Dwight J. LOVING, Private
U.S. Army, Petitioner
v.
UNITED STATES, Respondent
No. 06-8006
Crim. App. No. 8901123
United States Court of Appeals for the Armed Forces
Argued May 16, 2006
Decided September 29, 2006
GIERKE, C.J., delivered the opinion of the Court, in which BAKER
and ERDMANN, JJ., joined. EFFRON, J., filed a separate opinion
concurring in part and in the result. CRAWFORD, J., filed a
dissenting opinion.
Counsel
For Petitioner: Teresa L. Norris, Esq. (argued); John H. Blume,
Esq., Kirsten A. Salcow, Esq., 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.
This opinion is subject to revision before final publication.
Loving v. United States, No. 06-8006/AR
Chief Judge GIERKE delivered the opinion of the Court.
I. INTRODUCTION
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
1
United States v. Haney, 45 M.J. 447, 448 (C.A.A.F. 1996)
(quoting Erickson v. Starling, 71 S.E.2d 384, 395-96 (N.C.
1952)).
2
Id. at 448 (quoting Erickson, 71 S.E.2d at 396).
3
United States v. Loving, 41 M.J. 213 (C.A.A.F. 1994).
4
539 U.S. 510 (2003).
5
466 U.S. 668 (1984).
6
Wiggins, 539 U.S. at 522.
2
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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.
7
Id. at 523-38.
8
Id. at 521 (“‘[C]ounsel has a duty to make reasonable
investigations’” (quoting Strickland, 466 U.S. at 691)).
3
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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 DuBay10 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.
II. APPELLATE HISTORY AND BACKGROUND OF PETITION FOR
EXTRAORDINARY RELIEF IN THE NATURE OF A WRIT OF HABEAS CORPUS
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
9
Haney, 45 M.J. at 448 (quoting Erickson, 71 S.E.2d at 396)
(quotation marks omitted).
10
United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967);
see United States v. Flint, 1 M.J. 428, 429 (C.M.A. 1976) (“A
DuBay proceeding, in effect, is utilized to gather additional
evidence or to resolve conflicting evidence before determining
an issue presented to the appellate tribunal.”).
11
Wiggins, 539 U.S. at 527-28.
12
Loving, 41 M.J. at 300.
13
Loving v. United States, 517 U.S. 748, 774 (1996).
14
10 U.S.C. § 871(a) (2000).
15
Loving v. United States, 62 M.J. 235, 238 (C.A.A.F. 2005);
Loving v. Hart, 47 M.J. 438, 440 (C.A.A.F. 1998), cert. denied,
525 U.S. 1040 (1998).
4
Loving v. United States, No. 06-8006/AR
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
16
Loving, 62 M.J. at 236.
17
Id.
18
530 U.S. 466 (2000). In Apprendi, the Supreme Court
interpreted the constitutional due process and jury trial
guarantees to require that, “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” Id. at 490.
19
536 U.S. 584 (2002). Applying Apprendi to the Arizona capital
sentencing proceedings that required the finding of an
aggravating factor, Ring required that a jury, rather than a
judge, find the existence of the aggravating factor. Id.
20
539 U.S. 510.
5
Loving v. United States, No. 06-8006/AR
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 Act23 to address the substantive issues here.24 Again,
in our most recent opinion in this case, we also held that
21
Loving, 62 M.J. at 236 (footnotes omitted).
22
Id.
23
28 U.S.C. § 1651(a) (2000). The All Writs Act authorizes “all
courts established by Act of Congress [to] issue all writs
necessary or appropriate in aid of their respective
jurisdictions.” Id. “The Supreme Court has recognized this
Court’s power to issue extraordinary writs under the All Writs
Act.” Loving, 62 M.J. at 246 (citing Clinton v. Goldsmith, 526
U.S. 529, 534 (1999)).
24
Loving, 62 M.J. at 255-57.
6
Loving v. United States, No. 06-8006/AR
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.
III. DISCUSSION OF THE FINAL THRESHOLD ISSUE -- DO THE HOLDINGS
OF RING, APPRENDI, AND WIGGINS APPLY TO PETITIONER’S CASE ON
COLLATERAL REVIEW?
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.
25
Id. at 255-56.
26
479 U.S. 314 (1987).
27
Id. at 328.
7
Loving v. United States, No. 06-8006/AR
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:
28
489 U.S. 288 (1989) (plurality opinion). We acknowledge the
question of whether Teague applies to the review of federal
convictions remains an open question, although the weight of
authority suggests that it should apply in such proceedings.
See Randy Hertz & James S. Liebman, Federal Habeas Corpus
Practice and Procedure § 25.1, at 1146 n.25, § 25.6, at 1226-28
(5th ed. 2005).
29
489 U.S. at 311-13 (citation omitted).
8
Loving v. United States, No. 06-8006/AR
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;
(ii) such a petition is rejected by the Supreme
Court; or
(iii) review is otherwise completed in accordance
with the judgment of 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 of this provision is to certify the legality of the
proceedings and permit action on the sentence to be taken under
Article 71(a) or (b), UCMJ.
We conclude that Petitioner’s conviction and sentence are
final for purposes of application of Teague because all of his
direct judicial appeals have been exhausted. The requirement of
9
Loving v. United States, No. 06-8006/AR
Article 71(c)(1)(C)(iii), UCMJ, to establish “a final judgment
as to the legality of the proceedings” has been met.
Presently, this Court has completed direct review, and the
Supreme Court granted certiorari and eventually, affirmed this
Court’s decision.30 As review by the Supreme Court is completed
in accordance with the judgment of the Supreme Court, this case
is final for Teague purposes.
All that remains for the case to become final under Article
76, UCMJ,31 and therefore in the military justice system, is the
President’s decision whether to order the death sentence
executed or to grant executive clemency. We have stated that
the “Presidential action is akin to a state governor’s action,
and as such, is not part of the direct judicial review of the
case.”32
Supreme Court precedent supports our conclusion of when a
case is final for Teague purposes. Quoting its earlier decision
in Allen v. Hardy,33 the Supreme Court in Teague defined a
“final” conviction in a state court as one “‘where the judgment
of conviction was rendered, the availability of appeal
exhausted, and the time for petition for certiorari had
elapsed.’”34
30
Loving, 517 U.S. at 774.
31
10 U.S.C. § 876 (2000).
32
Loving, 62 M.J. at 247.
33
478 U.S. 255, 258 n.1 (1986).
34
489 U.S. at 295; see also Griffith, 479 U.S. at 321 n.6.
10
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Moreover, in Clay v. United States,35 the Supreme Court
defined finality with respect to cases where it has granted a
petition for certiorari. The Supreme Court first observed that
the precise meaning of finality depends on context. It then
explained:
Here, the relevant context is postconviction relief, a
context in which finality has a long-recognized, clear
meaning: Finality attaches when this Court affirms a
conviction on the merits on direct review or denies a
petition for a writ of certiorari, or when the time for
filing a certiorari petition expires.36
Our conclusion that a military justice case is final for Teague
purposes when “there is a final judgment as to the legality of
the proceedings” under Article 71(c), UCMJ, is consistent with
this authority.
Moreover, we view this construction of finality for Teague
purposes as placing a servicemember in the similar position as
other federal and state prisoners where the law applicable to
their case is generally established after direct review is
complete.37 If a servicemember, after Supreme Court review,
received the benefit of all new constitutional rules, a military
35
537 U.S. 522, 527 (2003).
36
Id.
37
See Teague, 489 U.S. at 310; 28 U.S.C. § 2254(d)(1) (2000)
(limiting relief to claims based on legal rules actually in
effect when the state court decided the cases, as opposed to
those in effect during the much longer period that elapses
before the conviction becomes final); 28 U.S.C. § 2255 (2000)
(limiting relief for federal prisoners to claims based on
“violations of the Constitution or laws of the United States
. . . or is otherwise subject to collateral attack . . . .”).
11
Loving v. United States, No. 06-8006/AR
accused could continue to litigate a case indefinitely thereby
thwarting application of the rule of finality. Teague did not
sanction such an unending litigation procedure and neither do
we.
We therefore reject any construction of the UCMJ that would
permit such endless litigation. Instead, we embrace the
language of Article 71(c), UCMJ, defining a “final judgment as
to the legality of the proceedings” as the event that triggers
an application of Teague. Having addressed when a military
justice case becomes final to trigger the application of Teague,
we turn to the application of Teague to this capital case.38
In Teague, the Supreme Court left open the issue of
application of the Teague principle to a capital case. But the
Supreme Court recently decided this issue in Schriro v.
Summerlin.39 Applying Teague in a capital case, the Court
reaffirmed Teague’s holding relating to retroactivity of new
constitutional rules and clarified the distinction between
substantive and procedural rules stating:
New substantive rules generally apply retroactively. This
includes decisions that narrow the scope of a criminal
statute by interpreting its terms, see Bousley v. United
States, 523 U.S. 614 (1998), as well as constitutional
determinations that place particular conduct or persons
38
Teague was not a capital case, and the Supreme Court expressly
stated, “Because petitioner is not under sentence of death, we
need not, and do not, express any views as to how the
retroactivity approach we adopt today is to be applied in the
capital sentencing context.” 489 U.S. at 314 n.2.
39
542 U.S. 348 (2004).
12
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covered by the statute beyond the State’s power to punish,
see Saffle v. Parks, 494 U.S. 484, 494-495 (1990); Teague
v. Lane, 489 U.S. 288, 311 (1989) (plurality opinion).
Such rules apply retroactively because they “necessarily
carry a significant risk that a defendant stands convicted
of ‘an act that the law does not make criminal’” or faces a
punishment that the law cannot impose upon him. Bousley,
supra, at 620 (quoting Davis v. United States, 417 U.S.
333, 346 (1974)).
New rules of procedure, on the other hand, generally
do not apply retroactively. They do not produce a class of
persons convicted of conduct the law does not make
criminal, but merely raise the possibility that someone
convicted with use of the invalidated procedure might have
been acquitted otherwise. Because of this more speculative
connection to innocence, we give retroactive effect to only
a small set of “‘watershed rules of criminal procedure’
implicating the fundamental fairness and accuracy of the
criminal proceeding.” Saffle, supra, at 495 (quoting
Teague, 489 U.S. at 311). That a new procedural rule is
“fundamental” in some abstract sense is not enough; the
rule must be one “without which the likelihood of an
accurate conviction is seriously diminished.” Id. at 313
(emphasis added). This class of rules is extremely narrow,
and “it is unlikely that any . . . ‘ha[s] yet to emerge.’”
Tyler v. Cain, 533 U.S. 656, 667 n.7 (2001) (quoting Sawyer
v. Smith, 497 U.S. 227, 243 (1990)).40
Applying these standards in Schriro, the Supreme Court
expressly addressed whether its recent decision in Ring applied
retroactively.41 The respondent, Summerlin, was convicted of
first-degree murder and sentenced to death.42 Under the Arizona
capital sentencing scheme, a judge, instead of a jury, found the
aggravating circumstance that rendered him death-eligible.
After direct review was complete, the Supreme Court decided
40
Id. at 351-52 (footnote omitted).
41
Id. at 352-56.
42
Id. at 350.
13
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Apprendi.43 Apprendi was the legal predicate for the later Ring
holding that a jury must find the aggravating factor.44
In his federal habeas case, Summerlin sought to invalidate
his death sentence relying on Ring.45 But the Supreme Court, in
Schriro, applied Teague to capital cases and clarified Teague’s
distinction between substantive and procedural rules.46 The
Court held that the then-recent decisions in Ring and implicitly
in Apprendi, as Ring’s legal predicate, are “properly classified
as procedural” and do not apply retroactively to cases that have
completed direct review.47 The Court reasoned that neither of
the two exceptions to Teague applied to Summerlin’s collateral
attack to trigger the retroactive application of Ring.48
The Supreme Court rejected the position that Ring was a
substantive new rule stating:
Respondent nevertheless argues that Ring is
substantive because it modified the elements of the offense
for which he was convicted. He relies on our statement in
Ring that, “[b]ecause Arizona’s enumerated aggravating
factors operate as ‘the functional equivalent of an element
of a greater offense,’ the Sixth Amendment requires that
they be found by a jury.” [Ring v. Arizona,] 536 U.S. at
609 (citation omitted); see also Sattazahn v. Pennsylvania,
537 U.S. 101, 111 (2003) (plurality opinion). The Ninth
Circuit agreed, concluding that Ring “reposition[ed]
Arizona’s aggravating factors as elements of the separate
offense of capital murder and reshap[ed] the structure of
43
Id.
44
Id. at 351.
45
Id.
46
Id. at 352-58.
47
Id. at 353.
48
Id. at 352-56.
14
Loving v. United States, No. 06-8006/AR
Arizona murder law.” 341 F.3d at 1105.
A decision that modifies the elements of an offense is
normally substantive rather than procedural. New elements
alter the range of conduct the statute punishes, rendering
some formerly unlawful conduct lawful or vice versa. See
Bousley, 523 U.S. at 620-21. But that is not what Ring
did; the range of conduct punished by death in Arizona was
the same before Ring as after. Ring held that, because
Arizona’s statutory aggravators restricted (as a matter of
state law) the class of death-eligible defendants, those
aggravators effectively were elements for federal
constitutional purposes, and so were subject to the
procedural requirements the Constitution attaches to trial
of elements. 536 U.S. at 609. This Court’s holding that,
because Arizona has made a certain fact essential to the
death penalty, that fact must be found by a jury, is not
the same as this Court’s making a certain fact essential to
the death penalty. The former was a procedural holding;
the latter would be substantive. The Ninth Circuit’s
conclusion that Ring nonetheless “reshap[ed] the structure
of Arizona murder law,” 341 F.3d at 1105, is particularly
remarkable in the face of the Arizona Supreme Court’s
previous conclusion to the contrary. See State v. Towery,
204 Ariz. 386, 390-91, 64 P.3d 828, 832-33, cert. dism’d,
539 U.S. 986 (2003).49
As a predicate for discussing the possible retroactive
application of Ring under the second exception of Teague, the
Supreme Court further explained why Ring was a new procedural
rule stating:
Ring’s holding is properly classified as procedural. Ring
held that “a sentencing judge, sitting without a jury, [may
not] find an aggravating circumstance necessary for
imposition of the death penalty.” 536 U.S. at 609.
Rather, “the Sixth Amendment requires that [those
circumstances] be found by a jury.” Ibid. This holding
did not alter the range of conduct Arizona law subjected to
the death penalty. It could not have; it rested entirely
on the Sixth Amendment’s jury-trial guarantee, a provision
that has nothing to do with the range of conduct a State
may criminalize. Instead, Ring altered the range of
49
Id. at 354-55.
15
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permissible methods for determining whether a defendant’s
conduct is punishable by death, requiring that a jury
rather than a judge find the essential facts bearing on
punishment. Rules that allocate decisionmaking authority
in this fashion are prototypical procedural rules, a
conclusion we have reached in numerous other contexts.50
Having concluded that the new rule of Ring was procedural,
the Supreme Court next addressed whether Ring fell under the
retroactivity exception for “‘watershed rules of criminal
procedure’ implicating the fundamental fairness and accuracy of
the criminal proceeding.”51 Rejecting a variety of arguments
that a jury is a more accurate factfinder, the Supreme Court
concluded that it “cannot confidently say that judicial
factfinding seriously diminishes accuracy.”52 The Supreme Court
found its conclusion supported by its prior “decision in
DeStefano v. Woods, 392 U.S. 631 (1968) (per curiam) . . .
