Bond v. Kendall

• Docket Number: 8:22-cv-01509-JRR
• Decision Date: 22 August 2023
• Parties: CODY D. BOND, Plaintiff, v. FRANK KENDALL, et al., Defendants.
• Court: U.S. District Court — District of Maryland

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CODY D. BOND, Plaintiff, v. FRANK KENDALL, et al., Defendants.

No. 8:22-cv-01509-JRR

United States District Court, D. Maryland

August 22, 2023

MEMORANDUM OPINION

JULIE R. RUBIN UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Plaintiff Cody Bond, a former Airman of the United States Air Force brings this action against Defendants Frank Kendall, III, in his official capacity as Secretary of the United States Air Force, Lloyd J. Austin, III, in his official capacity as Secretary of the United States Department of Defense, and the United States of America (collectively, the “Defendants”). (ECF No. 1 ¶¶ 4-7.) He requests that the court vacate his convictions in the underlying court-martial based on alleged errors that occurred throughout the proceedings, order that he be removed from the sex registry, order that Defendant Kendall change the characterization of Plaintiff's service to “general” and his reason for separation as “misconduct.” See generally ECF No. 1.

Pending before the court is Defendants' Motion to Dismiss for Lack of Jurisdiction or, in the Alternative, for Failure to State a Claim. (ECF No. 17; “the Motion.”) The parties' submissions have been reviewed and no hearing is necessary. Local Rule 105.6 (D. Md. 2023). For the reasons set forth herein, the Motion will be granted.

II. BACKGROUND

A. Statutory and Legal Framework

“In the exercise of its authority over the armed forces, Congress has long provided for specialized military courts to adjudicate charges against service members.” Ortiz v. U.S., 138 S.Ct. 2165, 2170 (2018). “Congress has taken great care both to define the rights of those subject to military law, and provide a complete system of review within the military system to secure those rights.” Burns v. Wilson, 346 U.S. 137, 140 (1953). In doing so, “Congress established a Uniform Code of Military Justice applicable to all members of the military establishment.” Id. The Uniform Code of Military Justice (“UCMJ”) established “a hierarchy within the military establishment to review the convictions of courts-martial, to ferret out irregularities in the trial, and to enforce the procedural safeguards which Congress determined to guarantee to those in the Nation's armed services.” Id. at 141.

Within the military justice system, there are three types of courts-martial at the trial court level: summary, special, and general. Willenbring v. U.S., 559 F.3d 225, 227 n.4 (4th Cir. 2009). “A summary court-martial adjudicates minor offenses only, while a special court-martial has jurisdiction over more serious offenses but cannot impose punishment of more than six months' confinement.” Id. “In contrast, a general court-martial [] is entitled to adjudicate all offenses identified under the UCMJ, and may impose any lawful sentence.” Id. The military justice system also includes four appellate courts: “The Court of Criminal Appeals (CCA) for the Army, NavyMarine Corps, Air Force, or Coast Guard.” Ortiz, 138 S.Ct. at 2171. Each appellate court uses “three-judge panels of either officers or civilians [to] review all decisions in which the sentence imposed involves a punitive discharge, incarceration for more than one year, or death.” Id. Above the four appellate courts is the United States Court of Appeals for the Armed Forces (“CAAF”), where an individual may appeal a decision of the CCA. 10 U.S.C. § 941; see 10 U.S.C. § 867(a)(3) (“The [CAAF] shall review the record in . . . all cases reviewed by a [CCA] in which, upon petition of the accused and on good cause shown, the [CAAF] has granted a review.”).

After the CAAF review, the Supreme Court has jurisdiction under 28 U.S.C. § 1259 “to review the CAAF's decisions by writ of certiorari.” Ortiz, 138 S.Ct. at 2171. “Finally, a service member may collaterally attack his or her court-martial conviction in a federal district court, regardless of whether the service member is in custody.” Bergdahl v. United States, No. 21-418 (RBW), 2023 WL 4743707, at *2 (D.D.C. July 25, 2023); see Burns, 346 U.S. at 141 (explaining that “Congress has provided a special post-conviction remedy within the military establishment, apart from ordinary appellate review, whereby one convicted by a court-martial, may attack collaterally the judgment under which he stands convicted”).

