Brown v. Gray

Filing 15

MEMORANDUM AND ORDER ENTERED: The petition for relief under 28 U.S.C. 2241 is denied. Signed by Senior District Judge Richard D. Rogers on 8/16/2011. (Mailed to pro se party Barry W. Brown by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BARRY W. BROWN,
Petitioner,
vs.

Case No. 09-3002-RDR

JAMES W. GRAY, Commandant,
USDB-Fort Leavenworth,
Respondent.
MEMORANDUM AND ORDER
Petitioner is a former United States Air Force member who is
incarcerated at the United States Disciplinary Barracks at Fort
Leavenworth,

Kansas.

This

case

is

before

the

court

upon

petitioner’s pro se action for habeas corpus relief pursuant to 28
U.S.C. § 2241.

Upon review of the materials before the court, the

court shall deny the petition.
I.

CASE HISTORY
Petitioner is a smart attorney who was a member of the judge

advocate corps.
pretrial

On or about September 13, 2005, pursuant to a

agreement,

petitioner

pleaded

guilty

to

attempted

premeditated murder and conspiracy to commit premeditated murder.
Irene B. Brown, petitioner’s wife, was the alleged intended victim
of these crimes.

She is also an attorney and has attempted to help

petitioner during his appeals and applications for clemency.
During

his

marriage

to

Irene

Brown,

petitioner

began

a

romantic relationship with Ramona Greiner, a staff sergeant who was

a paralegal.

Greiner sought the assistance of one of Greiner’s

friends, Gregory Williams, to have Irene Brown killed.

Mr.

Williams reported this contact to the U.S. Air Force Office of
Special Investigations.
2005 in a park.

Petitioner met with Williams on March 25,

Law enforcement made an audio and video recording

of the meeting. During the plea proceedings, petitioner stipulated
to the following description of the meeting:
On Friday, 25 March 2005, Mr. Williams waited at a
picnic table at the meet location in Martin Luther King
Park in San Antonio, Texas. At approximately 1200 hours,
SSgt Greiner arrived at the park, driving a white
Chevrolet Avalanche pickup truck, followed by Captain
Brown, driving a blue Dodge pickup.
SSgt Greiner
introduced Captain Brown and Mr. Williams and departed
the park in her vehicle. Mr. Williams and Captain Brown
then sat at a picnic table and discussed the murder of
his wife, Mrs. Irene Brown. Captain Brown suggested a
methodology of firing indiscriminately at Mrs. Irene
Brown’s workplace. Captain Brown provided Mr. Williams
with pictures to identify Mrs. Brown as well as pictures
of her vehicle and workplace. Captain Brown identified
the entry and exit door to Child Protective Services. He
paid Mr. Williams $280 as an initial down payment for the
murder, and finalized the price of $25,000 for the murder
of Mrs. Irene Brown. Both a visual and audio recording
of this meeting was made. (Prosecution Exhibit 12) The
audio
recording
was
subsequently
transcribed.
(Prosecution Exhibit 13).
AR000248.
During the plea proceedings petitioner stated:
I admit that I took steps to attempt to kill my
wife, Irene.
On 25 March 2005, I met with an individual I now
know as Gregory Williams at the Martin Luther King Park
in San Antonio, Texas. Days prior to the meeting, I had
taken pictures of Irene’s car and of her workplace.
. . . During the meeting, I gave . . . pictures to Mr.
Williams and discussed with Mr. Williams the killing of
2

my wife.
I suggested one method of firing a gun at
Irene’s workplace.
Mr. Williams and I agreed on a sum of $25,000 for
the killing of Irene, and discussed my paying him over
time. At the meeting, I gave Mr. Williams $280 as a down
payment.
My actions in attempting to kill Irene were
completely devoid of any justification or excuse. In
addition, my actions were more than mere preparation.
They were a substantial step and a direct movement toward
the unlawful killing of my wife.
AR 000034.

Petitioner denied that he was under any duress at the

time and professed that the decision to attempt to kill his wife
was the mutual decision of petitioner and Greiner.

AR 000036.

