Latorre rising aborted

Some may remember United States v. Latorre, No. ACM 34670 (A.F. Ct. Crim. App. 3 April, 2002), 64 M.J. 80 (C.A.A.F. 2006).

The case had something of a tortured appellate history, ultimately leading to a habeas corpus petition in federal court.  See Background, at p.1.

Like the mythical Phoenix, Latorre sought to get some lift from the U.S. District Ct. for the Northern District of Ohio, in Latorre v. FCI Elkton.[1]

In Ehlers v. Warden, [1] the court sets out the common understanding of federal review of a court-martial.

“[T]he scope of a habeas corpus review of a military conviction is more narrow than a habeas corpus review of a conviction by a civil court.” Swisher v. United States,354 F.2d 472, 475 (8th Cir. 1966). “In military habeas corpus cases, . . . it would be in disregard of the statutory scheme if the federal civil courts failed to take account of the prior proceedings—of the fair determinations of the military tribunals after all military remedies have been exhausted.” Burns, 346 U.S. at 142. Therefore, it is not the duty of the civil courts to re-examine and re-weigh each item of evidence or events which tend to prove or disprove one of the allegations in the applications for habeas corpus. Id. at 144. “It is the limited function of the civil courts to determine whether the military have given fair consideration to each of these claims.” Id. In other words, federal civil courts “must defer to the decision of the military court if that court has given fair consideration to the claims advanced in the habeas petition.”Gilliam v. Bureau of Prisons, No. 99-1222, 2000 WL 268491, at *2 (8th Cir. Mar. 10, 2000) (citing Burns, 346 U.S. at 142-44). “[W]here an issue is adequately briefed and argued before the military courts the issue has been given fair consideration, even if the military court disposes of the issue summarily.” Allen v. U.S. Air Force, 603 F.3d 423, 431 (8th Cir. 2010) (quoting Roberts v. Callahan, 321 F.3d 994, 997 (10th Cir. 2003)).

The Dist. Ct. finds that, “In his Petition, he asserts that his trial [defense] counsel [2] was ineffective during sentencing because he produced only written statements from mitigation witnesses but would not call them to testify. He claims this led to an unfairly long sentence. For the reasons set forth below, the Petition is denied and this action is dismissed.”  Of interest in the court’s opinion is this observation.

While “full and fair consideration” is the universal standard for military habeas petitions, the Federal Circuits have not developed a uniform analysis to determine what constitutes “full and fair consideration” by the military courts.

After a review of cases the court went on to suggest that:

In Lips [Lips v. Commandant, 907 F.2d 808  (10th Cir. 1993)], the Tenth Circuit applied a four-part test to help determine whether the federal court may consider the merits of a military habeas case. See Lips, 997 F.2d at 811.See also Dodson v. Zelez, 917 F.2d 125, 1252-53 (10th Cir. 1990) (adopting the four-part test from the Fifth Circuit’s opinion in Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911 (1976)); see also Roberts v. Callahan, 321 F.3d 994, 997 (10th Cir. 2003) (clarifying that the four-part test is meant to aid courts in applying Burns rather than serve as a separate hurdle to be met before review of a military court decision). In the Tenth Circuit, before reaching the merits of any claim, the federal habeas court must consider four factors:

(1) the asserted error is of substantial constitutional dimension;

(2) the issue is one of law rather than of disputed fact already determined by the military tribunal;

(3) there are no military considerations that warrant different treatment of constitutional claims; and

(4) the military courts failed to give adequate consideration to the issues involved or failed to apply proper legal standards.

Lips, 997 F.2d at 811. While each consideration is relevant, the fourth is the most important.

The bottom line from Latorre, is and I believe remains the very significant hurdle that:

To overcome his waiver and obtain habeas review, Petitioner must demonstrate cause excusing the procedural default and prejudice resulting from the error. Id. (citing Wolff v. United States, 737 F.2d 877 (10th Cir. 1984)).

Establishing that cause is a very high hurdle indeed.  It should be noted that a denial of a petition by C.A.A.F. is not sufficient cause.  And another consequence when C.A.A.F. denies a petition, addressed frequently and elsewhere (and here), is that the appellant is denied access to the U.S. Supreme Court for direct review.  Congressional efforts to change this discriminatory practice have been unavailing.


[1] It is not unusual for military prisoners to seek habeas corpus relief in federal court alleging various improprieties in their court-martial conviction and sentence.  Most of the litigation arises in the federal court with jurisdiction over the USDB, which is effectively the Tenth Circuit court of appeals.  Latorre it appears, like others, has been transferred to a federal civilian facility to serve his sentence.  There is a procedure where this may happen at the prisoners request or through an administrative decision of the USDB in concert with the Federal Bureau of Prisons.  See e.g., Ehlers v. Warden, filed in the U.S. Dist. Ct. for Minn.

On August 21, 2007, a military judge sitting as a general court-martial convicted Petitioner of (1) one specification of sodomy with a child under the age of 12 years by force and without consent, in violation of Art. 125, Uniform Code of Military Justice (“UCMJ”), 10 U.S.C. § 925; (2) one specification of assault consummated by a battery, in violation of Art. 128, UCMJ, 10 U.S.C. § 928; and (3) one specification of indecent liberties with a child under the age of 16 years, in violation of Art. 134, UCMJ, 10 U.S.C. § 934. Response to Pet. for Writ of Habeas Corpus Ex. 1, ECF No. 10. Petitioner was sentenced to confinement for a period of 25 years, forfeiture of all pay and allowances, reduction to pay grade E-1, and a dishonorable discharge. Id.

[2] A word of caution here.  It can be confusing to civilian practitioners and judges.  In the military, the Trial Counsel is the prosecutor.  But in the civilian world reference to trial counsel is a reference to the defense counsel.  The confusion can be exacerbated when a trial counsel unwittingly calls a civilian and introduces themselves as “trial counsel” in a case.  The civilian attorney thinks they are the defense.

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