U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
In re Steven M. CHAPMAN ) Misc. Dkt. No. 2022-05
Airman Basic (E-1) )
U.S. Air Force )
Petitioner )
) ORDER
)
)
)
) Panel 1
Petitioner seeks extraordinary relief in the nature of a writ of error coram
nobis. He asks us to set aside the findings and sentence from his 2002 court-
martial under the theories that the military judge made an instructional error
and that both his trial and appellate defense counsel provided him ineffective
assistance. Petitioner has raised these same claims on several occasions before
both this court and other courts through habeas corpus petitions.
Petitioner also requests we order the appointment of an appellate counsel
to assist with his writ—a request he has unsuccessfully made on various past
occasions. We have previously advised Petitioner that we are without authority
to appoint appellate defense counsel, and we adhere to the reasoning underly-
ing that advice. See, e.g., United States v. Chapman, Misc. Dkt. No. 2012-03,
2012 CCA LEXIS 374 (A.F. Ct. Crim. App. 28 Sep. 2012) (order).
I. BACKGROUND
In 2002, Petitioner was convicted by a general court-martial, contrary to
his pleas, of attempted premeditated murder, rape, sodomy, and burglary, in
violation of Articles 80, 120, 125, and 129, Uniform Code of Military Justice
(UCMJ),
10 U.S.C. §§ 880, 920, 925, 929. He was sentenced to a dishonorable
discharge, confinement for life with the possibility of parole, forfeiture of all
pay and allowances, and reduction to the grade of E-1. The convening authority
approved the findings and sentence as adjudged. In 2006, we affirmed the find-
ings and sentence pursuant to our direct review authority under Article 66,
UCMJ,
10 U.S.C. § 866. United States v. Chapman, No. ACM 35564,
2006 CCA
LEXIS 179 (A.F. Ct. Crim. App. 14 Jul. 2006) (unpub. op.). The following year,
the United States Court of Appeals for the Armed Forces (CAAF) summarily
affirmed our decision. United States v. Chapman,
65 M.J. 289 (C.A.A.F. 2007).
The United States Supreme Court denied certiorari. Chapman v. United
States,
552 U.S. 952 (2007). On 28 November 2007, a final court-martial order
In re Chapman, Misc. Dkt. No. 2022-05
was promulgated, resulting in the execution of Petitioner’s dishonorable dis-
charge and rendering his case final under Articles 71(c)(1) and 76, UCMJ,
10
U.S.C. §§ 871(c)(1), 876. Manual for Courts-Martial, United States (2005 ed.).
While serving his sentence at the United States Disciplinary Barracks in
Fort Leavenworth, Kansas, Petitioner killed another inmate with a baseball
bat. He was convicted by an Army court-martial and sentenced to, inter alia,
confinement for life without the possibility of parole. When a servicemember
who is serving a period of confinement is convicted by another court-martial
and sentenced to a second period of confinement, that second sentence is served
immediately, interrupting the first sentence. Army Regulation 633-30/Air
Force Regulation 125-30, Military Sentences to Confinement, ¶ 4.b.(1) (2 Dec.
2015).
In late 2014, Petitioner sought extraordinary relief from this court in the
nature of a writ of habeas corpus with respect to his Air Force court-martial.
He essentially asked us to order a fact-finding hearing to address the following
issues: (1) whether the military judge should have sua sponte given the mem-
bers an instruction on false confessions; (2) whether his trial defense counsel
were ineffective with respect to their utilization of Petitioner’s appointed fo-
rensic psychologist consultant; and (3) whether his appellate defense counsel
were ineffective in refusing to raise an issue pursuant to United States v.
Grostefon,
12 M.J. 431 (C.M.A. 1982). This court rejected Petitioner’s request
in early 2016. Chapman v. United States,
75 M.J. 598 (A.F. Ct. Crim. App.
2016). In doing so, we determined we had no jurisdiction for the writ of habeas
corpus due to the finality of his court-martial proceedings.
Id. at 600–01. Rec-
ognizing our jurisdiction over petitions for writs of error coram nobis, we con-
cluded Petitioner had failed to show he was entitled to such a writ.
Id. at 602.
