Opinion
C. A. 9:21-cv-01953-JFA-MHC
07-18-2022
Alan D. Dorrbecker, Petitioner, v. Commander Johnny L. Mincey, Naval Consolidated Brig, Charleston, SC, Respondent.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Petitioner Alan D. Dorrbecker (“Petitioner”), who is currently confined at the Naval Brig in Charleston, South Carolina, petitions the court for a writ of habeas corpus under 28 U.S.C. § 2241. ECF No. 1. Respondent Commander Johnny L. Mincey (“Respondent”) filed a Motion to Dismiss or, in the alternative, for Summary Judgment (“Motion”). ECF No. 15. Petitioner filed a Response in Opposition, ECF No. 20, and Respondent filed a Reply, ECF No. 24. The Motion is now ripe for review.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), all pretrial proceedings in this matter have been assigned to the undersigned. Because the Motion is a dispositive motion, this Report and Recommendation is entered for review by the District Judge. For the reasons that follow, the undersigned recommends that Respondent's Motion be granted, and the Petition be dismissed.
I. BACKGROUND
The procedural history as described by Respondent has not been disputed by Petitioner in his Response and is set forth as follows. In June 2017, Petitioner was tried by a general court-martial consisting, by his selection, of a military judge sitting alone. ECF No. 15-1 at 1. Petitioner's conviction stemmed from his conduct at Naval Support Activity Naples, Italy, while serving on active duty in the United States Navy. Specifically, Petitioner, who was a Captain in the United States Navy, attempted to engage in a sexual relationship with S.M., a then-14-year-old United States citizen and dependent of two United States government employees of the Naval Criminal Investigative Service (NCIS). ECF No. 15-1 at 2 (citing ECF No. 22, ROTA 000621-000623).
“ROTA” is the military Record of Trial and Appeals. See ECF No. 14 at 1.
In the general court-martial, Petitioner pled guilty to two specifications of attempted sexual abuse of a child, in violation of Article 80, Uniform Code of Military Justice (“UCMJ”), 10 U.S.C. § 880. ECF No. 15-1 at 2 (citing ECF No. 22, ROTA 000595); see also UCMJ Art. 120b, 10 U.S.C. § 920b. Petitioner was also convicted of five other charges for which he had pled not guilty: one specification of attempted sexual assault of a child; two specifications of attempted sexual abuse of a child; one specification of violating a lawful general order; and one specification of conduct unbecoming an officer and a gentleman, in violation respectively of Articles 80, 92, and 133, UCMJ, 10 U.S.C. § 880, 892, 933. ECF No. 15-1 at 2 (citing ECF No. 22, ROTA 001045-001046).
The military judge sentenced Petitioner to eight years of confinement, forfeiture of all pay and allowances, and dismissal from the naval service. ECF No. 15-1 at 3 (citing ECF No. 22, ROTA 001234). Pursuant to a pretrial agreement, the convening authority approved the dismissal and eight years confinement as adjudged, disapproved the adjudged forfeitures, and, except for the dismissal, ordered the sentence executed. ECF No. 15-1 at 3 (citing ECF No. 22, ROTA 000326). Following the submission of defense matters during the post-trial process, the court-martial convening authority approved Petitioner's sentence of confinement for eight years and a dismissal from the naval service. ECF No. 15-1 at 3 (citing ECF No. 22, ROTA 000342). Petitioner's case was thereafter submitted to the Navy-Marine Corps Court of Criminal Appeals (“NMCCA”) for mandatory review under Article 66, UCMJ, 10 U.S.C. § 866. ECF No. 15-1 at 3 (citing ECF No. 22, ROTA 000346).
Respondent explained the post-trial process begins with defense submissions on matters to the convening authority, noting:
A dismissal is a punishment available only for officers of the armed forces and is equivalent to a Dishonorable discharge. Prior to taking action, the convening authority must consider the result of trial, the recommendation of the staff judge advocate, and any matters submitted by the accused, including requests for clemency and matters in mitigation. The convening authority may consider the record of trial, the personnel records of the accused and other appropriate matters. If other matters considered are adverse to the accused, the accused has a right to be notified and have an opportunity to rebut.ECF No. 15-1 at 3 n.2.
