Loving v. U.S., 64 M.J. 132

First Principles: Constitutional Matters: Generally

1. in Teague v. Lane, the Supreme Court held that new constitutional rules should not be applied retroactively to convictions on collateral review that have become final, unless a new rule falls into one of two exceptions: (1) the new substantive rule places certain kinds of individual conduct beyond the power of the criminal law-making authority to proscribe; or (2) the new procedural rule requires procedures without which the likelihood of an accurate conviction is seriously diminished; for purposes of Teague, a military justice case is final when there is a final judgment as to the legality of the proceedings under Article 71(c), UCMJ, i.e. when all direct judicial appeals have been exhausted
2. petitioner’s conviction was final for the purposes of the Teague rule precluding retroactive application of new constitutional rules to convictions on collateral review that have become final, where the CAAF had completed direct review, and the Supreme Court granted certiorari and eventually affirmed the CAAF’s decision; the President’s decision whether to order the death sentence executed or to grant executive clemency is not part of the direct judicial review of the case

Military Justice Personnel: Defense Function: Effective / Ineffective Assistance of Counsel

1. with respect to the deficiency prong of the Strickland test for ineffective assistance of counsel, Strickland does not require counsel in a capital case to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing; nor does Strickland require defense counsel to present mitigating evidence at sentencing in every case; rather, a decision not to investigate must be directly assessed for reasonableness in all the circumstances; strategic choices made after less than complete investigation are reasonable only to the extent that reasonable professional judgments support the limitations on investigation
2. an ineffective assistance of counsel issue may be raised in a habeas petition irrespective of whether a petitioner could have raised it on direct appeal
3. with respect to an issue of ineffective assistance of counsel raised in a habeas petition, if there has been no previous factual development at a hearing, and important factual questions or mixed questions of fact and law remain after direct appeal, then those matters must be addressed in a hearing before a determination on that issue can be made under the AEDPA standards
4. in this habeas petition, an evidentiary hearing on the issue of ineffective assistance of counsel is appropriate where there has been no previous factual development at a hearing and there remain important factual questions as to petitioner’s claim

Trial Stages: Sentence and Punishment: Capital Punishment

1. two fundamental principles of Eighth Amendment law are the foundation for a reliable determination of a death sentence: a genuine narrowing of the class of persons eligible to receive the death penalty and individualized sentencing – a decision on a capital sentence on the basis of the character of the individual and the circumstances of the crime; as to the second principle, the Supreme Court has stated that the jury must be able to consider and give effect to any mitigating evidence relevant to a defendant’s background and character or the circumstances of the crime

