Alvin W. Dodson, Jr. v. Colonel Gordon N. Zelez, Commandant

findings further consistent remanded for Likewise, judgment opinion.

with this attorney’s fees is reversed re-

as to findings further consistent

manded for rul- opinion. The district court’s

ing on the claim for abuse of

affirmed. PART,

AFFIRMED IN REVERSED IN

PART, AND REMANDED. DODSON, Jr.,

Alvin W.

Petitioner-Appellant, ZELEZ, N. Comman-

Colonel Gordon

dant, Respondent-Appellee.

No. 88-2875. Appeals, Court of

United States

Tenth Circuit. 23, 1990.

Oct.

ever, due sought by continuances government, defendant’s court-martial did place take until December 1981. The court-martial convicted defendant on all charges a two-thirds vote. A convic- premeditated tion of felony murder or mur- der carries a mandatory of death imprisonment. or life Defendant was sen- tenced life imprisonment when the court- unanimously martial did not vote for death. military judge did not three- fourths of the court-martial to concur in the life sentence. authority

The convening approved the findings and sentence court-martial. presented Defendant then allega- seven Navy-Marine tions of error to the Corps Court of Military Review. Defendant re- peats four of those claims of error here. One, Defendant now claims: that the vot- ing procedure of the court-martial violated two, process; due composition Remcho, Kathleen J. Purcell Johansen the court-martial voting combined with the Purcell, Francisco, (Joseph & Rem- San Cal. procedures process; three, violated due Remcho, and cho Martin Buchanan of Jo- trial; that he was a speedy denied Purcell, Francisco, Cal, hansen & San and four, that of expert exclusion witness testi- Shook, Bacon, David J. Hardy Waxse & mony process. violated due The Court of Park, Kan., Overland with her on the Military Review found error pro- in the briefs), petitioner-appellant. ceedings, specifically reviewing after de- regarding speedy fendant’s claims trial and Barber, Captain, Robert C. U.S. Marine expert exclusion of testimony. witness Corp, General, Judge Office of Advocate summarily The court denied defendant’s Alexandria, (Benjamin Jr., Va. Burgess, L. regarding claims Atty., Castellani, U.S. and Alleen S. Asst. procedures composition jury. Kan., Atty., brief), D. U.S. on the re- Dodson, v. See United States 16 M.J. 921 spondent-appellee. (N.M.C.M.R.1983). The United States McKAY, Before ANDERSON Appeals Court Military then affirmed EBEL, Judges. Circuit the conviction. See States Dod- son, (C.M.A.1986), 21 M.J. 237 on rehear- McKAY, Judge. Circuit (C.M.A.1986). ing, M.J. 257 The United States Court denied This certiorari military prisoner’s ease involves December 1986. See Dodson petition corpus v. United for habeas that was denied States, by the district court.

L.Ed.2d 701 I. Facts peti- On June defendant filed Defendant was tion corpus one three marines for writ of habeas in the charged attempted robbery, conspir- fully reviewing district After court. rob, premeditated murder, acy felony voting refusing procedures claim and murder, robbery suggestions connection with review the other three of er- ror, occurring May events June the district court denied the writ. 702 initially 1981. F.Supp. appeals Defendant’s case was set now Defendant on September to be heard 1981. How- denial court. writ Davis, 1959); Dickenson Review of II. Federal Court Cir.1957), Courts-Martial 349, 2 L.Ed.2d 278 reviewing military courts-martial When Hunter, 483, 486-87 Easley corpus grounds, on habeas (10th Cir.1953). cases A few of our were if historically simply looked to see Court specific held that we could not more and Ex See jurisdiction. had the court-martial disputes if had been review Reed, factual 13, 23, parte 25 L.Ed. 538 100 U.S. military fairly by the fully and considered McDonald, v. also Collins (1879). 258 See Commandant, Kennedy v. courts. See 326, 327, 416, 418, L.Ed. 42 S.Ct. 66 U.S. Barracks, 377 Disciplinary United States Deming, 186 McClaughry v. (1922); 692 Cir.1967); Mendrano v. 339, (10th F.2d 342 794, 69, 786, 49, 22 46 L.Ed. 1049 S.Ct. Smith, 1538, (10th n. Cir. 797 F.2d 1542 6 109, Sayre, v. (1902); 158 U.S. Johnson 1986). have held other of our cases (1895). Still 117, 773, 776, 39 L.Ed. 914 15 S.Ct. constitutional claims habe that review of began to look more Over time Court corpus petitions proper was without re claims while carefully the merits of the at v. See Wallis jurisdic- ally saying why. and calling a search when still its review Zerbst, O’Kier, 458, Cir.), 1323, (10th v. 304 U.S. 1325 See Johnson tion. 491 F.2d denied, 1019, (1938). 185, 901, 1461 Final- 42 cert. 58 82 L.Ed. 95 S.Ct. S.Ct. 419 U.S. Wilson, 137, Davis, in Burns v. 346 U.S. 73 Day v. ly, (1974); F.2d 235 L.Ed.2d 147 (1953), denied, 1045, L.Ed. 1508 Su- 379, cert. (10th Cir.), S.Ct. 97 352 U.S. 384 giv- Congress had preme Court noted 881, 104, (1956). 1 81 An 77 S.Ct. L.Ed.2d power to review courts the en federal that review other of our recent cases held corpus applica- habeas courts-martial on claim proper when the constitutional Wilson, v. Burns tions. 346 U.S. largely free was both “substantial 1047, (1957). 1045, 97 L.Ed. 1508 73 S.Ct. Zelez, v. Monk questions.” 901 factual explained the limita- Burns Court then (10th Cir.1990) (quoting Men 885, F.2d 888 court review of tions on federal drano, also 6). See n. 797 F.2d 1542 provisions corpus cases. habeas “[TJhese Zelez, (10th Lundy v. 908 F.2d 593 Cir. military decision has do mean that when a 1990). allegation fully fairly with dealt the confus Apparently because of open it is not to a application, raised in that cases, court ing state the district simply writ grant court to federal civil guidance Fifth case for looked to a Circuit Burns, 346 to re-evaluate the evidence.” determining a claim when to review 142, 73 at 1049. The Court U.S. at See Cal corpus petition. in a made habeas is the limited to state that went on “[i]t Cir.1975), (5th ley Callaway, v. F.2d 184 courts to determine function of the civil denied, 911, rt. 425 U.S. 96 S.Ct. given fair consid- military have whether the ce 1505, agree that 47 L.Ed.2d 760 We these claims.” eration to each of Calley four factors— case identifies at 1050. cases, prior although not also found in our interpretation par The federal courts’ — clearly expressed helpful determin so — interpretation ticularly this court’s —of military conviction ing whether review of a anything but Burns language in has been corpus appropriate. The four on habeas Probably majority of our cases clear. Calley the Tenth Circuit factors from Burns language quoted have principles are: articulating the same petition review of a and held that no error must be sub- 1. The asserted possible when the de corpus was habeas stantial constitutional dimension---- fully fairly con were fendant’s claims Mendrano, n. 797 F.2d at 1542 military courts. See Wat 6.] [See sidered must be one law rather 2. The issue (10th McCotter, v. son disputed already deter- than Cir.), fact military tribunals.... by the mined King v. Mose 91 L.Ed.2d 549 Mendrano, n. Cir.1970); 797 F.2d at 1542 Ben (10th 6.] ley, [See 430 F.2d may war- Military considerations Davis, (10th Cir. 3. nett 267 F.2d rant treatment constitu- procedures seven court-martial followed different claims____ tional Dickenson v. in this ease which he claims him [See denied due Davis, (10th Cir.1957) 245 F.2d totality of law in the ] the circum- give courts must ade stances. procedures Three of these involve quate consideration to the issues in voting procedures that we already have apply proper volved and legal agreed stan to review above. The remaining King dards. Moseley, F.2d four composition claims deal [See (10th Cir.1970); 734-35 Watson of the court-martial. Defendant seeks to McCotter, apply Supreme Cir. requirements Court con- 1986).] cerning juries civilian to his court-martial. suggestion Defendant’s squarely has been Calley, recognize 519 F.2d at We 199-203. rejected by the Supreme Court itself. that still place large these factors amount can gain support Petitioner no of discretion in the of the from hands federal Nevertheless, analogy by jury courts. trial in we believe that the civil provide courts. The right by jury guar- a concise statement of the to trial factors normally by by relied anteed the federal courts in Sixth Amendment is not deciding military applicable by whether to review to trials habeas courts-martial or corpus petitions. Applying military these four commissions. Courts-martial by factors to the composed four claims asserted de have been of officers both be- fendant, voting proce hold we and adoption fore after the of the Consti- subject dures claim is review. We tution. The constitution courts-mar- remaining fully tial, hold that the claims were like other relating matters to their fairly military organization reviewed courts. administration, is a appropriate congressional matter ac- Voting A. Procedures tion. We affirm the district court’s decision to McDonald, 122, Whelchel v. 126— review defendant’s claim 27, 71 (1950) S.Ct. L.Ed. 95 141 procedures used his court-martial violat (citations omitted). and footnotes process. ed due This claim involves a sub We have refusing been consistent in issue, stantial constitutional that defendant apply right the sixth amendment to a was incarcerated without due jury setting. trial in the court-martial See addition, govern law. In in its brief the Mendrano, 1544; 797 King, F.2d at 430 ment conceded that this issue was one of 734; Hunter, F.2d De v.War 170 F.2d disputed law rather than of fact. There 993, (10th Cir.1948), denied, 997 cert. 337 unique military no contention that consider U.S. 69 93 L.Ed. S.Ct. 1720 apply Finally, ations to this issue. al (1949)(footnote omitted) (“The right of tri though this was issue raised before the by jury guaranteed al by the 6th Amend review, military summarily courts of it was ment the Constitution of the United affirmed without discussion. This factor applicable by military States is not in trial justify alone is not sufficient our review Hence, respecting court-martial. decisions McCotter, of this issue. See Watson 782 right peers to trial one’s civil Cir.), F.2d 145 476 inapplicable.”). courts are Other federal 91 L.Ed.2d apply courts also have refused to the con (1986). However, military when the courts’ right jury stitutional to a trial to court-mar summary affirmance is considered proceedings. Sizemore, tial See Betonie v. Galley, other three factors we hold that (5th Cir.1974); Daigle 496 F.2d requirements this claim fulfills the four Warner, (9th Cir.1974); F.2d our review. States, v. United Stanford Jury Composition (5th Cir.1969); B. Wright Markley, (7th Cir.1965). jury composi- We hold that defendant’s fully fairly claim was Clearly, tion considered no defendant makes substantial military points regarding courts. Defendant claim constitutional court-martial This claim raises a composition under the sixth amendment courts. addition, light jury pro- cases. issue of due substantial constitutional explicit statement Court’s However, we believe that it was a cess. composition a matter for court-martial fully by the mili- factual issue considered that defendant makes no Congress, we hold tary question courts. The of whether the claim that due substantial constitutional testimony on find- expert would be based points process was violated. Defendant ings generally accepted the scientific his court-mar- specific instance which community question a factual to be was process rights merely tial denied him due by weighing the evidence determined Therefore, we composition. because of its Again, case presented at trial. the Burns Military Appeals’ hold that the Court of reweigh allow us to the evidence. does not appropriate summary affirmance specifically The Court of Review the full and fair issue and fulfilled Thus, opinion. in its dealt with this issue We affirm the requirement. consideration fully this issue was believe jury review the district court’s refusal to courts, fairly considered composition issue. and we affirm the district court’s refusal to review the issue. Speedy Trial C. next that defendant’s We hold Teague III. v. Lane fully fairly and con