When he entered his guilty pleas, petitioner waived his right
to proceed before a panel of officers and consented to the case
being heard by a single judge.

AR 000250.

Petitioner stated that

he was satisfied with both of his trial counsel.

AR 000094.

He

was aware that, pursuant to the pretrial agreement, his sentence
would be 18 years or the sentence imposed by the presiding judge,
whichever was less.

AR 000092-93.

He was also aware that the

maximum sentence was life without parole.

AR 000076.

During the

proceedings, the government stated that it would not argue that a
mandatory minimum life sentence applied to the crimes alleged
against petitioner.

AR 000009.

Immediately before petitioner was

sentenced, the court announced that no mandatory minimum punishment
applied to the crimes of conviction. AR 000225-26. Petitioner was
aware that he could withdraw his pleas of guilty at any time prior
to the imposition of sentence.

AR 000087.

3

Petitioner did not

withdraw his guilty pleas prior to being sentenced.
During the sentencing proceedings, petitioner and his counsel
were asked if petitioner had been punished in any way prior to
trial

that

would

constitute

illegal

pretrial

punishment.

Petitioner’s counsel answered “no” and petitioner agreed with his
counsel’s response.

AR 000097.

On September 14, 2005, petitioner

was sentenced to a term of 25 years confinement.

In January 2006,

this sentence was reduced by the convening authority to 18 years in
accordance

with

the

pretrial

agreement

of

the

parties.

Petitioner’s request for a further reduction of sentence via an
order of clemency was denied.
Petitioner’s appeal to the Air Force Court of Criminal Appeals
(AFCCA) was denied on April 28, 2008, approximately 27 months after
the action of the convening authority. Petitioner then appealed to
the Court of Appeals for the Armed Forces (CAAF).

That court

denied petitioner’s request for review on November 13, 2008.
II.

HABEAS STANDARDS
Habeas corpus relief can be granted under § 2241 to a federal

prisoner who demonstrates he “is in custody in violation of the
Constitution or laws or treaties of the United States.”

28 U.S.C.

§ 2241(c). The court has limited authority to review court-martial
proceedings for such error.

Our scope of review is initially

limited to determining whether the claims raised by the petitioner
were given full and fair consideration by the military courts.

4

Lips v. Commandant, United States Disciplinary Barracks, 997 F.2d
808, 811 (10th Cir. 1993), cert. denied, 510 U.S. 1091 (1994).

If

the issues have been given full and fair consideration in the
military courts, the district court should not reach the merits and
should deny the petition.

Id.

When a military court decision has

dealt fully and fairly with an allegation raised in a federal
habeas petition, it is not open to the federal court to grant the
writ by reassessing the evidentiary determinations.
Wilson, 346 U.S. 137, 142 (1953).

Burns v.

As the Supreme Court stated:

[I]t is not the duty of the civil courts simply . . . to
re-examine and reweigh each item of evidence of the
occurrence of events which tend to prove or disprove one
of the allegations in the applications for habeas corpus.
It is the limited function of the civil courts to
determine whether the military have given fair
consideration to each of these claims.
Id. at 144.
A four-factor test aids the court in deciding whether the
merits of a military habeas claim have been fully and fairly
considered by the military courts.

These factors are:

1) whether

the asserted error is of substantial constitutional dimension; 2)
whether the issue is one of law rather than of disputed fact
already determined by the military tribunals; 3) whether military
considerations may warrant different treatment of constitutional
claims;

and

4)

whether

the

military

courts

gave

adequate

consideration to the issues involved and applied proper legal
standards.

Roberts v. Callahan, 321 F.3d 994, 996-97 (10th Cir.

5

2003).

The Tenth Circuit has recently emphasized that the fourth

factor is the most important consideration in this analysis.
Thomas v. U.S. Disciplinary Barracks, 625 F.3d 667, 670-71 (10th
Cir. 2010) cert. denied, 131 S.Ct. 1711 (2011).
An issue may be deemed to have been given “full and fair
consideration” when it has been briefed and argued, even if the
military court summarily disposes of the matter.

Watson v.

