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Lorance v. Commandant, U.S. Disciplinary Barracks

United States District Court, D. Kansas

November 8, 2019

CLINT A. LORANCE, Petitioner,
v.
COMMANDANT, U.S. DISCIPLINARY BARRACKS, Respondent.

          MEMORANDUM AND ORDER

          JOHN W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE

         This 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 prejudice.

         I. FACTUAL BACKGROUND

         In 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 fire.
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 act.”
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 nearby.
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.

         Petitioner 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 UNPREMEDITATED MURDER.
VI. THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUPPORT A CONVICTION FOR SPECIFICATION 4 OF CHARGE IV ...

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