speedy trial claim was Although by sidered courts. The next threshold issue we must presents a substantial constitu this claim sought by plain the relief face is whether issue, open that it is not tional we hold tiff would create a new rule violation of essentially a factu our review because it is Lane, Teague v. 489 U.S. question fully fairly and con al and was plurality 103 L.Ed.2d 334 A speedy by sidered courts. Supreme ironi of the Court created what stipulated facts. trial issue was tried cally could be considered a new rule However, question the essential when it held that federal court Teague court to answer was whether the reasons corpus of state court deci habeas review by government were sufficient to given could create constitutional sions not new justify delay in trial. This defendant’s procedure. Teague, rules of criminal granted if question, is a factual and we Teague at 1075. The defined a Court merely re require review it would us to “new rule” as one that “breaks new clearly pro evaluate the evidence. Burns ground imposes obligation or a new on the type “[Wjhen review. a mili hibits this Government____ To States or the Federal tary fully fairly and decision has dealt with differently, put it a case announces a new application, it is allegation an raised prece- by if the result was not rule dictated grant court to open not to a federal civil existing at the time the defendant’s dent re-evaluate the evi the writ Teague, final.” conviction became Burns, 73 S.Ct. at dence.” Supreme interpreta- Court S.Ct. at 1070. carefully was also con 1049. This issue very high continues to set a Teague tion of by sidered the Court of Review ruling holding that a court standard discussion, summarily it was lengthy and — Smith, Sawyer In not “new.” Military Appeals. by the affirmed Court -, L.Ed.2d 193 speedy trial claim We hold that defendant’s (1990), prior the Court held that decisions fairly by the mili fully considered inform, govern, even control or courts, or tary and we affirm the district necessarily com- analysis refusal to review the issue. of a claim do not court’s sought. pel petitioner rule that the Id. Expert Testimony D. held that in 110 S.Ct. at 2828. Court prior order to create a new rule cases must Finally, hold that defendant’s claim we “compel” sought by petitioner. the rule concerning expert testimo- the exclusion of fully fairly ny was also considered spite up

In high standard set A. Two-thirds Vote for Conviction Court for that a re- argument Defendant’s first that a rule, quested rule is new we are two-thirds vote for conviction violates due firmly sought by convinced that relief process is based a belief that three- plaintiff in concerning case three- fourths of the court-martial must vote to voting requirement fourths convict for crime a mandatory life does sentence. argument the creation of a new rule. Defendant bases his on the fact Uniform Code Mili V.B., As require- we discuss section tary requires Justice a three-fourths vote ment of three-fourths in a concurrence impose years. sentence over ten sentence—even if “com- —is person “No may be sentenced to life im pelled” by prior precedent “dictated” prisonment or to confinement for more light law.1 In of this conclu- than years, ten except the concurrence sion, proceed plaintiffs we to the merits of present the members procedures the voting claims on issue. the time the vote is taken.” 10 U.S.C. 852(b)(2)(1988). argues Defendant § IV. Standard of Review because his mandatory, sentence was he was entitled to a three-fourths vote on interpretation The district court’s his conviction. Constitution, statutes, regulations Although suggested require- defendant’s subject to de novo review. In re Ruti- ment might be a sensible solution to a Sweetwater, Inc., possible statutory inconsistency, we are Cir.1988). conducting review, a de novo explicit constrained language of the independent make determination of requires only statute. The statute a two- issues, giving special weight no to the to any thirds vote convict for crime for district court’s determination. Ocelot Oil which the is penalty mandatory. death not Indus., Corp. Sparrow v. 847 F.2d person may “No be any convicted of [crime (10th Cir.1988). 1464 penalty for which the death is not mandato- ry], by except ... the concurrence of two- V. Voting Court-Martial Procedures present thirds of the members time 852(a)(2) vote taken.” is 10 U.S.C. § separate argu- Defendant four makes Thus, (1988).2 for a conviction crime with challenging ments procedures mandatory requires only a life sentence a used in this case. Defendant first claims vote, regardless any require- two-thirds requiring only two-thirds of the court- imposed by ments the sentencing statute. martial vote for conviction violates due Sentencing separate and conviction are Second, process. defendant that the claims acts, separate facts based on and issues. process by due court-martial violated fail- “These sentencing] provi- [conviction ing to a three-fourths vote sen- clear, plain sions the Code are Third, imprisonment. tence him to life de- out required set the number of votes a fendant claims that lack of three- convict and sentence under different equal him protection. fourths vote denied appropriate, This is find- subsections. for Finally, existing defendant claims that Su- functions, ings separate and sentence are a preme jury Court civilian cases do not al- being unique court-martial that the court low a five conviction members perform members both.” United v. States “jury.” Walker, seven member 7 23 C.M.R. 137 C.M.A. easily nearly we can so conclude that tains Because identical instructions for conviction rule we announce in this case is violation not a a two-thirds vote. Manual for Courts-Mar- Teague, fully we have tial, States, considered whether 1969, 74d(3) (Rev. United at 13-6 ¶ Teague applicable is to the review of Courts-Martial, 1969). ed. also for See Manual express opinion We courts. no on that issue. States, 1984, 921(c)(2)(B) at II- R.C.M. (1984). 137 2. The 1969 Manual for Courts-Martial —in use when defendant was tried sentenced —con- 1256 Hancock, v. 146 a two-thirds concurrence is affirmed. Such also Stout See (4th Cir.), process.