McCotter, 782 F.2d 143, 145 (10th Cir.), cert. denied, 476 U.S. 1184
(1986).

The fact that the military court did not specifically

address the issue in a written opinion is not controlling.
997 F.2d at 821, n. 2.

Lips,

Instead, “when an issue is briefed and

argued” before a military court, the Tenth Circuit has “held that
the military tribunal has given the claim fair consideration, even
though its opinion summarily disposed of the issue with the mere
statement that it did not find the issue meritorious or requiring
discussion.”

Id., citing Watson, 782 F.2d at 145.

The burden is

on the petitioner to show that the military review was “legally
inadequate” to resolve his claims. Watson, 782 F.2d at 144, citing
Burns, 346 U.S. at 146.
cannot reach the merits.
III.

Without such a showing, the federal court
Id.

ISSUES RAISED BY PETITIONER FOR HABEAS REVIEW
Petitioner’s petition for habeas relief, Doc. No. 1, raises

the following issues:
1) Denial of petitioner’s due process rights to speedy posttrial review. Petitioner alleges that the delay caused petitioner
6

prejudice by making witnesses and
inaccessible for later proceedings.

evidence

unavailable

or

2) Ineffective assistance of counsel in the following
respects:
- counsel failed to seek sentencing credit for
pretrial punishment;
- counsel failed to adequately prepare for
trial;
- counsel failed to assert petitioner’s speedy
trial rights;
- counsel failed to afford petitioner an
opportunity to assist in his defense;
- counsel failed to effectively cross-examine
witnesses;
- counsel failed to interview witnesses and
gather evidence helpful to petitioner;
- counsel failed to seek a pretrial ruling
regarding the possibility of a mandatory
minimum life sentence;
- counsel failed to provide petitioner with
necessary information to make an informed
plea;
- counsel failed to request the prospective
panel members be sequestered.
3) Denial of fair trial by failing to sequester prospective
panel members.
4) Prosecutorial misconduct in the following respects:
- proceeding with charges not supported by
probable cause; and
- by blocking petitioner and his wife from
communicating.
5) Denial of post-trial due process because the annual
clemency recommendation board at the U.S. Disciplinary Barracks
failed to consider petitioner’s submissions and failed to include
a letter from petitioner’s wife in the materials sent to the Air
Force Clemency and Parole Board.
6) Denial of speedy trial.
7) Improvident guilty plea because petitioner was incorrectly
informed that he faced a possible mandatory minimum life sentence
and petitioner was unaware of evidence which would have negated his
guilt.
7

Petitioner’s traverse in support of his petition on occasion
seeks to expand upon these issues in a manner which raises claims
which were not made before the military courts.

For instance,

petitioner argues in his traverse that his plea was improvident
because he lacked information regarding the accumulation of good
conduct time and the existence of a mandatory supervised release
program.

Doc. No. 13 at p. 71.

The court will not review claims

which petitioner could have raised but did not raise before the
military courts.
IV.

Watson, 782 F.2d at 145.

FULL AND FAIR CONSIDERATION
A.

Petitioner’s argument

Petitioner argues that the military courts did not give full
and

fair

consideration

to

his

arguments.

While

petitioner

addresses all four factors mentioned above, his primary contention
is that, though the military courts addressed the legal arguments
raised on appeal, they did not review the entire factual record
supporting his legal claims before reaching a decision. Petitioner
contends:
While it is accurate to say the AFCCA over and again
provided extensive legal analysis supporting its
decisions, that analysis can hardly be viewed as either
full or fair where the court ignored the only brief and
argument submitted for Petitioner.
Doc. No. 13 at p. 17.

The brief which was overlooked, according to

petitioner, is a brief which he completed after the AFCCA issued a
decision on April 23, 2008 affirming his convictions and sentence.

8

Petitioner concedes that the AFCCA entered his brief and supporting
evidentiary documents into the appellate record when petitioner so
moved

and

asked

for

reconsideration

of

affirming his convictions and sentence.

the

AFCCA’s

decision

Doc. No. 13 at p. 16.

Nevertheless, he claims that the military courts’ analysis “was
made in absence of a vast amount of evidence.”

