United States v. Private RONALD GRAY ( 2017 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before the Court Sitting En Banc 1
Private RONALD GRAY,
United States Army, Petitioner
v.
UNITED STATES, Respondent 2
ARMY MISC 20160775
For Petitioner: Mr. Shawn Nolan, Esquire; Mr. Timothy Kane, Esquire; Mr.
Jonathan Jeffress, Esquire (on brief and reply brief).
For Respondent: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie
III, JA; Lieutenant Colonel Karen J. Borgerding, JA; Major Michael E. Korte, JA;
Captain Samuel E. Landes (on brief).
9 May 2017
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OPINION OF THE COURT AND ACTION ON PETITION FOR
EXTRAORDINARY RELIEF IN THE NATURE OF A WRIT OF CORAM NOBIS
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PENLAND, Judge:
Ronald Gray (Petitioner) is confined and awaiting imposition of a death
sentence adjudged by a general court-martial on 12 April 1988, approved by the
convening authority on 29 July 1988, affirmed by this court and our superior
1
Senior Judge MULLIGAN is taking no part in this case as a result of his
disqualification.
2
Petitioner named the Commandant of Fort Leavenworth’s Disciplinary Barracks as
respondent, but the parties to this case are the United States and Ronald Gray. His
petition for coram nobis relief 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 [] proceeding.” United States v. Denedo, 556 U.S. 904, 912 (2009) (Denedo
II) (quoting United States v. Morgan, 346 U.S. 502, 505, n.4 (1954)).
GRAY—ARMY MISC 20160775
appellate court on 15 December 1992, 3 9 June 1993, 4 and 28 May 1999, 5
respectively, and approved by the President on 28 July 2008. In Gray v. Belcher, 70
M.J. 646 (Army Ct. Crim. App. 2012), we denied coram nobis relief, in light of
petitioner’s concurrent pursuit of habeas relief in an Article III court. However, that
Article III court ultimately dismissed the habeas petition, reasoning petitioner had
not exhausted his military-specific claims within the military justice system. Gray
v. Belcher, No. 5:08-cv-03289-JTM (D. Kan. 26 Oct. 2016) (memorandum and order
dismissing without prejudice). Petitioner returns to us again, 6 enumerating seven
claims that, in his view, justify coram nobis relief in the form of vacating the
findings and sentence. 7
Petitioner alternatively seeks a writ of habeas corpus. We will not evaluate
the petition in this alternative manner. In United States v. Loving, 68 M.J. 1, 4
(C.A.A.F. 2009) (Loving III), our superior court considered a petition for such a
writ, noting:
While the case remained pending within the military
justice system, [petitioner] 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.
(citing Loving v. United States, 64 M.J. 132, 134 (C.A.A.F. 2006) (Loving II)
(emphasis added).
For the reasons below, we consider the instant petition as one seeking coram
nobis relief. However, this case has departed the military justice system as
3
United States v. Gray, 37 M.J. 730 (A.C.M.R. 1992) (Gray ACCA I).
4
United States v. Gray, 37 M.J. 751, 761 (Army Ct. Crim. App. 1993), (Gray ACCA II)
5
United States v. Gray, 51 M.J. 1 (C.A.A.F. 1999) (Gray CAAF) (cert. denied).
6
In 2016, petitioner sought coram nobis relief from us for the second time, but we
dismissed his petition without prejudice, pending federal district court action on his
habeas petition. United States v. Gray, ARMY MISC 20160086 (Army Ct. Crim.
App. 10 May 2016)(order).
7
Petitioner also requests “appropriate discovery and [] a Dubay hearing at which
proof may be offered concerning the allegations contained in [his] Petition.” (Pet’r
Br. 120).
2
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described in Loving v United States, 62 M.J. 235, 240 (C.A.A.F. 2005) (Loving I)
and Loving II. Therefore, following the majority’s logic 8 in those cases, we lack
jurisdiction to grant a writ of habeas corpus.
BACKGROUND
Previous opinions of this court and our superior court have ably summarized
the facts that led to petitioner’s general court-martial; we need not restate them.
However, given the issues raised in this petition, it is appropriate to summarize
certain events from the case’s pretrial, trial, and direct appellate history.
A large part of this petition involves petitioner’s competency during trial and
during direct appellate review. Based on their interactions with petitioner, trial
defense counsel sought a professional assessment of his capacity to stand trial. See
Rule for Courts-Martial [hereinafter R.C.M.] 909. 9 Dr. Selwyn Rose addressed the
8
Judge Ryan’s dissent in Loving II is also informative, for it addresses the different
jurisdictional considerations regarding coram nobis and habeas corpus relief.
Loving II, 68 M.J. at 25 (“unlike a writ of coram nobis, habeas corpus is not a
‘belated extension’ of the original court-martial proceeding.”) (quoting Denedo II,
556 U.S. at 912-13).
9
In the Manual for Courts-Martial, United States (1984 ed.) [hereinafter MCM,
1984], R.C.M. 909 was shorter than the current version; it stated:
(a) In general. No person may be brought to trial by
court-martial unless that person possesses sufficient
mental capacity to understand the nature of the
proceedings against that person and to conduct or
cooperate intelligently in the defense of the case.
(b) Presumption of capacity. A person is presumed to
have the capacity to stand trial unless the contrary
appears.
(c) Determination at trial.
(1) Nature of the issue. The mental capacity of the
accused is an interlocutory question of fact.
(2) Standard. When the issue of the accused’s
capacity to stand trial is raised, trial may not
(continued . . .)
3
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matter of “competence” in a 4 November 1987 letter to Captain (CPT) MPB, trial
defense counsel, reporting his assessment after examining petitioner three days
earlier:
Throughout the interview, [petitioner] was posturing,
staring, darting his eyes from place to place, and he
maintained a suspicious, paranoid look. He responded
slowly, often repeating questions and seemed to be lost in
his own thoughts which were not in contact with what was
being discussed.
Religious ideation pervaded all of his comments. He
announced that he could walk out of the jail if God wanted
him to. He refused to discuss the criminal charges with
me. He talked about his “visions” as a child and recent
ones, which were religious in nature and dealt with
powerful lights and movement through space. He
interpreted these visions to mean that “the Lord is
coming.”