F.2d a vote does not violate due 89 L.Ed. 1971 Sentencing B. Three-fourths Vote for Campo, F.Supp. re In Defendant next claims that no (2nd (S.D.N.Y.1947), aff'd, 165 F.2d was taken his sen three-fourths vote Cir.1947); Caffey, F.Supp. Hurse requires tence the statute a three- and that (N.D.Tex.1945). vote, mandatory fourths even on sentences. specifically upheld has This court government’s response a three- requirement necessary for con- two-thirds mandatory fourths for a sentence is vote previous two viction on at least occasions. logical at unnecessary appears glance. first Smith, 797 F.2d 1538 Mendrano However, mili when we consider Cir.1986), considered a due chal- impose tary any court refuse to sen could lenge requirement. two-thirds to the required if are tence number votes rule of conclude two-thirds “[W]e cast, why sepa we then understand requirements of due Article 52 satisfies necessary rate vote even Mendrano, process in this case.” cases. sentence at 1544. In an earlier case we concluded 852(b)(2) Section contains blanket re- charge where “the murder quirement vote imprisonment of a three-fourths is life ... it is suffi- person may “No years. cient or more of members sentence over ten if two-thirds conviction____” imprisonment in the to life or to the court concur sentenced Hunter, years, confinement for more than ten ex- Anderson (10th Cir.1949). cept by the concurrence of three-fourths of present the members at the time the vote is recognize inconsistency We created 852(b)(2) (1988). taken.” 10 U.S.C. § requires statute that two-thirds vote 852(b)(2) exception There is to section carrying mandatory for a crime convict Nevertheless, sentences. requires life sentence and that also a three- any ambiguity in the Code Mili- Uniform to sentence individual to fourths vote tary require- Justice created Code’s Indeed, imprisonment. we believe that ment of a life sentence for de- statutory require a scheme sensible would fendant must be resolved favor of the percentage vote for same conviction Taylor, accused. See Jackson and sentence where the sentence is manda- 569, 576, 1027, 1031, 1 L.Ed.2d tory.3 Unfortunately, we do not have (1957). case, we this must resolve power Only the statute. to rewrite Con- any ambiguity by in favor of the accused gress change the existing can re- requiring vote on a three-fourths even a quirements. mandatory sentence. might Merely we because believe percentages would desir- consistent be Strong authority for requiring additional power not clothe us with able does vote on a sen- change the statute to make corre- them tence, helpful resolving any and a source spond. covering criminal While statutes Code, ambiguity in the is the 1969 Manual general subject the same should be con- during for Courts-Martial effect defen- harmonize, to make strued so as them The 1969 Manual for dant’s court-martial. legislative courts are not bodies and that required specifically Courts-Martial vote statutory cannot canon of construction sentencing, with even cases mandato- employed contrary be to construe an act ry sentences. expressed Congressional clearly in- It duty is the of each member vote for tent. proper sentence for the offense or of- Thus,

Walker, fenses the accused 23 C.M.R. at the con- of which has been regard opin- requiring only guilty, court-martial found without his by viction penalty. currently requires carry mandatory death See 10 3. The statute a unanimous 852(a)(1) (b)(1) (1988). § U.S.C. and vote both to convict to sentence for crimes ion or guilt vote as to the or innocence authority, of by the President executive sentence, Any the accused. prescribed even in order the Manual for Courts- punishment (MCM) case where the is mandato- Martial which has the stat force of ry, utory Dillon, must have the concurrence Levy law.” F.Supp. of members____ required (D.Kan.1968), number No aff'd, 415 F.2d 1263 of person may imprison- (10th Cir.1969) be sentenced to added). (emphasis See also ment Harper Jones, or confinement for more than years, except ten by Cir.1952) (“The the concurrence of President is authorized to present three-fourths of the publish members at make regulations for the time the vote government is taken. army which shall be enforced and obeyed until altered re Courts-Martial, Manual United voked the same authority.”); Billings v. States, 1969, 76b(2) (Rev. 13-14 it ed. Truesdell, 1969) added).4 (emphasis The Manual (1944) (War 88 L.Ed. 917 Department Courts-Martial is written the President regulations law). have the force authority grant- of the United States under Manual—which spe has force of toed the President the Uniform Code of law— cifically requires a three-fourths vote for a Military Justice. sentence, even in cases mandatory Pretrial, trial, post-trial procedures, Thus, sentences. hold now that a mili including proof, modes for cases aris- tary court “compelled” by would be ing chapter under this triable in courts- Manual alone to a three-fourths martial, military commissions and other majority to sentence defendant to life im tribunals, procedures prisonment. inquiry, may prescribed courts shall, by regulations the President prior We note that our so far as practicable, apply he considers Manual agrees has force of law principles of law and the rules holdings them- courts generally recognized evidence in the trial selves. farAs back as 1951 the Court of of criminal the United States Appeals pur- held that “[f]or courts, may poses district but which not be of this case we can and do hold that contrary (the Code) to or inconsistent with this act Congress and the act chapter. (the Manual) of the Executive are on the same ordinary level and that the rules of 836(a) Thus, 10 U.S.C. the Presi- § apply.” construction prescribe may long dent as rules Lucas, States v. 1 U.S.C.M.A. 1 C.M.R. are not inconsistent with the Uniform (1951). Subsequent military court promulgated Code. rule in Manual consistently upheld cases have the Manual 76b(2) paragraph is not inconsistent with having the of force law. the Code. At worst the rule clarifies an grant Similar to its of authority the existing ambiguity. prac- prescribe Court to rules of emphasize We must that the Manual for procedure tice and in Federal civilian has the force statutory Courts-Martial of cases, statutory which have the of force law. This court has affirmed a district law, Congress, by Article 36 court within our circuit that held Man- Code, 836, supra, granted 10 USC § ual for Courts-Martial to have the force of parallel power President to make “Congress, by enacting law. Ar- for military such rules courts. (10 836), granted ticle UCMJ U.S.C.A. § power Resor, to the President prescribe Levy 17 U.S.C.M.A. 37 (1967). for the rules courts. Pursuant to 403 C.M.R. 1006(d)(4)(B) The 1984 Rules for Court Martial contain sim- R.C.M. 11-154. "When man- language. ilar "A sentence which includes datory con- prescribed minimum is Article 118 under years may finement for life more or than 10 shall accord- members vote a sentence in adjudged only if at least three-fourths of the 1006(d) ance with this rule ].” [R.C.M. present members vote for that sentence.” Man- 1006(d)(5) R.C.M. at 11-154 Courts-Martial, States, ual for United

1258 (10th Cir.1959), Warden, 836(a), 644 UCMJ, 273 36(a), 10 U.S.C. Article § denied, 363 U.S. prescribe the President empowers (1960). These cases at least L.Ed.2d 1156 for cases before procedure rules of vote imply support for the three-fourths thereto he has Pursuant courts-martial. mandatory in sentence cases. requirement authority- His

promulgated the Manual. limited regard case, heavily relied on In the Mendrano rules be consistent requirement that the that the we held government, other laws---- or Constitution rule did not violate conviction two-thirds therefore, has provision, Manual A valid Mendrano, F.2d at 1544- process. due of law. the force and effect mandatory no discussion on 47. There is 139, 140-41 voting re- Kelson, or the three-fourths M.J. sentences States United Thus, pro- Mendrano does not quirement. (C.M.A.1977). excep- that an vide the basis for was for Courts-Martial] [Manual voting re- to the three-fourths tion exists by the President promulgated carrying in cases quirement for Executive Order United States sentence. in him authority vested pursuant to the and Article 36 by the U.S. Constitution support pri- our court cases Two district (10 836). Executive the UCMJ U.S.C. § Hiatt, F.Supp. In holdings. Brown v. within the valid falling properly rules (N.D.Ga.1948), the court noted dicta: by Congress have delegation power might penalty have the death [W]hile and effect of law. the force imposed, it was been Daniels, 20 M.J. States “three-fourths the vote of ... therefore omitted). (footnotes (N.M.C.M.R.1985) present at the time the members of all of provision point out that a Manual Again concurring taken” was suffi- the vote is sentence, of law was having although the force and effect support cient to guilty courts this case. vote of binding finding on the present. members two-thirds of the this issue is government claims that opinion Brown, Another district F.Supp. Mendrano at 650. settled our every other court court noted: published opinions believe addressed this issue. We

