Squire v. Ledwith ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 5, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
TED C. SQUIRE,
Petitioner - Appellant,
v. No. 16-3030
(D.C. No. 5:14-CV-03081-KHV)
SIOBAN LEDWITH, (D. Kan.)
Respondent - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, HARTZ and PHILLIPS, Circuit Judges.
_________________________________
Ted C. Squire is a military prisoner who appeals the denial of his habeas
petition filed under 28 U.S.C. § 2241, which challenged his conviction by a general
court martial for engaging in a sexual act with a child under the age of 12 in violation
of Article 120 of the Uniform Code of Military Justice, 10 U.S.C. § 920. We affirm.
I
Mr. Squire was charged with one specification of engaging in a sexual act with
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
a child who had not attained the age of 12 and two specifications of engaging in lewd
acts with a child who had not attained the age of 16. The latter counts were
withdrawn before trial, at which time Mr. Squire pleaded not guilty to the single
specification of engaging in a sexual act with a child who had not attained the age of
12. After his conviction, the convening authority approved a sentence of 238 months
in prison.1 The Army Court of Criminal Appeals (ACCA) affirmed, see United
States v. Squire, 2012 WL 3602088, at *7 (A. Ct. Crim. App. 2012) (unpublished),
and the Court of Appeals for the Armed Forces denied relief after granting
discretionary review, United States v. Squire, 72 M.J. 285, 291 (C.A.A.F. 2013).
Mr. Squire later filed this § 2241 petition in the district court,2 but the district court
denied his claims, concluding all but one, which he waived, had received full and fair
consideration by the military courts.
II
We review de novo the district court’s denial of habeas relief. Fricke v. Sec’y
of Navy, 509 F.3d 1287, 1289 (10th Cir. 2007). But our scope of review is limited.
1
General courts-martial may be convened by the President, the Secretary of
Defense, and certain authorized military officers. 10 U.S.C. § 822. Once a military
judge or the court members adjudge a sentence, the convening authority takes action
on the sentence and may approve or disapprove it in whole or in part, so long as the
severity of punishment is not increased. See Rule for Courts-Martial 1107(a), (d).
The court members here sentenced Mr. Squire to twenty years in prison and a
reduction in rank. The convening authority approved 238 months’ confinement and
the rank reduction.
2
Mr. Squire filed his § 2241 petition in the United States District Court for the
District of Columbia, which transferred the petition to the District of Kansas.
2
“‘When a military decision has dealt fully and fairly with an allegation raised in [a
habeas] application, it is not open to a federal civil court to grant the writ simply to
re-evaluate the evidence.’” Thomas v. U.S. Disciplinary Barracks, 625 F.3d 667, 670
(10th Cir. 2010) (brackets omitted) (quoting Burns v. Wilson, 346 U.S. 137, 142
(1953)). If the military courts fully and fairly consider a habeas claim, the district
court may not review the claim. See Roberts v. Callahan, 321 F.3d 994, 995
(10th Cir. 2003). If the claim was not raised in the military courts, it is waived and
may not be considered absent a showing of cause and actual prejudice. See id. Only
if the claim was raised in the military courts but not given full and fair consideration
will “the scope of review by the federal civil court expand.” Lips v. Commandant,
U.S. Disciplinary Barracks, 997 F.2d 808, 811 (10th Cir. 1993).
To assess the fairness of the consideration, our review of a military
conviction is appropriate only if the following four conditions are met:
(1) the asserted error is of substantial constitutional dimension, (2) the
issue is one of law rather than disputed fact, (3) no military
considerations warrant a different treatment of constitutional claims,
and (4) the military courts failed to give adequate consideration to the
issues involved or failed to apply proper legal standards.
Thomas, 625 F.3d at 670-71 (citing Dodson v. Zelez, 917 F.2d 1250, 1252-53
(10th Cir. 1990)). “While we continue to apply this four-part test, [we] have
emphasized the fourth consideration as the most important.” Id. at 671. Even a
military court’s summary disposition of a claim can show adequate consideration of
the issues involved. See Watson v. McCotter, 782 F.2d 143, 145 (10th Cir. 1986).
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III
A. Scope of Review
Mr. Squire first disputes our scope of review. He says we no longer examine
whether the military courts gave a claim full and fair consideration, but instead we
engage in a more expansive review based on the four-factor test recited in Thomas.
This argument seeks to exploit some confusion in our earlier cases, see Roberts,
321 F.3d at 996 (describing evolution of our scope of review), but it is unavailing.
We clarified in Roberts that the four-factor test is not a separate, independent
inquiry from the full-and-fair consideration standard, but rather it is “an aid in
determining whether the claims were fully and fairly considered.” Id. at 997. We
explained that the test “develops our understanding of full and fair consideration” to
determine “whether the federal court may reach the merits of the case.” Id. We
endorsed this approach because it is more consistent with the restrictive scope of
review outlined by the Supreme Court in Burns. See id. Accordingly, we evaluate
whether the military courts afforded a habeas claim full and fair consideration,
mindful of the four factors. See, e.g., Thomas, 625 F.3d at 670-72 (emphasizing
fourth factor and holding that a summary disposition may still demonstrate full and
fair consideration); Nixon v. Ledwith, 635 F. App’x 560, 566 (10th Cir. 2016)
(applying full-and-fair-consideration analysis without reciting four factors yet noting
the most important factor is whether the issues received adequate consideration);
Brown v. Gray, 483 F. App’x 502, 504-05 (10th Cir. 2012) (reciting four-factor test
in evaluating whether the military courts afforded claims full and fair consideration).
