 15 new trial was not warranted. 16 considered by the military appellate tribunals. 17 fundamental error or error of jurisdictional stature. 18 The facts were developed The issue was fairly and fully There is no Petitioner asserts that Stone engaged in multiple 19 conversations with Fisher and that there was a possibility of 20 command influence by the senior officers involved. 21 53, 2.) 22 the court-martial. 23 (Opp., doc. It is not for this Court to reweigh the evidence before Further, the Court notes that in this proceeding, Petitioner 24 describes Stone’s alleged conduct as a fraud upon the court. 25 (Pet. 3.) 26 characterizing Stone’s conduct, Petitioner is attempting to raise 27 an additional issue in this Court that was not raised in the 28 military tribunals. It is not clear, but it may be that by so Petitioner has not shown cause and 15 1 prejudice. 2 that Petitioner is attempting to raise an issue not raised in the 3 military tribunals, the Court concludes that the issue is waived. 4 Schlesinger v. Councilman, 420 U.S. 738, 747, 753; Gusic v. 5 Schilder, 340 U.S. 128, 131 (1950); Davis v. Marsh, 876 F.2d at 6 1449. 7 Davis v. Marsh, 876 F.2d 1446, 1448. To the extent Although Respondent argues that the petition should be 8 dismissed, this Court has exercised its habeas corpus 9 jurisdiction to consider whether the issue was fully and fairly 10 considered by the military tribunals, and the Court has 11 determined that this issue did receive such consideration. 12 Therefore, to the extent appropriate, this Court has exercised 13 its subject matter jurisdiction to review the court-martial 14 determination; denial of the claim to the extent it was reviewed 15 thus appears to be correct. 16 U.S. Disciplinary Barracks, 997 F.2d 808, 811 (10th Cir. 1993), 17 in a habeas corpus proceeding, the Court of Appeals determined 18 that the military courts gave the matters raised in the habeas 19 proceeding full and fair consideration, and thus the district 20 court’s consideration and determination of the issues de novo was 21 erroneous. 22 district court and remanded the cause with directions to the 23 district court to deny the petition. 24 For example, in Lips v. Commandant, The Court of Appeals reversed the judgment of the Lips, 997 F.2d 808, 812. Accordingly, with respect to this issue, the Court concludes 25 that it is appropriate to deny the petition, and to dismiss the 26 petition for lack of subject matter jurisdiction to the extent 27 that Petitioner seeks this Court to engage in any further review 28 of the actions of the military courts. 16 1 VI. 2 Petitioner alleges in his third claim that there was gross Prosecutorial Misconduct 3 misconduct by the prosecution that violated the Due Process 4 Clause of the Fourteenth Amendment. 5 forth any facts concerning this claim. 6 Petitioner does not set Preliminarily, the Court notes that in view of the absence 7 of any allegations of fact concerning this claim, the claim is 8 subject to dismissal. 9 The Rules Governing Section 2254 Cases in the United States 10 District Courts (Habeas Rules) are appropriately applied to 11 proceedings undertaken pursuant to 28 U.S.C. § 2241. 12 1(b). 13 review of each petition for writ of habeas corpus. 14 must summarily dismiss a petition "[i]f it plainly appears from 15 the petition and any attached exhibits that the petitioner is not 16 entitled to relief in the district court....” 17 O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also 18 Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). 19 2(c) requires that a petition 1) specify all grounds of relief 20 available to the Petitioner; 2) state the facts supporting each 21 ground; and 3) state the relief requested. 22 not sufficient; rather, the petition must state facts that point 23 to a real possibility of constitutional error. 24 Committee Notes, 1976 Adoption; O’Bremski v. Maass, 915 F.2d at 25 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)). 26 Allegations in a petition that are vague, conclusory, or palpably 27 incredible are subject to summary dismissal. 