Roukis v. United States Army
Filing
58
ORDER ADOPTING REPORT AND RECOMMENDATION for 38 Report and Recommendations. The Court has reviewed all remaining matters in the Report for clear error and finds none. The Court adopts the Report and Recommendation of Judge Freeman with the modif ications stated herein. Accordingly, the petition for a writ of habeas corpus is denied and the action is dismissed with prejudice. The Clerk of the Court is respectfully directed to close the case. (See Order.) (Signed by Judge Ronnie Abrams on 11/14/2014) (ajs)
LS DC-SDNY
DOCUMENT
ELECTRONICALLY FI~ED'
DOC #: _ _ __....,.-.,,.....--.DATE FILED: lflJffJzo//r,
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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PETER ROUKIS,
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Petitioner,
No. 1O-cv-2219-RA
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ORDER ADOPTING REPORT
AND RECOMMENDATION
UNITED STATES ARMY,
Respondent.
--------------------------------------------------------------- )(
RONNIE ABRAMS, United States District Judge:
In this amended petition for a writ of habeas corpus (the "Petition"), filed pursuant to 28
U.S.C. § 2241, Petitioner Peter T. Roukis challenges his conviction by general court-martial and
subsequent confinement. On January 23, 2013, Magistrate Judge Debra C. Freeman issued a
Report and Recommendation (the "Report") recommending the dismissal of the Petition, to
which Petitioner has objected. For the following reasons, the Court adopts the Report with the
modifications stated herein.
PROCEDURAL HISTORY
In April 1998, Petitioner, who had been a private in the United States Army, was
convicted by general court-martial of the pre-meditated murder of his wife, Jennifer Roukis. He
was sentenced to a dishonorable discharge, forfeiture of all pay and allowances, reduction to
Private E 1, a reprimand, and confinement for life. (United States Army's Response to Petition
for Writ of Habeas Corpus ("Resp.") Ex. 11.)
Petitioner then appealed his conviction and
sentence to the United States Army Court of Criminal Appeals ("ACCA") and the United States
Court of Appeals for the Armed Forces ("CAAF"). (Report 10.)
On January 30, 2006, after the completion of the military appellate courts' direct review
of his case, Petitioner was discharged from the Army and his sentence became final under Article
76 of the Uniform Code of Military Justice. (See Resp. Exs. 2, 26.) In 2008, Petitioner began
filing pro se petitions for habeas and other extraordinary relief in the ACCA and CAAF, all of
which were summarily denied. (See id. Exs. 16, 18, 19, 22, 24, 25, 28.)
In the instant Petition (his seventh overall), Petitioner asserts six claims challenging his
conviction and confinement: (1) Petitioner should have been granted a new Article 32
investigation after defense counsel raised concerns about his mental competency; (2) the military
judge erred by allowing the Government to introduce statements Petitioner made during
psychological evaluations; (3) the military judge erred by allowing the Government to introduce
statements Petitioner made to a New York City detective; (4) defense counsel was ineffective for
failing to advise Petitioner of a plea offer; (5) defense counsel was ineffective by waiving
Petitioner's pre-trial objection to the testimony of a fellow service member; and (6) Petitioner's
confinement in the Bureau of Prisons ("BOP"), and not the United States Military Barracks,
violates his rights to due process and equal protection of law (together, the "original claims"). 1
Petitioner raised these six claims at various points throughout his court-martial, direct
appeal, and collateral review proceedings in the ACCA and CAAF. Claim One, regarding the
Article 32 investigation, was raised in a pre-trial motion and denied by the military judge. (Resp.
Exs. 10, 14.) Petitioner did not appeal the claim, but he later asserted it in habeas corpus
petitions to the ACCA and CAAF. (Id. Exs. 18, 21.) Similarly, Claim Two, regarding the use of
statements from psychological evaluations, was first raised as an objection to their introduction
1
In the Report, Judge Freeman consolidated Petitioner's second and third claims of trial error and his fourth and
fifth claims of ineffective assistance of counsel. Because Petitioner's claims were raised at different levels of review
within the military courts, however, the Court refers to each of the six discrete claims as they are alleged in the
Petition.
