Please ensure Javascript is enabled for purposes of website accessibility
Home / Opinion Digests / Criminal Law / No Collateral Review Prior to Court-Martial

No Collateral Review Prior to Court-Martial

A former soldier who was acquitted of rape and murder as an enlisted man in 1989 on retrial and now faces the same charges again after DNA testing in 2006 implicated him for the same crime, cannot avoid court-martial with a federal habeas petition; the 4th Circuit upholds “Councilman” abstention, as defendant must exhaust all available remedies within the military justice system before seeking collateral review in federal court.

In Schlesinger v. Councilman 420 U.S. 738 (1975), the Supreme Court held that principles of comity, respect for the expertise of military judges, and judicial economy weigh against federal court intervention in pending court-martial proceedings and in favor of requiring exhaustion of all available remedies within the military justice system before a federal court’s collateral review.

On Dec. 21, 2007, before commencement of his court-martial, petitioner filed a motion before the military trial court seeking a dismissal of all military charges. The military trial court denied the motion to dismiss. Petitioner then filed interlocutory petitions for a writ of mandamus, writ of habeas corpus and writ of prohibition with the Army Court of Criminal Appeals. That court denied the petitions.

Petitioner submitted a writ-appeal petition to the military’s highest court, the Court of Appeals for the Armed Forces, which denied the petition without prejudice. That court lifted a stay of the court-martial proceedings. Petitioner then filed this petition pursuant to 28 U.S.C. § 2241, arguing that his “break in service” deprived the Army of jurisdiction to court-martial him for conduct that occurred before his break in service. The district court dismissed the petition on the basis of Councilman abstention.

Here, petitioner has not exhausted his available avenues for relief within the military justice system. At each stage of the appellate review process within the military justice system, he may litigate his jurisdictional challenge. His petition to the Court of Appeals for the Armed Forces was dismissed without prejudice such that military courts may review his claims, including jurisdictional challenges, within the normal appellate process afforded by 10 U.S.C. §§ 866, 867.

After petitioner exhausts all available military remedies, if appropriate and assuming the U.S. Supreme Court has not granted a writ of certiorari and resolved petitioner’s jurisdictional challenges on direct appeal, he may then file a petition for a writ of habeas corpus seeking collateral review of his conviction and sentence in federal court.

We conclude petitioner has available remedies within the military justice system that he must exhaust before petitioning a federal district court for collateral review of his challenge to the Army’s court-martial jurisdiction over him.

We conclude the district court did not abuse its discretion in applying Councilman abstention to permit, among other things, application of the military justice system’s expertise to initially consider and resolve the mixed questions of law and fact comprising petitioner’s jurisdictional challenge, grounded in military procedures and military precedents. We disagree with petitioner’s contention that the circumstances of his case justify equitable intervention into pending court-martial proceedings. He alleges no harm other than that attendant to the resolution of his case in the military justice system. His jurisdictional challenge, standing alone, does not justify equitable intervention by federal courts into pending military proceedings under Councilman.

In sum, our review of the record, including the district court order, reveals the district court was well within its discretion in applying Councilman abstention and dismissing without prejudice the petition for a writ of habeas corpus. We remand for correction of an error in the judgment because the judgment erroneously indicates the district court granted the Army’s summary judgment motion on the merits. On remand, the judgment shall be amended to indicate simply dismissal without prejudice with no reference to summary judgment.

Affirmed in part, vacated and remanded in part.

Hennis v. Hemlick (Wynn) No. 10-6400, Jan. 17, 2012; USDC at Raleigh, N.C. (Boyle) Eric J. Allen for appellant; Seth M. Wood, AUSA. VLW 012-2-015, 19 pp.

VLW 012-2-015

Leave a Reply