28 Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). Habeas Rule Habeas Rule 4 requires the Court to make a preliminary 17 The Court Habeas Rule 4; Habeas Rule Notice pleading is Rule 4, Advisory Hendricks v. 1 Further, the Court may dismiss a petition for writ of habeas 2 corpus either on its own motion under Habeas Rule 4, pursuant to 3 the respondent's motion to dismiss, or after an answer to the 4 petition has been filed. 5 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 6 (9th Cir. 2001). 7 Advisory Committee Notes to Habeas Rule Respondent notes that in his direct appeal, Petitioner 8 alleged as the sixth ground that his conviction should be set 9 aside due to prosecutorial misconduct. It appears from the 10 opposition to the motion that this is the misconduct issue that 11 Petitioner seeks to raise. 12 issue in the following manner in the appellate brief filed in the 13 military proceedings: 14 15 16 17 (Opp. 3-8.) Petitioner stated the TRIAL COUNSEL CREATED THE APPEARANCE OF GROSS IMPROPRIETY AND COMMITTED PROSECUTORIAL MISCONDUCT BY PARTICIPATING IN THE INVESTIGATION OF, AND RECOMMENDING CAPITAL REFERRAL IN, A CASE IN WHICH AN IMMEDIATE FAMILY MEMBER HAD A POTENTIAL CONFLICT OF INTEREST. (Mot., Ex. 1, 45.) 18 Petitioner’s appellate brief shows that the military courts 19 were informed of legal standards concerning a prosecutor’s legal 20 and ethical duties to protect an accused’s right to a fair trial, 21 ensure that justice is done, and guard against the appearance of 22 prosecutorial impropriety. 23 the prosecutor’s participation in the investigation prevented him 24 from being appropriately objective. 25 argued that the unethical conduct of counsel had resulted in an 26 unfair capital referral process which culminated in his case 27 being referred as a capital case. 28 in turn in the loss of potentially mitigating procedural choices (Ex. 2, 47.) 18 Petitioner argued that (Ex. 1, 45.) He further The capital referral resulted 1 that he might have made, such as pleading guilty or electing 2 trial by a military judge alone. 3 4 5 (Id. at 49.) The appellate briefs of both parties reflect that this issue was addressed in detail in the military courts. At trial, which took place between October 12, 1989, and 6 January 11, 1990, Petitioner moved to recuse Captain Guy L. 7 Womack, the prosecutor (referred to in the military record as 8 “trial counsel”), on the ground that he had become an accuser or 9 investigating officer. (Ex. 2, 11, 72; Ex. 1, 45.) The facts 10 concerning Womack’s participation were developed by testimony. 11 Womack participated with NIS agents in the field investigation of 12 the case while possessing an NIS identification card and a 13 firearm, and he had prior professional involvement as a military 14 liaison with the NIS command. 15 a serial killer who was responsible for at least two other 16 murders, but no evidence concerning the other murders was offered 17 during the trial. 18 Womack opined that Petitioner was (Ex. 1, 45.) The government’s appellate brief reflects that the facts 19 developed in the proceedings included the time frame of the 20 pretrial investigation and the details of the determination that 21 Petitioner’s case be referred as a capital case. 22 The decision involved conflicting recommendations of the 23 investigation officer (not Womack), the commanding officer, and 24 the convening authority’s staff judge advocate. 25 had recommended to the staff judge advocate that the case be 26 referred as capital, his recommendation was based on the 27 brutality of the crime and the victim’s status as a dependent 28 wife. (Id. at 73-74.) (Ex. 2, 73.) Although Womack The staff judge advocate recommended that 19 1 the case be referred as capital, but he advised the convening 2 authority that the latter had the discretion to decide and that 3 the pertinent legal criteria should guide the decision. 4 convening authority referred the case as a capital case on 5 October 4, 1989. 