Loving v. United States , 68 M.J. 1 ( 2009 )

Dwight J. LOVING, Private
U.S. Army, Petitioner
v.
UNITED STATES, Respondent
No. 06-8006
Crim. App. No. 19891123
United States Court of Appeals for the Armed Forces
Argued October 29, 2008
Decided July 17, 2009
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, J., joined. EFFRON, C.J., filed a
separate concurring opinion. STUCKY, J., filed a separate
opinion concurring in part and in the result. RYAN, J., filed a
separate dissenting opinion.
Counsel
For Petitioner: Teresa L. Norris, Esq. (argued); Lieutenant
Colonel Mark Tellitocci and Captain William J. Stephens (on
brief).
For Respondent: Captain Adam S. Kazin (argued); Colonel Denise
R. Lind, Lieutenant Colonel Steven P. Haight, and Lieutenant
Colonel Mark H. Sydenham (on brief).
Amicus Curiae for Petitioner: Michelle M. Lindo McCluer, Esq.,
Jonathan E. Tracy, Esq., Eugene R. Fidell, Esq., and Stephen A.
Saltzburg, Esq. (on brief) -- for the National Institute of
Military Justice.
Military Judges: Stephen V. Saynisch (trial) and Theodore E.
Dixon (DuBay hearing)
This opinion is subject to revision before final publication.
Loving v. United States, No. 06-8006/AR
Judge ERDMANN delivered the opinion of the court.
Private Dwight J. Loving was convicted in 1989 of
premeditated murder, felony murder, attempted murder, and
several specifications of robbery. The court-martial sentenced
Loving to a dishonorable discharge, forfeiture of all pay and
allowances, and to be put to death. The United States Army
Court of Criminal Appeals affirmed the findings of guilty and
the sentence. United States v. Loving, 34 M.J. 956, 970
(A.C.M.R. 1992). We affirmed on direct review in 1994. United
States v. Loving, 41 M.J. 213, 300 (C.A.A.F. 1994), modified by
42 M.J. 109 (C.A.A.F. 1995). The Supreme Court affirmed that
decision in 1996. Loving v. United States, 517 U.S. 748, 774
(1996).
The case is now before us on Loving’s petition for
extraordinary relief in the nature of a writ of habeas corpus
alleging that defense counsel provided constitutionally
ineffective representation in the sentencing phase of his trial.
Assuming without deciding that the performance of Loving’s
defense counsel was deficient as alleged, we conclude that
Loving has failed to demonstrate that there is a reasonable
probability that, but for counsel’s deficient performance, the
result of the proceeding would have been different. We hold
that Loving has failed to meet his burden to establish prejudice
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under Strickland v. Washington, 466 U.S. 668 (1984), and deny
the petition for extraordinary relief in the nature of a writ of
habeas corpus.
BACKGROUND
1. Procedural Background
When a court-martial sentence includes the death penalty,
the case remains pending in the military justice system through
five separate stages: (1) action by the convening authority
under Article 60, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 860 (2006); (2) review by the appropriate Court of
Criminal Appeals under Article 66, UCMJ, 10 U.S.C. § 866, 10
U.S.C. § 866 (2006); (3) review by the United States Court of
Appeals for the Armed Forces under Article 67(a)(1), UCMJ, 10
U.S.C. § 867(a)(1) (2006); review by the Supreme Court under
Article 67a(a), UCMJ, 10 U.S.C. § 867a(a) (2006), if certiorari
is sought and granted as provided in 28 U.S.C. § 1259 (2006);
and (5) consideration by the President under Article 71(a),
UCMJ, 10 U.S.C. § 871(a) (2006). A case does not become final
under the UCMJ until completion of all five stages. See Article
76, UCMJ, 10 U.S.C. § 876 (2006).
In the present case, the United States Army Court of
Criminal Appeals affirmed the findings of guilty and the
sentence. Loving, 34 M.J. at 970. On direct review to this
court, we also affirmed the findings of guilty and the sentence.
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Loving, 41 M.J. at 300. In doing so, we considered, inter alia,
Loving’s ineffective assistance of counsel claim under
Strickland, which included allegations that his defense counsel
“failed to request funds for a mitigation specialist or to
present a cohesive, comprehensible background, social, medical,
and environmental history” during the sentencing phase of
Loving’s trial. Id. at 249. We determined that this claim
lacked merit, holding that defense counsel’s investigation and
presentation of mitigation evidence and their decisions
regarding use of expert testimony at sentencing were reasonable.
Id. at 250.
The Supreme Court issued its decision affirming the death
sentence on June 3, 1996, completing stage four of the five
stage process under the UCMJ. Loving, 517 U.S. at 774. In the
thirteen years since the Supreme Court’s decision, the case has
remained pending within the military justice system, awaiting
presidential action.1 Loving’s case remains in a posture where
his military remedies have not been exhausted -- a critical
component of any effort to obtain review in the Article III
courts. See Loving, 62 M.J. 248-51. As a result, review in the
Article III courts is not reasonably available to Loving so long
1
A more detailed appellate history is documented in prior
opinions. See Loving v. United States, 64 M.J. 132, 134-36
(C.A.A.F. 2006); Loving v. United States, 62 M.J. 235, 238-39
(C.A.A.F. 2005); Loving v. Hart, 47 M.J. 438, 440 (C.A.A.F.
1998).
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as his case remains pending in the military justice system. See
id.
On February 18, 2004, prior to filing the present habeas
petition, Loving sought relief from our court through a writ of
coram nobis under the All Writs Act, 28 U.S.C. § 1651(a). See
id. at 236. Among other allegations, relying on the intervening
Supreme Court decision in Wiggins v. Smith, 529 U.S. 510 (2003),
Loving argued that this court committed clear error during
mandatory review of Loving’s ineffective assistance of counsel
in sentencing claim because the court did not focus on the
investigative aspect leading to counsel’s decisions. Loving
alleged that defense counsel’s investigation was not reasonable
and that counsel’s deficient conduct was prejudicial in
sentencing.
In the course of considering his coram nobis petition, we
addressed the jurisdictional issues presented by the status of
his case -- a case that remained pending in the military justice
system after review by our court and the Supreme Court. Loving,
62 M.J. at 239-46. We specifically considered the implications
of the relationship between cases pending in the military
justice system and collateral review in the Article III courts.
Id.
We concluded that a case pending final action under the
UCMJ remained subject to extraordinary writ consideration by the
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appellate courts in the military justice system. Id. at 246.
We further concluded that a writ of error coram nobis was not
the proper vehicle for considering Appellant’s claim because a
writ of habeas corpus under the All Writs Act remained
available. Id. at 257.
At that time, we could have converted Loving’s coram nobis
filings into a petition for habeas corpus, but we declined to
make that decision for him. Id. at 259. Instead, “mindful that
a habeas petition before this Court could affect Petitioner’s
right and strategy to raise . . . the issues . . . . if
eventually filed in an Article III court,” we dismissed
Appellant’s petitions for extraordinary relief without prejudice
for Loving to file a writ of habeas corpus in our court, citing
Noyd v. Bond, 395 U.S. 683, 695 n.7 (1969).2 Id. at 256, 258-60.
2
In Noyd, Justice Harlan, writing for the majority, discussed
the power of this court to issue a writ of habeas corpus under
the All Writs Act:
Since the All Writs Act [28 U.S.C. § 1651(a)] applies
by its terms to any “courts established by Act of
Congress,” and since the Revisers of 1948 expressly
noted that “the revised section extends the power to
issue writs in aid of jurisdiction, to all courts
established by Act of Congress, thus making explicit
the right to exercise powers implied from the creation
of such courts,” we do not believe that there can be
any doubt as to the power of the Court of Military
Appeals [now the Court of Appeals for the Armed
Forces] to issue an emergency writ of habeas corpus in
cases, like the present one, which may ultimately be
reviewed by that court. 395 U.S. at 695 n.7; see also
United States v. Denedo, 2009 U.S. LEXIS 4160, at *14,
2009 WL 1576568, at *5 (June 8, 2009) (recognizing
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In so doing, we expressly alerted Loving to the potential effect
of a habeas petition before our Court on future habeas petitions
filed in the Article III courts. Id. at 258-60 (citing, inter
alia, 28 U.S.C. § 2244).
While the case remained pending within the military justice
system, Loving had a number of options, including filing a
habeas petition in our court or awaiting action by the President
before seeking judicial review. He elected to file a petition
for writ of habeas corpus in our court. Loving v. United
States, 64 M.J. 132, 134 (C.A.A.F. 2006).
Loving filed his habeas petition with this court on
February 2, 2006, raising essentially the same claim as to the
trial defense team’s constitutionally ineffective performance at
sentencing that he raised in the previous coram nobis petition.
Loving, 64 M.J. at 135. In the course of considering the habeas
petition, we focused on what standard of review to apply to a
habeas corpus action under the All Writs Act with respect to a
case that remained pending in the military justice system. Id.
at 144-46. Taking into account the importance of deference to
decisions made during direct judicial review, and recognizing
that when military appellate courts have subject-
matter jurisdiction over the case or controversy,
“military courts, like Article III tribunals, are
empowered to issue extraordinary writs under the All
Writs Act, Noyd v. Bond, 395 U.S. 683, 695, n.7
(1969)”).
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the limited scope of review under the All Writs Act, we adopted
the highly deferential standard for collateral review used by
other federal courts. See id. at 145-46. That restrictive
standard requires us to determine:
whether this Court’s prior review: (1) resulted
in a decision that was contrary to, or involved
an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or (2)
resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the [prior]
proceeding.
Id. at 145 (citing 28 U.S.C. § 2254(d)) (alteration in
original).
Applying that standard to the pending habeas petition, we
observed in our prior decision that the factual record was
inadequate. Id. at 150-52. Accordingly, we remanded for
proceedings under United States v. DuBay, 17 C.M.A. 147, 37
C.M.R. 411 (1967), which provides a well-established procedure
for development of a post-trial evidentiary record, followed by
return of the case to our court for further review. Loving, 64
M.J. at 152-53.
In particular, we determined that in light of Wiggins, “we
[did] not have the factual predicate to determine if our prior
decision addressing the issue of ineffective assistance of
counsel was correct under the Strickland standard.” Id. at 134.
We ordered a DuBay hearing to address the issue of “whether
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Petitioner’s trial defense counsel ‘chose to abandon their
investigation at an unreasonable juncture, making a fully
informed decision with respect to sentencing strategy
impossible’ thereby prejudicing Petitioner in the capital
sentencing phase of the court-martial.” Id. (quoting Wiggins,
539 U.S. at 527-28). We directed the DuBay judge to issue
findings of fact and conclusions of law on several specific
matters related to counsel’s investigation into Loving’s
background. Id. at 152-53. We also directed the DuBay judge to
reweigh the evidence adduced at trial and in the DuBay
proceeding to determine whether there was a reasonable
probability that the panel would have returned a different
sentence if the new evidence had been presented at trial. Id.
at 153.
The DuBay hearing has been completed and the record has
been returned to this court for further review. At the DuBay
proceeding, the parties had full opportunity to present
witnesses, documentary evidence, and legal arguments. The
military judge considered the evidence and arguments of the
parties, applied the standard set forth in our prior opinion,
and addressed the issues identified in our remand order. At the
conclusion of the proceeding, the military judge issued a
comprehensive decision detailing his factual findings and legal
conclusions. In summary, the DuBay judge found that “a
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reasonable investigation as required by St[r]ickland, as further
explained in Wiggins, was conducted under the circumstances of
this case. PVT Loving’s defense counsel did not choose to
abandon their investigation at an unreasonable juncture.” The
DuBay judge also concluded:
[A]fter reweighing all of the evidence adduced at
trial and considering the evidence presented in the
DuBay hearing . . . had the panel been confronted with
the evidence at issue, there is no reasonable
probability that at least one member of the panel
would have struck a different balance thereby not
voting for a death sentence and the result of the
sentencing proceeding would not have been different.
As a result of the standards and procedures adopted by our
court, we now have before us a comprehensive record, developed
by a military judge, which provides the precise framework
necessary for effective and accurate habeas review. The parties
submitted additional briefs to this court and we held oral
argument on October 29, 2008.3
3
We ordered briefing on two issues:
I. WHETHER THE RECORD OF THE EVIDENTIARY HEARING
ORDERED PURSUANT TO UNITED STATES V. DUBAY, 17
C.M.A. 147, 37 C.M.R. 411 (1967), SHOULD BE
RETURNED TO THE JUDGE ADVOCATE GENERAL OF THE
ARMY FOR REMAND TO THE CONVENING AUTHORITY
AND/OR THE ARMY COURT OF CRIMINAL APPEALS FOR
REVIEW PRIOR TO REVIEW BY THIS COURT.