Doc. No. 13 at p.

17.
As already noted, on April 23, 2008 the AFCCA issued its
decision

affirming

petitioner’s

convictions

and

sentence.

Petitioner claims that he did not receive a copy of the decision
until May 29, 2008.

On June 5, 2008, petitioner filed a motion for

reconsideration and to file an untimely reply to the government’s
answer to the assignments of error.

Petitioner submitted his

intended reply brief and supporting materials with this motion.
The AFCCA granted petitioner’s motion to submit his materials on
June 13, 2008, but denied the motion for reconsideration on June
18, 2008. The court stated: “Having considered all of the matters
submitted by the appellant, both in connection with the asserted
assignments of error and the motions granted above, the appellant’s
request for reconsideration is hereby DENIED.”

AR 000353.

The CAAF was the next stop for petitioner’s military appeals.
Petitioner asked for review of the AFCCA’s decision based upon the
arguments he raised before the AFCCA.

Petitioner’s attorneys

explicitly referred the CAAF to petitioner’s reply brief and

9

accompanying materials.
000661.

AR 000635-36, 000644, 000654, 000658,

Nevertheless, the CAAF denied review.

B.

AR000579.

Analysis

As previously stated, petitioner contends that the military
courts did not give full and fair consideration to his claims
because

the

AFCCA

did

not

give

attention

to

his

brief

and

supporting materials which were submitted to the AFCCA as part of
a request for reconsideration of its decision.1

We reject this

contention for the following reasons.
First, the AFCCA explicitly stated when it denied the motion
for reconsideration that it considered all the matters submitted by
petitioner.
cert.

See Armann v. McKean, 549 F.3d 279 (3rd Cir. 2008)

denied,

130

S.Ct.

77

(2009)

(finding

full

and

fair

consideration of an argument presented only to the CAAF and
summarily denied upon review).

Second, the court will not presume

that the AFCCA ignored the record before it prior to making its
decision to deny petitioner’s motion for reconsideration.
295-96; Thomas, 625 F.3d at 672.

Id. at

There is a presumption of

regularity that applies to the operation of court systems.

See

Parke v. Raley, 506 U.S. 20, 30 (1992) (refusing to presume that

1

Petitioner could have argued to the CAAF that the AFCCA did
not actually consider his reply brief and supporting materials.
Petitioner did not do so. Thus, it is arguable that petitioner has
waived his claim that the AFCCA did not give full and fair
consideration to the entire record in this case. See Watson, 782
F.2d at 145. We do not reach this point.
10

constitutional rights were not validly waived simply because a
transcript of a waiver was unavailable); Venson v. State of
Georgia, 74 F.3d 1140, 1146 (11th Cir. 1996) (court must assume that
trial court found manifest necessity existed for a mistrial whether
or not the record affirmatively reflects such a finding). Thus, on
habeas review, the court may rely upon a statement in the record
that a court considered evidence before making a decision.

Lopez

v. Ryan, 630 F.3d 1198, 1202-04 (9th Cir. 2011) (court accepts state
court’s statement that it considered all mitigating evidence and
found it wanting in spite of some state case law limiting the
consideration of such evidence).
Third, while the presumption of regularity may be rebutted,
the court rejects the arguments petitioner advances to support his
claim that the AFCCA ignored his brief and supporting documents.
Petitioner argues that the records custodian cannot account for the
materials in the record. Petitioner makes citation to an affidavit
from the custodian of the record of trial in this case that states
she was “unable to locate” in the original record of trial a
document described as “a motion filed with the Air Force Court of
Criminal Appeals on 18 June 2008.”

Statement of Amanda M. Alvey,

Doc. No. 10-2. This affidavit is somewhat unclear as to the object
of the search.

It does not cause the court to disbelieve the

statement from the AFCCA that it considered the matters submitted
by petitioner.

We also note that petitioner’s counsel stated that

11

the AFCCA granted petitioner’s motions to file the reply out of
time and to submit documents, and that the documents would be
attached to the record.

Doc. No. 13-2 at 00205.