[where] we refused to give retroactive effect to Duncan v.
Louisiana, 391 U.S. 145 (1968), which applied the Sixth
Amendment’s jury-trial guarantee to the States.”53
Notwithstanding this authority, Petitioner attempts to rely
on the authority of Ring to support his habeas petition. In
light of Schriro, we conclude that, based on the foregoing
discussion, Petitioner cannot avail himself of the authority of
Ring to support his petition.
50
Id. at 353.
51
Id. at 352 (quoting Saffle, 494 U.S. at 495, quoting Teague,
489 U.S. at 311) (quotation marks omitted).
52
Id. at 356.
53
Id. at 356-57.
16
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Also, we consider whether Petitioner can rely on the
authority of Apprendi to support his habeas petition. In
Apprendi, the Supreme Court held that other than the fact of a
prior conviction, “any fact that increases the penalty for a
crime beyond the prescribed statutory maximum,” whether the
statute calls it an element or a sentencing factor, “must be
submitted to a jury, and proved beyond a reasonable doubt.”54 We
conclude that Petitioner cannot rely on Apprendi in this
collateral attack as it does not apply in post-conviction
cases.55
We expressly reject Petitioner’s suggestion that we depart
from Supreme Court precedent because of the unique circumstances
of military justice and that we formulate a more generous rule
to permit Petitioner to avail himself of the retroactive
application of Apprendi and Ring. In part because military
54
530 U.S. at 490.
55
See Schriro, 542 U.S. at 358 (stating that “Ring announced a
new procedural rule that does not apply retroactively to cases
already final on direct review”); see also Blakely v.
Washington, 542 U.S. 296, 323 (2004) (O’Connor, J., Rehnquist,
C.J., and Kennedy, J., dissenting) (stating “that Ring (and a
fortiori Apprendi) does not apply retroactively on habeas review
. . . .”); Harris v. United States, 536 U.S. 545, 581 (2002)
(Thomas, J., Stevens, J., Souter, J., and Ginsburg, J.,
dissenting) (“No Court of Appeals, let alone this Court, has
held that Apprendi has retroactive effect.”); see, e.g., Coleman
v. United States, 329 F.3d 77, 82 (2d Cir. 2003) (noting that
“at least seven United States Courts of Appeals have held that .
. . Apprendi’s new rule does not apply retroactively . . . .”);
United States v. Sanchez-Cervantes, 282 F.3d 664, 671 (9th Cir.
2002) (“[W]e hold that Apprendi does not apply retroactively to
cases on initial collateral review.”).
17
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cases go through a similar review as both federal and state
capital cases, there is no basis for a different military rule
to determine whether new law will have retroactive application.
Moreover, we are comfortable adhering to the Supreme Court’s
Teague analysis because in doing so we comply with the
congressional mandate that courts-martial “apply the principles
of law . . . generally recognized in the trial of criminal cases
in the United States district courts, but which may not be
contrary to or inconsistent with [the UCMJ].”56
In summary, in light of the previously discussed Supreme
Court precedent, we conclude that Petitioner cannot rely on
either Ring or Apprendi to support his habeas petition.
Therefore, we need not further address any of Petitioner’s
issues relying on the authority of either Ring or Apprendi.
Finally, we consider whether Petitioner can rely on the
authority of Wiggins to support his habeas petition. The simple
answer is an unequivocal yes. Unlike the recent cases of Ring
and Apprendi, Wiggins did not announce a new constitutional
rule. Wiggins is a post-conviction attack alleging ineffective
assistance of counsel during capital sentencing and applying the
“clearly established” legal principles that govern claims of
56
Article 36, UCMJ, 10 U.S.C. § 836 (2000).
18
Loving v. United States, No. 06-8006/AR
ineffective assistance of counsel in Strickland.57 The Supreme
Court in explaining the procedural context of Wiggins stated,
The amendments to 28 USC § 2254 [28 USCS § 2254], enacted
as part of the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), circumscribe our consideration of
Wiggins’ claim and require us to limit our analysis to the
law as it was “clearly established” by our precedents at
the time of the state court’s decision.58
At its core, Wiggins addresses a misapplication of the
“clearly established” legal principles of Strickland.59 As such,
both Wiggins and Strickland present governing legal authority
relevant to Petitioner’s habeas petition. We now turn to the
merits of Petitioner’s arguments relating to Wiggins.
IV. The Wiggins Issue
A. The Supreme Court’s Decision in Wiggins
In Wiggins, the Supreme Court provided some guidance as to
what is a reasonable investigation in the context of a death
penalty case.60 The Supreme Court was not concerned with whether
defense counsel should have presented a mitigation case.
Instead, the narrow issue was “whether the investigation
supporting [defense] counsel’s decision not to introduce
mitigating evidence of Wiggins’ background was itself
reasonable.”61 The focus was to evaluate if the defense
investigation was reasonable to establish the factual predicate
57
Wiggins, 539 U.S. at 522.
58
Id. at 520.
59
Id.
60
Id. at 522-534.
61
Id. at 523.
19
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so that counsel would be in a position later to make reasonable
tactical decisions.
At the outset the opinion reaffirmed that the analysis of
this issue must be conducted in light of the established
precedent of Strickland, stating:
We established the legal principles that govern claims of
ineffective assistance of counsel in Strickland v.
Washington, 466 U.S. 668 (1984). An ineffective assistance
claim has two components: A petitioner must show that
counsel’s performance was deficient, and that the
deficiency prejudiced the defense. Id. at 687. To
establish deficient performance, a petitioner must
demonstrate that counsel’s representation “fell below an
objective standard of reasonableness.” Id. at 688. We
have declined to articulate specific guidelines for
appropriate attorney conduct and instead have emphasized
that “the proper measure of attorney performance remains
simply reasonableness under prevailing professional
norms.”62
The Supreme Court noted that both Strickland and Wiggins
“stem[] from counsel’s decision to limit the scope of their
investigation into potential mitigating evidence.”63 Then the
Supreme Court again quoted Strickland to explain that the
deference given to strategic judgments depends on the adequacy
of the investigations supporting those judgments:
Strategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than
complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the
limitations on investigation. In other words, counsel has
a duty to make reasonable investigations or to make a
62
Id. at 521.
63
Id.
20
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reasonable decision that makes particular investigations
unnecessary. In any ineffectiveness case, a particular
decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy
measure of deference to counsel’s judgments.64
Finally, the Supreme Court explained that any assessment of
counsel is an objective inquiry that is “context-dependent.”65
That is, reasonableness under professional norms must be
evaluated “‘from counsel’s perspective at the time.’”66
Applying these principles, the Supreme Court evaluated
defense counsel’s decision in a capital case not to expand their
investigation beyond a presentence investigation report prepared
by the Division of Parole and Probation and Department of Social
Services records documenting foster care placements of Wiggins.67
The Supreme Court concluded that this decision to limit the
investigation “fell short of the professional standards that
prevailed in Maryland in 1989.”68
The Supreme Court also reasoned that the scope of the
investigation was unreasonable in light of the notice counsel
had of Wiggins’s tragic and troubled childhood; counsel had
obtained this information from the presentence investigation
report prepared by the Division of Parole and Probation and
64
Id. at 521-22 (quoting Strickland, 466 U.S. at 690-91).
65
Id. at 523.
66
Id. (quoting Strickland, 466 U.S. at 689).
67
Id. at 522-531.
68
Id. at 524.
21
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Department of Social Services records.69 These documents
presented factual red flags of Wiggins’s problematic past that
included: “[p]etitioner’s mother was a chronic alcoholic;
Wiggins was shuttled from foster home to foster home and
displayed some emotional difficulties while there; he had
frequent, lengthy absences from school; and, on at least one
occasion, his mother left him and his siblings alone for days
without food.”70
The Supreme Court stated that “any reasonably competent
attorney would have realized that pursuing these leads was
necessary to making an informed choice among possible defenses,
particularly given the apparent absence of any aggravating
factors in petitioner’s background.”71 Furthermore, the Supreme
Court emphasized there was no evidence that “further
investigation would have been fruitless.”72 The Supreme Court
also stated that defense counsel’s “failure to investigate
thoroughly resulted from inattention, not reasoned strategic
judgment.”73
Linking its decision again to the Strickland standard, the
Supreme Court concluded that, “Even assuming [defense counsel]
limited the scope of their investigation for strategic reasons,
69
Id. at 527-28, 534.
70
Id. at 525.
71
Id.
72
Id.
73
Id. at 526.
22
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Strickland does not establish that a cursory investigation
automatically justifies a tactical decision with respect to
sentencing strategy. Rather, a reviewing court must consider
the reasonableness of the investigation said to support that
strategy.”74
In finding defense counsel in Wiggins deficient, the
Supreme Court emphasized “that Strickland does not require
counsel to investigate every conceivable line of mitigating
evidence no matter how unlikely the effort would be to assist
the defendant at sentencing. Nor does Strickland require
defense counsel to present mitigating evidence at sentencing in
every case.”75 The Supreme Court made clear the basis for its
conclusion of deficient representation here -- “that ‘strategic
choices made after less than complete investigation are
reasonable’ only to the extent that ‘reasonable professional
judgments support the limitations on investigation.’”76 Finally,
the Supreme Court established this simple benchmark as the legal
test for evaluating a defense investigation: “A decision not to
investigate thus ‘must be directly assessed for reasonableness
in all the circumstances.’”77
74
Id. at 527 (emphasis added).
75
Id. at 533.
76
Id. (quoting Strickland, 466 U.S. at 690-91).
77
Id. (quoting Strickland, 466 U.S. at 691).
23
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Having found defense counsel deficient, the Supreme Court
turned to the second prong of the Strickland analysis to
evaluate prejudice.78 The Court found that the mitigating
evidence counsel failed to discover and present in this case was
“powerful.”79 This evidence of Wiggins’s abuse included the
following:
Wiggins experienced severe privation and abuse in the first
six years of his life while in the custody of his
alcoholic, absentee mother. He suffered physical torment,
sexual molestation, and repeated rape during his subsequent
years in foster care. The time Wiggins spent homeless,
along with his diminished mental capacities, further
augment his mitigation case. Petitioner thus has the kind
of troubled history we have declared relevant to assessing
a defendant’s moral culpability.80
The Supreme Court explained that based on “both the nature
and the extent of the abuse petitioner suffered, we find there
to be a reasonable probability that a competent attorney, aware
of this history, would have introduced it at sentencing in an
admissible form.”81 The Supreme Court then concluded “that had
the jury been confronted with this considerable mitigating
evidence, there is a reasonable probability that it would have
returned with a different sentence.”82 Accordingly, the death
78
Id. at 534-35.
79
Id. at 534.
80
Id. at 535 (citing Penry v. Lynaugh, 492 U.S. 302, 319 (1989),
abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304
(2002)).
81
Id.
82
Id. at 536.
24
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sentence was set aside and the case remanded for further
proceedings.83
B. Relationship of Wiggins to this Court’s Prior Consideration
of the Issue of Ineffective Assistance of Counsel Arising From
Failing to Reasonably Investigate the Defense Case in
Extenuation and Mitigation
In considering Petitioner’s ineffective assistance of
counsel claim, this Court looks to the law in effect at the time
of the original 1994 decision on direct appeal. That is what
the Supreme Court did in Wiggins.84
Wiggins did not make new law.85 But it did both clarify and
illuminate the standards for a reasonable investigation in a
criminal trial, in general, and in a death penalty case, in
particular. The import of Wiggins is that it serves as an
example of how the prior Strickland standards should be applied.
Simply stated, the value of Wiggins is to provide guidance in
the application of the well established precedent of Strickland
regarding the scope of a reasonable investigation in a death
penalty case. Therefore, we use Wiggins to inform our approach
under Strickland, as opposed to treating it as a new precedent
or rule.86 Wiggins is a new lens through which we view a
fundamental principle of law relating to the application of the
83
Id. at 538.
84
Id. at 521-22; see Williams v. Taylor, 529 U.S. 362, 390
(2000).
85
See 539 U.S. at 522.
86
See Slaughter v. Parker, 450 F.3d 224, 234 (6th Cir. 2006);
Hamblin v. Mitchell, 354 F.3d 482, 487 (6th Cir. 2003).
25
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Strickland standards for a reasonable investigation in a capital
case. In light of Wiggins, we have a clearer view of the
application of Strickland in this death penalty context.
We also apply Wiggins to the present case not in the
context of a direct appeal, but instead, in the context of
Petitioner’s habeas petition filed with this Court. The
petition was filed during the period after there was 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. This Court has not previously articulated standards for
habeas review under the All Writs Act of convictions following
completion of Article 71, UCMJ, review.87 Therefore, it is
appropriate now that we address those standards.
It appears that the Article III courts have not been able
to develop a consistent standard for collateral review of
courts-martial under 28 U.S.C. § 2241 (2000). In United States
ex rel. New v. Rumsfeld,88 the United States Court of Appeals for
the District of Columbia Circuit recently described the case law
as so “tangled” and marked by “uncertainty” that it left the
court with “serious doubt whether the judicial mind is really
87
Our parallel treatment of other forms of collateral review
under the All Writs Act also has not focused on the standard of
review. See, e.g., Garrett v. Lowe, 39 M.J. 293 (C.M.A. 1994).
88
448 F.3d 403 (D.C. Cir. 2006).
26
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capable of applying the sort of fine gradations in deference
that the varying formulae may indicate.”89
In New, the court decided that it could proceed without
resolving the question of which standard it should apply.90 In
the course of its discussion, the court noted that the United
States Court of Appeals for the Third Circuit in Brosius v.
Warden,91 had applied to court-martial cases the standards under
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), codified principally at 28 U.S.C. §§ 2244-2254 (2000),
for reviewing state court decisions.92 In Brosius, the court
said:
Whatever Burns [v. Wilson, 346 U.S. 137 (1953)] means, we
have no doubt that at least absent a challenge to the
constitutionality of the statute under which the defendant
was convicted, such as that raised in Levy, our inquiry in
a military habeas case may not go further than our inquiry
in a state habeas case. Thus, we will assume -- but solely
for the sake of argument -- that we may review
determinations made by the military courts in this case as
if they were determinations made by state courts.
Accordingly, we will assume that 28 U.S.C. § 2254(e)(1)
applies to findings of historical fact made by the military
courts. Under this provision, “a determination of a
factual issue made by a State court” is “presumed to be
correct,” and a habeas petitioner has “the burden of
rebutting the presumption of correctness by clear and
convincing evidence.” In considering other determinations
89
Id. at 406-08.
90
Id. at 408.
91
278 F.3d 239 (3d Cir. 2002).
92
New, 448 F.3d at 407-408. A recent law review note also
suggested that Article III courts import the AEDPA standards for
reviewing state decisions into Article III review of military
cases. John K. Chapman, Note, Reforming Federal Habeas Review
of Military Convictions: Why AEDPA Would Improve the Scope and
Standard of Review, 57 Vand. L. Rev. 1387 (2004).
27
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made by the military courts, we will assume that 28 U.S.C.
