02-5700 | 6th Cir. | Jan 14, 2004

Before: RYAN, MOORE, and ROGERS, Circuit Judges.

to object at trial. The court rejected Witham’s ineffectiveness defendant’s habeas corpus petition. Contrary to Witham’s claim on its merits, finding that his detailed defense counsel argument on appeal, the district court properly refused to hold had performed effectively and demonstrated thorough pre- a hearing, where three of Witham’s claims were fully and trial preparation. The court also addressed the merits of fairly litigated in the military courts, and the remaining two Witham’s claims regarding the trial record, finding that there claims were raised for the first time in the district court. We was no showing of “substantial omissions” and that, therefore affirm the judgment of the district court. therefore, his claim failed.

On April 9, 1998, Witham, then a Staff Sergeant in the After losing in the Court of Criminal Appeals, Witham United States Marine Corps, was convicted of multiple filed a Petition for a Grant of Review in the United States offenses arising from a conspiracy to steal and re-sell military Court of Appeals for the Armed Forces. The Court of property, weapons and explosives. Witham was sentenced to

Appeals for the Armed Forces refused to hear Witham’s confinement for five years, dishonorable discharge, and claims. forfeiture of all pay and allowances.

Having exhausted his military remedies, Witham then sought habeas corpus review in the district court. [3] Witham’s After approval of the sentence, the Convening Authority forwarded the trial record to the Navy-Marine Corps Court of petition, raising five issues, contended that (1) no verbatim Criminal Appeals for review. [2] On appeal, Witham claimed

transcript of the general court martial exists, (2) the that (1) the Government wrongfully refused to subpoena convening authority lacked authority to refer charges against witnesses, (2) he received ineffective assistance of counsel, Witham, (3) Witham’s due process and Sixth Amendment (3) his rights under the Fifth Amendment Due Process Clause rights were violated because the prosecution subpoenaed only were violated by excessive post-trial delay, (4) the Convening

two of the fourteen witnesses requested by Witham, Authority was disqualified because two of Witham’s co- (4) Witham received constitutionally ineffective assistance conspirators had received favorable treatment in sentencing, due to trial counsel’s inadequate pretrial preparation and trial (5) the Commandant of the Marine Corps exerted unlawful errors, and (5) Witham’s Fifth Amendment right to confront command influence in posting a message to a “military- witnesses was violated because the military court refused to oriented web site,” and (6) the trial record was not verbatim. allow a particular tape to be played into the record in its The court affirmed Witham’s conviction and sentence. entirety.

The district court adopted the recommendation of the court-martial cases, detention arose out of federal process but magistrate, refused to grant an evidentiary hearing, denied the the proceeding is not under § 2255. petition, and denied a certificate of appealability. For reasons that are not entirely clear, Witham maintains Witham appeals from the district court’s judgment. On this that his claim is, in actuality, a motion to vacate sentence appeal he urges us to find that his petition has been under 28 U.S.C. §2255. In pertinent part, that provision “mislabeled” as a petition arising under 28 U.S.C. §2241 and provides: that it, in fact, arises under §2255. Witham further urges us to find that §2255 guarantees him an evidentiary hearing and A prisoner in custody under sentence of a court that the district court erred by not granting him that hearing established by Act of Congress claiming the right to be with respect to the five issues that he raised in the district released upon the ground that the sentence was imposed court. Because the district court did not abuse its discretion in violation of the Constitution or laws of the United when it denied Witham an evidentiary hearing, we affirm. States, or that the court was without jurisdiction to

impose such sentence, . . . or is otherwise subject to We review de novo a district court’s legal determinations in collateral attack, may move the court which imposed the resolving a petition for habeas corpus. See Charles v. sentence to vacate, set aside or correct the sentence. Chandler , 180 F.3d 753" date_filed="1999-06-18" court="6th Cir." case_name="James Charles, (98-5747), Movant (98-0539) v. Ernest v. Chandler, Warden">180 F.3d 753, 755 (6th Cir. 1999). The denial of an evidentiary hearing in a habeas corpus case, however, is 28 U.S.C. §2255 (emphasis added). Undoubtedly, Witham is reviewed only for an abuse of discretion. Lott v. Coyle , 261 a “prisoner in custody under sentence of a court established F.3d 594, 602 (6th Cir. 2001). by Act of Congress.” See 10 U.S.C §§817-818 (setting forth No. 02-5700 Witham v. United States, et al. 7 8 Witham v. United States, et al. No. 02-5700 the jurisdiction of courts-martial). Furthermore, he claims On the merits, the district court properly determined that jurisdictional and Constitutional infirmities in his sentence. Witham is not entitled to relief. As the magistrate judge That does not change the fact, however, that Witham cannot explained, three of Witham’s claims were fully and fairly petition the court which imposed the sentence for relief. considered by the military courts. Where there is no colorable