6 convening authority, and his advice to the staff judge advocate 7 was not influenced by his relationship with his sister, who later 8 authored an article concerning the case. 9 The Womack had no direct communications with the (Id. at 74.) The military judge denied the defense motion to remove 10 Womack. 11 excessively involved in the investigation, he committed no 12 misconduct. 13 officer as a result of his limited participation in the 14 investigation of Salomon’s murder. 15 Petitioner did not contend on appeal that the convening authority 16 abused it discretion, and he did not attack the military judge’s 17 findings. 18 The judge found that although Womack had become He did not become an accuser or investigating (Ex. 2, 72; Ex. 1, 45.) (Ex. 2, 72, 75.) After the trial, an assistant trial counsel informed 19 Petitioner’s trial-level defense counsel that Womack’s sister had 20 published in a magazine an article concerning Petitioner’s case. 21 (Ex. 1, 46.) 22 prosecutorial misconduct relating to the publishing of the 23 article. 24 proceeding. 25 published in the November 1990 issue of True Detective. 26 73 n.28.) 27 were submitted in connection with the government’s opposition to 28 the motion. Petitioner moved for a hearing into possible (Ex. 2, 73.) The facts were developed in that Petitioner attached a copy of the article, which was (Id. at Affidavits of Womack and his sister, Barbara Malenky, (Id. at 72, 73 n.27.) 20 Their affidavits tended to 1 show that although Womack may have discussed the status and 2 interesting facts of the case with Malenky, Malenky did not have 3 or express an interest in writing about Petitioner’s case before 4 the trial. 5 to write an article about it until she attended the first day of 6 trial on January 2, 1990, in the course of a holiday visit. 7 at 74-75; Ex. 1, 46.) 8 show she had sought to publish other articles, Malenky 9 characterized her article about Petitioner’s case as her first She did not become interested in the case or decide (Id. Although there was evidence tending to 10 attempt to publish a non-fiction article, and Womack did not 11 learn of her intent or interest until the latter part of the 12 trial or after its conclusion. 13 contained some information that was not presented at trial. 14 1, 46-47.) 15 (Ex. 2, 75.) The article (Ex. It thus appears that what this Court understands as the 16 basis for Petitioner’s argument concerning prosecutorial 17 misconduct was fully and fairly reviewed in the military courts. 18 No fundamental, jurisdictional error appears. 19 Petitioner argues that the military tribunals erred in 20 denying a defense motion to remove the prosecutor, who must have 21 given extra-record information to his sister. 22 within the scope of this Court’s review. 23 Mere error is not Petitioner further alleges generally that the military’s 24 appellate judicial officers had previously served in a judicial 25 capacity with the trial judge and thus were inclined to “rubber 26 stamp” the trial judge’s actions. 27 state any specific facts in support of this contention. 28 not demonstrated that any objective factor external to the 21 (Opp. 7.) Petitioner does not He has 1 defense impeded presentation of this argument, that the factual 2 or legal basis for such a claim was not reasonably available to 3 his counsel, or that there was interference by the pertinent 4 officials. 5 Petitioner has not demonstrated cause and prejudice. 6 issue is waived. 7 Cf., Murray v. Carrier, 477 U.S. 478, 488 (1986). Thus, the Accordingly, the Court concludes that with respect to this 8 issue, it is appropriate to deny the petition, and to dismiss the 9 petition for lack of subject matter jurisdiction to the extent 10 that Petitioner seeks this Court to engage in any further review 11 of the actions of the military courts with respect to the issue. 