§ 2254(d) applies. Under this provision,
an application for a writ of habeas corpus
on behalf of a person in custody pursuant to
the judgment of a State court shall not be
granted with respect to any claim that was
adjudicated on the merits in State court
proceedings unless the adjudication of the
claim --
(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
State court proceeding.93
The task before Article III courts, of course, is different
from the task before us. Article III courts are external to the
military justice system, so they need to determine what standard
comports with the full and fair requirement in Burns v. Wilson.94
As our consideration of this case is within the UCMJ system
before a case is final under Article 76, UCMJ, we must decide
what standard best meets the “necessary or appropriate”
93
Brosius, 278 F.3d at 245 (citation omitted).
94
346 U.S. 137, 141-43 (1953); see generally Chapman, supra
note 92, at 1399-1402; Dwight H. Sullivan, The Last Line of
Defense: Federal Habeas Review of Military Death Penalty Cases,
144 Mil. L. Rev. 1 (1994); Richard D. Rosen, Civilian Courts and
the Military Justice System: Collateral Review of Courts-
Martial, 108 Mil. L. Rev. 5 (1985).
28
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requirements in the All Writs Act for collateral review within
the military justice system.95
To that end, we look for standards that fulfill the basic
purposes of the military justice system: balancing the
individual right to a habeas review against the need for timely,
certain, and final review. In our view, rather than creating
our own standard, we should look to the balance that Congress
has legislated under the AEDPA.
In the AEDPA, Congress limits granting relief on habeas
corpus claims to those where a proceeding on the merits:
(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 State Court
proceeding.96
We adopt these AEDPA standards as to both the scope of
review and the standard of review to evaluate habeas corpus
claims raising issues of constitutional law.97 That is, we will
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
95
See 28 U.S.C. § 1651(a); Loving, 62 M.J. at 246-47.
96
28 U.S.C. § 2254(d).
97
We do not address in this case the question of what standard
this federal court should apply when dealing with a collateral
attack on a federal conviction and sentence when the claim is
based upon nonconstitutional federal law. See Hertz & Liebman,
supra note 28, § 41.3b, at 1922-27.
29
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was based on an unreasonable determination of the facts in
light of the evidence presented in the [prior] proceeding.98
With respect to the factual component of a mixed fact/law
question in the prior proceeding: “a determination of a factual
issue made [in the prior proceeding] is “presumed to be
correct,” and a habeas petitioner has “the burden of rebutting
the presumption of correctness by clear and convincing
evidence.”99
We decline to adopt the provisions of 28 U.S.C. § 2255
(2000) as to a habeas petition that raises a constitutional
issue. We note that 28 U.S.C. § 2255 initially appears to be an
attractive option as to the standards for collateral review of
courts-martial, because this statute pertains generally to
collateral attacks on federal convictions. This procedure is
akin to a federal prisoner filing a motion to vacate a sentence
and is heard by the same judge that initially heard the criminal
trial on the merits.100 But in our most recent decision relating
to this case, we explained that Petitioner cannot obtain habeas
review under 28 U.S.C. § 2255 because “in the military justice
system there are no standing courts . . . .”101 In our view, the
procedures Congress established for the sentencing tribunal to
review in a case under 28 U.S.C. § 2255 are unsuitable and
98
28 U.S.C. § 2254(d).
99
28 U.S.C. § 2254(e)(1).
100
28 U.S.C. § 2255.
101
Loving, 62 M.J. at 254.
30
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inappropriate to guide this Court’s consideration of a
collateral habeas petition.
Our adoption of the AEDPA provisons for reviewing state
court decisions, codified at 28 U.S.C. §§ 2244-2254, makes
federal habeas review by this Court the same as habeas review of
state convictions in other federal courts. These provisions
best serve to protect the liberty and interests of individual
servicemembers and to bolster deference to military legal
determinations.102 We need not address here all the issues
relating to the application of the AEDPA to a collateral
challenge to a court-martial judgment in general or to the
present pleading in particular.103 We need only presently
address the legal standard to measure Petitioner’s right to an
evidentiary hearing on his claim.104
102
Chapman, supra note 92, at 1428.
103
See Loving, 62 M.J. at 259 (stating that “it is not clear
whether our entertaining a petition for a writ of habeas corpus
would trigger the AEDPA ‘second or successive writ’ language and
thereby preclude an Article III court collateral review under
the doctrine of abuse of the writ”).
104
A fundamental error of the dissent is its erroneously
confusing two separate issues –- further review or consideration
of a habeas petition and actually granting habeas relief. The
dissent cites the legal test for granting relief under the AEDPA
to support its conclusion that the “AEDPA bars further review of
this issue.” In the view of the majority, the narrow issue here
is only whether Petitioner has met the legal standard to
establish his right to an evidentiary hearing on his claim of
ineffective assistance of counsel. The dissent does not address
this issue but instead decides the merits of the habeas
petition.
31
Loving v. United States, No. 06-8006/AR
To address this issue, we look first to the relevant
provisions of the AEDPA, 28 U.S.C. § 2254(e)(2), that explicitly
address when a Petitioner is not entitled to an evidentiary
hearing. This statute states:
If the applicant has failed to develop the factual basis of
a claim in State court proceedings, the court shall not
hold an evidentiary hearing on the claim unless the
applicant shows that -–
(A) the claim relies on -–
(i) a new rule of constitutional law, made
retroactive to cases on collateral review by
the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been
previously discovered through the exercise
of due diligence; and
(B) the facts underlying the claim would be
sufficient to establish by clear and convincing
evidence that but for constitutional error, no
reasonable factfinder would have found the applicant
guilty of the underlying offense.
This congressional direction as to when a habeas corpus
applicant is not entitled to an evidentiary hearing is not
applicable here. The condition precedent (“applicant has failed
to develop the factual basis of a claim in State court
proceedings”) is not present in this case.105 Indeed, the
105
See Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir. 2005),
where the court stated:
In determining whether a petitioner is entitled to an
evidentiary hearing under AEDPA, the district court
must:
determine whether a factual basis exists in
the record to support the petitioner’s
claim. If it does not, and an evidentiary
hearing might be appropriate, the court’s
32
Loving v. United States, No. 06-8006/AR
documents to support and raise the issue of ineffective
assistance of counsel were originally filed at this Court while
the case was pending on direct review.106
As this Court is not precluded from ordering the
evidentiary hearing, we next address whether one is appropriate.
It is appropriate to order an evidentiary hearing where a
petitioner alleges facts which, if proved, would entitle him to
relief, the record reveals a genuine factual dispute as to the
alleged facts, and the petitioner did not receive a hearing on
the issue.107 The decision whether to hold an evidentiary
hearing is discretionary.108
first task in determining whether to grant
an evidentiary hearing is to ascertain
whether the petitioner has ‘failed to
develop the factual basis of a claim in
State court.’ . . . . If [] the applicant
has not ‘failed to develop’ the facts in
state court, the district court may proceed
to consider whether a hearing is appropriate
or required under Townsend v. Sain, 372 U.S.
293 (1963) [overruled on other grounds in
Keeney v. Tamayo-Reyes, 504 U.S. 1, 5
(1992)].
106
When his case was pending before this Court on direct appeal,
Petitioner filed numerous documents with this Court to support
his claim that trial defense counsel was ineffective in failing
to request funds for a mitigation specialist or in failing to
present a cohesive, comprehensive background, including social,
medical and environmental history. Petitioner has filed
duplicates with the present habeas petition. We note that on
direct appeal the Government also filed affidavits relevant to
these issues.
107
See Martinez v. Dretke, 111 F. App’x 224, 229 (5th Cir.
2004), where the court noted:
33
Loving v. United States, No. 06-8006/AR
We view this AEDPA standard, 28 U.S.C. § 2254, for the
right to an evidentiary hearing as substantially the same
standard that we have applied to evaluate an appellant’s right
to an evidentiary hearing if the issue of ineffective assistance
of counsel is raised on direct appeal.109 Therefore, for
purposes of resolving a factual component, we will apply the
Where the petitioner’s allegations cannot be resolved
without examining evidence beyond the record, the
district court should conduct a hearing. An
evidentiary hearing is required where a state habeas
petitioner did not receive a state court hearing and
alleges facts which, if proved, would entitle him to
relief, and the record reveals a genuine factual
dispute as to the alleged facts.
Footnotes omitted; Bell v. True, 413 F. Supp. 2d 657, 699 (W.D.
Va. 2006) (holding that an evidentiary hearing was appropriate
to address the issue of failure of trial counsel’s to conduct a
reasonable background investigation in a capital case where a
petitioner establishes “facts that, if true, would entitle him
to relief,” and it appears from the record that “the fact-
finding procedure employed by the state court was not adequate
to afford a full and fair hearing”) (citations and quotation
marks omitted); King v. Bell, 392 F. Supp. 2d 964, 974 (M.D.
Tenn. 2005) (“King is entitled to an evidentiary hearing if he
alleges sufficient grounds for issuance of the writ, relevant
facts are in dispute, and the state courts did not hold a full
and fair evidentiary hearing.”); Marshall v. Hendricks, 103 F.
Supp. 2d 749, 767-69 (D.N.J. 2000) (addressing the power of a
federal court to hold an evidentiary hearing to address a habeas
claim arising out of a state court proceeding), rev’d in part by
307 F.3d 36 (3d Cir. 2002). We observe that we do not evaluate
Petitioner’s right to an evidentiary hearing under the standards
to evaluate successor habeas claims.
108
2 Steven Alan Childress & Martha S. Davis, Federal Standards
of Review § 13.08, at 13-59 (3d ed. 1999).
109
See United States v. Murphy, 50 M.J. 4, 16 (C.A.A.F. 1998)
(“An appellant is entitled to an evidentiary hearing if his or
her posttrial affidavits raise material questions of fact that
might give rise to relief.”).
34
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factors identified in United States v. Ginn110 in determining
whether a DuBay evidentiary hearing is required.
As Petitioner’s case is not yet final, we conclude that the
application of this standard is appropriate because of the
unique status of this Court and the present posture of
Petitioner’s case which is still within the military justice
110
47 M.J. 236 (C.A.A.F. 1997). In Ginn, we stated that the
following principles apply in evaluating whether a post-trial
evidentiary hearing is necessary:
First, if the facts alleged in the affidavit allege an
error that would not result in relief even if any factual
dispute were resolved in appellant’s favor, the claim may
be rejected on that basis.
Second, if the affidavit does not set forth specific
facts but consists instead of speculative or conclusory
observations, the claim may be rejected on that basis.
Third, if the affidavit is factually adequate on its
face to state a claim of legal error and the Government
either does not contest the relevant facts or offers an
affidavit that expressly agrees with those facts, the court
can proceed to decide the legal issue on the basis of those
uncontroverted facts.
Fourth, if the affidavit is factually adequate on its
face but the appellate filings and the record as a whole
“compellingly demonstrate” the improbability of those
facts, the Court may discount those factual assertions and
decide the legal issue.
Fifth, when an appellate claim of ineffective
representation contradicts a matter that is within the
record of a guilty plea, an appellate court may decide the
issue on the basis of the appellate file and record
(including the admissions made in the plea inquiry at trial
and appellant’s expression of satisfaction with counsel at
trial) unless the appellant sets forth facts that would
rationally explain why he would have made such statements
at trial but not upon appeal.
Sixth, the Court of Criminal Appeals is required to
order a factfinding hearing only when the above-stated
circumstances are not met.
Id. at 248.
35
Loving v. United States, No. 06-8006/AR
system. Our application of this same rule will result in
consistent evaluation of this right to an evidentiary claim as
long as the case is not yet final under the UCMJ. Applying this
“objective evidence” standard here, we conclude for several
reasons that an evidentiary hearing is necessary.
The application of both Strickland and Wiggins to this case
is rooted in the Petitioner’s constitutional right to effective
assistance of counsel. The decision in Wiggins states that a
reasonable investigation is a necessary predicate for any
tactical decisions by counsel.111 In light of Wiggins, our
evaluation of an ineffective assistance of counsel claim in a
capital case must focus on the defense investigation to
determine if it was reasonable.112
In our initial consideration of the merits of this case on
direct appeal this Court addressed defense counsel’s
investigation.113 Our opinion states “defense counsel conducted
his own investigation,”114 and we proceeded to explain how
defense counsel made reasonable tactical decisions related to
the sentencing proceeding (including the decision not to request
funding for a mitigation specialist).115 Our opinion states:
We hold further that defense counsel’s investigation and
presentation of defense mitigation evidence and their
111
539 U.S. at 522-23.
112
See Rompilla v. Beard, 545 U.S. 374, 377 (2005).
113
Loving, 41 M.J. at 249-50.
114
Id. at 249.
115
Id. at 249-50.
36
Loving v. United States, No. 06-8006/AR
decisions regarding use of expert testimony were
reasonable. While use of an analysis prepared by an
independent mitigation expert is often useful, we decline
to hold that such an expert is required. What is required
is a reasonable investigation and competent presentation of
mitigation evidence. Presentation of mitigation evidence
is primarily the responsibility of counsel, not expert
witnesses. In this case defense counsel investigated
appellant’s background and competently presented his
evidence during the sentencing phase of the trial.116
However, this holding does not adequately develop the
factual predicate to support it.117 The facts in the opinion
focus on the evidence offered in mitigation at trial.118 Our
prior opinion did not adequately review the nature of defense
counsel’s investigation. Moreover, there was no discussion of
the prevailing professional norms at the time as to what was a
reasonable investigation or the “red flags” that should have
alerted defense counsel to dig deeper to determine whether
Petitioner was, indeed, the subject of specific childhood harm
that might mitigate his culpability as alleged. The statement
of legal conclusions and the absence of detailed factual
analysis of what defense counsel did and did not do in
investigating the case, reveals that our prior opinion did not
address whether trial defense counsel “chose to abandon their
116
Id. at 250.
117
See Wiggins, 539 U.S. at 527-28 (finding an unreasonable
application of the Strickland principles when the State “court
did not conduct an assessment of whether the decision to cease
all investigation . . . actually demonstrated reasonable
professional judgment. The state court merely assumed that the
investigation was adequate”) (citations omitted).
118
Loving, 41 M.J. at 249-50.
37
Loving v. United States, No. 06-8006/AR
investigation at an unreasonable juncture [thereby] making a
fully informed decision with respect to sentencing strategy
impossible.”119
The recent authority of Wiggins reveals that this Court
previously did not adequately focus on reasonableness of the
defense investigation. This deficiency in our initial decision
requires that we now address “whether the investigation
supporting counsel’s decision[s] . . . was itself reasonable.”120
Moreover, in our initial consideration of the ineffective
assistance of counsel claim on direct review, we did not order
an evidentiary hearing regarding this issue. Therefore,
Petitioner did not have an adequate opportunity on direct appeal
to establish facts in an evidentiary hearing to support his
ineffective assistance of counsel claim.121
119
Wiggins, 539 U.S. at 527-28.
120
Id. at 523; see, e.g., Rompilla, 545 U.S. at 377 (concluding
that defense counsel were deficient in an investigation where
“they failed to make reasonable efforts to review the prior
conviction file, despite knowing that the prosecution intended
to introduce Rompilla’s prior conviction not merely by entering
a notice of conviction into evidence but by quoting damaging
testimony of the rape victim in that case”); Williams, 529 U.S.
at 396 (stating defense counsel has an “obligation to conduct a
thorough investigation of the defendant’s background” (citing
American Bar Association Standards for Criminal Justice 4-4.1,
Commentary, at 4-55 (2d ed. 1980))).
