United States District Court, D. Arizona
Jennifer G. Zipps, Judge
before the Court is Magistrate Judge Lynnette C.
Kimmins's Report recommending that the Court dismiss
Petitioner Kelly Erickson's Petition for Writ of Habeas
Corpus for lack of jurisdiction. (Doc. 26.) The Magistrate
Judge concluded that this Court lacks jurisdiction over
Erickson's claims because the military courts fully and
fairly considered his claims, which are
constitutionally-based. (Doc. 26.) Petitioner filed an
objection to the Report, asserting the Magistrate Judge erred
because: (1) Supreme Court precedent holds that habeas corpus
relief is available if the military court exceeds its
jurisdiction; and (2) jurisdiction exists in this Court to
review court martial convictions for constitutional error.
(Doc. 29.) The government filed a response to the objection.
independent consideration of the record and review of the
applicable law, this Court will overrule the objections to
the recommendation and dismiss the Petition. The Court
concludes that it lacks jurisdiction to review Erickson's
constitutional claims of ineffective assistance of counsel
and double jeopardy. The Court further concludes that it has
jurisdiction to review Erickson's claim that the
court-martial lacked jurisdiction, but that the claim is
Court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1)(C). “[T]he
district judge must review the magistrate judge's finding
and recommendations de novo if objection is made,
but not otherwise.” United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc) (emphasis in original). District courts are not
required to conduct “any review at all . . . of any
issue that is not the subject of an objection.”
Thomas v. Arn, 474 U.S. 140, 149 (1985). See
also 28 U.S.C. §636(b)(1); Fed.R.Civ.P. 72;
Reyna-Tapia, 328 F.3d at 1121; Schmidt v.
Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003).
the exception of the Supreme Court's limited certiorari
jurisdiction, Article III courts lack the authority to review
directly court-martial determinations. Davis v.
Marsh, 876 F.2d 1446, 1448 (9th Cir. 1989) (citing
Schlesinger v. Councilman, 420 U.S. 738, 746
(1975)). Questions relating to a court-martial's
jurisdiction, however, are always open to collateral attack.
Givens v. Zerbst, 255 U.S. 11, 19 (1921).
Previously, habeas review of court-martial proceedings was
limited to the single inquiry of jurisdiction. See Hiatt
v. Brown, 339 U.S. 103, 111 (1950) (citing United
States v. Grimley, 137 U.S. 147, 150 (1890)). However,
the Supreme Court extended such review in Burns v.
Wilson, 346 U.S. 137, 142 (1953), to include
constitutional claims that the military courts had not
considered “fully and fairly.” Thus, if a
military court manifestly refuses to consider constitutional
claims, the federal district court also has power to review
the claims de novo. Id. A petitioner is
responsible for presenting the military courts a fair
opportunity to address his claims in the first instance. If a
petitioner fails to raise an issue within the military
courts, that issue is deemed waived absent a showing of cause
and prejudice. Davis, 876 F.2d at 1448.
1: Lack of Jurisdiction of the Military Court
Erickson objects to the Magistrate Judge's conclusion
that the Court cannot review his claim that the military
court lacked jurisdiction to try him. This Court agrees with
Erickson that it has the power to evaluate a challenge to the
jurisdiction of the military court. As stated above,
questions relating to a court-martial's jurisdiction are
always open to collateral attack. Givens, 255 U.S.
at 19. The Court, however, finds that the claim is without
asserts that the Air Force court-martial lacked jurisdiction
to prosecute him because the offenses at issue were committed
during the time that he was enlisted in the Army. He contends
that when he left the Army and joined the Air Force, the
court-martial lost jurisdiction to try him. Erickson cites
United States ex rel. Hirshberg v. Cooke, 336 U.S.
210 (1949) in support. In Hirshberg, the Supreme
Court held that there was no statutory authority giving
jurisdiction to a Navy court-martial to try an enlisted
servicemember for an offense committed during the
servicemember's earlier Navy enlistment from which he had
been honorably discharged-even though he had reenlisted in
the Navy the day after being discharged and was serving under
the reenlistment at the time the jurisdiction of the military
court was asserted. Id. at 217-218.
Hirshberg Court's conclusion was based on its
examination of the language in Article 8 (Second) of the
Articles for the Government of the Navy, 34 U.S.C. §
1200, art. 8, subd. 2, as that statute existed in 1947, when
the servicemember was charged. Id. at 213-217. At
that time, the statute provided for limited court-martial
jurisdiction and read, in relevant part, that “such
punishment as a court-martial may adjudge may be inflicted on
any person in the Navy, ” which the Supreme Court read
to allow court-martial jurisdiction only over persons
currently in the Navy who had committed wrongful acts during
the current enlistment. Id. at 212-13. The Supreme
Court reasoned: “we cannot construe [the statute] as
permitting the Navy to extend its court[-]martial
jurisdiction beyond the limits Congress had fixed.”
Id. at 218.
1992, Congress amended the court-martial statute. 10
U.S.C. § 803. The amendment specifically addresses the
jurisdictional limitation found in Hirshberg, and
re-fixes the limits of court-martial jurisdiction to include
court-martial jurisdiction for actions committed during a
prior military enlistment if that person is reenlisted at the
time the court-martial exerts its jurisdictional power.
Id; see Willenbring v. Neurauter, 48 M.J. 152
(C.A.A.F. 1998) (discussing Congress's displeasure with
Hirshberg), overruled on other grounds by United
States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018). As
amended, the relevant statutory language, which governs the
court-martial in this case, provides:
(a) Subject to section 843 of this title
(article 43),  a person who is in a status in
which the person is subject to this chapter and who committed
an offense against this chapter while formerly in a status in
which the person was subject to this chapter is not relieved
from amenability to the jurisdiction of this chapter for that
offense by reason of a termination of that person's
10 U.S.C. § 803. In light of this amendment,
Hirshberg does not control. Moreover, it is clear
from the amendment that the Air Force had jurisdiction to
court-martial Erickson, a member of the Air Force, for