United States District Court, D. Kansas
DAMARIO A. COLEMAN, Petitioner,
COMMANDANT, U.S. Disciplinary Barracks, 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 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
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.
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).
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.
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.
Standard of Review
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)).
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.”
Full and Fair Consideration
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)).
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