Opinion
2:21-cv-02818-JFA-MGB
05-05-2022
Soren G. Gere, Petitioner, v. Commander Johnny L. Mincey, Naval Consolidated Brig, Charleston, SC Respondent.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Petitioner Soren G. Gere (“Petitioner”), who is currently confined in the Navy Consolidated Brig in Charleston, South Carolina, brings this application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. On February 4, 2022, Respondent moved for summary judgment pursuant to Fed.R.Civ.P. 56. (Dkt. No. 10.) Petitioner filed a response in opposition on February 17, 2022 (Dkt. No. 11), and Respondent filed a reply on March 10, 2022 (Dkt. No. 14). This matter is now ripe for disposition.
BACKGROUND
In 2016, Petitioner's girlfriend's teenage daughter, SN, accused Petitioner of sexually assaulting her. In January 2019, Petitioner was found guilty by a military judge, sitting as a general court-martial, of attempted sexual assault of a child, sexual abuse of a child, and sexual assault of a child. Petitioner has exhausted his military appeals and now presents habeas claims concerning a discovery dispute over messages allegedly contained on SN's cell phone and ineffective assistance of counsel.
STANDARDS
A. Summary Judgement
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). As to the first of these determinations, a fact is deemed “material” if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257.
In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). However, “[o]nly 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. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1080, 31 L.Ed.2d 263 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Habeas Review of Military Courts-Martial
Section 2241 “vests federal courts with jurisdiction over applications for habeas corpus from persons confined by the military courts.” Burns v. Wilson, 346 U.S. 137, 139 (1953). However, “when a military decision has dealt fully and fairly with an allegation raised in [a habeas] application, it is not open to a federal civil court to grant the writ simply to re-evaluate the evidence.” Id. at 142. Thus, while a “federal court possesses jurisdiction over” a § 2241 petition regarding a military decision, it “‘cannot review' claims ‘fully and fairly reviewed' by the military courts.” Ward v. United States, 982 F.3d 906, 912 (4th Cir. 2020) (citing United States v. Willenbring, 178 Fed.Appx. 223, 224-25 (4th Cir. 2006)). “It is the limited function of the civil courts to determine whether the military have given fair consideration to each of [the petitioner's] claims.” Burns, 346 U.S. at 144.
DISCUSSION
Petitioner presents two grounds for relief: (1) he was deprived of due process of law when the military judge denied defense counsel's request to compel production of SN's cell phone and (2) defense counsel was ineffective for not asserting prosecutorial misconduct based on the prosecution's failure to secure SN's cell phone. (Dkt. No. 1 at 6.) Respondent asserts the discovery issues were extensively litigated throughout Petitioner's military proceedings and thus are not properly reviewable here. (Dkt. No. 10-1 at 1.) Respondent also contends Petitioner did not argue his defense counsel was ineffective before the military courts and thus defaulted that claim. (Dkt. No. 10-1 at 1.)
A. Denial of Due Process
In Ground One, Petitioner asserts the military judge deprived him of due process by failing to order production of SN's cell phone and that this claim is reviewable because it was not fully and fairly considered by the military courts. (Dkt. No. 1-1 at 18.) Respondent contends Ground one is both unfounded and barred from review. (Dkt. No. 10-1 at 11-14.)
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 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 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:
The Tenth Circuit includes Fort Leavenworth, Kansas, where the United States Disciplinary Barracks are located and thus encounters a higher number of military habeas petitions.
(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 v. Commandant, U.S. Disciplinary Barracks, 997 F.2d 808, 811 (10th Cir. 1993); see also Dodson v. Zelez, 917 F.2d 1250, 1252-53 (10th Cir. 1990). While all four factors are relevant, the last is the most important. Thomas v. U.S. Disciplinary Barracks, 625 F.3d 667, 671 (10th Cir. 2010). Here, Petitioner's asserted due process error is certainly of a constitutional dimension and the underlying discovery dispute does not involve military-specific considerations. However, the military court's resolution of the discovery dispute, arguably, turned on a question of fact and the undersigned agrees with Respondent that the military courts adequately considered this issue under the correct legal standards and any further consideration by this court would be an impermissible “re-evaluat[ion of] the evidence.” Burns, 346 U.S. at 142.