II. WHETHER PETITIONER’S WRIT OF HABEAS CORPUS
SHOULD ISSUE IN VIEW OF THE FINDINGS OF FACT AND
CONCLUSIONS OF LAW ENTERED BY THE MILITARY JUDGE
IN THE DUBAY PROCEEDING ON THE QUESTION OF
WHETHER THE TRIAL DEFENSE TEAM CONDUCTED A
REASONABLE INVESTIGATION INTO POTENTIAL EVIDENCE
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2. Factual Summary and Current Allegations
On the night of December 11, 1988, Loving robbed two
convenience stores at gunpoint. Loving, 41 M.J. at 229. He
then robbed three cab drivers at gunpoint and killed two of the
drivers after receiving money and other items. Id. He
attempted to kill the third cab driver, but the victim struggled
the gun away from Loving and fled the scene. Id. at 229-31.
Loving was apprehended the next day and advised of his rights.
Id. at 230. He waived his rights and confessed in a videotaped
interview. Id.
Three military defense counsels were detailed to Loving’s
case: Captain William Ibbotson, Captain John Smart, and Major
David Hayden. All three met with Loving shortly after his
apprehension. On January 17, 1989, Hayden traveled to Loving’s
hometown of Rochester, New York, to conduct a background
investigation. As to the details of the trip, the DuBay judge
found as follows:
[Major Hayden] spent all of 18 Jan 89 (the whole day,
and into the evening) and part of 19 Jan 89,
IN MITIGATION AND PROVIDED EFFECTIVE ASSISTANCE
OF COUNSEL AT SENTENCING.
67 M.J. 22 (C.A.A.F. 2008). As to the first issue, both parties
and amicus curiae argued that it was appropriate for us to
address the underlying issues at this time without remand to the
convening authority or the Court of Criminal Appeals. We agree
and turn directly to the second issue.
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interviewing some family members, friends, and others
(e.g., boxing coach, school teacher, Detective Verna4).
The purpose of the visit, according to MAJ Hayden, was
“to find out information, as much information as I
could about Dwight Loving’s background.” As suggested
by CPT Ibbotson, he was also looking for evidence of
impulsive behavior, as well as evidence of head
trauma.
In Rochester, MAJ Hayden met with several of PVT
Loving’s family members including his mother, father,
and some of PVT Loving’s siblings. He learned more
about PVT Loving’s “upbringing” his “family structure”
and his “relationship with his brothers and sisters.”
MAJ Hayden learned “a lot” from his interview of Mr.
Johnson, PVT Loving’s childhood boxing coach. . . .
. . . .
As further preparation for trial, CPT Ibbotson
conducted additional background investigation by
telephone of PVT Loving’s history prior to his
military service. He spoke with PVT Loving’s mother,
four brothers, and his sister Gwendolyn. He also
spoke by telephone with Detective Verna. . . .
In addition to these investigative efforts, CPT
Ibbotson and CPT Smart also interviewed unit
witnesses, Ms. Pessina [Loving’s girlfriend], friends
of Ms. Pessina, and confinement officers supervising
Private Loving in pretrial detention.
In the habeas petition before us, Loving alleges
ineffective assistance of counsel in the investigation and
presentation of mitigation evidence related to Loving’s
background and social history. Loving faults defense counsel
for failing to obtain the assistance of a mitigation specialist
4
Detective Verna was an officer in the Rochester police
department who had information about the rough neighborhoods in
Rochester and problems with drugs and violence in the city.
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or social worker. He also alleges deficiencies in the number
of, approach to, and conduct of the background interviews that
defense counsel conducted with Loving’s family members and
others, as well as deficiencies in the amount of social history
records collected. Loving contends that the interviews were
ineffective because defense counsel were looking for specific
information in line with preconceived theories determined on the
basis of their initial discussions with Loving and without the
benefit of an open-ended investigation.
Loving also argues that during sentencing defense counsel
only presented “skeletal information concerning Loving’s
background and environment that was wholly inadequate to present
to the jury a true picture of his tortured life and the impact
upon him.” According to Loving, if “this true picture had been
presented there is a reasonable probability that at least one
juror would have struck a different balance in the sentencing
determination.”5
5
In his habeas petition filed February 2, 2006, Loving also
alleged that defense counsel failed to adequately investigate
and to present evidence in mitigation related to Loving’s
intoxication and mental state at the time of the offenses.
This contention was largely based on affidavits from Gerlinde
Joseph and Beverly Sedberry, acquaintances of Loving at the time
of the murders. Both individuals testified at the DuBay
hearing, and the DuBay judge determined that neither their
affidavits nor their respective testimony were credible or
reliable. As Loving has not pursued this line of argument
following the DuBay hearing and we see no clear error in the
military judge’s credibility rulings, we focus on the alleged
deficiencies related to his family and social background.
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INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
We consider claims of ineffective assistance of counsel
under the two-prong test of Strickland. See Strickland, 466
U.S. at 687. First, Loving must show that counsel’s performance
was deficient. Id. “This requires showing that counsel made
errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.
Second, Loving must show that the deficient performance
prejudiced the defense. Id. “This requires showing that
counsel’s errors were so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable.” Id. We need
not analyze the Strickland prongs in any particular order. As
the Supreme Court stated:
[A] court need not determine whether counsel’s
performance was deficient before examining the
prejudice suffered by the defense as a result of the
alleged deficiencies. The object of an
ineffectiveness claim is not to grade counsel’s
performance. If it is easier to dispose of an
ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be
so, that course should be followed.
Id. at 697; see, e.g., United States v. Quick, 59 M.J. 383, 386
(C.A.A.F. 2004). Here we will assume without deciding that the
performance of Loving’s defense counsel was deficient as alleged
for purposes of analyzing the prejudice prong of Strickland.
To establish prejudice under Strickland, Loving must show
that “there is a reasonable probability that, but for counsel’s
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unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland,
466 U.S. at 694. In the context of this capital case
challenging the death sentence, “we reweigh the evidence in
aggravation against the totality of available mitigating
evidence.” Wiggins, 539 U.S. at 534. The question is whether
if the members had been able to place the additional evidence
“on the mitigating side of the scale, there is a reasonable
probability that at least one [member] would have struck a
different balance.” Id. at 537.
In this case, we undertake this prejudice review de novo.
Under the standards of 28 U.S.C. § 2254(d), a habeas review of a
constitutional claim would normally employ a deferential review
of the challenged decision. See Bell v. Cone, 535 U.S. 685,
698-99 (2002). However, we did not reach the prejudice prong of
Strickland in our 1994 direct review of this case. See Loving,
41 M.J. at 250. Consequently, our review is not circumscribed
by any previous conclusions of this court. See Wiggins, 539
U.S. at 534. Nor is our review impacted by the DuBay judge’s
conclusion on prejudice, which we also review de novo. See
United States v. Davis, 60 M.J. 469, 473 (C.A.A.F. 2005).
We have carefully reviewed the totality of the evidence --
both that adduced at trial and the evidence adduced in the DuBay
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proceeding. After reweighing the evidence in aggravation
against the totality of available mitigating evidence, we
conclude that Loving has failed to meet his burden to show a
reasonable probability that at least one member would have
struck a different balance. Accordingly, we deny the writ under
the second prong of Strickland without “grad[ing] counsel’s
performance” under the first prong. Strickland, 466 U.S. at
697.
Our analysis will commence with a summary of the
aggravation and mitigation evidence presented at trial. We will
then review the mitigation evidence presented at the DuBay
hearing and “reweigh the evidence in aggravation against the
totality of available mitigation evidence.” Wiggins, 539 U.S.
at 534.
1. Aggravation Evidence Presented at Trial
We adopt the detailed description of the crimes from our
direct review in 1994. See Loving, 41 M.J. at 229-31. After
robbing two convenience stores at gunpoint, Loving got into a
taxicab driven by Christopher Fay, an active-duty soldier
working as a cab driver for extra money.
[Loving] directed Fay to a secluded area on Fort Hood
and, at gunpoint, demanded all his money. After
receiving an unknown amount of money from Fay,
[Loving] shot him in the back of the head. While
watching the blood “gushing out” of the back of Fay’s
head, [Loving] shot him in the back of the head a
second time. Fay died as a result of the gunshots.
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His body was discovered by another soldier at Fort
Hood about 30 minutes later.
[Loving] fled from the cab to his barracks room,
counted the money, and called for a second cab at
about 8:15 p.m. The driver of the second cab was
Bobby Sharbino, a retired Army sergeant. [Loving]
directed Sharbino to a secluded street in Killeen and,
at gunpoint, took his money pouch, wallet, and a green
BIC cigarette lighter. He ordered Sharbino to lie
down on the seat and shot him in the head, killing
him.
Id. at 229.
Afterwards, Loving went to his girlfriend’s home. A short
time later, he and his girlfriend went to a club with friends.
[There, Loving] became involved in an altercation with
another male patron because the patron was staring at
[his girlfriend]. During the altercation, [Loving]
drew his pistol and invited the patron to go outside.
As the patron advanced toward [Loving], [Loving]
backed up, stumbled over a chair, and dropped his
pistol on the ground, causing it to discharge.
Id. Loving and his girlfriend left the club and took a cab,
driven by Howard Douglas Harrison. Loving’s girlfriend was
dropped off near her home.
After pulling a gun, [Loving] directed Harrison to a
secluded street, demanded money, and took Harrison’s
wallet and coin changer, obtaining about $94.00.
[Loving] jerked Harrison’s head around and told him to
open his mouth. Believing that he was about to be
killed, Harrison grabbed the pistol. During the
ensuing struggle, Harrison gained possession of the
pistol after it went off. Then he attempted to shoot
appellant, but the pistol would not fire. Harrison
fled the scene, with [Loving] chasing him. After
Harrison hit him, [Loving] ran to [his girlfriend’s]
house, having regained possession of the pistol.
Id. at 229-30.
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During the sentencing phase of the trial, the Government
presented evidence showing that Loving had previously been
subject to nonjudicial punishment under Article 15, UCMJ, 10
U.S.C. § 815 (2006), and that he had received counseling related
to poor duty performance on prior occasions.
The Government also presented evidence to show that Loving
lacked remorse for his recent crimes. Private Forrest Kevin
Brown, who was in pretrial confinement with Loving, testified
that Loving told him that “he did the first -- did it the first
time to see if he could get away with it, and then he did it
because it was fun, and then he said something along the lines,
‘Because love makes you do crazy things.’” Brown also testified
that he heard Loving say, “if he had to do it over, the only
difference is he wouldn’t get caught.” After Brown testified,
the parties presented testimony from prison personnel as to
whether Brown would have had occasion to speak alone with
Loving. Defense counsel argued that Brown was not credible and
that other evidence shows that Loving had shown remorse.
The military judge instructed the members that a death
sentence may not be adjudged unless all the court members find
beyond a reasonable doubt that one or more of the following
aggravated circumstances existed:
[1] the premeditated murder of Bobby Gene Sharbino
was committed while the accused was engaged in the
commission or the attempted commission of a robbery;
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[2] having been found guilty of the felony murder of
Christopher Fay . . . the accused was the actual
perpetrator of the killing;
[3] having been found guilty of premeditated murder
of Bobby Gene Sharbino, the accused was also found
guilty of another violation of Article 118, [UCMJ], in
the same case, and that’s referring to the murder of
Christopher Fay.
See Rule for Courts-Martial (R.C.M.) 1004(c). The members
unanimously found beyond a reasonable doubt that all three of
these aggravating factors were proven.
The military judge also instructed the members that seven
additional aggravating circumstances may be considered:
[1] the Article 15’s received by the accused;
[2] the testimony of Captain Bush that the accused is
of average intelligence and has been counseled on
occasions in an effort to make him a satisfactory duty
performer and, in his opinion, has no rehabilitative
potential;
[3] the nature of the weapon used in the commission
of the offenses and the fact that the accused fired
the weapon during the course of each offense;
[4] the fact that the accused killed his victims
after they had fully cooperated with him and had given
him their money;
[5] the nature and extent of the injuries suffered by
the victims;
[6] the accused’s lack of any remorse;6 [and]
. . . .