12 VII. 13 Petitioner alleges that his dishonorable discharge was an Petitioner’s Discharge 14 administrative act that violates the Administrative Procedure 15 Act, 5 U.S.C. § 551, and 32 C.F.R. § 45.3, and therefore, the 16 warden at his institution of confinement does not have 17 jurisdiction over him. 18 A. (Pet. 3.) Facts 19 The facts Petitioner alleges are as follows: 20 THE DD FORM 214 WAS PROSCRIBED BY THE C.A. OF THE COURT MARTIAL, FAILING TO FOLLOW PROCEDURES TO LEGALLY TERMINATE MY EMPLOYMENT, (ENLISTMENT). THE JURISDICTIONAL ISSUE, DUE TO THIS VIOLATION OF SUBSTANTIAL RIGHT, FROM THE JUDGE ADVOCATE GENERAL MANUAL, PARA 0101, NEGATES THE U.S.P. WARDEN’S JURISDICTION TO CONFINE THIS MILITARY PRISONER, REGARDLESS OF M.O.U. 94. 21 22 23 24 (Pet. 3.) 25 Respondent argues that the “administrative act by the 26 military to dishonorably discharge the Petitioner” did not take 27 place before the military courts, and therefore it is not 28 22 1 reflected in the trial record. 2 correct. 3 discharge as an administrative act, and he refers to a specific 4 form which does not appear in the record of the court-martial. 5 (Pet. 3.) 6 (Mot. 8:10-12.) Respondent is Petitioner expressly characterizes his dishonorable The Court notes that Petitioner’s appellate brief reports 7 the court-martial’s disposition of Petitioner’s charges as 8 follows: 9 10 11 12 The members sentenced appellant to death, a dishonorable discharge, forfeiture of all pay and allowances, and reduction to pay grade E-1. The convening authority approved only so much of the sentence as extended to confinement for life, in lieu of death, and the remainder of the sentence as adjudged, and, except for the dishonorable discharge, ordered it executed. 13 (Mot., Ex. 1, 8.) The sentence was similarly described in the 14 government’s appellate brief. (Ex. 2, 11.) The United States 15 Navy-Marine Corps Court of Military Review affirmed the findings 16 of guilt and the sentence; there is no indication that it 17 executed the portion of the sentence concerning the dishonorable 18 discharge. (Ex. 3, 4.) The record of “Supplementary General 19 Court-Martial Order Number G-004-94,” dated May 18 or 25, 1994, 20 states that the sentence had been affirmed based on a denial of 21 clemency on September 30, 1993 by the Naval Clemency and Parole 22 Board, and it was further affirmed by the United States Court of 23 Military Appeals on January 26, 1994. (Id. at 12.) The order 24 states that because the provisions of Article 71(c) had been 25 complied with, “the dishonorable discharge will be executed,” and 26 it directs that the “prisoner will be confined” in the United 27 States Disciplinary Barracks, Fort Leavenworth, Kansas, and the 28 23 1 confinement “will be served therein, or elsewhere as competent 2 authority may direct.” 3 Craft, U. S. Marine Corps, the commanding officer of the U.S.M.C. 4 Marine Detachment at Fort Leavenworth, Kansas. 5 (Id.) It is signed by Lt. Col. R. M. (Id.) In response to a query in the petition form seeking to 6 determine whether Petitioner had presented his claims to prison 7 officials in a prison administrative appeal, Petitioner states 8 that the claims are for “JURIST OF THE HIGHEST DEGREE TO ANSWER 9 AS LAW.” (Pet. 3.) Petitioner only generally states in the 10 petition that he has exhausted all military appeals and 11 administrative remedies, “TO INCLUDE CLEMENCY AND PAROLE BOARD 12 REVIEW.” (Pet. 4.) 13 14 15 B. Analysis 1. Subject Matter Jurisdiction Relief by way of a writ of habeas corpus extends to a 16 prisoner in custody under the authority of the United States who 17 shows that the custody violates the Constitution, laws, or 18 treaties of the United States. 19 a federal prisoner who challenges the validity or 20 constitutionality of his conviction must file a petition for writ 21 of habeas corpus pursuant to 28 U.S.C. § 2255, a federal prisoner 22 challenging the manner, location, or conditions of the execution 23 of a sentence must bring a petition for writ of habeas corpus 24 under 28 U.S.C. § 2241. 25 864-65 (9th Cir. 2000). 26 28 U.S.C. § 2241(c)(3). Although Hernandez v. Campbell, 204 F.3d 861, Here, Petitioner, who is confined pursuant to the authority 27 of the United States, appears to be challenging the manner, 28 location, or conditions of the execution of his sentence. 