He referred to the night he came here (to jail) and was
“hearing” things, “like a hand touching and going through
my skin.” He believes that God pulled his soul out. He
claims to have made a joke that the space shuttle would
blow up either saw himself as prescient or believed that
his statement had caused the disaster. He talked a great
deal about the meaning of the number seven since there
were seven people in the space shuttle.
When I led the discussion back to the killings with which
he is charged, he talked about a “gathering” and not a
(. . . continued)
proceed unless it is established by a preponderance
of the evidence that the accused possesses sufficient
mental capacity to understand the nature of the
proceedings against the accused and to conduct or
cooperate intelligently in the defense of the case.
R.C.M. 909, MCM, 1984. The current rule is worded slightly differently and also
addresses determinations of mental competence before and after referral,
incompetence determination hearings in more depth, and hospitalization of the
accused. R.C.M. 909, MCM, 2016.
4
GRAY—ARMY MISC 20160775
“hating.” His comments had autistic meanings that were
unclear to me.
It is my opinion that Mr. Gray is not presently mentally
competent to stand trial. I can’t determine whether he
knows the nature of the charges against him, but I am
convinced he is unable to cooperate with counsel in a
rational manner. My present diagnosis is Schizophrenia,
Paranoid type. I think it would be important that the
[petitioner] be treated with major tranquilizers, but he will
not cooperate in the jail and take the medication.
I am unable to proceed with my evaluation because of the
severity of his present mental illness and my inability to
force treatment. Mr. Gray needs to be in a psychiatric
setting where he can be observed over a period of time and
given appropriate chemotherapy to see if his competence
can be restored.
On 10 November 1987, CPT MPB requested the convening authority direct a
sanity board under R.C.M. 706. Petitioner’s mental capacity was one of the
numerous matters trial defense counsel requested the board evaluate: “Does SP4
Gray have sufficient mental capacity to understand the nature of the proceedings and
to conduct and/or cooperate intelligently in his defense?”
On 23 November 1987, the convening authority granted the defense request
and according to the trial defense team during a 21 December 1987 Article 39a,
Uniform Code of Military Justice, 10 U.S.C. § 839a [hereinafter UCMJ], session,
“appointed a board with Colonel Armitage, who is a forensic psychiatrist, as head of
that board.” At a later pretrial session on 8 February 1988, government counsel
informed the military judge that the board had found petitioner “competent to stand
trial,” and trial defense counsel acknowledged “that’s the preliminary indication that
we got.” The military judge then addressed a defense motion to employ Dr. Rose as
a forensic psychiatrist. The motion averred, inter alia:
As set forth in the defense motion for an inquiry 10 into the
mental capacity and mental responsibility of the accused
under the provisions of R.C.M. 706, there is substantial
reason to believe that the accused lacked mental
responsibility at the time of the alleged offenses (R.C.M.
10
There is no separate “motion” in the record of trial; defense counsel may have
been referring to their 10 November 1987 request to the convening authority.
5
GRAY—ARMY MISC 20160775
916(k)) and lacks capacity to stand trial at this time
(R.C.M. 909).
(App. Ex. XXI at 1) (emphasis added).
Defense counsel told the military judge “Dr. Rose would certainly come in
and testify that [] in his opinion, this accused is not capable of standing trial . . . .
But our problem is we have no money to get him into this courtroom since we have
an indigent accused.” Defense counsel continued, “[O]ur preparation is really
stymied with respect to mental responsibility, capacity, and partial mental
responsibility until we can get a psychiatrist to help us prepare that defense.”
Defense counsel also provided the military judge with Dr. Rose’s 4 November 1987
assessment, which opined petitioner was not “presently competent to stand trial.”
(App. Ex. XXIII at 1).
On 14 March 1988, after the panel had been sworn, the military judge sought
to resolve any outstanding preliminary matters in an Article 39a session. Counsel
for both sides confirmed “the defense request for a forensic psychiatrist has been
granted.” The military judge also reviewed the results of petitioner’s sanity board,
which stated the following:
SP4 Gray presently suffers from a mental disease or defict
[sic] but it does not render him mentally incompetent to
the extent that he is unable to understand the nature of the
proceedings or to conduct or cooperate intelligently in his
defense.
(App. Ex. XXXIII at 2).
On 6 April 1988, the military judge advised petitioner of his rights to submit
matters if the trial moved to a sentencing phase, including his rights to offer
evidence in extenuation and mitigation, and to testify or make an unsworn statement.
Petitioner responded, “I understand.” The panel announced findings on 7 April
1988.
Trial defense counsel called numerous sentencing witnesses, including DF,
the chief jailor for Cumberland County Jail, where petitioner was confined before
his court-martial. DF described petitioner as “very hostile” and “very distant” when
he initially arrived on 7 January 1987. After a three-month stay in isolated
confinement, imposed as a result of his near-rage, petitioner was housed with others
charged with first-degree murder. DF testified about petitioner’s behavior for the
“nine to ten months” thereafter:
6
GRAY—ARMY MISC 20160775
DC: During that time did you have conversations with
him also?
A. Several times.
DC: Any recurrence of rage? Any attitude problems or
anything?
A: No. Like I said, after -- after the initial episode and
his stay in isolation, it seemed like he just resolved
himself to where he was at and was going to go along with
the program, not fight the problem.
[. . .]
DC: What’s Ronald’s reputation been among the other
jailors, the other inmates, as far as being cooperative,
being pleasant, things like that?
A: Now, that -- that I can’t address. I didn’t ask
anybody’s opinion.
DC: Okay. You receive incident reports if anything
negative happens, is that correct?
A: Correct.
DC: All right. Had you received ----
A: Anything out of the ordinary would require an incident
report.
DC: What kind of incident reports did you receive on
Specialist Gray then?
A: There haven’t been any incident reports on him.
DC: Has Specialist Gray been cooperative since he’s been
in E-block?
A: Yes.
DC: Been able to talk to him? Any problem?
A: I’ve been able to communicate fine with him.
