Opinion
CASE NO. 99-3099-RDR
July 18, 2000
Nancy C. Townsend, petitioner, pro se.
D. Brad Bailey and Mary K. Ramirez, Office of United States Attorney Topeka, KS for MICHEAL A. LANSING, Colonel, respondent.
MEMORANDUM AND ORDER
This matter is before the court on a petition for habeas corpus filed pursuant to 28 U.S.C. § 2241 by an inmate at the United States Disciplinary Barracks, Fort Leavenworth, Kansas. This matter is ripe for review, and the court enters the following findings and order.
Factual background
Petitioner was convicted in August 1994 by a court-martial of larceny and conspiracy to commit larceny for stealing approximately $480,000.00 in U.S. and Italian currency and a U.S. Treasury check worth more than $20,000.00. These crimes occurred while the petitioner was a deputy accounting and finance officer at San Vito Air Station, Italy. She was sentenced to eight years confinement, reduction to the grade of E-1, a dishonorable discharge, total forfeitures, and a fine of $175,000.00, with an additional five years confinement to be served if she failed to pay the fine.
The convening authority approved the sentence on November 16, 1994, and notified petitioner by a separate memorandum that the fine was due and payable by December 16, 1994. On December 24, 1994, the convening authority ordered a contingent confinement hearing due to petitioner's failure to pay the fine.
The contingent confinement hearing was conducted on April 5, 1995, by the military judge who presided at petitioner's trial. Following the hearing, the judge recommended the fine be remitted and the contingent confinement provision executed, requiring petitioner to serve an additional five years. The judge made the following findings concerning petitioner's ability to pay the fine:
I find that the accused has not proven by a preponderance of the evidence that she is indigent. In fact, I find her feeble attempt to establish her indigency to be appallingly lacking. Even if she gave away $68,800 as she claims to family and friends, she has not demonstrated that she made a good faith effort to get any of that stolen money back. [. . .] She did not even come up with a penny of the fine until three months after the fine was due. In sum after reviewing the evidence in this case I am firmly convinced that the accused is not indigent; she has merely scattered her assets and decided to keep the stolen money for family, friends and herself. To the extent that her unsworn statement indicates that she is unable, rather than unwilling, to recover any of the stolen money from family and friends, I find that to be untrue and not supported by the evidence presented. I find that the accused has not made a sufficient good faith effort to pay the fine. (Doc. 9, Attach. C, Contingent Confinement Hearing, Findings and Recommendations, par. 6.)
On May 15, 1995, the convening authority remitted the fine and ordered the execution of the contingent confinement period. The sentence was affirmed in April 1996.
In this habeas corpus action, petitioner alleges the convening authority lacked the authority to transform her fine into extended confinement because she no longer was under his command, that the failure to consider alternative methods of payments violated her constitutional rights, and that it was unlawful to impose an alternative sentence.
Standard of review
A federal court has limited authority to review court-martial proceedings. The scope of review is initially limited to determining whether the claims raised by the petitioner were given full and fair consideration by the military courts. Lips v. Commandant, United States Disciplinary Barracks, 997 F.2d 808, 811 (10th Cir. 1993), cert. denied, 510 U.S. 1091 (1994). If the issues have been given full and fair consideration in the military courts, the district court should not reach the merits and should deny the petition. Id. When a military court decision has dealt fully and fairly with an allegation raised in a federal habeas petition, it is not open to the federal court to grant the writ by reassessing the evidentiary determinations. Burns v. Wilson, 346 U.S. 137, 142 (1976).
If an issue is brought before the military court and is disposed of, even summarily, the federal habeas court will find that the issue has been given full and fair consideration. Watson v. McCotter, 782 F.2d 143, 145 (10th Cir.), cert. denied, 476 U.S. 1184 (1986). If an issue was not raised before the military courts, the federal habeas court will deem that issue waived and not subject to review. Id.
Even where the federal court may reach the merits of a petition, its review is limited. In Dodson v. Zelez, 917 F.2d 1250 (10th Cir. 1990), this review was defined by four factors a federal court should consider in evaluating a petition for habeas corpus relief from a military conviction: (1) whether the claimed error is of substantial constitutional dimension; (2) whether a legal, rather than a factual, issue is involved; (3) whether military considerations warrant different treatment of constitutional claims such that federal civil court intervention would be inappropriate; and (4) whether the military courts have given adequate consideration to the claimed error and applied the proper legal standard. Id. at 1252-53.
Discussion
Petitioner's claim the convening authority lacked jurisdiction to execute the contingent period of confinement was reviewed by the Air Force Court of Criminal Appeals when it decided her action for writ of coram nobis. That court held that because petitioner had not been formally transferred to a new command, the original convening authority had jurisdiction to render a decision concerning her contingent confinement. (Doc. 9, Attach. K, Townsend v. U.S., 1999 WL 85560 (A.F.Ct. Crim. App.), **3.4.) The court concludes this matter was fully and fairly litigated before the military court and that no basis for habeas corpus jurisdiction exists. Lips, id.
Petitioner next claims the failure to consider alternative methods of payment violated her constitutional rights. Petitioner raised a claim of indigency during the contingent confinement hearing; however, the court finds she advances no compelling legal basis for her claim that the findings of the military judge should be set aside due to a failure to consider some alternative, unspecified means of payment. The record shows petitioner was given an opportunity to present evidence on her ability to pay the fine and that the military judge gave a detailed statement supporting the finding that petitioner had not made a good faith effort to satisfy the fine. The court finds petitioner's ability to pay the fine was given full and fair consideration in the court-martial and finds no substantial constitutional dimension in this claim which might merit extraordinary relief. See Dodson, id.
Petitioner's third claim challenges the legality of the contingent confinement portion of her sentence. She relies on 18 U.S.C. § 3572 (e), which provides:
(e) Alternative sentence precluded. — At the time a defendant is sentenced to pay a fine, the court may not impose an alternative sentence to be carried out if the fine is not paid.
Read in isolation, this provision appears to support petitioner's argument. However, respondent aptly points out that this federal sentencing provision must be read in conjunction with 18 U.S.C. § 3551 (a), which states the provisions of Chapter 227, of which § 3572 is a part, do not apply to those sentenced under the Uniform Code of Military Justice. Therefore, § 3572(e) is inapplicable to petitioner, and the portion of her sentence of contingent confinement, authorized by Rule 1003(b)(3) of the Rules for Courts-Martial, may not be disturbed on habeas corpus.
Rule for Courts-Martial 1003(b)(3) provides:
Any court-martial may adjudge a fine instead of forfeitures. General courts-martial may also adjudge a fine in addition to forfeitures. Special and summary courts-martial may not adjudge any fine in excess of the total amount of forfeitures which may be adjudged in that case. In order to enforce collection, a fine may be accompanied by a provision in the sentence that, in the event the fine is not paid, the person fined shall, in addition to any period of confinement adjudged, be further confined until a fixed period considered an equivalent punishment to the fine has expired. The total period of confinement so adjudged shall not exceed the jurisdictional limitations of the court-martial.
For the reasons set forth, the court denies the petition for habeas corpus.
IT IS THEREFORE ORDERED this matter is dismissed and all relief is denied.
Copies of this Memorandum and Order shall be transmitted to the parties.
IT IS SO ORDERED.
DATED: This 18th day of July, 2000, at Topeka, Kansas.