[7] the testimony of Private Brown that the accused
told Private Brown that the first killing was to see
6
The military judge instructed the members that whether the
evidence established remorse or lack of remorse was for them to
decide.
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if he could get away with it and, after that, it was
for fun.
2. Mitigation Evidence Presented at Trial
This is not a case where the record of trial was devoid of
mitigation evidence at sentencing. The military judge
instructed the members that they must consider the following
nineteen circumstances in extenuation and mitigation:
[1] The accused’s age;
[2] The accused grew up in a low income urban area in
Rochester, New York;
[3] The accused grew up in a single parent household
with seven other children;
[4] Mr. Loving, Sr., the accused’s father, and his
[e]ffect on the accused;
[5] The accused was a nonregent student in a troubled
school system who did not finish high school;
[6] The accused was exposed to violence during his
youth;
[7] The accused favorably responded to positive
leadership at several points in his life;
[8] The accused has difficulty expressing and showing
emotion;
[9] Drug involvement in any of these offenses that
was demonstrated though the evidence, if any;
[10] During his early youth, the accused was a
follower;
[11] The accused’s boxing experiences;
[12] The accused’s good duty performance under the
guidance of strong leadership;
20
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[13] The accused has exhibited remorse for these
offenses . . .;7
[14] The offenses were committed over a relatively
short period of time;
[15] The accused’s motives for these offenses;
[16] The accused’s . . . adaptation to confinement;
and,
[17] The accused is precluded from pleading guilty to
capital offenses by the [UCMJ] . . .;
[18] [T]he duration of the accused’s pretrial
confinement, which began on 13 December 1988;
[19] The accused’s entitlements to wear certain
medals and awards . . . .
One of the mitigating factors emphasized by the defense was
Loving’s motivation at the time he committed the offenses, which
defense counsel attributed to his girlfriend’s influence over
Loving. However, evidence of Loving’s family and social
background was also prominent in the mitigation case. Defense
counsel introduced the idea that Loving’s background would be an
issue in mitigation during his opening argument in findings,
stating as follows:
From an inter-city [sic] neighborhood, in Rochester,
New York; a large, Northeastern city -- a larger,
Northeastern city. The youngest of eight children. A
father -- an alcoholic, with a rapsheet about four
pages long. You’ll see this information about the
kind of upbringing he had; the kind -- the lack of a
strong, parental figure he had -- the need he had for
that. The need he had for acceptance . . . .
7
The military judge again instructed the members that they would
have to resolve the question of whether the evidence shows
remorse or lack of remorse for themselves. See supra n.6.
21
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During closing argument on findings, defense counsel
stated:
You’ve learned a little bit about him from his squad
leader, Sergeant Key. You know where he’s from. A
city in the northeast. You know a little bit about
his family and his background. You know what sort of
person he was. As -- when he was in the military you
can pick up on some of the things you’ve heard
already. He was a soldier who wasn’t socialized very
well when he came in. He wasn’t mature and he wasn’t
educated and he didn’t have the kind of background
that would allow him to do well in the military and
this cost him. . . . Now that tells you something
that he didn’t have, when he came in the Army; a
certain lack of background and training and how to
deal with life. Go on down the road to that summer
and fall of 1988 when he met Nadia Pessina.
During the sentencing phase, defense counsel presented the
testimony of a number of witnesses to address Loving’s family
and social background. These included: Joe Loving Sr.,
Loving’s father; Lucille Williams, Loving’s mother; Ronald
Loving, Loving’s brother; Wendolyn Black, Loving’s sister; Lord
Johnson, Loving’s childhood boxing coach; and Detective Verna of
the Rochester police department. Stipulated testimony was
submitted from Harryl Loving, Loving’s brother, and Kenneth
Wilson, Loving’s childhood teacher. The arrest records of
Loving’s father, the arrest record of a childhood friend, and
Loving’s school records were also admitted into evidence.8
8
In support of other mitigating factors, defense presented
testimony from two prison guards, a prison counselor, and his
first line supervisor.
22
Loving v. United States, No. 06-8006/AR
The mitigation evidence showed that Loving was the youngest
of Lucille Williams’s eight children and his early years were
spent in a violent neighborhood in a dangerous section of
Rochester, New York. As to Loving’s home life, there was
evidence that Loving’s father was a heavy drinker, who would
come in and out of his children’s lives. Loving’s father was
physically abusive towards Loving’s mother, which regularly
resulted in police intervention and medical attention. Ms.
Williams told her children not to get involved in the fights
unless they saw him killing her. Loving’s oldest sibling,
Wendolyn, acknowledged one incident where she had to “try to
pull him off” her mother.
Ms. Williams worked nights at Rochester Psychiatric Center
and suffered from narcolepsy, a sleeping disorder that
eventually required her to quit work. Wendolyn testified that
she cooked and cleaned and babysat to help out around the house.
According to Wendolyn, her mother kept a clean house. As to
discipline, Wendolyn indicated that she and her siblings
respected their mother and were disciplined only when they
needed it. Wendolyn stated, “She’d beat us . . . she might whip
us with the belt or . . . hit at us with her hand.” Joe Loving
Sr., testified that he “spanked [the children] when they did
something real bad. . . . to make them cry . . . it would hurt a
little bit, but I wouldn’t just beat ‘em up.”
23
Loving v. United States, No. 06-8006/AR
Lord Johnson, who coached Loving and his brothers in boxing
and knew the family over many years, testified that Ms. Williams
was a single mother on welfare. He agreed that she was “a good
woman” and indicated that the children had food and clothes and
were “always clean when you see them.” He stated that the
children had some parental guidance in the home but “needed a
little bit more.”
The testimony of Loving’s mother, his brother Harryl, his
brother Ronald, and Lord Johnson shows that of all his siblings,
Loving was closest to Ronald, who was five years older than
Loving. Harryl testified that when Loving was with Ronald,
“they were involved in getting high and playing basketball.”
According to Loving’s mother, Ronald “turned to the streets,”
got into trouble, and spent some time in jail. Harryl described
Ronald as a “street fighter” and “a very active thief [who] had
attacked a number of people.” When asked what it was like
“being a kid in Rochester,” Ronald testified that it was “[a]
jungle . . . You’ve got to survive.” He elaborated:
It was just -- you had the Puerto Ricans and you had
the blacks and you had the whites and Jamaicans. A
lot of prejudice, you know, a lot of gangs. It was
just rough. You had to wake up thinking like, you
know, you had to fight sometimes to go to the store.
We had family fights with people living next door to
us . . . .
He said: “[Y]ou either fight or you move -- move meaning out of
Rochester.” When asked why such a choice existed, Ronald
24
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stated: “Well, it’s scary. They take you -- they take you out
-- they’ll kill you. If they don’t kill you, they’ll wound you
real bad.” Ronald said that he “fought every day.” He had been
“stabbed,” “busted up side the head,” “jumped,” “hit by a car,”
“shot at,” “cut,” and “tricked.”
Several other witnesses addressed problems of drugs and
gang violence that the Loving children were exposed to as they
grew up in Rochester. Detective Verna stated that there are
four “very, very rough neighborhoods” in Rochester and that a
great number of assaults occur in the Rochester schools, which
many people consider “armed camps.” He testified that the drug
problem in Rochester is “pervasive.” According to Loving’s
mother, “they’re fighting, they’re drinking, they’re stealing,
they’re doing everything.” Harryl testified that “[t]here are
neighborhoods where the violence is high, where the street gangs
roam and where you can get into trouble, even if you’re not
looking for it.” Harryl testified that his sister’s house was
burned down by gang members and that his brother Darryl was
jumped by gang members. Lord Johnson also discussed gangs in
the Rochester neighborhoods, reiterating that Loving’s brother
was beaten up by a gang, and indicating that a close friend of
Loving’s from the boxing program who joined a gang was
incarcerated for “tr[ying] to kill someone.”
25
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Other testimony from these family and background witnesses
established that Loving lived in two different neighborhoods
when he was growing up. The second was much cleaner and safer
than the first. According to Harryl, “Oakbend was the worst.
The house on Stunz was better. It was cleaner and had better
neighbors. There were not as many fights, drug sellers, or
criminal acts as there were on Oakbend Street.” Harryl, who was
two years older than Loving, testified that the family moved to
the better neighborhood when Harryl was in about eighth grade in
1979. Harryl claimed that the second neighborhood was
“relatively drug free when we were growing.” Harryl stated that
he “stayed in the new neighborhood, but his brothers Ronald and
Joe Junior used to go back to their friends in the old
neighborhood.”
The stipulated testimony of Kenneth Wilson, Loving’s school
teacher, described Loving as moody and temperamental --
“feverish” -- which he said was typical of students who had a
history of poor performance in academics and lived in the inner
city. He testified that Loving appeared distracted and had to
be closely monitored. He was transferred to a special school
for students having problems with their regular high school.
Ms. Williams stated that Loving never graduated. Loving’s
father was not aware that he had transferred schools and
believed that he “graduated every year.” School records showed
26
Loving v. United States, No. 06-8006/AR
that Loving was frequently absent from school and that he was
suspended for fighting at school and for possession of a knife
on school premises. According to Mr. Wilson, Loving’s parents
never came to high school to ask about progress or problems.
For about thirteen years prior to trial, Ms. Williams’s
current husband, Mr. Williams, lived in her home. Ms. Williams
testified that Mr. Williams “always done well by all of [the
children], but they . . . resent him saying what he wanted to
say.” Ronald Loving testified that he hated Mr. Williams. He
described him as the “worstest [sic] man I’ve ever met in my
life, and I’ve met some bad people.”
The mitigation evidence related to Loving’s background
predominantly focused on the difficulties Loving and his
siblings faced in childhood. Some testimony from Lord Johnson,
however, was positive. Mr. Johnson talked favorably about the
facility where he ran the boxing program, the sense of direction
that the boxing program offers the children, and Loving’s
success at boxing. He spoke about the “beautiful relationship”
that he had with Loving while Loving was training and competing
in the boxing program. During closing on sentencing, defense
counsel argued that this evidence showed that Loving could
respond to positive leadership in his life and that he did
“attempt to rise above his situation there and he did achieve
27
Loving v. United States, No. 06-8006/AR
some measure of success. But it may be a case of too little,
too late in his development.”
Defense counsel spent a fair portion of his closing
argument calling the members’ attention to Loving’s troubled
background. He urged the members to consider the “surroundings
under which he grew up, especially from the ages of zero to ten,
when he was on Oak Lawn -- or, Oakland,9 in that area, that’s
been torn down, that’s being redone because what was there was
not acceptable.” He urged the members to “[c]onsider what
[e]ffect that had in shaping his development as he was growing
up, forming his values, deciding how he makes judgements.”
Defense counsel argued that Loving grew up in “environment
filled with violence,” in an “urban, northeastern city,
sometimes on the streets” in a broken home with “no real father
to speak of.” Defense counsel reminded the members of Loving’s
brothers’ testimony as to the violence they saw in their youth
and the family’s interaction with gangs.
Defense counsel also mentioned Loving’s mother’s illness
and how as the youngest of eight children Loving received less
of the guidance, love and care that was necessary. He argued
that Loving’s siblings were not good role models, pointing to
his brother Darryl, who had been attacked by a gang, and his
28
Loving v. United States, No. 06-8006/AR
brother Ronald, “the survivalist.” Defense counsel also
discussed how the school environment failed to provide Loving
with “the socialization skills for getting along with people
later in life” and argued that Loving’s parents were not there
to guide him through school when the system failed him.
Defense counsel urged the members to decide against the
death penalty because of Loving’s “values, his judgement, and
his maturity or, more accurately, his immaturity.” Defense
counsel argued:
You know where he learned these things, he learned his
values, you know he learned them from. He didn’t have
a strong brother, he didn’t have a strong father, a
mother with the time to provide him what he needed.
His teachers didn’t help. . . . His background makes
him less able to handle situations like he did back on
the 11 and 12 December. Like they say, you can take
the man off the streets, but can’t necessarily take
the street . . . out of the man.
Acknowledging that Loving grew up in the inner city where
there are gangs, drugs, and violence, that Loving’s brother
participated in some of that violence, and that Loving’s father
beat his mother, trial counsel responded that there was little
testimony as to what the real effect of this was on Loving
himself. He pointed out that Ms. Williams was a good woman who
did everything she could, that his parents did not teach Loving
that it was alright to commit crimes, that while his mother took
9
Defense counsel was referring to one of the first streets the
Loving family lived on in Rochester, which was identified as
29
Loving v. United States, No. 06-8006/AR
a belt to the children when the kids deserved it, they were not
abused children. He noted that Loving himself was not a street
fighter like his brother Ronald and that Loving had
opportunities through a special school and through the boxing
program, both of which he gave up on.