that has and the vote for on conviction The vote misreads these cases. government proper sentence for offense area which guilty This is an the accused had been found Although are from this court. separate steps circuit cases in the by the court are re- clearly uphold the two-thirds A the court-martial. proceeding before convictions, our cases do not for the offense quirement proper vote on a exception from the three- entirely create distinct from a vote on sentencing. inconsistency in requirement charges. There is no fourths conviction requiring a two-thirds vote for pointed out that we first Anderson sentencing. a three-fourths vote a three- indicated there was the record (S.D.N. F.Supp. Campo, 71 In re conviction and sen- vote for both fourths Y.1947). state: “In a then went on to tence. We the charge is murder and which the in other acknowledge case that dicta two We [in it is suffi- imprisonment] life sentence is be construed to non-binding cases could more of the members if or vote on sentenc- cient two-thirds that no three-fourths hold mandatory in and concur the conviction in sentence ing required of the court was Hancock, in the sen- F.2d 741 or more concur v. three-fourths cases. See Stout Anderson, (4th Cir.1944); F.Supp. In Caffey, 177 F.2d at 771. v. tence.” Hurse However, charge (N.D.Tex.1945). the facts of case we held: another “[W]hen sentencing by at imprison- life include the sentence these cases both [rape] is and addition, In more vote. if two-thirds or least a three-fourths it is sufficient ment the three- holdings do not concern their in and three-fourths concur the conviction issue. Neverthe- sentencing vote fourths McKinney more in the sentence.” or less, only punishment to the extent these cases stand for the permissible under the law proposition that no vote imprisonment. three-fourths is is death or The vote on sentence, necessary on a life imprisonment, therefore, we is but a choice simply disagree. two; between those and unless there is an unanimous vote in penal- favor the death only The other circuit case to discuss this ty, imprisonment necessarily follows.” Hancock, is issue Stout v. 146 F.2d 741 Hurse Caffey, F.Supp. (N.D. (4th Cir.1944). The case Stout contains a Tex.1945) (emphasis original). However, in facially troubling statement. this statement is partially at least dicta conviction has been in a voted [A]fter since the facts of the case included a two- prosecution rape, for only murder thirds for vote conviction—under an old permissible punishments under the law allowing statute a two-thirds vote imprisonment. are death and life The involving mandatory death sentences—and punishment, therefore, on vote is but a later a penal- unanimous vote for the death two; and, choice between these unless ty. addition, In holding of the case was is there a unanimous vote favor of the that two-thirds vote for conviction penalty, imprisonment death neces- when penalty imposed the death is prop- is sarily follows. er under old statute. We believe that Stout, However, 146 F.2d at 744. very authority Hurse is weak for the prop- holding statement is mere dicta. osition that three-fourths vote on sen- only that a Stout unanimous vote for tencing necessary involving is in cases required conviction is not death unless the mandatory sentences. penalty mandatory punishment. ais Id. fact, In the Stout court went on to note the Although courts have been inconsistency clear, they statutes less appear general- also to have power problem. court’s lack of fix ly interpreted the statute to sentencing. impelled put Nor do feel three-fourths vote on a differ- For ex- ample, interpretation in a case upon ent article 43 that because two- thirds possibility voting punish- that must vote to convict for court-martial, sentence, involving mandatory ment under article 92 the crime failing unanimously while to vote quoted troubling language for court death, Stout, might give fail to quoted language three-fourths but also sup- imprisonment____ disposition vote for life If there portive of of the case from difficulty sentencing real Campo. Morphis, under See United States v. article, matter is one which ad- U.S.C.M.A. 23 C.M.R. to Congress dresses itself to the Walker, In United States U.S.C. courts. (1957), M.A. 23 C.M.R. 133 the court addition, court Stout stated that quoted requirements guilt “by the conviction was more than two- and sentence in the Code. court then thirds sentence three-fourths of the “[tjhese provisions stated that the Code court-martial, members of the is all clear, plain are and set out number requires.” law Id. at There- required of votes to convict fore, although the Stout case contains under appro different subsections. This is troubling language, some we believe that priate, findings sepa and sentence are remaining language in the case and its functions____” rate Id. at 137. The Walk- underlying authority facts make it weak quote precise er court then went on to the proposition that no language of the Manual for Courts-Martial required vote in a manda- states even sentences tory sentence ease. required must have concurrence of the adopted troubling A district court number of court-martial members. Id. Al- language though holding of the Stout court in a case the was that Walker required after year conviction has two-thirds were to vote for Stout. “[AJfter murder, prosecution conviction, voted in for certainly been the court intimated that the sen- required to court-martial three-fourths would members] [the the votes entirety in its had to receive sentence, mandatory tence sentence. even on out of three-fourths of the members—five case, Military Ap- the Court In another military judge actu- Id. Since the of six.” propriety of a questioned the peals actually ally instructed the court-martial require a three- which did court-martial required, the court’s vote was three-fourths mandatory life sentence. fourths vote on asking the issue as whether formulation of proce- whether the open question It is instruct was in judge’s failure to so hearing prop- at either dure followed of the issue error is not a correct statement decided that Long ago, this Court er. issue before the in the case. The actual Manual, “may President, through the .,. by holding. court is identified its “[W]e upon the burden place an additional entirely appropriate it was for the think president [military judge] and required by military judge to instruct —as by expressly imposed courts-martial 1005(e)(1) that, because Shroeder R.C.M. Code, prohibit- — ... is not but [which] murder, felony guilty had been found v. Lu- by the United States ed Code.” any adjudged by the court mem- sentence cas, C.M.R. 1 U.S.C.M.A. include confinement for life.” bers must though, that possible, It seems addressing court was Id. at 90. The paragraph requirement military judge could instruct whether 76b(2) might on occa- the 1969 Manual must court-martial that their sentence mandatory conflict with Code’s sion imprisonment, not whether the include life felony-murder— imprisonment life supported must be a three- sentence the members re- if three-fourths of e.g., fact, vote. In court’s fourths Shroeder which includ- for a sentence fused to vote opinion questioned never imprisonment. ed judge’s requiring instruction the three- event, in this connec- no issue In addition, In the court contin- fourths vote. appeal, so was raised defense tion approval prior its ually cited with Walker question any address this we need not impliedly supported opinion that at least further. Therefore, we con- the three-fourths vote. Garrett, 24 M.J. United States that, although military courts clude (C.M.A.1987). issue, entirely have not been clear on this Military Appeals case A recent Court interpretation support seem language that on its face some contains requiring structure the current a rule that no interpreted to state might be mandatory for a sen- three-fourths vote required to sentence vote is tence. mandatory case. sentence in a Thus, that a three-fourths vote is we hold (C.M.A. Shroeder, 27 M.J. States imprison- required all sentences of life 1988), identified the first issue the court ment, mandatory. even if the sentence is review: supported the Manual This military judge erred fail- Whether the obviously The Manual for Courts-Martial. members, required ing to instruct the contemplates just provides a vote and such 1006(d)(5), a sentence by R.C.M. remedy if three-fourths do not vote for a may for life which includes confinement sentence. After dis- for a adjudged if at least three-fourths only be cussing requirement that a concurrence for that present vote of the members required required number of votes is of the sentence. sentences, the Manual even that it then stated required proportion Id. at 88. The court “If the states: appellant. conscientiously against unable decided this issue court members are sentence, However, reality agreement the court’s formulation on a this fact to reach question open the actual session and the issue misstates shall be announced convening authority page as the declared. The court. On the same mistrial before the rehearing on the thereafter direct a may the court states of the issues formulation court.” Man- before a different “further instructed military judge Courts-Martial, States, ual United more votes for sentence of confinement for 1969, ¶ 76(b)(2) (Rev. 1969) at 13-14 ed. at hard labor for life—if the ballot re- added). (emphasis We believe that the use sults no for vote a sentence of confine- “may” of the word that the con- indicates at life, ment hard labor for then the vening authority had discretion whether to proceed members to vote on a sentence rehearing order on the sentence. This is, of death. That if there are no votes the convening authority means that also for a life, sentence to confinement for punishment had discretion to order no you go then can on and consider the as the implicit interpreta- sentence. This sentence of death and vote thereon. tion is clarifying made clear lan- Record, 4, vol. judge’s 837-38. The in- guage of the current manual. “If the re- structions did not require the court to quired agree number members do not on reach a vote order a sentence after a effort to do reasonable impose to imprisonment. We hold that so, a may mistrial be declared as to the these do require- instructions not fulfill the sentence and the case shall returned be ment of a three-fourths vote on a sentence convening authority, may who order years over ten imprisonment contained rehearing on sentence or order that a 852(b)(2) in 10 (1988). U.S.C. § punishment imposed.” sentence of Courts-Martial, Manual In the case, context of this we hold for States, 1984, 1006(d)(6) R.C.M. at 11-154 that the court-martial’s failure to follow (1984). Miller, also See United States v. requirements was a violation 296, 10 U.S.C.M.A. 27 C.M.R. 370 right of defendant’s process. to due It is military clear that courts-martial are not military judge in this case did not held to the process exact due requirements punish- a three-fourths on vote created for civil courts. consti “[W]hat judge gave following ment. The in- process tutes due a trial military structions: gauged by tribunal is principles of mili part relating to con- tary Congress____” law exacted De finement at hard labor for life or death Hunter, 993, War v. the following procedures: will follow Cir.1948), 908, rt. 337 U.S. ce completed When the Court has its discus- 1048, (1949) S.Ct. 93 L.Ed. (citing sion, the members shall vote first on the Ainsworth, Reaves v. 219 U.S. 31 S.Ct. sentence of confinement at hard labor Weeks, 55 L.Ed. 225 French v. life, is, for the less severe of the two 259 U.S. L.Ed. punishments. will The Court vote (1922)). Thus, Court’s cases secret as ballot sentence of con- life____ striking jury down a unanimous of only finement at hard labor If for persons, five Georgia, Ballew v. the ballot results one or more votes (1978), 55 L.Ed.2d 234 for sentence to hard confinement at six-person life, jury must be labor then there will be no need unanimous, Louisiana, Burch v. go forward and vote on sentence of death, (1979), requires since a L.Ed.2d 96 are sentence of death applicable military not vote of the unanimous members. The courts-martial. logic However, rights is as process follows: lower due ac military corded to defendants are ex person If one votes for confinement such, ception general to the rules. As life, obviously, can- hard labor there specific hold the So, courts to stat be a vote if unanimous on death. utory requirements by Congress created you have one or more votes for confine- exception gener life, the President you ment at hard labor for then need process jurisprudence. al due go Because the forward and vote for death, is, princi court failed to follow “the vote the sentence of words, ples military by Congress,” In other if law death. the ballot has enacted War, resulted in a sentence of at De 170 F.2d at we hold confinement life, rights if hard labor there is one or defendant’s due were violat ANDERSON, question no STEPHEN H. Circuit There can be in this case. ed Judge, dissenting. congressional standard and clearly regulations mandated at authorized disagree majori- I respectfully with re sentence the the time of defendant’s pro- ty’s treatment of court-martial Therefore, we re we set out here. sults imposing mandatory minimum cedures in holding on this verse the district court’s opinion majority im- sentences. to the and order the case remanded issue properly jurisdiction extends the this rehear convening authority to either order independent disregard court in for the mili- punish to order no ing justice super- tary system established and provisions ment entered consistent Congress. majority also vised mis- 1006(d)(6) Martial of Rule for Court apprehends the limited nature of re- upon Manual for Courts-Martial. undertake in view we are called to apply to