Petitioner requested reconsideration, but that request was denied due to being
filed late; nonetheless, we docketed his request as a new petition for relief and
again concluded we were without habeas corpus jurisdiction for his case. Chap-
man v. United States, Misc. Dkt. No. 2016-07,
2016 CCA LEXIS 351 (A.F. Ct.
Crim. App. 9 Jun. 2016) (unpub. op.). In our denial, we noted that “no further
filings on writs of habeas corpus will be accepted or docketed by the court on
this matter.” Id. at *2. The CAAF dismissed Petitioner’s appeal of our decision
for lack of jurisdiction shortly thereafter. Chapman v. United States, No. 16-
0690,
2016 CAAF LEXIS 792 (C.A.A.F. 30 Sep. 2016) (unpub. op.).
Petitioner then unsuccessfully sought relief from the federal judiciary by
petitioning for a writ of habeas corpus based upon the same arguments he pre-
sented to this court. Chapman v. Warden, FCC Coleman – USP II, No. 5:17-cv-
2
In re Chapman, Misc. Dkt. No. 2022-05
40-Oc-35PRL,
2020 U.S. Dist. LEXIS 10456 (M.D. Fla. 22 Jan. 2020) (order).1
The denial of this writ was subsequently affirmed. Chapman v. Warden, FCC
Coleman – USP II, No. 20-10427,
2021 U.S. App. LEXIS 36588 (11th Cir. 10
Dec. 2021) (per curiam), cert. denied sub. nom. Chapman v. Warden, FCC Cole-
man,
142 S. Ct. 1696 (2022).
Petitioner now returns to this court seeking extraordinary relief in the na-
ture of a writ of error coram nobis raising the same issues he previously
brought.
II. LAW
The All Writs Act,
28 U.S.C. § 1651(a), grants this court authority to issue
extraordinary writs. Loving v. United States,
62 M.J. 235, 246 (C.A.A.F. 2005)
(citing Clinton v. Goldsmith,
526 U.S. 529, 534 (1999)). “The writ of coram
nobis is an ancient common-law remedy designed ‘to correct errors of fact.’”
United States v. Denedo,
556 U.S. 904, 910 (2009) (quoting United States v.
Morgan,
346 U.S. 502, 507 (1954)). Appellate military courts have jurisdiction
over petitions for coram nobis relief “to consider allegations that an earlier
judgment of conviction was flawed in a fundamental respect.” Id. at 917. The
writ of error coram nobis is an extraordinary writ and an extraordinary rem-
edy. Id. It should not be granted in the ordinary case; rather, it should be
granted only under circumstances compelling such action to achieve justice.
Id.; Morgan, 346 U.S. at 511; Correa-Negron v. United States,
473 F.2d 684,
685 (5th Cir. 1973). As the Supreme Court of the United States has explained,
“Continuation of litigation after final judgment and exhaustion or waiver of
any statutory right of review should be allowed through this extraordinary
remedy only under circumstances compelling such action to achieve justice.”
Morgan, 346 U.S. at 511.2 Thus, coram nobis is generally only available to ad-
dress errors “of the most fundamental character.” Loving, 62 M.J. at 252–53
(quoting Morgan, 346 U.S. at 512) (additional citations omitted).
1 Petitioner was transferred to the custody of the Bureau of Prisons at some point after
he killed the inmate at the United States Disciplinary Barracks. The record does not
completely disclose at which federal penitentiaries Petitioner has been held.
2 One initial question is whether we have coram nobis jurisdiction at all over a case
which is final. The United States Court of Appeals for the Armed Forces (CAAF) re-
cently held that once a case is final under Article 76, UCMJ,
10 U.S.C. § 876, that court
has no jurisdiction to hear a petitioner’s plea for coram nobis relief. See United States
v. Gray.
77 M.J. 5, 6 (C.A.A.F. 2017) (per curiam). This conclusion, however, is difficult
to square with the United States Supreme Court’s holding in United States v. Denedo,
556 U.S. 904 (2009), that the military appellate courts had coram nobis jurisdiction
3
In re Chapman, Misc. Dkt. No. 2022-05
In order to be entitled to a writ of error coram nobis, a petitioner must meet
the following threshold requirements:
(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.
Denedo v. United States,
66 M.J. 114, 126 (C.A.A.F. 2008), aff’d,
556 U.S. 904
(2009). Only once a petitioner meets those threshold requirements would we
consider the substantive issues being raised.