Of the nineteen mitigating circumstances that the military
judge instructed the members they must consider, at least six
related to the hardships from Loving’s background and
environment, including: the “accused grew up in a low income
urban area in Rochester, New York;” the “accused grew up in a
single parent household with seven other children;” “Mr. Loving,
Sr., the accused’s father, and his [e]ffect on the accused;”
the “accused was a nonregent student in a troubled school system
who did not finish high school;” the “accused was exposed to
violence during his youth;” and “[d]uring his early youth, the
accused was a follower.”
3. Mitigating Evidence at the DuBay Hearing
In this case, the crux of our prejudice inquiry under
Strickland is whether there is a reasonable probability that the
mitigating evidence introduced at the DuBay hearing would have
produced a different result had it been introduced at trial.
See Wiggins, 539 U.S. at 537-38; see also Rompilla v. Beard, 545
U.S. 374, 393 (2005). At the DuBay hearing, four witnesses
either “Oakbend” or “Oakman” during the trial and the DuBay
30
Loving v. United States, No. 06-8006/AR
provided testimony about Loving’s background: his sisters
Wendolyn and Gwendolyn Black, his brother Harryl Loving, and his
aunt, Alline Anderson. Wendolyn Black and Harryl Loving had
testified at trial; the other two had not. The defense also
presented the testimony of Ms. Janet Vogelsang, a social worker,
along with Ms. Vogelsang’s written biopsychosocial assessment of
Loving. The defense also submitted records from the New York
State Department of Social Services documenting some of the
services, assistance, and home visits provided to the family
from 1967 to 1985, as well as some medical records related to
Loving’s birth and pediatric care.10
hearing.
10
We have also reviewed the testimony of the other witnesses who
testified at the DuBay hearing, including the three trial
defense counsel, a forensic psychiatrist who consulted with
trial defense counsel, various capital litigation experts, an
expert in psychopharmacology, acquaintances of Loving who were
with him on the night of the murders, and a fellow
servicemember. The testimony of these witnesses pertains to
allegations of counsel’s deficient performance under the first
prong of Strickland or to counsel’s alleged failure to present
evidence in mitigation related to Loving’s intoxication and
mental state at the time of the offenses. As our analysis of
the prejudice prong of Strickland focuses on the mitigation
evidence related to Loving’s family and social background, we do
not recount this other testimony in detail here. See supra pp.
12-13 and n.5. Similarly, we reviewed but do not recount in
detail other documentary evidence presented at the DuBay hearing
including but not limited to submissions regarding the standards
of practice for capital defense attorneys, trial defense
counsel’s notes, Loving’s possible drug use around the time of
the murders, and medical records of Loving’s brothers, which
were generated in February 1989, November and December 1991, and
August and September 1992.
31
Loving v. United States, No. 06-8006/AR
The testimony of all four family members addressed Loving’s
father’s drinking problem and his physical abuse toward their
mother. A few specific incidents were described, including one
where Wendolyn hit Joe Loving Sr., with a hammer to protect her
mother and another where Joe Loving Sr., beat Lucille Williams
“so bad he stripped her, just tore everything off, and left her
in the street.” The testimony also gave specifics as to
violence between the Loving family and their neighbors on
Oakbend Street. Wendolyn testified that her family would get
into fist-fights with the neighbors and her uncle once brought
out a gun. Gwendolyn testified that she was hit in the head
In addition, affidavits from Gwendolyn and Wendolyn Black,
Ronald and Harryl Loving, and Lucille Williams, which were
signed in 1993, were submitted as part of the habeas
proceedings. These affidavits had previously been filed with
this court and we instructed the DuBay judge to evaluate the
credibility and reliability of the factual information contained
in the affidavits. Loving, 64 M.J. at 152. Noting that the
affidavits of Harryl Loving, Wendolyn Black, and Gwendolyn Black
“were drafted by an unknown third party and presented to each
individual for signature, not read (or not read thoroughly) by
the individual prior to signing, and contained inaccurate or
false information,” the DuBay judge found the information in
these three affidavits was not reliable. As to the affidavits
of Lucille Williams and Ronald Loving, who did not testify at
the DuBay hearing, the DuBay judge indicated that he was not
able to judge their credibility and found that the information
contained in those two affidavits was credible to the extent
that it was consistent with their testimony at trial or
otherwise corroborated by the testimony of the DuBay witnesses.
We review the DuBay judge’s credibility determinations for clear
error and find none. See United States v. Brownfield, 52 M.J.
40, 44 (C.A.A.F. 1999). As such, while we have reviewed the
affidavits, we find it appropriate to focus our discussion on
the background information provided through live testimony and
other documentary evidence.
32
Loving v. United States, No. 06-8006/AR
with a bat and her brother Joe was hit with a bed rail. She
recalled hearing about an incident when “molly [sic] cocktails”
were thrown through the windows of the family home. Ms.
Anderson described a night when bullets started coming through
the windows and they all had to duck to the floor.
Gang violence was also addressed in the DuBay testimony.
Wendolyn believed that Loving was staying with his sister at the
time her house was burned down by a gang and Gwendolyn believed
the act was in retaliation for Loving’s “beating them up.”
Wendolyn recalled that Loving was having problems with gangs,
who “jumped on his friend.” She also testified that a gang
“jumped on [her brother Darryl] and beat him senseless.”
Loving’s siblings addressed questions as to whether the
children suffered any physical harm from the disciplinary
actions of their parents or siblings while growing up. Harryl
and Gwendolyn indicated that Joe Loving Sr., would use a leather
belt to whip the boys’ bare skin. When asked what prompted such
punishment, Harryl stated that “it’s hard to remember a lot of
the bad things that we did as kids.” Harryl remembered one
incident when his mother spanked the children with a stitching
cord after they skipped school and went to a shopping center
where they started stealing. Gwendolyn testified her mother
would discipline them with a belt, switch or extension cord.
33
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Wendolyn testified that while her mother was working
nights, she and her sister Gwendolyn would take care of the
younger children. There were instances when Wendolyn would hit
the other children, “knock ‘em up-side the head or something”
with her hand. Gwendolyn testified that she and Wendolyn would
teach the boys to fight each other and if they did not want to
fight, they would hit them to get them to fight. Harryl denied
any recollection of Wendolyn abusing him. At one point, Harryl
described his sibling relationship as follows: “when we were
real young, we all hung together. We played together. We
played kickball. We played football. We played basketball. We
played baseball. We played volleyball. We played dodge ball. .
. . [W]hen we were on Oakman Street, we all played together.”
Each of the three siblings testified as to the drinking and
drug habits of the children growing up. There was consensus
that all the children drank. Drug use also seemed prevalent
among the children, although some appeared more involved with
drugs than others. Although Gwendolyn denied it, there was
testimony from the other siblings that she sold drugs and Ronald
and Joe Jr., worked for her while they were teenagers. Harryl
testified that Ronald supplied Loving with alcohol and
marijuana. Gwendolyn testified that she saw Loving smoke
marijuana and drink Wild Irish Rose when he was fourteen years
old.
34
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The family witnesses offered other details about the Loving
family’s background. Ms. Anderson discussed tragedies that
occurred in Ms. Williams’s life before she lived with Joe Loving
Sr. There was also testimony as to Ms. Williams’s belief in
“roots,” which was described as “voodoo” that caused bad things
to happen to people. Ms. Anderson testified that Ms. Williams
kept “clean homes” but there were big rats in the house. There
was testimony that the family “struggled badly” and there “were
times we ate beans with no bread, no meat. There were times we
ate bread, no meat, no vegetable, or anything -- no lettuce, no
nothing; just mayonnaise and tomato sandwiches, banana
sandwiches. So we struggled -- wearing brother’s and sister’s
hand-me-downs.”
As to additional details revealed during the DuBay hearing,
Wendolyn testified that Joe Loving Sr., sexually abused her when
she was twelve years old. Gwendolyn moved out when she got
pregnant at the age of thirteen. Mr. Williams, who eventually
married Loving’s mother, was described as an alcoholic, who
constantly drank and cursed. He used to say things to the
children like “‘[t]he more education you have the stupider you
are,’ ‘You’re never going to amount to anything,’ ‘You don’t
have anything, you’re not going to get anything.’”
The records from the Department of Social Services document
some of Ms. Williams’s struggles in supporting her family as a
35
Loving v. United States, No. 06-8006/AR
single mother. The records show that they moved frequently due
to poor housing conditions before moving to Oakbend Street.
Various entries describe Ms. Williams in such terms as “hard
worker,” “a strict disciplinarian [and] at times rather harsh,”
“full control at home -- good disciplinarian,” “fiery temper.”
Loving’s brief cites to the social worker’s documentation of an
instance when Ms. Williams was hospitalized and it was reported
that one of the boys was not dressed adequately, that the house
was very messy, that the children were not being sufficiently
cared for, and that Ms. Williams objected to the assignment of a
homemaker. By contrast, a follow-up entry after Ms. Williams
returned home from the hospital reflects that Ms. Williams is a
“wonderful mother and has no problem managing 8 children. The
children are very well behaved and all follow their mother’s
guidance. They each have assigned tasks to do at home and the
household is run very smoothly.”
As part of the habeas proceedings, Ms. Vogelsang, a
clinical social worker, performed a biopsychosocial assessment
of Loving. During the DuBay hearing, Ms. Vogelsang testified
that the most significant dynamic in Loving’s family, which has
spanned over generations, is a pattern of over reactive behavior
to violent behavior in the face of loss, abandonment, or
rejection. Ms. Vogelsang testified that these behaviors
occurred “within a context of family violence, community
36
Loving v. United States, No. 06-8006/AR
violence, abuse, alcohol and drug use, neglect, and a lack of
intervention on a long term or consistent basis especially
during the developmental years.” Ms. Vogelsang identified a
number of factors that when present in a child’s home lead to
children who are unable to bounce back from adversity, and she
opined that most of these factors were present in Loving’s
home.11
Ms. Vogelsang discussed her views as to the significance of
certain difficulties in Loving’s childhood and addressed such
issues as the traumatic social background of his parents, the
nature of the violence between his parents, the troubling role
his siblings played in his upbringing, his frequent moves among
insufficient housing before the age of five, the incidents of
violence brought against his home, and a pattern of drugs and
alcohol in his family. Ms. Vogelsang also explained that when a
child lives in a community where there is a constant fear of
gang violence that at times has been realized against the child
himself or a family member, “a child either has to isolate
11
These factors include lack of guidance and mental health
intervention, divorce and separation, multiple moves, abuse,
abandonment, homelessness, a disabled family member, immigrant
status, lack of role models, growing up witnessing violence, the
lack of consistent care giving, an inability to trust, worry
about violence in the home which affects learning in school,
impaired cognitive functioning, inability to deal with
aggressive feelings, repression of feelings, sense of
helplessness, and poor problem solving skills. According to Ms.
Vogelsang, all applied to Loving except immigrant status and
possibly impaired cognitive learning.
37
Loving v. United States, No. 06-8006/AR
themselves and engage in all the behaviors that go along with
that isolation, or they have to go out there and learn to
survive on those streets along with the other kids.” She
presented a model designed to explain the impact of
“psychological battering” on children and provided examples from
Loving’s life that exemplified the model. As to harsh physical
discipline, Ms. Vogelsang explained that “[m]any in the mental
health field believe that this has an impact on self worth, on
self-esteem, that you’re not valued as a human being.”
Ms. Vogelsang stated:
There is an accumulation of factors over time that do
build, and if there is not anything to compensate for
that, if there are not any positive factors, if
there’s not a degree of resilience, then those people
tend to be at high risk as adults. They tend to have
poor judgment and insight; they tend to make poor
decisions. They start doing all of that as children
and then it leads them into adulthood where they are
doing the same things only now they’re bigger and, you
know, less safe.
Ultimately, in her written assessment, Ms. Vogelsang concluded:
There was an accumulation of factors that over
time resulted in the missocialization of Dwight
Loving. Whatever potential he had, and he did have
potential that was occasionally brought to light for
brief periods, was not developed consistently enough
to create the resilience he needed to resist the
influence of his home and community during his
developing years. Dwight succumbed to the patterns in
his family and this is best illustrated by his
inability to handle rejection and the self-medication
of his pain with substances, both of which were
prominent in the weeks and days prior to and during
the crimes for which he stands convicted.