2
at trial, and then not raised again until Petitioner applied to the military appellate courts for
habeas relief after the conclusion of his direct appeals. (Id. Exs. IE, 18, 21.) Claim Three,
concerning the statements made to a New York City detective, was raised at trial, appealed to the
ACCA (but not further appealed to the CAAF), and then later raised again in Petitioner's military
appellate court habeas petitions. (Id. Exs. 4, 9, 10, 15, 18, 21.) Claims Four and Five, which
raise allegations of ineffective assistance of counsel, were not raised on direct appeal but were
asserted in Petitioner's military appellate court habeas petitions. 2 (Id. Exs. 18, 21.) Claim Six,
which challenges Petitioner's BOP confinement, did not arise until he was serving his sentence
and was first raised in petitions for unspecified extraordinary relief filed in the ACCA and
CAAF. (Id. Exs. 16, 17, 24, 28.)
Upon review of the instant Petition, Judge Freeman concluded that the record was
sufficient to establish that Petitioner's six claims, although "summarily denied by the military
courts," were given "fair consideration" by those courts on direct and collateral review. (Report
23-24.) Judge Freeman also reached the merits of Claim Six, which unlike his other claims, was
not challenged by Respondent on the basis that it had been fully and fairly considered by the
military courts. Judge Freeman nonetheless concluded that the BOP-confinement claim failed on
the merits because Petitioner's "treatment as a civilian prisoner does not offend the
Constitution." (Id. 25.)
In his objections to the Report, filed on March 5, 2013, Petitioner specifically references
Claims One, Two, and Six and otherwise objects to the Report "in its entirety." (Petitioner's
Objections to the Report & Recommendation ("Obj.") 3, 7, 10-11.) Petitioner also raises three
new arguments which were not presented to Judge Freeman: (1) that the ACCA and CAAF
2
Petitioner raised other, distinct issues regarding the performance of his trial counsel on direct appeal, (Resp. Exs. 4,
I 0), but those claims were denied and not further pursued in any of the petitions for habeas or other extraordinary
relief, (IQ, Exs. 3, 5).
3
lacked jurisdiction to entertain his petitions for collateral relief (id. 5); (2) that there have been
changes in the "scope of inquiry on habeas corpus" petitions (id. 12-13); and (3) that two
documents, neither of which Petitioner submitted with the Petition, should be considered in
adjudicating the Petition (id. 15-33).
The United States Army responded to Petitioner's
objections by way of letter dated April 15, 2013. (Dkt. 48.) On September 26, 2013, Petitioner
filed an application to appoint counsel pursuant to 18 U .S.C. § 3006(A)(g). (Dkt. 51.) After the
Court denied the application, (Dkt. 53), Petitioner submitted a reply on November 19, 2013,
(Dkt. 54).
LEGAL STANDARD
A district court reviewing a magistrate judge's report and recommendation "may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(l)(C).
A court may accept portions of a report to which no
objections are made as long as those portions are not "clearly erroneous."
Greene v. WCI
Holdings Corp., 956 F. Supp. 509, 513 (S.D.N.Y. 1997) (citing Fed. R. Civ. P. 72(b)). A court
must undertake a de novo review of those portions to which specific objections are made. See
§ 636(b)(l); Greene, 956 F. Supp. at 513 (citing United States v. Raddatz, 447 U.S. 667, 676
(1980)). However, "to the extent that the party makes only conclusory or general objections, or
simply reiterates the original arguments, the Court will review the Report strictly for clear error."
See, e.g., Alam v. HSBC Bank USA, N.A., No. 07 Civ. 3540 (LTS), 2009 WL 3096293, at *1
(S.D.N. Y. Sept. 28, 2009). "Objections of pro se litigants are generally accorded leniency and
construed to raise the strongest arguments that they suggest." Quinn v. Stewart, No. 10 Civ.
8692 (PAE) (JCF), 2012 WL 1080145, at *4 (S.D.N.Y. April 2, 2012) (internal quotations
omitted). "Nonetheless, even a prose party's objections to a Report and Recommendation must
be specific and clearly aimed at particular findings in the magistrate's proposal, such that no
4
party be allowed a 'second bite at the apple' by simply relitigating a prior argument."
Id.
(quoting Pinkney v. Progressive Home Health Servs., 06 Civ. 5023 (L TS), 2008 WL 2811816, at
*1 (S.D.N.Y. July 21, 2008)).
