Loving v. United States
| Decision Date | 29 September 2006 |
| Docket Number | 06-8006. |
| Parties | Dwight J. LOVING, Private, U.S. Army, Petitioner, v. UNITED STATES, Respondent. |
| Court | United States Court of Appeals, Armed Forces Court of Appeals |
Argued May 16, 2006.
For Petitioner: Teresa L. Norris (argued); John H Blume, Kirsten A. Salcow, Lieutenant Colonel Kirsten V.C. Brunson, and Captain Julie A. Caruso (on brief).
For Respondent: Captain Magdalena A. Acevedo (argued) Lieutenant Colonel Mary M. Foreman, Major William J Nelson (on brief); Lieutenant Colonel Theresa A. Gallagher.
CRAWFORD, J., filed a dissenting opinion.
OPINION
Senior Judge Robinson O. Everett, writing for this Court, once quoted the fundamental legal maxim, " 'Always salt down the facts first; the law will keep.' " [1] He reaffirmed this point with this intuitive observation, " 'In the very nature of things, it is impossible for a court to enter a valid judgment declaring the rights of parties to litigation until the facts on which those rights depend have been "salted down" in a manner sanctioned by law.' " [2] Although we address several issues here, the pivotal issue is whether this Court has an adequate factual record to determine if trial defense counsel performed a reasonable investigation to establish the necessary factual predicate for later tactical decisions in this capital case.
After our completion of direct review in this case, [3] the Supreme Court decided Wiggins v. Smith. [4] The Supreme Court in Wiggins applied the "clearly established" precedent of Strickland v. Washington, [5] that governs claims of ineffective assistance of counsel. [6] In so doing, the Supreme Court found ineffective representation by a defense counsel in a capital case who failed to pursue leads and to expand the mitigation investigation into the defendant's traumatic life history. [7] In Wiggins, the Supreme Court reaffirmed that defense counsel has a fundamental duty to perform a reasonable investigation. [8]
In a petition for extraordinary relief in the nature of a writ of habeas corpus, Petitioner asserts that the trial defense counsel who defended him in his capital case were similarly deficient in not reasonably investigating his traumatic life history. Therefore, Petitioner also asserts that his case is controlled by the precedent of Strickland as illustrated by the Wiggins case.
To support his claim, Petitioner has filed voluminous documents and affidavits. But all the facts relevant to this issue are not apparent on the face of the record. In light of the more recent Supreme Court decision in Wiggins, we conclude that we do 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 that constituted clearly established law at the time of our initial direct review of this case.
Given this conclusion, we will afford the parties the opportunity to have the facts " 'salted down' in a manner sanctioned by law." [9] Therefore, we order a DuBay [10] evidentiary 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" [11] thereby prejudicing Petitioner in the capital sentencing phase of the court-martial.
This is a capital case that this Court affirmed on direct appeal. [12] Later, the Supreme Court granted certiorari and affirmed this Court's decision. [13] The case has been forwarded to the President for action under Article 71(a), Uniform Code of Military Justice (UCMJ), [14] but he has not yet acted.
The detailed appellate history of this case is documented in two prior opinions of this Court. [15] Most recently, on December 20, 2005, we dismissed without prejudice Petitioner's two petitions seeking a writ of error coram nobis. [16] We also expressly stated that Petitioner could "refile a writ of habeas corpus with this Court." [17]
Availing himself of this opportunity, Petitioner filed a petition for extraordinary relief in the nature of a writ of habeas corpus with this Court on February 2, 2006. This Court issued a show cause order, and the Government responded on April 14, 2006. Petitioner filed a reply brief on April 28, 2006. This Court heard oral argument on this writ on May 16, 2006.
In the present pleading, Petitioner combines the substance of his two prior petitions seeking a writ of error coram nobis. He requests that this Court apply to his military justice capital case the authority of three recent Supreme Court cases-- Apprendi v. New Jersey, [18] Ring v. Arizona, [19] and Wiggins. [20]
These cases and this Court's consideration of Petitioner's habeas corpus petition raise threshold legal issues, as well as issues on the merits. The threshold issues relate to this Court's jurisdiction to consider this petition, the appropriateness of the writ of habeas corpus at this Court, and the applicability--including the retroactive application--of this recent legal precedent to the present proceedings.
In our most recent opinion in this case, [21] we resolved the first two issues. We held that this Court has collateral review jurisdiction over this case during "the period after 'there is a final judgment as to the legality of the proceedings' under Article 71(c)(1) [UCMJ], but before the case is 'final' under Article 76 [UCMJ]." [22] The procedural posture of this case has not changed since our most recent opinion; therefore, this Court still has collateral review jurisdiction over this case.
Moreover, as this Court's statutory subject matter jurisdiction over this case is established, we may invoke the All Writs Act [23] to address the substantive issues here. [24] Again, in our most recent opinion in this case, we also held that Petitioner can seek a writ of habeas corpus under the All Writs Act at this Court. [25]
We must resolve one additional threshold issue: In light of the unique procedural posture of this case, can Petitioner avail himself of any of the legal holdings in Ring, Apprendi, and Wiggins to support his claims?
The issues relating to the merits of this habeas petition question the authority of the President to promulgate aggravating factors, the reliability of the capital sentencing weighing process, and the effectiveness of counsel in making decisions relating to investigating the background of Petitioner.
In Griffith v. Kentucky, [26] the Supreme Court established the legal principle that its decision that announces a "new rule" applies to all criminal cases still pending on direct review. [27] But when a case is final, there is an issue as to the retroactive application of the new rule.
In Teague v. Lane, [28] the Supreme Court clarified and modified previous decisions regarding retroactivity of new constitutional rules. The Court held that new constitutional rules should not be applied retroactively to convictions on collateral review that have become final, unless a new rule falls into one of two exceptions: (1) the new substantive rule places " 'certain kinds of ... individual conduct beyond the power of the criminal law-making authority to proscribe' "; or (2) the new procedural rule requires "procedures without which the likelihood of an accurate conviction is seriously diminished." [29]
Applying the principles of both Griffith and Teague, we must address two issues: First, when does a military justice case become final to trigger the application of Teague? Second, do either of the Teague exceptions pertain to this case?
We hold that a military justice case is final for purposes of Teague when "there is a final judgment as to the legality of the proceedings" under Article 71(c), UCMJ. Article 71(c)(1), UCMJ, provides:
If a sentence extends to death, dismissal, or a dishonorable or bad-conduct discharge and if the right of the accused to appellate review is not waived, and an appeal is not withdrawn, under section 861 of this title (article 61), that part of the sentence extending to death, dismissal, or a dishonorable or bad-conduct discharge may not be executed until there is a final judgment as to the legality of the proceedings (and with respect to death or dismissal, approval under subsection (a) or (b), as appropriate). A judgment as to legality of the proceedings is final in such cases when review is completed by a Court of Criminal Appeals and--
(A) the time for the accused to file a petition for review by the Court of Appeals for the Armed Forces has expired and the accused has not filed a timely petition for such review and the case is not otherwise under review by that Court;
(B) such a petition is rejected by the Court of Appeals for the Armed Forces; or
(C) review is completed in accordance with the judgment of the Court of Appeals for the Armed Forces and--
(i) a petition for a writ of certiorari is not filed within the time limits prescribed by the Supreme Court;
The plain language of this statute identifies the events that complete appellate review and establishes when judgments are final as to the legality of the proceedings. The clear import...
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