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B. Mr. Squire’s Claims
The district court denied the habeas petition, concluding that all claims were
given full and fair consideration by the military courts, except one, which was
waived. The petition lists three claims: (1) ineffective assistance on three separate
grounds; (2) a violation of Mr. Squire’s Sixth Amendment right to confront his
accuser; and (3) a due process violation predicated on the denial of his right to testify
on his own behalf.3 We consider these claims in turn.
1. Ineffective Assistance
a. Failure to Offer Evidence of Recantation
Mr. Squire first claims his trial counsel was deficient in failing to submit
evidence that the 8-year old victim (the daughter of Mr. Squire’s fiancée) had
recanted. The ACCA analyzed this claim under the standards of Strickland v.
Washington, 466 U.S. 668 (1984), and concluded “there [was] a reasonable
explanation for counsel’s failure to present evidence of [the victim’s] recantation.”
Aplt. App., Vol. 4 at 225. Specifically, the ACCA observed there was “significantly
3
The district court read Mr. Squire’s petition to raise an additional claim based
on insufficient evidence, but we do not read the petition so broadly. The petition lists
three specifically enumerated claims, with clear subheadings, none challenging the
sufficiency of the evidence. The only reference to insufficient evidence is an isolated
statement within his claim under the Confrontation Clause, asserting that “the
evidence presented at trial, and more importantly, the evidence NOT presented at
trial due to his trial counsel’s failures, was not sufficient for the members to find it
‘more likely than not’ that he was guilty.” Aplee. Supp. App. at 35. This single,
isolated statement did not raise an independent habeas claim, as Mr. Squire
apparently acknowledges on appeal. See Aplt. Br. at 16-17 (listing habeas claims
without any reference to a claim of insufficient evidence).
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more evidence pertaining to [the victim’s] original allegations of sexual abuse than
what was presented at [Mr. Squire’s] court-martial.” Id. Thus, the ACCA found
“counsel’s decision to avoid evidence of recantation reasonable when faced with the
prospect of further incriminating evidence becoming admissible [with] an
unpredictable child witness standing by available to testify.” Id.
Moreover, the ACCA concluded there was no showing of prejudice because
even with evidence that the victim recanted, the government’s evidence of sexual
assault was overwhelming:
Even had trial defense counsel presented evidence of recantation, the
government’s case against [Mr. Squire] still included DNA evidence
that his semen was inside [the victim’s] vagina and on the interior of her
underwear. In addition, [Mr. Squire] made a partial admission to
[investigators] that if his semen was found inside [the victim], he had
penetrated her, but that it was an ‘accident.’ The evidence against
[Mr. Squire] was overwhelming, and would still be so in light of
evidence of a recantation.
Id. at 226. The ACCA gave this claim full and fair consideration.
b. Failure to Proffer Rebuttal DNA Expert
Mr. Squire also claims that trial counsel was ineffective in failing to proffer an
expert witness to rebut the government’s expert, who testified that DNA in the
victim’s underwear belonged to Mr. Squire. He claims that the DNA evidence
presented by the government may have been corrupted by, among other things, “gaps
in the chain of custody of the ‘rape kit,’” Aplee. Supp. App. at 29, and that counsel’s
failure to put on a rebuttal expert resulted in prejudice. The district court ruled that
Mr. Squire waived this claim by failing to present it to the military courts, but he
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argues that he did raise this claim in his Grostefon brief. See United States v.
Grostefon, 12 M.J. 431, 436 (C.M.A. 1982) (permitting military defendants to submit
issues on appeal pro se even if defense counsel believes such issues are meritless).4
Mr. Squire’s Grostefon brief did not raise an ineffective-assistance claim based
on trial counsel’s failure to put on a rebuttal expert witness. Rather, he argued a
different theory—that trial counsel was ineffective for failing to question “the
government’s DNA expert on the possibility of transference of DNA matter from
[Mr. Squire’s] underwear to [the victim’s] underwear while it was sitting in a clothes
hamper.” Aplt. App., Vol. 3 at 188 (capitalization omitted). He also challenged the
reliability of the DNA evidence, arguing it was improperly tested, but he did not
argue that counsel was ineffective for not making that argument. See id. at 187-88.