Trial Stages: Writs and Interlocutory Appeals: Collateral Attack

1. in Teague v. Lane, the Supreme Court held that new constitutional rules should not be applied retroactively to convictions on collateral review that have become final, unless a new rule falls into one of two exceptions: (1) the new substantive rule places certain kinds of individual conduct beyond the power of the criminal law-making authority to proscribe; or (2) the new procedural rule requires procedures without which the likelihood of an accurate conviction is seriously diminished; for purposes of Teague, a military justice case is final when there is a final judgment as to the legality of the proceedings under Article 71(c), UCMJ, i.e. when all direct judicial appeals have been exhausted
2. petitioner’s conviction was final for the purposes of the Teague rule precluding retroactive application of new constitutional rules to convictions on collateral review that have become final, where the CAAF had completed direct review, and the Supreme Court granted certiorari and eventually affirmed the CAAF’s decision; the President’s decision whether to order the death sentence executed or to grant executive clemency is not part of the direct judicial review of the case
3. the rule of Ring v. Arizona, that a jury, rather than a judge, must find the existence of an aggravating factor in a capital case, could not be applied retroactively to petitioner’s final conviction on collateral review, as the rule was procedural and not substantive
4. the rule of Apprendi v. New Jersey, that any fact that increases the criminal penalty beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt, could not be applied retroactively to petitioner’s final conviction on collateral review, as the rule was procedural and not substantive
5. the authority of Wiggins v. Smith, providing guidance on what constitutes ineffective assistance of counsel during capital sentencing under Strickland v. Washington and what is a reasonable investigation in the context of a death penalty case, may be relied on by petitioner to support his habeas corpus petition; unlike the cases of Ring and Apprendi, Wiggins did not announce a new constitutional rule; Wiggins did not make new law, but it did both clarify and illuminate the standards for a reasonable investigation in a criminal trial, in general, and in a death penalty case, in particular; at its core, Wiggins addressed a misapplication of the clearly established legal principles of ineffective assistance of counsel under Strickland; as such, both Wiggins and Strickland present governing legal authority relevant to petitioner’s habeas petition
6. the CAAF adopts the standards of the Antiterrorism and Effective Death Penalty Act, codified at 28 USC §§ 2244-2254, as to both the scope of review and the standard of review to evaluate habeas corpus claims raising issues of constitutional law
7. in reviewing habeas corpus petitions on collateral review raising issues of constitutional law, the CAAF will determine whether its prior review: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the prior proceeding
8. with respect to the factual component of a mixed fact/law question in a prior proceeding being considered in a habeas corpus petition on collateral review, a determination of a factual issue made in the prior proceeding is presumed to be correct, and a habeas petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence
9. the CAAF declines to adopt the provisions of the statute governing collateral attacks on federal convictions, 28 USC § 2255, to evaluate habeas corpus petitions that raise a constitutional issue
10. it is appropriate to order an evidentiary hearing on a habeas corpus petition where a petitioner alleges facts which, if proved, would entitle him to relief, the record reveals a genuine factual dispute as to the alleged facts, and the petitioner did not receive a hearing on the issue; the decision whether to hold an evidentiary hearing is discretionary
11. a DuBay evidentiary hearing is required to consider petitioner’s claim on habeas review that his trial defense counsel who defended him in his capital case were deficient in not reasonably investigating his traumatic life history, where the prior opinion of the CAAF did not adequately review the nature of defense counsel’s investigation; moreover, there was no discussion of the prevailing professional norms at the time as to what was a reasonable investigation or the red flags that should have alerted defense counsel to dig deeper to determine whether petitioner was, indeed, the subject of specific childhood harm that might mitigate his culpability as alleged; the statement of legal conclusions and the absence of detailed factual analysis of what defense counsel did and did not do in investigating the case, reveals that the prior opinion did not address whether trial defense counsel chose to abandon their investigation at an unreasonable juncture, thereby making a fully informed decision with respect to sentencing strategy impossible; the recent authority of Wiggins reveals that the CAAF previously did not adequately focus on the reasonableness of the defense investigation
12. an ineffective assistance of counsel issue may be raised in a habeas petition irrespective of whether a petitioner could have raised it on direct appeal
13. with respect to an issue of ineffective assistance of counsel raised in a habeas petition, if there has been no previous factual development at a hearing, and important factual questions or mixed questions of fact and law remain after direct appeal, then those matters must be addressed in a hearing before a determination on that issue can be made under the AEDPA standards
14. in this habeas petition, an evidentiary hearing on the issue of ineffective assistance of counsel is appropriate where there has been no previous factual development at a hearing and there remain important factual questions as to petitioner’s claim
15. the U.S. Court of Appeals for the Armed Forces has collateral review jurisdiction over a military death penalty case and may entertain assertions of error as to the legality of the sentence in the period after there is a final judgment as to the legality of the proceedings under Article 71(c)(1), with the completion of direct review, but before the case is final under Article 76 with the approval of the sentence by the President; a capital case is final with the meaning of Article 76 only after the President, acting under Article 71(a), approves it; as finality under Article 76 is the terminal point for proceedings within the court-martial and military justice system, the CAAF’s jurisdiction continues until a case is final
16. a petition for writ of error coram nobis was not the appropriate procedural vehicle to seek collateral review of a death penalty by the U.S. Court of Appeals for the Armed Forces during the period after completion of direct review, but before approval of the sentence by the President; a writ of habeas corpus was the only pleading available to raise the substantive challenges to the legality of the death sentence