this case and seeks announce procedure newa rule of constitutional Equal Protection C. properly can is not within the relief we statutory interpre- resolution of the Our Finally, provide on collateral review. unnecessary issue makes it to reach tation apparent in the resolving the conflict stat- argument concerning third defendant’s relating voting proce- utes to court-martial equal protection. ignores Congress’ dures the rec- judi- ognized policy preference for efficient proceedings cial of criminal resolution Voting Supreme Jury Require- D. Court interpreted by courts. ments argues Finally, that a defendant I. TO CONSIDER JURISDICTION out from five of seven of conviction vote HABEAS THE PETITION violates the court-martial members empowers Con- Just as the Constitution concerning jury vot Supreme Court’s gress lesser civil courts and to establish claim is controlled ing requirements. This thereof, jurisdiction define the so “[t]he opinion. re prior We our Mendrano Congress expressly Framers entrusted” holding in to disturb Mendrano fuse our protecting rights of the task of men by a vote for conviction two-thirds within and women in the armed forces military court-martial constitutional. discipline duty demand- framework Mendrano, F.2d at 1542-47. We See Wilson, military. ed of the Burns v. fully Court’s civil considered L.Ed. reaching jury cases in ian (1953). “Military juris- is a law ... We no reason reconsid Mendrano. see apart prudence separate exists er the issue now. governs in our from the law which federal

judicial establishment. courts [Civil exert] supervisory power over the" courts VI. Conclusion it____” Congress which enforce has corpus of habeas We hold the writ sys- provide complete great taken care issue based the court-martial’s should military justice tem of review within the failure to a three-fourths vote counterparts in system. Just as its imposed. There- of the favor civil courts: fore, and REMAND the vot- we REVERSE tribunal, independent As the Court of to the district court for ing procedure issue Appeals Military renders vital decisions proceedings consistent with further rights on the constitutional service- the district opinion. We AFFIRM court’s of com- prerogatives members remaining the three refusal review willing- It has demonstrated a manders. petition under the habeas cor- claims provisions down ness to strike pus. depart- Manual for Courts-Martial interpret pro- regulations, and to part; REMANDED in mental REVERSED and the Uniform Code of visions of part. AFFIRMED Justice in manner that or adds to de- to reevaluate the Burns, evidence.” 346 procedural requirements 142, tracts from at U.S. 73 S.Ct. at 1049. regulations. regularly applies It deci- the majority’s approach, Under apart Supreme sions in resolving Court from four considering “helpful” factors in appellate issues. scope analyzing the jurisdiction H.R.Rep. 549, 16, Cong., No. 98th 2d habeas, Sess. the federal courts would be left reprinted 1983 Cong. U.S.Code & Ad- large with “a amount of discretion” de- 2177, military justice min.News 2182. The termine whether review is appropriate. system military prisoners affords op- Supra, at 1508. I believe this standard is collateral, portunity for well broad; as direct too law this circuit is not so by review their convictions military imprecise: 20, courts. See Ct.Mil.Rev.R.Pract. P.& Federal civil jurisdiction courts only have reprinted 10 U.S.C.A. foil. 866. Con- § military over petitions habeas which al- gress provides now for direct review of lege petitioners have impris- been military by decisions writ of certiorari oned “as a proceedings result of the United States Court. 10 denied them rights guaranteed basic by 867a. U.S.C. § the Constitution.” Id. v. Wil- [Burns son, 1045, 346 U.S. 73 S.Ct. appellate The military decisions of courts 1047, 97 (1953).] L.Ed. 1508 We then conclusive;” are “final and such decisions only review this issue to determine upon “binding” are all courts the United “whether military given have fair Although 10 States. U.S.C. 876. § petitioner’s consideration” to claim.

provision entirely displace does not civil 144, 73 S.Ct. 1050. If such consid- jurisdiction application courts’ over an for a given, eration has may only been corpus military writ pris- of habeas from “ review the issue if it is both ‘substan- oner, Augenblick, United States v. 393 tial largely and free of ques- factual 348, 349-50, 528, 529-30, 89 S.Ct. 21 ” tions.’ (1969), provisions L.Ed.2d 537 “these do Lundy Zelez, military mean that when a v. 593, (10th decision has 908 F.2d 594 fully fairly dealt (quoting Burns, allegation Cir.1990) and with an 139, 346 U.S. at Zelez, application, raised in open 1047; it is not Monk v. to a 73 S.Ct. at 901 F.2d grant federal civil 885, (10th Cir.1990)).1 court to writ 888 majority given in this circuit have held and full consideration had been fully fairly military that constitutional issues and con claim Smith, courts. See Mendrano v. (“Here military generally sidered court 797 F.2d at 1542 n. 6 cannot record See, military e.g., gave indicates that the reviewed on courts at least habeas. Mendrano v. Smith, 1538, (10th petitioner's Cir.1986) some consideration to 797 6 ... claims F.2d 1542 n. argue [but] the Government does that full military circuit has C'[T]his refused to review military and fair consideration courts courts’ determinations constitutional issues judicial inappropriate.’’). makes wise, review fully Like fairly litigated where issues were tribunals.”); where the claim asserted is viewed as before Watson v. "substantial,” McCotter, 143, (10th permitted Cir.), review is even al if F.2d 782 144 cert. ready 1184, denied, 2921, considered courts. See id. 476 U.S. 106 S.Ct. 91 L.Ed.2d here, (”[W]e (1986); States, 877, [review will since the claim] 549 v. United 737 F.2d Wolff denied, 1076, (10th Cir.), constitutional issues raised are substantial 879 cert. 469 U.S. 105 largely 575, questions____”); Kennedy free of (1984); factual S.Ct. L.Ed.2d 514 83 Kehrli v. Cir.1975), Commandant, Barracks, 328, v. (10th U.S. Disc. 377 F.2d Sprinkle, 524 F.2d 331 rt. ce 339, (10th Cir.1967) 947, (reviewing denied, 3165, 342-43 claim 426 U.S. 96 S.Ct. 49 L.Ed.2d 732, stemming legally (1976); from denial of King trained coun Moseley, 1183 F.2d 430 734 sel). (10th Cir.1970); Warden, McKinney v. 273 F.2d denied, (10th Cir.1959), cases, 816, O’Kier, Only 643 cert. 363 U.S. Wallis v. two 491 1253, (1960); 1323, (10th Cir.), denied, 901, 80 S.Ct. 4 L.Ed.2d 1156 Bennett v. 1325 cert. 419 U.S. 15, Davis, (10th Cir.1959); (1974); Day 267 F.2d Dicken L.Ed.2d 147 Davis, Davis, denied, Cir.1957), (10th Cir.), son v. 245 F.2d 235 F.2d cert. (1956), 355 U.S. 2 L.Ed.2d 352 U.S. L.Ed.2d 81 Hunter, Easley purported peti to reach the merits of a habeas (10th Cir.1953). opinions explaining 486-87 Other have tioner’s constitutional claims without cases, proceeded why jurisdiction proper. to review the merits constitutional both significant easily quickly claims where no factual issues exist court dismissed the claims as matter, Judgments, Attack on Criminal Dodson’s claim lateral As a threshold (1970)), 142, 156 cert. de voting proce- 38 U.Chi.L.Rev. relating appropriate to the nied, 911, 96 S.Ct. imprisonment sentencing him to life dure in L.Ed.2d 760 of his constitutional allege does a violation merely alleging But right process. to due cites as the reason suffice to does not a due violation why petition Dodson’s raises substantial military jurisdiction where establish issue his claim that he “was constitutional fully fairly con- already courts have process due of law.” incarcerated without In claim. this the constitutional sidered equally Judge Friendly’s observation holds case, the issue of Dodson briefed alleging deprivation of due true of claims military appellate