The scope of federal habeas review of the decision of a military court-martial is
circumscribed. Initially, the court "must determine whether the military courts gave full and fair
consideration to the petitioner's claims." Brown v. Gray, 483 F. App'x 502, 504 (10th Cir.
2012). If the military courts gave full and fair consideration to a petitioner's claims, "it is not
open to a federal civil court to grant the writ simply to re-evaluate the evidence." Burns v.
Wilson, 346 U.S. 137, 142 (1953), reh'g denied, 346 U.S. 844 (1953).
It is only when the
military has not dealt fully and fairly with a claim that "the scope of review by the federal civil
court expand[s]" and the federal civil court may reach the merits of the petitioner's claims. Lips
v. Commandant, U.S. Disciplinary Barracks, 997 F.2d 808, 811 (10th Cir. 1993).
As a general matter, an issue has been given "full and fair consideration" when it has
been "adequately briefed and argued before the military courts ... even if the military court
disposes of the issue summarily." Roberts v. Callahan, 321 F.3d 994, 997 (10th Cir. 2003).
Similarly, a court's failure to hear oral argument is not fatal to "full and fair consideration."
"[M]ilitary courts, like civilian courts, must diligently review all arguments presented by the
parties," and courts "decline to presume a military appellate court has failed to consider all the
issues presented to it before making a decision." Thomas v. U.S. Disciplinary Barracks, 625
F.3d 667, 671-72 (10th Cir. 2010). 3
3
Thomas is instructive on this point. In that case, the ACCA summarily denied a petition for a writ of habeas
corpus without hearing oral argument. 625 F.3d at 669-70. The Tenth Circuit affirmed the district court's dismissal
of the petitioner's § 2241 petition on the ground that the petitioner's claims had been fully and fairly considered by
the ACCA, explaining that "the thoroughness and adequacy of the briefing in this case, together with the broad
deference [the Court] grant[s] to the military in collateral review of court-martial convictions, supports the district
court's determination that Thomas' claims received full and fair consideration by the military court." l.Q_, at 672
(internal citation omitted).
5
"Finally, a petitioner cannot argue that his claims were not given full and fair
consideration by the military courts, if he never presents the claims to the military courts."
Grafmuller v. Wegner, 13 Civ. 50 (RAJ) (DEM), 2013 WL 4808881, at *8 (E.D. Va. Aug. 9,
2013), report and recommendation adopted, 2013 WL 4804288 (E.D. Va. Sept. 5, 2013), affd,
571 F. App'x 184 (4th Cir. 2014); see also Roberts, 321 F.3d at 995; Watson v. McCotter, 782
F.2d 143, 145 (10th Cir. 1986). "If a habeas petitioner neither makes a timely objection to an
issue nor raises the issue on appeal, then he has waived that claim." Grafmuller, 2013 WL
4808881 at *8 (citing Lips, 997 F.2d at 812); see also Wolffv. United States, 737 F. 2d 877, 880
(10th Cir. 1984).
Relatedly, a petitioner seeking relief from an Article III court must first
exhaust all remedies in the military courts. Loving v. U.S., 68 M.J. 1, 3 (C.A.A.F. 2009). To
overcome procedural default and "obtain federal habeas review of claims based on trial errors to
which no objection was made at trial, or of claims that were not raised on appeal, a state prisoner
must show both cause excusing the procedural default and actual prejudice resulting from the
error." Lips, 997 F.2d at 812.
DISCUSSION
As noted previously, Petitioner asserts specific objections with respect to Claims One,
Two, and Six but otherwise simply "object[s] to the Report and Recommendation in its entirety."
(Obj. 3, 7, 10-11.) Where the objections address his six original claims, however, Petitioner
merely reiterates the arguments made in the Petition. Petitioner does not mention the Report or
its conclusions, nor does he suggest that the military courts failed to give full and fair
consideration to his claims; instead he disputes "the merits of the military court decisions." See
Christian v. Commandant, U.S. Disciplinary Bd., 436 F. App'x 870, 873 (10th Cir. 2011). As to
these arguments, therefore, the Court reviews the Report for clear error.
3096293, at * 1.
Alam, 2009 WL
Petitioner also raises three new arguments in his objections to the Report.
