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Habeas Corpus Review Restricted in Military Trials

The Tenth Circuit Court of Appeals held the writ of Habeas Corpus is
unavailable to persons convicted by a military tribunal when that tribunal
gave fair and full consideration to the questions raised in the Habeas
petition. William M. Lips was convicted by a military jury of rape,
forcible sodomy and aggravated assault. He was sentenced to 20 years
imprisonment and exhausted his appeals with the Air Force Court of
Military Review. He then petitioned for Habeas Corpus relief.
His petition raised two issues: (1) The military judge improperly admitted
sexually explicit materials taken from his apartment, and (2) The
prosecutor violated his right against self-incrimination by referring to
his post-arrest silence in cross-examination and in closing argument. The
district court granted relief on the second issue and ordered a new trial.
The government appealed.

The Tenth Circuit held that review by a federal District Court of a
military conviction is appropriate only if four conditions are met: (1)
The asserted error is of substantial constitutional dimension; (2) The
issue is one of law rather than of disputed fact already determined by the
military tribunal; (3) There are no military considerations that warrant
different treatment of constitutional claims; and (4) The military courts
failed to give adequate consideration to the issues involved or failed to
apply proper legal standards. The court stated that only when the military
has not given a petitioner's claims full and fair consideration does the
scope of review by a federal civil court expand. Otherwise, the petition
is to be denied.

The appeals court held the military tribunals had given fair and full
consideration to Lips' claims, and reversed the grant of relief with
directions to deny the petition. See: Lips v. Commandant, U.S.
Disciplinary Barracks, 997 F.2d 808 (10th Cir 1993).

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Related legal case

Lips v. Commandant, U.S. Disciplinary Barracks

Lips v. Commandant, 997 F.2d 808 (10th Cir. 07/01/1993)


[2] Nos. 92-3359, 92-3360

[3] 997 F.2d 808

[4] Filed: July 1, 1993; As Corrected July 21, 1993.


[6] Appeal from the United States District Court For the District of Kansas D.C. No. 88-3396-R. D.C. Judge RICHARD D. ROGERS

[7] Jan Horbaly, Burke, Virginia, for Appellee/Cross-Appellant.

[8] David Shelledy, United States Department of Justice, Appellate Section, Criminal Division, Washington, D.C. (Jackie A. Rapstine, Assistant U.S. Attorney; Lee Thompson, U.S. Attorney, Topeka, Kansas; and Conrad Von Wald, LTC., Office of the Judge Advocate General, U.S. Air Force, Washington, D.C., and Thomas E. Booth, Department of Justice, Washington, D.C., with him on the brief), for Appellant/Cross-Appellee.

[9] Before Tacha and Baldock, Circuit Judges, and McWILLIAMS, Senior Circuit Judge.

[10] Mcwilliams

[11] McWILLIAMS, Senior Circuit Judge.

[12] This case concerns the relationship between the federal civil courts and the military courts.

[13] William M. Lips, a Senior Master Sergeant serving on active duty in the United States Air Force and assigned to the 50th Civil Engineering Squadron at Hahn Air Base in Germany, was convicted in 1984 by a military jury of rape, in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 920; forcible sodomy, in violation of Article 125, UCMJ, 10 U.S.C. 925; and aggravated assault (three counts), in violation of Article 128, UCMJ, 10 U.S.C. 928. Lips was sentenced, inter alia, to twenty years' imprisonment.

[14] On direct appeal, the United States Air Force Court of Military Review affirmed Lips' conviction and sentence. United States v. Lips, 22 M.J. 679 (AFCMR 1986). The United States Court of Military Appeals denied discretionary review, United States v. Lips, 24 M.J. 45 (CMA 1987), and also denied Lips' petition for reconsideration, 24 M.J. 203 (CMA 1987). Thereafter the Judge Advocate General of the Air Force denied Lips' motion for a new trial.

[15] In 1988, while confined in the United States Disciplinary Barracks at Leavenworth, Kansas, Lips filed a petition for a writ of habeas corpus under 28 U.S.C. 2241 in the United States District Court for the District of Kansas, naming as the defendant the Commandant of the Disciplinary Barracks. In his petition, Lips set forth two grounds for relief: (1) that the military Judge improperly admitted into evidence certain sexually explicit materials taken from his apartment by the arresting officers; and (2) that the prosecutor violated his right against self-incrimination by referring to his post-arrest silence in cross-examination and in closing argument.

[16] The district court rejected the first ground Lips advanced for habeas relief, but found Lips' second ground for relief based on improper reference to post-arrest silence to be meritorious and ordered the government to provide Lips with a new trial within 120 days or release him. The Commandant appeals the district court's grant of habeas relief (our No. 92-3359). Lips cross appeals that part of the district court's order denying relief on his first ground, i.e., the admission of the sexually explicit materials (our No. 92-3360). On motion, another panel of this court entered an order staying the judgment of the district court pending Disposition of this appeal.

[17] Limited background information regarding the court-martial is in order. The testimony of Cynthia Carite at trial established, prima facie, that Lips had committed the various crimes with which he was charged. Cynthia Carite testified, inter alia, that on the night in question Lips had shown her certain sexually explicit materials, including magazines and video tapes. After Lips' arrest, the officers searched his apartment and took certain magazines and tapes, some of which were later received into evidence at trial, over objection. The admission of these materials constituted Lips' first ground for habeas relief.

[18] Although Lips had made no post-arrest statements to authorities, he did testify at trial and admitted that he had done the various acts to which Cynthia Carite had testified, but further testified that she had consented thereto. Lips' post-arrest silence was first raised by defense counsel in his direct examination of Lips. At the outset of direct examination, defense counsel asked Lips why he had made no post-arrest statement to the authorities. Lips answered that he had remained silent on the advice of counsel.

[19] In cross-examination, the prosecutor attempted to show that the real reason Lips made no post-arrest statements was that he desired to hear Cynthia Carite's testimony in court before giving anyone his version of events so that he could "tailor" his testimony and make it believable. Further, in closing argument to the military jury, the prosecutor stated that while Lips' post-arrest silence was no evidence of guilt, Lips had nonetheless waited until trial "to tell his story," so that he could first hear Cynthia Carite's testimony. Defense counsel made no objection at trial to the prosecutor's argument, which is not altogether surprising since the prosecutor conceded, in front of the military jury, that Lips' post-arrest silence was no evidence of guilt. The prosecutor's cross-examination of Lips and his closing argument to the jury constitute Lips' second basis for habeas relief.

[20] Our study of the matter leads us to conclude that although the federal district court had jurisdiction to entertain Lips' petition, its scope of review was initially limited to determining whether the claims Lips raised in his federal habeas corpus petition were given full and fair consideration by the military courts. If they were given full and fair consideration, the district court should have denied the petition. The record indicates to us that the military courts did give full and fair consideration to the matters Lips sought to have the federal district court review. Therefore, the judgment of the district court granting habeas corpus relief is reversed and the case remanded to the district court with directions to deny the petition.

[21] The military has its own independent criminal Justice system governed by the Uniform Code of Military Justice. 10 U.S.C. 801-940. The code is all-inclusive and provides, inter alia, for courts-martial, appellate review, and limited certiorari review by the United States Supreme Court. Lips' petition for habeas corpus collaterally attacked a general court-martial conviction that was affirmed on appeal by the Air Force Court of Military Review. Because of the independence of the military court system, special considerations are involved when federal civil courts collaterally review court-martial convictions.*fn1