The NMCCA concluded the approved findings and sentence were correct and affirmed the sentence as approved by the convening authority. United States v. Dorrbecker, 79 M.J. 558, 560 (N-M. Ct. Crim. App. 2019). The Court of Appeals for the Armed Forces (“CAAF”) denied Petitioner's motion for a grant of review. United States v. Dorrbecker, 79 M.J. 298 (C.A.A.F. 2019)
Petitioner subsequently filed a petition for extraordinary relief in the nature of habeas corpus with the NMCCA. ECF No. 15-1 at 4 (citing ECF No. 22, ROTA 000008). Because Petitioner's discharge had been executed and the findings and sentence were final after his appellate review, his petition was denied for lack of jurisdiction because of his dismissal from the U.S. Navy in September 2020. See In re Dorrbecker, 81 M.J. 219 (C.A.A.F. 2021).
In June 2021, Petitioner filed the current Petition in this Court. ECF No. 1. The Petition presents two grounds for relief:
GROUND ONE: The court-martial was barred from exercising subject-matter jurisdiction as to the offenses of which it convicted Petitioner []because the U.S. NATO Status of Forces Agreement (“SOFA”) assigns those offenses to the primary jurisdiction, an Italian court, which Italy did not waive.
GROUND TWO: The Navy-Marine Corps did not fully and fairly conduct an Article 66, UCMJ Review as to specifications 5 and 7 of Charge I, because a contingent mens rea does not constitute an attempt under Art. 80, UCMJ.ECF No. 1 at 6. Petitioner asks that this Court “grant his application for a writ of habeas corpus, dismiss the findings of the court-martial for jurisdictional error, and order his immediate release.” ECF No. 1 at 7.
II. LEGAL STANDARDS
Respondent moves for dismissal of the § 2241 Petition pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure or, in the alternative, for Summary Judgment pursuant to Rule 56. As this is a Petition contesting a military court's decision, special considerations limit this Court's review.
A. Rule 12(b)(1)
A motion to dismiss under Rule 12(b)(1) represents a challenge to the Court's subject matter jurisdiction. Arbaugh v. Y & H Corp., 546 U.S. 500, 507 (2006). “When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff.” Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). In deciding such a motion, “the district court may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” In re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 333 (4th Cir. 2014) (internal quotation marks omitted). When determining whether subject matter jurisdiction is present, the court applies the standard applicable to motions for summary judgment where the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists. Richmond, 945 F.2d at 768 (citing Trentacosta v. Frontier Pacific Aircraft Indus., 813 F.2d 1553, 1559 (9th Cir. 1987)). “The moving party should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Id.
B. Rule 12(b)(6)
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)); see Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of [affirmative] defenses.”). Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), such that the defendant will have “fair notice of what the claim is and the grounds upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'” Robinson v. Am. Honda Motor Co., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
When addressing a motion to dismiss under Rule 12(b)(6), a court generally may not look outside the facts contained within the complaint, unless it treats the motion to dismiss as a motion for summary judgment. Anand v. Ocwen Loan Servicing, 754 F.3d 195, 198 (4th Cir. 2014); Fed.R.Civ.P. 12(d). However, a court “may properly consider documents attached to a complaint or motion to dismiss ‘so long as they are integral to the complaint and authentic.'” Anand, 754 F.3d at 198 (citation omitted). Additionally, a court may take judicial notice of “matters of a public record.” Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citation omitted).
C. Summary Judgment Standard
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
D. Federal Courts' Habeas Review of Court-Martial Decisions
A federal court with jurisdiction over habeas applications from persons confined by civil courts has jurisdiction over habeas applications from persons confined by military courts. Burns v. Wilson, 346 U.S. 137, 139 (1953). However, in reviewing military habeas applications, the scope of matters open for review by a federal court is narrow. Id.; see Willenbring v. United States, 559 F.3d 225, 232 (4th Cir. 2009) (“It is clear [ ] that a federal court reviewing a military habeas petition is normally not at liberty to revisit a military court's evidentiary rulings or findings.” (citation omitted)). This is because the military has its own independent criminal justice system governed by the Uniform Code of Military Justice, 10 U.S.C. §§ 801-940, and the Manual for Courts-Martial (“MCM”), which is all-inclusive and provides, inter alia, for courts-martial, post-trial clemency, appellate review, and, under some circumstances, certiorari review in the Supreme Court of the United States. Lips v. Commandant, U.S. Disciplinary Barracks, 997 F.2d 808, 810 (10th Cir. 1993); see also Burns, 346 U.S. at 140-45. Accordingly, when federal courts review court-martial convictions, special considerations are involved “[b]ecause of the independence of the military court system.” Lips, 997 F.2d at 810.
