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Barry W. Brown v. James W. Gray

August 16, 2011

BARRY W. BROWN, PETITIONER,
v.
JAMES W. GRAY, COMMANDANT, USDB-FORT LEAVENWORTH, RESPONDENT.



The opinion of the court was delivered by: Richard D. Rogers United States District Judge

MEMORANDUM AND ORDER

Petitioner is a former United States Air Force member who is incarcerated at the United States Disciplinary Barracks at Fort Leavenworth, Kansas. This case is before the court upon petitioner's pro se action for habeas corpus relief pursuant to 28 U.S.C. § 2241. Upon review of the materials before the court, the court shall deny the petition.

I. CASE HISTORY

Petitioner is a smart attorney who was a member of the judge advocate corps. On or about September 13, 2005, pursuant to a pretrial agreement, petitioner pleaded guilty to attempted premeditated murder and conspiracy to commit premeditated murder. Irene B. Brown, petitioner's wife, was the alleged intended victim of these crimes. She is also an attorney and has attempted to help petitioner during his appeals and applications for clemency.

During his marriage to Irene Brown, petitioner began a romantic relationship with Ramona Greiner, a staff sergeant who was a paralegal. Greiner sought the assistance of one of Greiner's friends, Gregory Williams, to have Irene Brown killed. Mr. Williams reported this contact to the U.S. Air Force Office of Special Investigations. Petitioner met with Williams on March 25, 2005 in a park. Law enforcement made an audio and video recording of the meeting. During the plea proceedings, petitioner stipulated to the following description of the meeting:

On Friday, 25 March 2005, Mr. Williams waited at a picnic table at the meet location in Martin Luther King Park in San Antonio, Texas. At approximately 1200 hours, SSgt Greiner arrived at the park, driving a white Chevrolet Avalanche pickup truck, followed by Captain Brown, driving a blue Dodge pickup. SSgt Greiner introduced Captain Brown and Mr. Williams and departed the park in her vehicle. Mr. Williams and Captain Brown then sat at a picnic table and discussed the murder of his wife, Mrs. Irene Brown. Captain Brown suggested a methodology of firing indiscriminately at Mrs. Irene Brown's workplace. Captain Brown provided Mr. Williams with pictures to identify Mrs. Brown as well as pictures of her vehicle and workplace. Captain Brown identified the entry and exit door to Child Protective Services. He paid Mr. Williams $280 as an initial down payment for the murder, and finalized the price of $25,000 for the murder of Mrs. Irene Brown. Both a visual and audio recording of this meeting was made. (Prosecution Exhibit 12) The audio recording was subsequently transcribed. (Prosecution Exhibit 13).

AR000248.

During the plea proceedings petitioner stated:

I admit that I took steps to attempt to kill my wife, Irene.

On 25 March 2005, I met with an individual I now know as Gregory Williams at the Martin Luther King Park in San Antonio, Texas. Days prior to the meeting, I had taken pictures of Irene's car and of her workplace. . . . During the meeting, I gave . . . pictures to Mr. Williams and discussed with Mr. Williams the killing of my wife. I suggested one method of firing a gun at Irene's workplace.

Mr. Williams and I agreed on a sum of $25,000 for the killing of Irene, and discussed my paying him over time. At the meeting, I gave Mr. Williams $280 as a down payment.

My actions in attempting to kill Irene were completely devoid of any justification or excuse. In addition, my actions were more than mere preparation.

They were a substantial step and a direct movement toward the unlawful killing of my wife.

AR 000034. Petitioner denied that he was under any duress at the time and professed that the decision to attempt to kill his wife was the mutual decision of petitioner and Greiner. AR 000036.

When he entered his guilty pleas, petitioner waived his right to proceed before a panel of officers and consented to the case being heard by a single judge. AR 000250. Petitioner stated that he was satisfied with both of his trial counsel. AR 000094. He was aware that, pursuant to the pretrial agreement, his sentence would be 18 years or the sentence imposed by the presiding judge, whichever was less. AR 000092-93. He was also aware that the maximum sentence was life without parole. AR 000076. During the proceedings, the government stated that it would not argue that a mandatory minimum life sentence applied to the crimes alleged against petitioner. AR 000009. Immediately before petitioner was sentenced, the court announced that no mandatory minimum punishment applied to the crimes of conviction. AR 000225-26. Petitioner was aware that he could withdraw his pleas of guilty at any time prior to the imposition of sentence. AR 000087. Petitioner did not withdraw his guilty pleas prior to being sentenced.

During the sentencing proceedings, petitioner and his counsel were asked if petitioner had been punished in any way prior to trial that would constitute illegal pretrial punishment. Petitioner's counsel answered "no" and petitioner agreed with his counsel's response. AR 000097. On September 14, 2005, petitioner was sentenced to a term of 25 years confinement. In January 2006, this sentence was reduced by the convening authority to 18 years in accordance with the pretrial agreement of the parties. Petitioner's request for a further reduction of sentence via an order of clemency was denied.

Petitioner's appeal to the Air Force Court of Criminal Appeals (AFCCA) was denied on April 28, 2008, approximately 27 months after the action of the convening authority. Petitioner then appealed to the Court of Appeals for the Armed Forces (CAAF). That court denied petitioner's request for review on November 13, 2008.

II. HABEAS STANDARDS

Habeas corpus relief can be granted under § 2241 to a federal

prisoner who demonstrates he "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c). The court has limited authority to review court-martial proceedings for such error. Our 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 (1953). As the Supreme Court stated:

[I]t is not the duty of the civil courts simply . . . to re-examine and reweigh each item of evidence of the occurrence of events which tend to prove or disprove one of the allegations in the applications for habeas corpus. It is the limited function of the civil courts to determine whether the military have given fair consideration to each of these claims.

Id. at 144.

A four-factor test aids the court in deciding whether the merits of a military habeas claim have been fully and fairly considered by the military courts. These factors are: 1) whether the asserted error is of substantial constitutional dimension; 2) whether the issue is one of law rather than of disputed fact already determined by the military tribunals; 3) whether military considerations may warrant different treatment of constitutional claims; and 4) whether the military courts gave adequate consideration to the issues involved and applied proper legal standards. Roberts v. Callahan, 321 F.3d 994, 996-97 (10th Cir. 2003). The Tenth Circuit has recently emphasized that the fourth factor is the most important consideration in this analysis. Thomas v. U.S. Disciplinary Barracks, 625 F.3d 667, 670-71 (10th

Cir. 2010) cert. denied, 131 S.Ct. 1711 (2011).

An issue may be deemed to have been given "full and fair consideration" when it has been briefed and argued, even if the military court summarily disposes of the matter. Watson v. McCotter, 782 F.2d 143, 145 (10th Cir.), cert. denied, 476 U.S. 1184 (1986). The fact that the military court did not specifically address the issue in a written opinion is not controlling. Lips, 997 F.2d at 821, n. 2. Instead, "when an issue is briefed and argued" before a military court, the Tenth Circuit has "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 find the issue meritorious or requiring discussion." Id., citing Watson, 782 F.2d at 145. The burden is on the petitioner to show ...


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