Petitioner’s

counsel also referred to the reply brief in arguing for review by
the CAAF.
Petitioner further argues that the AFCCA could not have given
full and fair consideration to his reply brief and supporting
materials under the time constraints apparent in the record.
Petitioner

contends

that

the

AFCCA

accepted

the

brief

and

supporting documents on Friday, June 13, 2008 and denied the motion
for reconsideration on Wednesday, June 18, 2008, allowing only
three

business

petitioner.
materials.

days

The

to

court

consider
has

the

reviewed

matters

submitted

petitioner’s

brief

by
and

The court does not believe that temporal restraints

would have prevented a full and fair consideration of petitioner’s
reply brief and accompanying matters.
Petitioner

further

contends

that

his

reply

brief

and

supporting evidence provided a factual basis for his arguments
which the AFCCA said was missing in its April 23, 2008 decision.
Therefore, petitioner argues, the AFCCA must not have given full
and fair consideration of the brief upon reconsideration in June
2008.

This

argument

seems

to

advocate

a

violation

of

the

principles set forth in Burns which advise the court not to reexamine

and

reweigh

evidence

in

12

connection

with

petitioner’s

arguments.2

As the Tenth Circuit has made clear, even a summary

denial of review may constitute full and fair consideration of a
claim.

Lips, 997 F.2d at 821.

Simply because the AFCCA rejected

petitioner’s arguments and chose not to write a memorandum opinion
to explain its reasoning, does not mean that it failed to give full
and

fair

consideration

to

petitioner’s

reply

brief

before

concluding that petitioner’s arguments and evidence did not warrant
changing the decision to affirm his convictions and sentence.
Nevertheless, the court shall initiate a contracted discussion
of petitioner’s issues in light of our review of the entire record.
Our review of the reply brief and the rest of the record indicates
that a denial of relief was consistent with a full and fair
consideration of the complete sum of petitioner’s submissions.
Petitioner was recorded as he paid another person to kill his
wife, discussed with that person how to proceed, and delivered
photographs to aid the commission of the intended crime.

He

decided to plead guilty and his guilty pleas were entered after a
meticulous examination.

Given his occupation and training, it may

be reasonably assumed that petitioner was well aware of his
situation, the significance of his pleas, and the importance of his
sworn statements.

The AFCCA noted this last point in its opinion

2

We recognize that at this stage of his argument petitioner is
contending, in essence, that the court should weigh the evidence to
determine whether the military courts gave full and fair
consideration to his claims, not whether the claims were correctly
decided. However, the analysis of those questions does overlap.
13

(2008 WL 1956589 at *4); of course the Supreme Court has noted it
as well:

“[s]olemn declarations in open court carry a strong

presumption of verity.”
(1977).

Blackledge v. Allison, 431 U.S. 63, 74

Under these circumstances, it would not be unreasonable

for a court to decide, after fully considering petitioner’s reply
brief and supporting materials, to deny relief to petitioner.
Such a court could reasonably determine that petitioner waived
any pretrial speedy trial objection when he pleaded guilty as well
as any claim of malicious prosecution and denial of fair trial.3
As summarized by the Supreme Court:
[A] guilty plea represents a break in the
chain of events which has preceded it in the
criminal process. When a criminal defendant
has solemnly admitted in open court that he is
in fact guilty of the offense with which he is
charged,
he
may
not
thereafter
raise
independent claims relating to the deprivation
of constitutional rights that occurred prior
to the entry of the guilty plea. He may only
attack the voluntary and intelligent character
of the guilty plea by showing that the advice
he received from counsel was not [competent].
Tollett v. Henderson, 411 U.S. 258, 267 (1973).

See also Mabry v.

Johnson, 467 U.S. 504, 508 (1984) (“It is well settled that a
voluntary and intelligent plea of guilty made by an accused person,
who has been advised by competent counsel, may not be collaterally
attacked.”).
A court also could reasonably decide that petitioner made a
3

These are the third, fourth and sixth claims raised in the
petition for habeas relief.
14

knowing and voluntary plea with full knowledge of the possible
maximum sentence and with knowledge that there was no mandatory
minimum sentence.4

Petitioner makes a contention which is quite

odd to this court.

