Cossio v. Air Force , 527 F. App'x 932 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOSE ANTONIO COSSIO, JR.,
Plaintiff-Appellant,
v.
Michael B. Donley, Secretary of the Air force, AND
Department of the Air Force,
Defendants-Appellees.
______________________
2012-1662
______________________
Appeal from the United States District Court for the
Northern District of Illinois in No. 11-CV-9178, Senior
Judge Harry D. Leinenweber.
______________________
Decided: July 10, 2013
______________________
JOSE ANTONIO COSSIO, JR., Forest View, Illinois, pro
se.
RYAN MAJERUS, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for defendants-appellees.
With him on the brief were STUART F. DELERY, Principal
Deputy Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and KENNETH M. DINTZER, Assistant Director.
Of counsel on the brief was TODI S. CARNES, Litigation
2 JOSE COSSIO v. AIR FORCE
Attorney, Air Force Genera Litigation Division, of Joint
Base Andrews, Maryland.
______________________
Before NEWMAN, BRYSON, and PROST, Circuit Judges.
PER CURIAM.
I
Jose Antonio Cossio, Jr., appeals the dismissal of his
claim for reinstatement into the Air Force—or, alterna-
tively, an honorable discharge—back pay, and other relief
pursuant to the Little Tucker Act, 28 U.S.C. § 1346(a)(2).
In 2004 Mr. Cossio was tried by court-martial and con-
victed of larceny, communicating a threat, computer
fraud, and identity fraud; he was acquitted of an addi-
tional threat charge. The charges stemmed from a series
of incidents in which Mr. Cossio diverted a fellow air-
man’s salary to a charity in Russia, illegally obtained that
airman’s social security number by using his government
computer, and threatened to “beat [the airman] into a
coma.”
During sentencing in the court-martial proceedings,
the court admitted records of disciplinary actions against
Mr. Cossio during his career, including two letters of
reprimand, a demotion under Article 15 of the Uniform
Code of Military Justice for violating a no-contact order,
and an Enlisted Performance Report detailing his disci-
plinary record. Following a December 2004 hearing, the
court sentenced Mr. Cossio to 10 months’ confinement, a
fine of $750, and a bad conduct discharge. Mr. Cossio
appealed to the Air Force Court of Criminal Appeals,
which affirmed his conviction and discharge. He then
appealed to the United States Court of Appeals for the
Armed Forces, which denied review. Later, Mr. Cossio
filed two petitions for a writs of error coram nobis before
the Air Force Court of Criminal Appeals. Both petitions
focused on the government’s alleged failure to disclose
records regarding the victim’s criminal record and other
JOSE COSSIO v. AIR FORCE 3
evidence relating to the victim’s credibility. Both times
the court rejected his arguments. The Court of Appeals
for the Armed Forces likewise denied Mr. Cossio’s peti-
tions for a writ of error coram nobis.
Following his release from confinement, Mr. Cossio
was court-martialed a second time, for separate conduct.
In that proceeding he pleaded guilty to conduct detri-
mental to good order and discipline. At sentencing, he
was permitted to present evidence rebutting the same
sentencing information that was admitted in his first
court-martial. The second court-martial resulted in a
sentence of time served.
After his discharge, Mr. Cossio initiated this action
before the United States District Court for the Northern
District of Illinois. In his complaint, he disputed the
merits of his prior reprimands and Article 15 demotion,
and he argued that the introduction of those disciplinary
records at his court-martial sentencing constituted a
denial of due process. He also alleged several other
constitutional violations relating to his conviction for
larceny and communication of a threat.
The district court dismissed Mr. Cossio’s complaint for
failure to state a claim upon which relief could be granted,
for two reasons. First, regarding his disciplinary record,
the court held that Mr. Cossio had failed to exhaust his
administrative remedies when he failed to object to the
admission of the sentencing exhibits or to press the issue
on appeal. Mr. Cossio argued that he had disputed the
merits of his past disciplinary actions before the Air Force
Board for Correction of Military Records in a 2005 pro-
ceeding, but the court noted that such a challenge could
not satisfy the exhaustion requirement because the Cor-
rection Board lacks the authority to overturn a court-
martial conviction or prohibit a court-martial from con-
sidering particular records in passing sentence; its role in
sentencing is limited to granting clemency. See Martinez
v. United States, 914 F.2d 1486, 1488 (Fed. Cir. 1990); 10
U.S.C. § 1552(f).