38
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4. Discussion
The Supreme Court has repeatedly recognized that “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, or to emotional and mental problems,
may be less culpable than defendants who have no such excuse.”
Boyde v. California, 494 U.S. 370, 382 (1990) (citation,
quotations marks, and emphasis omitted); see also Wiggins, 539
U.S. at 535 (“Petitioner thus has the kind of troubled history
we have declared relevant to assessing a defendant’s moral
culpability.”). Without question, this case involves a
defendant with a disadvantaged background. However, in contrast
to cases like Rompilla, 545 U.S. at 378, Wiggins, 539 U.S. at
515, and Williams v. Taylor, 529 U.S. 362, 369 (2000), which
addressed defense counsel’s complete failure to inform the
sentencing panel about the defendant’s difficult past, trial
defense counsel in this case presented a mitigation case to the
members that devoted a significant degree of attention to
Loving’s troubled childhood.
In making his case for prejudice, Loving characterizes the
difference between the mitigation case presented at sentencing
and the mitigation case presented at the DuBay hearing as
“remarkable.” Loving argues that at the trial his defense
39
Loving v. United States, No. 06-8006/AR
counsel presented only a “superficial glance at the horrific
reality of Dwight Loving’s life” and did not provide “a true
picture of the horrors of his life.” He contends that the
mitigation evidence presented at trial was “just general
background information concerning the Loving family without any
real focus on Dwight Loving” and that trial counsel highlighted
this shortcoming during his argument to the members. Quoting
Wiggins, 539 U.S. at 537, Loving argues that “[i]f the panel had
heard the full extent of this ‘excruciating life history’ and
its impact on his development and mental state ‘there is a
reasonable probability that at least one juror would have struck
a different balance.’”
In a comparable context, the United States Court of Appeals
for the Sixth Circuit articulated a framework that we find
useful: “[T]o establish prejudice, the new evidence that a
habeas petitioner presents must differ in a substantial way --
in strength and subject matter -- from the evidence actually
presented at sentencing.” Hill v. Mitchell, 400 F.3d 308, 319
(6th Cir. 2005); cf. Williams v. Allen, 542 F.3d 1326, 1342
(11th Cir. 2008) (finding prejudice when the new mitigation
evidence “paints a vastly different picture of [the defendant’s]
background” than testimony presented at trial); Buckner v. Polk,
453 F.3d 195, 207 (4th Cir. 2006) (concluding that there is no
prejudice under Strickland when new evidence merely “rounds out
40
Loving v. United States, No. 06-8006/AR
the details of a personal history already presented to the
jury”). In this case, the mitigation case presented at the
DuBay hearing provided some new information and arguably did
more than “round[] out the details” of Loving’s personal history
by offering additional grim and graphic information about
Loving’s disadvantaged upbringing. Buckner, 453 F.3d at 207.
However, it did not ultimately change the sentencing profile
presented by defense counsel at trial. We do not believe that
the new evidence sufficiently differed in strength and subject
matter from the information considered by the members at trial
to establish prejudice in this case.
As made clear by our description of the sentencing evidence
above, the evidence presented at the trial showed that Loving
was the youngest of eight children raised by a single mother on
welfare in a dangerous section of the inner city. The members
were informed that Loving’s mother had to stop working because
of her narcolepsy, that she struggled financially, and that she
suffered severe physical abuse at the hands of Loving’s
alcoholic father in the presence of the children. The evidence
showed that Loving’s childhood environment and family life were
marked by alcoholism, drugs, family violence, neighborhood
violence, school violence, and gang violence.
The evidence adduced during the DuBay hearing emphasized
Loving’s father’s drinking problem and provided specific
41
Loving v. United States, No. 06-8006/AR
examples of violence in Loving’s home and neighborhood. There
is no doubt that the DuBay evidence added some detail about the
violence the family witnessed and participated in, the financial
struggles they endured, and the children’s exposure to drugs and
alcohol, but it was largely cumulative of the type of
information presented to the members at trial. The evidence
adduced during the DuBay also emphasized that Ms. Williams was a
harsh disciplinarian and punished the children by using a belt,
switch, or extension cord. Again, this is largely cumulative of
evidence presented at sentencing where Wendolyn Black testified
that their mother “would beat” the children, “whip [them] with
the belt,” or “hit [them] with her hand.”12
We note that some new information came out of the DuBay
proceedings. The DuBay hearing revealed instances where the
children mistreated each other and Loving points to one instance
of neglect documented in the social service records when their
mother was hospitalized and the children were without adequate
adult supervision. While we do not diminish the troubling
nature of these circumstances, we do not believe the evidence
12
The DuBay evidence established that Loving’s father also
disciplined the children by hitting them with a belt, which
differed from the trial presentation where he testified only
that he spanked the children so that it would “hurt a little
bit.” However, the basic fact that the children endured harsh
corporal punishment was consistent between the presentations,
and the DuBay evidence does not raise allegations about physical
abuse by Loving’s parents any more so than the sentencing
evidence presented at trial.
42
Loving v. United States, No. 06-8006/AR
differs in kind or degree from circumstances as they were
presented to the members. This is particularly so considering
that the DuBay hearing offered some contrasting evidence on
these particular points. Harryl Loving’s testimony during the
DuBay described how the children played together when they were
young and denied that his sister abused them. After following
up on Ms. Williams’s return from the hospital the same social
service records documenting the neglect characterize Loving’s
mother as a “wonderful mother.”
We recognize, moreover, that the DuBay hearing also touched
on the history of violence and abuse in Lucille Williams’s
upbringing, her belief in voodoo, Gwendolyn’s teenage pregnancy
and Wendolyn’s sexual abuse, none of which were raised at the
initial trial. Further, the DuBay hearing included testimony
from a social worker explaining how Loving’s traumatic childhood
negatively impacted his development.
As to the new evidence, including the expert’s testimony
about the impact that Loving’s tragic childhood had on his
development, we simply do not find the additional information to
be sufficiently compelling as to establish prejudice in this
case, where the aggravating factors are overwhelming and where
the members were presented with substantial information
regarding Loving’s disadvantaged youth. Loving killed two cab
drivers in separate instances by shooting them in the back of
43
Loving v. United States, No. 06-8006/AR
the head after each one complied with his demand for money. He
tried to kill again but the third cab driver struggled the gun
away from Loving as he was about to shoot him. The members
found three required aggravating factors beyond a reasonable
doubt and imposed the death penalty despite being instructed on
nineteen mitigating factors by the military judge, including
substantial evidence as to Loving’s disadvantaged background.
Certainly the mitigation evidence presented at the DuBay
hearing reinforced and emphasized Loving’s traumatic childhood.
It also provided some new details about the hardships he and his
family endured as he was growing up and included expert
testimony that he lacked the resilience to resist the influence
of his home and community during his developing years and
eventually succumbed to the patterns of his family life.
However, the members were aware that Loving’s childhood
environment and family life were scarred by alcoholism, drugs,
family violence, neighborhood violence, school violence, and
gang violence. And while we do not diminish the potential value
of expert testimony in capital sentencing proceedings that
addresses how a traumatic childhood could negatively impact a
defendant’s development, the members in this case were at least
exposed to this theory through defense counsel’s argument, which
urged them to consider that Loving’s background made him less
able to handle situations like those he confronted on the night
44
Loving v. United States, No. 06-8006/AR
of his crimes.13 We conclude that the new details as to these
circumstances do not alter the sentencing profile in a material
manner.
Reweighing the aggravating evidence against the totality of
mitigating evidence, we are convinced beyond a reasonable doubt
that if the members had been able to place the additional
evidence adduced during the habeas proceedings on the mitigating
side of the scale, a reasonable probability that at least one
member would have struck a different balance does not exist. We
conclude that Loving has failed to meet his burden to establish
prejudice under Strickland and deny the petition for
extraordinary relief in the nature of a writ of habeas corpus.
DECISION
Loving’s petition for extraordinary relief in the nature of
a writ of habeas corpus is denied.
13
Defense counsel had been consulting with a forensic
psychiatrist who was competent to assess the impact of Loving’s
traumatic social background on his development and to advise
defense counsel in this regard. This expert was able to inform
defense counsel’s understanding of the social history nexus and
to influence how defense counsel presented this information to
the members.
45
Loving v. United States, No. 06-8006/AR
EFFRON, Chief Judge (concurring):
I concur in the majority opinion. I write separately
solely to note adherence to my previously expressed views in
Loving v. Hart, 47 M.J. 438, 454-60 (C.A.A.F. 1998) (Effron, J.,
concurring in part and dissenting in part), regarding the
distinct issues raised in that writ-appeal concerning the voting
procedures during sentencing at petitioner’s court-martial.
Loving v. United States, No. 06-8006/AR
STUCKY, Judge (concurring in part and in the result):
I have concerns similar to those raised by Judge Ryan
regarding the appropriateness of applying to the review of this
Court’s own previous decisions the same habeas standards, under
28 U.S.C. § 2254 (2006), as federal courts apply in habeas
reviews of state court decisions. Judge Ryan also makes an
interesting point about our habeas corpus jurisdiction in cases
in which direct appellate review has been completed. I write
separately today, however, solely because I am convinced that
the defense team’s performance was not deficient. I concur with
the majority’s conclusion that, in any event, Loving failed to
show that he was prejudiced by his counsel’s performance.
I. Effective Assistance of Counsel
A. The Law
“A military accused is entitled under the Constitution and
Article 27(b), Uniform Code of Military Justice, (UCMJ), 10
U.S.C. § 827(b) (2000), to the effective assistance of counsel.”
Denedo v. United States, 66 M.J. 114, 127 (C.A.A.F. 2008). In
reviewing claims of ineffective assistance of counsel, this
Court employs the two-part standard of Strickland v. Washington,
466 U.S. 668, 692-93 (1984). United States v. Gutierrez, 66
M.J. 329, 330-31 (C.A.A.F. 2008).
First, the defendant must show that counsel’s
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
Loving v. United States, No. 06-8006/AR
functioning as the “counsel” guaranteed the defendant
by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors
were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.
Strickland, 466 U.S. at 687. These same standards apply to
capital sentencing proceedings. Id. at 686 (Strickland itself
was a capital sentencing case).
“This Court reviews factual findings under a clearly
erroneous standard, but looks at the questions of deficient
performance and prejudice de novo.” United States v. Gutierrez,
66 M.J. 329, 330-31 (citing United States v. Paxton, 64 M.J.
484, 488 (C.A.A.F. 2007)); United States v. Davis, 60 M.J. 469,
473 (C.A.A.F. 2005).
The first part of the test requires an appellant to “show
that counsel’s representation fell below an objective standard
of reasonableness” “under prevailing professional norms.”
Strickland, 466 U.S. at 688 (citations omitted). “[A] court
deciding an actual ineffectiveness claim must judge the
reasonableness of counsel’s challenged conduct on the facts of
the particular case, viewed as of the time of counsel’s
conduct.” Id. at 690.
Judicial scrutiny of counsel’s performance must be
highly deferential. . . . A fair assessment of
attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from
2
Loving v. United States, No. 06-8006/AR
counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a
court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must
overcome the presumption that, under the
circumstances, the challenged action “might be
considered sound trial strategy.”
Id. at 689 (citations omitted); United States v. Perez, 64 M.J.
239, 243 (C.A.A.F. 2006). “[T]he court should recognize that
counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Strickland, 466 U.S. at 690.
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.
Strickland, 466 U.S. at 690-91.
B. Discussion
Appellant focuses his complaint of deficient performance on
two aspects of the trial defense team’s conduct: (1) the
failure to hire a mitigation specialist; and (2) the claim that
a mitigation theory was initially formulated, and the subsequent
3
Loving v. United States, No. 06-8006/AR
investigation was restricted to its narrow confines. I find
neither argument persuasive.
(1) Failure to hire a mitigation specialist
Citing the 1989 American Bar Association Guidelines for the
Appointment and Performance of Counsel in Death Penalty Cases
(ABA Guidelines), Appellant asserts that the “prevailing
professional norms” at the time required the defense team to
secure the assistance of experts who could assist in the
investigation and presentation of mitigating evidence. ABA
Guideline 11.4.1.D.7(D) provides that “[c]ounsel should secure
the assistance of experts where it is necessary or appropriate
for . . . presentation of mitigation.” There is no requirement,
even today, that a mitigation specialist be hired in every death
penalty case.