121
We observe that our ordering an evidentiary hearing is
consistent with the approach of other courts that have addressed
the issue of ineffective assistance of counsel based on the
failure to investigate. See, e.g., Syriani v. Polk, 118 F.
App’x 706, 721 (4th Cir. 2004) (denying a habeas petition
alleging ineffective assistance based on a state court
evidentiary hearing and on the conclusion that the jury had been
38
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We acknowledge that Petitioner perhaps could have raised on
direct appeal the precise issue that he now presents in his
habeas petition because the present claim is based on the
standards of a reasonable investigation stated in Strickland.
But in Massaro v. United States,122 the Supreme Court held that
an ineffective assistance of counsel issue may be raised in a
habeas petition irrespective of whether a petitioner could have
raised it on direct appeal.123 In light of Massaro, the past
appellate path of this case does not preclude Petitioner from
presenting to this Court his habeas claims of ineffective
assistance.
Moreover, in Massaro the Supreme Court recognized that “in
most cases a [habeas corpus] motion . . . is preferable to
direct appeal for deciding claims of ineffective-assistance.”124
The Supreme Court also stated that a district court, a
factfinding forum, rather than an appellate court is “best
suited to developing the facts necessary to determining the
adequacy of representation during an entire trial.”125 The
Supreme Court explained this point stating, “When an
presented with similar aggravating factors that the jury had
decided were not outweighed by mitigating circumstances); see
also Bell, 413 F. Supp. 2d at 699 (holding that petitioner was
entitled to evidentiary hearing on ineffective assistance of
counsel claim).
122
538 U.S. 500 (2003).
123
Id. at 504.
124
Id.
125
Id. at 505.
39
Loving v. United States, No. 06-8006/AR
ineffective-assistance claim is brought on direct appeal,
appellate counsel and the court must proceed on a trial record
not developed precisely for the object of litigating or
preserving the claim and thus often incomplete or inadequate for
this purpose.”126 The Supreme Court pointed out the advantages
of a habeas proceeding in developing the factual predicate for
an ineffective assistance of counsel claim stating that, the
“court may take testimony from witnesses for the defendant and
the prosecution and from the counsel alleged to have rendered
the deficient performance.”127
In Massaro, the Supreme Court stated it was “not hold[ing]
that ineffective-assistance claims must be reserved for
collateral review.”128 Indeed, Massaro does not preclude
consideration of an ineffective assistance of counsel claim on
direct appeal. However, if an ineffective assistance of counsel
126
Id. at 504-05.
127
Id. at 505. The Supreme Court in Massaro cited United States
v. Griffin, 699 F.2d 1102, 1109 (11th Cir. 1983) for the
proposition that in a habeas proceeding, the defendant
has a full opportunity to prove facts establishing
ineffectiveness of counsel, the government has a full
opportunity to present evidence to the contrary, the
district court hears spoken words we can see only in
print and sees expressions we will never see, and a
factual record bearing precisely on the issue is
created.
We observe that in Wiggins, for example, the habeas review
considered the record of trial, the facts developed in the post-
conviction record, and judicial observations made during the
post-conviction proceedings. 539 U.S. at 529-33.
128
538 U.S. at 508.
40
Loving v. United States, No. 06-8006/AR
claim is addressed on direct appeal, Massaro leaves open the
issue of how to address such cases, noting that “questions may
arise in subsequent proceedings under [habeas corpus] concerning
the conclusiveness of determinations made on the ineffective-
assistance claims raised on direct appeal.”129
We now must decide how to address the question left open by
the Supreme Court in Massaro. We are guided in this matter by
the Supreme Court’s approach in Massaro which creates a
preference in favor of factual development at a hearing.130 If
there has been no hearing, and important factual questions or
mixed questions of fact and law remain after direct appeal, then
those matters must be addressed in a hearing before a
determination can be made under the AEDPA standards.
In this case there has not been an evidentiary hearing on
the issue of ineffective assistance of counsel. In light of
Massaro, such a hearing is appropriate in our view if there
remain important factual questions as to Petitioner’s claim of
ineffective assistance of counsel.
We note that Petitioner has filed a voluminous set of wide
ranging affidavits and documentary evidence to establish the
factual predicate for his claim that “trial defense counsels’
129
Id.
130
Id. at 505-06. We do not view the fact that Massaro involved
a habeas petition filed under 28 U.S.C. § 2255 as diminishing
its authority for a preference in favor of factual development
at a hearing.
41
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conduct was deficient because the evidence reveals that counsel
failed to adequately investigate and the ‘failure to investigate
thoroughly resulted from inattention, not reasoned strategic
judgment.’” Petitioner asserts this evidence establishes that
crucial mitigation evidence existed at the time of his trial,
that a reasonable investigation should have produced it, and
that the deficient investigation resulted in this substantial
mitigation evidence not being presented at the capital
sentencing hearing.
Petitioner has also alleged that this deficiency in the
investigation of his case prejudiced his capital sentencing
proceedings in two ways. Petitioner claims that trial defense
counsel failed to identify critical mitigation evidence of
Petitioner’s childhood and developmental problems arising from a
traumatic and dysfunctional family life, his unnatural obsession
with his girlfriend, and the impact of both drug and alcohol
abuse on Petitioner generally and his offenses in particular.
Petitioner further alleges that without this essential
mitigation evidence, trial defense counsel was unable to present
“any real evidence concerning [his] background or the impact on
him, despite counsel’s desire and actual argument that the panel
should consider this information.”
Finally, we consider a most important fact that this is a
capital case. The Supreme Court has applied Eighth Amendment
42
Loving v. United States, No. 06-8006/AR
principles to the military capital sentencing scheme “in the
context of a conviction under Article 118 for murder committed
in peacetime within the United States.”131 Therefore, these
constitutional principles pertain in the present case that is
also within these parameters.
Two fundamental principles of Eighth Amendment law are the
foundation for a reliable determination of a death sentence: a
genuine narrowing of the class of persons eligible to receive
the death penalty and individualized sentencing –- a decision on
a capital sentence on the basis of the character of the
individual and the circumstances of the crime.132 As to the
second principle, the Supreme Court has stated that “the jury
must be able to consider and give effect to any mitigating
evidence relevant to a defendant’s background and character or
the circumstances of the crime.”133
Reflecting these principles, this Court has stated:
One continuous theme is found throughout the death-penalty
cases handed down by the Supreme Court over the last 30
years. That theme is reliability of result. Thus, the
sine qua non of Gregg v. Georgia; Chambers v. Mississippi;
131
Loving, 517 U.S. at 755.
132
See Blystone v. Pennsylvania, 494 U.S. 299, 306-07 (1990);
see also Lowenfield v. Phelps, 484 U.S. 231, 244 (1988) (“The
use of ‘aggravating circumstances’ is not an end in itself, but
a means of genuinely narrowing the class of death-eligible
persons and thereby channeling the jury’s discretion.”); Zant v.
Stephens, 462 U.S. 862, 879 (1983) (“What is important at the
selection stage is an individualized determination on the basis
of the character of the individual and the circumstances of the
crime.”); Tuilaepa v. California, 512 U.S. 967, 971-72 (1994).
133
Penry, 492 U.S. at 328.
43
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Furman v. Georgia; and Lockhart v. Fretwell; Strickland v.
Washington; and Ake v. Oklahoma, is that the Supreme Court
has insisted there be a proper functioning of the
adversarial system. A fair reading of these cases
demonstrates that, in order for the adversarial system to
work properly, the key ingredients are competent counsel;
full and fair opportunity to present exculpatory evidence;
individualized sentencing procedures; fair opportunity to
obtain the services of experts; and fair and impartial
judges and juries.134
In Wiggins, the Supreme Court again reaffirmed the right of
an accused in a capital case to present evidence in mitigation
generally, and the type of mitigation evidence arising from a
defendant’s traumatic background and childhood, character or the
circumstances of the crime in particular. The Supreme Court in
Wiggins stated:
Petitioner thus has the kind of troubled history we have
declared relevant to assessing a defendant’s moral
culpability. Penry v. Lynaugh, 492 U.S. 302 (1989)
(“‘Evidence about the defendant’s background and character
is relevant because of the belief, long held by this
society, that defendants who commit criminal acts that are
attributable to a disadvantaged background . . . may be
less culpable than defendants who have no such excuse’”);
see also Eddings v. Oklahoma, 455 U.S. 104 (1982) (noting
that consideration of the offender’s life history is a
“‘part of the process of inflicting the penalty of
death’”); Lockett v. Ohio, 438 U.S. 586 (1978)
(invalidating Ohio law that did not permit consideration of
aspects of a defendant’s background).135
The Supreme Court expressly stated that this type of
mitigating evidence “is powerful.”136 We therefore must evaluate
the reasonableness of trial defense counsel’s investigation
134
Murphy, 50 M.J. at 14-15 (citations omitted).
135
539 U.S. at 535.
136
Id. at 534.
44
Loving v. United States, No. 06-8006/AR
knowing that there was possibly powerful mitigating evidence for
trial defense counsel to discover in a reasonable investigation.
Petitioner has filed voluminous unrebutted affidavits137
with this Court and documentary evidence to support his
assertion that trial defense counsel failed to discover through
reasonable investigation, and therefore failed to develop at
trial, powerful mitigation evidence. The breadth and depth of
this alleged information relate to and include the following:
Petitioner’s parental and family history of alcoholism and
substance addiction established Petitioner’s genetic proclivity
for alcoholism; Petitioner’s long history of alcohol abuse
explains his early development of alcoholism; Petitioner
suffered great physical and emotional abuse arising from both
neglect and rejection in his traumatic childhood; Petitioner
lived in a world full of poverty, violence, chaos, neglect, and
fear; Petitioner was shot at four times and repeatedly beaten.
Petitioner alleges that in his case, as in Wiggins, the defense
counsel failed to investigate and present “powerful” mitigating
evidence.138 Therefore, Petitioner argues that his case is
137
We note that the Government has never sought to update its
affidavits or rebut Petitioner’s factual assertions relating to
Petitioner’s collateral challenge raising the issue of
ineffective assistance of counsel arising from a deficient
investigation.
138
See Wiggins, 539 U.S. at 534-35 (detailing the “powerful”
mitigation evidence that counsel failed to develop); see also
Rompilla, 545 U.S. at 377-79 (reasoning that counsel was
ineffective in sentencing and finding prejudice due, in part, to
45
Loving v. United States, No. 06-8006/AR
materially indistinguishable from Wiggins. Again we consider
most important, as explained above, that in our initial
consideration of the merits of this case, we did not focus on
the investigative aspects leading to defense counsel’s tactical
decisions in sentencing and did not previously order a DuBay
hearing to address this issue. In light of the unique history
of this case and all the other circumstances relating to this
most important issue, we conclude that an evidentiary hearing is
warranted into the circumstances of the representation in this
capital court-martial related to the sentencing phase of the
trial.
Petitioner has presented a potentially meritorious claim of
ineffective assistance of counsel arising from his trial defense
counsel’s failure to conduct a reasonable investigation, for not
pursuing leads known to the trial defense counsel relevant to
this matter, and for not expanding the mitigation investigation
into the defendant’s traumatic life history. Petitioner has
produced post-trial material which raises substantial questions
about the reasonableness of the investigation upon which our
1994 decision rested.
As previously stated in Ginn, we identified the
circumstances that permit this Court not to order a factfinding
defense counsel’s failure to discover and present evidence that
the defendant grew up in a “slum environment” and had a
traumatic and abusive family background).
46
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hearing and, therefore, allow this Court to decide the merits of
this habeas claim now based solely on the affidavits and the
record.139 None of these circumstances are present here.
The affidavits and other evidence presently before this
Court relating to ineffective assistance of counsel is the type
of information that under Massaro and Wiggins, must be assessed
in a habeas or DuBay hearing. The allegation of ineffective
assistance of counsel presents mixed questions of fact and law
that require assessment by a DuBay judge as to the credibility
of witnesses, and the validity and accuracy of other factual
evidence. Just as a habeas proceeding in an Article III court
would need to assess this information in a habeas evidentiary
hearing proceeding under the AEDPA, we are not in a position to
evaluate the correctness of our 1994 decision until the findings
of fact are developed by a DuBay judge. In Wiggins, the Supreme
Court stated, “In assessing the reasonableness of an attorney’s
investigation, however, a court must consider not only the
quantum of evidence already known to counsel, but also whether
the known evidence would lead a reasonable attorney to
investigate further.”140 We must now determine if information
the defense counsel had should have triggered further fruitful
investigation into Petitioner’s traumatic family background and
139
See 47 M.J. at 243, 248; see also United States v. Perez, 18
C.M.A. 24, 26, 39 C.M.R. 24, 26 (1968).
140
539 U.S. at 527.
47
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upbringing and Petitioner’s drug and alcohol abuse prior to and
during the offenses.
V. Conclusion
Petitioner is entitled to an evidentiary hearing to
establish the factual predicate for his claim. Accordingly, in
light of Wiggins, we order an evidentiary hearing pursuant to
DuBay to address the matters related to the defense
investigation of Petitioner’s background and other matters that
may have produced evidence in either extenuation or mitigation
during the capital sentencing proceeding. The DuBay judge shall
enter findings of fact and conclusions of law to address the
following matters:
1. Identify potential sentencing evidence, if any, alleged
by the defense that was omitted or incompletely
presented at trial.
2. Address the facts, if any, under (1) that would have
been developed through a reasonable investigation by a
competent attorney under Strickland. In this regard,
what did trial defense counsel do to investigate
information to present in the capital sentencing phase
of the court-martial? What information, if any, did the
counsel know or should have known that would have
triggered an investigation into Petitioner’s traumatic
background or the omitted or incomplete evidence
identified under (1)?
3. What impact did any deficiency in investigating this
case, if any, have on tactical decisions made by trial
defense counsel (including the decision to use or not to
request or to use any expert assistance)? Whether any
information identified under (1) could have led to a
change in defense counsel’s trial tactics in sentencing
phase?
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Loving v. United States, No. 06-8006/AR
4. Were trial defense counsel aware of the information
contained in Petitioner’s affidavits filed at this Court
regarding violence in Petitioner’s family home and
neighborhood? The DuBay hearing will evaluate the
credibility and reliability of all factual information
Petitioner has filed with this Court to support his
habeas corpus petition.
5. The DuBay hearing will inquire into any other matters
that relate to the issue of performance of trial defense
counsel of the duty to conduct a reasonable
investigation into the background of Petitioner, the
omitted or incomplete evidence identified under (1), or
any other evidence relevant to the capital sentencing
proceeding, in light of prevailing professional norms at
the time of the trial.
6. Whether there is a reasonable probability that, but for
the omission at information identified under (1) through
(5), the result of the sentencing proceeding would have
been different? This requires a reweighing of the
evidence adduced at trial and in the DuBay proceeding to
determine this question: Had the panel been confronted
with this evidence, was there a reasonable probability
it would have returned a different sentence? The test
is whether there is a reasonable probability that at
least one member of the panel would have struck a
different balance thereby not voting for a death
sentence?141
The officer conducting the DuBay hearing will make findings
of fact and conclusions of law.
