Loving v. United States

• Court: United States Court of Appeals, Armed Forces Court of Appeals
• Decision Date: 17 July 2009
• Docket Number: 06-8006
• Citation: Loving v. United States, 06-8006 (C.A.A.F. Jul 17, 2009)
• Parties: Dwight J. LOVING, Private U.S. Army, Petitioner v. UNITED STATES, Respondent Crim. App. No. 19891123

Dwight J. LOVING, Private U.S. Army, Petitioner
v.
UNITED STATES, Respondent

Crim. App. No. 19891123

No. 06-8006

United States Court of Appeals, Armed Forces

July 17, 2009

Argued October 29, 2008

Counsel

For Petitioner: Teresa L. Norris, Esq. (argued); Lieutenant Colonel Mark Tellitocci and Captain William J. Stephens (on brief).

For Respondent: Captain Adam S. Kazin (argued); Colonel Denise R. Lind, Lieutenant Colonel Steven P. Haight, and Lieutenant Colonel Mark H. Sydenham (on brief).

Amicus Curiae for Petitioner: Michelle M. Lindo McCluer, Esq., Jonathan E. Tracy, Esq., Eugene R. Fidell, Esq., and Stephen A. Saltzburg, Esq. (on brief) -- for the National Institute of Military Justice.

Military Judges: Stephen V. Saynisch (trial) and Theodore E. Dixon (DuBay hearing)

ERDMANN, J., delivered the opinion of the court, in which EFFRON, C.J., and BAKER, J., joined. EFFRON, C.J., filed a separate concurring opinion. STUCKY, J., filed a separate opinion concurring in part and in the result. RYAN, J., filed a separate dissenting opinion.

ERDMANN, Judge

Private Dwight J. Loving was convicted in 1989 of premeditated murder, felony murder, attempted murder, and several specifications of robbery. The court-martial sentenced Loving to a dishonorable discharge, forfeiture of all pay and allowances, and to be put to death. The United States Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. United States v. Loving, 34 M.J. 956, 970 (A.C.M.R. 1992). We affirmed on direct review in 1994. United States v. Loving, 41 M.J. 213, 300 (C.A.A.F. 1994), modified by 42 M.J. 109 (C.A.A.F. 1995). The Supreme Court affirmed that decision in 1996. Loving v. United States, 517 U.S. 748, 774 (1996).

The case is now before us on Loving's petition for extraordinary relief in the nature of a writ of habeas corpus alleging that defense counsel provided constitutionally ineffective representation in the sentencing phase of his trial. Assuming without deciding that the performance of Loving's defense counsel was deficient as alleged, we conclude that Loving has failed to demonstrate that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. We hold that Loving has failed to meet his burden to establish prejudice under Strickland v. Washington, 466 U.S. 668 (1984), and deny the petition for extraordinary relief in the nature of a writ of habeas corpus.

BACKGROUND

1. Procedural Background

When a court-martial sentence includes the death penalty, the case remains pending in the military justice system through five separate stages: (1) action by the convening authority under Article 60, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 860 (2006); (2) review by the appropriate Court of Criminal Appeals under Article 66, UCMJ, 10 U.S.C. § 866, 10 U.S.C. § 866 (2006); (3) review by the United States Court of Appeals for the Armed Forces under Article 67(a)(1), UCMJ, 10 U.S.C. § 867(a)(1) (2006); review by the Supreme Court under Article 67a(a), UCMJ, 10 U.S.C. § 867a(a) (2006), if certiorari is sought and granted as provided in 28 U.S.C. § 1259 (2006); and (5) consideration by the President under Article 71(a), UCMJ, 10 U.S.C. § 871(a) (2006). A case does not become final under the UCMJ until completion of all five stages. See Article 76, UCMJ, 10 U.S.C. § 876 (2006).

In the present case, the United States Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. Loving, 34 M.J. at 970. On direct review to this court, we also affirmed the findings of guilty and the sentence. Loving, 41 M.J. at 300. In doing so, we considered, inter alia, Loving's ineffective assistance of counsel claim under Strickland, which included allegations that his defense counsel "failed to request funds for a mitigation specialist or to present a cohesive, comprehensible background, social, medical, and environmental history" during the sentencing phase of Loving's trial. Id. at 249. We determined that this claim lacked merit, holding that defense counsel's investigation and presentation of mitigation evidence and their decisions regarding use of expert testimony at sentencing were reasonable. Id. at 250.