During pretrial motions, the defense learned SN sent messages to her mother, JR, over Snapchat that JR asserted were recantations of SN's allegations against Petitioner. (See Dkt. No. 10-4 at 145-46, 160.) The defense and the Government had attempted to speak with JR previously, but she had refused, so this was the first either party heard of the messages. (Dkt. No. 10-4 at 21720, 222, 226.) SN had since blocked JR on Snapchat, making those messages disappear. Prior to the motions hearing, and outside of the official record, SN was asked to unblock JR so the messages would reappear and could be reviewed by both parties. (See Dkt. No. 10-4 at 167.) After the messages reappeared, SN began to screenshot them. (Dkt. No. 10-4 at 168-69.) SN testified that as she was taking screenshots, she accidentally deleted one message from September 2017. (Dkt. No. 10-4 at 169-70.) According to SN, the deleted message said she “f'd up.” (Dkt. No. 104 at 172.) SN testified that she and her mother did discuss the case over Snapchat, but that she never told her mother, either over Snapchat or the phone, that her allegations against Petitioner were false or that she regretted making them. (Dkt. No. 10-4 at 175-76, 179.) She indicated the deleted message referred to getting in trouble with her father and was not related to Petitioner or her allegations against him. (Dkt. No. 10-4 at 176, 183-84, 186-88.)
JR testified SN had admitted to her three times that the allegations against Petitioner were false. (Dkt. No. 10-4 at 202, 227.) JR stated those conversations would start over text or Snapchat message, but that SN only admitted to fabricating the allegations verbally in phone calls. (Dkt. No. 10-4 at 202-03, 205-06, 208, 213-14, 228-31.) In response to questions from the judge, JR confirmed “the conversations that [she] had with [SN] where she admitted that she made it up, it was a lie, all those kinds of conversations, . . . were telephonically voice to voice” and not “in a message format.” (Dkt. No. 10-4 at 231.) She testified that in a recent conversation, SN told her she did not want to “do [the] trial” and “wanted it to stop” so JR gave her defense counsel's phone number. (Dkt. No. 10-4 at 209-10.) JR stated she thought other messages were missing from the recovered conversations, but was not sure of what those messages would have said. (Dkt. No. 104 at 214.)
Defense counsel moved to compel a limited extraction of information from SN's phone, arguing SN had deleted messages that were relevant and necessary to the proceedings and could be recovered. (Dkt. No. 10-4 at 234-45.) In response, the prosecution argued the defense had failed to show that any deleted messages were relevant to the case or likely to be recovered. (Dkt. No. 10-4 at 245-52.)
Regarding the likelihood of recovery, the judge heard testimony from an expert in digital forensics, Josiah Roloff. (Dkt. No. 10-4 at 256-75.) Mr. Roloff testified that, generally, deleted Snapchat messages can be recovered and that the likelihood of recovery depended on the length of time since the message was sent, whether the user saved the message after sending or receiving it, how often the phone had been used since the message was sent or received, and the length of time since the message was deleted. (Dkt. No. 10-4 at 259-60.) Mr. Roloff testified recovery of a Snapchat message sent four months prior to the hearing by someone who actively uses her phone and that was never saved and automatically deleted after receipt would be “unlikely.” (Dkt. No. 10-4 at 260, 272.) He stated that same message may be recoverable for a number of weeks after it was automatically deleted. (Dkt. No. 10-4 at 271.) He testified it would be “extremely unlikely” to recover that message from a device other than the one used to send it. (Dkt. No. 10-4 at 261.) However, Mr. Roloff indicated the likelihood of recovery would increase significantly if the user had originally saved the message and had only deleted it the day before the extraction. (Dkt. No. 10-4 at 261-62.)
