Witham v. U.S.

• Decision Date: 14 January 2004
• Docket Number: No. 02-5700.,02-5700.
• Citation: 355 F.3d 501
• Parties: Timothy A. WITHAM, Petitioner-Appellant, v. UNITED STATES of America, Probation Office, Bowling Green Kentucky; United States Marine Corps; United States Department of the Navy, Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 501

355 F.3d 501

Timothy A. WITHAM, Petitioner-Appellant, v. UNITED STATES of America, Probation Office, Bowling Green Kentucky; United States Marine Corps; United States Department of the Navy, Respondents-Appellees.

No. 02-5700.

United States Court of Appeals, Sixth Circuit.

Argued: October 29, 2003.

Decided and Filed: January 14, 2004.

Appeal from the United States District Court for the Western District of Kentucky, Joseph H. McKinley, J George A. Gallenthin (argued and briefed), Philadelphia, PA, for Petitioner-Appellant.

Candace G. Hill (briefed), Asst. U.S. Attorney, Louisville, KY, Terry M. Cushing (argued and briefed), Asst. U.S. Attorney, Louisville, KY, for Respondents-Appellees.

Before: RYAN, MOORE, and ROGERS, Circuit Judges.

OPINION

ROGERS, Circuit Judge.

The petitioner-appellant, Timothy A. Witham, appeals from the district court's denial of a habeas corpus petition challenging his conviction by general court-martial of several counts of larceny and wrongful disposition of government property. Witham raised five issues for habeas review before the district court: (1) that there was no verbatim record of the trial proceedings, (2) that the Convening Authority¹ lacked proper authority to refer charges against Witham to the court-martial, (3) that his Fifth and Sixth Amendment rights were violated when the prosecution only subpoenaed two of fourteen witnesses Witham had requested to be procured for his defense, (4) that he received ineffective assistance of counsel at his court-martial, and (5) that his Fifth Amendment right to confront witnesses was violated at trial. Witham's main contention before us appears to be that the district court should have granted Witham an evidentiary hearing prior to rejecting his habeas corpus petition.

No certificate of appealability was required for us to hear this appeal from the denial of this federally court-martialed defendant's habeas corpus petition. Contrary to Witham's argument on appeal, the district court properly refused to hold a hearing, where three of Witham's claims were fully and fairly litigated in the military courts, and the remaining two claims were raised for the first time in the district court. We therefore affirm the judgment of the district court.

On April 9, 1998, Witham, then a Staff Sergeant in the United States Marine Corps, was convicted of multiple offenses arising from a conspiracy to steal and re-sell military property, weapons and explosives. Witham was sentenced to confinement for five years, dishonorable discharge, and forfeiture of all pay and allowances.

After approval of the sentence, the Convening Authority forwarded the trial record to the Navy-Marine Corps Court of Criminal Appeals for review.² On appeal, Witham claimed that (1) the Government wrongfully refused to subpoena witnesses, (2) he received ineffective assistance of counsel, (3) his rights under the Fifth Amendment Due Process Clause were violated by excessive post-trial delay, (4) the Convening Authority was disqualified because two of Witham's co-conspirators had received favorable treatment in sentencing, (5) the Commandant of the Marine Corps exerted unlawful command influence in posting a message to a "military-oriented web site," and (6) the trial record was not verbatim. The court affirmed Witham's conviction and sentence.

In affirming, the Court of Criminal Appeals fully addressed three of the claims Witham raises before us. The court considered Witham's claim that the prosecution failed to subpoena witnesses, finding that he had waived it by failing to object at trial. The court rejected Witham's ineffectiveness claim on its merits, finding that his detailed defense counsel had performed effectively and demonstrated thorough pre-trial preparation. The court also addressed the merits of Witham's claims regarding the trial record, finding that there was no showing of "substantial omissions" and that, therefore, his claim failed.

After losing in the Court of Criminal Appeals, Witham filed a Petition for a Grant of Review in the United States Court of Appeals for the Armed Forces. The Court of Appeals for the Armed Forces refused to hear Witham's claims.

