United States v. Hennis ( 2017 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Timothy B. HENNIS, Master Sergeant
United States Army, Appellant
No. 17-0263
Crim. App. No. ARMY 20100304
Argued October 10, 2017—Decided November 20, 2017
Military Judge: Patrick Parrish
For Appellant: Captain Timothy G. Burroughs (argued);
Lieutenant Colonel Christopher Daniel Carrier.
For Appellee: Captain Samuel E. Landes (argued); Colonel
Tania M. Martin, Colonel Mark H. Sydenham, Lieutenant
Colonel A. G. Courie III; Lieutenant Colonel Eric K. Staf-
ford, and Captain Catharine M. Parnell.
Judge OHLSON delivered the opinion of the Court, in
which Chief Judge STUCKY, Judges RYAN and
SPARKS, and Senior Judge COX, joined.1
______________
Judge OHLSON delivered the opinion of the Court.
Appellant’s case is before this Court for mandatory re-
view under Article 67(a)(1), Uniform Code of Military Jus-
tice (UCMJ), 10 U.S.C. § 867(a)(1) (2012). Appellant has
filed a consolidated motion requesting, in relevant part, ap-
pointment of appellate defense team members pursuant to
the Army’s capital litigation regulation, as well as funding
for learned counsel, a mitigation specialist, and a fact inves-
tigator. We conclude that this Court does not have the con-
stitutional, statutory, or regulatory authority to provide Ap-
1 Senior Judge Cox’s participation in this case is limited to re-
solving the consolidated motion.
United States v. Hennis, No. 17-0263/AR
Opinion of the Court
pellant with the relief he seeks. Accordingly, we deny Appel-
lant’s motion.2
I. Introduction
In May 1985, the wife, five-year-old daughter, and three-
year-old daughter of an Air Force captain were murdered in
Fayetteville, North Carolina. Appellant, who was a member
of the Army at the time of the murders, was initially tried
for these crimes in state court. He was convicted of the of-
fenses at his first trial, but those convictions were over-
turned upon appellate review by the North Carolina Su-
preme Court. At his second trial in state court in 1989,
Appellant was acquitted.
Following his acquittal in state court, Appellant returned
to active duty with the Army and served until his retirement
in 2004. However, after his retirement, DNA testing linked
Appellant to the Fayetteville murders. The Army ordered
Appellant to active duty and initiated court-martial proceed-
ings against him in 2006.
Contrary to his pleas, a general court-martial with en-
listed representation convicted Appellant of three specifica-
tions of premeditated murder, in violation of Article 118,
UCMJ, 10 U.S.C. § 918 (2012). The court-martial sentenced
Appellant to a dishonorable discharge, forfeiture of all pay
and allowances, reduction to E-1, and to be put to death. The
convening authority approved the sentence, and the United
States Army Court of Criminal Appeals (CCA) affirmed the
findings and the death sentence. United States v. Hennis,
75 M.J. 796 (A. Ct. Crim. App. 2016) (en banc). Appellant’s
case is now before us pursuant to Article 67(a)(1), UCMJ.
Appellant is represented in this Court by two attorneys:
Lieutenant Colonel (LTC) Christopher Daniel Carrier and
2 Appellant’s consolidated motion also requests that we hold
oral argument in this matter and that we stay the proceedings
pending receipt of the resources he is seeking. Because we already
have held oral argument on the consolidated motion, Appellant’s
request for oral argument is denied as moot. Further, in light of
our conclusion that we have no authority to require the Govern-
ment to provide Appellant with the requested resources, we also
deny the request for a stay pending receipt of these resources. A
separate briefing order will follow this opinion.
2
United States v. Hennis, No. 17-0263/AR
Opinion of the Court
Captain (CPT) Timothy G. Burroughs. Neither is “learned
counsel.”3 Appellant’s lead counsel, CPT Burroughs, has no
experience litigating capital cases, defending an accused at
court-martial, contesting a case before a court-martial panel,
or investigating and presenting a mitigation case. However,
he does have limited experience with military appeals. CPT
Burroughs also carries a full caseload in his role as a mili-
tary appellate defense counsel, representing twenty-seven
other clients in addition to Appellant.
LTC Carrier, a former military judge, serves as the su-
pervising counsel in Appellant’s case. Given his duties as the
chief of capital and complex litigation, LTC Carrier is unable
to wholly devote himself to Appellant’s case. Further, LTC
Carrier has never prosecuted or defended an accused in a
capital case and has minimal experience with capital ap-
peals.
In addition, Appellant does not have the assistance of a
mitigation specialist or a fact investigator in this case, de-
spite making numerous requests to the CCA and various
Army officials.
