Forbes v. Harker

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LAMAR A. FORBES,
Petitioner,
v. No. 21-cv-2175 (DLF)
CARLOS DEL TORO et al.,1
Respondents.
MEMORANDUM OPINION
Lamar Forbes brings a petition for a writ of habeas corpus against Secretary of the Navy
Carlos Del Toro and President of the Naval Clemency and Parole Board Randall Lamoureux, Dkt.
1. Before the Court is the respondents’ Motion to Dismiss, Dkt. 18. For the reasons that follow,
the Court will grant the motion.
I. BACKGROUND
Forbes, who was diagnosed with HIV in 2012, had sexual intercourse with four women
between 2013 and 2015. Pet. ¶¶ 20–25. According to Forbes, his “viral load” was “undetectable”
in two separate tests in April 2013 and April 2014. Id. ¶¶ 22–25. For engaging in “unprotected
sexual intercourse with four different women without telling any of the women that he was HIV-
positive,” Forbes was charged before a general court-martial with four specifications of sexual
assault under Uniform Code of Military Justice (UCMJ) Article 120, four specifications of assault
consummated by a battery under UCMJ Article 128, and one specification of violating the
federally assimilated Virginia law of infected sexual battery law under UCMJ Article 134. United
1
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carlos Del Toro, the Secretary
of the Navy, has been substituted for Thomas Harker as respondent.
States v. Forbes, 77 M.J. 765, 767–68 (N-M. Ct. Crim. App. 2018) (citing 10 U.S.C. §§ 920, 928,
934).2 Forbes pleaded guilty to all charges, and the government withdrew the charge of assault
consummated by a battery as well as one of the specifications of sexual assault. Id. at 767. Forbes
was sentenced to eight years’ confinement, reduction of paygrade, and dishonorable discharge. Id.After his guilty plea and conviction, Forbes appealed to the U.S. Navy-Marine Corps Court
of Criminal Appeals. In relevant part, the court concluded that for purposes of the sexual assault
charge, “an HIV-positive individual commits an offensive touching, and therefore bodily harm,
when he engages in sexual intercourse without first informing his partner of his HIV status.” Id.
at 771 (relying on United States v. Gutierrez, 74 M.J. 61, 63 (C.A.A.F. 2015)); see 10 U.S.C.
§ 920(b)(1)(B), (g)(3) (2018). The court thus rejected Forbes’s related arguments that the sexual
assault specifications failed to state an offense and that Forbes’s consequent guilty pleas were
based on erroneous legal standards. Id. at 769–73. The Court of Appeals for the Armed Forces
affirmed, see United States v. Forbes, 78 M.J. 279 (C.A.A.F. 2019), and later denied Forbes’s
petition for reconsideration, United States v. Forbes, 78 M.J. 374 (C.A.A.F. 2019).
Forbes then filed this habeas petition under 28 U.S.C. § 2241. Forbes is now, and was at
the time he filed his petition, on supervised release. The respondents move to dismiss Forbes’s
petition on two grounds. First, they argue that Forbes has no viable claim for habeas relief against
them because they are not proper respondents under the “immediate custodian” rule. Mot. at 9–
14; see Dufur v. U.S. Parole Comm’n, 34 F.4th 1090, 1096–97 (D.C. Cir. 2022) (citing Rumsfeld
v. Padilla, 542 U.S. 426, 435 (2004)). Second, they argue that the petition fails because the
military tribunals “fully and fairly considered [Forbes’s] claims” or Forbes’s arguments were
2
Forbes was also charged with and convicted of making a false official statement under UCMJ
Article 107, 10 U.S.C. § 907. He does not challenge that specification here. Pet. ¶ 26 n.2.
2
otherwise not properly presented in military proceedings. Mot. to Dismiss at 14–25; see Burns v.
Wilson, 346 U.S. 137, 142 (1953).
II. ANALYSIS
A. Jurisdiction
As an initial matter, this Court has jurisdiction over both the subject matter and over
respondent Lamoureux.3 See Kaplan v. Cent. Bank of the Islamic Rep. of Iran, 896 F.3d 501, 510
(D.C. Cir. 2018) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998)).
Under 28 U.S.C. § 2241, the Court has subject-matter jurisdiction over a habeas action if
the petitioner is in “custody under or by color of the authority of the United States” or “in violation
of the Constitution or laws or treaties of the United States.” Id. § 2241(c)(1), (3); see Ramsey v.
