Romey v. Vanyur, 5:97-HC-657-BR(2).

• Decision Date: 26 May 1998
• Docket Number: No. 5:97-HC-657-BR(2).,5:97-HC-657-BR(2).
• Citation: 9 F.Supp.2d 565
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Linus P. ROMEY, Petitioner, v. J. VANYUR, Warden, Respondent.

9 F.Supp.2d 565

Linus P. ROMEY, Petitioner, v. J. VANYUR, Warden, Respondent.

No. 5:97-HC-657-BR(2).

United States District Court, E.D. North Carolina, Western Division.

May 26, 1998.

COPYRIGHT MATERIAL OMITTED

Linus Romey, Butner, NC, Pro se.

Robert Skiver, Raleigh, NC, for J. Vanyur, respondent.

ORDER

BRITT, Senior District Judge.

On 30 April 1998 Magistrate Judge Alexander B. Denson filed his Memorandum and Recommendation with regard to the motion by Respondent to Dismiss. Petitioner, in due time, filed objections thereto. The Court has conducted a de novo review of the specific objections and the same are overruled. The Court adopts the Recommendation of Magistrate Judge Denson as its own and, for the reasons set forth in his Memorandum, the Motion to Dismiss is ALLOWED and this matter is DISMISSED.

MEMORANDUM AND RECOMMENDATION

DENSON, United States Magistrate Judge.

Petitioner, a federal inmate, has filed a petition for writ of habeas corpus under 28 U.S.C. § 2241. Respondent has moved to dismiss, Petitioner has filed a response, and this matter is ripe for disposition.

BACKGROUND

On February 2 and February 13-15, 1989, Petitioner was tried in an Army general court-martial and convicted of indecent assault and sodomy with a child under 16 years of age for performing sexual acts with his eight-year-old daughter. Petitioner was given a dishonorable discharge, demoted in rank and sentenced to 20 years confinement. He was originally incarcerated in a military facility but later was transferred to LSCI-Butner, where he currently is housed. On October 31, 1995, he received an initial parole hearing. After that hearing, the panel recommended that Petitioner continue toward a presumptive parole after serving 92 months, with a mental health aftercare provision. (Respt's Ex. D)

A Parole Commissioner requested a psychiatric examination and asked that the psychiatrist evaluate the likelihood of Petitioner committing similar offenses in the future. (Respt's Exs. E, F) Petitioner was evaluated by medical staff at FCI-Butner, and on December 28, 1995, Dr. Jeanette I. Kolker, a staff psychologist at FCI-Butner, submitted a report stating that the likelihood Petitioner would repeat his behavior was moderate. (Respt's Ex. G) In that report, she mentioned that Petitioner denied feeling any remorse and was perplexed as to why people believed he had done anything improper. Petitioner received a disclosable summary of the report on June 12, 1996, and his hearing was held July 26, 1996. At the hearing, Petitioner denied that he had engaged in sexual misconduct with his daughter. (Respt's.Ex. K) Perceiving Petitioner to be a potential danger, the hearing examiner recommended that parole be denied. A second examiner and the Regional Commissioner concurred. (Respt's Ex. L.) Petitioner appealed to the National Appeals Board, claiming various procedural errors and stating that he had never admitted to any wrongdoing. (Respt's Ex. M. at 3) His appeal was denied. (Respt's Ex. N) His next parole hearing is scheduled for July 1998.

Petitioner raises four claims for habeas relief. The first two relate to alleged constitutional improprieties at his 1989 general court-martial. The third and fourth claims relate to the denial of his parole.

ANALYSIS

Summary judgment is appropriate when there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party seeking summary judgment must come forward and demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the non-moving party must then affirmatively demonstrate that there is a genuine issue of material fact that requires trial. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). When making the summary judgment determination, the facts and all reasonable inferences must be viewed in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Because there are no genuine issues of material fact, the undersigned turns to the legal issues.

I. Confrontation Clause

First, Petitioner complains that he was denied his right to confront the witnesses against him in violation of the Confrontation Clause of the Sixth Amendment. Petitioner's claim arises because of an unusual procedure employed during his general court-martial. As in most child sexual abuse cases, the child-victim is a primary witness in the prosecution's case. In this case, Petitioner's daughter was reluctant to testify regarding the alleged sexual abuse. Recognizing this reluctance, the trial court allowed the child's mother to sit next to her and whisper the questions the attorneys asked to her. The child then whispered answers to her mother, who repeated them aloud.