Consequently, although federal district courts have jurisdiction to consider § 2241 petitions from prisoners incarcerated by military tribunals, they are not given carte blanche to review and redecide issues considered and decided by the military courts. See Burns, 346 U.S. at 142. Rather, this Court's role is limited to determining whether the military courts gave an issue “full and fair consideration.” Lips, 997 F.2d at 811; United States v. Willenbring, 178 Fed.Appx. 223, 224 (4th Cir. 2006). The Fourth Circuit has yet to interpret the “full and fair consideration” standard. See, e.g., Ward v. United States, 982 F.3d 906, 912-13 (4th Cir. 2020) (declining to delve into “complicated issues” concerning whether the military courts fully considered the petitioner's claim). Nor have other federal circuit courts defined a uniform standard. See Armann v. McKean, 549 F.3d 279, 289 n.10 (3d Cir. 2008) (collecting cases). As a result, many district courts- including this one-have turned to available guidance from the Tenth Circuit, which instructs federal district courts to consider the following factors before granting habeas review of a military conviction:
Because the United States Disciplinary Barracks are located at Fort Leavenworth, Kansas, the Tenth Circuit has the most developed and “advanced analysis in this specialized area of the law.” Romev v. Vanyur, 9 F.Supp.2d 565, 569 (E.D. N.C. 1998).
(1) the asserted error is of substantial constitutional dimension; (2) the issue is one of law rather than of disputed fact already determined by the military tribunal; (3) there are no military considerations that warrant different treatment of constitutional claims; and (4) the military courts failed to give adequate consideration to the issues involved or failed to apply proper legal standards.Lips, 997 F.2d at 811 (citing Dodson v. Zelez, 917 F.2d 1250, 1252-53 (10th Cir. 1990)). While all four factors are relevant, the last has been viewed as the most important. See id. (“Under Burns, if the military gave full and fair consideration to claims asserted in a federal habeas corpus petition, the petition should be denied. Only when the military has not given a petitioner's claims full and fair consideration does the scope of review by the federal civil court expand.”); see also Thomas v. U.S. Disciplinary Barracks, 625 F.3d 667, 671 (10th Cir. 2010).
Unless the military court failed to consider an issue properly presented to it, federal district courts should not review that issue. If an issue is briefed and argued before a military board of review, federal courts have generally found that the issue has been given full and fair consideration, even if the military court summarily denies it. See, e.g., Thomas, 625 F.3d at 671 (declining to “presume a military appellate court ha[d] failed to consider all the issues presented to it before making a decision” despite the fact that the military courts did not hear oral argument or supply any reasoning supporting the dismissal of the petitioner's claims); Armann, 549 F.3d at 293-96 (finding that although the Army Court of Criminal Appeals (“ACCA”) and the CAAF held no oral argument and the CAAF issued only a one-sentence order affirming the ACCA's decision, the military courts had fully and fairly considered the petitioner's mental competency claims).
III. DISCUSSION
Petitioner argues that: (1) the court-martial was barred from exercising subject matter jurisdiction because the NATO Status of Forces Agreement (“SOFA”) assigns primary jurisdiction for his offenses to the Italian authorities, and Italy did not waive jurisdiction; and (2) military courts wrongfully affirmed his conviction because he did not have the requisite mens rea for the offenses of attempted sexual assault of a child and attempted sexual abuse of a child. ECF No. 1 at 8. As explained below, neither claim presents grounds for habeas relief.
A. Ground One: NATO SOFA
Petitioner attacks the jurisdiction of the court-martial itself, asserting that the court lacked subject-matter jurisdiction. Specifically, he contends the NATO SOFA vested jurisdiction with Italy and, because Italy did not waive its primary jurisdiction pursuant to the NATO SOFA, the United States lacked subject-matter jurisdiction over his offenses.