U.S. Parole Comm’n, 840 F.3d 853, 859 n.2 (D.C. Cir. 2016) (citing United States ex rel. New v.
Rumsfeld, 448 F.3d 403, 406 (D.C. Cir. 2006)).4 Forbes currently is on supervised release for his
court-martial convictions, which renders him “in custody” within the meaning of the habeas
statute. See Banks v. Gonzales, 496 F. Supp. 2d 146, 149 (D.D.C. 2007); see also Ramsey, 840
F.3d at 859 n.2. The respondents contend that, although Forbes is concededly “in custody” for the
purposes of his petition, they are not the proper respondents for this action because neither is
Forbes’s “immediate custodian.” Mot. at 13 (citing Padilla, 542 U.S. at 439). But even assuming
that the respondents are correct, the court would still not be deprived of jurisdiction. Although the
D.C. Circuit has in the past suggested that a court lacks jurisdiction over the petition where the
3
In his opposition, Forbes argues only that Lamoureux is “the correct respondent” in this action.
Opp’n at 2, Dkt. 19. Accordingly, the Court will dismiss the petition as to respondent Del Toro
on that basis.
4
No party suggests that the Court lacks subject-matter jurisdiction in this case, but the Court has
an “independent duty” to confirm its jurisdiction. Attias v. Carefirst, Inc., 865 F.3d 620, 623 (D.C.
Cir. 2017).
3
immediate custodian of a petitioner is not in the territorial jurisdiction covered by the court, see
Rooney v. Sec’y of the Army, 405 F.3d 1029, 1032 (D.C. Cir. 2005), it has since expressly held that
the immediate custodian rule is not an issue of subject-matter jurisdiction, see Dufur, 34 F.4th at
1096–97; see also Padilla, 542 U.S. at 434 n.7 (explaining that the term “habeas jurisdiction” in
this context refers not to the subject-matter jurisdiction of a court but rather to the § 2241(a)
remedial limitation that district courts may grant the writ only territorially “within their respective
jurisdictions”).
The Court also has personal jurisdiction over the President of the Naval Clemency and
Parole Board, Randall Lamoureux, whose undisputed “principle place of duty” is in Washington,
D.C. Pet. ¶ 9. Although the respondents in part purport to bring their motion to dismiss the petition
under Rules 12(b)(2) and (3), they never argue that the Court lacks personal jurisdiction over them
or that they should have been sued in another venue.5 Instead, the respondents contend that Forbes
has no cognizable claim for habeas relief against them—here or elsewhere—because neither
respondent is Forbes’s immediate custodian. See Mot. at 9–14. Were Forbes to bring an action
against the proper custodian, the respondents say, the Court would then “lack[] personal
jurisdiction over that individual.” Id. at 6. But there is no dispute that the Court has the “power
to consider a case” against Lamoureux because he is subject to the jurisdiction of this Court.
Kaplan, 896 F.3d at 510. The Court will thus turn to the merits.6
5
The D.C. Circuit has stated that the immediate custodian rule “implicates personal jurisdiction
. . . [and] venue,” Dufur, 34 F.4th at 1097 (emphasis added); see also Ramsey, 540 F.3d at 859 n.2,
but that does not mean that a habeas action against an improper respondent over whom the Court
does have jurisdiction fails on those grounds. The Circuit used this language instead to clarify that
the immediate custodian rule does not implicate subject-matter jurisdiction. Dufur, 34 F.4th at
1097.
6
The Court need not address the argument that the petition fails to comply with the immediate
custodian rule for two reasons: first, any such failure does not deprive the Court of subject-matter
4
B. Article 120 Conviction
Forbes first contends that the sexual assault specifications under Article 120 fail to state
offenses under the UCMJ, and that his guilty pleas were accordingly improvident based on
incorrect elements, because HIV non-disclosure by someone like Forbes does not cause “bodily
harm” to a sexual partner. Pet. at 11–25, 27–30. These arguments, however, cannot support
Forbes’s petition because they were “fully and fairly” considered by the military courts. Burns,
346 U.S. at 142.
It is undisputed that Forbes, who is on supervised release, remains “in custody” for habeas
purposes and that habeas standards govern this proceeding. See Mot. at 11. In general,
“[c]onvicted servicemembers who are still in custody may seek habeas review of their court-
martial proceedings.” Scott v. United States, 351 F. Supp. 3d 1, 7 (D.D.C. 2018) (cleaned up).