Given Mr. Roloff's testimony, the defense admitted recovery of other potentially relevant messages was unlikely but suggested they could still recover the content of the message SN had recently deleted. (Dkt. No. 10-4 at 276-77.) Defense counsel conceded the parties agreed that message said something close to “I f'd up” but asserted the precise content was relevant and necessary. (Dkt. No. 10-4 at 277.) Defense counsel himself saw the message before it was deleted and believed it said more than just “I f'd up” but admitted it did not directly reference the case or Petitioner. (Dkt. No. 10-4 at 278.)
The judge denied the defense motion to compel, finding the defense failed to prove by a preponderance of the evidence that the production of SN's phone would lead to any relevant or necessary evidence beyond evidence already available to the defense in the form of saved messages and testimony from SN and JR. (Dkt. Nos. 10-4 at 280-81, 10-7 at 171-77.) The court noted that, even if SN had admitted to lying about her allegations against Petitioner, JR testified those admissions took place verbally in telephone calls, not over text message, and Mr. Roloff indicated it would be unlikely that a forensic examination of SN's phone would turn up evidence of deleted Snapchat messages from more than a few weeks ago. (Dkt. Nos. 10-4 at 280-81, 10-7 at 172-73.)
Petitioner challenged the judge's ruling on appeal to the Air Force Court of Criminal Appeals (“AFCCA”), arguing both that the military judge made an erroneous finding of fact regarding the likelihood of recovering the deleted messages and applied incorrect legal principles. (Dkt. No. 10-2 at 153.) Regarding the military judge's factual findings, the AFCCA found:
Appellant specifically sought extraction of SN's cell phone to recover deleted Snapchat conversations where SN had purportedly recanted her allegations against Appellant. Appellant contends that the military judge was clearly erroneous in his findings of fact regarding the likelihood of recovering deleted messages from SN's cellular phone. We agree with the military judge's conclusion that Appellant's motion to compel the cellular phone fails, because the Defense never established the sought-after Snapchat messages existed on the phone, a prerequisite for the production request. In his written ruling . . . the military judge found that Appellant had failed to establish by a preponderance of the evidence that any relevant evidence existed in the deleted text messages. The military judge's findings are supported by the testimony of SN, who denied recanting the allegations and unequivocally stated that she never sent Snapchat messages to that effect. Although
JR disputed SN's claims about never recanting, JR agreed that SN never recanted her allegations via text message and testified that SN's recantations occurred exclusively during “voice to voice” telephone calls. Trial defense counsel offered no specific information that any other relevant evidence not already in the possession of the Defense was on the phone. We agree with the military judge that Appellant failed to establish that forensic analysis of the cellular phone in question would have revealed additional relevant or helpful evidence related to the deleted conversation beyond the evidence that was already available to the Defense.(Dkt. No. 10-2 at 62.)
And, regarding the legal standard applied by the military judge, the AFCCA found:
Appellant next contends that the military judge erred when he required the evidence to be a “smoking gun, ” which is not the standard required by law. Appellant's contention is without merit. While the military judge did refer to a “smoking gun” in his ruling, it is evident from the entirety of the ruling that this was a colloquialism, and he required nothing more than a showing that the evidence was relevant and necessary. Nowhere in the ruling did the military judge discuss the legal standard as “smoking gun.” In fact, in his conclusion the military judge demonstrated that he applied the correct legal principles when he wrote that Appellant failed to establish “by the preponderance of the evidence that the production of SN's cellular phone for analysis would lead to any relevant or necessary evidence ....” We conclude the military judge applied the correct legal principles and did not abuse his discretion in denying the defense motion to compel the production of SN's cellular phone for forensic extraction.(Dkt. No. 10-2 at 62.)