United States service members, government civilian employees, contractors, and their dependents in Italy live there pursuant to the NATO SOFA. See Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, T.I.A.S. No. 2846, 4 U.S.T. 1792, 1953 WL 44517 (Aug. 23, 1953). For criminal offenses, the NATO SOFA allocates jurisdiction between sending and receiving nations-in this case, the United States and Italy, respectively. The SOFA does so without using the terms “personal” and “subject-matter” jurisdiction and does not set forth discrete rules for assigning jurisdiction over an offense separate from assigning jurisdiction over an individual. Instead, the SOFA provides a narrow set of instances in which either the United States or Italy would exercise “exclusive” jurisdiction, and other situations where both nations might exercise “concurrent” jurisdiction. See NATO SOFA, 4 U.S.T. 1792, Art. VII(1)-(3), 1953 WL 44517, at *3-4.
With regard to “exclusive” jurisdiction, Article VII, paragraph 2 of the SOFA affords the United States and Italy exclusive jurisdiction with respect to offenses that the other nation does not punish.
With regard to “concurrent” jurisdiction, one nation has the “primary right” to exercise jurisdiction, while the other's jurisdiction is subordinate. The applicable rules provide:
3. In cases where the right to exercise jurisdiction is concurrent the following rules shall apply:
(a) The military authorities of the sending State shall have the primary right to exercise jurisdiction over a member of a force or of a civilian component in relation to
(i) offences solely against the property or security of that State, or offences solely against the person or property of another member of the force or civilian component of that State or of a dependent;
(ii) offences arising out of any act or omission done in the performance of official duty.
(b) In the case of any other offence the authorities of the receiving State shall have the primary right to exercise jurisdiction.NATO SOFA, 4 U.S.T. 1792, Art. VII(3)(a)-(b), 1953 WL 44517, at *3-4.
In Petitioner's case, neither country has exclusive jurisdiction because both countries criminalize sexual abuse of minors. Nevertheless, Petitioner argues that the offenses in question were not subject to court-martial jurisdiction because Italy did not waive its primary right to exercise jurisdiction over the offenses, and he appears to maintain that Italy's jurisdiction is exclusive until the primary right is waived. See ECF No. 1 at 8, 13-21.
Respondent argues that Petitioner presents a non-justiciable question, as Petitioner lacks standing to contest an alleged breach of a treaty between nations. ECF No. 15-1 at 12-14. Respondent further argues that, alternatively, Petitioner's claim lacks merit because Petitioner's arguments rest on a flawed understanding of the SOFA and how it allocates jurisdiction. The Court agrees fully with Respondent.
1. Petitioner lacks standing to challenge a SOFA violation
Petitioner frames his argument as one that deals with jurisdictional issues; however, at its core, Petitioner's claim rests on the allegation that the United States violated the SOFA when it exercised jurisdiction over him to convene the court-martial. In essence, Petitioner asks this Court to find a violation of a treaty and resolve a potential conflict between two sovereign nations. See ECF No. 1-1 at 18 (“This court should find that the clear terms of the SOFA prohibit both sovereigns from exercising jurisdiction over the subject matter of the same offense.”).
Petitioner does not have standing to bring forth a claim alleging a violation of an international agreement like the SOFA. Federal courts have held that alleged violations of other SOFA treaties should be addressed diplomatically between two nations. See Patterson v. Wagner, 785 F.3d 1277, 1285 (9th Cir. 2015) (“The [U.S.-South Korea] SOFA's provisions thus establish a diplomatic conflict resolution scheme with no role for the judiciary.”); Matter of Burt, 737 F.2d 1477, 1488 (7th Cir. 1984) (“[I]t is well settled that the recourse for such a treaty violation in these circumstances is diplomatic, not judicial.”); Holmes v. Laird, 459 F.2d 1211, 1222 (D.C. Cir. 1972) (“[T]he rights [appellants] claim to the provisions of an international agreement the enforcement mechanism of which is diplomatic recourse only.”).