III. DISCUSSION
In our 2016 ruling concluding coram nobis relief was not warranted, we
determined Petitioner had another remedy available (i.e., seeking relief from
the federal judiciary) and pointed out that he had not yet served his sentence.
Chapman,
75 M.J. at 602. We further noted that Petitioner had not explained
why he did not raise his first issue—the instruction given by the military
judge—during the direct appeal from his court-martial.
Id.
Petitioner now argues that he no longer has any other remedy available,
presumably because his petition for a writ of habeas corpus was denied by the
federal courts. We agree Petitioner does not have the ability to pursue a writ
of habeas corpus before us.3 We will assume without deciding that Petitioner
over the petition before the Court. As was the case in Gray, the petitioner’s case in
Denedo had also been final for some time before coram nobis relief was sought. See
Denedo v. United States,
66 M.J. 114, 136 (C.A.A.F. 2008) (Ryan, J., dissenting). At
least one of our sister Courts of Criminal Appeals has limited the Gray holding to the
facts of that capital case in which an execution date had been set. See, e.g., In re Tru-
jillo, No. 9100502,
2021 CCA LEXIS 374, at *4 n.6 (N.M. Ct. Crim. App. 28 Jul. 2021)
(per curiam) (unpub. op.). We do the same and conclude we have jurisdiction over the
petition at issue here.
3 We have previously held we have no jurisdiction over habeas corpus petitions once a
case is final under Articles 71(c)(1) and 76, UCMJ,
10 U.S.C. §§ 871(c)(1), 876. United
States v. Chapman,
75 M.J. 598, 600–01 (A.F. Ct. Crim. App. 2016) (citations omitted).
Article 71, UCMJ, has since been repealed, but was in effect at the time Petitioner
sought direct review of his case before military courts and the Supreme Court.
4
In re Chapman, Misc. Dkt. No. 2022-05
no longer has the ability to seek the same relief before a district court due to
the general prohibition against successive habeas corpus petitions found in
28
U.S.C. § 2244(b)(1).4
Petitioner also contends that the sixth threshold requirement is “too strin-
gent and unattainable for anyone who has a life sentence,” and questions
whether the requirement that a petitioner seeking coram nobis relief must first
serve his or her sentence is a correct reading of legal precedent. As noted above,
the CAAF established the six-part test for establishing the availability of co-
ram nobis relief in Denedo. Petitioner argues that case law cited by the CAAF
in Denedo does not support a conclusion that the sentence must be served be-
fore he can be eligible for relief. This argument is not without merit.5 Never-
theless, the CAAF is our superior court; we are bound by its precedent and
have no authority to establish an alternative standard.6 Petitioner plainly has
not served the sentence he received at his 2002 Air Force court-martial, insofar
as that sentence was interrupted by his subsequent Army sentence to confine-
ment for life without the possibility of parole. Petitioner makes the related ar-
gument that he is no longer serving his Air Force sentence, but we see no rea-
son why that would warrant a different outcome in light of the fact he will
resume his Air Force sentence should he ever complete his Army sentence. Pe-
titioner simply cannot establish that his Air Force sentence “has been served.”
Even if we resolved the sixth threshold requirement in Petitioner’s favor,
Petitioner has failed to meet the first, third, fourth, and fifth threshold require-
ments for his three alleged errors.
4 But see, e.g., Loving,
62 M.J. at 254 (noting that coram nobis is unavailable under
federal law even if a petitioner is barred from habeas relief due to the successive-peti-
tion prohibition, so long as the petitioner remains in custody).
5 In Denedo, the CAAF cited Morgan and Loving as authority for the test, along with
three federal practice treatises. The Supreme Court in Morgan, however, never said a
petitioner must first serve his or her sentence before seeking a writ of error coram
nobis. To the contrary, the Supreme Court merely noted in Morgan that consequences
of the petitioner’s conviction may persist even though the sentence had been served,
so the petitioner in that case retained the ability to challenge his conviction.
346 U.S.
502, 512–13 (1954). In Loving, the CAAF raised the question of whether being in cus-
tody was dispositive, but the court explicitly declined to resolve the matter.