7
GRAY—ARMY MISC 20160775
Trial defense counsel also called Dr. Rose as a sentencing witness, and he
described his evaluation of petitioner:
His thinking is very strange at times, it seems -- psychotic,
to be delusional, caught up in these false beliefs that have
no basis in fact. At other times it seems quite realistic and
he switches back and forth, and I can’t predict when he’s
going to switch. I think it’s important that, as Doctor
Armitage says, when he told him, “I want to talk about a
certain thing,” and he nailed him down -- that Ron can do
that. That is under a given set of restrictions. He can
hold his thinking together. But when you let him go on
his own, he tends to drift in a lot of -- a lot of different
unique directions, separate directions.
DC: What’s your opinion of Specialist Gray’s ability to
follow directions, to respect authority, things like that?
A: Generally, quite good. Certainly, in his service career,
[] during his childhood [he] followed directions, did what
was expected of him. So generally, it’s quite good. And
even when Colonel Armitage meets with him and says,
“This is what I’d like to talk about,” he focuses real well.
So he’s capable of following commands.
Later, the military judge specifically asked Dr. Rose about petitioner’s
competence:
MJ: [A]s [petitioner] sits before you today, by the
defense, sitting by the defense counsels, in your
considered opinion, does he have the mental capacity to
understand the nature of these proceedings and conduct or
cooperate intelligently in that defense?
A: Yes, he does.
After the panel announced its sentence, the military judge advised petitioner
of his post-trial and appellate rights. Asked if he had any questions regarding them,
petitioner said, “No, sir.”
On 22 December 1989, with his case on direct appeal, petitioner’s three
appellate defense counsel, CPT MJB, CPT CGW, and CPT JJF, moved this court to:
8
GRAY—ARMY MISC 20160775
direct the convening of a sanity board to inquire into
appellant’s mental responsibility at the time of his
offenses and his mental capacity to assist in his defense at
his court-martial; further to inquire into the present
capacity of appellant to understand the nature of or to
cooperate intelligently in these proceedings.
Appellate defense counsel criticized Dr. Armitage’s and Dr. Rose’s previous
evaluations, describing them as “cursory,” “inaccura[te] and inadequa[te].”
Included with the motion was a psychological evaluation prepared by CPT William
Kea, Ph.D., a clinical psychologist (Dr. Kea). Dr. Kea wrote that petitioner “was
referred for a psychological evaluation at the request of Mr. [JL], and inmate’s
Appellate Defense Attorney, CPT [JS].” 11 After “a clinical interview conducted over
a period of five days,” 12 Dr. Kea issued a fourteen-page report, which concluded:
[. . . A]t the time of the alleged criminal conduct, the
accused did have a severe mental disease or defect.
[. . .]
[. . . T]he accused, at the time of the alleged criminal
conduct and as a result of such severe mental disease or
defect, was unable to appreciate the nature and quality or
wrongfulness of his conduct.
[. . . T]he accused, at the time of trial in 1988, did not
have sufficient mental capacity . . . to cooperate
intelligently in the defense.
[. . . T]he accused does not now have sufficient mental
capacity . . . to cooperate intelligently in the defense.
(Internal line markings omitted; ellipses in original).
Presented with this development, on 13 February 1990, this court directed a
sanity board to inquire “into the appellant’s mental responsibility at the time of the
offenses, [his] mental capacity at the time of his court-martial, and [his] present
11
Captain JS was petitioner’s initial appellate defense counsel. The evaluation
refers to CPT JS’s 8 August 1989 written request.
12
23, 25, 28 and 29 August 1989, and 1 September 1989.
9
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mental capacity. . . .” United States v. Gray, ARMY 8800807 (A.C.M.R. 13 Feb.
1990) (order). We specifically directed findings regarding:
whether [petitioner] had sufficient mental capacity to
understand the nature of the court-martial proceedings and
to conduct or cooperate intelligently in his defense at the
time of trial;
[petitioner’s] present clinical diagnosis; and,
whether [petitioner] presently possesses sufficient mental
capacity to understand the nature of the pending appellate
proceedings and to conduct or cooperate intelligently in
his appeal.
Id. (internal line markings omitted).
On 3 August 1990, this court received the results of this evaluation, which
was conducted “between 03 April and 29 June 1990.” The board consisted of Dr.
Kea, CPT Sandra Edwards, M.D. (Dr. Edwards), and CPT Michael Marceau, M.D.
(Dr. Marceau). The board included, inter alia, “a review of available psychological
reports.”
The board found:
[. . . T]he appellant has sufficient mental capacity to
understand the nature of the court-martial proceedings and
to conduct or cooperate intelligently in his defense at the
time of trial.
For appellant’s present clinical psychiatric diagnosis refer
to Section 11-3.
[. . .T]he appellant presently possesses sufficient mental
capacity to understand the nature of the pending appellate
proceedings and to conduct or cooperate intelligently in
his appeal.
Memorandum, Subject: Findings of a psychiatric evaluation of Ronald A. Gray,
SSN [] Reg. #73786; ACMR 8800807 (30 Jun. 1990) (internal line markings
omitted).
The “available psychological reports,” to which the board referred and
appended to its report, consisted of two evaluations. The first, bearing the signature
10
GRAY—ARMY MISC 20160775
blocks of Dr. Kea and Dr. Marceau but only Dr. Kea’s signature, was virtually
identical to the one previously requested by CPT JS, but unlike the report that
appellate defense counsel submitted with their motion, it did not include findings
regarding petitioner’s mental responsibility or competence. 13 The second report,
again prepared by Dr. Kea who described it as a supplemental report based on
“comprehensive neuropsychological testing conducted between 19 and 22 June
1990,” concluded:
The results of the examination suggest that the patient
suffers from some diffuse and undifferentiated brain
damage that could possibly be of a long standing nature.
Although the find[ing]s are positive, they do not appear to
account for the magnitude that would compromise any
legal/criminal responsibility.
Memorandum, Subject: Medical Consultation Report Neuropsychological
Evaluation (undated).