These claims, while perhaps somewhat similar to Mr. Squire’s present theory, do not
assert that counsel was ineffective for failing to put on a rebuttal DNA expert. See
Bland v. Sirmons, 459 F.3d 999, 1012 (10th Cir. 2006) (holding that a state prisoner
cannot exhaust his federal habeas claim by presenting a “somewhat similar” claim in
state court (internal quotation marks omitted)). The ACCA summarily rejected those
arguments and all other Grostefon issues, see Aplt. App., Vol. 4 at 226, after full and
fair consideration, see Watson, 782 F.2d at 145 (“When an issue is briefed and argued
4
Mr. Squire does not contend that he raised this claim in his counselled appeal
brief to the ACCA, in which he advanced a different theory to challenge the DNA
evidence, namely, that the trial judge abused her discretion in admitting the DNA
evidence because there was “a fatal break in the chain of custody.” Aplt. App.,
Vol. 1 at 22 (capitalization omitted).
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before a military board of review, we have held that the military tribunal has given
the claim fair consideration, even though its opinion summarily disposed of the issue
with the mere statement that it did not consider the issue meritorious or requiring
discussion.”). But it did not consider Mr. Squire’s new claim that counsel was
ineffective for failing to proffer a rebuttal DNA expert. This claim, therefore, is
waived, and absent any argument for finding cause and prejudice, the district court
correctly denied it.
c. Failure to Challenge DNA Evidence
Mr. Squire’s third ineffective-assistance claim asserts that trial counsel was
deficient in failing to challenge the admission of the rape kit containing the victim’s
underwear. He maintains that the DNA evidence in the rape kit is unreliable because
there was no foundation establishing that the underwear actually belonged to the
victim. He also insists that despite “gaps in the handling and retention of the ‘rape
kit’ evidence,” Aplee. Supp. App. at 30, his counsel failed to object when the
government’s expert confirmed that Mr. Squire’s DNA was present in semen
collected from the underwear.5
The district court concluded that Mr. Squire had raised this claim, and the
ACCA had summarily rejected it, but we conclude that Mr. Squire waived it. His
brief to the ACCA claimed that trial counsel was ineffective for failing to put on
5
Although we offer no opinion on the merits of this claim, the ACCA noted
that counsel did object to the admission of the rape kit, apparently quite vigorously.
See Aplt. App., Vol. 4 at 224 n.5.
8
evidence that the victim recanted. In advancing that claim, he also made an
attenuated argument that the DNA evidence was unreliable. See Aplt. App., Vol. 1 at
47-48. But the claimed ineffectiveness was trial counsel’s failure to offer evidence
that the victim had recanted, not counsel’s failure to seek to exclude the DNA
evidence. Mr. Squire also challenged the reliability of the DNA evidence, but he
never claimed that trial counsel was ineffective for failing to make that argument.
See Hawkins v. Mullin, 291 F.3d 658, 668-69 (10th Cir. 2002) (holding that state
claim asserting trial-court error relating to mitigating evidence and separate claims of
ineffective assistance did not exhaust specific federal claim of ineffective assistance
relating to mitigating evidence). These distinct theories failed to preserve
Mr. Squire’s present claim of ineffective assistance based on counsel’s supposed
failure to challenge the DNA evidence. And even if any shared predicate for these
evolving theories could have preserved the claim, the district court correctly
recognized that the ACCA’s summary rejection of all Grostefon issues satisfies the
full and fair consideration standard. See Thomas, 625 F.3d at 672 (“We . . . decline
to presume a military appellate court has failed to consider all the issues presented to
it before making a decision.”).
2. Right to Confrontation
Mr. Squire also claimed the trial judge violated his right to confront the
child-victim by admitting into evidence statements she had made to two examining
physicians. After the assault, the victim’s mother brought the child to a military
hospital, where she was examined and referred to a civilian hospital for further
9
examination. At both locations, the victim told examining doctors that Mr. Squire
penetrated her with his penis. The ACCA discussed this claim at length, devoting
five pages of analysis to whether Mr. Squire’s confrontation rights had been violated.
Citing Crawford v. Washington, 541 U.S. 36 (2004), the ACCA concluded there was
no constitutional violation because the statements were non-testimonial. The ACCA
also ruled that even if the military judge had erred in admitting the statements
through one of the doctors, any error was harmless beyond a reasonable doubt, given
the findings of the DNA analysis. The CAAF affirmed in a detailed published
opinion. See Squire, 72 M.J. at 291. The military courts afforded this claim full and
fair consideration.
3. Right to Testify
Mr. Squire’s last claim alleges that his due process rights were violated when
his trial counsel denied him the right to testify on his own behalf. According to
Mr. Squire, he changed his mind after initially electing not to testify, but his attorney
declined to let him on the stand. Mr. Squire says the ACCA completely ignored this
claim, but we disagree. He raised this claim in his Grostefon brief, and although the
ACCA did not specifically discuss it, the court expressly stated that it considered the
entire record and the parties’ submissions, including the issues raised in the
Grostefon brief and at oral argument. The ACCA need not give “explicit detail” for
rejecting a claim presented to it. See Thomas, 625 F.3d at 671-72 (holding that the
ACCA afforded full and fair consideration even without oral argument or providing
any explanation for its dismissal). And we will not presume the court overlooked
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this claim. See id. at 672. Under the circumstances here, we are satisfied that the
military courts gave this claim full and fair consideration.
IV
The judgment of the district court is affirmed.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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