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Coleman v. Commandant, U.S. Disciplinary Barracks

United States District Court, D. Kansas

November 22, 2019

DAMARIO A. COLEMAN, Petitioner,
v.
COMMANDANT, U.S. Disciplinary Barracks, 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 was granted leave to proceed in forma pauperis. Because Petitioner is confined at the United States Disciplinary Barracks in Fort Leavenworth, Kansas, this matter was transferred to this Court from the District of North Dakota. Respondent has filed an Answer and Return (Doc. 27). Petitioner has not filed a Traverse, and the November 12, 2019 deadline for filing one has passed. Petitioner seeks to set aside his 2012 conviction by general court-martial, based on the holdings in United States v. Hills, 75 M.J. 350 (C.A.A.F. June 27, 2016) and United States v. Hukill, 76 M.J. 219 (C.A.A.F. May 2, 2017).

         I. FACTUAL BACKGROUND

         Petitioner, a former active duty member of the United States Air Force, was tried in September 2012 by general court-martial at Minot Air Force Base, North Dakota. Contrary to his pleas, Petitioner was convicted of one specification of rape, three specifications of aggravated sexual assault, and one specification of forcible sodomy, in violation of Articles 120 and 125 of the Uniform Code of Military Justice (“UCMJ”), 10 U.S.C. §§ 920, 925. Petitioner was sentenced to a dishonorable discharge, confinement for twelve years, forfeiture of all pay and allowances, and a reduction to the grade of E-1. On March 1, 2013, the convening authority approved the sentence.

         Petitioner appealed to the Air Force Court of Criminal Appeals (“AFCCA”), raising the issue of “WHETHER THE MILITARY JUDGE ERRED WHEN HE ALLOWED ONE CHARGE OF SEXUAL ASSAULT TO BE USED AS PROPENSITY EVIDENCE FOR ANOTHER CHARGE OF SEXUAL ASSUALT UNDER MILITARY RULE OF EVIDENCE (MRE) 413.” (Doc. 27-5, at 15, Appellant's Assignment of Errors.) The AFCCA affirmed the findings and sentence. United States v. Coleman, No. AMC 38287, 2014 WL 4801263 (A.F. Ct. Crim. App. July 29, 2014). Petitioner's petition for grant of review to the Court of Appeals for the Armed Forces (“CAAF”) was denied on November 6, 2014. United States v. Coleman, 74 M.J. 78 (C.A.A.F. Nov. 6, 2014).

         Petitioner filed a petition for a writ of error coram nobis with the AFCCA, and it was denied on May 4, 2018. Coleman v. United States, Misc. Dkt. No. 2018-02, 2018 WL 4703273 (A.F. Ct. Crim. App. May 4, 2018). The CAAF summarily denied Petitioner's writ-appeal petition on June 6, 2018. Coleman v. United States, USCA Dkt. No. 18-0240/AF (C.A.A.F. June 6, 2018); Doc. 27-4.

         Petitioner brings the instant petition under § 2241, arguing that his conviction and sentence violate the due process clause of the Fifth Amendment to the United States Constitution. Petitioner alleges that the instruction used at Petitioner's court-martial violated the Due Process Clause based on the subsequent decisions in Hills and Hukill. Hills was decided on June 27, 2016, and Hukill clarified Hills on May 2, 2017. Petitioner argues that Hills and Hukill should be applied retroactively, warranting a rehearing in his case.

         II. Standard of Review

         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 v. Ledwith, 635 Fed.Appx. 560, 563 (10th Cir. Jan. 6, 2016) (unpublished) (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)).

         III. ANALYSIS

         Petitioner alleges that the military judge at his court-martial instructed the jury, pursuant to a pattern jury instruction, that they could use evidence of one charged offense as evidence of his propensity to commit another charged offense. Petitioner relies on the subsequent decision in Hills, which held that it was “obvious” that such an instruction violated an accused's “presumption of innocence and right to have all findings made clearly beyond a reasonable doubt, resulting in constitutional error.” Hills, 75 M.J. at 353, 356. The decision in Hukill clarified that “under Hills, the use of evidence of charged conduct as M.R.E. 413 propensity evidence for other charged conduct in the same case is error, regardless of the forum, the number of victims, or whether the events are connected.” Hukill, 76 M.J. at 222. “Whether considered by members or a military judge, evidence of a charged and contested offense, of which an accused is presumed innocent, cannot be used as propensity evidence in support of a companion charged offense.” Id.

         A. Full and Fair Consideration

         Petitioner argues that the military courts have not fully and fairly considered his claim, pointing to language in the AFCCA's decision “declin[ing] the appellant's invitation to speculate about his asserted possible [constitutional] dangers of Mil. R. Evid. 413.” (Doc. 3, at 5.) However, the AFCCA found that at that time the Rule was both constitutional on its face and as applied in Petitioner's case. Coleman, 2014 WL 4801263, at *3. The AFCCA's decision, rendered pre-Hills, found that Petitioner's sentence was correct in law and fact. Furthermore, the AFCCA addressed the issue again in its decision denying Petitioner's Petition for Writ of Error Coram Nobis. Coleman, 2018 WL 4703273, at *1. The AFCCA stated that “Petitioner fails to address our holding in Lewis that the new rule of criminal procedure announced in Hills does not apply retroactively to cases such as his that were final at the time the new rule was announced.” Id. (citing Lewis v. United States, 76 M.J. 829, 836 (A.F. Ct. Crim. App. 2017)).

         The Court finds that it appears that the military courts dealt fully and fairly with his claim, relying on their decision in Lewis. Even if the AFCCA had failed to fully address the issue, its holding in Lewis would still prevent ...


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