62 M.J. at
254. The CAAF did note that the circuit courts are “in complete agreement” that coram
nobis is not available to federal petitioners “in custody,” but that is because such con-
fined petitioners can seek relief under 28 U.S.C. § 2255—an option unavailable to ser-
vicemembers convicted by courts-martial. Id. at 254–55.
6 The CAAF reiterated the rule that coram nobis relief is unavailable to petitioners
who are still in confinement in Gray. 77 M.J. at 6.
5
In re Chapman, Misc. Dkt. No. 2022-05
A. “False Confession” Instruction
Petitioner contends the military judge had a sua sponte duty to instruct the
members on false confessions, yet he has not precisely explained what such a
novel instruction would entail, much less identify any authority requiring one.
Based upon Petitioner’s citation to Mil. R. Evid. 304(g), as well as his 2013
petition to this court for a writ of habeas corpus, it appears he is arguing that
the military judge should have told the members “to give such weight to the
confession as the jury feels it deserves under the circumstances.” At the time
of Petitioner’s court-martial, Mil. R. Evid. 304(e)(2) (the substance of which is
now found in Mil. R. Evid. 304(g)) permitted the Defense to present evidence
as to the voluntariness of Petitioner’s confession. The rule explained that in
such a case, the military judge “shall instruct the members to give such weight
to the statement as it deserves under all the circumstances.” Manual for
Courts-Martial, United States (2000 ed.).
Petitioner never raised this matter either during his trial or on direct ap-
peal despite vigorously attacking the validity and admissibility of his confes-
sion. In fact, at his trial, the parties discussed with the military judge the ques-
tion of whether the voluntariness of Petitioner’s confession had been raised.
Trial counsel contended no evidence of involuntariness had been presented by
the Defense, and trial defense counsel did not dispute this claim. As a result,
the military judge declined to give an instruction requested by the Government
which was designed to counter an anticipated claim of involuntariness. Peti-
tioner’s writ presents no new information on this point which might serve to
undermine the legitimacy of his court-martial. Most importantly, we cannot
conclude this matter was “of the most fundamental character.” Petitioner ag-
gressively argued his confession was false at his trial, and this issue was
squarely before the members. Given this posture, along with the military
judge’s instructions to the members to consider all the evidence in his case7—
as well as Petitioner’s inability even now to set out the parameters of the in-
struction he thinks the military judge should have given—we find the issue to
fall far short of being “of the most fundamental character.”
B. Claim of Ineffective Assistance at Trial
Petitioner accuses his trial defense counsel of providing ineffective assis-
tance. Prior to his court-martial, Petitioner’s defense team was appointed a
forensic psychologist consultant to assist in their trial preparation. The De-
fense sought an additional consultant particularly versed in false confessions,
7 The military judge advised the members, inter alia, “The final determination as to
the weight or significance of the evidence and the credibility of the witnesses in this
case rests solely upon you.”
6
In re Chapman, Misc. Dkt. No. 2022-05
but this request was denied by the convening authority. The Defense made a
motion to compel the appointment of such an expert, but the military judge
denied it. In doing so, the military judge noted that the Defense had an as-
signed consultant who could advise Petitioner and trial defense counsel on the
subject. Later in the trial, the Defense requested the military judge reconsider
his ruling; the military judge declined to do so.
Petitioner litigated the denial of this second expert consultant on direct ap-
peal. Before us, Petitioner does not argue this denial was error; rather he con-
tends his trial defense counsel were ineffective in not using the assigned con-
sultant to conduct an investigation into Petitioner’s susceptibility to be swayed
by “coercive” interview techniques. Petitioner’s sole stated basis for concluding
no investigation was done is that “no one came to interview [him]” after the
military judge denied the Defense’s motion to compel. Petitioner also suggests
his trial defense counsel should have asked for a hearing under Article 39(a),
UCMJ,
10 U.S.C. § 839(a), for the purpose of having the assigned consultant
testify in order to demonstrate that the consultant was unqualified to conduct
such an investigation.
Petitioner does not explain what this investigation would have entailed,
nor does he explain why we should assume an assessment of his susceptibility
to coercion calls for a personal interview, as opposed to a review of information
assembled by the defense team. In any event, this matter was known to Peti-
tioner at trial and readily available to him to address on appeal. Petitioner did
litigate the denial of the second expert on appeal, and the argument he has
presented in his habeas corpus petitions—the same argument he presents
now—is simply a marginally different angle on an issue he thoroughly litigated
before, during, and after his court-martial. Thus, Petitioner is seeking to
reevaluate previously considered legal issues. Moreover, Petitioner has not
shown any valid reason for not raising this specific claim earlier, nor has he
provided any new information unavailable to him at the time of trial or during
his appeal.