While his appeal was pending, Petitioner also moved for a new trial based on newly discovered evidence that SN falsely reported another sexual assault. In denying that motion, the AFCCA further considered SN's credibility and the evidence supporting Petitioner's conviction, noting
SN's testimony at trial regarding the offenses Petitioner was convicted of was corroborated by both outcry witnesses and physical evidence. Video evidence showed that SN was provided alcohol, a toxicology screen provided evidence that she was given sleeping medication, and DNA analysis showed that male DNA was found near her vaginal area.(Dkt. No. 10-2 at 81-82.) Petitioner appealed both AFCCA decisions to the Court of Appeals for the Armed Forces (“CAAF”), and again fully briefed and presented whether the military judge had improperly denied the defense's motion to compel SN's cell phone. (Dkt. No. 10-2 at 10.) The CAAF summarily denied Petitioner's petition for review. (Dkt. No. 10-2 at 4.)
Petitioner asserts the military courts did not give his discovery claim full and fair consideration because (1) the military judge “misapplied the law to the facts, causing the military review of Petitioner's claim to be unfair and incomplete”; (2) “[c]onsideration of a military litigant's legal claims on the merits is appropriate where CAAF has summarily denied review of a substantial due process issue, even where service courts of criminal appeals have considered them”; and (3) the military judge and AFCCA did not apply the proper legal standards. (Dkt. No. 11 at 2-4.)
Petitioner does not directly expound upon his first point other than his argument in support of his contention that the military judge and AFCCA did not apply the proper legal standards. Accordingly, the undersigned will address those two allegations together. Petitioner alleges the military judge and the AFCCA “found the standard for relevance to be a preponderance of the evidence that any relevant evidence existed in the deleted text messages.” (Dkt. No. 11 at 3.) Rather, Petitioner contends, he was not required to establish relevance at all, but only that deleted messages existed and were recoverable. (Dkt. No. 11 at 3.) As noted above, that is exactly what the military judge and AFCCA found. While both courts commented on the defense's failure to prove relevance, they also found the defense failed to show that any exculpatory messages existed or were recoverable. Rather, based on the testimony and evidence before the courts, they found any alleged recantations were made orally, and thus not in a form that would be recoverable, even if all SN's Snapchat messages were able to be recovered. The military courts thus applied the correct legal standard and for this court to further consider the merits of Petitioner's claim, it would have to engage in an impermissible re-assessment of the evidence.
Regarding Petitioner's final assertion-that the CAAF's summary dismissal of his appeal warrants habeas review-Petitioner relies on Khan v. Hart, 943 F.2d 1261, 1263 (10th Cir. 1991). (Dkt. No. 11 at 2.) Khan found a military conviction subject to federal habeas review where the highest military court of appeals has summarily denied relief. 943 F.2d at 1263. However, in Khan, the petitioner had only raised the relevant issue to that court through a petition for extraordinary relief based on a new legal theory. Id. at 1262. Thus, it was not clear from the court's summary denial that it had fully considered the claim. Further, the Tenth Circuit noted almost all of the four Dodson factors weighed in favor of review. Id. at 1263. In contrast, Petitioner fully litigated his discovery claim at each level of military review. Under these circumstances, a summary disposition by the highest appellate court can constitute full and fair consideration. See Armann v. McKean, 549 F.3d 279, 292 (3d Cir. 2008); see also Thomas v. U.S. Disciplinary Barracks, 625 F.3d 667, 672 (10th Cir. 2010) (courts should not “presume a military appellate court has failed to consider all the issues presented to it before making a decision”).
For these reasons, the undersigned finds the military courts fully and fairly considered Petitioner's discovery claim and recommends granting Respondent's motion for summary judgement on Ground One.