The Supreme Court has described “habeas review of military judgments . . . as no less deferential
than habeas review of state court judgments.” New, 448 F.3d at 407. In habeas proceedings, “‘[i]t
is the limited function of the civil courts to determine whether the military have given fair
consideration’ to each claim raised by petitioners.” Id. (quoting Burns, 346 U.S. at 144); see id.
at 410 (finding “fair consideration” even in a military judge’s “summary disposition” where a
or personal jurisdiction, see supra; and second, the Court will dismiss the petition on other
grounds.
It is unclear how the immediate custodian rule applies in the supervised release context.
Traditionally, habeas petitions were a tool available to remedy only actual “present physical
confinement.” Padilla, 542 U.S. at 435. As noted above, however, in more recent years, the
Court’s “understanding of custody has broadened to include restraints short of physical
confinement.” Id. at 437. To the extent that the immediate custodian rule applies in this context,
it is unclear here whether the Parole Board, see Guerra v. Meese, 786 F.2d 414, 417 (D.C. Cir.
1986) (suggesting that after parole, “the Parole Commission might then be considered the[]
custodian[] within the meaning of the habeas corpus statute”), or the Commanding Officer of
Naval Consolidated Brig Charleston assigned “administrative control” over Forbes, see Mot. at
11, would be his “immediate custodian.” The Court will refrain from reaching this open issue.
5
claim was “weak”); see also Sanford v. United States, 586 F.3d 28, 32 (D.C. Cir. 2009) (noting
the New court’s reliance on whether the military court “reasonably found” certain conclusions or
had any “fundamental defect[s] in its proceedings” (quoting New, 448 F.3d at 409–10)).
Here, the military courts thoroughly evaluated Forbes’s arguments about whether an HIV-
positive person commits sexual assault within the meaning of then-current Article 120 by having
unprotected sex without disclosing his HIV status to his partner. Noting that the case was one “of
first impression,” the U.S. Navy-Marine Corps Court of Criminal Appeals began by tracing the
history of charging theories for nonconsensual potential exposure to HIV. Forbes, 77 M.J. at 769.
The court principally relied on Gutierrez, 74 M.J. 61, which the court read to hold that “engaging
in otherwise-consensual sexual activity without telling [a] partner[] that [one has] HIV” is an
“offensive touching to which [a] sexual partner[] [does] not provide meaningful informed
consent.” Forbes, 77 M.J. at 769 (second quotation quoting Gutierrez, 74 M.J. at 68). In
considering whether Forbes’s pleas were provident, the court first rejected Forbes’s arguments that
the plea was questionable “because the military judge relied exclusively on Gutierrez.” Id. at 770.
The court probed in detail the jurisprudential roots of Gutierrez and then noted that in any event it
“d[id] not have the discretion to depart” from the binding precedent of the U.S. Court of Appeals
for the Armed Forces. Id. at 771; see also Sanford, 586 F.3d at 34 (holding that the Marine Corps
Court “gave ‘full and fair consideration’ to [a claim] in light of the fact that its resolution was
predetermined by binding precedent”). After examining the language used by the military judge
and determining that it comported with statutory requirements, the court then addressed whether
the holding of Gutierrez—a general assault case under Article 128—applied to sexual assault
under Article 120. Forbes, 77 M.J. at 771–72. The court reasonably concluded that, given that
“the only difference between Gutierrez and [the] case [was] that . . . a ‘sexual act’ [was] an
6
additional element,” “offensive touching” and “bodily harm” had the same meaning under each
provision. Id. For the same reasons, the court determined that Forbes’s arguments as to failure to
state an offense were meritless. Id. at 772–73. On appeal, the U.S. Court of Appeals for the Armed
Forces then confirmed that a finding of sexual assault here was consistent with its holding in
Gutierrez, and it affirmed the conviction in full. Forbes, 78 M.J. at 281–82.
Forbes does not contend that the military courts’ analyses were unduly cursory or
insufficiently attentive to his claims. Instead, he proposes an alternate definition of the full and
fair consideration test, arguing that the test merely forbids “civilian courts” from “re-weigh[ing]
the evidence” as to factual issues; they may still grant relief, Forbes says, if “the military courts
did not apply proper legal standards.” Opp’n at 10, Dkt. 19. To support his proposed test, Forbes
relies exclusively on out-of-circuit authority, see id. at 9–10 (citing Dodson v. Zelez, 917 F.2d
1250, 1252–53 (10th Cir. 1990)), and ignores the D.C. Circuit’s discussion in New and Sanford,
which rejected a “de novo” test as to a military court’s conclusions of law. Sanford, 586 F.3d at
32; see New, 448 F.3d at 406–08. The Court is thus unpersuaded.