In a case that parallels the facts of this case, the District Court for the Southern District of California determined that a petitioner raising nearly identical arguments lacked standing to challenge jurisdiction based on an alleged violation of the U.S.-Japan SOFA. Brazell v. Uddenberg, No. 19-CV-01084-JLS-MSB, 2020 WL 6741673, at *3 (S.D. Cal. Nov. 17, 2020) (“Petitioner cannot challenge jurisdiction resting on the violation of the U.S.-Japan SOFA because a violation of the SOFA must be resolved diplomatically between the two nations.”). The undersigned agrees with the reasoning set forth by the District Court in Brazell and the cases cited therein, along with Respondent's arguments and cited cases. See id. (“The Court determines that Petitioner has no standing to allege his conviction in a U.S. court-martial constituted a violation of the U.S.-Japan SOFA.”); ECF No. 15-1 at 12-14. Accordingly, the undersigned recommends dismissing Petitioner's Ground One pursuant to Rule 12(b)(1).
The petitioner in Brazell was a former active-duty member of the United States Air Force and was tried via court-martial for sexual assault of a child and sexual abuse of a child in violation of Article 120b, UCMJ, 10 U.S.C. § 920b. Brazell, No. 19-CV-01084-JLS-MSB, 2020 WL 6741673, at *1. M.L., the 12-year-old alleged victim, was a temporary guest of her father, J.L., at his off-base residence in Okinawa, Japan at the time of the alleged assaults. Id. J.L. was in Japan working as a civilian government contractor for Lockheed Martin. Id. The petitioner argued that the court-martial lacked subject-matter jurisdiction because Japan did not waive its primary right to exercise jurisdiction over the offenses prior to the court-martial. Id. at *2. Similar to this case, the petitioner in Brazell maintained that pursuant to the U.S.-Japan SOFA, Japan's jurisdiction is exclusive until the primary right is waived. Id.
2. Petitioner's claims are meritless
Alternatively, even if Petitioner had standing to challenge the alleged violation of the NATO SOFA, Petitioner has failed to show how subject-matter jurisdiction was lacking.
Subject-matter jurisdiction is established by showing military status at the time of the commission of an offense punishable by the UCMJ. United States v. Ali, 71 M.J. 256, 261 (C.A.A.F. 2012) (citation omitted); see generally Solorio v. United States, 483 U.S. 435, 439 (1987) (“In an unbroken line of decisions from 1866 to 1960, [the Supreme Court has] interpreted the Constitution as conditioning the proper exercise of court-martial jurisdiction over an offense on one factor: the military status of the accused.”). Subject-matter jurisdiction is exercised “over the offenses” and personal jurisdiction is exercised “over the accused.” See, e.g., United States v. Nealy, 71 M.J. 73, 76 (C.A.A.F. 2012). After the Supreme Court's decision in Solorio, “the status of the individual is the focus for determining both jurisdiction over the offense and jurisdiction over the person.” Ali, 71 M.J. at 264 (citations omitted). “The only difference is that jurisdiction over the person depends on the person's status as a ‘person subject to the Code' both at the time of the offense and at the time of trial.” Id. at 265 (citations omitted).
Here, it is uncontested that Petitioner was a senior officer in the United States military and was on active-duty status at the time of the offenses, and those offenses were punishable under the UCMJ. Thus, jurisdiction was established. See United States v. Hennis, 75 M.J. 796, 811 (A. Ct. Crim. App. 2016) (“[A]n accused's military status at the time of the offense under the UCMJ is the sole criterion for establishing subject matter jurisdiction in a court-martial, capital or otherwise.”), aff'd, 79 M.J. 370 (C.A.A.F. 2020).
Petitioner's arguments-that are grounded on the idea that Italy had the primary right to exercise jurisdiction-are meritless. See ECF No. 1-1 at 13-21. Article VII, paragraph 3(a)(i) of the NATO SOFA states that the military authorities of the United States “shall have the primary right to exercise jurisdiction over a member of a force” in relation to “offences solely against the person or property of another member of the force or civilian component of that State or of a dependent.” NATO SOFA, 4 U.S.T. 1792, Art. VII(3)(a)-(b), 1953 WL 44517, at *3-4 (emphasis added). Here, the relevant parties and acts were of concern only to the United States. Petitioner's crime was an attempt to commit a sexual act with a minor U.S. citizen, which was brought to the attention of her parents, U.S. civilian employees with NCIS, a U.S. law enforcement agency. Petitioner's offenses were charged as attempted violations of the UCMJ, a criminal code designed specifically to address criminal misconduct by members of the U.S. armed forces. Petitioner's conduct occurred via electronic communications with S.M. and NCIS agents portraying S.M., and it transpired almost entirely on United States military property and within an insular community of United States service members, civilian personnel, and their dependents. Petitioner's contention that Italy would have the primary right to exercise jurisdiction over this matter requires one to ignore the SOFA's plain terms. See NATO SOFA, 4 U.S.T. 1792, Art. Vn(3)(a)-(b), 1953 WL 44517, at *3-4.