He contends that he pleaded guilty because he

believed there was a mandatory minimum life sentence in this case.
Petitioner supposedly believed this even though the government
stated for the purposes of petitioner’s case that it would not
advocate a mandatory minimum.

Also, the pretrial agreement was

completely contrary to any notion of a mandatory minimum life
sentence.

A person pleading guilty to a crime with a mandatory

minimum life sentence would be sentenced to life in prison because
it was mandatory.

Petitioner in this case knew his ultimate

sentence would be no greater than eighteen years.

As he admits in

his traverse, he had worked in a legal office in which there was a
case with a similar charge and, contrary to the existence of a
mandatory minimum life sentence, the sentence was eight years.
Doc. No. 13 at p. 52.

It is unreasonable to believe that

petitioner pleaded guilty thinking there was a mandatory minimum
life

sentence

mandatory

and

minimum

that

by

sentence

pleading
without

guilty
a

he

specific

could

avoid

a

agreement

(not

present here) that would somehow void the mandatory minimum.

What

the record suggests is that petitioner’s counsel told him that an

4

The following discussion relates to the second and seventh
issues in petitioner’s § 2241 petition.
15

argument could be made (although it wasn’t) that a mandatory
minimum life sentence was applicable and that it was their advice
that nothing be done to invite such an argument.

This is far

different from being told that the maximum sentence was much larger
or smaller than the law in fact required or that a mandatory
minimum was lower than the law in fact required.

Those are

situations which might influence a decision to plead guilty.

The

court advised petitioner that there was no mandatory minimum prior
to actually sentencing petitioner. Petitioner could have withdrawn
his plea at that time.

He did not do so, it is reasonable to

assume, because the plea agreement and other statements of the
parties were predicated upon a shared understanding that there was
no mandatory minimum sentence.
Petitioner raises other contentions, without citation to
authority, suggesting that his guilty plea was not knowing or
voluntary because he was unaware of certain evidence or arguments
which might support a claim of innocence.5

A reasonable court

could reject these claims in light of petitioner’s statements at
the time of the guilty plea and the strong evidence of guilt in the
record.

The Supreme Court, in U.S. v. Ruiz, 536 U.S. 622 (2002),

5

For example, petitioner points to evidence that Ms. Greiner
had a reputation for dishonesty, that Mr. Williams received some
financial reward and help with traffic tickets, and that petitioner
did not have the funds to make a substantial payment to Mr.
Williams. He refers to these points to suggest that his guilty
plea was not knowing and voluntary and to argue that he received
ineffective assistance of counsel.
16

provides additional support for rejecting petitioner’s argument.
There, the Court held that the Constitution did not require the
government to disclose material impeachment evidence prior to
entering a plea agreement with a defendant, stating:
[T]his Court has found that the Constitution, in respect
to a defendant’s awareness of relevant circumstances,
does not require complete knowledge of the relevant
circumstances, but permits a court to accept a guilty
plea,
with
its
accompanying
waiver
of
various
constitutional
rights,
despite
various
forms
of
misapprehension under which a defendant might labor. See
Brady v. United States, 397 U.S. at 757 (defendant
“misapprehended the quality of the State’s case”); ibid.
(defendant misapprehended “the likely penalties”); ibid.
(defendant failed to “anticipate” a change in the law
regarding relevant “punishment”); McMann v. Richardson,
397 U.S. 759, 770 (1970) (counsel “misjudged the
admissibility” of a “confession”); United States v.
Broce, 488 U.S. 563, 573 (1989) (counsel failed to point
out a potential defense); Tollett v. Henderson, 411 U.S.
258, 267 (1973) (counsel failed to find a potential
constitutional infirmity in grand jury proceedings).
536 U.S. at 630-31.

