Opinion
CIVIL ACTION NO. 03-336
July 25, 2003
REPORT AND RECOMMENDATION
Presently before the court is a pro se petition for a writ of habeas corpus filed by a state prisoner pursuant to 28 U.S.C. § 2254. On December 22, 1994, following a jury trial in the Court of Common Pleas for Lehigh County, the petitioner was convicted of corruption of minors, endangering the welfare of a child, furnishing alcoholic beverages to minors, involuntary deviate sexual intercourse and indecent assault. The offenses took place in December 1991 and the victim was a fifteen year old male who was a houseguest of the petitioner. The petitioner was subsequently sentenced to a term of incarceration of five to fifteen years. The petitioner is currently serving his sentence at a state correctional institution.
The petitioner raises the following two claims. First, that the Court of Common Pleas for Lehigh County lacked jurisdiction to prosecute the petitioner because he was an officer of the United States Army. Second, that his trial counsel was ineffective for failing to raise this jurisdictional issue to bar his state trial, that his direct appellate counsel was ineffective for failing to raise the jurisdictional issue on direct appeal and that all subsequent counsel were ineffective for failing to raise the jurisdictional question in Post Conviction Relief Act, ("PCRA"), 42 Pa. C.S.A. § 9541 et seq., proceedings.
The District Attorney for Lehigh County has filed a response to the habeas petition. In his response, the District Attorney argues that the petitioner's claims lack merit. For the reasons which follow, the court agrees and will recommend that the habeas petition be denied.
The petitioner's first claim is that the Court of Common Pleas for Lehigh County lacked jurisdiction to prosecute him because he was an officer of the United States Army. This argument maintains that courts-martial have exclusive jurisdiction over all trials of alleged criminal acts committed by soldiers, even those acts which violate state criminal law. As will be explained, courts-martial do not have exclusive jurisdiction over the acts of soldiers which violate state criminal law.
In Caldwell v. Parker, 252 U.S. 376 (1920), a soldier was tried and convicted in an Alabama state court for the murder of a civilian "at a place not within the confines of any camp or place subject to the control of the civil or military authorities of the United States." Id. at 380. In a habeas corpus petition, the soldier argued that his prosecution by the state of Alabama was void because exclusive jurisdiction over his crime was vested in a court-martial. Id. The Supreme Court rejected this argument and held that the soldier's prosecution in the civilian court was permissible even though he was also subject to court-martial for the same acts. Id. at 387-88.
At the time Caldwell was decided, the Articles of War of 1916 governed the jurisdiction of courts-martial. Id. at 380-81. In 1950, Congress enacted the Uniform Code of Military Justice ("UCMJ") and it now governs the jurisdiction of courts-martial. Thus, an argument might be made that Caldwell is no longer good law. However, in a case decided after the enactment of the UCMJ, a court in this circuit found that the rule of concurrent jurisdiction announced in Caldwell was still valid. See Owens v. United States, 383 F. Supp. 780, 782 (M.D.Pa. 1974). Further, Rule 201(d)(2) of the Rules for Courts-Martial expressly provides that any act which violates both the UCMJ and local criminal law can be tried by court-martial or by a proper civilian tribunal. Thus, Rule 201(d)(2) indicates that the petitioner's prosecution in Lehigh County was permissible. In addition, military appellate courts deciding cases under the UCMJ have found that civilian courts may prosecute and punish soldiers even when a court-martial intends to prosecute the soldier for the same acts. See United States v. Bordelon, 43 M.J. 531, 533 (A. Ct. Crim. App. 1995); United States v. Anderson, 36 M.J. 963, 969 (A.F. Ct. Crim. App. 1993). In short, it is clear that the petitioner's first argument lacks merit.
The petitioner's second claim remains. The second claim actually consists of multiple claims of ineffective assistance of counsel. The petitioner's claims of ineffective assistance of PCRA counsel are simply not cognizable. 28 U.S.C. § 2254(i); Coleman v. Thompson, 501 U.S. 722, 752 (1991). Further, since the court has found that his jurisdictional claim lacks merit, his claims that trial and direct appellate counsel were ineffective for failing to raise this claim in the state courts are also without merit. See Moore v. Deputy Commissioners of SCI-Huntingdon, 946 F.2d 236, 245 (3d Cir. 1991).
The court will also consider whether to recommend granting a certificate of appealability ("COA"). A certificate of appealability can only be granted if the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2). Such a showing is made if "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right. . . ." Slack v. Daniel, 529 U.S. 473, 484 (2000). The court is of the view that reasonable jurists would not debate whether the petitioner's two claims lack merit. Thus, the court will not recommend granting a COA.
The court's recommendation follows.
RECOMMENDATION
AND NOW, this 25th day of July, 2003, for the reasons contained in the preceding Report, it is hereby RECOMMENDED that the petition for a writ of habeas corpus be DENIED. It is further RECOMMENDED that a certificate of appealability not be granted with respect to any of the petitioner's claims.ORDER
AND NOW, this 25th day of, 2003, after careful and independent consideration of the petition for a writ of habeas corpus, the response thereto, the traverse and after review of the Report and Recommendation of Diane M. Welsh, United States Magistrate Judge, it is hereby ORDERED that:1. The Report and Recommendation is APPROVED and ADOPTED;
2. The petition for a writ of habeas corpus is DENIED; and
3. A certificate of appealability is not granted.