Petitioner strains to avoid this reality by arguing that the language in Article VII, paragraph 3(a)(i)-which says that the U.S. has the primary right to exercise jurisdiction in relation to “offences solely against the person”-does not apply to Petitioner's case because the charged offenses weren't “solely” against S.M. and were not “against the person” of S.M. See ECF No. 11 at 14-16. Petitioner argues that sexual acts also offend the public decency, and by extension, the people of Italy, and thus Petitioner's crimes were not “solely against the person” but rather the entire country of Italy via the nebulous idea of public decency.
Even if the Court were to entertain Petitioner's argument that Italy had the primary right to exercise jurisdiction, Petitioner's contention-that this “primary right” to exercise jurisdiction is exclusive until the primary right is waived-has been rejected by the military courts. See Brazell v. Uddenberg, No. MC 2018-08, 2019 WL 366306, at *3 (A.F. Ct. Crim. App. Jan. 28, 2019) (“Petitioner argues this primary right is effectively exclusive until the primary right is affirmatively waived. We disagree. Even assuming arguendo that provisions of the SOFA have the force of United States law as Petitioner claims they do, we decline to interpret a primary right to exercise concurrent jurisdiction as an exclusive right of jurisdiction.” (emphasis in original)).
Finally, even if this Court were to assume Petitioner had standing, the military courts and the Rule for Courts-Martial squarely rebuke Petitioner's position on his Ground One claim. See, e.g., United States v. Choisnard, No. ACM 36654, 2008 WL 2853036, at *4 (A.F. Ct. Crim. App. July 15, 2008) (“These authorities provide that he has no standing to object to ‘violations' of the SOFA and even if he did, the court-martial still would have jurisdiction because of the appellant's active duty status.” (emphasis added)); United States v. Murphy, 50 M.J. 4, 7 (C.A.A.F. 1998) (“Assuming, however, that appellant has standing to complain about the exercise of jurisdiction over him by the U.S. Army, he nevertheless loses. The Supreme Court in Solorio [], held that the test for whether a military court-martial has jurisdiction to try an accused is the military status of the accused.”); see also R.C.M. 201(d)(3) (“Where an act or omission is subject to trial by court-martial and by one or more civil tribunals, foreign or domestic, the determination which nation, state, or agency will exercise jurisdiction is a matter for the nations, states, and agencies concerned, and is not a right of the suspect or accused.”). Accordingly, the undersigned recommends dismissing Petitioner's Ground One claim.
B. Ground Two Mens Rea
Petitioner's second asserted ground for relief is that the NMCCA did not properly conduct a review of his case because the court purportedly failed to apply proper legal standards in affirming his conviction. See ECF No. 1-1 at 21-22. Specifically, Petitioner claims that “contingent mens rea” is not found within the UCMJ and cannot constitute an attempt under Article 80. Id.
Respondent argues that this Court does not reach the underlying merits of Petitioner's claims, as the record indicates that the military courts have already fully and fairly considered this argument, which precludes review in this Court. The undersigned agrees.
As noted above, a federal court's review of court-martial proceedings is limited. If the issues raised in the habeas petition have been given full and fair consideration in the military courts, a district court should not reach the merits and should deny the petition. See Lips, 997 F.2d at 811 (“Under Burns, if the military gave full and fair consideration to claims asserted in a federal habeas corpus petition, the petition should be denied. Only when the military has not given a petitioner's claims full and fair consideration does the scope of review by the federal civil court expand.”); see also Thomas, 625 F.3d at 671.