Having exhausted his military remedies, Witham then sought habeas corpus review in the district court.³ Witham's petition, raising five issues, contended that (1) no verbatim transcript of the general court martial exists, (2) the convening authority lacked authority to refer charges against Witham, (3) Witham's due process and Sixth Amendment rights were violated because the prosecution subpoenaed only two of the fourteen witnesses requested by Witham, (4) Witham received constitutionally ineffective assistance due to trial counsel's inadequate pretrial preparation and trial errors, and (5) Witham's Fifth Amendment right to confront witnesses was violated because the military court refused to allow a particular tape to be played into the record in its entirety.

The case was referred to a magistrate, who recommended denial of the petition. The magistrate judge explained first that the district court's review of a court-martial proceeding is limited to a consideration of whether the petitioner's claims were given a "full and fair consideration by the military courts." The magistrate judge concluded, after a review of the record, that the military courts had, in fact, fully and fairly considered the claims Witham raised before them. These included his assertions regarding the completeness of the trial record, the Government's failure to subpoena defense witnesses, and the alleged ineffectiveness of defense counsel. The magistrate judge further found that Witham had failed to raise his remaining two claims before the military courts and that Witham had therefore procedurally defaulted those claims. The magistrate judge also recommended that the district court deny Witham a certificate of appealability on the grounds that Witham could not demonstrate that reasonable jurists would debate the validity of the district court's ruling.

The district court adopted the recommendation of the magistrate, refused to grant an evidentiary hearing, denied the petition, and denied a certificate of appealability.

Witham appeals from the district court's judgment. On this appeal he urges us to find that his petition has been "mislabeled" as a petition arising under 28 U.S.C. § 2241 and that it, in fact, arises under § 2255. Witham further urges us to find that § 2255 guarantees him an evidentiary hearing and that the district court erred by not granting him that hearing with respect to the five issues that he raised in the district court. Because the district court did not abuse its discretion when it denied Witham an evidentiary hearing, we affirm.

We review de novo a district court's legal determinations in resolving a petition for habeas corpus. See Charles v. Chandler, 180 F.3d 753, 755 (6th Cir.1999). The denial of an evidentiary hearing in a habeas corpus case, however, is reviewed only for an abuse of discretion. Lott v. Coyle, 261 F.3d 594, 602 (6th Cir.2001).

First of all, as the government properly concedes, this court may consider this appeal despite the absence of a certificate of appealability. As we explain below, Witham's claim is properly brought under 28 U.S.C. § 2241 and not under 28 U.S.C. § 2255. The federal statutory provision requiring a certificate of appealability applies to (A) final orders in habeas cases where detention arose "out of process issued by State court" and (B) final orders under § 2255. 28 U.S.C. § 2253(c)(1). Neither category applies here. The statute does not require a certificate of appealability for appeals from denials of relief in cases properly brought under § 2241, where detention is pursuant to federal process. This result may be anomalous, since there is little discernible reason to exempt collateral challenges to court-martial convictions from the general certificate-of-appealability requirement with respect to federal court collateral challenges to state or federal criminal convictions. Nonetheless, the statutory language imposing the certificate-of-appealability requirement clearly does not extend to cases where, as in court-martial cases, detention arose out of federal process but the proceeding is not under § 2255.

For reasons that are not entirely clear, Witham maintains that his claim is, in actuality, a motion to vacate sentence under 28 U.S.C. § 2255. In pertinent part, that provision provides:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, ... or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255 (emphasis added). Undoubtedly, Witham is a "prisoner in custody under sentence of a court established by Act of Congress." See 10 U.S.C §§ 817-818 (setting forth the jurisdiction of courts-martial). Furthermore, he claims jurisdictional and Constitutional infirmities in his sentence. That does not change the fact, however, that Witham cannot petition the court which imposed the sentence for relief.

General courts-martial are ad hoc proceedings which dissolve after the purpose for which they were convened has been resolved. As a result, there is not a sentencing court in which a military prisoner may bring a § 2255 motion. Gilliam v. Bur. of Prisons, No. 99-1222, 2000 WL 268491, at *1 (8th Cir. March 3, 2000) (unpub.). Moreover, neither the Uniform Code of Military Justice nor the Manual for Courts-Martial provides for collateral review within the military courts. See United States v. Murphy, 50 M.J. 4, 5 (C.A.A.F.1998).

Our decisions indicate that § 2255 is intended to be an avenue of relief to be pursued...