procedures before proceeding. process in the criminal To con- courts, rejected argument after his simply issue is “substantial” clude that this consideration; does and fair Dodson full process concerns is to it raises due because military proce- review not contend any meaningless limitation on our render any way lacking on this issue.2 dure was in asserting jurisdiction. Every claim habeas right constitutional deprivation Dodson raises a constitutional Because pro- of due easily can be recast terms fully fairly considered issue which was Likewise, every proce- courts, jurisdic- cess. infraction of military we have no by the misapplication of substantive the issue dural rules or petition his unless tion to review implicate process; due it relied law can be said to one. a decision is a “substantial” requires great intelligence skill or Fifth heavily by majority, Circuit to add those part of defense counsel emphasize “We specifically cautioned: may mar- questions words to what be at best a two only constitutional substantial argument. pro- ginal constitutional As this cognizable corpus habeas should demonstrates, regard we to ev- Friendly has com- case were ceedings. Judge As context, ‘Today ery allegation it is of denial of due mented in a different “substantial,” quickly begin to in- we would appeal that does not the rare criminal claim,’ supervisory essentially control because exercise volve a “constitutional” every legal by rendered expansion of the over decision been a vast there ‘has may dis- military courts with which we in criminal cases for which claims of error certainly agree. That result is ac- lawyer can find a constitu- a resourceful ” framework es- 519 cordance with the elaborate Calley Callaway, tional basis.’ Cir.1975) Congress independent (quoting for an tablished 200 n. 23 military justice system.3 and self-contained Irrelevant? Col- Friendly, Is Innocence consideration, given majority has the claim fair reads tribunal meritless. To the extent that summarily proposition though opinion disposed support that civil its these cases to even to review mili- courts have unfettered discretion the mere statement that it did not the issue with involving any legal tary petitions issue of requiring habeas the issue meritorious or dis- consider cussion."). law, interpre- share that I do not military constitutional courts The fact tation. summary rather dealt with this issue in fashion nothing great length expand does than at jur- majority of habeas views the exercise 2. The petition. jurisdiction over this habeas appropriate policing means of isdiction as an military military must courts: "the courts necessary claim is all that is 3. A constitutional give adequate to the issues in- consideration court to review a state court for a United States legal apply proper standards." volved Thus, any single If there is conviction on habeas. thoroughly despite the fact that Dodson uniformly concept adopted legal applied and argued issue both the United briefed and issue, every it is that our review of case on this Corps Military Navy-Marine Re- States Court of military habeas is more limit- court decisions on Appeals, because and the Court of view E.g., proceedings. than our review of state ed argument summarily rejected the both courts 1048; Burns, Watson U.S. at majority believes we without discussion the McCotter, military F.2d at 145 n. 3. The jurisdiction to review the correctness have issues, of constitutional courts’ determination directly viewpoint those affirmances. That courts, is entitled to defer- unlike that of state existing precedent. contrary to this circuit’s reviewing deference McCotter, (“When ence. We defeat F.2d at 145 Watson v. relating every military decision to the court argued before a is briefed and issue therefore, constitution; review, only those constitution- held that the board of we have I raising do view Dodson’s claim as to the already one Dodson has received. Instead, “substantial” issue of constitutional law. the convening authority might concludes, As the Congress, go let the unaccompanied conviction rights protecting per- of armed by any punishment. services Not does such a sonnel, may constitutionally provide ignore for a fanciful scenario the realities of law conviction two-thirds of the court-mar- enforcement justice sys- criminal tial members even where the sentence un- tem everywhere, it effectively duplicates provisions der law carries a minimum clemency pardon al- great leap ready term. It seems no to conclude military justice extant in the system Congress equally empowered pro- to which Dodson has full recourse. vide for life sentence in such circum- Although a procedural claim that a safe- requiring stances without concurrence guard exists and was may violated raise a members, and that question of magnitude, constitutional Dod- pass such a scheme would constitutional defect, son’s assertion aof technical the only claim, scrutiny. Dodson’s real as the remedy of which would absolutely have it, majority is not a views that two-thirds effect on his term of incarceration, does fundamentally vote is unfair or justify interjection this court’s of its inherently improper, otherwise but rather intent; interpretation Congress’ own it Congress that have in President is not a “substantial” constitutional prescribed a fact three-fourths vote on the issue.4 I conclude the issue Dodson sentence. raises does not jurisdiction render proper in case, I and would the Significantly, petition Dodson makes no effort dismiss to on that how, basis. if demonstrate even such a technical