Language from the above-cited Brady decision

also appears applicable to the case at bar:
Often the decision to plead guilty is heavily
influenced by the defendant’s appraisal of the
prosecution’s case against him and by the apparent
likelihood of securing leniency should a guilty plea be
offered and accepted.
Considerations like these
frequently present imponderable questions for which there
are no certain answers; judgments may be made that in the
light of later events seem improvident, although they
were perfectly sensible at the time. The rule that a
plea must be intelligently made to be valid does not
require that a plea be vulnerable to later attack if the
defendant did not correctly assess every relevant factor
entering into his decision. A defendant is not entitled
to withdraw his plea merely because he discovers long
after the plea has been accepted that his calculus
misapprehended the quality of the State’s case or the
likely penalties attached to alternative courses of
17

action.
Brady v. United States, 397 U.S. 742, 756-57 (1970).
As

for

petitioner’s

claims

of

ineffective

assistance

of

counsel, the military courts could have reasonably reviewed the
record and decided that petitioner could not overcome the “strong
presumption that counsel's representation was within the wide range
of reasonable professional assistance.” Harrington v. Richter, –––
U.S. ––––, 131 S.Ct. 770, 787 (2011) (interior quotations omitted).
The courts could also have reasonably determined that petitioner
could not demonstrate any error by his counsel which, given the
very

strong

evidence

of

guilt,

likely

affected

petitioner’s

decision to plead guilty or his ultimate sentence.

A “‘mere

allegation that [a defendant] would have insisted on trial but for
his trial counsel's errors, although necessary, is ultimately
insufficient to entitle him to relief.’”

U.S. v. Clingman, 288

F.3d 1183, 1186 (10th Cir. 2002) (quoting Miller v. Champion, 262
F.3d 1066, 1072 (10th Cir. 2001)).

An examination of the factual

circumstances surrounding the plea is necessary to decide whether
an attorney’s specific alleged mistake led a client to enter a plea
of guilty the client otherwise would not have made.

Id.

There is

no defense to the charges in this case which is so patent or
obvious in the materials presented by petitioner that it persuades
the court that the military courts ignored their responsibility to
fully and fairly consider from the entire record whether petitioner

18

suffered any actual prejudice from his trial counsel’s alleged
ineffective assistance.6

Similarly, the military courts could

reasonably have decided that petitioner failed in his burden to
establish “a reasonable probability” that a competent attorney in
petitioner’s case would have presented evidence in a different
fashion such that there was a reasonable probability that a
different sentence would have been imposed.

See Wiggins v. Smith,

539 U.S. 510, 535-36 (2003) (discussing petitioner’s burden).
A reasonable person could conclude after considering all of
petitioner’s arguments and supporting materials that the AFCCA’s

6

For instance, the failure to file a meritorious speedy trial
objection is not necessarily incompetent performance.
U.S. v.
Rushin, 642 F.3d 1299, 1307-09 (10th Cir. 2011).
Petitioner’s
arguments regarding how witnesses should have been cross-examined
in an emotional setting could reasonably be rejected as so much
second-guessing. See Richie v. Mullin, 417 F.3d 1117, 1124 (10th
Cir. 2005) cert. denied, 547 U.S. 1045 (2006)(“counsel’s decisions
regarding how best to cross-examine witnesses presumptively arise
from sound trial strategy”); Kessler v. Cline, 335 Fed.Appx. 768,
770 (10th Cir. 2009)(“the manner in which counsel cross-examines a
particular witness is a strategic choice and therefore virtually
unchallengeable”)(interior quotations omitted). In addition, the
AFCCA considered petitioner’s Article 13 pretrial punishment claim
as an alleged aspect of ineffective assistance of counsel but
denied the claim largely because petitioner personally voiced his
waiver of such a claim during his sentencing hearing. The court
expressly stated that it considered petitioner’s post-trial
personal affidavits which listed “a host of perceived deficiencies
in his treatment while confined in the county jail, asserts that
such deficiencies warrant Article 13 credit, and argues that his
attorneys improperly refused to seek such credit.” 2008 WL 1956989
at *7. The materials in the reply brief are not much different
from those affidavits. Thus, there are no good grounds to think
that the court denied relief to petitioner because it failed to
give full and fair consideration to the additional materials
contained in association with petitioner’s reply brief.
19

Barker v. Wingo analysis of the post-trial delay in this case
should not be modified.7

The Tenth Circuit has commented that the

necessity of showing substantial prejudice dominates the Barker
balancing test after a defendant has been convicted.