Decision
The record of trial is returned to the Judge Advocate
General of the Army for remand to the convening authority who
will order a DuBay hearing to consider the previously identified
issues. After such proceedings are concluded, the record of
trial along with the DuBay judge’s findings of fact and
141
See Wiggins, 539 U.S. at 537.
49
Loving v. United States, No. 06-8006/AR
conclusions of law will be returned directly to this Court for
further review.
50
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EFFRON, Judge (concurring in part and in the result):
I agree that Petitioner is entitled to a hearing under
United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), and
I agree with the structure of the hearing outlined in the lead
opinion.
I write separately to address a threshold question on which
we have not previously written: What standards and procedures
should we apply in considering a petition for habeas corpus
filed during the period between the completion of direct legal
review under Article 71, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 871 (2000), and final action under Article
76, UCMJ, 10 U.S.C. § 876 (2000)? Legislation and judicial
decisions in the Article III courts provide important
restrictions on habeas review in the civilian sector. We should
apply those limitations to habeas corpus review of court-martial
convictions under the All Writs Act, 28 U.S.C. § 1651(a) (2000).
Applying the pertinent standards and procedures, we should
expressly reject Petitioner’s request for retroactive
application of the Supreme Court’s decisions arising after
completion of direct review under Article 71, UCMJ. Likewise,
we should apply those standards and procedures to assess the
validity of our decision on direct review regarding Petitioner’s
ineffective assistance of counsel claim under the Sixth
Amendment to the Constitution. U.S. Const. amend VI; see
Loving v. United States, No. 06-8006/AR
Strickland v. Washington, 466 U.S. 668 (1984). In that regard,
we are not bound by our decision on direct review, which reached
a conclusion regarding ineffective representation of counsel --
a mixed question of fact and law -- without first determining
whether Petitioner received a full and fair hearing on the
factual and legal grounds for his claims.
I. BACKGROUND
Petitioner has requested extraordinary relief in the nature
of a writ of habeas corpus under the All Writs Act, 28 U.S.C. §
1651(a). The Act authorizes “all courts established by Act of
Congress [to] issue all writs necessary or appropriate in aid of
their respective jurisdictions.” Petitioner challenges the
validity of the death sentence adjudged by a general court-
martial following his conviction of several offenses, including
premeditated murder.
On direct review, Petitioner’s death sentence was affirmed
by the Army Court of Military Review (now designated as the Army
Court of Criminal Appeals), this Court, and the Supreme Court of
the United States. United States v. Loving, 34 M.J. 956
(A.C.M.R. 1992), on reconsideration, 34 M.J. 1065 (A.C.M.R.
1992); United States v. Loving, 41 M.J. 213 (C.A.A.F. 1994);
Loving v. United States, 517 U.S. 748 (1996). The decision of
the Supreme Court constitutes the final judgment as to the
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legality proceedings on direct review. See Article 71(c)(1),
UCMJ.
Although legal review has been completed, the case is not
yet final under Article 76, UCMJ, because the President has not
acted on the death sentence. See Article 71(a), UCMJ, (“that
part of the sentence providing for death may not be executed
until approved by the President”).
During the period following the Supreme Court’s decision,
Petitioner has sought collateral review of his conviction. See
Loving v. United States, 62 M.J. 235, 238 (C.A.A.F. 2005)
(summarizing the appellate history of the case on direct and
collateral review). Last year, we rejected Petitioner’s request
that we issue a writ of coram nobis to correct alleged errors in
the proceedings. Id. at 260. After reviewing the relationship
between the writs of coram nobis and habeas corpus, we observed
that under applicable federal law, a writ of coram nobis could
not provide a basis for relief if any other remedy remained
available. Id. at 253. We concluded that because a writ of
habeas corpus remained available for consideration by this Court
under the All Writs Act, Petitioner could not “properly file a
writ of coram nobis here.” Id. at 256. We also declined to
recharacterize Petitioner’s coram nobis request as a habeas
corpus petition, leaving the decision with Petitioner as to
3
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whether a habeas corpus petition should be filed with our Court.
Id. at 259.
Petitioner now has requested a writ of habeas corpus. He
contends that he did not receive the effective assistance of
counsel, as guaranteed by the Sixth Amendment to the
Constitution, because his trial defense counsel failed to
conduct a reasonable investigation into the reasonably available
mitigating evidence. See Strickland, 466 U.S. at 690-91.
Petitioner also contends that the President, in issuing rules
for death penalty sentencing proceedings in the military: (1)
exceeded his authority by promulgating aggravating factors in
sentencing that should have been treated as functional elements
of the crime during findings; and (2) failed to require that the
court-martial panel find beyond a reasonable doubt during
sentencing that any mitigating circumstances are outweighed by
permissible aggravating factors. See Ring v. Arizona, 536 U.S.
584 (2002).
II. HABEAS CORPUS
During the period between final legal review under Article
71(a), UCMJ, and final action under Article 76, UCMJ, a
servicemember is required to exhaust his or her remedies under
the UCMJ before seeking collateral review in the Article III
courts. See Clinton v. Goldsmith, 526 U.S. 529, 537 n.11
4
Loving v. United States, No. 06-8006/AR
(1999). One of those remedies is a petition to this Court for a
writ of habeas corpus under the All Writs Act. See Noyd v.
Bond, 395 U.S. 683, 695 n.7 (1969); Loving, 62 M.J. at 248-51.
In the past, this Court has considered petitions requesting
relief following completion of legal review under Article 71(a),
UCMJ, but we have not expressly addressed the standards and
procedures for reviewing such petitions under the All Writs Act.
See, e.g., Garrett v. Lowe, 39 M.J. 293 (C.M.A. 1994). The All
Writs Act “authorizes the employment of extraordinary writs . .
. .” Clinton, 526 U.S. at 534. The All Writs Act, however,
does not empower this Court “to act as a plenary administrator”
of all judgments that we have affirmed. Id. at 536.
The standards and procedures for consideration of petitions
during the period between final legal review under Article
71(a), UCMJ, and final action under Article 76, UCMJ, must
ensure that relief is limited to circumstances warranting an
extraordinary writ. As in the Article III courts, habeas corpus
must be narrowly circumscribed by the standards and procedures
applicable to collateral review. Otherwise, the writ could be
used to routinely circumvent the time limitations on matters
such as petitions for reconsideration (see C.A.A.F. R. 31) and
petitions for new trials (see Article 73, UCMJ, 10 U.S.C. § 873
(2000)).
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Both Congress and the Article III courts have given a great
deal of attention to limiting the availability of the habeas
corpus writ for post-conviction review of civilian criminal
cases. See, e.g., Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (amending
28 U.S.C. §§ 2251-55 (2000), and inserting 28 U.S.C. §§ 2261-66
(2000)); Teague v. Lane, 489 U.S. 288 (1989) (plurality
opinion). The core principles applied in Article III habeas
proceedings provide a useful framework for our consideration of
post-conviction habeas petitions in the military justice system
under the All Writs Act.
We must exercise care, however, in borrowing from the
standards and procedures developed for use in the Article III
courts. Many aspects of habeas corpus litigation in the Article
III courts are not readily transferred to the court-martial
process, particularly the federalism considerations applicable
to collateral review of state court criminal proceedings. Given
the complex and dynamic nature of case law developments in the
Article III courts, we should limit our adaptation to those
standards and procedures necessary to decide the case before us.
A. APPLICABLE STANDARDS FOR HABEAS REVIEW
1. Constitutional claims
In a habeas review of a federal civilian conviction under
28 U.S.C. § 2255, the test for constitutional error is whether
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Loving v. United States, No. 06-8006/AR
“there has been such a denial or infringement of the
constitutional rights of the prisoner as to render the judgment
vulnerable to collateral attack.” In habeas review of state
court convictions under 28 U.S.C. § 2254(d), the statute
provides a two-tiered approach, with separate standards for
questions of law and fact. With respect to issues of law, the
question is whether the challenged decision “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1). With respect to factual
determinations, the statute employs a presumption of
correctness, asking whether the prior proceeding “resulted in a
decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(2).
At least one Article III court during collateral review of
prior military justice proceedings has applied the § 2254(d)
standards relevant to review of state court proceedings.
Brosius v. Warden, 278 F.3d 239, 245 (3d Cir. 2002). From the
perspective of whether an extraordinary writ should be issued by
our Court, we need not develop a unique standard. In terms of
restricting the scope of collateral review, the more detailed
guidance in § 2254(d) is preferable to the broad language of §
2255. Because we are not literally reviewing a state
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Loving v. United States, No. 06-8006/AR
proceeding, the § 2254(d) standard of factual review may be
expressed as follows: whether the prior proceeding resulted in
a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the prior
proceeding.
2. Nonconstitutional federal claims
Habeas review of state court proceedings under 28 U.S.C. §
2254 typically involves constitutional claims. See Richard H.
Fallon, Jr., Daniel J. Meltzer & David L. Shapiro, Hart and
Wechsler’s The Federal Courts and the Federal System 1297 (5th
ed. 2003). As a result, § 2254 does not provide a useful model
for review of habeas claims based upon nonconstitutional federal
requirements. Habeas review of federal civilian convictions is
governed largely by the case law developed under the broad
language of 28 U.S.C. § 2255. Habeas review of military justice
cases in the Article III courts takes place under 28 U.S.C. §
2241, under standards that vary widely among the circuits. See
United States ex rel. New v. Rumsfeld, 488 F.3d 403 (D.C. Cir.
2006). Because the present case does not involve a
nonconstitutional claim, we need not at this time select a
specific standard for habeas review of nonconstitutional
military justice issues under the All Writs Act.
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B. PROCEDURAL CONCERNS IN HABEAS REVIEW
1. Retroactivity of a new rule in a habeas claim
As noted in the lead opinion, a decision announcing a new
rule of constitutional procedure applies to all cases pending on
direct review. Griffith v. Kentucky, 479 U.S. 314, 328 (1987).
During collateral review of a final decision, however, there are
different considerations. In Teague, the Supreme Court limited
the retroactive application of new constitutional law decisions
during federal habeas review of state convictions, citing
concerns about finality and efficiency. 489 U.S. at 309-10.
The Supreme Court held that a “‘habeas court need only apply the
constitutional standards that prevailed at the time the original
proceedings took place.’” Id. at 306 (quoting Desist v. United
States, 394 U.S. 244, 262-63 (1969)).
The Supreme Court identified two exceptions under which new
rules could be given retroactive application during habeas
review: (1) where a new rule “places certain kinds of primary,
private individual conduct beyond the power of the criminal law-
making authority to proscribe”; and (2) where a rule articulates
fundamental procedures “without which the likelihood of an
accurate conviction is severely diminished.” Id. at 311-13
(citation and quotation marks omitted). In view of the
importance of finality and efficiency in the military justice
system, we should expressly state that the Teague principles
9
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apply to habeas review of court-martial cases under the All
Writs Act.
2. Procedural default of a habeas claim
When a case is subject to habeas review in the Article III
courts, failure to raise a claim during prior proceedings
normally constitutes a procedural default unless the petitioner
“can show cause for the default and prejudice resulting
therefrom.” Teague, 489 U.S. at 298; see United States v.
Frady, 456 U.S. 152, 167-68 (1982); Wainwright v. Sykes, 433
U.S. 72, 84 (1977). With respect to a claim of ineffective
assistance of counsel, however, the Supreme Court in Massaro v.
United States, 538 U.S. 500 (2003), declined to invoke the
procedural default doctrine to preclude a petitioner from
raising that issue on habeas review when he had not raised it on
direct review. Id. at 504. Focusing primarily on the often
incomplete or inadequate development of the record for purposes
of resolving an ineffective counsel claim, the Supreme Court
stated that “in most cases” collateral review actually is
“preferable to direct appeal for deciding claims of ineffective
assistance of counsel.” Id. at 504. In the present case, the
Government has not raised the defense of procedural default, so
we need not determine how the procedural default doctrine and
its various exceptions should apply in the context of a military
justice habeas case under the All Writs Act. See 2 Randy Hertz
10
Loving v. United States, No. 06-8006/AR
& James S. Liebman, Federal Habeas Corpus Practice and Procedure
§ 41.7b, at 1958-59 (5th ed. 2005).
3. Relationship of habeas claims to direct review
In the present case, Petitioner raised an issue of
ineffective assistance of counsel on direct review. Assuming
for present purposes that the claim he made on direct review
fairly includes the claims he makes in the pending habeas
petition, we should assess the relationship between
consideration of ineffective assistance on direct review and
subsequent consideration upon habeas review under the All Writs
Act.
The Supreme Court in Massaro expressly declined to address
the impact of direct review of an ineffective assistance of
counsel claim on a subsequent habeas petition, observing that
“certain questions may arise in subsequent proceedings under §
2255 concerning the conclusiveness of determinations made on the
ineffectiveassistance claims on direct appeal; but these matters
of implementation are not before us.” 538 U.S. at 508-09. In
the present case, the conclusiveness of our ineffective-
assistance determinations on direct review is directly related
to adequacy of the record and the absence of a hearing, matters
that are considered in sections 4 and 5, infra.
11
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4. Development of the habeas record
In federal habeas review of a state conviction, a
petitioner may obtain an evidentiary hearing, subject to a
variety of limitations imposed by statute and case law
concerning presumptions and deference to state court
factfinding. See 28 U.S.C. § 2254(d)-(e). If a petitioner
“failed to develop the factual basis of a claim in State court
proceedings,” the federal habeas court may not grant a hearing
unless:
(A) the claim relies on -–
(i) a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable;
or
(ii) a factual predicate that could not have been
previously discovered through the exercise of due
diligence; and
(B) the facts underlying the claim would be sufficient
to establish by clear and convincing evidence that but
for constitutional error, no reasonable factfinder
would have found the applicant guilty of the
underlying offense.
28 U.S.C. § 2254(e)(2)(A)-(B).
The term “failed to develop,” however, does not apply
unless the failure to develop facts in the prior proceeding is
attributable to the petitioner. See Williams v. Taylor, 529
U.S. 420 (2000). For example, if a state has not held an
evidentiary hearing, a petitioner has not “failed to develop”
12
Loving v. United States, No. 06-8006/AR
the factual basis for the claim, and the court determines
whether a hearing is necessary under the standards applicable to
a procedural default. See Bryan v. Mullin, 335 F.3d 1207 (10th
Cir. 2003). When a petitioner alleges grounds that would
warrant issuance of a writ, facts are in dispute, and the state
has not provided a full and fair hearing to resolve the factual
matter, the federal court will provide a habeas hearing. See,
e.g., Bell v. True, 413 F. Supp. 2d 657, 699 (W.D. Va. 2006);
King v. Bell, 392 F. Supp. 2d 964, 974 (M.D. Tenn. 2005).
In habeas review of federal convictions under § 2255, the
opportunity to obtain a federal hearing is broader. The habeas
court will hold a hearing to make findings of fact and
conclusions of law “[u]nless the motions and the files and the
records in the case conclusively show that the prisoner is
entitled to no relief . . . .” Although issues of comity and
federalism account for the difference between the standards
applicable for review of state and federal convictions, the
underlying result is the same -- development of a record, either
on direct review or during collateral review, that provides a
foundation for evaluating the habeas claim.