6
Because these arguments were not before Judge Freeman, they are considered separately m
Section B, infra.
A. Claims Raised in the Petition
The record before Judge Freeman established that all of Petitioner's claims were
previously raised in other proceedings before the military courts.
In those proceedings,
Petitioner briefed each of the claims, attaching numerous relevant documents, including legal
briefs submitted by Petitioner's counsel and the Government during the court-martial
proceedings and trial transcript excerpts. (See Resp. Exs. 10, 16-18, 21, 24, 27, 29.) In each
instance, the ACCA and CAAF issued summary orders indicating that they had considered and
denied the petitions. (Id. Exs. 5, 16, 18, 19, 22, 24, 25, 28.) 4 On that basis, Judge Freeman
reasonably concluded that all of Petitioner's claims were fully and fairly considered by the
military courts. 5
The summary orders do not, however, articulate the reasons for the denials, including
whether the petitions were denied because Petitioner failed to raise his claims on direct review or
because the claims failed on the merits. Likewise, the summary orders denying Petitioner's
habeas corpus petitions do not address whether the military courts had jurisdiction to entertain
the petitions, even though, as discussed in more detail below, such jurisdiction has been called
into question. 6 Nevertheless, to the extent that the military courts had jurisdiction to entertain the
4
The ACCA issued a written opinion denying Petitioner's direct appeal, but summarily denied the only claim
asserted here~Claim Three. (Resp. Ex. 5.)
5
With respect to Petitioner's fourth claim that Petitioner's trial counsel failed to advise Petitioner of a plea offer,
although the Report states that Miller's Declaration had been "submitted by the Government in opposition to one of
Petitioner's later applications for relief," (Report 6), it appears to have been submitted in opposition to Petitioner's
habeas petition in this Court. (See Resp. Ex. 31.) Nevertheless, Petitioner briefed this claim before both the ACCA
and CAAF in petitions for extraordinary relief, attaching to his petition to the ACCA a post-trial clemency letter in
support of his assertion that a plea offer had been made. (lil Ex. 18, App. D.)
6
The issue of the military courts' jurisdiction over Petitioner's petitions for collateral relief is not discussed in the
Report as it was not raised by either Petitioner or Respondent prior to the filing of Petitioner's objections. The issue
7
habeas petitions-a question this Court need not resolve-the Court agrees with Judge Freeman
that Petitioner's claims received full and fair consideration by the military courts. See Thomas,
625 F.3d at 672 (declining to "presume a military appellate court has failed to consider all the
issues presented to it before making a decision" when reviewing claims asserted in ACCA
habeas petition); see also Armann v. McKean, 549 F.3d 279, 292-93 (3d Cir. 2008); Grafmuller,
2013 WL 4808881, at *13.
Furthermore, even if the claims in the instant Petition had not been properly considered
by the military courts on collateral review, all but one would nevertheless be procedurally barred
in this § 2241 action. With the exception of Claim Six, which could not have been raised on
direct appeal, Petitioner either failed to exhaust his claims in the military courts or waived them
altogether. See Lips, 997 F.2d at 812; see also Lanthron v. Commandant of the United States
Marine Corps., 173 F.3d 429, at * 1 (6th Cir. 1999) (table opinion). Claims One and Two were
not exhausted in the military courts; both claims were preserved at trial but not raised on direct
appeal. Claims Four and Five, which assert ineffective assistance of trial counsel claims, were
waived when they were not raised on direct appeal, even though Petitioner's appellate counsel
raised other arguments regarding ineffective assistance of trial counsel. (Resp. Ex. 10.) 7 In fact,
despite the voluminous materials Petitioner submitted on appeal to the ACCA, only Claim Three
was included in the appeal's nine claims of error.
(Id.)
Even that claim, though, was not
exhausted because it was not among the claims Petitioner further appealed to the CAAF. (Id. Ex.
4.)
was, however, raised by the Army in a motion to dismiss Petitioner's 2008 petition for extraordinary relief. (Resp.
Ex. 26.) The CAAF denied that motion as moot in its Order denying the petition. (J_Q_, Ex. 25.)
7
These claims were previously asserted only in Petitioner's habeas petitions in the military appellate courts. (Resp.
Exs. 18, 21.)