Despite this result, petitioner’s appellate defense counsel continued to press
for resources in order to evaluate his mental condition. 14 On 31 December 1991,
appellate defense counsel filed with this court a motion to compel additional medical
and neurological testing of petitioner. Appellate defense counsel wrote, “the mental
evaluations that have been performed on appellant to date have been fundamentally
defective in several ways.”
This court granted the motion and directed four additional tests: 1) a
Magnetic Resonance Imaging (MRI) scan of petitioner’s brain; 2) a twenty-channel,
scalp electrode, sleep-deprived electroencephalogram (EEG); 3) a positron emission
tomography (PET) scan, or if impossible to perform, a single-photon emission
computed tomography (SPECT) scan of petitioner’s brain; and, 4) a complete battery
13
The appellate record before this court also contains yet another version of the
report requested by CPT JS, this time signed by both Dr. Kea and Dr. Marceau. This
version stated “further evaluation is necessary” to determine whether petitioner
lacked mental responsibility for his crimes and continued, “[i]t is unclear whether
the accused, at the time of trial in 1988, did not have sufficient mental capacity . . .
to cooperate intelligently in the defense.” (Ellipses in original). This version of the
report concluded, “[t]he results of the neurological examination will be useful to
determine whether the accused now has sufficient mental capacity . . . to cooperate
intelligently in the defense.” (Ellipses in original).
14
For an able summary of some of appellate defense counsel’s efforts, see United
States v. Gray, ARMY 8800807 (A.C.M.R. 12 Nov. 1991) (order).
11
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of intellectual, neuropsychological, academic, psychological, and personality tests
performed by a fully qualified and credentialed neuropsychologist to determine the
presence and/or extent of intellectual or neuropsychological deficits and any
psychological or personality disorder. 15
In a 23 March 1992 affidavit, Major (MAJ) Fred Brown, Ph.D. (Dr. Brown), a
clinical neuropsychologist, described his evaluation of petitioner.
In January, 1992 the Chief of Psychology [] at the United
States Disciplinary Barracks, Fort Leavenworth, Kansas,
contacted me regarding a court ordered
neuropsychological evaluation on [petitioner]. I agreed to
perform the evaluation which took place during the week
of 27 January, 1992 through 1 February, 1992. I was
introduced to [petitioner] on 27 January, 1992 [] but did
not initiate the evaluation until following a joint meeting
with [petitioner], his [appellate defense counsel], and
myself. Including the time spent interviewing, testing,
and interpreting I spent a total of about 30 hours with
[petitioner].
(Gov’t App. Ex. 1 at 2).
Dr. Brown indicated petitioner possessed an “organic brain syndrome” that
resulted in “only mild inefficiency of brain functioning.” (Gov’t App. Ex. 1 at 4).
He wrote that, at the time of his evaluation, petitioner was “able to fully appreciate
the nature and quality or the wrongfulness of his acts.” (Gov’t App. Ex. 1 at 4). He
further wrote, “If, at the time of his offenses, Mr. Gray’s brain functioning was the
same as it is currently, I believe that he would have possessed mental responsibility
as defined above.” (Gov’t App. Ex. 1 at 4).
This court affirmed the findings and sentence on 15 December 1992, Gray
ACCA I, 37 M.J. at 749, again affirmed them on 9 June 1993, Gray ACCA II, 37 M.J.
at 761), 16 and denied petitioner’s motion for reconsideration. The case was docketed
15
For more detailed description of ordered testing, see United States v. Gray, ARMY
8800807 (A.C.M.R. 31 Dec. 1991) (order).
16
Appellate defense counsel filed a motion to abate the proceedings on direct appeal
following petitioner’s drug overdose, asserting petitioner was unable to assist in his
appeal as a result. This court denied the motion on 30 December 1992. Gray ACCA
II, 37 M.J. at 753.
12
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with the Court of Appeals for the Armed Forces 17 (CAAF) on 2 July 1993. United
States v. Gray, 38 M.J. 305 (C.M.A. 2 Jul. 1993). The CAAF affirmed this court’s
decision on 28 May 1999 (Gray CAAF), and denied two petitions for
reconsideration, the later of the two on 26 June 2000. 18 The United States Supreme
Court denied a petition for a writ of certiorari and petition for rehearing on 19
March 2001 and 14 May 2001, respectively. 19
On 4 August 2008, approximately one week after the President approved the
death sentence in this case, the Chief, Defense Appellate Division, United States
Army Legal Services Agency, requested via memorandum that The Judge Advocate
General appoint him and additional counsel as necessary to assist petitioner “with
his pending habeas corpus action.” The memorandum explained:
[Petitioner] is currently represented by civilian counsel;
however, the Defense Appellate Division has represented
[petitioner], along with civilian counsel, since his original
court-martial.
On 14 August 2008, The Judge Advocate General signed a memorandum
appointing the Chief, Defense Appellate Division, and “such additional or other
military counsel as you deem necessary, to represent [petitioner] in filing post-
conviction habeas corpus petitions in Federal civilian courts.”
LAW AND ANALYSIS
Part I - Jurisdiction to Issue and Requirements for a Writ of Coram Nobis
Article 66, UCMJ, confers our jurisdiction to consider all but one of
petitioner’s claims 20 and issue a writ of coram nobis if necessary and appropriate in
17
Formerly the United States Court of Military Appeals (name change effective 5
October 1994; see Act of Oct. 5, 1994, Pub. L. No. 103-337, § 924(a)(c)(1), (2),
(4)(B), 108 Stat. 2831, 32 (1994) (Amending provisions of the UCMJ to rename the
United States Court of Military Appeals as the United States Court of Appeals for
the Armed Forces).
18
United States v. Gray, ARMY 8800807, 2000 CAAF LEXIS 358 (6 Apr. 2000);
United States v. Gray, ARMY 8800807, 2000 CAAF LEXIS 677 (26 Jun. 2000).
19
Gray v. United States, 532 U.S. 919 (2001); Gray v. United States, 532 U.S. 1035(2001).
20
See Part III (Claim 3), infra.