voting requirement imposi- exists the II. LIMITATION OF REMEDY UN- sentence, mandatory preju- tion of a he was DER TEAGUE V. LANE. by its troubling diced violation. As to this Dodson, of any prejudice absence real Even jurisdiction if we have to consider majority only conjecture can that there petition relief, his assuming might possibility merit, be some theoretical claim his has Dodson is not before convening authority, having obtained a appeal.5 us on direct We must first deter murder, premeditated mine, therefore, valid conviction sought whether the relief might choose not to proceed with a rehear- would create a new rule of constitutional Lane, ing sentence, Teague v. only legal procedure on outcome under 489 U.S. 288, 109 (1989).6 of which would be a life sentence identical S.Ct. 103 L.Ed.2d 334 unfair, truly prop- fundamentally al merely issues which are “substantial” are was not but erly symmetry procedural in reviewable civil courts. lacked in the method of imposition on conviction and 4.The cases in this circuit have dealt with mandatory life minimum term. "substantial” constitutional issues involved allegations below, much more serious of fundamental 5. I discuss I view As Dodson’s constitu- proceeding unfairness the criminal than does tional due claim be to meritless. Even instance, petition. Dodson's Smith, For in Mendrano v. accept majority’s analysis, I to how- were ever, petitioner 797 F.2d at the habeas the rule Dodson seeks and one which right claimed denial of his Sixth Amendment majority adopts be would barred under jury trial in that he had been convicted Teague Teague v. Lane. Because bars this court of a two-thirds six-member court martial announcing from even a new rule collateral context, panel. right review, the civil to trial prior Teague ana- I address the issue jury is so fundamental and essential in criminal lyzing the ma- constitutional standard which the implicates ("Re- it the inherent fairness of jority announces. See 109 S.Ct. at 1069 Likewise, proceeding. Kennedy Com- troactivity properly treated as threshold mandant, alleged petitioner 377 F.2d at question. an effective denial of his Sixth Amendment right Although Teague he to counsel when was refused a law- Lane involved collateral decision, deprivation, it trained defense counsel. Such a if review of a state court I believe that true, likely applies equally review of a would viewed as breach of a collateral contrast, right. By judgment, including petition "watershed" constitutional final habeas majority’s analysis, military prisoner. The considera- under the Dodson’s sentence from a same so, ap prior precedent. announce nor cites no case [may] “If neither ... ply the new rule collateral vacated which has reversed or review] [on two ex unless it falls into one of narrow on the of such a rule. sentence basis — Parks, U.S. -, ceptions.” Instead, it relies dicta to the effect that Saffle 1259-60, L.Ed.2d three-fourths concurrence passes constitutional muster support as for its conclusion that a Iess A rule” one which “was “new necessarily than-three-fourths concurrence existing at time by precedent ‘dictated ” scrutiny. became final.’ constitutional See conviction the defendant’s fails Hunter, (quoting Teague, Saffle, 110 Anderson v. (emphasis original)). (10th Cir.1949) (“[I]t 109 S.Ct. at 1070 if two- is sufficient purpose for underlying habeas Because the thirds or more ... concur the conviction compliance with consti review is to ensure or more concur in the existed requirements tutional sentence.”) (emphasis added); McKinney v. trial, has time Court Warden, (10th Cir.1959) “ principle ‘The “new rule” recognized that (identical language), reasonable, good-faith inter ... validates (1960).7 4 L.Ed.2d existing even pretations precedents ... do compel These cases not dictate or though contrary to be they are shown just reached be majority; result ” 1260 Saffle, 110 S.Ct. at later decisions.’ is cause one ratio sufficient does not mean — U.S. -, McKellar, (quoting v. Butler that a lesser ratio is not. 1212, 1217, 108 L.Ed.2d 347 110 S.Ct. majority opinion “acknowledge^] The sought not (1990)). the relief does Where non-binding. in that dicta two other cases specific precedent, but any prior involve construed to hold that no three- could be reasoning the of to extend rather seeks in sentencing required fourths vote law, is to “our task determine prior case mandatory Supra, sentence cases.” at considering [military whether a court] Indeed, language the of v. 1258. Stout his time conviction claim the [Dodson’s] Cir.1944), Hancock, (4th 146 741 cert. F.2d compelled by felt final would have became 1086, denied, 850, 325 U.S. 65 S.Ct. 89 existing rule precedent to conclude the (1945), appears reject L.Ed. 1971 required by the Constitu seeks was [he] requirement three- constitutional at 1260. Saffle, tion.” 110 S.Ct. mandatory concurrence in a fourths voting the I believe sentence. majority now requirement the estab- in a has been voted conviction prerequisite in constitutional [A]fter lishes as a prosecution rape, or the murder such this is mandatory punishments permissible by any under the law compelled or dictated a new rule not proce- general comity finality the in In a discussion of court-martial of cited Court tions involving important dure, Teague equally general in cases prior opinion the are one cites statu- defining a "new courts-martial. person may tory provision be sen- that “no rule," Teague specifically Court stated that the imprisonment or tenced to life confinement when case a new rule it breaks "a announces years except ten with concur- more than obligation ground imposes a new new present of three-fourths of the members rence 109 S.Ct. at the Federal Government." States or Smith, is v. when the vote taken." Mendrano Accord, added). (emphasis United States 1070 1538, Cir.1986) (cit- n. 797 F.2d 1541 & 3 425, (D.C.Cir.1990) Ayala, F.2d 429 n. 8 894 (2)). 852(b)(1) ing As the ma- § 10 U.S.C. sure, ("To postjudgment changes all in be not acknowledges, jority did the issue Mendrano prisoner’s] may a raised in sec [federal law relating voting requirements not involve Lane); Teague (citing proceeding.") tion 2255 conviction, after nor did the court the sentence 229, States, F.2d n. 1 United 881 232 Callanan v. effect a minimum life discuss the (6th Cir.1989) (limiting Teague general sentencing requirement sentence on procedure, implying new rules of constitutional 852(b). Although very broad lan- of section prison Teague applies to otherwise federal suggest might guage a minimum in Mendrano review), denied, petitions ers’ for collateral sentence, nothing in the concurrence — -, 108 L.Ed.2d 946 U.S. compels requirement. such a therein (1990). 1267 1987). imprisonment. and life are death Even if majority’s resolution of therefore, punishment, vote on is the apparent ambiguity but in the statutes is two; and, correct, these reasoning choice between unless its is not so apparent as there is a unanimous vote in to compel favor of that result. The constitutional penalty, imprisonment neces- voting requirement death is a new rule which the sarily majority seeks to apply announce and follows. proceeding. this habeas see (emphasis added);8 744 Parker, also O’Callahan v. 395 U.S. Finally, majority’s heavy reliance on 23 L.Ed.2d voting procedure enumerated (1969) (“A tried, court-martial Manual for Courts-Martial no answer to jury peers of the defendant’s which must Teague. analysis the “new rule” Within unanimously, by panel decide but offi itself, broad limits the constitution empowered act cers two-thirds specific requirements due vote.”), grounds, overruled on other Solo are tribunals established and de- States, rio by Congress. fined The interstitial rules of Brown v. procedure S.Ct. 97 L.Ed.2d established the Executive are Hunter, (“The (10th Cir.) void insofar as conflict with duly such imposed com provisions ... legislation. See United States v. enacted pulsory duty upon the board to sentence Garrett, (C.M.A.1987) M.J. imprisonment petitioner to death or life ago, (“Long this Court decided that upon finding guilt. It had alterna President, Manual, through ‘may place direction.”), legislative comply tive but to upon an additional burden [military ... t. judge] president cer courts-martial 93 L.Ed. 1120 imposed Code, expressly by the but ... prohibited by is not relating provisions [which] Lucas, ”) (quoting United States v. Code.’ generally compel any courts-martial do not (1951)). 1 1 establishing in U.S.C.M.A. C.M.R. rule a minimum concurrence Depending statutory appar- life on the resolution of the mandatory a sentence. The provision involved, a sen- ent conflict the prescribing minimum life between statutes easily provision can read the the obviating requiring tence be as Manual a mandatory fixed need number of concurrences minimum concurrence in sen- may may penalty imposed. where the death is tences not conflict with the Indeed, opines: Although “The majority govern- majority the scheme. the [position] a ment’s that three-fourths vote concludes that the minimum concurrence mandatory unnecessary provision sentence is does not conflict with the statu- appears logical glance.” tory requirement mandatory at first the of a life Thus sen- tence, compels Military Appeals, writing nothing Court of in that As I result. final, below, easily after Dodson’s conviction had become discuss the statutes can be open question limiting that “It is read as noted whether the discretion the court- prescribed procedure proper____ panel imposing the followed ... was martial in sen- provision possible voting re- It seems ... the tence so the the Manual 76(b) quirement paragraph legislative with scheme and the conflicts the is Law and Winthrop, See might Manual occasion conflict with the void. W. 1920) (Where mandatory imprisonment (2d Precedents for fel- ed. Con- Code’s sentence, ony-murder e.g., if three-fourths of gress the “the office has mandated — legal members refused to vote for a sentence of the court is to cause the imprisonment.” record United which included life be entered of Garrett, (C.M.A. advocate, States judge being 24 M.J. discretion allowed circuit, majority disagree[s]” "simply case from sister how it could be 8. The law holding may anything promulgating new rule. of Stout insofar as it be read to but a Cf. Saf- ("The fle, explicit overruling permit than a 110 S.Ct. at 1260 less three-fourths concurrence understand, It if the an no doubt creates new the sentence. is difficult to earlier ’’). actually existing majority’s rule conflicts with rule.... voting adopted being requirement called such as the deliberation or vote and no majority. at for.”). Saffle, I am not the first to reach such a 110 S.Ct. Garrett, 1075). (quoting Teague, at 109 S.Ct. conclusion. States (C.M.A.1987)(“the voting re- M.J. rejected the con Court has might on occa- quirement in Manual [the] merely “pre that a tention rule which conflict with Code’s sion accuracy and fairness ... serve^] imprisonment____”). sentencing judgments” qualifies under the provision Rather, on the majority’s reliance Teague exception. such second rule “must not compelling as the conclusion the Manual accuracy, only improve but required minimum is that a concurrence understanding ‘alter our also bed is an exercise mandatory sentencing cases essential to the procedural rock elements’ majority re- reasoning. The in circular proceeding.” Sawyer fairness of — voting question of whether solves Smith, U.S. -, -, 110 S.Ct. invalid under requirement the Manual is (1990) (quoting Teag 111 L.Ed.2d 193 by citing mandatory sentencing scheme ue, 1075) U.S. at voting requirement in the Manual. original)). (emphasis in Given extreme analysis “new under context of rule” scope exception, I ly narrow of this second compels, provision Manual’s Teague, the majority’s cannot conclude that the three- view, majority’s the conclusion “an requirement fourths ‘absolute ” Not does valid. Manual’s provision prerequisite to fairness’ so fundamental place regulatory cart be- qualify exception Teague.9 as as to — statutory interpretation, but the ox of fore at -, Sawyer, it con- positioning of the novel virtue petition I would therefore dismiss Dodson’s arranged. that it must so cludes power requesting we are as relief which grant less to on collateral review. Congress prescribed a When personnel convict- life sentence III. STATUTORY VOTING SCHEME are premeditated murder who ed of IN COURTS-MARTIAL death, perfectly it is reason- sentenced that it meant what it said. to conclude able Alternatively, assuming that we have of the Manual could alter provision No petition and jurisdiction to consider the mandate, much congressional less such a requested the relief is not barred on collat- reviewing court to conclude bind a review, petition deny I eral would something entirely. means else statute Article meritless. 118 of the Uniform Code is un- majority’s conclusion otherwise The any person provides Justice that of supportable. guilty premeditated found mur- who is of imprisonment suffer der “shall death or for three-fourths Having concluded that the may life a court-martial direct.” 10 a “new sentencing requirement constitutes ambiguity An apparent U.S.C. 918. ex- § I purposes of would not Teague, rule” for however, ists, permits the Code because of the two apply the rule under either of upon concurrence two-thirds conviction exceptions. exception, re- The first narrow members, id. of the court-martial pri- class of lating place to rules which agree- 852(a)(2), generally requires but beyond power of State § vate conduct by three-fourths of the members ment proscribe, inapplicable. is second “ 852(b)(2). life imposing a sentence. involving rules exception, § ‘watershed Logically, where a bare two-thirds have funda- procedure’ implicating the criminal convicted, concurrence three-fourths accuracy the crimi- fairness and mental always may rule not be forth- encompass does a life sentence proceeding,” nal impossible adopt applied. majority opinion I find it con- read the must Nor do I sug- majority on the life sen- that a three-fourths vote does the clude a view. Nowhere such given the requirement vot- is “fundamental” to fairness gest a three-fourths tence that the majority’s vote of convic- mandatory view that a two-thirds ing in a life sentence is concurrence mandatory any apparent even minimum tion suffices under that even absent so fundamental a rule life sentence scheme. in the scheme such conflict nevertheless, coming; tences, a lesser is sentence mandatory otherwise. in- This terpretation power ignores within court-martial’s to im- the basic rule: case, In pose. such a majority con- It is our policy settled to avoid an inter- cludes that a convicted murderer should pretation of a federal statute engen- undergo repetitive and successive sentenc- ders constitutional if issues a reasonable ing interpretation alternative hearings panels poses before different until no consti- question. tutional eventually agrees one court in the life sen- majority. tence at least a three-fourths States, Gomez United 490 U.S. Alternatively, majority reasons 2237, 2241, S.Ct. (1989) 104 L.Ed.2d 923 convening authority may (citing Commodity Futures pro- choose not to Trading Schor, Comm’n v. ceed, whereupon imposed no sentence is 478 U.S. 3245, 3251, (1986); statute’s 92 L.Ed.2d requirement for a manda- United States v. Rumely, 41, 45, 345 U.S.

