Factual Background And Procedural History The background facts and lengthy procedural history of petitioner's court-martial conviction are set forth in the written opinions of two civilian courts in an earlier habeas corpus action by Mr. Hennis. In May 1985, Kathryn Eastburn and two of her three young daughters were brutally murdered in their home. Hennis v. Hemlick, No. 09-HC-2169-BO (D. N.C. Mar. 16, 2010)(unpublished)("Hennis DNC"). At the time of the murders, Hennis was on activeduty stationed at Fort Bragg as a Sergeant (E-5). Id. at 2. A few days before the murders, he had purchased a dog from the Eastburns. The Eastburn home was less than a mile from the gate to Fort Bragg. The husband and father of the victims was a captain in the Air Force who was on temporary assignment out of state at the time of the murders. On May 16, 1985, a week after the murders, Mr. Hennis was arrested by the County Sheriff's Office. Id. The Fourth Circuit in Hennis set forth additional background facts:
On July 4, 1986, while serving as an enlisted Army soldier stationed at Fort Bragg, North Carolina, Hennis was convicted in North Carolina Superior Court on one count of rape and three counts of premeditated murder, and, thereafter, sentenced to death. On October 6, 1988, the Supreme Court of North Carolina reversed his conviction and ordered a new trial. SeeState v. Hennis, 323 N.C. 279, 372 S.E.2d 523 (1988).
On April 19, 1989, at retrial, Hennis was acquitted of all charges. Thereafter, Hennis resumed his enlisted service in the Army. Pertinent to his contentions in this matter, it is undisputed that Hennis was issued a discharge from the Army on June 12, 1989 and reenlisted in the Army one day later, on June 13, 1989. Hennis retired from the Army on July 13, 2004.
In 2006, a cold case review, conducted by the North Carolina State Bureau of Investigation, revealed that preserved DNA evidence, obtained from a vaginal swab of the victim that Hennis had been accused of raping and murdering in connection with his 1986 and 1989 trials, matched the DNA profile of Hennis. In response to that revelation, on September 14, 2006, the Army recalled Hennis from retired status to active duty to face court-martial charges for triple murder.
Hennis v. Hemlick, 666 F.3d 270, 271 (4th Cir. 2012).
Mr. Hennis sought various forms of collateral relief in the military courts. The Fourth Circuit described his pre-trial efforts as follows:
On December 21, 2007, before commencement of his court-martial, Hennis filed a motion before the military trial court seeking a dismissal of all military charges, arguing that the Army lacked jurisdiction over him. On April 28, 2008, the military trial court denied Hennis's motion to dismiss.
Thereafter, on May 15, 2008, pursuant to the All Writs Act, 28 U.S.C. § 1651, Hennis filed interlocutory petitions for a writ of mandamus, writ of habeas corpus, and writ of prohibition with the Army Court of Criminal Appeals. Hennis'spetitions asserted jurisdictional challenges to the Army's court-martial authority and requested enjoinment of the court-martial proceedings. On May 19, 2008, the Army Court of Criminal Appeals issued an order staying the court-martial proceedings, but on June 25, 2008, it denied Hennis's petitions.
On July 15, 2008, Hennis submitted a writ-appeal petition to the military's highest court, the Court of Appeals for the Armed Forces (formerly known as the United States Court of Military Appeals). On September 26, 2008, the Court of Appeals for the Armed Forces denied Hennis's petition without prejudice to seek review of his claims, including his challenges to the Army's jurisdiction, within the military justice system's appellate review process afforded by 10 U.S.C. §§ 866, 867. On October 1, 2008, the Army Court of Criminal Appeals lifted the stay of Hennis's court-martial proceedings.
Hennis, 666 F.3d at 271-72.
Mr. Hennis filed his first civilian-court § 2241 petition in December 2009 in the United States District Court for the Eastern District of North Carolina, Western Division. He had no conviction or death sentence to attack, but sought a stay of his impending general court martial and "emergency relief." See Hennis DNC. The Fourth Circuit summarized the lower court's disposition of Mr. Hennis's § 2241 petition:
The district court, however, did not reach the merits of this matter because it determined that Hennis's petition for a writ of habeas corpus should be dismissed on the basis of the abstention principles set forth in Councilman, 420 U.S. 738, 95 S.Ct. 1300. In Councilman, the Supreme Court held that "when a serviceman charged with crimes by military authorities can show no harm other than that attendant to resolution of his case in the military court system, the federal district courts must refrain from intervention, by way of injunction or otherwise." Id. at 758, 95 S.Ct. 1300.