B. Factual and Procedural Background^[1]

i. Underlying Events

Plaintiff was an Airman in the United States Air Force. (ECF No. 1 ¶ 4.) In May 2013, he married a woman by the name of “KB.” Id. ¶ 15. In June 2014, Plaintiff engaged in nonconsensual sexual intercourse with KB. Id. ¶¶ 27-30. After the incident, in July 2014, Plaintiff and KB got into an argument due to financial concerns. Id. ¶¶ 32-33. Plaintiff alleges that, during the argument, he asked KB for his firearm,^[2] and when he did not receive the firearm, he left the home, and KB followed him. Id. ¶ 34-35. KB's parents convinced the two to return to the home, and the argument escalated. Id. ¶ 36. Plaintiff alleges that at one point, he stated “you're lucky I don't have my gun right now.” Id. ¶ 37. The argument ended, and KB's parents took Plaintiff and his firearm to the San Antonio Military Medical Center (“SAMMC”). Id. ¶¶ 38-39. While at SAMMC, Plaintiff “made several statements expressing both suicidal ideation and a desire to hurt KB and her family during his initial treatment that night.” Id. ¶ 46.

ii. General Court-Martial Proceedings

On June 25, 2015, at a general court-martial, Plaintiff was charged with two specifications^[3]of sexual assault in violation of Article 120 of the UCMJ, codified at 10 U.S.C. § 920 (“sexual assault charge”);^[4] one specification of making a worthless check by “dishonorably failing to maintain sufficient funds for the payment of a check” in violation of Article 134 of the UCMJ, codified at 10 U.S.C. § 934 (“worthless check charge”);^[5]and three specifications of communicating threats in violation of Article 134 of the UCMJ, codified at 10 U.S.C. § 934 (“communicating threat charge”).^[6] (ECF No. 1 ¶ 57.) Plaintiff pled guilty to the worthless check charge and was tried by a general court-martial with regard to the other charges. Id. ¶ 59. Plaintiff was convicted by court-martial of one violation by sexual assault and two violations by communication of a threat. Id. ¶ 59. Plaintiff was sentenced to reduction to pay grade E-I,^[7]confinement for 10 years, and dishonorable discharge from the service. Id. ¶ 63.

iii. CCA Proceeding

Plaintiff appealed his convictions to the CCA for the Air Force, United States v. Bond, No. ACM 38934, 2017 WL 2895905 (A. F. Ct. Crim. App. June 7, 2017). (ECF No. 1 ¶ 60.) In his appeal, Plaintiff raised six counts of error:

(1) The [Military Judge's (“MJ”)] release of Plaintiff's medical records into evidence [was] in violation of MRE 513;

(2) [T]he second charge of communicating a threat under Article 134 was conditional bravado;

(3) [T]he MJ's reasonable doubt instruction was in error through the language of “must convict” (argument rendered moot by the United States Court of Appeals for the Armed Forces' ruling in United States v. McClour, 76 M.J. 23 (C.A.A.F. 2017) a few months prior to the decision);

(4) Whether KB's victim impact statement's reference to “multiple” sexual assaults during sentencing, when Plaintiff was only convicted of one, was an error;

(5) Whether there was an unreasonable delay between sentencing and post-trial processing; and

(6) Whether Plaintiff's conviction for sexual assault was legally and factually sufficient.

(ECF No. 1 ¶ 60.) The CCA set aside Plaintiff's conviction for one of the communicating threat charges and upheld the balance of Plaintiff's convictions. Id. ¶ 61.

iv. CAAF Proceeding

After the CCA proceeding, Plaintiff then appealed to the CAAF. United States v. Bond, 77 M.J. 196 (C.A.A.F. 2018).^[8] On January 21, 2018, the CAAF denied review without an opinion. Id. Subsequently, Plaintiff petitioned the CAAF again; on July 28, 2020, the CAAF dismissed the petition ruling: “[o]n consideration of the petition for extraordinary relief in the nature of writ of habeas corpus, it is ordered that the petition is dismissed.” Bond v. United States, 80 M.J. 292 (C.A.A.F. 2020).

v. Habeas Petition

On September 14, 2020, Plaintiff filed a habeas petition pursuant to 28 U.S.C. § 2241 in the United States District Court for the Southern District of California, Bond v. Kirk, No. 20-cv- 1816 DMS (JLB), 2021 WL 2038315 (S.D. Cal. May 21, 2021).^[9]In that case, Plaintiff raised four claims:

First, he claims the finding of sexual assault is not supported by sufficient evidence based on newly discovered evidence. Second, Plaintiff contends there was insufficient evidence to support the finding of communicating a threat. Third, he argues the judge committed error in allowing KB to testify about multiple “assaults” rather than the one assault for which he was convicted. Fourth, Plaintiff asserts the judge committed error in his instructions to the members of the court-martial.

2021 WL 2038315, at *2. The court denied Plaintiff's request for habeas relief, explaining that:

Plaintiff's second and third claims were presented to the [United States Air Force Court of Criminal Appeals (“AFCCA”)],^[10] which rejected the claims on the merits after full and fair consideration. The AFCCA also rejected Plaintiff's fourth claim alleging instructional error on the ground Plaintiff's trial counsel did not object to the instruction. Although that was not a ruling on the merits of the claim, this Court cannot say the military courts did not give the claim full and fair consideration.

This leaves only Plaintiff's first claim, which the [Office of the Judge Advocate (“OJAG”)]^[11]denied because it was untimely. That ruling created a procedural bar against

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