The military justice system does not have standing trial
courts. See Articles 22 and 23, UCMJ, 10 U.S.C. §§ 822, 823
(2000) (designating officials authorized to “convene” general
and special courts-martial). Once the convening authority has
13
Loving v. United States, No. 06-8006/AR
acted on a case, there is no trial-level forum available to
consider post-conviction matters reviewed by trial courts in
civilian cases, such as ineffective assistance of counsel. See
DuBay, 17 C.M.A. at 149 n.2, 37 C.M.R. at 413 n.2 (“Normally,
collateral issues of this type would, on remand in the civil
courts, be settled in a hearing before the trial judge. The
court-martial structure, under the Uniform Code of Military
Justice, however, is such that this cannot be accomplished.”).
In the military justice system, issues such as ineffective
assistance of counsel may be raised during direct appeal, and
the appellate court determines whether to order a factfinding
hearing using the procedure established in DuBay. Id.; see
United States v. Campbell, 57 M.J. 134, 138 (C.A.A.F. 2002). In
such cases, we resolve the question of whether a factfinding
hearing is necessary by applying standards similar to those
employed in the Article III courts in the course of deciding
whether a factfinding hearing is necessary on collateral review.
See United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997).
At the time of our direct review of Petitioner’s case, we
applied a standard that arguably provided appellants with an
even broader opportunity to obtain a post-conviction hearing.
See, e.g., United States v. Wean, 37 M.J. 286, 2888 (C.M.A.
1993) (requiring a DuBay hearing or additional affidavits when
defense counsel affidavits were “inadequate or nonresponsive”);
14
Loving v. United States, No. 06-8006/AR
United States v. Perez, 18 C.M.A. 24, 26, 39 C.M.R. 24, 26
(1968) (stating that a hearing is required to resolve
conflicting affidavits if “the evidence before us does not so
compellingly demonstrate [the] accuracy of recollection by one
as opposed to the other . . . as to justify determination of the
issue on the basis of the affidavits”).
5. Habeas review of Sixth Amendment claims in the absence of a
hearing during direct review
As discussed earlier, the Supreme Court in Massaro
identified a number of problems associated with reliance on
direct appeal to resolve ineffective counsel claims, focusing
primarily on the difficulty of ascertaining the pertinent facts:
“When an ineffective-assistance claim is brought on direct
appeal, appellate counsel and the court must proceed on a trial
record not developed precisely for the objective of litigating
or preserving the claim and thus often incomplete or inadequate
for this purpose.” 538 U.S. at 504-05. With respect to the
constitutional standard, the Supreme Court noted:
Under Strickland v. Washington, 466 U.S. 668
(1984), a defendant claiming ineffective counsel
must show that counsel’s actions were not
supported by a reasonable strategy and that the
error was prejudicial. The evidence introduced
at trial, however, will be devoted to issues of
guilt or innocence, and the resulting record in
many cases will not disclose the facts necessary
to decide either prong of the Strickland
analysis.
15
Loving v. United States, No. 06-8006/AR
Id. at 505. The Supreme Court emphasized that further
proceedings were needed not only to ascertain the facts, but
also to place the facts in the proper context:
If the alleged error is one of commission, the
record may reflect the action taken by counsel
but not the reasons for it. The appellate court
may have no way of knowing whether a seemingly
unusual or misguided action by counsel had a
sound strategic motive or was taken because the
counsel’s alternatives were even worse. The
trial record may contain no evidence of alleged
errors of omission, much less of the reasons
underlying them. And evidence of alleged
conflicts of interest might be found only in
attorney-client correspondence or other documents
that, in the typical criminal trial, are not
introduced.
Id. (citation omitted).
The Supreme Court specifically linked the issue of factual
development to the second prong of Strickland: “Without
additional factual development, moreover, an appellate court may
not be able to ascertain whether the alleged error was
prejudicial.” Id. In the course of discussing the procedure,
the Supreme Court highlighted the critical role of a hearing on
the issue of ineffective assistance:
The court may take testimony from witnesses for
the defendant and the prosecution and from the
counsel alleged to have rendered the deficient
performance. See, e.g., Griffin, supra, at 1109
(In a § 2255 proceeding, the defendant “has a
full opportunity to prove facts establishing
ineffectiveness of counsel, the government has a
full opportunity to present evidence to the
contrary, the district court hears spoken words
we can only see in print and sees expressions we
16
Loving v. United States, No. 06-8006/AR
will never see, and a factual record bearing
precisely on the issue is created[.]”).
Id. at 505-06.
As noted in section II.B.3., supra, the Supreme Court left
open in Massaro the question of whether consideration of a Sixth
Amendment claim on direct review of a federal conviction
precluded habeas review of the same matter. There is nothing in
the Supreme Court’s decision, however, that suggests that it
would be appropriate to preclude habeas review in a case where a
petitioner, during direct review, did not have an adequate
opportunity to develop the factual basis for a post-conviction
Sixth Amendment claim under Strickland. On the contrary, in
view of the Supreme Court’s emphasis on the importance of
factfinding, it would be inappropriate to preclude habeas review
of a Strickland claim previously considered on direct review
unless a petitioner had a full and fair opportunity to have a
court address factual matters during direct review.
This Court has no factfinding powers. See Article 67(c),
UCMJ, 10 U.S.C. § 867(c) (2000). Accordingly, we can only
afford an opportunity for factual resolution on direct appeal by
applying the standards in Ginn to determine whether an appellant
has presented a Strickland claim requiring a DuBay hearing. If
an appellant has made such submission on direct review, and we
17
Loving v. United States, No. 06-8006/AR
have not ordered a DuBay hearing, then the appellant has not
received a full and fair hearing on the Strickland issue.
III. APPLICATION OF HABEAS CORPUS PRINCIPLES
A. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
In evaluating Petitioner’s claim of ineffective assistance
of counsel in failing to conduct a reasonable investigation into
reasonably available mitigating evidence under the standards and
procedures identified in part II, supra, we look to determine
whether defense counsel’s decisions as to this investigation
were “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1). That
“clearly established Federal law” is found in Strickland, 466
U.S. at 490.
The Strickland Court articulated a two-pronged test for
determining the claimed ineffectiveness of defense counsel’s
representation. First, in light of the facts and all the
circumstances of the particular case, and when viewed at the
time of counsel’s conduct, were the complained-of acts or
omissions outside the wide range of professionally competent
assistance? Id. at 690. That is, did the performance fall
“below an objective standard of reasonableness” measured “under
prevailing professional norms”? Id. at 688. Second, is there a
18
Loving v. United States, No. 06-8006/AR
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different
-- a probability sufficient to undermine confidence in the
outcome? Id. at 694. Pertinent to the petition now before us,
the Supreme Court stated:
These standards require no special amplification in
order to define counsel’s duty to investigate, the
duty at issue in this case. As the Court of Appeals
concluded, strategic choices made after thorough
investigation of law and facts relevant to plausible
options are virtually unchallengeable; and strategic
choices made after less than complete investigation
are reasonable precisely to the extent that reasonable
professional judgments support the limitations on
investigation. In other words, counsel has a duty to
make reasonable investigations or to make a reasonable
decision that makes particular investigations
unnecessary. In any ineffectiveness case, a
particular decision not to investigate must be
directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference
to counsel’s judgments.
Id. at 690-91.
Petitioner argues that, in evaluating the reasonableness of
his defense counsel’s investigation, we ought to apply
retroactively what he considers to be a “new rule” found in the
Supreme Court’s intervening decision in Wiggins v. Smith, 539
U.S. 510 (2003). There, 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. Id. at 519-34.
19
Loving v. United States, No. 06-8006/AR
Apart from whether retroactive application would be
appropriate under the standards discussed in section II.B.1.,
supra, there is no basis upon which to conclude that the
decision in Wiggins represents a “new rule.” After discussing
its earlier decision in Williams v. Taylor, 529 U.S. 362 (2000),
and referring to that opinion as “illustrative of the proper
application of [the Strickland] standards,” the Wiggins Court
said of its decision in Williams: “In highlighting counsel’s
duty to investigate, . . . we applied the same ‘clearly
established’ precedent of Strickland we apply today.” Wiggins,
539 U.S. at 522. Accordingly, recognizing that both Williams
and Wiggins serve only to illustrate the appropriate application
of Strickland’s standard to claims of inadequate investigation,
they do not represent a “new rule” for purposes of retroactive
application. As such, we should reject Petitioner’s reliance on
Wiggins as the basis for relief or as a vehicle for
retroactively applying any new legal concepts during collateral
review of Petitioner’s Sixth Amendment claims. See Smith v.
Dretke, 422 F.3d 269, 279 (5th Cir. 2005). Applying the
limitations on retroactivity that govern habeas proceedings,
Strickland, not Wiggins, provides the appropriate yardstick for
assessing whether the writ should issue. Cases such as Wiggins
and Williams may be pertinent to the extent that they illustrate
20
Loving v. United States, No. 06-8006/AR
a proper Strickland analysis, but they cannot be used to
substitute for or expand the scope of Strickland.
We apply the habeas framework to Petitioner’s claims of
ineffective assistance of counsel by determining, first, whether
Petitioner has received a full and fair hearing of these claims.
If he did not receive such a hearing, we then must consider
whether there was an appropriate determination during direct
review that no hearing was required into those claims. If a
hearing into the factual basis for Petitioner’s claims was
required, Petitioner now is entitled to a full and fair hearing
of those claims.
During the sentencing proceeding at trial, defense counsel
presented testimony from members of Petitioner’s family,
individuals from the community in which he was raised, officials
from the detention facility, and a fellow servicemember. The
sentencing testimony addressed the negative environment in
Petitioner’s family, violence in the community during his
formative years, and other mitigating factors. As noted in the
lead opinion, appellate defense counsel have submitted post-
trial affidavits from members of Petitioner’s family and others
containing substantial details not presented at trial. These
affidavits paint a much more graphic picture of Petitioner’s
background than the testimony presented at trial, including
detailed information concerning Petitioner’s childhood alcohol
21
Loving v. United States, No. 06-8006/AR
and drug abuse, the systematic physical violence family members
inflicted on Petitioner, family rejection of Petitioner,
including knowledge that his mother wanted to preclude his birth
through an abortion, and violence in the community directed at
the family in general and Petitioner in particular, including
the use of firearms against Petitioner.
At trial, the prosecution’s closing argument on sentencing
emphasized that the defense had presented little information
that would connect the home and community environment to any
effect on Petitioner. The detailed information reflected in the
affidavits of potential witnesses submitted on appeal, if
sufficiently reliable for presentation at trial, might well have
provided the necessary link.
This Court does not have factfinding powers. As a result,
we were not in a position during direct review of Petitioner’s
conviction to evaluate appellate defense counsel’s contention
that the information was both reliable and outcome
determinative. Likewise, without factfinding powers, we were
not in a position during direct review to evaluate the
Government’s contention that the affidavits from defense counsel
provided a conclusive basis for determining that counsel were
not ineffective; nor were we in a position to determine that the
information in the affidavits from others would not have had a
significant effect during the sentencing process.
22
Loving v. United States, No. 06-8006/AR
Given the important mixed questions of fact and law raised
by the post-trial affidavits, a hearing should have been ordered
on direct review under the then-current standards set forth in
Wean and Perez. See section II.B.4., supra. Moreover, as set
forth in the lead opinion, a hearing is required at the present
time under Ginn.
During habeas hearings at both the state and federal level,
factfinding courts evaluate the reliability and impact of the
type of information submitted by appellate defense counsel in
the present case. In the military justice system, a similar
evaluation may be made in a DuBay hearing that receives
testimony from potential witnesses as to what they would say at
trial and from defense counsel concerning both their
investigation and trial strategies. Such a hearing can
identify: (1) the specific sources of mitigation or rebuttal
information omitted or incompletely presented at trial; (2)
whether such omitted or incomplete sources of information should
have been identified in an investigation by or under the
direction of a competent attorney under Strickland; (3) whether
such information, if properly investigated, would have provided
a significant addition to the information available for
presentation at trial; (4) whether the availability of such
information reasonably could have led counsel to change trial
tactics in specific respects; (5) whether any such change in
23
Loving v. United States, No. 06-8006/AR
trial tactics might have had an impact on the trial outcome; and
(6) whether, in light of such impact, any deficiency of counsel
resulted in prejudicial error under Strickland. The questions
set forth in the lead opinion provide the appropriate framework
for a hearing on these issues.
B. THE RING CLAIM
Under the standards set forth in section II.B.1., supra, I
agree with the lead opinion that Petitioner is not entitled to
relief under Ring v. Arizona, 536 U.S. 584 (2002). See Schriro
v. Summerlin, 542 U.S. 348 (2004).
24
Loving v. United States, No. 06-8006/AR
CRAWFORD, Judge (dissenting):
I respectfully dissent from the action of the majority
ordering a hearing in this case under United States v. DuBay,
17 C.M.A. 147, 37 C.M.R. 411 (1967), because, in so doing, the
majority ignores both the facts that have already been “salted
down” in the record of trial as well as this Court’s previous
review of those facts. Neither the facts nor the legal
standards applicable to the facts have changed since this Court,
on direct appeal in 1994, thoroughly reviewed Petitioner’s
allegations of ineffectiveness of counsel under the standards
set forth in Strickland v. Washington, 466 U.S. 668 (1984).
Wiggins v. Smith, 539 U.S. 510 (2003), did not change the
Strickland standard, and in any event, Wiggins is clearly
distinguishable from this case. Just as they were in 1994, the
facts are present in the record of trial1 without resorting to a
DuBay hearing to decide the Strickland issue. I must then ask
the question, what other than the personnel at this Court, has
changed since 1994?
1
The affidavits submitted by Petitioner’s family members with
details regarding Petitioner’s childhood were admitted by this
Court as appellate exhibits on April 23, 1993. United States v.
Loving, 38 M.J. 178 (C.M.A. 1993). The original opinion in this
case was decided on November 10, 1994. United States v. Loving,
41 M.J. 213 (C.A.A.F. 1994). Petitioner’s three defense counsel
provided affidavits in March 1992 in response to an order of the
Army Court of Military Review. Affidavit of JDS, dated March 4,
1992; Affidavit of WHI, dated March 2, 1992; Affidavit of DLH,
dated March 3, 1992.
Loving v. United States, No. 06-8006/AR
I. STANDARD OF REVIEW
If a petitioner was given full and fair consideration to
each of his claims on a standard that has remained unchanged,
the petitioner is not entitled further review of the same issue.
“[W]hen a military decision has dealt fully and fairly with an
allegation raised in that application, it is not open to a
federal civil court to grant the writ simply to re-evaluate the
evidence.” Burns v. Wilson, 346 U.S. 137, 142 (1953) (citation
omitted). In this case, counsel had every reasonable condition
and tool to raise the issue of effectiveness of counsel during
the action by the convening authority. Such motion raised to
the convening authority then would be “ruled upon by the same
. . . judge who presided at trial.” Massaro v. United States,
538 U.S. 504, 506 (2003). That “judge, having observed the
earlier trial, should have an advantageous prospective for
determining the effectiveness of counsel’s conduct and whether
any deficiencies were prejudicial.” Id. After that stage,
counsel representing Petitioner, the same counsel present on
this appeal, years later2 was not hesitant to raise issues
concerning the performance of trial defense counsel and presents
no evidence of being in “an awkward position in vis-a-vis trial
2
Compare the one-year time limitation under the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C.
§ 2244(d)(1)(2000), and the two-year new trial time limitation
in the military. Rule for Courts-Martial (R.C.M.) 1210.
