United States District Court, D. Kansas
BARRY N. NIXON, SR., Petitioner,
DAWN HILTON, Colonel, Commandant USDB-Leavenworth, Respondent.
MEMORANDUM AND ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
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 seeks to set aside his 2009 rape conviction by
general court-martial, based on the recent holding in
United States v. Mangahas, 77 M.J. 220 (C.A.A.F.
2018). The Court finds that Mangahas does not
provide Petitioner relief and denies the Petition.
a former active duty member of the United States Air Force,
was tried by a general court-martial in September 2009.
See United States v. Nixon, No. ACM 37622, 2012 WL
5991775 (A.F. Ct. Crim. App. Nov. 14, 2012) (unpublished
decision). The factual background of this matter was
summarized in the United States Air Force Court of Criminal
Appeals (“AFCCA”) as follows:
In 2005, [Petitioner] confessed to his wife, SSN, that he had
molested two of this three daughters, ANS and STN. A third
daughter, ANN, eventually alleged that [Petitioner] had
molested her as well. [Petitioner] was charged with rape,
indecent acts, and assault with intent to commit rape against
STN. The alleged acts of molestation against ANS and ANN were
barred from prosecution by the statute of limitations. The
Government sought to admit evidence of these uncharged acts
under Mil. R. Evid. 414.
Id. at *1. Petitioner was charged with two
specifications (counts) of indecent acts with a child, one
specification of assault with intent to commit rape, one
specification of assault consummated by a battery, and one
specification of rape. Id. With the exception of the
simple assault specification, which involved his wife, the
alleged victim was Petitioner's youngest daughter.
Petitioner was convicted as follows:
Contrary to his pleas, [Petitioner] was convicted of the rape
charge and specification. Consistent with his pleas,
[Petitioner] was convicted of the specification alleging
assault consummated by a battery, and the two specifications
alleging indecent acts with a child. [Petitioner] pled guilty
by exceptions and substitutions to the specification of
assault with intent to commit rape. The Government elected to
prove the offense as charged, and the members found
[Petitioner] guilty by exceptions. The members sentenced
[Petitioner] to confinement for 18 years. The convening
authority approved the sentence as adjudged.
appealed, raising sixteen issues for review before the AFCCA.
Id. The AFCCA found no error that prejudiced a
substantial right of Petitioner and affirmed the findings and
sentence. Id. The Court of Appeals for the Armed
Forces (“CAAF”) denied further review. United
States v. Nixon, 72 M.J. 248 (C.A.A.F. April 3, 2013).
The CAAF denied Petitioner's motion for reconsideration.
United States v. Nixon, 72 M.J. 256 (C.A.A.F. April
18, 2013). Petitioner was represented by appointed military
appellate counsel during his appellate proceedings.
January 10, 2014, Petitioner filed a petition for writ of
habeas corpus under 28 U.S.C. § 2241 with this Court.
See Nixon v. Ledwith, Case No. 14-3007-RDR, 2015 WL
12864251, at *1 (D. Kan. Feb. 17, 2015). Petitioner raised
three grounds for relief. This Court denied the petition, finding
that the military courts gave full and fair consideration to
all of Petitioner's claims. Id. Petitioner
appealed, and the United States Court of Appeals for the
Tenth Circuit affirmed, finding that Petitioner waived review
of claims two and three, and that the military courts fully
and fairly reviewed claim one. Nixon v. Ledwith, 635
Fed.Appx. 560 (10th Cir. Jan. 6, 2016) (unpublished).
5, 2018, Petitioner filed the instant habeas corpus petition
under 28 U.S.C. § 2241, alleging one ground for
relief-that his rape charge was barred by the then-applicable
statute of limitations. Petitioner acknowledges that he did
not raise Ground One before the military courts, stating that
it “is a new issue based on new case law.” (Doc.
1, at 6, 9-10.) Petitioner seeks “[t]he charge of rape
be set aside, immediate relief from sentence, and order for a
new sentence.” (Doc. 1, at 7.)
federal court may grant habeas corpus relief where a prisoner
demonstrates that he is “in custody in violation of the
Constitution or laws or treaties of the United States.”
28 U.S.C. § 2241(c). However, the Court's review of
court-martial proceedings is very limited. Thomas v. U.S.
Disciplinary Barracks, 625 F.3d 667, 670 (10th Cir.
2010). The Supreme Court has explained that “[m]ilitary
law, like state law, is a jurisprudence which exists separate
from the law which governs in our federal judicial
establishment, ” and “Congress has taken great
care both to define the rights of those subject to military
law, and provide a complete system of review within the
military system to secure those rights.”
Nixon, 635 Fed.Appx. at 563 (quoting Burns v.
Wilson, 346 U.S. 137, 140 (1953)). “[W]hen 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.” Thomas, 625 F.2d at
670 (quoting Burns, 346 U.S. at 142). Instead, 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.” Id. (citing
Burns, 346 U.S. at 145). Any claims that were not
presented to the military courts are deemed waived.
Id. (citing Roberts v. Callahan, 321 F.3d
994, 995 (10th Cir. 2003)).
alleges that his trial for the offense of rape was barred by
the then-applicable statute of limitations, relying on
United States v. Mangahas, 77 M.J. 220 (C.A.A.F.
2018). In Mangahas, prosecutors were able to bring
rape charges eighteen years after the incident because, at
the time of the prosecution in 2015, the Uniform Code of
Military Justice (“UCMJ”) provided that there was
no statute of limitations for offenses punishable by
death-and rape was such an offense. Id. at 221;
see Article 43, UCMJ, 10 U.S.C. § 843 (1994);
see also Article 120, UCMJ, 10 U.S.C. § 920
(1994). The ...