United States v. Lewis, 2017 CCA LEXIS 638

Petitioner was convicted at a general court-martial of one aggravated sexual assault and two wrongful sexual contact specifications; sentenced to a dishonorable discharge, nine years confinement, total forfeitures, and reduction to E‑1. Some charged specifications resulted in acquittal.
At trial the military judge admitted each charged sexual-offense allegation for consideration against the others under Mil. R. Evid. 413 and gave an instruction permitting members to consider charged offenses as propensity evidence if they first find any charged offense occurred by a preponderance of the evidence.
Trial counsel argued propensity in closing; members convicted on three specifications and acquitted on others. The Air Force Court of Criminal Appeals affirmed, and the CAAF denied review in February 2015.
Petitioner sought a writ of coram nobis after CAAF decisions in Hills and Hukill held that charged and contested sexual-offense conduct may not be used as propensity evidence under Mil. R. Evid. 413 because doing so raises due process/presumption-of-innocence concerns.
The court considered whether coram nobis relief was available and whether Hills announced a new rule that should apply retroactively to petitioner under Teague v. Lane.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Availability of coram nobis relief	Lewis argued coram nobis should be available to obtain reconsideration in light of Hills/Hukill.	Government argued coram nobis is unavailable because petitioner remains in custody and habeas is an available remedy; threshold coram nobis requirements unmet.	Denied: coram nobis inappropriate—petitioner remains confined and may seek habeas; fails threshold requirements.
Retroactivity of Hills (Teague analysis)	Lewis argued Hills/Hukill mandate relief because they show constitutional error in using charged offenses as propensity evidence.	Government argued Hills announced a new procedural rule, so Teague bars retroactive application absent a watershed exception; Hills is not a watershed rule.	Denied: Hills created a new procedural rule after petition became final; it is not a ‘‘watershed’’ rule warranting retroactive application under Teague.

United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) (charged sexual-offense evidence cannot be used as M.R.E. 413 propensity evidence)
United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017) (Hills applies broadly; charged contested conduct cannot be used as propensity evidence for companion charged offenses)
Teague v. Lane, 489 U.S. 288 (U.S. 1989) (framework for retroactivity of new constitutional rules on collateral review)
Denedo v. United States, 556 U.S. 904 (U.S. 2009) (coram nobis jurisdiction and standards in military context)
Schriro v. Summerlin, 542 U.S. 348 (U.S. 2004) (distinction between substantive rules and new procedural rules for retroactivity)
Whorton v. Bockting, 549 U.S. 406 (U.S. 2007) (requirements for ‘‘watershed’’ procedural rules)
Chaidez v. United States, 568 U.S. 342 (U.S. 2013) (new-rule inquiry; ‘‘apparent to all reasonable jurists’’ standard)
United States v. Loving, 64 M.J. 235 (C.A.A.F. 2006) (finality of military convictions for Teague purposes)
United States v. Chapman, 75 M.J. 598 (A.F. Ct. Crim. App. 2016) (application of coram nobis threshold analysis in military appellate court)