2
Loving v. United States, No. 06-8006/AR
[defense] counsel.” Id.3 Thus, Petitioner’s counsel could be
assured the facts, on a common issue -- not a novel issue, were
correctly found and applied during our direct review of this
case.4 We should not repeat the process we have already
carefully performed by reviewing this issue again. This Court’s
prior decision is and should be considered final.
Federal statutes also limit other circuit courts’ review of
habeas corpus claims where the same issue was litigated on
direct appeal. The Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), 28 U.S.C. § 2254(d)(2000), which is
persuasive authority, provides that a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of a
state court shall not be granted with respect to any claim that
was adjudicated on the merits in the state court proceedings
unless the adjudication of the claim resulted in a decision that
was: (1) contrary to, or involved an unreasonable application
of, clearly established federal law as determined by the United
States Supreme Court; or (2) based on an unreasonable
3
In the military justice system, one of the most frequently
litigated issues is the effectiveness of counsel. Francis A.
Gilligan & Fredric I. Lederer, Court-Martial Procedure
§ 5-55.00, at 201-13 (2d ed. 1999 & 2004 Supp.) and cases cited
therein.
4
Appellate defense counsel raised numerous appellate issues in
Loving, 41 M.J. at 227. One of the issues raised was the
effectiveness of counsel. Id. at 299. “As they did before the
court below, they have not identified in what particulars the
investigation was inadequate or what additional issues should
have been raised.” Id.
3
Loving v. United States, No. 06-8006/AR
determination of the facts in light of the evidence presented at
the state court proceeding. The “unreasonable application”
prong permits a federal habeas corpus court to grant the writ if
the state court identifies the correct governing legal principle
from the Supreme Court’s decisions, but unreasonably applies
that principle to the facts of a petitioner’s case.
This Court, on direct appeal, adjudicated Petitioner’s
claim that his trial defense counsel were ineffective for
failing reasonably to investigate his background for mitigation
evidence. In evaluating that claim, we applied the standard
established in Strickland, the same standard applied in Wiggins
and the same standard applied to such claims today. In
accordance with 28 U.S.C. § 2254(d), habeas review of this issue
is barred unless this Court’s decision “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States . . . [or] . . . was based on an unreasonable
determination of the facts in light of the evidence presented in
the [original] proceeding.” 28 U.S.C. § 2254(d)(1) and (2).
Since this Court reviewed the issue of ineffective assistance of
counsel,5 including the “reasonableness” of trial defense
5
The majority relies on essentially the same post-trial
affidavits and documents it had before it on the direct appeal
to now conclude that it did not review the “reasonableness” of
the investigation by defense counsel.
4
Loving v. United States, No. 06-8006/AR
counsel’s investigation on direct review and applied the
appropriate standard set out in Strickland, AEDPA bars further
review of this issue.
In addition, the law of the case doctrine and the doctrine
of finality preclude review of the issues raised by Petitioner.
To allow unlimited extraordinary writs would be an abuse of
discretion. “The interest in finality of judgments dictates
that the standard for a successful collateral attack on a
conviction be more stringent than the standard applicable on a
direct appeal.” United States v. Stoneman, 870 F.2d 102, 103
(3d Cir. 1989). This case demonstrates the need for finality.
II. THE ISSUE AND FACTS REGARDING THE INEFFECTIVE ASSISTANCE
OF COUNSEL CLAIM WERE ADDRESSED ON DIRECT APPEAL.
The majority concludes that “in light of” Wiggins, it does
“not have the factual predicate to determine if our prior
decision addressing the issue of ineffective assistance of
counsel is correct.” The majority, however, notes that Wiggins
“applied the ‘clearly established’ precedent of Strickland v.
Washington” and then cites Wiggins, citing Strickland, for the
proposition that “defense counsel has a fundamental duty to
perform a reasonable investigation.”
5
Loving v. United States, No. 06-8006/AR
Wiggins cites Strickland throughout the opinion and never
establishes any new rules.6 Wiggins is a fact-based decision and
did not change the law with regard to evaluating ineffective
assistance of counsel claims. Those courts which have addressed
or applied Wiggins have recognized this and have distinguished
Wiggins.7 The majority, however, attempts to make something out
of Wiggins which was never intended by the Supreme Court.
6
The majority opinion describes Wiggins as clarifying and
illuminating “the standards for a reasonable investigation in a
criminal trial, in general, and in a death penalty case, in
particular.”
7
See McHone v. Polk, 392 F.3d 691, 710 (4th Cir. 2004):
Accordingly, we hold that where, as here, counsel has
investigated and presented mitigating evidence pertaining
to petitioner’s childhood and that the jury has credited
such evidence and nonetheless imposed the death penalty,
that counsel’s decision not to investigate further,
particularly where such investigation would bear little
-- if any -- fruit, cannot support a Strickland claim.
Johnson v. Bell, 344 F.3d 567, 574 (6th Cir. 2003) (Court held
that the testimony of petitioner’s family during mitigation
sentencing would not have held up to the quantum of evidence
necessary to pass the second “prejudice” prong of Strickland
because the court did not see how this testimony would have
created a reasonable probability that the jury would have found
against the death penalty had they heard this testimony.);
Wilson v. Ozmint, 352 F.3d 847, 866 (4th Cir. 2003) (Unlike in
Wiggins, the appellant’s counsel made the decision to not
present additional mitigation evidence after a thorough
investigation.); Coble v. Dretke, 444 F.3d 345, 356 (5th Cir.
2006) (“Unlike in Wiggins, Coble’s attorneys not only
investigated his background, they also offered a mitigation
case.”); Marshall v. Hendricks, 313 F. Supp. 2d 423, 440
(D.N.J. 2004) (“Although several Supreme Court decisions have
applied Strickland to ineffective assistance of counsel claims
at the sentencing phase of a capital trial, all are factually
distinguishable from the present case.”); Bucklew v. Luebbers,
6
Loving v. United States, No. 06-8006/AR
Wiggins addresses a state court’s misapplication of the
Strickland standard. 539 U.S. at 551. It did not modify the
Supreme Court’s interpretation of Strickland. In this case, the
majority is now holding that this Court “did not focus on the
investigative aspects leading to defense counsel’s tactical
decision in sentencing” when reviewing the case on direct
appeal, even though this Court found that defense counsel “made
reasonable tactical decisions related to the sentencing
proceeding.” I believe that on direct appeal, this Court did
evaluate the reasonableness of the defense counsel’s
investigation. The evidence necessary to make such evaluation
was before this Court at the time in the record itself, as well
as in the numerous affidavits submitted as appellate exhibits
from the three trial defense counsel.8 The affidavits and
documents that the majority relies on to conclude there was
“powerful mitigating evidence” which was not investigated were
before this Court on direct appeal, including the testimony of
the family members and acquaintances at trial.9
436 F.3d 1010, 1014 n.3 (8th Cir. 2006) (Court agreed with
district court’s interpretation that Wiggins did not establish a
“supervening precedent but demonstrate[d] specific applications
of Strickland to particular fact situations.”).
8
Affidavit by JDS dated March 4, 1992; Affidavits by WHI dated
March 2 1992, February 22, 1993, February 23, 1993,
respectively; Affidavits by DLH dated March 3 1992, February 7,
1993, respectively.
9
The family’s affidavits were admitted by the Court on April 23,
1993, as Appellate Exhibits. 38 M.J. 178-79 (C.M.A. 1993).
7
Loving v. United States, No. 06-8006/AR
III. EXAMINING THE FACTS UNDER STRICKLAND AND WIGGINS
These facts were “salted” away in the record of trial, and
the appellate exhibits reveal what actions were taken and the
thought processes of trial defense counsel in this case. The
record shows the numerous witnesses and evidentiary exhibits
that were presented by the defense during the sentencing hearing
and significantly, what evidence trial defense counsel and their
forensic psychiatrist evaluated, considered, and discussed among
themselves and with Petitioner before deciding on a strategy and
what evidence actually to present and not present on the merits
and during sentencing.
Investigation of Petitioner’s Background
In this case, trial defense counsel visited Petitioner’s
hometown.10 They interviewed family members, teachers, friends,
acquaintances, and reviewed school records. They interviewed
members of Petitioner’s unit and Petitioner. Trial defense
counsel did conduct an investigation and then ultimately
presented testimony and documents that this investigation
yielded at trial.11
10
In Wiggins, the defense counsel relied on a report to evaluate
the Wiggins’s background and determine whether to investigate
any further. 539 U.S. at 524. In this case, trial defense
counsel visited and interviewed a number of individuals from
Petitioner’s hometown, family, school, background, and unit.
The defense presented numerous witnesses and documents at trial.
Petitioner’s counsel did investigate his case.
11
According to their affidavits, trial defense counsel:
8
Loving v. United States, No. 06-8006/AR
Investigation of Petitioner’s Physiological and
Psychological Background
The defense considered and inquired about potential
physiological reasons, such as a prior head injury or brain
abnormality, to explain or mitigate Petitioner’s actions. The
defense had at their disposal a sanity board and a forensic
psychiatrist. Dr. David Armitage is a forensic psychiatrist who
holds professional degrees in medicine and law.12 He was the
Associate Chairman for Forensic Science and Litigation Support,
Department of Legal Medicine, Armed Forces Institute of
Pathology, Washington, D.C., and Consultant Emeritus to the
Surgeon General of the Army on Forensic Psychiatry. Loving,
41 M.J. at 240. He was part of the defense team and thus his
tests, evaluations, and advice were covered and protected by the
attorney-client privilege.
In their affidavits, trial defense counsel discussed Dr.
Armitage’s extensive involvement and participation in the
did extensive investigation of Private Loving’s past,
from birth through the date of the offenses. Major
[H] spent approximately a week in Private Loving’s
home town speaking with his family, his . . .
teachers, his neighbors, religious leaders who knew
him and the coaches who worked with him. We
interviewed dozens of people in Private Loving’s unit
and numerous friends and acquaintances. We had long
discussions with Private Loving himself.
12
Wiggins’s attorney did not utilize the services of a forensic
psychiatrist or request additional psychological testing as was
conducted in Petitioner’s case.
9
Loving v. United States, No. 06-8006/AR
preparation and trial of this case. Dr. Armitage met
“extensively with Private Loving, and [trial defense counsel]
obtained all the psychological and medical testing Dr. Armitage
needed to provide the [defense] a proper evaluation of the case
from his perspective.”13
Investigation of Petitioner’s Alcohol and Drug Use
The defense also considered whether to present a partial
mental responsibility defense or diminished capacity defense
based on alcohol and drug intoxication. The defense was aware
of Petitioner’s history of drug and alcohol use, to include his
claim of ingesting alcohol, cocaine, and marijuana or hashish
before and during the crime spree. Considering the
circumstances surrounding the two robberies, the two
murder/robberies, and the attempted murder/robbery, as well as
Petitioner’s detailed recall of the events without remorse to
law enforcement shortly after the crimes, attempts to show
Petitioner was drunk or drugged or his actions were the result
13
Unlike in Wiggins, Petitioner was interviewed extensively by
Dr. Armitage and other tests and evaluations Dr. Armitage
thought were appropriate were conducted. Dr. Armitage
participated in evaluating not only the psychiatric evidence
present in the case, but also assisted trial defense counsel in
evaluating the evidence in the entire case, as well as how
certain presentations or strategies would be more favorably
received by the court members. Dr. Armitage even prepared
personality profiles of the court members for trial defense
counsel to assist in this assessment.
10
Loving v. United States, No. 06-8006/AR
of some kind of diminished capacity were not feasible and
fraught with potential risk.
Trial defense counsel and Dr. Armitage weighed, reviewed,
and evaluated the results of all psychological and medical
testing conducted on Petitioner with the evidence of his
intoxication at the time of the crime spree. Concluding that
the evidence would have to come in through the testimony of
Petitioner, the defense team then considered whether that
strategy would be the best one for this case. Based on their
own experiences and consultations with their expert and other
experienced counsel, their observations of Petitioner’s
inability to present himself well as a witness, as well as the
Government’s ability to counter any expert testimony with
evidence that Petitioner had sociopathic personality traits,14
trial defense counsel decided that course of action would not be
the most beneficial.
Strategy Decisions: Avoid Opening the Door to
Evidence of a Sociopathic Personality
In Petitioner’s case, the members heard an extensive amount
of evidence about his difficult life, the problems with his
14
The defense was concerned that the Government would be able to
counter any intoxication defense by pointing out the details of
the crimes themselves, and Petitioner’s ability to recall the
intricate details as well as his thought processes during the
crimes to law enforcement personnel without the prompting or
intensive questioning that usually accompany an interview of a
suspect.
11
Loving v. United States, No. 06-8006/AR
family and school, his problems with alcohol and drugs, that he
was a victim of and exposed to violence, and that he was
obsessive of his manipulative girlfriend. Trial defense
counsel, in conjunction with Dr. Armitage, conducted an
extensive investigation of Petitioner, his family, friends,
acquaintances, teachers, and work associates. They thought
about the potential issues or defenses and what kind of evidence
would support those theories. After they performed their
investigation, they carefully reviewed what they had and then
made an informed decision, in consultation with Petitioner, on
what course of action would be best to save Petitioner from a
death sentence.
There is no indication in this case from the numerous
affidavits and records presented by appellate counsel that
further investigation by trial defense counsel at the time of
the trial would have revealed any other potential defenses or
minimized aggravating factors in Petitioner’s background.
Significantly, at the same time defense counsel were trying to
present a particular picture of Petitioner, trial defense
counsel were cautious and cognizant of doing what was necessary
to avoid opening the door to evidence that would show Petitioner
had a propensity to repeat this type of misconduct in the
future. This evidence would have guaranteed a death sentence.
Also, unlike in Wiggins, Petitioner’s defense counsel did
12
Loving v. United States, No. 06-8006/AR
present an extensive mitigation case during the merits of the
case, as well as during the sentencing phase, in an attempt to
convince the members that Petitioner would not be a further
threat to society if confined and that confinement for life was
appropriate over a sentence to death.
In this case, Petitioner had been exposed to, and was
involved in, violent behavior.15 In addition, Dr. Armitage
believed Petitioner had a sociopathic personality and would
commit this type of misconduct in the future. If Dr. Armitage
testified, he would be subject to interview and cross-
examination by the Government. There was a real potential that
the Government could present very damaging evidence that would
further support the death sentence.
Although the defense strategy was not to rely on a
diminished capacity defense based on alcohol or drug
intoxication, the defense attempted to solicit evidence of
Petitioner’s intoxication on the night of the murders from his
girlfriend. However, the only way the defense could actually
get this evidence before the members was by having Petitioner
testify. The defense team, after consulting with Dr. Armitage,
15
According to a Sanity Board Report and affidavits, Petitioner
sexually assaulted his ten-year-old female niece when he was
around sixteen years of age. He acknowledged engaging in sexual
molestation of other young girls but did not provide any
details. Petitioner also acknowledged involvement in petty
crimes and drug abuse as well as fighting.
13
Loving v. United States, No. 06-8006/AR
and having had the opportunity to observe Petitioner’s demeanor,
decided that Petitioner “would likely become angry when cross-
examined and exhibit a personality more representative of a
homicidal maniac than a confused, misunderstood, desperate and
disadvantaged youth.” Trial defense counsel believed that if
Petitioner testified, he “might laugh or otherwise react
inappropriately to a sensitive subject as [they] had seen him do
on a number of occasions.” The defense made a cognitive
decision that this was not the strategy they were pursuing.