4 JOSE COSSIO v. AIR FORCE
Second, the court held that Mr. Cossio’s remaining al-
legations, even if proved, did not amount to a denial of
due process that would justify the grant of relief. His
challenges to his conviction, the court explained, all
received “full and fair consideration” by military courts.
The court noted that Mr. Cossio did not challenge the
underlying facts regarding his larceny charge. Because a
larceny conviction carries with it a maximum sentence of
dishonorable discharge and ten years of confinement, the
court concluded that Mr. Cossio’s sentence was not mani-
festly unfair.
Mr. Cossio appeals the dismissal of his claim to this
court.
II
Our review of court-martial decisions is sharply con-
strained. Mr. Cossio does not dispute that the court-
martial had jurisdiction to try him. Under those circum-
stances, “judgments by courts-martial, although not
subject to direct review by federal civil courts, may never-
theless be subject to narrow collateral attacks in such
courts on constitutional grounds.” Bowling v. United
States, 713 F.2d 1558, 1561 (Fed. Cir. 1983). The grounds
for collaterally attacking a court-martial must be “seri-
ous” and “demonstrate convincingly that in the court-
martial proceedings there has been such a deprivation of
fundamental fairness as to impair due process.” Id.
A
Mr. Cossio argues that he had no opportunity to dis-
pute the admission of his disciplinary record in the sen-
tencing phase of his court-martial. Under the Military
Rules of Evidence, he argues, he could challenge sentenc-
ing exhibits only for their completeness, relevance, or
similar defects. Therefore, he asserts, his action to correct
his military records before the Correction Board was his
first opportunity to challenge the admission of his disci-
plinary records, and he should not be deemed to have
waived his challenge to those records by not raising that
JOSE COSSIO v. AIR FORCE 5
challenge in the court-martial proceeding and subsequent
review by the military courts.
That argument is foreclosed by this court’s precedent.
A petitioner may “waive[] his constitutional claims by
failing to raise them at all in the military justice system.”
Martinez, 914 F.2d at 1488, quoting Cooper v. Marsh, 807
F.2d 988, 992 (Fed. Cir. 1986). Raising such claims before
the Correction Board is insufficient because the Board
“has no authority to void court-martial convictions.” Id.;
see 10 U.S.C. § 1552(f).
Mr. Cossio responds by characterizing his suit as a
challenge to the disciplinary records themselves and the
role they played in his discharge, not to the court-martial
conviction itself. In the alternative, he argues that any
objection to the admission of the exhibits would have been
futile, because he would not have been allowed to chal-
lenge the facts underlying the disciplinary actions in the
court-martial sentencing proceeding.
Even if we agreed with Mr. Cossio’s characterization
of his claim, his proposed distinction is unavailing. The
reasoning of Martinez clearly applies to court-martial
sentences as well as convictions. Just as the Board may
not overturn a conviction, it likewise has no authority to
amend sentencing judgments other than through a grant
of clemency. Id. § 1552(f)(2). And although Martinez
dealt specifically with a collateral attack on a conviction,
it applied the exhaustion requirement to any “constitu-
tional claim in the military court system,” not merely
constitutional claims pertaining to conviction. 914 F.2d at
1488. This court has held that “all dismissals and dis-
charges under sentences by courts-martial following
approval, review, or affirmation are final and conclusive,”
subject only to collateral attack. Bowling, 713 F.2d at
1560-61 (Fed. Cir. 1983). It would upset the finality of
court-martial decisions to permit a litigant to raise consti-
tutional objections to sentencing that were not presented
to the military trial and review tribunals. As for the
records themselves, a challenge before the Board “is
6 JOSE COSSIO v. AIR FORCE
merely ancillary to the discharge that the former service-
man is seeking to change” through collateral attack.
Hurick v. Lehman, 782 F.2d 984, 987 (Fed. Cir. 1986).