24 1 Accordingly, the Court concludes that it has subject matter 2 jurisdiction over Petitioner’s claim. 3 4 2. Exhaustion of Administrative Remedies As a “prudential matter,” federal prisoners are generally 5 required to exhaust available administrative remedies before 6 bringing a habeas petition pursuant to 28 U.S.C. § 2241. 7 v. Ashcroft, 390 F.3d 1118, 1123 (9th Cir. 2004) (quoting Castro- 8 Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001)); Martinez v. 9 Roberts, 804 F.2d 570, 571 (9th Cir. 1986). Huang The exhaustion 10 requirement applicable to petitions brought pursuant to § 2241 is 11 judicially created and is not a statutory requirement; thus, a 12 failure to exhaust does not deprive a court of jurisdiction over 13 the controversy. 14 1990), overruled on other grounds, Reno v. Koray, 515 U.S. 50, 15 54-55 (1995). 16 Brown v. Rison, 895 F.2d 533, 535 (9th Cir. If a petitioner has not properly exhausted his or her 17 claims, a district court in its discretion may either excuse the 18 faulty exhaustion and reach the merits, or require the petitioner 19 to exhaust his administrative remedies before proceeding in 20 court. 21 excused if the administrative remedy is inadequate, ineffective, 22 or if attempting to exhaust would be futile or would cause 23 irreparable injury. 24 F.3d 924, 925 (9th Cir. 1993); United Farm Workers of America v. 25 Arizona Agr. Emp. Rel. Bd., 669 F.2d 1249, 1253 (9th Cir. 1982). 26 Factors weighing in favor of requiring exhaustion include whether 27 1) agency expertise makes agency consideration necessary to 28 generate a proper record and reach a proper decision; 2) Brown v.Rison, 895 F.2d 533, 535. Exhaustion may be Fraley v. United States Bureau of Prisons, 1 25 1 relaxation of the requirement would encourage the deliberate 2 bypass of the administrative scheme; and 3) administrative review 3 is likely to allow the agency to correct its own mistakes and to 4 preclude the need for judicial review. 5 Ashcroft, 335 F.3d 874, 880-81 (9th Cir. 2003) (citing Montes v. 6 Thornburgh, 919 F.2d 531, 537 (9th Cir. 1990)). 7 Petitioner challenges the administrative aspects of his 8 dishonorable discharge, and specifically, the procedures 9 concerning his “DD Form 214" pursuant to 32 C.F.R. § 45.3, which Noriega-Lopez v. Here, 10 govern the policy and procedures for administrative issuance or 11 re-issuance of DD forms 214 and 215. 12 (Pet. 3.) The precise grounds of Petitioner’s challenge and the facts 13 underlying it are not clear. 14 seeking to challenge the merits of a decision to discharge or 15 separate an officer from the service, or the procedures 16 concerning a discharge certificate under the Administrative 17 Procedure Act, is required to file an administrative claim before 18 the Board for the Correction of Naval Records (BCNR), which is 19 empowered to correct a military record in order to correct an 20 error or to remove an injustice. 21 v. Wallace, 462 U.S. 296, 303 (1983). 22 However, it is established that one 10 U.S.C. § 1552(a); Chappell The board’s final decisions are subject to judicial review 23 and can be set aside if they are arbitrary, capricious, or not 24 supported by substantial evidence. 25 at 303. 26 correct or change a military record may be reviewed by a federal 27 court to see if it is arbitrary, capricious, contrary to law, or 28 not supported by substantial evidence. Chappell v. Wallace, 462 U.S. Specifically, a final decision of the BCNR not to 26 Calloway v. Harvey, 590 1 F.2d 29, 35 (D.D.C. 2008). 2 to substitute its judgment for that of the agency where there is 3 a satisfactory explanation for the action and a rational 4 connection between the facts found and the choice made. 5 policies support giving the widest possible latitude to the armed 6 services in their administration of personnel matters, and there 7 is a strong presumption that military administrators have 8 discharged their duties correctly, lawfully, and in good faith. 