Lewis v. United States

• Decision Date: 25 January 2021
• Docket Number: No. 19-56475,19-56475
• Citation: Lewis v. United States, 985 F.3d 1153 (9th Cir. 2021)
• Parties: James R. LEWIS, Senior Airman (E-4), U.S. Airforce, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

985 F.3d 1153

James R. LEWIS, Senior Airman (E-4), U.S. Airforce, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 19-56475

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 8, 2020 Pasadena, California

Filed January 25, 2021

Brian L. Mizer (argued) and Jarett Merk, Air Force Appellate Defense Division, United States Air Force, Joint Base Andrews, Maryland, for Petitioner-Appellant.

Hank D. Nguyen (argued), Litigation Attorney, Air Force Legal Operations Agency, Andrews Air Force Base, Maryland; Robert S. Brewer Jr., United States Attorney; Katherine L. Parker, Chief, Civil Division; David B. Wallace, Assistant United States Attorney; United States Attorney's Office, San Diego, California; for Respondent-Appellee.

Before: Sidney R. Thomas, Chief Judge, Diarmuid F. O'Scannlain, Circuit Judge, and David A. Ezra,^* District Judge.

O'SCANNLAIN, Circuit Judge:

We must decide whether a rule announced by the United States Court of Appeals for the Armed Forces applies retroactively to collateral attacks on court-martial convictions which became final prior to its announcement.

I

Senior Airman James Lewis, United States Air Force, brings this habeas petition in which he challenges his 2012 court-martial convictions for one count of aggravated sexual assault and two counts of wrongful sexual conduct.

A

The events underlying Lewis's court-martial convictions occurred between 2010 and 2012, while he was stationed at Barksdale Air Force Base. During his time at Barksdale, Lewis committed or allegedly committed a series of sexual offenses against four young female Airmen who were also stationed there.

In late 2010, Lewis allegedly raped two female Airmen—one, while she was asleep, the other, while she was too inebriated to give legally valid consent. In July 2011, Lewis allegedly groped a third female Airman while he believed she was asleep. In June 2012, Lewis allegedly groped a fourth female Airman, then allegedly masturbated in front of her, after she had told Lewis to leave her bedroom.

B

Lewis was charged with two specifications of aggravated sexual assault, two specifications of abusive sexual contact, and one specification of indecent conduct, all in violation of Article 120 of the Uniform Code of Military Justice ("UCMJ"), 10 U.S.C. § 920. At his 2012 court-martial, Lewis pleaded not guilty to all five specifications.

Before trial, Lewis filed a motion to sever, arguing that it would be manifestly unjust to try him for crimes against four separate victims in a single court-martial and asking for four separate trials. The military judge denied the motion and proceeded to try all five specifications together.

At Lewis's court-martial, the military judge instructed jurors that under Military Rule of Evidence (" M.R.E.") 413, they may consider evidence of any one charged sexual offense (after determining by a preponderance that such offense had occurred) as showing Lewis's propensity to have committed any of the other charged sexual offenses.¹ At the time, such instruction was the pattern instruction provided in the official Military Judge's Benchbook ("Benchbook"). See Dep't of the Army, Pam. 27-9, Legal Services, Benchbook ch. 7, para. 7-13-1 (2006).

The jury, having been so instructed, then found Lewis guilty of one count of aggravated sexual assault, against "Airman F," and two counts of wrongful sexual conduct, one each against "Airman Y" and "Airman B." The jury acquitted Lewis of aggravated sexual assault against "Airman D" and indecent conduct against "Airman B." The military judge sentenced Lewis to forfeit all pay and allowances, to be reduced to the grade of E-1 (from his prior grade of E-4), to be confined for nine years, and to be dishonorably discharged.

Lewis then initiated the process of direct appeal in the military courts: First, he submitted "clemency matters" to the "convening authority" of the underlying court-martial, which approved the court-martial's findings and sentence.

In 2014, the Air Force Court of Criminal Appeals ("AFCCA") affirmed the findings and sentence in Lewis's court-martial. See United States v. Lewis , No. ACM 38321, 2014 WL 5511094, at *9 (A.F. Ct. Crim. App. Oct. 9, 2014).

Lewis then filed a Petition for Review in the Court of Appeals for the Armed Forces ("CAAF"). On February 10, 2015, the CAAF denied review, at which time Lewis's conviction became final for purposes of the retroactivity question before us. Loving v. United States , 64 M.J. 132, 136–38 (C.A.A.F. 2006).

In an unrelated 2016 case—which is to say, a year after Lewis's conviction had become final—the CAAF held unconstitutional the Benchbook's pattern jury instruction on M.R.E. 413, reasoning that it violated the presumption of innocence and basic due process. United States v. Hills , 75 M.J. 350, 353, 356 (C.A.A.F. 2016) ; see also United States v. Hukill , 76 M.J. 219, 222 (C.A.A.F. 2017) (clarifying Hills ).