jurisdictional question, a finding of full and fair consideration General courts-martial are ad hoc proceedings which ends our habeas corpus inquiry. See Burns v. Wilson , 346 dissolve after the purpose for which they were convened has U.S. 137, 142 (1953); see also Lips v. Commandant, United been resolved. As a result, there is not a sentencing court in States Disciplinary Barracks , 997 F.2d 808" date_filed="1993-07-01" court="10th Cir." case_name="William M. Lips, Appellee/cross-Appellant v. Commandant, United States Disciplinary Barracks, Appellant/cross-Appellee">997 F.2d 808, 811 (10th Cir. which a military prisoner may bring a §2255 motion. Gilliam 1993) (“[I]f the military gave full and fair consideration to v. Bur. of Prisons , No. 99-1222, 2000 WL 268491, at *1 (8th claims asserted in a federal habeas corpus petition, the Cir. March 3, 2000) (unpub.). Moreover, neither the Uniform petition should be denied.”). Witham’s two remaining claims Code of Military Justice nor the Manual for Courts-Martial were procedurally defaulted. Where a petitioner has failed to provides for collateral review within the military courts. See

raise a claim in the military courts, a federal court will not United States v. Murphy , 50 M.J. 4" date_filed="1998-12-16" court="C.A.A.F." case_name="United States v. Murphy">50 M.J. 4, 5 (C.A.A.F. 1998). review the claim unless the petitioner has established “cause” and “prejudice” for failing to raise the error. Lips , 997 F.2d

Our decisions indicate that §2255 is intended to be an at 812 ( citing Murray v. Carrier , 477 U.S. 478" date_filed="1986-06-26" court="SCOTUS" case_name="Murray v. Carrier">477 U.S. 478, 491 (1986)). avenue of relief to be pursued before the court which imposed As the magistrate below noted, Witham made no effort to sentence. In Martin v. Perez , 319 F.3d 799" date_filed="2003-02-13" court="6th Cir." case_name="John T. Martin v. Edward Perez">319 F.3d 799, 802-03 (6th Cir. show “cause” or “prejudice” to excuse his procedural 2003), we explained that Congress enacted §2255 as a means defaults. The district court therefore properly accepted the of ensuring a simpler method of review by vesting magistrate’s recommendation not to review those claims on jurisdiction in the sentencing jurisdiction, which already has the merits. a record of the case, rather than in the jurisdiction of confinement, which would typically have to start from Witham’s primary argument before this court is that the scratch. Section 2255 is not a different form of relief from

district court should have granted a hearing on his claims. §2241, but rather, a different avenue intended to provide a Regardless of whether Witham seeks collateral review under more convenient process for prisoners who can pursue relief § 2241 or § 2255, his assertion on appeal that he was entitled before the sentencing court. Id . The savings clause of §2255 to an evidentiary hearing is baseless. Witham points to no provides that, on a showing that the §2255 remedy is authority standing for the proposition that a petition under “inadequate or ineffective to test the legality of the §2255 is entitled to an automatic evidentiary hearing. detention,” a prisoner may seek a writ of habeas corpus Moreover, we have consistently held that a district court’s under§2241. This clause applies to the military prisoner, denial of an evidentiary hearing subsequent to a §2255 because the court-martial immediately dissolves after

motion or a petition for habeas corpus is reviewed for an sentencing and is no longer available later to hear a collateral abuse of discretion. See, e.g., Ross v. United States , 339 F.3d attack on the sentence. See also Clinton v. Goldsmith , 526 483, 490 (6th Cir. 2003); Lott , supra . The district court in U.S. 529, 537 n. 11 (citing § 2241(c) as authority for this case did not abuse its discretion by refusing to grant proposition that habeas corpus is available to servicemembers Witham a hearing. in custody pursuant to court martial).