U.S. v.

Yehling, 456 F.3d 1236, 1245-46 (10th Cir. 2006) (citing, Perez v.
Sullivan, 793 F.2d 249, 256 (10th Cir. 1986)).
could

conclude

that

petitioner

failed

to

A reasonable court
make

a

showing

of

substantial prejudice. Given that the AFCCA found no errors in the
proceedings

which

would

require

a

rehearing

and

additional

evidence, a reasonable court could easily find that petitioner
could not demonstrate substantial prejudice from the alleged posttrial delay.
A reasonable court could also conclude that any error in the
consideration of clemency was harmless.8

Petitioner has argued

that in 2007 the Clemency Board failed to consider a letter written
by petitioner’s wife because the letter was withheld from the
Clemency

Board.

A

reasonable

court

could

conclude

that

consideration of the letter would not have caused the Clemency
Board to modify an 18-year sentence approximately two years after
the imposition of the sentence. Indeed, petitioner admits that the
letter was received as part of an application for clemency relief

7

This discussion relates to the first issue listed in the
habeas petition.
8

This discussion relates to petitioner’s fifth issue.
20

which was denied in 2006.

In addition, courts have concluded that

military prisoners have no constitutional or fundamental right to
clemency. Coder v. O’Brien, 719 F.Supp.2d 655, 661 (W.D.Va. 2010).
Courts have also found that a complete failure to respond to a
request for clemency does not violate a due process right.

Id. at

662 (citing Ward v. Province, 283 Fed.Appx. 615, 617-18 (10th Cir.
2008) and U.S. v. Bell, 60 M.J. 682, 687 (N.M.Ct.Crim.App. 2004)).
Given the time of the 2007 clemency request vis-a-vis the length of
petitioner’s sentence and the limited due process rights in this
area, a reasonable person could conclude, after examining the
entire record, that petitioner could not demonstrate that the
denial of his 2007 clemency request was in violation of his posttrial due process rights.
Finally, petitioner contends that the military courts did not
give full and fair consideration to his case because his appellate
counsel made short arguments knowing that petitioner’s pro se brief
would fill in and elaborate upon his contentions.

Petitioner

asserts that his counsel’s “paltry submissions” cannot be viewed as
a true briefing and arguing of his issues before the military
courts and, therefore, his case did not receive full and fair
consideration.

Doc. No. 13 at p. 20.

We reject this contention,

first, because the court believes the AFCCA did give full and fair
consideration to petitioner’s pro se brief and materials, in
addition to his appellate counsel’s briefs. Second, the court does

21

not find that petitioner’s appellate counsel wrote inadequate
briefs.
C.

Summary of the four factors

For these reasons, the court concludes that the military
courts gave full and fair consideration to the factual record and
the legal issues presented in this case.

With the possible

exception of petitioner’s Clemency Board claim, petitioner has
raised several issues of substantial constitutional dimension which
were determined by the military courts after a legal analysis mixed
with a consideration of the facts presented.

The military courts

gave adequate consideration to petitioner’s arguments and applied
the proper legal standards.
some

issues

for

which

The military courts were faced with

there

is

a

military

component

better

considered by a military court as opposed to a civilian court. The
reasonableness of delays in the pretrial and post-trial phases of
this case involve judgments relating to the reasonableness of
requests for extensions of time in a military context.

Whether

petitioner’s pretrial confinement conditions warranted sentencing
credit also involves military considerations. After an analysis of
petitioner’s arguments in light of the record and the four factors
the court must consider before deciding whether to reach the merits
of petitioner’s claims, the court finds that the military courts
gave full and fair consideration to petitioner’s claims.

22

V.

CONCLUSION
For the above-stated reasons, the petition for relief under 28

U.S.C. § 2241 must be denied.
IT IS SO ORDERED.
Dated this 16th day of August, 2011 at Topeka, Kansas.
s/Richard D. Rogers
United States District Judge

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