9 Id. 10 A court in such a proceeding is not Strong Here, Petitioner appears to be challenging the merits of the 11 decision to discharge him. 12 system of the military renders especially weighty the need to 13 develop a factual record in an expert forum. 14 likelihood that the agency will correctly apply the pertinent 15 regulations within its area of administrative expertise, correct 16 its own mistakes, if any, and preclude the need for judicial 17 review. 18 In this case, the unique disciplinary There is a high Accordingly, the Court declines to review Petitioner’s claim 19 concerning the administrative aspects of his discharge because 20 Petitioner has not alleged or established that he has exhausted 21 his administrative remedies before the BCNR. 22 will be dismissed, and Respondent’s motion to dismiss 23 Petitioner’s first claim concerning his discharge will be 24 granted. 25 Petitioner’s claim In his opposition, Petitioner makes assertions that appear 26 to contradict his statement in the petition that he is a military 27 prisoner. 28 competent authority have relinquished the right to hold him Petitioner states that the Marine Corps and any 27 1 because he has now become a civilian and is no longer a military 2 prisoner; the time remaining on his sentenced imposed by the 3 court-martial ended when he was discharged. (Opp. 9, 12-13.) 4 further refers to the absence of a memorandum of understanding 5 between the United States and the Federal Bureau of Prisons that 6 would allow the latter to house military prisoners. 7 11.) 8 deprive this Court of jurisdiction by transferring Petitioner 9 from the United States Prison at Atwater, California, to the He (Opp. 10- Finally, he appears to argue that Respondent attempted to 10 Federal Correctional Institution at Sheridan, Oregon. 11 15.). 12 Respondent and Petitioner's transfer did not extinguish that 13 jurisdiction. (Opp. 14- As this Court has noted, it has jurisdiction over 14 With respect to the remainder of Petitioner’s arguments, the 15 Court concludes that they are not sufficiently intelligible to be 16 addressed. 17 administrative remedies with respect to them renders it 18 inappropriate to address them in this proceeding. 19 U.S.C. § 858(a), expressly provides that a sentence of 20 confinement adjudged by a court-martial or other military 21 tribunal may be carried into execution by confinement in any 22 place of confinement under the control of any of the armed forces 23 or in any penal or correctional institution under the control of 24 the United States, or which the United States may be allowed to 25 use. 26 regardless of whether or not the sentence included discharge or 27 dismissal, and whether or not the discharge or dismissal has been 28 executed. Further, Petitioner’s apparent failure to exhaust Title 10, The statute further expressly provides that this is so Accordingly, the Court is unable to discern 28 1 Petitioner’s precise contention or contentions concerning the 2 execution of his sentence. 3 exhaustion of administrative remedies is appropriate. Under such circumstances, requiring 4 VIII. 5 Accordingly, it is ORDERED that: 6 1) Respondent’s motion to dismiss is GRANTED in part; and 7 2) The first claim in the petition for writ of habeas Disposition 8 corpus, which concerns Petitioner’s discharge, is DISMISSED 9 without prejudice for Petitioner’s failure to exhaust 10 administrative remedies; and 11 3) Petitioner’s petition for writ of habeas corpus is DENIED 12 with respect to his second and third claims, which concern 13 allegedly prejudicial conversations and prosecutorial misconduct, 14 because the military tribunals gave full and fair consideration 15 to such claims; and 16 4) Insofar as Petitioner seeks from this Court any further 17 review of his second and third claims, the petition for writ of 18 habeas is DISMISSED for lack of subject matter jurisdiction; and 19 5) The Clerk is DIRECTED to enter a judgment for Respondent 20 on the Petitioner’s second and third claims. 21 22 IT IS SO ORDERED. 23 Dated: ie14hj November 15, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 29