B. Ineffective Assistance of Counsel
In Ground Two, Petitioner claims his defense counsel was ineffective for failing to raise prosecutorial misconduct based on the Government's failure to secure SN's phone. (Dkt. No. 1-1 at 22-26.) Respondent asserts Petitioner failed to present this claim to the military courts and has thus waived it absent a showing of cause and prejudice. (Dkt. No. 10-1 at 15.)
Claims that were not raised in the military courts are deemed to be waived. Roberts v. Callahan, 321 F.3d 994, 995 (10th Cir. 2003). A federal district court will only review the merits of an unexhausted, waived claim upon a showing of cause for the default and actual prejudice resulting from the alleged error. Lips, 997 F.2d at 812.
In his response to the motion for summary judgment, Petitioner asserts for the first time that his appellate counsel's failure to raise the issue on appeal constitutes cause and prejudice to excuse the default. (Dkt. No. 11 at 5.) Petitioner relies on Martinez v. Ryan, 566 U.S. 1, 17 (2012), which created a narrow exception to procedural default for claims of ineffective assistance of counsel not raised at initial review collateral proceedings, that have some merit, and have been brought by habeas petitioners in § 2254 cases. Petitioner has not cited, and the court is unaware of, any authority suggesting Martinez applies under § 2241 and in the military context. Further, the Supreme Court made clear that its holding in Martinez did not “concern attorney errors in other types of proceedings.” 566 U.S. at 16; see also Davila v. Davis, 137 S.Ct. 2058, 2062-63 (2017) (declining to extend Martinez exception to claims of ineffective assistance of appellate counsel).
However, even assuming Martinez is applicable, Petitioner fails to satisfy its elements. First, Petitioner has not argued, only baldly asserted, that appellate counsel was ineffective for failing to present a claim of ineffective assistance of defense counsel. Second, Petitioner fails to show his underlying ineffective assistance of counsel claim has some merit.
To prevail on an ineffective assistance of counsel claim, a habeas petitioner must show (1) that counsel's performance was deficient and (2) that there is a reasonable probability that the deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). This test applies to both trial and appellate counsel. United States v. Hallum, 15 M.J. 261, 267 (C.M.A. 1983). To prove deficient performance, a petitioner must overcome the “strong presumption that counsel's strategy and tactics fall within the wide range of reasonable professional assistance.” Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689) (internal quotations omitted). To establish prejudice, a petitioner must show that “but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
Petitioner fails to make either showing. As discussed above, the military judge and appellate courts found defense counsel failed to prove the existence of any exculpatory, or even potentially exculpatory messages on SN's phone or deleted from SN's phone. Accordingly, the prosecution had no duty to preserve SN's phone and defense and appellate counsel were not deficient for failing to assert a meritless argument. See United States v. Stellato, 74 M.J. 473, 483 (C.A.A.F. 2015) (finding “[t]he duty to preserve includes: (1) evidence that has an apparent exculpatory value and that has no comparable substitute; (2) evidence that is of such central importance to the defense that it is essential to a fair trial; and (3) statements of witnesses testifying at trial”) (internal citations omitted); Smith v. Robbins, 528 U.S. 259, 285 (2000) (noting appellate counsel “need not (and should not) raise every nonfrivolous claim” and should instead select the strongest claims to “maximize the likelihood of success on appeal”). Further, because Petitioner cannot show a likelihood that a claim of prosecutorial misconduct at either trial or on appeal would have been successful, he cannot show that the outcome of either proceeding would have likely changed if either attorney had raised such a claim, and thus fails to show prejudice under Strickland. For the these reasons, Petitioner fails to demonstrate cause and prejudice to excuse the default of Ground Two and the undersigned recommends granting Respondent's motion for summary judgment.
CONCLUSION
Based on the foregoing, the undersigned Magistrate Judge RECOMMENDS that the Motion for Summary Judgment (Dkt. No. 10) be GRANTED, and Petitioner's Petition for Writ of Habeas Corpus (Dkt. No. 1) be DISMISED.
IT IS SO RECOMMENDED.
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).