In 2017, Lewis submitted a Petition for Extraordinary Writ in the Nature of a Writ of Coram Nobis to the AFCCA. Lewis contended that under Hills and Hukill , the military judge in his case had committed constitutional error in permitting evidence of the charged offenses to be used for propensity and in instructing the jury accordingly. Lewis v. United States , 76 M.J. 829, 832 (A.F. Ct. Crim. App. 2017), writ-appeal denied , 77 M.J. 106 (C.A.A.F. 2017). Lewis sought a rehearing or, in the alternative, a new appellate review of his convictions. Id . The AFCCA denied Lewis's coram nobis petition on two separate grounds: First, the AFCCA held that Lewis's collateral attack in military court was barred while he was still serving his sentence and therefore eligible to file a habeas petition in federal district court. Id. at 834. Second, the AFCCA held that the new rule announced in Hills was not retroactive. Id. at 834–36.

Lewis subsequently filed this federal habeas petition in the Southern District of California. Lewis again argued that the M.R.E. 413 propensity instruction given at his court-martial was in violation of the Fifth Amendment as interpreted in Hills and Hukill . He additionally argued that he had been denied effective assistance of counsel on direct appeal, in violation of the Sixth Amendment, when his appellate counsel failed to challenge the constitutionality of such instruction before the AFCCA in 2014.

The district court denied Lewis's habeas petition without prejudice, ruling that the Hills rule does not apply retroactively, that any Hills error would have been harmless in any event, and that Lewis did not receive ineffective assistance of counsel ("IAC") on direct appeal.

Lewis timely appealed to this Court.

II

Lewis here argues that the Benchbook's pattern jury instruction on M.R.E. 413 propensity inferences, a version of which was given at his court-martial, was invalidated as unconstitutional by the holdings in Hills and Hukill . The United States does not dispute that. Yet of course, Lewis's conviction occurred in 2012 and became "final" in February 2015—which, as he concedes, was 503 days before the CAAF announced its holding in Hills . Accordingly, the United States argues that the Hills rule cannot be applied retroactively to Lewis's 2012 court-martial. We therefore ask:

Is the Hills rule entitled to retroactive application?

A

Retroactivity questions are governed by Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion).² The general rule "[u]nder ... Teague "—subject only to "narrow exceptions" —is that "federal habeas corpus petitioners may not avail themselves of new rules of criminal procedure." Beard v. Banks , 542 U.S. 406, 408, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004). Because Lewis concedes that his conviction became "final" before Hills was announced, we must first determine whether the Hills rule was in fact "new." See id at 411, 124 S.Ct. 2504. Second, we must determine whether the Hills rule, if "new," falls under either of the "two exceptions" to Teague 's principle of non-retroactivity. See id.

B

Did Hills "actually" announce a "new" rule when it held that the use of charged sexual offenses to show propensity to commit other charged sexual offenses "violated [the] presumption of innocence and right to have all findings made clearly beyond a reasonable doubt," as guaranteed by the Fifth Amendment? 75 M.J. at 356. More specifically, was the Hills rule "dictated by precedent" or would it have been "apparent to all reasonable jurists" that Hills was the logical extension of precedents already on the books in February 2015? Lambrix v. Singletary , 520 U.S. 518, 527–28, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997) ; see United States v. Chan , 792 F.3d 1151, 1156 (9th Cir. 2015).

Our first clue is the CAAF's own statement that the question presented in Hills was a matter of "first impression." Hills , 75 M.J. at 353.

Further, as noted by the AFCCA in its denial of Lewis's coram nobis petition, see Lewis , 76 M.J. at 835, the pre- Hills legal landscape on M.R.E. 413 was governed primarily by United States v. Wright , in which the CAAF upheld M.R.E. 413 against a facial challenge to its constitutionality, 53 M.J. 476, 483 (C.A.A.F. 2000). Nine years later, the CAAF extended the holding of Wright , suggesting that M.R.E. 413 could be constitutionally applied to admit evidence of charged as well as uncharged offenses of sexual assault to show propensity. See United States v. Burton , 67 M.J. 150, 152 (C.A.A.F. 2009). "Moreover," as the AFCCA observed, "in the same year that [Lewis's] case became final, three [Military] Courts of Criminal Appeals specifically held that evidence of charged offenses of sexual assault could properly be used under [ M.R.E.] 413, only to be overruled by Hills the following year." Lewis , 76 M.J. at 835 (citing United States v. Barnes , 74 M.J. 692, 697–98 (A. Ct. Crim. App. 2015) ; United States v. Bass , 74 M.J. 806, 815 (N-M. Ct. Crim. App. 2015) ; United States v. Maliwat , No. ACM 38579, ...