On March 16, 2010, the district court dismissed Hennis's petition for a writ of habeas corpus without prejudice.
Hennis, 666 F.3d at 273-274. Petitioner's court-martial commenced on March 2, 2010. The Circuit Court summarized petitioner's claims as follows:
On December 28, 2009, Hennis initiated this matter by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Eastern District of North Carolina. Hennis argued that his discharge from the Army (i.e., his "break in service" between June 12, 1989 and June 13, 1989)deprived the Army of jurisdiction to court-martial him for conduct that occurred before June 13, 1989. Hennis argued that the Supreme Court's decision in Hirshberg v. Cooke, 336 U.S. 210, 69 S.Ct. 530, 93 L.Ed. 621 (1949), was dispositive on the issue of the Army's lack of jurisdiction. * * *
In essence, the rule recognized in Hirshberg is that once a servicemember is discharged, that servicemember cannot be brought to a court-martial for any crimes that occurred before the discharge ("Hirshberg Rule"). Although the contours of this rule have since changed (footnote omitted), it is undisputed that the Hirshberg Rule applied to Hennis and the Army in June 1989.
On January 28, 2010, the Army moved to dismiss Hennis's petition for a writ of habeas corpus or, in the alternative, for summary judgment. In support of its motion, the Army cited, among other decisions, the decision by the Court of Appeals for the Armed Forces in United States v. Clardy, 13 M.J. 308 (C.M.A.1982), which held that "where a servicemember is discharged prior to the expiration of his [service contract ("ETS Date")] for the specific purpose of immediate reenlistment, ... he can be tried for offenses committed in the earlier enlistment." Id. at 310 (footnote omitted) ("Clardy Exception"). . . .
Under the terms of the Clardy Exception, "a 'short-term discharge'—i.e., a discharge given to a servicemember even before he completes his obligated term of service," Clardy, 13 M.J. at 310 n. 4, does not deprive the military of jurisdiction because the servicemember never enters "civil status" and, consequently, never has a "break in service" for purposes of the Hirshberg Rule.
Critically, a service member's ETS Date must generally remain unlapsed at the time of discharge for the Clardy Exception to apply to the Hirshberg Rule. If the ETS Date has already lapsed at the time of discharge, the Clardy Exception does not apply. . . .
Here, based on the Clardy Exception to the Hirshberg Rule, the Army argued that it never lost jurisdiction because, among other reasons, Hennis executed a reenlistment contract on June 1, 1989 confirming that: (1) Hennis's discharge on June 12, 1989 was for the purpose of reenlistment on June 13, 1989; and (2) Hennis's ETS Date (i.e., date that his previous enlistment was scheduled to end) would not have lapsed until June 17, 1989. By contrast, Hennis argued that, on several alternative grounds, his ETS Date lapsed before his June 12, 1989 discharge. Thus, there was (and remains) an open factual dispute between the parties regarding the date on which Hennis's previous term of enlistment was to end.
Hennis, 633 F.3d at 272-73. The United States Court of Appeals for the Fourth Circuit affirmed Hennis DNC in January of 2012. The United States Supreme Court denied Mr. Hennis's petitionfor writ of certiorari on May 14, 2012.
Mr. Hennis has meticulously listed five "petitions" that he filed in the military courts in 2013 and 2014 following his court-martial convictions. Three of these "post-trial" petitions were filed in the Army Court of Criminal Appeals ("ACCA") and two in the Court of Appeals for the Armed Forces ("CAAF"). These military habeas corpus writs sought extraordinary relief "attacking jurisdiction." All were denied without prejudice. Mr. Hennis was directed to "raise at normal appeals (sic)." Petitioner states that the military appellate courts "did not even require government to respond" and never "addressed or discussed" his underlying jurisdictional issues.