The Supreme Court issued its decision affirming the death sentence on June 3, 1996, completing stage four of the five stage process under the UCMJ. Loving, 517 U.S. at 774. In the thirteen years since the Supreme Court's decision, the case has remained pending within the military justice system, awaiting presidential action.^[1] Loving's case remains in a posture where his military remedies have not been exhausted -- a critical component of any effort to obtain review in the Article III courts. See Loving, 62 M.J. 248-51. As a result, review in the Article III courts is not reasonably available to Loving so long as his case remains pending in the military justice system. See id.

On February 18, 2004, prior to filing the present habeas petition, Loving sought relief from our court through a writ of coram nobis under the All Writs Act, 28 U.S.C. § 1651(a). See id. at 236. Among other allegations, relying on the intervening Supreme Court decision in Wiggins v. Smith, 529 U.S. 510 (2003), Loving argued that this court committed clear error during mandatory review of Loving's ineffective assistance of counsel in sentencing claim because the court did not focus on the investigative aspect leading to counsel's decisions. Loving alleged that defense counsel's investigation was not reasonable and that counsel's deficient conduct was prejudicial in sentencing.

In the course of considering his coram nobis petition, we addressed the jurisdictional issues presented by the status of his case -- a case that remained pending in the military justice system after review by our court and the Supreme Court. Loving, 62 M.J. at 239-46. We specifically considered the implications of the relationship between cases pending in the military justice system and collateral review in the Article III courts. Id.

We concluded that a case pending final action under the UCMJ remained subject to extraordinary writ consideration by the appellate courts in the military justice system. Id. at 246. We further concluded that a writ of error coram nobis was not the proper vehicle for considering Appellant's claim because a writ of habeas corpus under the All Writs Act remained available. Id. at 257.

At that time, we could have converted Loving's coram nobis filings into a petition for habeas corpus, but we declined to make that decision for him. Id. at 259. Instead, "mindful that a habeas petition before this Court could affect Petitioner's right and strategy to raise . . . the issues . . . . if eventually filed in an Article III court," we dismissed Appellant's petitions for extraordinary relief without prejudice for Loving to file a writ of habeas corpus in our court, citing Noyd v. Bond, 395 U.S. 683, 695 n.7 (1969).^[2] Id. at 256, 258-60. In so doing, we expressly alerted Loving to the potential effect of a habeas petition before our Court on future habeas petitions filed in the Article III courts. Id. at 258-60 (citing, inter alia, 28 U.S.C. § 2244).

While the case remained pending within the military justice system, Loving had a number of options, including filing a habeas petition in our court or awaiting action by the President before seeking judicial review. He elected to file a petition for writ of habeas corpus in our court. Loving v. United States, 64 M.J. 132, 134 (C.A.A.F. 2006).

Loving filed his habeas petition with this court on February 2, 2006, raising essentially the same claim as to the trial defense team's constitutionally ineffective performance at sentencing that he raised in the previous coram nobis petition. Loving, 64 M.J. at 135. In the course of considering the habeas petition, we focused on what standard of review to apply to a habeas corpus action under the All Writs Act with respect to a case that remained pending in the military justice system. Id. at 144-46. Taking into account the importance of deference to decisions made during direct judicial review, and recognizing the limited scope of review under the All Writs Act, we adopted the highly deferential standard for collateral review used by other federal courts. See id. at 145-46. That restrictive standard requires us to determine:

whether this Court's prior review: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the [prior] proceeding

Id. at 145 (citing 28 U.S.C. § 2254(d)) (alteration in original).

Applying that standard to the pending habeas petition, we observed in our prior decision that the factual record was inadequate. Id. at 150-52. Accordingly, we remanded for proceedings under United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), which provides a well-established procedure for development of a post-trial evidentiary record, followed by return of the case to our court for further review. Loving, 64 M.J. at 152-53.

In particular, we determined that in light of Wiggins, "we [did] not have the factual predicate to determine if our prior decision addressing the issue of ineffective assistance of counsel was correct under the Strickland standard." Id. at 134. We ordered a DuBay hearing to address the issue of "whether Petitioner's trial defense counsel 'chose to abandon their investigation at an unreasonable juncture, making a fully informed decision with respect to sentencing strategy impossible' thereby prejudicing Petitioner in the capital sentencing phase of the court-martial." Id. (quoting Wiggins, 539 U.S. at 527-28). We directed the...