8
In sum, Petitioner waived or failed to exhaust Claims One through Five in the military
courts and he is thus procedurally barred from asserting those claims here. See Schlesinger v.
Councilman, 420 U.S. 738, 758 (1975) ("[F]ederal courts normally will not entertain habeas
petitions by military prisoners unless all available military remedies have been exhausted.");
Lips, 997 F.2d at 812 (finding waiver where claims were not asserted at trial or on appeal); Hurn
v. McGuire, 04 Civ. 3008 (RDR), 2005 WL 1076100, at *2 (D. Kan. May 6, 2005) (declining to
find exhaustion where Petitioner had not raised claims at trial or on direct appeal but presented
them in habeas petition to the military courts).
To overcome procedural default and obtain habeas review, "the petitioner must
demonstrate cause excusing the procedural default and prejudice resulting from the error."
Grafmuller, 2013 WL 4808881, at *8.
Petitioner has demonstrated neither "cause" nor
"prejudice." He fails to establish "cause" for his default because he offers no explanation as to
why he failed to appeal Claim Three to the CAAF and altogether failed to raise Claims One and
Two in his direct appeals. The same is true for Claims Four and Five; Petitioner's appellate
counsel made other ineffective assistance arguments on direct appeal but the record contains no
evidence justifying the failure to raise the claims asserted here. Indeed, nothing in the record
suggests that there was any cause for Petitioner's procedural default as to the five claims. See
Lips, 997 F.2d at 812; White v. Lansing, 8 F. App'x 862, 864 (10th Cir. 2001). Similarly, the
record is devoid of any evidence of prejudice resulting from Petitioner's error, or any risk of a
miscarriage of justice, which generally will apply "only in extraordinary cases, i.e., 'where a
constitutional violation has probably resulted in the conviction of one who is actually innocent."'
Hurn, 2005 WL 1076100, at *4 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). The
Court thus concludes that Petitioner has not overcome his procedural default.
9
As to Claim Six, the Court agrees with the Report's finding on the merits that Petitioner
would not be entitled to relief for his transfer from the United States Military Barracks to the
BOP. Judge Freeman correctly relied on 10 U.S.C. § 858(a), which expressly grants the military
the authority to transfer prisoners to "any place of confinement under the control of any of the
armed forces or in any penal or correctional institution under the control of the United States, or
which the United States may be allowed to use."
"Courts interpreting § 858(a) have
'consistently held that a military prisoner who is committed to the service of his sentence in a
federal penitentiary automatically becomes entitled to any advantages and subject to any
disadvantages which accrue to the civilian prisoner.'" Hirsch v. Sec'y of Army, 172 F.3d 878, at
*1 (10th Cir. March 1, 1999) (table opinion) (quoting Stewart v. U.S. Bd. of Parole, 285 F.2d
421, 421-22 (10th Cir. 1960) (per curiam)). Furthermore, as Judge Freeman rightly observed, "a
prisoner generally has no due process right to challenge a transfer from one facility to another."
Prins v. Coughlin, 76 F.3d 504, 507 (2d Cir. 1996) (citing Meachum v. Fano, 427 U.S. 215, 225
(1976)); see also McNally v. Cooksey, 14 F.3d 604, at *8 (7th Cir. 1993) (table opinion)
("[P]laintiff has no constitutional right to choose his location of incarceration nor does he have a
constitutional right to be transferred back to military custody."). Accordingly, Petitioner is not
entitled to relief on the merits of Claim Six.
B. New Arguments Raised in Petitioner's Objections to the Report
Petitioner asserts three new arguments in his objections to the Report. First, he argues
that the ACCA and CAAF lacked jurisdiction to entertain his petitions for collateral relief. (Obj.
5.) Second, Petitioner vaguely references changes in the "scope of inquiry on habeas corpus"
petitions.
(Id. 12-13.)
Lastly, Petitioner attaches two documents, neither of which were
submitted with the Petition, for the Court's consideration: an August 23, 1999 letter from
Petitioner's defense counsel to the convening authority advocating for a reduction in Petitioner's
10
sentence, (id. 15-18), 8 and a December 15, 1997 pre-trial "Sanity Board Forensic Evaluation,"
(id. 19-33).