tory effectively minimum life sentence is 543, 545, Cro- 97 L.Ed. 770 ignored. I Congress do not believe that Benson, well v. illogical intended such an and inefficient (1932)). 76 L.Ed. 598 I Thus duly once defendant has been interpret would 852(b)(2), section requiring convicted. a three-fourths concurrence in a life sen- violates a fundamental rule tence, so application impo- as to limit its statutory interpretation. peti- Dodson’s of discretionary sentences; sition tion does not state a claim if constitutional such concurrence necessary where the the statute does not prescribed term is by law.11 in a life concurrence The need informality expediency where a minimum life term is requires court-martial that it prescribed by facially troubling law. The relatively remain free of procedural ineffi- statute, 852(b)(2), specifi- section does not ciency. recognized Thus we have “that sentences;10 cally apply mandatory rath- context obvious [there an] er, majority interprets lan- policy preference by Congress for lessen- guage broadly as encompassing ing all sen- hung-jury problem in courts-mar- recognize unambiguous 10. I otherwise In cases not within the discretion court language generally of a statute is conclusive. punishment, inevitably to affix the it follows Roberts, (10th Cir.1990) re 906 F.2d punishment is in accordance Commissioner, (citing Miller law, court, finding and cannot however, (10th Cir.1988)). Here the rele- by any opinion be modified individual together vant statutes read cannot be reconciled member____ every The oath which member interpreting provision without either the takes, requires obliges him to "administer upon life sentence conviction war," justice according to the articles of general voting vote or two-thirds scheme follows, course, upon it conviction aof requiring a three-fourths concurrence in a life offense, particular prisoner every mem- sentence. punishment ber must vote the which the law Military recognized prescribed. have authorities do has Such cases not admit of 11. panel generally court martial impose any has discretion to appeal an to the conscience for the of solution acceptable range sentence within an exist, may any doubts which for where the Schlueter, by Congress. Military dictated See D. rule, prescribed a law has no doubt be can Justice, (2d 1987). § Criminal 15-17 ed. Histori- entertained. however, cally, very law has taken a DeHart, Law, Military on W.C. Observations different view of the court-martial’s role in im- (discussing see id. 189-90 also at 191-92 posing mandatory Congress sentence. Where member, duty every panel upon to of failure sentence, "the has mandated office of the agree penalty imposition death to vote for on legal court is to cause the be to sentence). legal some Thus the vote manda- advocate, judge by entered of record no tory imprisonment life where court fails being discretion allowed and no deliberation agree unanimously penalty pursu- on the death being Winthrop, vote called for." W. ceremonial, 852(a) largely ant 10 U.S.C. § (2d 1920). Law and Precedents 390 ed. A vote is safeguards and does not due required only where "the sentence is left ordinarily accompany which must the exercise court____’’ Code discretion Id. As sentencing discretion. early as William DeHart observed: tial____” (1989), Military Appeals Smith, the Court 797 F.2d Mendrano thus: Cir.1986). framed the issue majority’s The ambiguity in the apparent solution to the THE MILITARY JUDGE WHETHER fur- does little to scheme BY TO INSTRUCT ERRED FAILING efficiency in the underlying goal of ther the MEMBERS, REQUIRED BY THE AS Curry v. military justice system. See Sec- 1006(d)(5),THAT A SENTENCE R.C.M. 595 F.2d retary Army, CONFINEMENT WHICH INCLUDES (D.C.Cir.1979) (“[T]he fundamental func- BE ADJUDGED FOR LIFE MAY ONLY fight ‘to or be armed forces is tion of the OF IF AT LEAST THREE-FOURTHS ”) (quoting Toth v. ready fight wars.’ VOTE FOR THE MEMBERS PRESENT 1, 5, Quarles, THAT SENTENCE. (1955)). dupli- L.Ed. Such a succession is- decision: “We decide The court’s [the] mili- hearings defeats cative against appellant.” 27 M.J. at 88. sue tary’s primary purpose: “Likewise, very specific: we con- court was discipline is [Tjrial to maintain of soldiers requirement in Article clude that army’s primary merely to an incidental 52(b)(2) must a three-fourths that there be the extent that fighting function. To in favor of a sentence vote of the members responsible performance for of this those for imprisonment life or to confinement ‘to from it primary function are diverted years’ intended to more than ten was not cases, necessity trying the basic negate the minimum confine- not served. Article fighting purpose prescribed of armies is ment 118____” added). The (emphasis at 89 Id. Quarles, Toth v. anticipatorily rejected the court Shroeder conducting addition- majority’s approach Likewise, majority's approach ig- sentencing hearings: al Congress has nores the “balance” here, If, military judge instructs as military’s pri- already between the drawn ad- must the court members rights of service mary objective impris- a minimum sentence of judge than a By requiring no more personnel. onment, by Article prescribed conviction, in the concurrence two-thirds utilizing reduced for greatly need is acquittal upon failure by providing rehearing sentence or a reconsidera- convict, already provided Congress has impose the as a means to tion of sentence Mendrano, appropriate balance. See pre- Congress mandatory sentence which (discussing the two-thirds at 1546 these means are available scribed. While rule, concluding that conviction-or-acquittal requirements of Article to effectuate balancing does not seem constitution- “This Congress no we have doubt majority’s plan ally impermissible”). mandatory sentence preferred of votes nec- effectively raises number initially than for adjudged —rather punishment to essary conviction and adjudged and then illegal sentence to be three-fourths; by a failure to sentence rehearing or reconsidera- corrected in a sort of “mis- vote results tion. trial,” punishment or new with either acknowledged Finally, court hearing to follow. statute, “Admittedly, since the under opinion affords no defer sentence, The vote on the court members must of the judgment to the considered ence engage ‘jury in nullification’ can statutory interpreting the military courts in than the of less adjudge can a sentence despite the fact that the question, prescribed provision minimum confinement course, the supervisory power over action—which such we exercise Code. Of intended to military judge’s instruction was States Shroe those courts. United well as irresponsible as (C.M.A.1988), der, forestall —would 27 M.J. 87 en- certainly should not be L.Ed.2d 489 U.S. unlawful added).12 Id. couraged.’ (emphasis complied sentence express with the statu- tory requirements. stated, For the reasons majority primarily The relies on the 1969 respectfully I dissent. Courts-Martial, Manual for in effect at the conviction, time of Dodson’s supporting

its Given specificity view. the of the

Shroeder court’s holding, I conclude that Military Appeals

the Court of was correct surmising voting requirement that “the 76b(2)

in paragraph of the 1969 Manual

might on occasion the conflict with Code’s United imprisonment____” America, UNITED Garrett, (C.M.A.

States v. STATES 24 M.J. Plaintiff-Appellee, 1987). Accordingly, provision the because statutory the Manual conflicts the premedi- minimum life murder, RUBIO-RIVERA, I statutory

tated conclude that the Ramon provision, Manual, Defendant-Appellant. not the should be en- forced. No. 89-2302. support I majority’s find no con Congress clusion intended three- Appeals, States Court of fourths in a mini concurrence Tenth Circuit. Indeed, mum life sentence. I consider the Oct.

judgment Appeals of Military Court contrary to the It settle issue. is not place supervise of this court to or cor statutory

rect interpretations by erroneous

military relating operation courts military justice system. E.g., Burns v.

Wilson, 97 L.Ed. 1508 10 U.S.C. 876. §

I would therefore defer interpretation

courts’ applied

scheme as it has in this been

other cases.

CONCLUSION

I would affirm the district court’s refusal grant habeas relief on the basis jurisdiction

lack petition, to review the petition requests relief which is

barred Alternatively, on collateral review.

I voting would conclude procedure imposing

followed court-martial decision, 12. The cites Shroeder but reach this result. I am unable to find the dis- vote, asserts: "However the formu- court’s tinction between a ceremonial the out- [Shroeder] question prior lation of issue come misstates actual of which is mandated the court court____ deliberations, addressing before the court was and no vote at all. The military judge procedure judge whether could instruct used in Dod- sentencing court-martial their sentence include son’s means must was effective imprisonment, taking away whether the sentence discretion from supported by panel must be vote.” as the term of im- members insofar majority apparently prisonment would find effect comfort concerned —the same approved Shroe- three-fourths concurrence results from an achieved instruction in panel to the instruction members that must der.

Case Details

Case Name: Alvin W. Dodson, Jr. v. Colonel Gordon N. Zelez, Commandant

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Oct 23, 1990

Citation: 917 F.2d 1250

Docket Number: 88-2875

Court Abbreviation: 10th Cir.