Trial defense counsel concluded that establishing that
Petitioner was using alcohol and drugs -- in particular cocaine
-- to give him courage to commit such heinous crimes, was not
the best strategy in front of a military jury.16
Contrary to assertions by appellate defense counsel and
claims made in defense appellate exhibits at the time of the
trial, there was no indication that family, friends or
acquaintances from Petitioner’s hometown and prior life were
hesitant to talk to or cooperate with Petitioner’s counsel.
Appellate defense counsel’s claim that it was Petitioner’s
16
Defense counsel concluded that Petitioner was unable to
testify effectively in his own defense. “Despite extensive work
with Dr. Armitage, and a number of sample direct and cross
examination exercises conducted by the defense team, Private
Loving usually did himself more harm than good on these ‘test
runs.’ . . . [He had] a tendency to smile when giving answers
concerning the killings.” He also was “easily led and easily
frustrated.”
14
Loving v. United States, No. 06-8006/AR
family members who were reluctant to be forthcoming with defense
counsel is inconsistent with the fact that these witnesses did
testify at trial and apparently cooperated with trial defense
counsel in providing information about Petitioner.
Trial defense counsel sought out evidence of whether
Petitioner’s girlfriend was involved in drug dealing and the
murders and robberies. It was the friends of Petitioner’s
girlfriend whom trial defense counsel thought were reluctant to
speak with them. Trial defense counsel felt the friends were
reluctant to talk based on the actions or conversation they may
have had with a local Texas Ranger. Trial defense counsel had
no evidence of any specific conversations or actions by the
Texas Ranger but had “an impression” he may have said something
to cause them to be less than forthcoming about Petitioner’s
girlfriend.
Summary of the Wiggins Application
Applying the Strickland standard, the Supreme Court in
Wiggins held that the petitioner’s claim of ineffective
assistance of counsel should not be evaluated by examining
whether counsel should have presented a mitigation case, but
whether the investigation supporting their decision not to
introduce mitigating evidence of Petitioner’s background was
itself reasonable. 539 U.S. at 533. Thus, this Court should
conduct an objective review of the trial defense counsel’s
15
Loving v. United States, No. 06-8006/AR
performance, measured for reasonableness under prevailing
professional norms, including a context-dependent consideration
of the challenged conduct as seen from trial defense counsel’s
perspective at the time of that conduct.
In Wiggins, trial defense counsel did not expand their
investigation beyond the presentence investigation report and
the Social Services records. Id. at 524. The Supreme Court
found that this lack of action fell short of the professional
standards prevailing in Maryland in 1989. Id. The Supreme
Court concluded that information in those reports should have
prompted counsel to pursue leads that would have allowed the
counsel to make an informed choice as to possible defenses. Id.
at 525. In Wiggins, trial defense counsel did not present much
of a mitigation case. See id. at 526. And, apparently there
were no aggravating factors in Wiggins’s background and trial
defense counsel did not discover any evidence to suggest that a
mitigation case would have been counterproductive or that
further investigation would have been fruitless. Id. at 535.
Petitioner’s situation was much different than Wiggins’s
situation.
In Petitioner’s case, trial defense counsel did not stop or
rely on a “presentence report” to evaluate what sentencing
evidence may or may not exist. First, trial defense counsel had
on the defense team, Dr. Armitage, a premier forensic
16
Loving v. United States, No. 06-8006/AR
psychiatrist who talked to and evaluated Petitioner personally
and reviewed previous mental health evaluations. The defense
team did pursue with Dr. Armitage potential evidence of
psychiatric or psychological evidence. Unfortunately, the
evidence did not exist with regard to Petitioner. Second, trial
defense counsel visited and interviewed Petitioner’s family and
acquaintances in Petitioner’s hometown to determine what, if
any, mitigating or extenuation evidence may exist. Many of
Petitioner’s family members, as well as childhood mentors,
testified either in person or via stipulation to show that
Petitioner was a “confused, misunderstood, desperate and
disadvantage youth.” In addition, the defense presented
testimony from the noncommissioned officers from the confinement
facility to show Petitioner had been a good worker while in
pretrial custody and had adjusted to confinement. Trial defense
counsel were also able to obtain from cross-examination of the
Petitioner’s battery commander that Petitioner responded well to
leadership and was doing well until his involvement with his
girlfriend.
Rather than taking the “shot gun” approach, trial defense
counsel, after thorough consideration, decided that their
strategy would be to focus on demonstrating a connection between
Petitioner’s current misconduct and his past problems, his
upbringing, his exposure to violence, lack of good leadership in
17
Loving v. United States, No. 06-8006/AR
his family environment, the fact that he has a tendency to be
led, and that he had an obsession with his girlfriend who the
defense attempted to portray as a manipulative user.17 While the
defense attempted to demonstrate a nexus between Petitioner’s
past18 and his misconduct, they also wanted to demonstrate that
Petitioner could function and conform his actions in an
environment of strong leadership to include confinement. The
defense strategy was to present an extenuating and mitigating
case on the merits and on sentencing. The defense’s end game
was to avoid the death sentence and convince the panel members
that confinement for life was a more appropriate punishment.
The defense used everything at their disposal -- witnesses,
documentary evidence, voir dire, and argument -- to portray
their theory and to avoid opening the door for damaging evidence
the Government could potentially use to counter their theory.
17
To support the theory that Petitioner’s girlfriend was the
source of his misconduct, the defense presented evidence that
Petitioner was a “naive, immature, individual who could be
easily manipulated.” They presented members from Petitioner’s
unit to talk about the effect the girlfriend had on Petitioner.
18
Specifically, part of the defense strategy was to essentially
show that “a poor upbringing created an enhanced risk” of
misconduct. In order to do this, the defense:
presented evidence about the violence in Private
Loving’s neighborhood, the poor quality of his family
(particularly his father), and the poor conditions at
his school. . . . how his father was a burned out
alcoholic with a long criminal record and put on
Private Loving’s older brother and mentor, a man with
a violent past.
18
Loving v. United States, No. 06-8006/AR
The facts in the case demonstrate that trial defense
counsel, in conjunction with their forensic psychiatrist,
clearly conducted a “reasonable” investigation of Petitioner,
his family, his upbringing, his drug and alcohol use, and any
potential defenses before deciding on a strategy for presenting
a defense and a basis for the members to adjudge a life sentence
versus a sentence to death. Trial defense counsel did not
abandon their investigation at an unreasonable juncture. They
looked at everything that was available to them at that point in
time. They considered it. They even discussed the strategy
with their client. They made decisions based on their
experience as to what they thought would be the best course of
action to preclude the members from adjudging a sentence of
death. We cannot -- and should not -- evaluate trial defense
counsel’s strategic choices solely based on the members’ final
decision.
IV. AGGRAVATING NATURE OF PETITIONER’S CRIMES
WAS THERE PREJUDICE?
Defense counsel are presumed competent and the burden to
prove there is a constitutional violation is on the petitioner.
United States v. Cronic, 466 U.S. 648, 658 (1948). “An
ineffective assistance claim has two components: A petitioner
must show that counsel’s performance was deficient, and that the
deficiency prejudiced the defense.” Wiggins, 539 U.S. at 521
19
Loving v. United States, No. 06-8006/AR
(citing Strickland, 466 U.S. at 687). Performance is deficient
if it falls below “an objective standard of reasonableness,”
which is defined in terms of prevailing professional norms.
Strickland, 466 U.S. at 688.
To establish prejudice, a petitioner must show there is a
reasonable probability that, but for counsel’s unprofessional
errors, the proceeding’s result would have been different. Id.
at 694. This Court should assess prejudice by reweighing the
aggravating evidence against the totality of the mitigating
evidence adduced both at trial and in the habeas proceedings.
Williams v. Taylor, 529 U.S. 362, 397-98 (2000).
The manner and circumstances surrounding the murders in
this case were heinous and egregious. Not only did Petitioner
commit the murders which subjected him to the possibility of a
death sentence, but he also committed three other serious crimes
close in time to the murders. And, one of those crimes would
likely have been a third murder if Petitioner had successfully
fired the weapon into the head of the third taxi driver.
Petitioner’s statement indicates it was his intent to shoot and
kill the third taxi driver. Any additional testimony by family
members or other individuals or evidence from further
psychological or physiological testing would not have not have
held up to the quantum of evidence necessary to pass the second
“prejudice” prong of Strickland. It is difficult to see how
20
Loving v. United States, No. 06-8006/AR
this testimony would have created a reasonable probability that
the members would have found against the death penalty had they
heard any of the additional evidence as posited by appellate
defense counsel. Compare Johnson, 344 F.3d at 571 (court could
not say that the additional testimony of family members would
have led to a different result and, in addition, the testimony
would have opened the door to rebuttal evidence which would have
undercut the image the defense would have tried to portray with
that evidence).
The court members viewed a videotape made during an
interview of Petitioner by the Army Criminal Investigation
Command the day after the murders and attempted murder of the
taxi cab drivers. The members observed Petitioner describe in
excruciating detail, without prompting or extensive questioning
by the agent, his acts of robbing the two 7-11 stores and
committing the murders and attempted murder of the taxi cab
drivers.
During his statement, Petitioner talked about how he
discussed with a friend who or what entity he could rob to get
$3,000 to $5,000 “quick” so he could buy his girlfriend a
Christmas present. His only real issue with each robbery and
murder was that he did not get much money from them and was far
from obtaining the amount of money he thought he needed.
21
Loving v. United States, No. 06-8006/AR
After the first two murders, Petitioner went to his
girlfriend’s house and told her what he had done. In his
statement, he said he told her “I’m real scared . . . . I’m not
scared that I shot them . . . . [I’m] scared because if I could
do something like that to two people like that, that it would
probably happen to, that I could probably do it again.”
Emphasis added. And, in just a few hours after this comment,
Petitioner did try to “do it again” when he attempted to rob and
shoot the third taxi cab driver.
During his crimes, it was Petitioner who was violent toward
his victims.19 Except for the third taxi cab driver who resisted
19
Petitioner talked about his girlfriend and how much he cared
for her to the first taxi cab driver, Private (PVT) Christopher
L. Fay. Petitioner was aware that PVT Fay was young and a
soldier. Petitioner shot PVT Fay in the back of the head when
he believed PVT Fay had not given Petitioner all of the money he
had with him. Petitioner sat there looking at the hole in the
back of PVT Fay’s head and the blood “gushing out.” He then
cocked the gun again and shot PVT Fay again in the head and then
he sat there observing “two holes in the back of [PVT Fay’s]
head.” Petitioner returned to his barracks room to count his
bounty. When Petitioner realized he didn’t get much money, he
thought about “nothing but . . . getting more money . . .
Because if I could do something like that nothing matters too
much” so he immediately went to call for a second taxi to rob.
He called for PVT Fay’s cab at about 8:00 p.m. He called for
the second cab at about 8:15 p.m. When Petitioner got into the
second cab with Bobby Sharbino, he engaged in a personal
conversation. Petitioner talked about the military and became
aware that Sharbino was in the military for twenty-one years and
that he was wearing a hearing aid. Before shooting Sharbino in
the head, Petitioner ordered him to lie down in the seat.
Sharbino complied with the order and then Petitioner shot him in
the head. Petitioner then returned to his girlfriend’s house.
Shortly thereafter, he accompanied her and some friends to a
22
Loving v. United States, No. 06-8006/AR
and fought off Petitioner, all of the victims of Petitioner’s
crimes were compliant and not aggressive towards Petitioner in
any respect. Petitioner was on a one-man crime spree. At the
time of his actions, as he indicated in his statement, he felt
he had nothing to lose by continuing to do what he was doing
until he got the money he wanted or thought he needed.
Fortunately, the spree came to an abrupt end when he failed to
murder the third taxi cab driver.
Like Wiggins, Petitioner did experience an excruciating
life growing up which included alcohol, drugs, sex, and
violence. But unlike Wiggins, Petitioner had a history of
local club. While at the club, Petitioner got into an
altercation with a man for looking at his girlfriend. He drew
the gun and invited the man to go outside. In the process,
Petitioner stumbled, dropped the weapon, which was cocked, and
it discharged. Petitioner and his girlfriend departed the club
in a cab. Petitioner dropped his girlfriend off to go to her
house but he stayed with the cab in order to commit another
robbery and murder. During the robbery, Petitioner grabbed the
back of Howard D. Harrison’s head and told him to open his
mouth. As Petitioner was attempting to shove the barrel of the
gun into Harrison’s mouth, Harrison grabbed the gun. As the two
men tussled over the gun, it discharged. Harrison tried to fire
the weapon at Petitioner but it would not fire. Petitioner bit
Harrison on the hand while still struggling over the gun.
Harrison, while holding onto the gun, attempted to get out of
the cab and then, Petitioner bit Harrison on the head. Harrison
tried to unsuccessfully fire the gun a second time. When it did
not fire, Harrison let the weapon go and hit Petitioner.
Petitioner then began biting Harrison on the back. Harrison
broke free and began to run but Petitioner pursued him.
Harrison stopped and then hit petitioner again. Petitioner took
off in the direction of his girlfriend’s house. After
Petitioner departed the area, Harrison went back to the cab to
call the dispatcher to report the incident.
23
Loving v. United States, No. 06-8006/AR
committing violent acts at a very young age. If the defense had
gone much further in presenting evidence of Petitioner’s
troubled childhood and psychological make-up, the Government
would have had an opportunity to show the likelihood Petitioner
would repeat his conduct.
Any additional mitigation evidence that might have been
presented could not have outweighed the brutality and senseless
nature of Petitioner’s crimes. Petitioner started acting out
violently as a young boy and he continued that progression of
violence until he reached the point of murdering one person,
then murdering another person, and then, attempting to murder a
third person over a period of a few hours on a single night.
Evidence of Petitioner’s background and violent life would have
done nothing but confirm that Petitioner was the type of person
who could perpetrate these malicious, merciless crimes. Any
more evidence of Petitioner’s violent life would only confirm
what Dr. Armitage and the defense counsel were trying to keep
from the members -- Petitioner had a “classic ‘sociopathic
personality’ and could very easily commit similar crimes in the
future.” Loving, 41 M.J. at 250. Appellate defense counsel
have not presented any evidence that would create a reasonable
probability that the members would have found against the death
penalty had they heard any additional evidence.
24
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V. CONCLUSION
This Court should not manipulate the “law” and the facts of
this case to achieve a particular end. I agree that the facts
of a case should be “salted down,” but the facts that have
already been “salted down” should not be ignored. Here, the
majority overlooks the facts in the original record of trial,
the post-trial affidavits previously presented, and this Court’s
previous review of those same facts. The issue of ineffective
of assistance of counsel with regard to whether trial defense
counsel conducted a reasonable investigation was thoroughly
reviewed on direct appeal. Regardless of whether this issue was
addressed on direct appeal, I believe the facts necessary to
conduct any further review are contained in the record as it
currently exists and that this Court can make a determination of
the reasonableness of trial defense counsel’s investigation
based on those facts. I disagree that a DuBay hearing is
necessary in this case. Applying Strickland, or Strickland in
“light of Wiggins,” I would deny the petition for extraordinary
relief based on the facts in this case. Therefore, I
respectfully dissent.
25