13
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aid thereof. See United States v. Denedo, 66 M.J. 114, 123 (C.A.A.F. 2008)
(Denedo I); Denedo II, 556 U.S. at 917; 28 U.S.C. § 1651(a) (All Writs Act). The
All Writs Act does not expand our underlying jurisdiction to consider “the findings
and sentence as approved by the convening authority.” UCMJ, art. 66(c); Denedo I,
66 M.J. at 120; Denedo II, 556 U.S. at 914.
The United States Supreme Court established the landscape of our inquiry in
Denedo II. “Because coram nobis is but an extraordinary tool to correct a legal or
factual error, an application for the writ is properly viewed as a belated extension of
the original proceeding during which the error allegedly transpired.” Denedo II, 556
U.S. at 912-13.
In Denedo I, which involved a post-conviction attack after the petitioner had
served his sentence, our superior court established six prerequisites for a meritorious
coram nobis claim:
(1) the alleged error 21 is of the most fundamental
character;
(2) no remedy other than coram nobis is available to
rectify the consequences of the error;
(3) valid reasons exist for not seeking relief earlier;
(4) the new information presented in the petition could not
have been discovered through the exercise of reasonable
diligence prior to the original judgment;
(5) the writ does not seek to reevaluate previously
considered evidence or legal issues; and
(6) the sentence has been served, but the consequences of
the erroneous conviction persist.
Denedo I, 66 M.J. at 126 (citing Morgan, 346 U.S. at 512-13; United States v.
Loving I, 62 M.J. at 252-53) (remaining citations omitted).
21
Because the standard for granting extraordinary relief requires a petitioner to
establish that issuance of the requested writ is “necessary and appropriate,” we
interpret this first prerequisite to mean a petitioner must do more than merely allege
error. See 28 U.S.C. § 1651(a); Denedo I, 66 M.J. at 126. He has the burden to
establish the error occurred.
14
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Part II - Petitioner’s Claims Generally
Before analyzing the claims more specifically, we consider whether the
second, third and sixth Denedo I factors control the claims identically.
The second Denedo I factor requires us to assess whether an alternate remedy
is available. As stated above, we lack jurisdiction to grant habeas relief in this post-
finality case; therefore no remedy other than coram nobis is available to petitioner in
this court. We decline to conclude whether, as a matter of law, an alternative
remedy is available to petitioner in a civilian federal court, for to make such a
conclusion—one way or the other—would require us to consider, inter alia, another
court’s jurisdictional reach. We shall not stray into such an assessment. We do
note, however, that Department of Justice counsel argued with persuasive effect in
the United States District Court for the District of Kansas that petitioner should have
litigated the instant claims in the military justice system before raising them in a
habeas corpus action in an Article III court. In an interesting turn of advocacy
within the executive branch, the Army’s government appellate counsel now insist we
should “dismiss the petition with prejudice” because “whether or not any Article III
litigation is currently pending, it is available to [petitioner].” The United States
cannot have it both ways, at least not in the context of this petition, and create a
“Catch-22” that avoids matters properly before us.
We resolve the third Denedo I factor against petitioner, for we perceive no
valid reason for his failure to seek relief earlier. Each of petitioner’s claims over
which we have jurisdiction was ripe for his complaint as soon as the Supreme Court
denied his petition for certiorari sixteen years ago. 22 Petitioner’s counsel urge that
conflict-of-interest considerations render it unreasonable to expect previous
appellate defense counsel to raise ineffective appellate assistance issues against
themselves. This argument is meritless, for petitioner makes no showing and—based
on the record before us can make none—that his appellate defense counsel before
this court on direct appeal continued to represent him afterward. In other words,
after this court rendered its decisions on direct appeal, petitioner’s new appellate
and post-conviction relief counsel were not burdened by any conflict-of-interest
considerations that would have hampered criticism of their predecessors.
Citing Loving I, 62 M.J. at 240, petitioner’s counsel also address the Supreme
Court’s certiorari denial: “At the time, the law recognized no mechanism for post-
conviction review pending presidential approval of a military death sentence.”
(Pet’r Reply Br. 29). This passage causes us to recall our superior court’s
22
It would have been inappropriate for this court to consider, much less grant, coram
nobis relief while our superior court was in the midst of its own mandatory review,
or while his certiorari petition was under advisement at the Supreme Court.
15
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observation regarding jurisdiction to consider a petition for a writ of coram nobis
after completion of Article 67(a), UCMJ, review but before finality under Article 76,
UCMJ.
This issue invites the Court to consider two questions of
first impression: (1) when a capital case becomes final in
the military justice system and (2) what impact finality
has on this Court’s jurisdiction.
Loving I, 62 M.J. at 240 (emphasis added).
Because such petition for review opened new questions about military
appellate jurisdiction, it follows that no jurisdictional obstacle prevented petitioner
from bringing the instant claims before Loving I was decided in 2005. It also
follows that the jurisdictional question was settled for over five years—only to be
cemented by Denedo I and Denedo II during that period—before petitioner filed his
first coram nobis petition with this court on 11 February 2011. 23
We also resolve the sixth Denedo I factor against petitioner with respect to all
of his claims over which we have jurisdiction, for his sentence has not been served.
From our plain reading of Denedo I—including its reliance on Loving, a capital
case—we conclude the sixth factor applies in all cases, including those involving a
sentence to death. Petitioner correctly notes that, in Denedo II, the United States
Supreme Court did not specifically adopt the six-factor test established by the
CAAF. However, the Supreme Court also did not disturb the six-factor test in
affirming our superior court; both decisions jointly and severally bind us.
Beyond the claim-transcendent and dispositive third and sixth factors, it is
also appropriate to more specifically address petitioner’s claims. With respect to
each of his claims that we possess jurisdiction to consider—and for reasons specific
to each—we find petitioner has failed to establish the existence of error.
Part III - Petitioner’s Claims Specifically
1. 24 PETITIONER WAS DENIED HIS RIGHTS UNDER THE SIXTH AND
EIGHTH AMENDMENTS WHEN HE WAS TRIED WHILE INCOMPETENT TO
PROCEED AND WHEN HE WAS INCOMPETENT DURING PORTIONS OF THE
APPELLATE PROCEEDINGS; THE TRIAL COURT AND THE APPELLATE
COURTS ERRED IN NOT CONDUCTING COMPETENCY PROCEEDINGS; AND
23
Gray v. Belcher, 70 M.J. at 647.
