Gray v. Gray

Filing 74

MEMORANDUM AND ORDER setting forth general procedural guidelines for the February 23, 2015 hearing. PLEASE REFER TO THE ORDER FOR AN IMPORTANT DEADLINE AND THE TIME ALLOTTED FOR THE HEARING. Signed by Chief Judge J. Thomas Marten on 2/5/15. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RONALD GRAY,
Private, U.S. Army
Petitioner,
v.

Case No. 5:08-CV-3289-JTM

ERIC BELCHER,
Colonel, U.S. Army,
Commandant,
U.S. Disciplinary Barracks,
Fort Leavenworth, Kansas,
Respondent.

MEMORANDUM AND ORDER
This matter is before the court on Petitioner Ronald Gray’s Petition for Habeas Corpus
pursuant to 28 U.S.C. § 2241. Dkt. 17. In his Petition and corresponding Traverse (Dkt. 42),
Petitioner alleges twenty-one (21) assignments of error relating to his court-martial conviction
for premeditated murder, attempted murder, rape, robbery, forcible sodomy, burglary, and
larceny. On April 12, 1988, Petitioner was sentenced, by unanimous decision, to death, as well
as dishonorable discharge, total forfeitures, and a reduction in rank to Private E-1.
In response to his Petition, this court granted Petitioner a hearing, scheduled for Monday,
February 23, 2015, in Kansas City, Kansas. At the time it scheduled this hearing, the court
indicated to counsel that it would provide some general procedural guidelines as well as areas of
particular interest to the court. This Order serves to outline those guidelines and areas.
At the outset, the court notes that a number of Petitioner’s claims have been fully
exhausted and afforded full and fair consideration on direct review, namely claims 1-18. As
such, the court finds it unnecessary to hear oral argument on those claims. However, the parties

should address, albeit briefly, their opposing positions on the use of the “full and fair
consideration” standard (see questions below for further guidance).
What remains in issue are those assignments of error raised for the first time in
Petitioner’s Writ for Coram Nobis, namely assignments of error: I.C, IV.D, XII, XIX, XX, and
XXI. The court requests that the parties focus their attention on addressing these issues. For
further guidance, the court sets forth the following questions for the parties’ consideration:
In questions 1-5, the court refers only to those assignments of error that the government
argues have been waived due to non-exhaustion.1
1. What is Petitioner’s response for not having raised these assignments of error during direct
appeal?
2. What is the government’s response to Petitioner’s claim that this court should and, in fact
must, review these assignments of error de novo?
3. What about the possibility that, by analyzing Petitioner’s assignments of error under the
threshold standard applicable to petitions for coram nobis, the military courts have already
given these claims full and fair consideration?
4. How, if at all, does the ACMR’s language, that “[t]he merits of petitioner’s claims [presented
in the petition for writ of coram nobis] are now for the federal district court, rather than this
court, to decide,” affect this court’s responsibility as to these assignments of error?
5. How does Petitioner reconcile the holding in Thomas v. United States Disciplinary Barracks,
625 F.3d 667 (10th Cir. 2010) with his argument that this court must consider these claims de
novo?
6. The Tenth Circuit has long applied Supreme Court precedent, first iterated in Burns v.
Wilson, 346 U.S. 137 (1953), that “when 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.” In so holding, the Supreme Court and the Tenth
Circuit specifically acknowledge that “in military habeas corpus the inquiry, the scope of
matters open for review, has always been more narrow than in civil cases.” Petitioner argues
that the Tenth Circuit never intended for this “full and fair consideration” test to extend to
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These assignments of error are as follows: (1) Claim I.C, the UCMJ’s failure to require a fixed number of
members for a general court martial trying a capital case so long as a panel of five or more members was seated; (2)
Claim IV.D, trial and appellate counsel’s ineffectiveness for using the wrong standard for challenging the “cause
challenges” against MSG McCormick and CSM Woods; (3) Claim XII, ineffective assistance of appellate counsel;
(4) Claim XIX, petitioner’s denial of access to those documents considered by the President; (5) Claim XX,
Petitioner’s lack of competency during his trial and appellate proceedings; and (6) XXI, lack of military court
jurisdiction.

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cases of military executions for domestic crimes committed during peacetime. Are there any
cases that specifically prohibit application of this “full and fair consideration” test to cases
dealing with military personnel sentenced to death for a crime committed during peacetime?
7. How does Petitioner deal with the fact that neither Burns nor any other case since its issuance
has limited the application of the full and fair consideration test?
8. Petitioner relies on language from the Tenth Circuit noting that “the qualitative difference
between death and other penalties calls for a greater degree of reliability when the death
sentence is imposed . . . as well as a heightened scrutiny in reviewing such a decision.” See
Douglas v. Workman, 560 F.3d 1156 (10th Cir. 2009). Does this language somehow prohibit
application of the “full and fair consideration” test to the matter now before this court? What
is the government’s response to this language?
9. Petitioner strongly urges this court to look at the historical background of the balance of
jurisdiction between the military and civil courts relative to various classes of defendants and
crimes to determine the appropriate standard of review. He argues that relevant Supreme
Court precedent demonstrates that the military’s power to impose death sentences during
peacetime has been “intentionally and consistently limited” by the civil courts. If this is true,
how does Petitioner explain the fact that the current version of the UCMJ omitted the express
restraints against the military’s capital prosecution of domestic peacetime crimes and did so
with limited comment?
10. The government argues that this court’s review of Petitioner’s claims must be “quite
limited.” Is Petitioner seeking to expand that review? If so, would such an expansion be
applicable only in Petitioner’s case, only in death penalty cases, or in all instances of federal
habeas review of courts-martial?
11. How, if at all, does the notion of heightened reliability now present in capital cases as a result
of Furman v. Georgia, 408 U.S. 238 (1972) change the application of the “full and fair
consideration” test?
12. How should this court deal with Judge Rogers’ opinion in Piotrowski v. Commandant,
United States Disciplinary Barracks, 2009 U.S. Dist. LEXIS 119892, at *49-50 (D. Kan.
Dec. 22, 2009), specifically the paragraph that reads as follows:
The more difficult question of whether or not military appellate courts can retain
or assert jurisdiction over a collateral action raising Mr. Piotrowski’s unexhausted
claims once his military discharge has been executed, is one to be answered in the
first instance by the military courts. Likewise, whether or not Mr. Piotrowski can
present sufficient grounds for a writ of error coram nobis is for those courts to
decide in the first instance . . . If military tribunals refuse to hear his unexhausted
claims because they have been procedurally defaulted, it is likely his new claims
will be considered procedurally defaulted in federal civil court as well.

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In addition to these questions, the court requests that the parties submit to the court, in
writing, seven (7) days prior to the hearing, their strongest argument(s). Although no additional
briefing will be entertained, if either party has a case that is squarely on point to the questions at
issue, please forward just the citation to the court prior to the hearing.
Please be advised that this hearing is purely oral argument; the court does not find it
necessary to consider or receive any evidence. The time allotted for this hearing is six (6) hours.
Petitioner will be allotted four (4) hours to present his case; Respondent will be allotted two (2)
hours. No additional time will be given.
SO ORDERED this 5th day of February, 2015.

s/J. Thomas Marten
J. THOMAS MARTEN
CHIEF JUDGE

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