C. Claim of Ineffective Assistance on Appeal
Petitioner’s argument for this third alleged error is rooted in the fact that
law enforcement agents reviewed his military mental health records prior to
conducting the interview during which Petitioner confessed—in significant de-
tail—to the offenses of which he was later convicted. He contends this consti-
7
In re Chapman, Misc. Dkt. No. 2022-05
tuted an unlawful search and seizure of the records under the Fourth Amend-
ment.8 Petitioner argues the agents’ review enabled them to use “coercive tech-
niques” to extract his confession, and his confession should therefore be sup-
pressed.
Before us, Petitioner alleges that his appellate defense counsel were inef-
fective in not challenging agents’ pre-interview review of his mental health
records. The reality, however, is that this matter was raised during his direct
appeal of his conviction. The theory the agents had impermissibly accessed his
mental health records was part and parcel of Petitioner’s trial efforts to sup-
press his confessional statements. On appeal, Petitioner alleged the military
judge erred in denying his motions to suppress those statements on this same
theory. Petitioner does not dispute the matter was raised, but rather contends
his appellate defense counsel were ineffective because they declined to pursue
a theory based upon the Fourth Amendment and instead relied on other legal
bases. Petitioner alleges he asked his appellate defense counsel to brief this
particular theory, but the counsel did not do so.
Petitioner aggressively litigated the admissibility of his confession on a va-
riety of grounds at trial and on appeal. Regarding his mental health records,
he specifically argued at trial that his Mil. R. Evid. 513 psychotherapist-pa-
tient privilege had been violated, and his confession should be suppressed as a
result. Petitioner did not at trial or on appeal explain what information in his
records was used to obtain his confession, nor has he done so in his various
petitions for extraordinary relief. To the contrary, the record amply demon-
strates Petitioner ceased denying he had committed his crimes and started
confessing once agents told Petitioner they had video evidence of him driving
off base the night of the assault, contrary to Petitioner’s earlier claims that he
spent the night sleeping in his car—information we would not expect to be
found in his medical records. Indeed, we see nothing in the record suggesting
agents leveraged any information found in his mental health records. In the
military judge’s ruling on the Defense’s trial motion to suppress the confession,
the military judge suggested Petitioner’s records may have been inappropri-
ately accessed, but he concluded there were “simply no significant indications
that [Petitioner’s] will was overborne by the use of the records, or anything
else,” and that Petitioner’s statements were “inevitably discoverable even ab-
sent the mental health records.” Petitioner raised this same theory about the
agents’ use of his mental health records in his direct appeal to this court. He
raised it again before the CAAF under a theory of outrageous conduct by the
agents.
8 U.S. CONST. amend. IV.
8
In re Chapman, Misc. Dkt. No. 2022-05
Before us, Petitioner presents no new information. Instead, he simply seeks
to reevaluate previously considered evidence under a different legal theory.
Even if we assume Petitioner expressly asked his appellate defense counsel to
make the Fourth Amendment argument on appeal, and his counsel refused to
do so, Petitioner does not explain how or cite any authority for the proposition
the Fourth Amendment would be implicated in the agents’ review of his mili-
tary medical records. Nor does he advance a legal theory which would grant
him relief even in the event of a Fourth Amendment violation. Thus, we cannot
conclude the alleged error of not citing the Fourth Amendment is “of the most
fundamental character.” Petitioner has also not explained why he could not
have raised this matter earlier by, for example, requesting new appellate de-
fense counsel during his direct appeal. No new information is presented in the
petition, and Petitioner admits he understood the issue while his direct appeal
was ongoing.
Based on the foregoing, we conclude Petitioner has not carried his burden
to demonstrate that his case warrants extraordinary relief in the form of a writ
of error coram nobis.
Accordingly, it is by the court on this 16th day of August, 2022,
ORDERED:
The Petition for Extraordinary Relief in the Nature of a Writ of Error Co-
ram Nobis, is DENIED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
9