24
Numbers adopted from instant petition.
16
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PRIOR COUNSEL WERE INEFFECTIVE FOR FAILING TO LITIGATE
PETITIONER’S INCOMPETENCE. 25
The United States Supreme Court established the temporal landscape of our
current inquiry in Denedo II as “a belated extension of the original proceeding
during which the error allegedly transpired.” Denedo II, 556 U.S. at 913. With this
view in mind, we shall only address relevant aspects of the previous proceedings at
this court and below. We shall not assess appellate defense counsel’s effectiveness
at our superior court and beyond, for doing so would exceed our limited statutory
jurisdiction.
The Sixth Amendment guarantees the effective assistance of counsel at trial.
Strickland v. Washington, 466 U.S. 668, 685 (1984) (“The right to counsel plays a
crucial role in the adversarial system embodied in the Sixth Amendment, since
access to counsel’s skill and knowledge is necessary to accord defendants the ‘ample
opportunity to meet the case of the prosecution’ to which they are entitled.”);
R.C.M. 506 (Accused’s Rights to Counsel). Our superior court has also held that the
UCMJ provides a military accused with the right to effective assistance of counsel
on appeal. United States v. Palenius, 2 M.J. 86, 90 (C.M.A. 1977); see also Evitts v.
Lucey, 469 U.S. 387, 392 (1985) (the Due Process Clause of the Fourteenth
Amendment entitles a criminal appellant to effective assistance of counsel during an
appeal of right).
Applying this legal framework against the facts above and matters currently
averred by petitioner, we find petitioner’s counsel at trial and on direct appeal
before this court competently, diligently, and zealously sought to determine whether
he possessed the necessary capacity to participate in the defense and appeal of his
case. Trial defense counsel obtained a determination of the question from a sanity
board. Beyond this, the military judge asked a defense expert whether petitioner
was competent and was told yes. Then, on multiple occasions, appellate defense
counsel sought, and ultimately received, the same conclusion from a sanity board
composed of different members. Finally, appellate defense counsel prevailed in
obtaining a separate neuropsychological examination, which yielded no conclusions
to undermine the previous competence determinations.
Petitioner’s counsel aver, inter alia, “[t]rial and appellate counsel were
ineffective for failing to challenge the erroneous conclusions of the boards that
Petitioner was competent.” (Pet’r Reply Br. 29). Beyond our conclusion that
25
Based on our review of petitioner’s instant submissions, the trial record, and the
appellate record before this court, his multiple claims of ineffective assistance of
counsel are demonstrably improbable, which enables us to resolve them without an
evidentiary hearing. United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997).
17
GRAY—ARMY MISC 20160775
defense counsel at trial and on direct appeal before this court did not “fail” and that
they instead were competent, diligent, and zealous, we additionally note that this
quoted passage asserts facts that are only partly accurate. As described previously
in the background section, the record makes it abundantly clear that appellate
defense counsel conveyed, through tenacious advocacy, their dissatisfaction with the
trial-and-appellate-level evaluations.
We find no deficiency in trial and appellate counsel’s not seeking the
“adversarial” competency hearing petitioner’s counsel now urge was indicated, for a
viable basis to do so simply did not exist.
2. PETITIONER WAS DENIED DUE PROCESS WHEN MILITARY
AUTHORITIES FAILED TO DISCLOSE EVIDENCE REGARDING PETITIONER’S
INCOMPETENCY DURING APPELLATE PROCEEDINGS.
Of this claim, petitioner’s counsel write:
Citing Brady v. Maryland, 373 U.S. 83 (1963), and related
cases, petitioner argues his constitutional due process
rights were violated in the following manner:
the findings by the chief psychologist at the Disciplinary
Barracks that petitioner suffered from several mental
defects and lacked the mental capacity to assist his
counsel; 26
evidence reflecting how and by whom those formal
findings were altered to indicate that they were only
“initial draft findings,” Answer [government brief] at 13,
and;
evidence that military authorities pressured the sanity
board to ultimately find petitioner competent despite his
actual incompetency.
(Pet’r. Br. 30-34) (internal subparagraph markings omitted).
The petition further alleges that the government’s failure to disclose such
evidence materially affected the outcome of the appeal, by inter alia, causing
petitioner to be deemed competent when he was not, and by inducing appellate
counsel to rely on inaccurate and misleading information in determining whether to
26
Dr. Kea’s individual evaluation, previously described in the background section.
18
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formally challenge petitioner’s competency and in determining the scope of their
own mental health investigation. (Pet’r. Br. 30-34).
We addressed the issue of post-trial discovery rights in United States v.
Hawkins, 73 M.J. 640 (Army Ct. Crim. App. 2014), pet. den., 75 M.J. 319 (C.A.A.F.
2016), but, as that case involved discovery rights before convening authority action,
we did not conclude whether an appellant continues to enjoy those rights on direct
appeal. We need not decide that question now, 27 because the facts make clear that at
least one of petitioner’s appellate defense counsel was provided Dr. Kea’s initial
report. In light of the fact that the initial report was disclosed to petitioner’s
appellate defense counsel and appended to their motion to this court to order a sanity
board, we need not decide whether, under the facts and circumstances of this case,
the report was in the prosecution’s actual or constructive control. See United States
v. Stellato, 74 M.J. 473 (C.A.A.F. 2015) and United States v. Shorts, 76 M.J. 523(Army Ct. Crim. App. 2017).
At the request of CPT JS, petitioner’s first appellate defense counsel, Dr. Kea
performed the initial evaluation. Seizing on CPT JS’s 11 December 2009
declaration that he completed his Army service before receiving it, petitioner’s
counsel conflate that specific fact into a wider-ranging allegation that the evaluation
was not provided to “appellate defense counsel.” This averment is fundamentally
incorrect, for as a matter of fact obvious from the appellate record, Dr. Kea’s
evaluation, including his individual conclusions regarding petitioner’s mental
responsibility and competence, were provided to CPT MJB, CPT CGW, and CPT
JJF, who succeeded CPT JS as petitioner’s appellate defense counsel and submitted
the same evaluation in support of their motion for another sanity board.