II. Discussion
In the motion before us, Appellant requests appointment
of an appellate defense team pursuant to the Army’s capital
litigation regulation, and funding for learned counsel, a mit-
igation specialist, and a fact investigator. We will address
each of these requests in turn.
A. Appellate Defense Team
The Army’s capital litigation regulation does not provide
a basis for the relief sought by Appellant. A key provision of
the regulation states: “The suggested capital litigation team
serves as a guideline.” Dep’t of the Army, Reg. 27-10, Legal
Services, Military Justice para. 28-6.a. (May 11, 2016) [here-
inafter AR 27-10] (emphasis added). This language “by its
own terms [is] hortatory, rather than mandatory” and thus
does not create a binding right. United States v. Sloan, 35
3 “Learned counsel” is an attorney knowledgeable in the law
applicable to capital cases. United States v. Akbar, 74 M.J. 364,
399 (C.A.A.F. 2015).
3
United States v. Hennis, No. 17-0263/AR
Opinion of the Court
M.J. 4, 9 (C.M.A. 1992). Moreover, even if Appellant did
have a binding right under this regulation, a review of its
provisions as a whole demonstrates that the regulation was
intended to apply to trial defense teams rather than to ap-
pellate defense teams. See generally AR 27-10 ch. 28. We
therefore conclude that this Court does not have the authori-
ty to mandate the appointment of an appellate defense team
pursuant to the provisions of the Army’s capital litigation
regulation.
B. Learned Counsel
This Court similarly does not have the authority to man-
date funding for learned counsel in this case. As an initial
matter, there currently is no requirement for the appoint-
ment of learned counsel in military capital cases. Akbar,
74 M.J. at 399; see also Articles 27(b)(1), 70(a), UCMJ,
10 U.S.C. §§ 827(b)(1), 870(a) (2012). We recognize that the
Military Justice Act of 2016 substantially amends Article 70,
UCMJ, by requiring “[t]o the greatest extent practicable, in
any capital case, at least one defense counsel … be learned
in the law.” Military Justice Act of 2016, Pub. L. No. 114-
328, § 5334, 130 Stat. 2000, 2936 (2016). However, the “to
the greatest extent practicable” language makes plain that
there is no statutory requirement for learned counsel.
More importantly, it is clear that the pending amend-
ment to Article 70, UCMJ, applies only to future military
capital cases and not to Appellant’s case. See id. § 5542(a),
(c)(2), 130 Stat. at 2967–68. Specifically, the amendment
states that it does not apply to “any case in which charges
are referred to trial by court-martial before the effective date
of such amendments.” Id. § 5542(c)(2), 130 Stat. at 2967.
Further, it states that proceedings in such cases “shall be
held in the same manner and with the same effect as if such
amendments had not been enacted.” Id. § 5542(c)(2), 130
Stat. at 2967–68. Appellant’s case was referred long before
the effective date of the amendment. Therefore, Appellant is
not entitled to any relief pursuant to the amendment’s pro-
visions.
Appellant next identifies two separate constitutional
rights as the basis for his learned counsel request: the equal
protection component of the Fifth Amendment’s Due Process
4
United States v. Hennis, No. 17-0263/AR
Opinion of the Court
Clause, and the right to effective assistance of appellate
counsel. However, as shown below, neither constitutional
right mandates funding for learned counsel.
We first turn to Appellant’s equal protection claim that
he must be treated in a similar manner to future appellants
in capital cases. The distinction drawn between Appellant—
who is not entitled to learned counsel under the Military
Justice Act of 2016—and future capital appellants—who
may be entitled to learned counsel under the provisions of
that act—is not based on a constitutionally suspect classifi-
cation such as race, religion, or national origin. Nor does this
distinction interfere with Appellant’s fundamental constitu-
tional rights. See United States v. Gray, 51 M.J. 1, 22–23
(C.A.A.F. 1999). Absent a suspect classification or interfer-
ence with a fundamental right, all that is needed for the
statute to withstand constitutional scrutiny is a rational ba-
sis for the distinction between Appellant and future capital
appellants. See Akbar, 74 M.J. at 406; Tate v. District of Co-
lumbia, 627 F.3d 904, 910 (D.C. Cir. 2010). We conclude that
such a rational basis exists. Congress presumably delayed
the effective date and implementation of Article 70, UCMJ,
in order to provide the government with adequate time to
train appellate defense counsel, write and implement regu-
lations pertaining to learned counsel, and allocate funding to
pay for the training and use of learned counsel in capital
cases. We therefore reject Appellant’s equal protection ar-
gument.
We next consider Appellant’s reliance on the right to ef-
fective assistance of appellate counsel. See United States v.