Forbes further argues that the full and fair consideration test does not apply here because
the alleged failure of the sexual assault specifications to state an offense is “jurisdictional.” Opp’n
at 4. Traditionally, as the U.S. Court of Appeals for the Tenth Circuit has explained, “civil review
of court-martial proceedings was limited” exclusively to “the question of jurisdiction.” Fricke v.
Sec’y of the Navy, 509 F.3d 1287, 1289 (10th Cir. 2007). It was only in the mid-twentieth century
in Burns, 346 U.S. 137, that “the Supreme Court extended the scope of civil review of court-martial
proceedings, holding that civil courts could consider constitutional claims regarding such
proceedings if the military courts had not ‘dealt fully and fairly’ with such claims.” Fricke, 509
F.3d at 1289; see also Edwards v. Vannoy, 141 S. Ct. 1547, 1567–68 (2021) (Gorsuch, J.,
7
concurring) (explaining that until the 1950s, federal courts could not revisit a final judgment of
conviction in a state court unless the court had acted “without jurisdiction”). But this doctrinal
background counsels against, not in favor of, abandoning the deferential standard of review here
because Forbes’s arguments are not jurisdictional in nature. Forbes erroneously asserts that “[i]f
a charge fails to allege an offense under the UCMJ, a court-martial lacks jurisdiction to try it.”
Opp’n at 4. The case he cites, however, United States v. Humphries, 71 M.J. 209, 213 (C.A.A.F.
2012), states precisely the opposite. The Humphries court explained that earlier Supreme Court
precedent had mandated that “where an indictment was found defective for failing to list all
elements of an offense, it was necessarily dismissed on jurisdictional grounds.” Id. at 212–13
(citing Ex parte Bain, 121 U.S. 1, 13–14 (1887)). It then noted that the Supreme Court has since
brought more discipline to its use of the term “jurisdictional”—and overruled Bain—by
specifically holding that failure to allege elements of an offense in an indictment is not a
jurisdictional defect. Id. at 213. Specifically, in United States v. Cotton, 535 U.S. 625, 630–31
(2002), the Court rejected an “elastic concept of jurisdiction” in favor of one defined by “a court’s
power to hear a case” and explained that “the objection that [an] indictment does not charge a
crime against the United States goes only to the merits of the case.” Id. at 631 (cleaned up).
Because there was no dispute that the court-martial had jurisdiction over the defendant and the
offense, and because the “defects in [the] specification [were] raised for the first time on appeal,”
the Humphries court determined that the same type of arguments Forbes raises here had been
forfeited and the conviction could be reversed only for plain error. Humphries, 71 M.J. at 213 &
n.4 (citing Cotton, 535 U.S. at 631–32). Thus, Humphries only supports the conclusion that
Forbes’s arguments about the correct interpretation of Article 120 do not relate to the jurisdiction
of the military tribunals that adjudicated his plea and appeals.
8
Finally, Forbes contends that the military courts’ holding amounted to an impermissible ex
post facto change in the law. But this argument appears to be no different from the one that the
military courts rejected—that the correct interpretation of the relevant UCMJ provisions is the one
Forbes proposed, rather than the one the courts reached in his case. Accord Opp’n at 7–8 (arguing
that Forbes preserved his ex post facto argument by contending in his military court proceedings
that his interpretation was correct and consistent with case law). To the extent Forbes tries to raise
a new argument beyond that, it was not properly raised before the military courts. In “[m]ilitary
courts, like most civilian courts,” a failure to timely object results in procedural default of a claim;
as in review of state court convictions, that default is excusable on habeas review only upon “a
showing of cause and prejudice.” Kendall v. Army Bd. for Correction of Military Records, 996
F.2d 362, 366 (D.C. Cir. 1993); see generally Wainwright v. Sykes, 433 U.S. 72 (1977). Any new
argument is thus not properly before the Court here absent a showing of cause and prejudice, which
Forbes has not attempted to demonstrate.7
Because the military court fully and fairly considered Forbes’s arguments about bodily
harm and offensive contact, and because of the “nonjurisdictional status of defective
specifications,” Humphries, 71 M.J. at 213, Forbes raises no viable ground for habeas as to his
sexual assault convictions.