Petitioner also argues his due process rights were violated because Dr. Kea
did not provide the initial report to Dr. Edwards, another member of the appellate
sanity board. In his 25 November 2009 affidavit, Dr. Kea writes, inter alia:
Prior to the actual convening of the sanity board, Dr.
Marceau and I had met to review my findings from my
original evaluations of [petitioner], which were in
response to the lawyer’s [CPT JS’s] request for a sanity
inquiry. Dr. Marceau would not agree to my findings and
insisted that we rewrite the conclusions of my report. His
position was that we needed further testing before drawing
27
The Supreme Court addressed the matter in a civilian criminal case, District
Attorney’s Office for Third Judicial District v. Osborne, 557 U.S. 52 (2009). See
also United States v. Webb, 66 M.J. 89, 92 (C.A.A.F. 2008) (re-stating constitutional
and statutory rights to discovery and disclosure).
19
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the conclusions that I had drawn - that [petitioner] was
incompetent and suffered severe mental defects - from the
clinical interviews and testing I had already done. Since
Dr. Marceau was a psychiatrist, i.e., a medical doctor, and
therefore considered more authoritative in the military
setting, I agreed to change the conclusions while we did
further evaluations and testing. We changed the report to
reflect that “at the time of the alleged criminal conduct,
the accused may have had a severe mental disease or
defect” and that it was unclear whether [petitioner] was
competent to cooperate with the defense. We both signed
the report, which was submitted in response to the initial
request for a sanity inquiry. Although the history and
findings of my initial evaluation were included with the
board’s final report, the last page of my initial findings
was not included.
[....]
We conducted an interview of [petitioner] in the
Discipline and Adjustment Board room at the Disciplinary
Barracks. Immediately after the interview, he was
removed from the room. Dr. Edwards, Dr. Marceau and I
began deliberations, which lasted about an hour or so. We
basically sat in the room and discussed what our final
findings should be. For a sanity board report, it was my
understanding at the time that all findings must be
unanimous. I still agreed with my original assessments as
laid out above. However, I was persuaded to agree with
Dr. Marceau’s conclusions. I felt pressure to agree to Dr.
Marceau’s conclusions that [petitioner] did not suffer
mental disease or defect at the time of the crimes and that
he was competent. Dr. Edwards, who is a medical doctor,
played little part in our ultimate conclusions regarding Mr.
Gray’s mental status. Ultimately, we prepared a final
sanity board report that altered the conclusions that I had
reached on my own.
In Dr. Edwards’s 25 September 2009 affidavit, she writes she was unaware of
Dr. Kea’s initial individual report regarding petitioner’s mental responsibility and
competence. She further states, “I would have found it absolutely appropriate to
reconsider the final findings at the time in light of the original, undisclosed report of
Dr. Kea.”
20
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Dr. Kea was clearly able to share his initial report with Dr. Marceau, and he
did so. Nothing in his affidavit indicates he was unable to share it with Dr. Edwards
once the sanity board convened. We also note that while Dr. Kea did not
specifically write whether he verbalized his initial conclusions during the sanity
board’s deliberations, he did write: “I still agreed with my original assessments [].”
Finally, contrary to inferences urged by petitioner, nothing from Dr. Kea’s affidavit
raises concern that he was improperly influenced in his apparent decision not to
provide his initial report to Dr. Edwards.
Noting that a sanity board “is a creature not of statute, but of executive order
and long-standing military practice,” our superior court described their non-judicial
nature in United States v. Best, 61 M.J. 376, 382 (C.A.A.F. 2005):
As an administrative board, whose members are typically
appointed by a medical commander and not by the
convening authority, and whose findings do not bind the
court-martial in its determination of either competence
(R.C.M. 909(e)) or mental responsibility (R.C.M.
916(k)(3)(C) and 921 (c)(4)), a board convened under
R.C.M. 706 cannot be analogized to a court of members.
For example, doctors serving on an R.C.M. 706 board
would not only be granted access to an appellant’s prior
medical records, including previous diagnoses by other
doctors, but would be encouraged to read those prior
records to develop a full picture of an appellant’s mental
history.
Consistent with the majority in Best 28 and similarly mindful of the “important
protections afforded by R.C.M. 706,” we perceive no constitutional due process right
governing the methods with which a sanity board performs its work. Assuming
arguendo such a right does extend to such administrative evaluations, we perceive
no due process violation here. The multiple boards in this case were conducted by
neutral and independent professionals, and neither Dr. Kea’s nor Dr. Edwards’s
affidavits disturb our confidence that the sanity board on which they served rendered
a fair and impartial assessment of petitioner.
3. PETITIONER WAS DENIED HIS RIGHTS TO DUE PROCESS, TO A FAIR
SENTENCING PROCEEDING, TO A PUBLIC TRIAL, AND AGAINST CRUEL
AND UNUSUAL PUNISHMENT, AS GUARANTEED BY THE FIFTH, SIXTH,
AND EIGHTH AMENDMENTS, WHERE THE PRESIDENT, ACTING IN A
JUDICIAL ROLE, APPROVED PETITIONER’S DEATH SENTENCE IN
28
But see Best, 61 M.J. at 390 (Baker, J., concurring).
21
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RELIANCE UPON CONFIDENTIAL REPORTS THAT WERE NOT DISCLOSED
TO PETITIONER.
As described above, we may only consider coram nobis relief based upon
alleged errors in the trial of the case and our own previous direct review. Denedo II,
556 U.S. at 912-13. Petitioner’s complaint here focuses on an event occurring years
after this court affirmed the findings and sentence. We lack jurisdiction under
Article 66, UCMJ, and authority under The All Writs Act to assess the legal
sufficiency of the President’s action in this case. 28 U.S.C. § 1651(a). While we
are thus precluded from considering what appears to be the sine qua non of
petitioner’s claim—that the President’s approval of the death sentence was a judicial
action—this characterization further illustrates our jurisdictional limit, for we have
no authority to render judgment on a superior court’s decision.
4. PETITIONER WAS DENIED HIS SIXTH AMENDMENT RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL AT HIS CAPITAL SENTENCING.
