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Oliver v. Commandant

United States District Court, D. Kansas

July 25, 2018

SEAN MAURICE OLIVER, Petitioner,
v.
COMMANDANT, USDB-Leavenworth, Respondent.

          MEMORANDUM AND ORDER

          JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE

         This matter is a pro se petition for habeas corpus filed under 28 U.S.C. § 2241. Petitioner is confined at the United States Disciplinary Barracks in Fort Leavenworth, Kansas. Petitioner challenges his 2015 conviction by general court-martial.

         I. FACTUAL BACKGROUND

         Petitioner, a former active duty member of the United States Air Force, was tried by a general court-martial beginning in August 2014, and with numerous breaks in the proceedings, concluding on May 8, 2015. See United States v. Oliver, No. ACM 38858, 2017 WL 437402 (A.F. Ct. Crim. App. January 27, 2017) (unpublished decision). Petitioner was convicted of making false official statements, murder with intent to kill, assault consummated by a battery, and obstruction of justice in violation of Articles 107, 118, 128, and 134 of the Uniform Code of Military Justice (“UCMJ”), 10 U.S.C. §§ 907, 918, 928, and 934. Id. at *1. Petitioner was found not guilty of the greater offenses of premeditated murder and aggravated assault. Id. The adjudged and approved sentence was a dishonorable discharge, confinement for life with the possibility of parole, and reduction to the grade of E-1. Id.

         Petitioner was represented at his court-martial by his detailed military attorney. In military cases, the post-trial process begins with defense's submission of matters to the convening authority. See Rules for Court-Martial (“R.C.M.”) 1105. After his court-martial, Petitioner's case was forwarded to the CCA for mandatory review under Article 66, UCMJ, 10 U.S.C. §§ 866(b). Petitioner was represented by appointed appellate counsel during his appellate proceedings.

         Petitioner appealed to the Air Force Court of Criminal Appeals (“AFCCA”), raising eight assignments of error as follows:

I. Whether the military judge erred when he declined to provide the members with standard benchbook[1] instructions informing them that [SPC CK] had been promised leniency in exchange for his testimony.
II. Whether Petitioner's confession to investigators from the Air Force Office of Special Investigations was voluntary where, among other things, Petitioner was told, “There's no way you can incriminate yourself in this” and “after you tell us the truth, okay, we're going to call your first shirt and you are going home” and that if he confessed, his commanding officer would go into “mommy mode” and protect him.
III. Whether, during custodial interrogation, Petitioner's statement to the Air Force Office of Special Investigations “I need to like stop and ask for a lawyer” should be suppressed under Edwards v. Arizona, 451 U.S. 477 (1981).
IV. Whether agents of the Air Force Office of Special Investigations violated Petitioner's Sixth Amendment right to counsel and M.R.E. 305(e)(2) when they interrogated him outside the presence of counsel before the German government terminated its criminal case against him.
V. Whether the prosecutor committed prosecutorial misconduct during his sentencing argument when, among other things, he vouched for a witness by asserting his heart would have skipped a beat if a key witness had lied during his testimony, by calling Petitioner a liar, by calling a witness he called to testify pursuant to a grant of immunity a “lying liar who lies, ” and by calling an aspect of the defense case “beyond silly.”
VI. Whether the trial transcript's absence of seven minutes of discussion between the parties and the military judge on the instructions to be given to the members is a substantial omission requiring a new trial.
VII. Whether the military judge erred when he declined to instruct the members as to accident as requested by the defense.
VIII. Whether specification 1 and 2 of Charge I alleging Petitioner made two false official statements during his interrogation on 20 December 2013 are multiplicious.

(See Doc. 7-5, at 3-4.)

         On January 27, 2017, the AFCCA, finding no error prejudicial to the substantial rights of Petitioner, affirmed Petitioner's convictions and sentence. United States v. Oliver, 2017 WL 437402, at *19. On February 27, 2017, Petitioner asked the AFCCA to reconsider its decision en banc. The AFCCA denied the request for reconsideration en banc on March 27, 2017, with the order providing that in accordance with Rule 17(b) of the Joint Courts of Criminal Appeals Rules of Practice and Procedure, the suggestion for reconsideration was provided to the Court as a whole, and “[n]o judge of the Court who was present for duty requested that the Court as a whole vote to determine whether the Court would grant en banc reconsideration.” (Doc. 7-8, at 2.)

         Petitioner appealed to the Court of Appeals for the Armed Forces (“CAAF”) on May 12, 2017. (Doc. 7-9.) The appeal to the CAAF raised five issues:

I. Whether the military judge erred when he declined to provide the members with standard benchbook instructions informing them [SPC CK] had received leniency in exchange for his testimony.
II. Whether Petitioner's statement to investigators from the Air Force Office of Special Investigations was involuntary where, among other things, Petitioner was told, “There's no way you can incriminate yourself in this” and “after you tell us the truth, okay, we're going to call your first shirt and you are going home” and that if he confessed, his commanding officer would go into “mommy mode” and protect him.
III. Whether the lower court erred when it concluded that the military judge's failure to give the requested instruction of accident was harmless beyond a reasonable doubt when the lower court held that the defense of accident was both requested by the defense and raised by the evidence, and the military judge gave the standard self-defense instruction.
IV. Whether, the military judge erred in finding Petitioner's request for counsel ambiguous when he denied the defense motion to suppress Petitioner's statement “I need to like stop and ask for a lawyer” to agents of the Air Force Office of Special Investigations during a custodial interrogation when the agent responded “you will be perfectly fine.”
V. Whether the trial transcript's absence of seven minutes of discussion between the parties and the military judge on the instructions to be given to the members is a ...

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