U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
In re Jared R. BURDIN ) Misc. Dkt. No. 2023-02
Major (O-4) )
U.S. Air Force )
Petitioner )
) ORDER
)
)
)
) Panel 1
On 3 June 2011, a general court-martial composed of officer members found
Petitioner guilty, contrary to his pleas, of one specification of rape of his then-
spouse DB in violation of Article 120, Uniform Code of Military Justice
(UCMJ),
10 U.S.C. § 920.1 The court-martial sentenced Petitioner to a dismis-
sal, confinement for eight months, and forfeiture of all pay and allowances. The
convening authority approved the dismissal, but reduced the term of confine-
ment to 130 days and reduced the adjudged forfeitures to $4,421.00 pay per
month for four months.
On appeal before this court, Petitioner raised two issues pursuant to United
States v. Grostefon,
12 M.J. 431 (C.M.A. 1982): (1) whether the evidence was
legally and factually insufficient to support his conviction; and (2) whether he
received ineffective assistance from his trial defense counsel. United States v.
Burdin, No. ACM 38033,
2013 CCA LEXIS 460, at *2–3 (A.F. Ct. Crim. App.
23 May 2013) (per curiam) (unpub. op.). This court affirmed the approved find-
ings and sentence.
Id. at *8. The United States Court of Appeals for the Armed
Forces denied review. United States v. Burdin,
73 M.J. 59 (C.A.A.F. 2013).
On 21 April 2023, Petitioner filed pro se with this court the instant extraor-
dinary writ petition in the nature of a petition for a writ of coram nobis. Peti-
tioner asserts 11 errors related to his court-martial and asks this court to “over-
turn” his “wrongful conviction.” Specifically, Petitioner asserts: (1) the com-
plainant has “freely and fully recant[ed] her accusation against [Petitioner]” in
an attached affidavit; (2) his constitutional rights were violated by the failure
to prepare a verbatim transcript of the pretrial hearing conducted pursuant to
Article 32, UCMJ,
10 U.S.C. § 832; (3) an exculpatory statement Petitioner
made during his recorded interview by civilian police investigators has been
1Unless otherwise indicated, references to the UCMJ are to the Manual for Courts-
Martial, United States (2008 ed.).
In re Burdin, Misc. Dkt. No. 2023-02
overlooked; (4) trial defense counsel were ineffective by failing to “fully im-
peach” the complainant regarding unrelated prior allegations of sexual assault
she had made; (5) trial defense counsel were ineffective by failing to challenge
the Government’s provision of an inadequate substitute defense expert con-
sultant in forensic toxicology; (6) trial defense counsel failed to review Peti-
tioner’s mental health records and made false statements on that subject in his
declaration to this court prior to this court’s original decision; (7) trial defense
counsel’s prior declaration to this court contained a false statement regarding
review of a “court-ordered psychological evaluation;” (8) trial defense counsel
were ineffective in that the Defense’s expert in forensic psychology was unqual-
ified to assist Petitioner in this case; (9) trial defense counsel were ineffective
by failing to adequately explore Petitioner’s “prior sleep issues;” (10) trial de-
fense counsel were ineffective by failing to move to suppress Petitioner’s in-
criminating statements made during a pretext telephone call with the com-
plainant and his interview with civilian police investigators; and (11) trial de-
fense counsel were ineffective by failing to adequately investigate the medica-
tions Petitioner was taking at the time of the offense and at the time of the
pretext telephone call and police interview.2,3 We find Petitioner has failed to
demonstrate he is entitled to relief, and we deny the petition.
“The All Writs Act,
28 U.S.C. § 1651(a), grants this court authority to is-
sue extraordinary writs necessary or appropriate in aid of its jurisdiction.”
Chapman v. United States,
75 M.J. 598, 600 (A.F. Ct. Crim. App. 2016) (citing
Loving v. United States,
62 M.J. 235, 246 (C.A.A.F. 2005)). This court has ju-
risdiction over petitions for a writ of coram nobis alleging an earlier conviction
previously reviewed by this court was flawed in some fundamental respect.