For reasons that this and our superior court have previously provided,
petitioner has failed to establish existence of the claimed error. Gray CAAF, 51 M.J.
at 19; Gray ACCA I, 37 M.J. at 745-47. We additionally resolve the fifth Denedo I
factor against petitioner, for this claim seeks to re-litigate an issue previously
decided against him by this and our superior court. Id.
5. APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE.
Petitioner’s counsel describe this claim as:
incorporat[ing] the allegations in Claim 4 and provid[ing]
an alternate ground for relief - that appellate counsel were
ineffective in failing to present the results of a thorough
mitigation and mental health investigation to establish
defense counsel’s ineffectiveness at trial.
Elevating his previously unsuccessful claims of ineffective assistance at trial
to ineffective assistance on appeal, petitioner avers his appellate defense counsel
were deficient by not providing background biographical information sufficient for
his appellate-level R.C.M. 706 board to make a reasoned decision regarding his
mental responsibility and capacity. We have fully considered petitioner’s
submissions, including an affidavit from Dr. Kea, who wrote in 2009, after
reviewing matters later provided to him by petitioner’s current counsel:
[M]y original findings were largely correct. Indeed,
[petitioner] did suffer from severe mental disease at the
time of the criminal conduct. Moreover, it is equally clear
22
GRAY—ARMY MISC 20160775
that, as I stated in my initial report, [petitioner] was
unable to appreciate the nature and quality or
wrongfulness of his conduct, and did not have the mental
capacity to cooperate intelligently with the defense at
either the time of trial or at the time of the sanity board
and appellate proceedings.
Even assuming Dr. Kea gathered insufficient information to reliably diagnose
petitioner, such a shortcoming does not mean appellate defense counsel were
deficient—and, we perceive no deficiency otherwise. We additionally note that in
the neuropsychological evaluation ordered by this court and conducted by Dr.
Brown, appellate counsel appears to have actively facilitated sharing petitioner’s life
history with the diagnostician in order to obtain a well-informed result.
6. PETITIONER’S DEATH SENTENCE MUST BE REVERSED BECAUSE THE
MILITARY DEATH SENTENCING SYSTEM AS APPLIED IS
UNCONSTITUTIONAL AND HIS SENTENCE WAS THE RESULT OF RACIAL
DISCRIMINATION, IN VIOLATION OF ARTICLE 66 AND THE FIFTH, SIXTH,
EIGHTH, AND FOURTEENTH AMENDMENTS.
We are keenly aware of our duty to remain vigilant in “eradicat[ing] racial
prejudice from our criminal justice system.” McCleskey v. Kemp, 481 U.S. 279, 309
(1987) (citing Batson v. Kentucky, 476 U.S. 79, 85 (1986)). Petitioner relies on
McCleskey, in which the Supreme Court addressed a habeas claim that petitioner’s
death sentence was the result of racial discrimination in violation of the
Constitution’s Equal Protection Clause and Eighth Amendment. The petitioner in
that case cited a statistical study led by Professor David Baldus, offering it to show
disparities in capital sentencing outcomes based on defendants’ and victims’ races.
Denying relief, the Supreme Court summarized petitioner’s effort to meet his burden
to establish an equal protection violation:
[T]o prevail under the Equal Protection Clause,
[petitioner] must prove that the decisionmakers in his case
acted with discriminatory purpose. He offers no evidence
specific to his own case that would support an inference
that racial considerations played a part in his sentence.
Instead, he relies solely on the Baldus study.
McCleskey, 481 U.S. at 292-93.
Petitioner bears the same burden here, and he too relies upon a study prepared
by Professor Baldus—albeit a different one based on selected military justice
cases—offered to show disparate outcomes in capital cases based on accuseds’ and
23
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victims’ races. Assuming arguendo 29 the study is statistically sound, it falls far
short of proving that “the decisionmakers in his case acted with discriminatory
purpose.” We find no other support for his claim that his sentence was motivated by
racial discrimination and therefore constitutionally or statutorily infirm.
7. THE MILITARY DEATH PENALTY VIOLATES EVOLVING STANDARDS OF
DECENCY UNDER THE EIGHTH AMENDMENT.
Petitioner bases this claim upon alleged racial disparities in military capital
cases, excessive delays between sentence and execution, and the decreased use of
capital punishment nationwide. His claim merits neither additional discussion nor
relief. See United States v. Loving, 41 M.J. 213 (C.A.A.F. 1994); United States v.
Gray, 51 M.J. 1, 11 (C.A.A.F. 1999); United States v. Akbar, 74 M.J. 364 (C.A.A.F.
2015); and United States v. Hennis, 75 M.J. 796 (Army Ct. Crim. App. 2016).
NOW, THEREFORE, IT IS ORDERED:
1. Petitioner’s motion for oral argument is DENIED.
2. With respect to Claims 1, 2, 4, 5, 6, and 7, the petition is DENIED.
3. With respect to Claim 3, the petition is DISMISSED for lack of
jurisdiction.
4. Respondent’s motion to dismiss is DENIED as moot.
29
Table 1 of the study provides “Thumbnail Sketches” of “Death Sentenced Accused
Listed by Year of Sentence and Type of Offense: United States Armed Forces
(1984-2005).” Certain cases are described as “brutal.” For reasons unknown to us,
petitioner’s is not so described. Petitioner raped, forcibly sodomized, and murdered
two people, stabbing one multiple times and shooting the other four times. Gray
ACCA I, 37 M.J. at 736.
The study purports to implement “Criminal Culpability” controls, with no
meaningful explanation of their provenance. However, a footnote at Table 12 of the
study does offer some insight into the method involved: “The accused culpability
levels reflect law student rank order scores based on their evaluation of detailed
narrative summaries of the cases.”
24
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Chief Judge RISCH, Senior Judge TOZZI, Senior Judge CAMPANELLA,
Judge HERRING, Judge CELTNIEKS, Judge FEBBO, Judge BURTON, and Judge
WOLFE concur.
FOR THE COURT:
FOR THE COURT:
JOHN P. TAITT
JOHN P. TAITT
Chief Deputy Clerk of Court
Chief Deputy Clerk of Court
25