Despite a gradually emerging practice of hiring a social
worker or other mitigation specialist, the prevailing norm at
the time of Appellant’s trial was for the defense team to
conduct a reasonable, independent investigation into the
accused’s family and background in an effort to discover
mitigating evidence.
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.
4
Loving v. United States, No. 06-8006/AR
United States v. Loving, 41 M.J. 213, 250 (C.M.A. 1994). As the
DuBay hearing1 judge concluded, there was certainly no consensus
as to the need for mitigation specialists in 1989.
Appellant was sentenced to death on April 3, 1989, and the
ABA did not adopt the Guidelines until its February 1989 Midyear
Meeting, while the defense team was litigating Appellant’s case.
The ABA specifically noted in the introduction to the Guidelines
that (1) “[w]hile some local standards may exist for capital
representation, national guidelines on the assignment and
performance of counsel in capital cases did not exist prior to
these Guidelines,” and (2) the ABA House of Delegates’
resolution approving the Guidelines specifically provided “for
such exceptions to the Guidelines as may be appropriate in the
military.” Although we have found the Guidelines “instructive,”
this Court has “expressly declined to mandate that military
defense counsel meet” those guidelines. United States v.
Murphy, 50 M.J. 4, 9 (C.A.A.F. 1998) (concerning the appointment
of death penalty qualified attorneys) (citing Loving, 41 M.J. at
300).
Appellant further argues that, contrary to the Supreme
Court’s holdings in Wiggins v. Smith, 539 U.S. 510 (2003),
Williams v. Taylor, 529 U.S. 362 (2000), and Strickland, the
defense team formulated its theory of the sentencing case before
1
United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).
5
Loving v. United States, No. 06-8006/AR
they fully investigated, restricted the rest of the
investigation to facts supporting that theory, and thus failed
to discover important mitigating evidence. In Wiggins and
Strickland, the trial defense counsel attempted “to justify
their limited investigation as reflecting a tactical judgment
not to present mitigating evidence at sentencing and to pursue
an alternative strategy instead.” Wiggins, 539 U.S. at 521
(referring to Strickland, 466 U.S. at 673). In Williams, the
Supreme Court found the “ineffectiveness claim meritorious”
because “counsel’s failure to uncover and present voluminous
mitigating evidence at sentencing could not be justified as a
tactical decision to focus on Williams’ voluntary confessions,
because counsel had not ‘fulfilled their obligation to conduct a
thorough investigation of the defendant’s background.’” Id. at
522 (quoting Williams, 529 U.S. at 396).
Appellant’s defense team did form a tentative sentencing
theory shortly after being assigned to the case, and Appellant
is correct in asserting that now, years after he was sentenced
to death, his family has come forward with some mitigating
evidence. But the defense team at the time acquired all of the
relevant school, medical, mental health, and military records.
They interviewed Appellant extensively, visited his hometown,
spoke to family, friends, teachers, law enforcement officials,
and the community center boxing coach. They learned much about
6
Loving v. United States, No. 06-8006/AR
Appellant, his background, his family, and the community from
which he entered military service, and were fully able to
present that evidence to the court-martial. They also obtained
the services of a forensic psychiatrist who had a law degree.
The forensic psychiatrist reviewed all the records, including
the sanity board and statements, spoke with the witnesses and at
least one member of the sanity board, and examined Appellant.
Ultimately, the defense team decided not to have the
forensic psychiatrist testify because they feared it would cause
the military judge to release the full contents of the sanity
board to the prosecution, revealing that Appellant had
“sociopathic tendencies.” This is precisely the kind of
tactical decision that, under Strickland, we will not second-
guess. 466 U.S. at 689; United States v. Perez, 64 M.J. at 243;
United States v. Anderson, 55 M.J. 198, 202 (C.A.A.F. 2001).
In Wiggins and Williams (529 U.S. at 396), the defense
teams abandoned their investigations prematurely because of the
constraints of their tentative theories of their cases.
Appellant’s defense team, on the other hand, did everything that
the counsel in those cases failed to do. The scope of their
investigation was reasonable under the prevailing professional
norms “as seen ‘from counsel’s perspective at the time.’”
Wiggins, 539 U.S. at 523 (quoting Strickland, 466 U.S. at 689).
Their performance did not fall “below an objective standard of
7
Loving v. United States, No. 06-8006/AR
reasonableness.” Strickland, 466 U.S. at 688. They were,
therefore, not ineffective.
8
Loving v. United States, 06-8006/AR
RYAN, J., (dissenting):
I. Introduction
Direct judicial review of this case was completed in 1996
upon affirmation of Petitioner Loving’s conviction by both this
Court and the Supreme Court. United States v. Loving (Loving
I), 41 M.J. 213 (C.A.A.F. 1994); Loving v. United States (Loving
II), 517 U.S. 748 (1996). In 2005, this Court considered and
rejected Loving’s petition for a writ of error coram nobis, but
suggested that it could and would entertain a petition for a
writ of habeas corpus. Loving v. United States (Loving III), 62
M.J. 235, 256 (C.A.A.F. 2005). In 2006, the Court entertained
the present petition and ordered an evidentiary hearing.1 Loving
1
The Court ordered that Loving’s case be returned directly to
this Court following the evidentiary hearing, rather than first
allowing the appropriate convening authority and court of
criminal appeals (CCA) to review the military judge’s factual
findings. Loving IV, 64 M.J. at 152-53. The Court did so
without considering how such makeshift collateral review of
final cases would impact procedural mechanisms we have already
made up. By commanding that the case be returned directly to
this Court, the Court disturbed the multi-step review of the
records of courts-martial provided by the Uniform Code of
Military Justice (UCMJ), see generally Articles 60, 66, 67,
UCMJ, 10 U.S.C. §§ 860, 866, 867 (2006) (establishing the
various steps for review of courts-martial), that our practice
of remanding for “DuBay hearings” seeks to emulate. See
generally United States v. DuBay, 17 C.M.A. 147, 149, 37 C.M.R.
411, 413 (C.M.A. 1967) (setting forth the procedure for
developing new factual matters after trial, to include a
convening authority referring the case to a court-martial for an
evidentiary hearing to enter findings of fact and conclusions of
law on the record for further review by the convening authority
and, if necessary, by the appropriate CCA and CAAF). This
judicially crafted DuBay procedure at least creates the legal
Loving v. United States, 06-8006/AR
v. United States (Loving IV), 64 M.J. 132, 132 (C.A.A.F. 2006).
The majority now rules on the merits of this petition, and
determines that it should be denied. Loving v. United States
(Loving V), __ M.J. __ (2-3) (C.A.A.F. 2009). To reach this
conclusion, the majority entertains a habeas corpus petition for
a case in which direct review is complete. This Court lacks
jurisdiction to hear such a petition. Rather, jurisdiction
falls squarely within the authority of Article III courts, both
by statute and historic practice. I would dismiss the petition
for lack of jurisdiction and, therefore, respectfully dissent.
II. The Jurisdiction Fiction: Loving III
The assumption of jurisdiction made by this Court in 2005
and echoed today was not based on any statute authorizing us to
conduct habeas review of a case in which direct review has been
completed. And it was made despite clear statutory jurisdiction
over such cases by Article III courts. The labyrinthine
reasoning that underlies the 2005 conclusion that this Court had
jurisdiction is unsustainable. See infra 12-17.
To the extent review of a case in which direct review is
fiction that we are only reviewing facts in “the record,” by
having the new facts reviewed by the convening authority and
CCA. See Denedo v. United States, 66 M.J. 114, 136 (C.A.A.F.
2008) (Ryan, J., dissenting) (noting the “unwieldy and imperfect
system” created by DuBay to enable additional factfinding). In
this case the facts considered are not properly in “the record”
-- we do not have, because we bypassed it, the benefit of review
of the military judge’s factual findings by either the convening
authority or the Army Court of Criminal Appeals.
2
Loving v. United States, 06-8006/AR
complete may be undertaken by this Court at all, the Supreme
Court’s recent decision in United States v. Denedo clarifies
that such jurisdiction rests on the nature of the writ in
question; it must constitute “direct review” of the original
case under Article 67, UCMJ, and not rely on a general notion of
continuing jurisdiction over cases where we once had
jurisdiction. 129 S. Ct. 2213 (2009). Compare id. at 2221
(distinguishing jurisdiction over a coram nobis petition -- “a
belated extension of the original proceeding,” dependent
entirely upon whether there was jurisdiction over the original
proceeding under Articles 66 and 67, UCMJ -- and a habeas corpus
petition, “‘a separate civil proceeding’” (quoting United States
v. Morgan, 346 U.S. 502, 505 n.4 (1954)); with Loving III, 62
M.J. at 250 (“Congress gave this Court the authority to conduct
a mandatory review of death penalty cases. Under this
authority, this Court remains the primary judicial body with
jurisdiction over Petitioner's case, and this Court has
authority to reexamine its prior decision in this case.”). Even
if the relevant statutes and historic practice did not clearly
establish that Article III courts, and not this Court, have
jurisdiction over this habeas petition, Denedo compels that
conclusion. See infra pp. 12-13.
3
Loving v. United States, 06-8006/AR
A. This Court Has No Jurisdiction Over This Habeas
Petition Under Article 67, UCMJ
This Court’s jurisdiction is strictly defined by Congress
in Article 67, UCMJ. See Christianson v. Colt Indus. Operating
Corp., 486 U.S. 800, 818 (1988) (“‘Courts created by statute can
have no jurisdiction but such as the statute confers.’” (quoting
Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850))). Although
created to oversee the military justice system, this Court is
limited in both the types of cases it may review and the extent
to which it may review them. See Article 67(c), UCMJ (“[T]he
Court of Appeals for the Armed Forces may act only with respect
to the findings and sentence as approved by the convening
authority and as affirmed or set aside as incorrect in law by
the Court of Criminal Appeals.”); Denedo, 129 S. Ct. at 2223
(emphasizing that C.A.A.F.’s jurisdiction is limited by Article
67, UCMJ); Clinton v. Goldsmith, 526 U.S. 529, 535-37 (1999)
(C.A.A.F.’s “jurisdiction is narrowly circumscribed. . . . [It]
is accorded jurisdiction by statute (so far as it concerns us
here) to ‘review the record in [specified] cases reviewed by’
the [CCAs] . . . . [T]he CAAF spoke too expansively when it
held itself to be ‘empowered by the All Writs Act to grant
extraordinary relief in a case in which the court-martial
rendered a sentence that constituted an adequate basis for
direct review . . . .” (citations omitted)).
4
Loving v. United States, 06-8006/AR
Following direct review by this Court, an accused may
petition the Supreme Court for review. Article 67a, UCMJ, 10
U.S.C. § 867a (2006). After the Supreme Court has acted on that
petition, the “judgment as to the legality of the proceedings is
final,” ending direct judicial review. Article 71(c), UCMJ, 10
U.S.C. § 871 (2006); accord Rule for Courts-Martial (R.C.M.)
1209(a). The Supreme Court’s affirmation of Loving’s conviction
in 1996 marked the end of direct judicial review in this case.
See Article 71(c), UCMJ; Loving IV, 64 M.J. at 137.
After direct judicial review is complete in a capital case,
the military justice system provides three possible extra-
judicial remedies that stand between an accused and the
carrying-out of his sentence: a successful petition to the
Judge Advocate General for a new trial under Article 73, UCMJ,
10 U.S.C. § 873 (2006); action taken by a service secretary
under Article 74, UCMJ, 10 U.S.C. § 874 (2006); and presidential
approval or commutation of the capital sentence under Article
71(a), UCMJ. While the availability of these extra-judicial
remedies may impact the res judicata effect of judgments under
Article 76, UCMJ, 10 U.S.C. § 876 (2006), it does not change the
fact that direct judicial review is complete.