Normally, the Sixth Amendment requires that a criminal defendant be allowed to confront the witnesses against him and to cross-examine them. Delaware v. Fensterer, 474 U.S. 15, 18, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985); see also California v. Green, 399 U.S. 149, 156-57, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). This generally means that the witness must answer the questions audibly while physically seated in front of the defendant. The Supreme Court does allow some exceptions to this rule on a showing of necessity. The trial court must find that denial of confrontation is necessary to further an important public policy and must preserve the testimony's reliability by retaining as many elements of confrontation as possible. Maryland v. Craig, 497 U.S. 836, 850, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). Using this reasoning, the Court upheld the constitutionality of using closed-circuit television to allow a child-witness to testify, so long as the testimony was given under oath, with full cross-examination, and so long as the judge, jury and defendant could observe the child. Id.; cf. Coy v. Iowa, 487 U.S. 1012, 1021, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988)(violation of Confrontation Clause to allow witness to testify behind a screen, absent specific finding that the witness needed special protection).

In the case at bar, although the trial judge did not make a finding of necessity before employing the whisper procedure, the military appellate courts determined that there was an implied finding of necessity to adopt the unusual procedure. The military courts went on to hold that the procedure did not violate Petitioner's Confrontation Clause or due process rights.

The role of this court is not to second-guess the decision of the military courts. Federal district courts have jurisdiction to consider § 2241 petitions from prisoners incarcerated by military tribunals, see Burns v. Wilson, 346 U.S. 137, 142, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953), but they are not given carte blanche to review and re-decide issues considered and decided by the military courts. The Supreme Court has stated that the scope of review of a military conviction is narrower than that of a civilian conviction. Id. 346 U.S. at 139, 73 S.Ct. 1045. Civilian courts should review only to determine whether the military courts gave an issue "fair consideration," id. 346 U.S. at 143, 73 S.Ct. 1045, or as the Tenth Circuit says, whether the petitioner received a full and fair hearing. Lips v. Commandant, U.S. Disciplinary Barracks, 997 F.2d 808, 811 (10th Cir.), cert. denied, 510 U.S. 1091, 114 S.Ct. 920, 127 L.Ed.2d 213 (1994).¹

According to the Tenth Circuit in Dodson v. Zelez, four factors must be considered before federal habeas courts may review a military conviction: (1) whether the asserted error is of substantial constitutional dimension; (2) whether the issue is one of law, not disputed fact; (3) whether there are military considerations that warrant a different treatment of the constitutional claim; and (4) whether the military courts failed to give adequate consideration to the issues involved or failed to apply proper legal standards. 917 F.2d 1250, 1252-53 (10th Cir.1990). A year later, the Tenth Circuit balanced these factors and decided in favor of review. Khan v. Hart, 943 F.2d 1261, 1263 (10th Cir.1991). However, a few years later, in Lips, the Tenth Circuit moved away from this balancing test and emphasized that the fourth factor, adequate consideration by the military courts, was predominant. See Lips v. Commandant, U.S. Disciplinary Barracks, 997 F.2d 808, 811 (10th Cir.), cert. denied, 510 U.S. 1091, 114 S.Ct. 920, 127 L.Ed.2d 213 (1994). Unless the military court failed to consider an issue properly presented to it, federal district courts should not conduct a review. If an issue is briefed and argued before a military board of review, it has been given fair consideration, even if the military court summarily denies it. Watson v. McCotter, 782 F.2d 143, 144 (10th Cir.1986), cert. denied, 476 U.S. 1184, 106 S.Ct. 2921, 91 L.Ed.2d 549 (1986).

Although Lips is not binding precedent in this circuit, it does represent the most advanced analysis in this specialized area of the law. It also reflects the Supreme Court's mandate of limited review handed down in Burns v. Wilson, discussed above. Therefore, this court will proceed to determine if the military courts gave Petitioner's Confrontation Clause contentions full and fair consideration, as required by Lips and Burns.²

Petitioner's Confrontation Clause claim was heard by the U.S. Army Court of Military Review and the Court of Military Appeals, and both courts addressed the claim on the merits. Both issued thorough, published opinions.³ In those opinions, the courts considered and applied contemporary Supreme Court case law and concluded that there was no constitutional violation.

Although the undersigned has concerns about the whisper procedure's...