Opinion
C/A No. 4:18-2823-DCC-TER
10-21-2019
JERRY CLIFFT, Petitioner, v. COMMANDER C.W. BROBST, COMMANDING OFFICER NAVAL BRIG CHARLESTON, SOUTH CAROLINA, Respondent.
REPORT AND RECOMMENDATION
The Petitioner, Jerry Clifft, ("Petitioner"), appearing pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 on October 18, 2018. On March 20, 2019, the Respondent filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) or, in the alternative, a motion for summary judgment pursuant to Fed. R. Civ. P. 56 along with a return containing supporting memorandum and exhibits. (ECF No. 27, 28, 29). The undersigned issued an order filed March 21, 2019, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), advising the Petitioner of the motion and the possible consequences if he failed to respond adequately. (ECF No.30). On April 17, 2019, Petitioner filed a response. (ECF No. 33).
This habeas corpus case was automatically referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02, DSC. Because this is a dispositive motion, this report and recommendation is entered for review by the district judge.
STANDARD FOR SUMMARY JUDGMENT
As the parties submitted evidence outside of the pleadings, the motion to dismiss or, in the alternative, motion for summary judgment, will be treated as a Motion for Summary Judgment.
The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet "the substantive evidentiary standard of proof that would apply at a trial on the merits." Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through "depositions, answers to interrogatories, and admissions on file, together with . . . affidavits, if any." Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
Habeas Review of Military Justice Determinations
Habeas corpus relief may be granted under 28 U.S.C. 2241(c) if the federal prisoner demonstrates that he is in custody in violation of the Constitution or law or treaties of the United States. However, federal court review of court-martial proceedings is limited to determining whether the claims raised by the petitioner were given full and fair consideration by the military courts. If the issues 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 v. Commandant, United States Disciplinary Barracks, 997 F.2d 808, 811 (10th Cir. 1983), cert denied, 510 U.S. 1091, 114 S.Ct. 920, (1994). Unless the military court failed to consider an issue properly presented to it, the federal district court should not conduct a review. If an issue is briefed and considered, it has been given fair consideration. See Watson v. McCotter, 782 F.2d 143, 145 (10th Cir. 1986) ("When an issue is briefed and argued before a military board of review, we have held that the military tribunal has given the claim fair consideration, even though its opinion summarily disposed of the issue with the mere statement that it did not consider the issue meritorious or requiring discussion.") Where a military court decision has considered fully and fairly the allegation raised in a federal habeas petition, it is not open for the federal court to grant the writ by reassessing the evidentiary determinations. See Burns v. Wilson, 346 U.S. 137 73 S.Ct. 1045 (1953).
Federal Circuit courts that have interpreted what constitutes "full and fair consideration" have not defined a uniform standard. See Armann v. McKean, 549 F.3d 279, 289 n. 10 (3rd Cir.2008) (collecting cases). This court is unaware of binding Fourth Circuit precedent analyzing the "full and fair consideration" test. The Tenth Circuit has developed jurisprudence on this subject primarily due to the fact that the United States Disciplinary Barracks are located in Fort Leavenworth, Kansas, which is located in the Tenth Circuit. Even though the Tenth Circuit decisions are not binding precedent in this Circuit, in the absence of controlling Fourth Circuit case law, this court, like other courts, finds the Tenth Circuit precedent instructive.
See Romey v. Vanyur, 9 F. Supp. 2d 565, at 569 (E.D.N.C. 1998).
The Tenth Circuit has held that the following four factors should be considered upon habeas review of a military conviction: 1) the asserted error was 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. The fourth factor has been held as the most critical factor. See Lips v. Commandant, U.S. Disciplinary Barracks, 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 .").
ARGUMENTS/PROCEDURAL HISTORY
Based on Petitioner's notice of change of address to Stuart, Oklahoma, Petitioner is no longer incarcerated in South Carolina, and it appears he may not be incarcerated at all. (ECF No. 32). Petitioner filed his petition pursuant to 28 U.S.C. § 2241, challenging his 2016 general court martial conviction, contrary to his pleas, for making a false official statement, one specification of sexual assault, and two specifications of assault consummated by a battery in violation of Articles 107, 120, and 128,UCMJ. Petitioner was sentenced to four years, to be reduced to the lowest paygrade, and to be dishonorably discharged from the U.S. Coast Guard. On appeal, the U.S. Coast Guard Court of Criminal Appeals affirmed the findings of guilty and the sentence issued. The U.S. Court of Appeals for the armed forces denied a petition for grant of review and the court-martial became final.
This court has jurisdiction over petitions for writs of habeas corpus, pursuant to 28 U.S.C. § 2241, filed by prisoners incarcerated by order of military court-martial. Burns v. Wilson, 346 U.S. 137, 139 (1953).