Here, the military courts fully and fairly considered Petitioner's claim, as the nature of Petitioner's specific intent was litigated during all phases of his court-martial. As fully detailed in Respondent's brief, at trial, following the government's case, Petitioner's defense counsel moved to dismiss certain specifications of the charged offenses, alleging the government failed to establish his specific intent with respect to those charged offenses. ECF No. 15-1 at 20 (citing ECF No. 22, ROTA 000930-000943). In his request for clemency, Petitioner challenged his conviction, asserting the government failed to prove his specific intent because “[s]pecific intent is not conditional intent,” and “specific intent cannot have a condition precedent.” ECF No. 15-1 at 21 (citing ECF No. 22, ROTA 000360). Legal counsel for the convening authority noted the evidence presented at trial which established Petitioner's intent to engage in sexual intercourse with S.M., and the court's finding that the evidence was sufficient to establish Petitioner's specific intent beyond a reasonable doubt. ECF No. 15-1 at 21 (citing ECF No. 22, ROTA 000350).
On appeal, Petitioner argued that the government failed to prove he had the requisite specific intent to commit the attempted offenses to which he did not plead guilty. Specifically, he claimed that his intent when he drove to the house where he believed S.M. to be waiting for him was conditional on S.M.'s consent to physical contact and sexual intercourse. United States v. Dorrbecker, 79 M.J. 558, 563 (N-M. Ct. Crim. App. 2019). After examining Petitioner's claims of error, the NMCCA found that Petitioner's extensive emails to S.M., his detailed journal entries evidencing his lust for S.M. as well as his guilty conscience for his sexual longing for a minor, and the fact that he brought condoms and sexual lubricant to S.M.'s residence, all directly evidenced his intent to commit the underlying offenses. Id. at 564-65. The NMCCA ultimately found “that a reasonable finder of fact could easily conclude that the appellant possessed the requisite mens rea for both specifications and that his travel to the rendezvous location was a sufficient actus reus to constitute a substantial step towards completion of the offenses.” Id. at 566.
Accordingly, all of the issues raised by Petitioner were fully and fairly considered by the military courts. Petitioner merely attempts to relitigate what was briefed and argued before the NMCCA. The NMCCA disposed of these claims in a full written opinion. Cf. Thomas, 625 F.3d at 671 (declining to “presume a military appellate court ha[d] failed to consider all the issues presented to it before making a decision” despite the fact that the military courts did not hear oral argument or supply any reasoning supporting the dismissal of the petitioner's claims); Armann, 549 F.3d at 293-96 (finding that, although the CAAF issued only a one-sentence order affirming the ACCA's decision, the military courts had fully and fairly considered the petitioner's mental competency claims).
Because these grounds received full and fair consideration, habeas review is not warranted as it would require this Court to impermissibly re-assess the evidence. See, e.g., Clifft v. Brobst, No. 4:18-cv-2823-DCC-TER, 2019 WL 6120398, at *4 (D.S.C. Oct. 21, 2019) (finding the court could not address merits of petitioner's claims because the military courts fully and fairly considered them; the claims were briefed and argued in military court, and were disposed of in a written opinion), report and recommendation adopted, No. 4:18-CV-02823-DCC, 2019 WL 6117741 (D.S.C. Nov. 18, 2019), aff'd, 806 Fed.Appx. 215 (4th Cir. 2020); Grafmuller v. Wegner, No. 2:13CV50, 2013 WL 4808881, at *9 (E.D. Va. Aug. 9, 2013) (“[I]n light of the AFCCA's detailed opinion and [Petitioner's] thorough briefing prior to the CAAF's summary denial, these claims received full and fair consideration by the military courts. Accordingly, the undersigned recommends these claims be dismissed.”), report and recommendation adopted, No. 2:13CV50, 2013 WL 4804288 (E.D. Va. Sept. 5, 2013), aff'd, 571 Fed.Appx. 184 (4th Cir. 2014); Miller v. Air Force Clemency & Parole Bd., No. CIV.A. JFM-10-2621, 2011 WL 4402497, at *10 (D. Md. Sept. 20, 2011), (“[Petitioner's] claims in Grounds One, Two and Three have been fully and fairly considered by the military courts. When a military decision has dealt fully and fairly with an allegation raised in a habeas case, ‘it is not open to a federal civil court to grant the writ simply to re-evaluate the evidence.'” (quoting Burns, 346 U.S. at 142)), aff'd, 472 Fed.Appx. 210 (4th Cir. 2012). Accordingly, the undersigned recommends Petitioner's Ground Two claim be dismissed.
IV. CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Respondent's Motion be GRANTED and that this Petition be DENIED WITH PREJUDICE.
The parties are directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court Post Office Box 835 Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).