Brooks, 66 M.J. 221, 223 (C.A.A.F. 2008). This question is
not yet ripe because we review ineffective assistance of
counsel claims after we have a record of counsel’s perfor-
mance. See United States v. Marshall, 45 M.J. 268, 270
(C.A.A.F. 1996); see also Maryland v. Kulbicki, 136 S. Ct. 2,
4 (2015) (per curiam). We recognize that LTC Carrier and
CPT Burroughs have very limited experience in capital cas-
es, and this inexperience ultimately may be a factor in de-
termining whether counsel’s performance was ineffective.
See United States v. Cronic, 466 U.S. 648, 665 (1984); United
States v. Murphy, 50 M.J. 4, 13 (C.A.A.F. 1998). However, as
we have noted in the past, “limited experience does not raise
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a presumption of ineffectiveness.” United States v. Loving,
41 M.J. 213, 300 (C.A.A.F. 1994) (citing Cronic, 466 U.S. at
665). Accordingly, we conclude there is no basis for this
Court to grant Appellant’s request to require funding for
learned counsel.4
C. Experts
Similarly, there is no basis for this Court to mandate
funding for a mitigation specialist or fact investigator in this
case. In resolving the request for expert assistance, we will
assume arguendo that this Court is the proper forum for
such a request. But see United States v. Gray, 40 M.J. 25, 25
(C.A.A.F. 1994) (order).5 Upon doing so, we conclude that
Appellant has not met the “reasonable-necessity standard”
to establish that he is entitled to have this court mandate
expert assistance at this time. See Gray, 51 M.J. at 20; Unit-
ed States v. Tharpe, 38 M.J. 8, 14 (C.M.A. 1993). Simply
stated, it is unclear from the record before us why interview-
ing witnesses, reviewing documents, and completing certain
4 This conclusion in no way precludes this Court from provid-
ing appropriate relief to Appellant in the future if we later deter-
mine appellate defense counsel’s performance was ineffective.
5 We note that in a December 20, 2016, memorandum denying
the Defense Appellate Division’s request for funding of a mitiga-
tion specialist and investigator, the convening authority stated
that the “request should be forwarded to the U.S. Court of Appeals
for the Armed Forces for approval, per AR 27-10, para. 6-5d.” This
sentence indicates that there may be a misapprehension of this
Court’s role in a case such as this one. The cited regulation states
that “in capital cases … [r]equests for funding [for expert services]
… should be made to the appropriate authority,” including “the
court before which the case is pending.” AR 27-10 para. 6-5.d.
However, the Army does not determine this Court’s jurisdiction
and responsibilities. This Court reviews lower court rulings of de-
nials of requests for experts. See United States v. Kreutzer, 61 M.J.
293 (C.A.A.F. 2005) (determining that the denial of expert assis-
tance from a mitigation specialist was not harmless beyond a rea-
sonable doubt). This Court also reviews rulings on whether the
expert assistance provided by the government is competent. Unit-
ed States v. McAllister, 55 M.J. 270, 275–76 (C.A.A.F. 2001). How-
ever, we take these actions as a court of review, not as part of the
chain of command or as some sort of administrative approval au-
thority.
6
United States v. Hennis, No. 17-0263/AR
Opinion of the Court
investigative tasks is beyond the ability of the defense team.
Further, as previously discussed, Appellant is not entitled to
expert assistance under chapter 28 of AR 27-10 because the
regulation does not create mandatory requirements and be-
cause it applies to trial defense teams. Additionally, this
regulation only states that the defense team “may” include
mitigation specialists and fact investigators. AR 27-10 para.
28-6.c. Accordingly, Appellant’s request for funding a mitiga-
tion specialist and fact investigator is denied.
III. Conclusion
As explained above, at this point in these appellate pro-
ceedings we discern no constitutional, statutory, or regulato-
ry basis for this Court to grant Appellant’s requests for an
enhanced appellate defense team or for funding for learned
counsel, a mitigation specialist, and a fact investigator.
However, we note that Congress has clearly expressed its
preference that military members charged with capital of-
fenses be provided with learned counsel in the near future,
federal law requires the provision of learned counsel upon
request in other federal death penalty cases, and most state
jurisdictions which still have the death penalty have estab-
lished minimum qualifications for counsel in such cases.6
Nevertheless, in deciding a motion such as the one now be-
fore us, this Court’s task is not to require “what is prudent
or appropriate, but only what is constitutionally [and statu-
torily] compelled.” Cronic, 466 U.S. at 665 n.38. Appropriate
personnel in the Army Judge Advocate General’s Corps are
not similarly constrained, however, and may most certainly
do what is “prudent” and “appropriate” in the instant case.
Appellant’s consolidated motion is denied.
6 See Stephen C. Reyes, Left Out in the Cold: The Case for a
Learned Counsel Requirement in the Military, Army Law. 5, Oct.
2010, at 7–11 (identifying jurisdictions with special attorney qual-
ifications for capital cases).
7