Respondent sets forth a history of the facts as outlined in the order of March 12, 2018, as follows, quoted verbatim in part:
Petitioner and his wife had a tumultuous marriage. Following arguments and physical assaults, she left the marital home. Petitioner persuaded his wife to return to the marital home but problems continued. The police were called to the home in July 2014, and a civilian temporary protective order was issued against Petitioner. After a judge declined to extend the protective order, Petitioner returned home. Petitioner and his wife engaged in consensual sexual intercourse over the next few days. On the evening of July 21, 2014, the wife awoke to Petitioner attempting to initiate sexual intercourse to which she said she did want to have sex with him and left to use the restroom. When the wife returned, Petitioner grabbed her, pulled her on top of him, and wrapped his arms around her so she could not move. Petitioner initiated vaginal intercourse with the wife despite her repeatedly saying no and that she was hurting. The wife testified that she was afraid Petitioner would hurt her if she tried to fight him so she "rolled over so he could just get it over with." The wife testified that she was in so much pain she could not move so Petitioner "grabbed her hips and thrusted, causing her to scream in pain. The more she screamed, 'the rougher he got.'"(See Respondent's brief and the Coast Guard Court of Criminal Appeals ECF No. 29-6 at 8-9 of 69).
The Coast Guard initially charged Petitioner under the Uniform Code of Military Justice. Petitioner was represented by Lieutenant "NS," as his military defense counsel and Commander "CC" as assistant defense counsel. Petitioner waived his right to have the offenses investigated at a pretrial hearing and the charges were referred to a general court-martial on October 1, 2015.
In his habeas application, Petitioner raises four claims: 1) that the Coast Guard Court of Criminal Appeals (CGCCA) used an incorrect legal analysis when it conducted its Article 66, UMCJ review; 2), the military judge erred in denying Petitioner's motion to exclude evidence under M.R.E. (404(b)); 3) that his conviction for Article 120(b) was legally and factually insufficient; 4) the military judge had a duty sua sponte to provide the members with the definition of "placing another person in fear" found at Article 120(g)(7), UCMJ. In his "Prayer of Relief", Petitioner requests this court issue a writ of habeas corpus "to dismiss the Art. 120 Sexual Assault conviction and so that I may be discharged from my unconstitutional confinement and restraint, or remand the case for rehearing, or grant such other relief as may be appropriate to dispose of the matter as law and justice require." (ECF No. 27).
The administrative record establishes and Petitioner concedes in his petition and response that the first military court, the CGCCA, considered the claims raised in Grounds Two, Three, and Four of Petitioner's habeas application. (ECF No. 29-5 at 128-160 of 248; ECF No. 33 at 8 of 17). Petitioner briefed and argued these three claims to a military court, and the CGCCA gave each claim adequate consideration in a written opinion. Therefore, Respondent argues that since all three claims received adequate consideration from the CGCCA, habeas review of these issues is unwarranted.
Respondent asserts and Petitioner concedes that he raised these same claims to the Court of Appeals for the Armed Forces (CAAF), in addition, to Ground One that the CGCCA used an incorrect legal analysis when it conducted it's Article 66, UMCJ, review. (ECF No. 29-6 at 28 of 69; ECF No. 33 at 8 of 17). The CAAF ultimately ruled by summary disposition, issuing an order to deny Petitioner's appeal.
See Watson v. McCotter, 782 F.2d 143, 145 (10th Cir. 1986) ("When an issue is briefed and argued before a military board of review, we have held that the military tribunal has given the claim fair consideration, even though its opinion summarily disposed of the issue with the mere statement that it did not consider the issue meritorious or requiring discussion.") --------
Therefore, Respondent asserts that each of Petitioner's habeas claims received adequate consideration by at least one military court, and Petitioner's claims have been given full and fair consideration by the military courts.
In this action, all of the issues raised by Petitioner were briefed and considered by a military court. Specifically, Petitioner raised Grounds Two, Three and Four to the Coast Guard Court of Criminal Appeals (CGCCA). Petitioner argued to the CGCCA that the military judge erred in denying his motion to exclude evidence under M.R.E. 404(b) (ECF No. 29-5 at 148 of 248); that his conviction for Article 120(b)(1)(B) was legally and factually insufficient (ECF No. 29-5 at 143-148 of 248); and, that the military judge had a duty sua sponte to provide the members the definition of "placing another person in fear" found at Article 120(g)(7), UCMJ (ECF No. 29-5 at 140 of 248). These issues were briefed and argued, and the CGCCA disposed of these claims in a written opinion. Because all three of these grounds received adequate consideration by the CGCCA, habeas review is not warranted with regard to Grounds Two, Three and Four in the habeas petition.
Petitioner raised the same three grounds to the Court of Appeals for the Armed Forces (CAAF) and, additionally argued habeas Ground One that the CGCCA used an incorrect legal analysis when it conducted its Article 66, UMCJ review. (ECF No. 29-6 at 34). Thus, Petitioner had the opportunity to brief and argue in detail his position to a military court. (See ECF No. 29-6 at 24-51). The CAAF ruled by summary disposition issuing an order denying Petitioner's appeal. (ECF No. 29 at 69 of 69). Although the CAAF ruled by summary disposition, this court can presume Petitioner's claims were given adequate consideration to each of the claims raised in Petitioner's supplement on appeal. See McCotter, 782 F.2d at 145. Therefore, the record indicates that the military courts did provide Petitioner with full and fair consideration. Therefore this court has no authority to reach the merits of Petitioner's claims. See Burns, 346 U.S. at 142; Lips, 997 F.2d 811. Accordingly, it is recommended that Respondent's motion for summary judgment be granted.
CONCLUSION
Based on the above reasoning, it is RECOMMENDED that Respondent's motion for summary judgment (ECF No. 27) be GRANTED and this claim dismissed.
Respectfully Submitted,
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge October 21 , 2019
Florence, South Carolina