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Erickson v. JT Shartle

United States District Court, D. Arizona

April 30, 2019

Kelly Erickson, Petitioner,
v.
JT Startle, Respondent.

          ORDER

          Jennifer G. Zipps, Judge

         Pending 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. (Doc. 32.)

         Upon 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 without merit.

         STANDARD OF REVIEW

         This 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).

         DISCUSSION[1]

         With 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.”[2] 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.

         Claim 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 merit.

         Erickson 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.

         The 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.

         In 1992, Congress[3] 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), [4] 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 former status.

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 ...


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