In contrast with the direct judicial review authorized and
dictated under Articles 66 and 67, UCMJ, and R.C.M. 1201-1205
and 1209, no statutory authority, guidance, or process for
5
Loving v. United States, 06-8006/AR
collateral review by this Court exists once direct review has
been completed.2 See Noyd v. Bond, 395 U.S. 683, 695 n.7 (1969)
(distinguishing between this Court’s power to issue a writ of
habeas corpus in cases “like the present one [a case pending
direct review], which may ultimately be reviewed by [the] Court”
and “a case which the [Court] is not authorized to review under
the governing statutes”);3 Burns v. Wilson, 346 U.S. 137, 141
2
Nor does practice within the military justice system reflect a
different understanding. Since the current military justice
system was created under the UCMJ in 1951, there have been
twelve executions and fourteen death sentences that were
affirmed on direct review but commuted by the President. Dwight
H. Sullivan, “Executive Branch Consideration of Military Death
Sentences,” Evolving Military Justice 137 (Eugene R. Fidell &
Dwight H. Sullivan eds., 2002). In no capital case other than
this one has a writ of habeas corpus been sought in any court
before the President approved the sentence. (For cases in which
a habeas petition was filed after presidential approval of the
death sentence, see, for example, Thomas v. Davis, 249 F.2d 232
(10th Cir. 1957); Day v. Wilson, 247 F.2d 60 (D.C. Cir. 1957);
and Suttles v. Davis, 215 F.2d 760 (10th Cir. 1954).) And no
military prisoner with a capital sentence -- including one
prisoner currently facing a presidentially approved capital
sentence -- has ever requested a writ of habeas corpus from this
Court after direct review was completed, even after the
President acted. See Petitioner’s Response to Motion for
Reconsideration, To Lift Stay of Execution and Request for Oral
Argument at 5, Gray v. Gray, No. 08-3289-RDR (D. Kan. Dec. 2,
2008) (“Private Gray is seeking federal habeas court review for
the first time and he has not delayed commencing this action.
In fact, until the President approved his death sentence, there
was no action available.”).
3
The latter part of this quotation is neither cited nor
addressed by the majority. And with respect to the part of the
quotation that is cited, the majority fails to explain how,
where direct review is completed, the fact that the President
has not yet acted pursuant to Article 71(a), UCMJ, transforms
this case into one where further review by this Court is
authorized. No review of presidential action under Article
6
Loving v. United States, 06-8006/AR
(1953) (plurality opinion) (recognizing a petition for a new
trial as the only mechanism within the military justice system,
apart from ordinary appellate review, to collaterally attack a
judgment); United States v. Murphy, 50 M.J. 4, 5-6 (C.A.A.F.
1998) (recognizing the absence of rules or procedures for post-
conviction collateral attacks in the military justice system and
thus reviewing an ineffective-assistance-of-counsel claim on
direct review); Witham v. United States, 355 F.3d 501, 505 (6th
Cir. 2004) (“[N]either the [UCMJ] nor the Manual for Courts-
Martial provides for collateral review within the military
courts.”); Gilliam v. Bureau of Prisons, 2000 U.S. App. LEXIS
3684, at *4, 2000 WL 268491, at *2 (8th Cir. Mar. 10, 2000)
(“‘Unlike the practice in the United States Circuit Courts of
Appeal and District Courts, neither the UCMJ . . . nor the
Manual for Courts-Martial . . . provides procedures for
collateral, post-conviction attacks on guilty verdicts.’”
(quoting Murphy, 50 M.J. at 5)).
B. Article III Courts Have Jurisdiction
Over This Habeas Petition
Article III courts, though, have clear statutory
jurisdiction and authority to collaterally review convictions by
petitioners held in custody when constitutional error is
71(a), UCMJ, is provided for or authorized by any statute.
Other than by ipse dixit, this case is not one that “may
ultimately be reviewed by” this Court. Noyd, 395 U.S. at 695
n.7.
7
Loving v. United States, 06-8006/AR
alleged. See 28 U.S.C. § 1331 (2006) (providing Article III
district courts with original jurisdiction over federal
questions); id. § 2241(a) (“Writs of habeas corpus may be
granted by the Supreme Court, any justice thereof, the district
courts and any circuit judge within their respective
jurisdictions.”); id. § 2241(c)(3) (extending writ of habeas
corpus to prisoners “in custody in violation of the Constitution
or laws or treaties of the United States”); Denedo, 129 S. Ct.
at 2226 n.1 (Roberts, C.J., dissenting) (recognizing that court-
martial convictions may be collaterally attacked in an Article
III court, which has jurisdiction under §§ 1331 and 2241);
Goldsmith, 526 U.S. at 537 n.11 (1999) (“[O]nce a criminal
conviction has been finally reviewed within the military system,
. . . [a servicemember] is entitled to bring a habeas corpus
petition, see 28 U.S.C. § 2241(c), claiming that his conviction
is affected by a fundamental defect that requires that it be set
aside.”); Burns, 346 U.S. at 139 (plurality opinion)
(recognizing that the federal civil courts have jurisdiction
over habeas corpus petitions and that “[b]y statute Congress has
charged them with the exercise of that power” (citing § 2241; In
re Yamashita, 327 U.S. 1, 8 (1946)).
And while the statutes are already clear regarding the
court system to which a habeas corpus petition should be
addressed after direct review is complete, it is further
8
Loving v. United States, 06-8006/AR
instructive that Article III courts have been collaterally
reviewing court-martial convictions where direct review has been
completed since at least the mid-1800s. See Ex parte Reed, 100
U.S. 13, 19-23 (1879) (entertaining a habeas corpus petition
alleging that a military court-martial lacked jurisdiction over
the petitioner). Since that time, debate has focused not on to
whom the writ should be addressed, but rather on the appropriate
procedures, claims, and standards of review for collaterally
attacking court-martial convictions in federal court. See,
e.g., Gusik v. Schilder, 340 U.S. 128, 131 (1950) (requiring
exhaustion of military remedies before allowing collateral
review in federal courts); Burns, 346 U.S. at 142 (plurality
opinion) (recognizing collateral review of constitutional claims
that have not been “fully and fairly” considered by the military
justice system); Schlesinger v. Councilman, 420 U.S. 738, 749-53
(1975) (holding that Article 76, UCMJ, does not affect the
jurisdiction of Article III courts or insulate military
convictions from collateral review in federal court). By
comparison, only since the mid-1960s has this Court in any way
asserted the power of collateral review over final convictions.
See United States v. Frischholz, 16 C.M.A. 150, 152-53, 36
C.M.R. 306, 308-09 (1966) (holding that the All Writs Act
empowers this Court to issue a post-conviction writ of coram
nobis).
9
Loving v. United States, 06-8006/AR
C. The All Writs Act Cannot And Does Not Give
This Court Jurisdiction Where None
Exists Under Article 67, UCMJ
Despite the absence of express statutory jurisdiction to
entertain a habeas corpus petition, this Court in 2005 found
that it had such authority under the All Writs Act, 28 U.S.C. §
1651, based on our prior direct review jurisdiction under
Article 67, UCMJ. Loving III, 62 M.J. at 245-46, 250; cf.
Loving V, __ M.J. __ (7) (asserting that cases pending
presidential action remain subject to extraordinary writ
consideration by this Court). To do so, the Court distinguished
Goldsmith, where the Supreme Court held that this Court erred by
directing the Air Force not to drop a servicemember from its
rolls (an administrative action), stating this Court was “not
given authority, by the All Writs Act or otherwise, to oversee
all matters arguably related to military justice.” 526 U.S. at
536. The Loving III Court found Goldsmith inapplicable because
unlike that case, it reasoned, Loving III involved a finding and
sentence imposed by a court-martial that was not final under
Article 76, UCMJ, such that the extraordinary relief requested
would be in aid of the Court’s direct review jurisdiction under
Article 67, UCMJ. Loving III, 62 M.J. at 246.
But Article 76, UCMJ, does not change the fact that direct
review is complete. Article 76, UCMJ, codifies the common-law
principle of finality of judgments; it neither expands nor
10
Loving v. United States, 06-8006/AR
contracts the subject-matter jurisdiction of either this Court,
Denedo, 129 S. Ct. at 2221, 2223 (emphasizing that the principle
that Congress decides federal courts’ jurisdiction “applies with
added force to Article I tribunals” and noting that Article 76,
UCMJ, sets out a rule of finality rather than a jurisdictional
bar), or Article III courts, Councilman, 420 U.S. at 749. See
also Loving III, 62 M.J. at 247 (recognizing that the
President’s approval or commutation of the death sentence “is
not part of the direct judicial review of the case”).
Even more curiously, the Loving III Court explicitly
recognized that it was empowered to act by neither the general
federal habeas statute, § 2241, nor by any other congressionally
enacted habeas corpus statute. 62 M.J. at 255 (noting that the
plain language of §§ 2241 and 2255 did not include this Court).
The Court nonetheless went on to determine that the All Writs
Act -- a residual source of writ authority in aid of existing
jurisdiction -- authorized it to issue the writ in aid of its
former direct review jurisdiction. Id. at 256. See generally
Article 67(a)(1), UCMJ (providing for mandatory review of “all
cases in which the sentence, as affirmed by a Court of Criminal
Appeals, extends to death”).
Supreme Court precedent addressing this Court’s authority
under the All Writs Act, however, makes clear this holding was
in error. Although the Supreme Court has confirmed that this
11
Loving v. United States, 06-8006/AR
Court may sometimes issue writs under the Act, its
interpretation of the scope of the Act and of our jurisdiction
demonstrates that the Act does not authorize this Court to
entertain a collateral attack through a habeas corpus petition
that is not part of the direct review authorized by statute.
See Noyd, 395 U.S. at 695 n.7 (noting that although there was no
longer “any doubt as to the power of the Court of Military
Appeals to issue an emergency writ of habeas corpus” under the
All Writs Act, the power was recognized only for cases “which
may ultimately be reviewed by th[e] court” and not cases “which
the [court] is not authorized to review under the governing
statutes”).
In Goldsmith, the Supreme Court made it clear that
jurisdiction on direct review of a court-martial conviction does
not establish jurisdiction for all potential post-conviction
remedies. 526 U.S. at 536. Reversing this Court’s decision,
the Supreme Court stated that this Court could not always “act
as a plenary administrator even of criminal judgments it has
affirmed.” Id. (emphasis added). The Supreme Court noted our
opinion “spoke too expansively” when it decided that former
jurisdiction over the accused’s court-martial conviction
triggered the provisions of the All Writs Act. Id.
Likewise, in Denedo the Supreme Court reaffirmed that the
authority granted under the All Writs Act “does not determine
12
Loving v. United States, 06-8006/AR
the anterior question whether military courts have jurisdiction
to entertain a petition for [extraordinary relief].” 129 S. Ct.
at 2221. The Act itself is “not a source of subject-matter
jurisdiction.” Id. at 2222. Further, in holding that this
Court could issue a writ of coram nobis under the facts of
Denedo, the Supreme Court relied heavily on the nature of coram
nobis as a “belated extension of the original proceeding during
which the error allegedly transpired.” Id. at 2221. A military
court’s jurisdiction to issue such a writ was thus derived from
“the earlier jurisdiction it exercised to hear and determine the
validity of the conviction on direct review.” Id. at 2222.
Unlike the writ in Denedo, the relief requested by Loving
-- a writ of habeas corpus -- is not appropriately entertained
by this Court under the All Writs Act for three reasons. First,
unlike a writ of coram nobis, habeas corpus is not a “belated
extension” of the original court-martial proceeding. It is
instead an entirely separate civil proceeding in which the
petitioner asserts his rights against those who hold him in
custody. See id. at 2221 (“[C]oram nobis is ‘a step in the
criminal case and not, like habeas corpus where relief is sought
in a separate case and record, the beginning of a separate civil
proceeding.’” (quoting Morgan, 346 U.S. at 505 n.4)); Riddle v.
Dyche, 262 U.S. 333, 335-36 (1923) (“The writ of habeas corpus
is not a proceeding in the original criminal prosecution, but an
13
Loving v. United States, 06-8006/AR
independent civil suit . . . .”); Ex parte Tom Tong, 108 U.S.
556, 559 (1883) (“The prosecution against [petitioner] is a
criminal prosecution, but the writ of habeas corpus which he has
obtained is not a proceeding in that prosecution.”).
Second, even if a post-conviction habeas corpus petition
fell within the ambit of this Court’s All Writs Act authority as
an extension of our Article 67, UCMJ, review (which it does
not), entertaining such a petition is inappropriate in the
present case because the All Writs Act is limited to
circumstances where no other remedy is available. Goldsmith,
526 U.S. at 537 (“The All Writs Act invests a court with a power
essentially equitable and, as such, not generally available to
provide alternatives to other, adequate remedies at law.”).
Here, another remedy is available: a habeas corpus petition in
an Article III court.