Id.
at 601 (citing United States v. Denedo,
556 U.S. 904, 917 (2009)). A petitioner
for a writ of coram nobis has the burden to show a clear and indisputable right
to the extraordinary relief requested. Denedo v. United States,
66 M.J. 114, 126
(C.A.A.F. 2008) (citing Cheney v. United States Dist. Court,
542 U.S. 367, 381
(2004)), aff’d and remanded,
556 U.S. 904 (2009). The writ of coram nobis
“should not be granted in the ordinary case; rather, it should be granted only
in extraordinary cases under circumstances compelling such action to achieve
justice.” Chapman,
75 M.J. at 601 (citing Denedo,
556 U.S. at 917) (additional
citations omitted). “Although a petitioner may file a writ of coram nobis at any
time, to be entitled to the writ he must meet the following threshold require-
ments:”
2 We have rephrased and slightly reordered the errors Petitioner asserts.
3 Although not presented in a separate motion, in the body of the petition Petitioner
requests oral argument. We find oral argument unnecessary to decide the petition.
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In re Burdin, Misc. Dkt. No. 2023-02
(1) the alleged error is of the most fundamental character; (2) no
remedy other than coram nobis is available to rectify the conse-
quences 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 dil-
igence 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.
Id. (quoting Denedo,
66 M.J. at 126).
This court uses a two-tier approach to evaluate claims raised via
a writ of coram nobis. First, the petitioner must meet the afore-
mentioned threshold requirements for a writ of coram nobis. If
the petitioner meets the threshold requirements, his claims are
then evaluated under the standards applicable to his issues.
Id.
The petition and its numerous attachments fail to demonstrate Petitioner
has a clear and indisputable right to the requested relief.
With respect to issue (2), the decision not to prepare a verbatim transcript
of the Article 32, UCMJ, hearing is not an alleged error of the most fundamen-
tal character, and was a matter known to Petitioner before trial which was
previously raised in Appellant’s clemency submission to the convening author-
ity.
With respect to issue (3), far from being “forgotten,” Petitioner’s exculpa-
tory comment during his police interview was previously considered evidence
admitted at trial and highlighted both at the court-martial and in Petitioner’s
original assignments of error to this court.
With regard to Petitioner’s multiple allegations of deficient performance by
his trial defense counsel in issues (4) through (11), having reviewed Petitioner’s
filings with this court pursuant to his original appeal, we note Petitioner pre-
viously raised numerous allegations of ineffective assistance to this court. See
Burdin, unpub. op. at *3 (noting Petitioner’s “scattershot attack” on trial de-
fense counsel “alleg[ing] multiple failings”). Several of his allegations in the
instant petition are substantially similar to allegations he made in his original
appeal; for those that are materially distinct, Petitioner fails to provide per-
suasive reasons why he could not have raised these matters earlier through
the exercise of reasonable diligence. Moreover, we find several of the alleged
errors are not of the most fundamental character with respect to the validity
of his conviction.
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In re Burdin, Misc. Dkt. No. 2023-02
Certain aspects of Petitioner’s ineffective assistance claims bear further
comment. Petitioner’s allegations regarding the inadequacy of the Defense’s
expert consultants in forensic psychology and forensic toxicology rely in part
on the written statements of Dr. DB, a clinical pharmacologist and toxicologist,
and Dr. HB, a psychiatrist. Dr. DB was the expert consultant in forensic toxi-
cology who trial defense counsel originally sought to have appointed as an ex-
pert consultant, in place of whom the convening authority provided a substi-
tute forensic toxicologist. In his original appeal to this court, Petitioner sub-
mitted a declaration by Dr. DB dated 23 April 2013. Petitioner has attached to
the instant petition a nearly identical declaration by Dr. DB, also dated 23
April 2013. Accordingly, Dr. DB’s declaration constitutes matter previously
raised and considered during his original appeal.4
In contrast, Dr. HB’s statements dated 23 June 2017 and 17 October 2017
were not previously provided to this court. However, we note Dr. HB’s state-
ments take the form of signed reports rather than sworn affidavits or declara-
tions made under penalty of perjury pursuant to
28 U.S.C. § 1746. See JT. CT.
CRIM. APP. R. 23(b) (“If a party desires to attach a statement of a person to the
record for consideration by the Court on any matter, such statement shall be
made either as an affidavit or as an unsworn declaration under penalty of per-
jury . . . .”). Moreover, assuming arguendo we may appropriately consider the
substance of Dr. HB’s statements, we note his reports do not conclude that the
effects of Petitioner’s medications would have provided him with a defense of
lack of mental responsibility or any other defense, nor do they raise any ques-
tion of Petitioner’s capacity to stand trial; accordingly, we do not find they sup-
port the existence of an error of the most fundamental character with respect
to the findings of guilty.
