Anderson v. United States of America et al

Filing 15

ORDER ENTERED: The petition for writ of habeas corpus under 28 U.S.C. 2241 is denied. Signed by Senior District Judge Richard D. Rogers on 11/22/2013. (Mailed to pro se party Ryan G. Anderson by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

RYAN G. ANDERSON,
Petitioner,
v.

CASE NO. 11-3046-RDR

UNITED STATES, et al.,
Respondents.

O R D E R
Petitioner,

a

prisoner

incarcerated

in

the

United

States

Disciplinary Barracks in Fort Leavenworth, Kansas, proceeds pro se
seeking a writ of habeas corpus under 28 U.S.C. ' 2241.
Petitioner was convicted by court-martial on offenses related
to his attempt to give classified information to the enemy, and of
conduct

that

was

prejudicial

to

good

order

and

discipline.

Petitioner was sentenced to a dishonorable discharge and confinement
for life with the possibility of parole.

The Army Court of Criminal

Appeals (ACCA) and the United States Court of Appeals for the Armed
Forces (CAAF) affirmed petitioner’s conviction and sentence.

See

U.S. v. Anderson, 68 M.J. 378 (C.A.A.F.), reconsideration denied, 69
M.J. 60 (2010).
Petitioner filed the instant petition to challenge his military
conviction on five grounds.

Respondents contend that petitioner

waived habeas review on all grounds by failing to raise any of them
during his military appeals.

Having carefully reviewed the record
1

which includes respondents= answer, the court agrees and dismisses the
petition.
Background
Military officials charged petitioner with five offenses related
to petitioner providing information about the capabilities and
vulnerabilities
investigators

of

Army

posing

as

personnel

and

extremists.

equipment
Relevant

to

to

undercover

the

court’s

discussion below, the convening authority and the military judge both
denied defense counsel’s request for appointment of a forensic
psychologist to assist in the preparation of petitioner’s defense,
but later assigned an expert in clinical psychology to the defense
team.

The government, however, utilized a forensic psychologist in

presenting its case against petitioner, and then challenged the
defense expert as not being qualified as not being as qualified.
Petitioner=s Claims
The petition identifies the following five grounds:
I

The convening authority and trial judge both refused a

request by a Trial Defense Services (“TDS”) attorney to authorize
appointment of a forensics-certified mental health expert to assist
TDS in trial preparation of Specialist Anderson’s defense.
II

TDS attorneys failed to rebut and/or clarify prosecution

testimony by the government’s forensics expert that the disease of
Asperger’s Syndrome does not impair cognitive function.
III

The punishment of life in prison with opportunity for parole

is harsh and excessive and should have been less than convicted
terrorists tried in both civilian American courts and by military
tribunals since 2001.
2

IV

Government investigators denied Anderson the rightful

access to his Washington National Guard (“WNG”) unit chain of command
when uniformed supervisors were told not to interfere with covert
agents as they choreographed the events that led to his meeting in
Seattle with federal role players who videotaped the rendezvous.
V

While

Anderson

was

under

government

investigation,

commissioned and non-commissioned officers of Anderson’s WNG unit
failed to fulfill their duties and obligations to aid a junior soldier
when he correctly sought counsel from his superiors.

Further, the

unit’s individual officers and/or non-commissioned officers could
have contributed to the onset of Anderson’s manic episode.
Standard of Review
The United States district courts are authorized to grant a writ
of habeas corpus to a prisoner "in custody in violation of the
Constitution or laws or treaties of the United States."
' 2241.

28 U.S.C.

Federal courts, however, have only limited authority to

review decisions made by courts-martial.
137, 138-42 (1953).

Burns v. Wilson, 346 U.S.

This review is initially limited to determining

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

Lips v. Commandant, United

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

See Thomas v. U.S. Disciplinary

Barracks, 625 F.3d 667, 670 (10th Cir.2010)(federal court Ais to
determine whether the military have given fair consideration to each
of the petitioner's claims@).

If so, a federal court does not reach

the merits and should deny the petition.

See Roberts v. Callahan,

321 F.3d 994, 995-96 (10th Cir.)(citing Lips), cert. denied, 540 U.S.
3

973 (2003).

If a claim was not presented to the military courts, a

federal habeas court is to consider the claim waived and not subject
to review.

Watson v. McCotter, 782 F.2d 143, 145 (10th Cir.), cert.

denied, 476 U.S. 1184 (1986).
Discussion
Respondents contend dismissal of the petition is warranted
because petitioner failed to raise any of his five grounds during his
military appeals, and thereby waived federal habeas review on all
grounds.

The court agrees, as the record clearly demonstrates that

petitioner failed to present Grounds II through V to the military
appellate courts for review.

Petitioner thus waived habeas review

by this court of those four grounds.
As to Ground I, respondents argue petitioner also waived habeas
review of this ground because petitioner’s appeal to the ACCA, and
his supplemented petition for review to the CAAF, raised a related
but more expansive Ground which specifically stated that petitioner
“WAS NOT AFFORDED A FAIR TRIAL BECAUSE HIS REQUEST FOR A FORENSIC
PSYCHIATRIST WAS DENIED AND THE GOVERNMENT THEREAFTER AVAILED ITSELF
OF A FORENSIC PSYCHIATRIST AND ATTACKED THE QUALIFICATIONS OF THE VERY
EXPERT IT DID MAKE AVAILABLE [TO THE DEFENSE]”(emphasis added).1

Thus

respondents maintain the claim presented to the military courts
centered on whether petitioner’s trial was rendered fundamentally
unfair because the government used an expert it had denied the defense,
and then challenged the defense expert as not certified to provide
a forensic opinion.
1

Ground IV in petitioner’s Supplement to Petition for Grant of Review
Supplemented Petition, 2008 WL 828018 (Appellate Brief)(U.S. Armed Forces March 17,
2008).

4

The resolution of this claim by the CAAF supports respondents’
argument for waiver.

After setting forth the requirements for

requesting a nonmilitary expert, the CAAF observed that petitioner’s
arguments were not focused on the three possible instances in which
an abuse of discretion could have occurred in denying petitioner’s
request for a civilian forensic expert.

Thomas, 68 M.J. at 383.

Instead,

argument

it

found

petitioner’s

“core

is

that

his

court-martial was fundamentally unfair because the military judge,
having

rejected

Appellant's

motion

challenging

the

convening

authority's denial of a government-funded forensic psychologist,
failed,

after

the

Government

subsequently

presented

rebuttal

testimony of a forensic psychiatrist, to revisit the earlier ruling
or take some other action.”

Id.

Finding no showing of fundamental

unfairness had been made, the CAAF rejected petitioner’s due process
argument.

Id. at 383-84.

The court thus concludes the petition should be dismissed because
petitioner waived federal habeas corpus review of all grounds.
IT IS THEREFORE ORDERED that the petition for a writ of habeas
corpus under 28 U.S.C. § 2241 is denied.
DATED:

This 22nd day of November 2013, at Topeka, Kansas.

s/ Richard D. Rogers
RICHARD D. ROGERS
United States District Judge

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