Despite recognizing that such a writ was an available
remedy for military prisoners, the Loving III Court nonetheless
went on to discount that remedy on the ground that Article III
courts would, based on the doctrine of exhaustion, abstain from
considering Loving’s petition until the President approved
Loving’s death sentence. See 62 M.J. at 248-50; Loving V, __
M.J. __ (4-5). Lack of presidential approval notwithstanding, I
do not believe the exhaustion doctrine prevents Article III
review of Loving’s petition. This Court decided in 2005 that
14
Loving v. United States, 06-8006/AR
the possibility of clemency from the President is not part of
the direct judicial review process and, as such, is not an
available remedy sufficient to preclude issuing a writ of coram
nobis.4 Loving III, 62 M.J. at 247 (“We conclude that
presidential action is not an adequate remedy at law.
Presidential action is akin to a state governor’s action, and as
such, is not part of the direct judicial review of the case.”).
Our determination of what the UCMJ means receives great
deference in Article III courts. Middendorf v. Henry, 425 U.S.
25, 43 (1976); see also Noyd, 395 U.S. at 694, 696. It follows,
therefore, that the exhaustion doctrine would not necessarily
preclude those courts from hearing Loving’s petition based on
the mere possibility of executive action.
But even if Article III courts chose to view presidential
approval of the sentence in a capital case as a necessary
predicate to exhaustion, that view would not necessarily deprive
those courts of review power. The Supreme Court has made clear
that exhaustion is a prudential doctrine, not a jurisdictional
one; it remains subject to the circumstances of the case,
4
Strangely, while holding that presidential action was an
inadequate remedy to preclude a writ of coram nobis -- which may
only be filed in the absence of any other remedy, see, e.g.,
Denedo, 129 S. Ct. at 2220 -- this Court went on to determine
that the same presidential action was an adequate-enough remedy
to prevent Article III judicial review under the principle of
exhaustion -- which also requires that there be no other remedy,
Gusik, 340 U.S. at 131-32. Loving III, 62 M.J. at 247, 249-50.
This purported distinction makes no sense.
15
Loving v. United States, 06-8006/AR
including the potential for long delay.5 See Boumediene v. Bush,
128 S. Ct. 2229, 2275 (2008) (refusing to apply the exhaustion
doctrine in cases where petitioners faced “months, if not years,
of delay”); see also Denedo v. United States, 66 M.J. 114, 122
(C.A.A.F. 2008) (acknowledging that the Supreme Court has not
precluded “the possibility that the circumstances of a
particular case might warrant consideration of a habeas petition
by an Article III court prior to exhaustion.” (citing
Councilman, 420 U.S. at 761)). Thus, an Article III court could
choose to hear a military prisoner’s habeas petition in light of
significant potential delay in presidential action.6
Finally, the usual canon of statutory construction that
favors specific statutes over general ones suggests that the All
Writs Act cannot be asserted to extend our Article 67, UCMJ,
jurisdiction in the face of specific habeas corpus statutes.
See Hinck v. United States, 550 U.S. 501, 506 (2007) (repeating
5
Of course, the doctrine of exhaustion is prudential in part
because of principles of comity and, relatedly, because remedies
not yet asserted may moot the question being considered by a
collaterally reviewing court. Councilman, 420 M.J. at 756-57.
6
Regardless, there is little reason to believe that a military
prisoner who has been sentenced to death will seek habeas corpus
relief before presidential approval, which provides its own
delay, given the natural interest a prisoner has in delaying his
execution. See Dwight H. Sullivan, The Last Line of Defense:
Federal Habeas Review of Military Death Penalty Cases, 144 Mil.
L. Rev. 1, 5 n.13 (1994) (“Because death row inmates have an
obvious interest in delay of any kind, no service member under a
military death sentence would have an incentive to seek habeas
relief before presidential action on the sentence.”) (citation
omitted).
16
Loving v. United States, 06-8006/AR
“the well-established principle that, in most contexts, ‘a
precisely drawn, detailed statute pre-empts more general
remedies’” (quoting EC Term of Years Trust v. United States, 550
U.S. 429, 434 (2007)). “The All Writs Act is a residual source
of authority to issue writs that are not otherwise covered by
statute. Where a statute specifically addresses the particular
issue at hand, it is that authority, and not the All Writs Act,
that is controlling.” Penn. Bureau of Corr. v. U.S. Marshals
Serv., 474 U.S. 34, 43 (1985) (emphasis added). Even if we were
to ignore the plain language of Article 67, UCMJ, and assume a
theoretical continuing jurisdiction over capital cases in which
we once had jurisdiction, such as that advanced by the Loving
III Court, see 62 M.J. at 244 (“[W]e conclude that this Court’s
subject matter jurisdiction continues even after the Supreme
Court’s decision affirming Petitioner’s death sentence.”), the
fact remains that Article 67, UCMJ, provides only a general
grant of authority, and the All Writs Act provides only a
broadly defined mechanism to issue writs in aid of already-
existing jurisdiction.
In contrast, Article III habeas corpus power is set down in
reticulated statutes detailing not only which courts have the
authority to issue writs of habeas corpus, 28 U.S.C. § 2241
(2006), but also specifics related to, inter alia, the form,
timing, filing, standards of review, and statutes of limitation
17
Loving v. United States, 06-8006/AR
for such writs, 28 U.S.C. §§ 2241-55 (2006).7 Thus, even if the
Court’s statutory jurisdiction could be stretched as far as the
majority assumes, this Court may not entertain Loving’s petition
because an Article III court could properly consider a military
prisoner’s habeas corpus petition and the All Writs Act does not
allow this Court to act in the face of another, specific
statute. See Goldsmith, 526 U.S. at 537.8
III. This Court’s Foray Into Habeas Corpus Law Helps Neither
This Nor Future Petitioners
I do not doubt that Loving sought a writ of coram nobis
here in 2005 because there was presumably nothing to lose. If
we entertained it, there was a possibility we would afford him
relief. If we refused to entertain it, he was presumably no
worse off. But we proposed he file a habeas petition, and, with
the Court’s judgment today, he is afforded no relief and is
worse off if the judgment is allowed to stand.
7
Which is not to suggest that these reticulated statutes apply
perfectly to the review of military courts-martial. But any
difficulty in Article III courts’ habeas review of courts-
martial convictions neither divests them of jurisdiction to
conduct such review, nor gives this Court authority to expand
its own jurisdiction. It is for Congress to change the who and
the how of habeas review, not this Court.
8
This seems all the more obvious where, as here, the legal issue
is not one that turns on any interpretation of military law or
nuance of military service, but rather presents the
constitutional claim of ineffective assistance of counsel -- a
claim with which Article III courts are at least as familiar as
this Court.
18
Loving v. United States, 06-8006/AR
And Loving has no incentive to let the judgment stand.9 The
Court’s 2005 expansion of jurisdiction beyond the statutory
limits established by Congress was not only unnecessary, given
the statutory availability of recourse to an Article III court,
but unfortunate. First, we have hastened post-conviction
collateral review of a habeas corpus petition in a capital case
before the President has acted to approve the sentence. See
supra note 6.
Second, we have foreclosed initial review of Loving’s
habeas corpus petition by an Article III court on this claim,
potentially placing him in the unenviable position of being a
successive petitioner. Congress has moved to limit habeas
corpus by restricting successive petitions presenting the same
claims:
No circuit or district judge shall be required to
9
Even though Loving now has every incentive to challenge this
judgment, we ought not to wait for such a challenge; it is our
responsibility to ensure we have jurisdiction, not his. See,
e.g., Ashcroft v. Iqbal, 129 S. Ct. 1937, 1945 (2009) (“Subject-
matter jurisdiction cannot be forfeited or waived and should be
considered when fairly in doubt.”); Arbaugh v. Y & H Corp., 546
U.S. 500, 514 (2006) (“[S]ubject-matter jurisdiction, because it
involves a court’s power to hear a case, can never be forfeited
or waived. Moreover, courts, including this Court, have an
independent obligation to determine whether subject-matter
jurisdiction exists, even in the absence of a challenge from any
party.” (citation and quotation marks omitted)); United States
v. Cotton, 535 U.S. 625, 630 (2002) (“[S]ubject-matter
jurisdiction, because it involves a court’s power to hear a
case, can never be forfeited or waived. Consequently, defects
in subject-matter jurisdiction require correction regardless of
whether the error was raised in district court.”).
19
Loving v. United States, 06-8006/AR
entertain an application for a writ of habeas corpus
to inquire into the detention of a person pursuant to
a judgment of a court of the United States if it
appears that the legality of such detention has been
determined by a judge or court of the United States on
a prior application for a writ of habeas corpus,
except as provided in section 2255.
28 U.S.C. § 2244(a). If an Article III court concludes that
this Court, the United States Court of Appeals for the Armed
Forces, is “a court of the United States” under § 2244, the
Article III court would not be required to hear the petition.
See Loving V, __ M.J. __ (7) (recognizing “the potential effect
of a habeas petition before our Court on future habeas petitions
filed in the Article III courts”).
Third, in light of the above, the standard of review
indiscriminately plucked10 by this Court to review habeas corpus
challenges to our own prior decisions is especially cold comfort
to Loving. See Loving IV, 64 M.J. at 145 (adopting the standard
of review from 28 U.S.C. § 2254 (2000), which, in part,
restricts Article III court review of a state proceeding to
whether the state decision was contrary to or an unreasonable
application of federal law); accord Loving V, __ M.J. __ (8).
10
Other than asserting its jurisdiction to entertain this habeas
petition and selecting its own standard of review, this Court
elected not to provide any further guidance to future
petitioners as to when and how they should approach us with
their claims. Habeas corpus unmoored from any procedural rules
and provisions is a novelty, to say the least. The Court failed
to consider the prudence of asserting jurisdiction and adopting
a standard of review in a vacuum.
20
Loving v. United States, 06-8006/AR
Deference to state court decisions under § 2254 reflects the
need to balance federal review against respect for proceedings
conducted by a separate sovereign -- the state. See Williams v.
Taylor, 529 U.S. 420, 436-37 (2000) (discussing § 2254’s
deference to state court proceedings). Such deference is
inexplicable and inappropriate when this Court reviews its own
prior holdings. A petitioner seeking collateral review of his
court-martial at this Court faces the unusual and uphill battle
of convincing us that our own previous actions were not just
erroneous, but unreasonable.
While such deference may or may not be warranted when an
Article III court is reviewing a decision of this Court, it
seems untoward to apply it to our own previous decisions. Most
people -- a category that arguably includes most judges -- would
not have adopted a position in the first instance if they
thought it was unreasonable.
IV. Conclusion
The writ of habeas corpus is “the most celebrated writ in
English law,” William Blackstone, 3 Commentaries 129 (1768), and
I do not begrudge Loving’s desire to exercise his constitutional
right to challenge on collateral review the alleged ineffective
assistance of counsel he received at his capital trial.11 But
11
Further, while I take issue with this Court’s continued
expansion of its own jurisdiction beyond the limits established
21
Loving v. United States, 06-8006/AR
absent statutory changes from Congress, the appropriate venue
for review of this petition is the Article III courts.
Therefore, I respectfully dissent.
by Congress, this Court could provide an adequate venue to
evaluate Loving’s conviction if the UCMJ provided jurisdiction
over cases in which direct review is completed (preferably with
related procedural guidance, in the case of habeas petitions)
and if the U.S. Code did not already invest jurisdiction over
these cases in Article III courts. Whatever its beginnings, far
from being “a rough form of justice,” Reid v. Covert, 354 U.S.
1, 35 (1957), the military justice system today, including this
Court, generally provides “substantial procedural protections
and provision for appellate review by independent civilian
judges [to] ‘vindicate servicemen’s constitutional rights.’”
Hamdan v. Rumsfeld, 548 U.S. 557, 586 (2006) (quoting
Councilman, 420 U.S. at 758). This is confirmed by the
extensive and careful review received in this case to date. See
United States v. Loving, 34 M.J. 956 (A.C.M.R. 1992) (direct
appeal); United States v. Loving, 34 M.J. 1065 (A.C.M.R. 1992)
(petition for reconsideration); United States v. Loving, 41 M.J.
213 (C.A.A.F. 1994) (mandatory direct review); United States v.
Loving, 42 M.J. 109 (C.A.A.F. 1995) (petition for
reconsideration); Loving v. Hart, 47 M.J. 438 (C.A.A.F. 1998)
(petition for writ of mandamus to CCA); Loving v. United States,
62 M.J. 235 (C.A.A.F. 2005) (petitions for writ of coram nobis);
Loving v. United States, 64 M.J. 132 (C.A.A.F. 2006) (petition
for writ of habeas corpus). But the fact that this Court may be
competent to adjudicate Loving’s constitutional claim does not
answer the antecedent question whether Congress has authorized
it to do so once direct review is completed.
22