Witham relies on Townsend v. Sain , 372 U.S. 293, 313 (1963), to assert that the district court was required to conduct No. 02-5700 Witham v. United States, et al. 9 10 Witham v. United States, et al. No. 02-5700 an evidentiary hearing. In Townsend , the Court held that, Under the second prong of analysis, the record before us where there is a factual dispute, “the federal court in habeas conclusively shows that Witham is not entitled to relief. As corpus must hold an evidentiary hearing if the habeas explained above, two of his claims are procedurally defaulted, applicant did not receive a full and fair evidentiary hearing in and the remaining three claims were fully and fairly a state court, either at the time of trial or in a collateral considered by the military courts. Not only has Witham proceeding.” Id . at 312. Townsend , however, does not never made the effort to argue that his claims were not fully support Witham’s position. Even assuming—without and fairly considered, but the record clearly shows that they deciding the question—that Townsend applies in the military were. Because Witham is conclusively not entitled to relief, context, it nevertheless applies only where the petitioner can no hearing was required. show that he was not afforded a full and fair evidentiary Finding no abuse of discretion, we AFFIRM the judgment hearing in the courts below. Witham has not made any of the district court. showing that the military courts failed fully and fairly to gather and evaluate the evidence relating to his claims. Even if Witham had tried to make such a showing, the record indicates that he would have failed. The Navy-Marine Corps Court of Criminal Appeals evaluated a detailed record from the court-martial on each of the claims Witham presented to it.

Moreover, the Townsend Court made it clear that, where a petitioner asserted that he had not received a full and fair evidentiary hearing in a state court, the district court retained the discretion to make the threshold determination of whether or not a full and fair hearing occurred in the lower courts. The court explained, “[o]ur final category [the circumstance under which a habeas applicant did not receive a full and fair hearing] is intentionally open-ended because we cannot here anticipate all the situations wherein a hearing is demanded. It is the province of the district judges first to determine such necessities in accordance with the general rules.” Id. at 317- 18.

The standard the district courts must apply requires them first to determine whether a factual dispute exists, and second, to determine whether the record conclusively shows that the petitioner is not entitled to relief. Ross , 339 F.3d at 490. Only if the court finds a factual dispute and that the petitioner may be entitled to relief should it grant an evidentiary hearing.


[1] Under military law, the Convening Authority is the military com manding o fficer who is authorized to convene and refer charges to a court-martial. See 10 U .S.C. § 822 (a). In this case, the Convening Autho rity was M ajor General R ay Smith. 1 No. 02-5700 Witham v. United States, et al. 3 4 Witham v. United States, et al. No. 02-5700 granted Witham an evidentiary hearing prior to rejecting his In affirming, the Court of Criminal Appeals fully addressed habeas corpus petition. three of the claims Witham raises before us. The court considered Witham’s claim that the prosecution failed to No certificate of appealability was required for us to hear subpoena witnesses, finding that he had waived it by failing this appeal from the denial of this federally court-martialed


[3] 10 U.S.C. §866(b)(1) provides for automatic review in the Court of W itham actually filed his petition in the district court prior to the Criminal Appeals of any case “in which the sentence, as approved, final disposition of his military appeals, but once his military appeals were extends to . . . dishonorable or bad-conduct discharge, or confinement for exhausted, the Governme nt answered his petition and the proceeding went one year or more.” forward. No. 02-5700 Witham v. United States, et al. 5 6 Witham v. United States, et al. No. 02-5700 The case was referred to a magistrate, who recommended First of all, as the government properly concedes, this court denial of the petition. The magistrate judge explained first may consider this appeal despite the absence of a certificate that the district court’s review of a court-martial proceeding of appealability. As we explain below, Witham’s claim is is limited to a consideration of whether the petitioner’s claims properly brought under 28 U.S.C. §2241 and not under 28 were given a “full and fair consideration by the military U.S.C. § 2255. The federal statutory provision requiring a courts.” The magistrate judge concluded, after a review of the certificate of appealability applies to (A) final orders in record, that the military courts had, in fact, fully and fairly habeas cases where detention arose “out of process issued by considered the claims Witham raised before them. These State court” and (B) final orders under §2255. 28 U.S.C. included his assertions regarding the completeness of the trial §2253(c)(1). Neither category applies here. The statute does record, the Government’s failure to subpoena defense not require a certificate of appealability for appeals from witnesses, and the alleged ineffectiveness of defense counsel. denials of relief in cases properly brought under § 2241, The magistrate judge further found that Witham had failed to where detention is pursuant to federal process. This result raise his remaining two claims before the military courts and may be anomalous, since there is little discernible reason to that Witham had therefore procedurally defaulted those exempt collateral challenges to court-martial convictions from claims. The magistrate judge also recommended that the the general certificate-of-appealability requirement with district court deny Witham a certificate of appealability on the respect to federal court collateral challenges to state or grounds that Witham could not demonstrate that reasonable federal criminal convictions. Nonetheless, the statutory jurists would debate the validity of the district court’s ruling. language imposing the certificate-of-appealability requirement clearly does not extend to cases where, as in