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Nixon v. Hilton

United States District Court, D. Kansas

October 25, 2018

BARRY N. NIXON, SR., Petitioner,
v.
DAWN HILTON, Colonel, 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 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.

         I. FACTUAL BACKGROUND

         Petitioner, 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 Nov. 14, 2012) (unpublished decision).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.

Id.

         Petitioner 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.

         On 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.[1] 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).

         On June 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.)

         II. ANALYSIS

         A 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)).

         Petitioner 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. ยง 920 (1994). The ...


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