As to these new arguments, Respondent asserts that the Court need not review them
because they were improperly raised in objections to Judge Freeman's Report. (Resp. 3.) It is
true that "[a]n objecting party may not raise new arguments that were not made before the
Magistrate Judge," Robinson v. Keane, 92 Civ. 6090 (CSH), 1999 WL 459811, at *4 (S.D.N.Y.
June 29, 1999), and that"[ c]ourts generally do not consider new evidence raised in objections to
a magistrate judge's report and recommendation," Tavares v. City of New York, et al., 08 Civ.
3782 (PAE), 2011 WL 5877548, at* 2 (S.D.N.Y. Nov. 23, 2011)).
Because Petitioner is
proceeding pro se, however, and in the interest of justice, the Court has considered his new
arguments but concludes they are without merit. See Hall v. Herbert, 02 Civ. 2299 (LTS) (FM),
2004 WL 287115, at *1 (S.D.N.Y. Feb. 11, 2004) (examining the merits of Petitioner's
timeliness arguments, although asserted for the first time in his objection, "[i]n deference to
Petitioner's pro se status and in the interests of the efficient administration of justice").
1. Petitioner's Objection to the Military Courts' Jurisdiction to Entertain Petitions
for Writs of Habeas Corpus
Petitioner first argues that the military courts lacked subject-matter jurisdiction to
entertain his petitions for collateral relief, which would preclude those courts from giving his
claims "full and fair consideration." (Obj. 5-6.) As noted above, Claims One through Five were
previously raised in habeas corpus petitions filed in the ACCA and CAAF, whose jurisdiction to
8
"A convening authority is a commissioned officer who has the statutory and regulatory authority to convene a
court-martial." Victor Hansen, Avoiding the Extremes: A Proposal for Modifying Court Member Selection in the
Military, 44 Creighton L. Rev. 911, 912 n.7 (2011). The power to approve a court-martial's sentence rests with the
convening authority, who has discretion to grant clemency. See United States v. Sosebee, 35 M.J. 892, 894
(A.C.M.R. 1992).
11
entertain such petitions has been questioned. 9 In United States v. Denedo (Denedo 11), the
Supreme Court held that "Article I military courts have jurisdiction to entertain coram nobis
petitions to consider allegations that an earlier judgment of conviction was flawed in a
fundamental respect," but simultaneously cast doubt on the jurisdiction of those courts to
entertain habeas corpus petitions. 556 U.S. 904, 912-13, 917 (2009). The Court explained that
the military courts' jurisdiction to issue the coram nobis writ "derives from the earlier
jurisdiction [they] exercise[] to hear and determine the validity of [a] conviction on direct
review" and is thus "a belated extension of the original proceeding during which the error
allegedly transpired," whereas habeas corpus relief, "is sought in a separate case and record" as
"a separate civil proceeding." Id. at 913-14. 10 Since Denedo II, the Supreme Court has not
clarified whether military courts have jurisdiction over habeas corpus petitions and the issue
remains unsettled.
See Loving v. United States, 68 M.J. 1, 5 (C.A.A.F. 2009) (assuming
jurisdiction over petitioner's appeal from the United States Navy-Marine Corps Court of
Criminal Appeals' (NMCCA) denial of habeas petition); but see id. at 20-21 (Ryan, J.,
dissenting). 11
9
Petitioner raised Claim Six in petitions seeking unspecified collateral relief from the ACCA and CAAF. Construed
as coram nob is petitions, the petitions were indisputably within the jurisdiction of the military courts. Regardless, as
discussed above, the Court agrees with Judge Freeman that Claim Six fails on the merits.
10
Some courts have downplayed the distinction between petitions seeking a writ of coram nohis and those seeking a
writ of habeas corpus. See Nkosi v. Lowe, 38 M.J. 552, 553 (A.F.C.M.R. I 993) ("The label placed on a petition for
extraordinary relief is of little significance."); United States v. Calhoun, No. 12 Misc. OJ, 2012 WL 6762022, at *I
n.2 (A.F. Ct. Crim. App. Dec. 3, 2012) ("Although entitled a writ of habeas corpus, we will evaluate the petition as a
writ of coram nobis. We note the petition was filed prose and we do not place a great amount of significance to the
label placed on a petition for extraordinary relief."); United States v. Lofton, No. 11 Misc. 10, 2013 WL 3971423, at
* 1 n. I (A.F. Ct. Crim. App. July 15, 2013) (treating petition for extraordinary relief in the nature of a writ of habeas
corpus as a coram nobis petition and concluding that it had jurisdiction to entertain the petition). Moreover, in spite
of the general requirement for coram nobis relief that "no remedy other than coram nobis [be] available to rectify
the consequences of the error," Denedo v. United States (Denedo I), 66 M.J. 114, 126 (C.A.A.F. 2008), some
military courts have continued to adjudicate petitions of military prisoners in custody who presumably could seek
relief under § 2241 in an Article III court. See, e.g., Lofton, 20 I 3 WL 3971423, at *I n.1.