C. Article 134 Conviction
Forbes also challenges his conviction under UCMJ Article 134, which makes punishable
“‘crimes and offenses not capital’ that are ‘not specifically mentioned’ in the UCMJ,” United
States v. Wheeler, 77 M.J. 289, 291 (C.A.A.F. 2018) (quoting 10 U.S.C. § 934), and “which
7
Forbes erroneously cites the plain-error standard, which applies for review of unpreserved errors
on direct appeal. See Opp’n at 8–9.
9
include, inter alia, crimes and offenses prohibited by the United States Code,” id. (cleaned up).
Forbes was charged under Article 134 on the theory that he violated the Assimilative Crimes Act
(ACA), 18 U.S.C. § 13, which in turn incorporates into the Federal Criminal Code “any act or
omission” in a federal enclave which, “although not made punishable by any enactment of
Congress, would be punishable if committed or omitted within the jurisdiction of the State . . . in
which such place is situated.” Id. § 13(a). Forbes is alleged to have violated the ACA by
committing infected sexual battery in violation of Virginia Code Ann. § 18.2-67.4:1(b). Pet. at
30–31. In his petition, Forbes argues that the ACA does not incorporate that Virginia statute
because Congress has already “passed a battery-type statute which includes within its ambit the
intentional exposure of other persons to a risk of HIV transmission,” id. at 32 (citing 18 U.S.C.
§ 113), and that even if it does, prosecuting the ACA offense under Article 134 “violates the
preemption doctrine” of the UCMJ because it would be easier to prosecute than crimes under
Articles 118 and 120, id. at 33.
Forbes does not contest that he failed to raise these arguments in his military appeals or
that such failure would ordinarily be a bar to relief in this Court; instead, he suggests that they
must be reviewed regardless because the asserted errors are, again, “jurisdictional.” Opp’n at 6.
For that proposition, he cites United States v. Robbins, 52 M.J. 159 (C.A.A.F. 1999), which
summarily held that such a defect is “jurisdictional” because “[i]f the [state] offense was
improperly assimilated, it was not cognizable by a court-martial.” Id. at 160. But to the extent
that Robbins suggests that Forbes’s claims are jurisdictional, its holding is abrogated by Cotton
and Humphries. Forbes was not charged with violating Virginia Code § 18.2-67.4:1(b). Rather,
he was charged with violating UCMJ Article 134. His argument is that Article 134 does not apply
to the charged conduct—either because other UCMJ provisions imply as much, or because Article
10
134 does not incorporate (through the Assimilative Crimes Act) Virginia’s infected sexual battery
statute. That is, his argument is that for one of those two reasons, the charge “failed to state an
offense” under the UCMJ. Pet. at 32; see also Opp’n at 7 (citing United States v. Costianes, ACM
38868, 2016 WL 4191236, at *1 (A.F. Ct. Crim. App. 2016) (“The basis for the preemption
doctrine is the principle that, if Congress has occupied the field for a given type of misconduct,
then an allegation under Article 134, UCMJ, fails to state an offense.”)).8 Failure to state an
offense, however, is not a jurisdictional defect, as it does not “deprive a court of its power to
adjudicate a case.” Cotton, 535 U.S. at 630; see Humphries, 71 M.J. at 212–13; supra at 7–8. The
Court thus rejects Forbes’s argument that his claim is jurisdictional and holds that it is procedurally
defaulted. See Kendall, 996 F.2d at 366.
CONCLUSION
For the foregoing reasons, the Court grants the respondents’ motion to dismiss. A separate
order consistent with this decision accompanies this memorandum opinion.9
________________________
DABNEY L. FRIEDRICH
United States District Judge
December 5, 2022
8
Although the Air Force Court of Criminal Appeals, citing pre-Humphries precedent, has stated
that preemption is “a question of subject-matter jurisdiction,” Costianes, 2016 WL 4191236, at *1
(adhering to United States v. Jones, 66 M.J. 704, 706 (A.F. Ct. Crim. App. 2008)), that court has
not reconciled its holding with Humphries. The reasoning in Costianes runs directly contrary to
that in Humphries, and its summary conclusion is not persuasive.
9
In a conclusory sentence of his brief in opposition, Forbes asks the Court to grant summary
judgment in his favor. But Forbes has not complied with any of the procedural requirements for
moving for summary judgment, and for the reasons stated, the Court agrees that his petition must
be dismissed.
11