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Lorance v. Commandant, U.S. Disciplinary Barracks
United States District Court, D. Kansas
November 8, 2019
CLINT A. LORANCE, Petitioner,
COMMANDANT, U.S. DISCIPLINARY BARRACKS, Respondent.
MEMORANDUM AND ORDER
W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE
matter is a 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 2013 conviction by general court-martial.
Because the Petition contains both exhausted and unexhausted
claims, the Court dismisses the mixed petition without
August of 2013, Petitioner was convicted by general
court-martial as follows:
An officer panel sitting as a general court-martial convicted
[Petitioner], contrary to his pleas, of attempted murder,
murder, wrongfully communicating a threat, reckless
endangerment, soliciting a false statement, and obstructing
justice in violation of Articles 80, 118, and 134 Uniform
Code of Military Justice, 10 U.S.C. §§ 880, 918,
934 (2012) [hereinafter UCMJ]. The panel sentenced
[Petitioner] to a dismissal, confinement for twenty years,
and forfeiture of all pay and allowances. The convening
authority approved only nineteen years confinement but
otherwise approved the sentence as adjudged.
United States v. Lorance, Army 20130679, 2017 WL
2819756 (A. Ct. Crim. App. June 27, 2017). The Army Court of
Criminal Appeals (“ACCA”) summarized the
underlying facts as follows:
In 2012, [Petitioner] and members of 4th Brigade Combat Team
(BCT), 82nd Airborne Division were deployed to Afghanistan.
During this time, the Chairman of the Joint Chiefs of
Staff's Standing Rules of Engagement (SROE) were in
effect. The SROE permitted soldiers to use force in defense
of themselves or others upon the commission of a hostile act
or the demonstration of imminent hostile intent. There were
no declared hostile forces, and thus no authority to engage
any person upon sight.
In June 2012, First Platoon of the BCT was situated at an
outpost named Strong Point Payenzai, located near the village
of Sarenzai in the Zharay district of Kandahar province.
First Platoon had recently lost their platoon leader to
injury from an improvised explosive device (IED), and had
suffered other casualties in the months prior. [Petitioner],
who had spent the deployment as the squadron liaison officer
(LNO) at the brigade tactical operations center (TOC), was
assigned to take over as the platoon leader.
On 30 June 2012, [Petitioner], in his new role, was leading
the platoon back to Strong Point Payenzai from the Troop TOC
at Strong Point Ghariban. As they approached the Entry
Control Point (ECP), [Petitioner] encountered an Afghan
villager with a young child. The villager was asking to move
some concertina wire on the road leading to Strong Point
Payenzai that was impeding his ability to work on his farm.
[Petitioner] told the villager that if he touched the
concertina wire, he and his family would be killed.
[Petitioner] conveyed the seriousness of his message by
pulling back the charging handle of his weapon and pointing
the weapon at the young child. [Petitioner] ended the
encounter by instructing the villager to come to his shura, a
meeting, and to bring twenty people.
The next day, [Petitioner] ordered two of his soldiers to go
up into one of the towers and shoot harassing fire in the
general direction of villagers. [Petitioner] told the
soldiers he was doing this in order to provoke the
villagers' attendance at the upcoming shura. Hearing the
shots, the Troop TOC radioed Strong Point Payenzai for a
report. [Petitioner] instructed a noncommissioned officer to
respond by falsely reporting the Strong Point was receiving
On 2 July 2012, a mission brief was held for the platoon and
their accompanying Afghanistan National Army (ANA) element
before they left to go on a patrol. In this briefing, it was
announced that motorcycles were now authorized to be engaged
on sight, although the testimony was somewhat inconsistent
with at least one soldier recalling this coming from the ANA
while others identified [Petitioner] as the source of this
new information. [Petitioner] had posted a sign in the
platoon headquarters prior to the patrol stating that no
motorcycles would be permitted in the area of operations. As
the platoon, with the ANA element in the lead, moved out they
encountered a number of villagers near the ECP complaining
about the shots from the day prior. [Petitioner] told the
villagers that they could discuss it at the upcoming shura.
[Petitioner] told the villagers to leave and then began
counting down from five. The platoon began its patrol.
Not long into the patrol, Private First Class (PFC) Skelton,
the Company Intelligence Support Team (COIST) member attached
to the platoon headquarters element, called out to
[Petitioner] that he observed a motorcycle with three
passengers. PFC Skelton did not report any hostile actions,
but simply that he spotted a motorcycle with three passengers
in his field of view. [Petitioner] did not ask whether the
motorcycle passengers were presenting any threat.
[Petitioner] ordered PFC Skelton to engage the motorcycle.
