Bork v. Ely Infante

• Docket Number: CA 9:23-cv-01073-JFA-MHC
• Decision Date: 25 October 2023
• Parties: Timothy Bork, Petitioner, v. Ely Infante, Commander, United States Navy Commandant, Naval Consolidated Brig Charleston, Respondent.
• Court: U.S. District Court — District of South Carolina

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Timothy Bork, Petitioner, v. Ely Infante, Commander, United States Navy Commandant, Naval Consolidated Brig Charleston, Respondent.

CA No. 9:23-cv-01073-JFA-MHC

United States District Court, D. South Carolina

October 25, 2023

REPORT AND RECOMMENDATION

Molly H. Cherry United States Magistrate Judge

Petitioner Timothy Bork (“Petitioner”), who is currently confined at the Naval Brig in Charleston, South Carolina petitions the court for a writ of habeas corpus under 28 U.S.C. § 2241. ECF No. 1. Respondent Commander Ely Infante (“Respondent”) filed a Motion to Dismiss or, in the alternative, for Summary Judgment (“Motion”). ECF No. 12. Petitioner filed a Response in Opposition. ECF No. 13. The Motion is now ripe for review.

Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), all pretrial proceedings in this matter have been assigned to the undersigned. Because the Motion is a dispositive motion, this Report and Recommendation is entered for review by the District Judge. For the reasons that follow, the undersigned recommends that Respondent's Motion be granted, and the Petition be dismissed.

I. BACKGROUND

The procedural history as described by Respondent has not been disputed by Petitioner in his Response and is set forth as follows. See ECF No. 12-1 at 2. Petitioner is a retired U.S Navy Hospital Corpsman First Class who transferred to the Navy Fleet Reserve in 2013. As a member of the Navy Fleet Reserve, Petitioner remained on retainer pay with the Navy and was expected to maintain readiness for active duty, comply with certain travel and reporting requirements, and participate in training (if and as required). He is currently confined at the Naval Consolidated Brig in Charleston, South Carolina, for sexual offenses against a child.

In May 2020, a general court-martial convened at Naval Base San Diego, California, and sentenced Petitioner to six years' confinement and a dishonorable discharge after he pleaded guilty to one specification of sexually assaulting a child and four specifications of sexually abusing a child. United States v. Bork, No. 202000191, 2022 WL 175246, at *1 (N-M. Ct. Crim. App. Jan. 20, 2022), review denied, 82 M.J. 370 (C.A.A.F. 2022). Specifically, Petitioner violated Article 120b of the Uniform Code of Military Justice, codified at 10 U.S.C. § 920b, for discussing, viewing, and engaging in various sexual activities with a fifteen-year-old child while in Japan. See Id. Petitioner appealed his conviction to the U.S. Navy-Marine Corps Court of Criminal Appeals, which affirmed his conviction in part because binding precedent held that “members of the Fleet Reserve have a sufficient current connection to the military such that Congress may constitutionally subject them to [the Uniform Code of Military Justice] jurisdiction.” Id. (citing United States v. Begani, 81 M.J. 273, 281 (C.A.A.F. 2021), cert. denied, 142 S.Ct. 711 (2021)). The U.S. Court of Appeals for the Armed Forces (“CAAF”) denied Petitioner's petition for review. United States v. Bork, 82 M.J. 370 (C.A.A.F. 2022).

In March 2023, after exhausting his military appeals, Petitioner filed the current Petition in this Court. ECF No. 1. The Petition presents two grounds for relief:

GROUND ONE: The court-martial was barred from exercising subject-matter jurisdiction as to Charge I, Specifications 2 and 3 because the U.S. Japan Status of Forces Agreement (“SOFA”) assigns those offenses to a Japanese court, which Japan did not waive.

GROUND TWO: Exercise of court-martial jurisdiction over a retiree is unconstitutional.

ECF No. 1-1 at 6. Petitioner asks that this Court “to grant his application for a writ of habeas corpus, dismiss the findings of the court-martial for jurisdictional error, and order his immediate release.” ECF No. 1-1 at 7.

II. LEGAL STANDARDS

Respondent moves for dismissal of the § 2241 Petition pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or, in the alternative, for Summary Judgment pursuant to Rule 56. As this is a Petition contesting a military court's decision, special considerations limit this Court's review.

A. Rule 12(b)(6)

“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)); see Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of [affirmative] defenses.”). Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), such that the defendant will have “fair notice of what the claim is and the grounds upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'” Robinson v. Am. Honda Motor Co., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

When addressing a motion to dismiss under Rule 12(b)(6), a court generally may not look outside the facts contained within the complaint, unless it treats the motion to dismiss as a motion for summary judgment. Anand v. Ocwen Loan Servicing, 754 F.3d 195, 198 (4th Cir. 2014); Fed.R.Civ.P. 12(d). However, a court “may properly consider documents attached to a complaint or motion to dismiss ‘so long as they are integral to the complaint and authentic.'” Anand, 754 F.3d at 198 (citation omitted). Additionally, a court may take judicial notice of “matters of a public record.” Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citation omitted).

B. Summary Judgment Standard

Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.

Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.

C. Federal Courts' Habeas Review of Court-Martial Decisions

A federal court with jurisdiction over habeas applications from persons confined by civil courts has jurisdiction over habeas applications from persons confined by military courts. Burns v. Wilson, 346 U.S. 137, 139 (1953). However, in reviewing military habeas applications, the scope of matters open for review by a federal court is narrow. Id.; see Willenbring v. United States, 559 F.3d 225, 232 (4th Cir. 2009) (“It is clear [ ] that a federal court reviewing a military habeas petition is normally not at liberty to revisit a military court's evidentiary rulings or findings.” (citation omitted)). This is because the military has its own independent criminal justice system governed by the Uniform Code of Military Justice, 10 U.S.C. §§ 801-940, and the Manual for Courts-Martial (“MCM”), which is all-inclusive and provides, inter alia, for courts-martial, post-trial clemency, appellate review, and, under some circumstances, certiorari review in the Supreme Court of the United States. Lips v. Commandant, U.S. Disciplinary Barracks, 997 F.2d 808, 810 (10th Cir. 1993); see also Burns, 346 U.S. at 140-45. Accordingly, when federal courts review court-martial convictions, special considerations are involved “[b]ecause of the independence of the military court system.” Lips, 997 F.2d at 810.

Consequently,...