Further assuming arguendo that we could consider the entirety of Dr. HB’s
and Dr. DB’s statements for purposes of the instant petition, we are not per-
suaded they enable Petitioner to clearly and indisputably meet the threshold
to demonstrate trial defense counsel were ineffective in relying on the advice
of other, apparently qualified, expert consultants. See generally United States
v. Gooch,
69 M.J. 353, 362 (C.A.A.F. 2011) (articulating the test for ineffective
assistance of counsel).
Finally, we turn to the remaining issue Petitioner asserts: the complain-
ant’s purported recantation of her accusation. Petitioner has attached to the
petition multiple documents signed by the complainant, DB, indicating she
wants Petitioner’s conviction to be overturned. We address three of these doc-
uments here. The first document is a declaration signed by DB under penalty
4Moreover, with due regard to Dr. DB’s qualifications, we find the conclusions he offers
in the declaration unpersuasive.
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In re Burdin, Misc. Dkt. No. 2023-02
of perjury dated 10 December 2012 and addressed to this court before its opin-
ion on Petitioner’s original appeal. Therein, DB generally supported argu-
ments Petitioner made to this court in his original appeal, including inter alia
expressing concerns about the voluntariness of Petitioner’s actions at the time
of the offense, the voluntariness of his subsequent incriminating statements,
and the adequacy of trial defense counsel’s performance; however, signifi-
cantly, DB did not disavow her trial testimony. Petitioner also provided a sec-
ond document which is a memorandum from DB dated 9 December 2013 and
addressed to the Secretary of the Air Force, wherein DB stated she was “re-
canting and withdrawing [her] statement” against Petitioner and “request[ing]
his sentence be commuted, remitted, or suspended.” However, as with her dec-
laration, DB did not claim any of her trial testimony was false; instead, she
again expressed concern regarding the effects of Petitioner’s sleep disorder and
medications, the voluntariness of his admissions, and the performance of trial
defense counsel, among other allegations. In addition, Petitioner provided a
third document, another memorandum signed by DB addressed to the Secre-
tary of the Air Force and dated 2 March 2014 with a notary signature dated 10
March 2014, which in its entirety reads as follows:
I, [DB], of legal age and of my own free will, recant and withdraw
my rape allegation against [Petitioner], resulting in his Article
120 conviction June 3, 2011 and know he is innocent of it. Please
overturn the conviction, reinstate him[,] and restore his clear-
ances. Thank you for your assistance in this matter Madam Sec-
retary.
As before, in her 2014 memorandum DB does not assert that any of her trial
testimony was false.
We are not persuaded DB’s purported “recantations” demonstrate Peti-
tioner is entitled to coram nobis relief. We note our superior court has ex-
plained “[p]etitions for new trial based on a witness’s recantation are not
viewed favorably in the law” and “should not be granted unless the court is
reasonably well satisfied that the testimony given by a material witness is
false.” United States v. Rios,
48 M.J. 261, 268 (C.A.A.F. 1998) (citations and
internal quotation marks omitted). Similar caution is warranted with regard
to petitions for coram nobis relief. In this case, as noted, none of DB’s various
post-trial statements in support of Petitioner disavow the truth of her trial
testimony, which formed the essential evidence supporting his conviction. Ac-
cordingly, we conclude her statements do not establish an error of the most
fundamental character. Moreover, the information is not new, because, as de-
scribed above, DB signed a declaration on 10 December 2012 to this court in
support of Petitioner while a decision on his original appeal was pending.
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In re Burdin, Misc. Dkt. No. 2023-02
Accordingly, having reviewed the petition and its several attachments, it is
by the court on this 20th day of June, 2023,
ORDERED:
The petition for extraordinary relief in the nature of a petition for a writ of
coram nobis received by this court on 21 April 2023 is hereby DENIED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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