PFC Skelton complied and fired his weapon, but missed. At
trial, PFC Skelton testified that he would not have fired
upon the motorcycle or its passengers on his own, because
“there was no reason to shoot at that moment in time
that presented a clear, definitive hostile intent and hostile
Apparently in response to the impact of PFC Skelton's
rounds, the motorcycle stopped, the male passengers
dismounted and began walking in the direction of the ANA
unit. The ANA soldiers did not open fire, but rather
gesticulated to the men, who then headed back to their
motorcycle. As the three men returned to the motorcycle,
[Petitioner], over his portable radio, ordered the
platoon's gun truck to engage the men. Private E-2 (PV2)
Shiloh, the gunner on the 240 machine gun in the gun truck
that had overwatch of the patrol, had continuous observation
of the victims from after the first set of shots by PFC
Skelton. Upon receiving [Petitioner]'s order, Private
Shiloh fired his weapon, killing two of the riders and
wounding the third. The third victim ran away into the
village. Prior to the engagement, the victims had no
observable weapons or radios, and were not displaying any
hostility toward U.S. or Afghan forces. According to PV2
Shiloh, the only reason he engaged the men was because he was
ordered to do so by [Petitioner]. Following the engagement,
the two deceased victims were on the ground, and the
motorcycle was standing up, kickstand still down. Upon
learning that the motorcycle was still standing, [Petitioner]
ordered PV2 Shiloh to engage and disable the motorcycle. PV2
Shiloh refused this order, noting that a young boy was
Shortly after this engagement, helicopter support came on
station. The aircraft crew received a request to locate the
third motorcycle rider last seen running into the village.
While on station, the pilot took aerial photographs of the
two deceased victims and the motorcycle. Sergeant First Class
(SFC) Ayres, the platoon sergeant, linked up with
[Petitioner] to find out what happened, as he had heard the
shots moments before. [Petitioner] told SFC Ayres that the
aircraft had spotted the men on the motorcycle with weapons
before his troops engaged.
[Petitioner] ordered two soldiers, PFC Wingo and PFC Leon, to
conduct a Battle Damage Assessment (BDA) of the deceased
victims. BDAs normally entailed taking photographs, obtaining
biometric data, and testing for any explosive residue on the
bodies. Private First Class Skelton was the soldier trained
and equipped to conduct a BDA and was also responsible for
briefing the TOC afterwards. Even though PFC Skelton was
standing right next to [Petitioner], [Petitioner] had PFC
Wingo and PFC Leon conduct the BDA, neither of whom had the
training or equipment to properly perform the task. When PFC
Skelton reminded [Petitioner] that he was supposed to do the
BDA, [Petitioner] told PFC Skelton not to because he
wouldn't like what he saw.
After the two soldiers conducted a cursory inspection of the
victims, [Petitioner] told the gathered villagers to take the
bodies. The soldiers did not find any weapons, explosives or
communications gear on the bodies. [Petitioner] then told the
radio transmission operator (RTO) to report over the radio
that a BDA could not be done because the bodies were removed
before the platoon could get to them. When the RTO did not
make this report, [Petitioner] took over the radio and made
this report to Captain (CPT) Swanson, the Troop Commander.
After the mission, and back at Strong Point Payenzai,
[Petitioner] told PFC Skelton not to include the BDA
information in his upcoming brief to the TOC. Private First
Class Skelton went to the TOC at Strong Point Ghariban to
deliver his intelligence brief on the patrol. Upon arriving,
he informed the COIST platoon leader that he needed to speak
with CPT Swanson. PFC Skelton told CPT Swanson what happened
on the patrol and that he believed they may have civilian
casualties. Shortly thereafter, [Petitioner] was relieved of
his duties pending an investigation into the events.
Id. at *1-3.
filed a Petition for a New Trial and an appeal to the ACCA,
asserting six assignments of error:
I. THIS COURT SHOULD ORDER A NEW TRIAL BASED ON R.C.M. 1210
BECAUSE THE GOVERNMENT SUPPRESSED CRITICAL EVIDENCE OF THE
VICTIMS' IDENTITIES AS ENEMY COMBATANTS AFFILIATED WITH
IMPROVISED EXPLOSIVE DEVICE NETWORKS AND LINKED TO U.S.
CASUALTIES, IN VIOLATION OF THE FIFTH AMENDMENT, BRADY v.
MARYLAND, R.C.M. 701 (a) (6); R.C.M. 701 (a) (2) (A),
and AR 27-26.
II. THE CONVENING AUTHORITY ABUSED HIS DISCRETION BY
FORWARDING THE RECORD OF TRIAL THE SAME DAY HE TOOK INITIAL
ACTION, THEREBY PREMATURLY SEVERING JURISDICTION, AND BY
DECLINING TO ACT ON APPELLANT'S REQUESTS TO RECALL AND
MODIFY THE ACTION IN LIGHT OF NEWLY-DISCOVERED EVIDENCE .
III. THE MILITARY JUDGE COMMITTED CONSTITUTIONALLY
PREJUDICIAL ERROR WHEN SHE FAILED TO SUA SPONTE
INSTRUCT THE PANEL ON FOUR SPECIAL DEFENSES REASONABLY RAISED
BY THE EVIDENCE.
IV. DEFENSE COUNSEL'S REPRESENTATION OF FIRST LIEUTENANT
LORANCE FELL BELOW THE REQUIRED STANDARD OF CARE AND THE
PREJUDICE THAT RESULTED CANNOT BE RENDERED HARMLESS.
V. THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO
SUPPORT CONVICTIONS FOR ATTEMPTED UNPREMEDITATED MURDER AND
VI. THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO
SUPPORT A CONVICTION FOR SPECIFICATION 4 OF CHARGE IV
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