11
The respective courts of criminal appeals for the armed forces have similarly not reached a consensus on the issue.
Compare Gray v. Belcher, 70 M.J. 646, 64 7 n.2 (A. Ct. Crim. App. 20 I 2) ("Although the reasoning in [Denedo I],
and [Denedo II], could be construed to reach all forms of collateral review, their mutual holding is much more
12
In any event, the Court need not further address the legal uncertainty regarding the
military courts' jurisdiction over Petitioner's habeas corpus petitions. Irrespective of whether
the military courts could have otherwise entertained the petitions, as discussed above, Petitioner
procedurally defaulted on Claims One through Five and he is barred from presenting those
claims here. Consequently, Petitioner's argument regarding the military courts' jurisdiction is
unavailing.
2. Changes in the Scope of Habeas Corpus
Petitioner next references changes in the scope of habeas corpus review in what is in its
entirety an excerpt from Justice Frankfurter's opinion denying a petition for rehearing in Burns,
346 U.S. 844 (1953). (Obj. 12-13.) Whether the Court styles Petitioner's argument as a claim
about recent changes in the scope of military habeas review or as a general claim about the
consideration afforded to his claims by the military courts, the argument is "not sufficiently
specific to warrant review." Amadasu v. Ngati, 05 Civ. 2585 (RRM) (LB), 2012 WL 3930386,
at *3 (E.D.N.Y. Sept. 9, 2012).
3. New Evidence
Lastly, Petitioner attaches two documents: a 1999 letter from Petitioner's defense counsel
to the convening authority advocating for a reduction in Petitioner's sentence and a copy of his
pre-trial Sanity Board Forensic Evaluation.
(Obj. 15-33.)
Petitioner does not explain the
relevance of these documents or why he failed to submit them with his Petition. In any event,
the Court's consideration of the documents would not alter its decision to deny the Petition. The
1999 clemency letter is extraneous to the issues presented here. Any attempt to utilize the Sanity
Board Forensic Evaluation, which was presented to the trial court along with pre-trial motions,
limited. Those cases extended collateral review beyond Article 76 only for writs of coram nobis."), with United
States v. Miller, No. 09 Misc. 02, 2010 WL 2342425, at *1-2 (A.F. Ct. Crim. App. May 27, 2010) (denying reliefon
the merits of habeas petition following completion of direct review and execution of petitioner's sentence).
13
(See Resp. Ex. 15), must fail.
Petitioner procedurally defaulted on his claim regarding the
introduction at trial of statements from his psychological evaluations (Claim One) as well as his
claim regarding his mental competency (Claim Two). Moreover, any independent claim based
on the evaluation was waived by Petitioner's failure to assert it in the military courts.
C. Certificate of Appealability
The Report recommends that the Court decline to issue a certificate of appealability
pursuant to 28 U.S.C. § 2253(c)(l)(A). (Report 26.) Because no certificate of appealability is
necessary for an appeal of a denial of a petition under 28 U.S.C. § 2241, Drax v. Reno, 338 F.3d
98, 106 n.12 (2d Cir. 2003), the Court does not adopt that portion of the Report recommending
the denial of a certificate of appealability.
CONCLUSION
The Court has reviewed all remaining matters in the Report for clear error and finds none.
The Court adopts the Report and Recommendation of Judge Freeman with the modifications
stated herein. Accordingly, the petition for a writ of habeas corpus is denied and the action is
dismissed with prejudice. The Clerk of the Court is respectfully ·rected to close the case.
Dated:
November 14, 2014
New York, New York
R nnie Abrams
United States District Judge
14
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