Recasting the claim as a dispute over sentencing records
cannot avoid the consequences of the waiver of claims not
raised during the court-martial proceedings. 1
Nor would it have been futile for Mr. Cossio to raise a
constitutional objection at sentencing. Rule for Court
Martial (R.C.M.) 1001(b)(2) states that “[i]f the accused
objects to a particular document as . . . not admissible
under the Military Rules of Evidence, the matter shall be
determined by the military judge. Objections not asserted
are waived.” Military Rule of Evidence 403, like its
counterpart in the Federal Rules of Evidence, provides
that “evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair preju-
dice, confusion of the issues, or misleading the members”
of the court-martial. Presumably, if Mr. Cossio had a
viable claim that the submission of his disciplinary record
would violate his constitutional rights, the resulting
prejudice would have provided him with grounds to object.
Moreover, if he could have shown that some of his past
disciplinary actions were conducted according to proce-
dures that violated his constitutional rights, and therefore
that his record was misleading or unfairly prejudicial, he
could have objected. If he had raised his constitutional
claims at that time and the military courts had refused to
consider them, he would have preserved those claims for
later review, but he did not.
B
Aside from his challenge to the evidence introduced at
sentencing, Mr. Cossio argues that the court-martial
1 The government notes that Mr. Cossio’s complaint
links his arguments against his discharge to his argu-
ments against the sentencing exhibits.
JOSE COSSIO v. AIR FORCE 7
wrongly convicted him of larceny and of communicating a
threat. However, Mr. Cossio does not contend that the
court-martial proceeding was constitutionally flawed, and
he has therefore not shown a basis for a collateral attack
on his convictions.
Mr. Cossio argues that the Air Force Court of Crimi-
nal Appeals failed to give “full and fair consideration” to
his coram nobis petition alleging the government failed to
disclose the victim’s criminal record. Mr. Cossio charac-
terizes that failure as a deprivation of due process under
Brady v. Maryland, 373 U.S. 83 (1963). The court reject-
ed that argument, noting that Mr. Cossio could not estab-
lish prejudice because evidence of “the petitioner’s guilt
. . . is overwhelming.” United States v. Cossio, 2008 WL
513520 (A.F. Ct. Crim. App. Feb. 15, 2008). We may not
second-guess that determination. See Burns v. Wilson,
346 U.S. 137, 142 (1953). Moreover, “the writ of error
coram nobis is an extraordinary writ; and an extraordi-
nary remedy . . . should not be granted in the ordinary
case.” United States v. Denedo, 556 U.S. 904, 917 (2009).
Mr. Cossio has fallen far short of demonstrating that the
denial of coram nobis relief deprived him of due process.
In his reply brief, Mr. Cossio argues that his convic-
tion for larceny, computer fraud, and communication of a
threat were so legally and factually defective as to deny
him due process. He argues that, although he stole funds
from the victim, he did not commit larceny because the
funds he took represented a debt that victim owed him.
With respect to the threat charge, Mr. Cossio argues that
the victim testified that he did not feel that Mr. Cossio
would injure him, and therefore Mr. Cossio’s conduct did
not legally amount to a threat. Taken together, Mr.
Cossio argues, these factual deficiencies suggest that his
conduct did not meet the legal definition of larceny or
communication of a threat. In turn, he contends, this
legal insufficiency rendered his court-martial fundamen-
tally unfair, in violation of his constitutional rights.
8 JOSE COSSIO v. AIR FORCE
This court may not reweigh the evidence or otherwise
review the factual determinations of the court-martial.
Burns, 346 U.S. at 142. Whether the victim owed Mr.
Cossio a debt and, if so, whether Mr. Cossio used unlawful
means to recover that debt, are questions of fact. Wheth-
er the victim felt endangered by Mr. Cossio’s words, and
in any event whether Mr. Cossio had a “present determi-
nation or intent to injure” the victim, United States v.
Holiday, 16 C.M.R. 28 (1954), are also factual questions.
Those questions were all properly for the court-martial
proceeding to resolve. At bottom, Mr. Cossio is simply
recasting his factual disagreement with the outcome of
the court-martial proceeding as a constitutional claim.
AFFIRMED
COSTS
No costs.