NMCCA 2011 Opinion

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UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS WASHINGTON, D.C. Before C.L. REISMEIER, J.R. PERLAK, B.L. PAYTON-O'BRIEN Appellate Military Judges EDWIN A. EHLERS II SERGEANT (E-5), U.S. MARINE CORPS v. UNITED STATES OF AMERICA NMCCA 200800190 Review of Petition for Extraordinary Relief in the Nature of a Writ of Habeas Corpus Sentence Adjudged: 21 August 2007. Military Judge: Maj Brian Kasprzyk, USMC. Convening Authority: Commanding General, 1st Marine Division (REIN), Camp Pendleton,
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  UNITED STATES NAVY-MARINE CORPSCOURT OF CRIMINAL APPEALS   WASHINGTON, D.C.   Before   C.L. REISMEIER, J.R. PERLAK, B.L. PAYTON-O'BRIEN   Appellate Military Judges   EDWIN A. EHLERS II   SERGEANT (E-5), U.S. MARINE CORPS   v.   UNITED STATES OF AMERICA   NMCCA 200800190   Review of Petition for Extraordinary Relief in the Nature of aWrit of Habeas Corpus   Sentence Adjudged: 21 August 2007.  Military Judge: Maj Brian Kasprzyk, USMC. Convening Authority: Commanding General, 1st MarineDivision (REIN), Camp Pendleton, CA. Staff Judge Advocate's Recommendation: LtCol R.M. Miller,USMC. For Appellant: Pro se . 27 December 2011   ---------------------------------------------------   OPINION OF THE COURT---------------------------------------------------   THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED ASPERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2. PER CURIAM:A military judge, sitting as a general court-martial,convicted the petitioner, contrary to his pleas, of sodomy witha child under the age of 12 years, assault consummated by abattery on a child under the age of 16 years, and indecentliberties with a child under the age of 16 years, violations,respectively, of Articles 125, 128, and 134, Uniform Code ofMilitary Justice, 10 U.S.C. §§ 925, 928, and 934. Thepetitioner was sentenced to confinement for 25 years, forfeitureof all pay and allowances, reduction to pay grade E-1, and a  2 dishonorable discharge from the United States Marine Corps. Theconvening authority approved the sentence, but disapproved allconfinement in excess of 19 years in an act of clemency.In June 2009, this court affirmed the findings andsentence. United States v. Ehlers, No. 200800190, 2009 CCALEXIS 229, unpublished op. (N.M.Ct.Crim.App. 30 Jun 2009). InApril 2010, the Court of Appeals for the Armed Forces denied thepetitioner’s petition for grant of review. United States v.Ehlers , 69 M.J. 89 (C.A.A.F. 2010). The Supreme Court denied awrit of certiorari. Ehlers v. United States, 131 S. Ct. 536(2010). Direct appellate review is complete.The petitioner now seeks extraordinary relief from thiscourt in the form of a writ of habeas corpus claiming: (1) thecharges and specifications under Article 134 failed to state anoffense in light of United States v. Fosler  , 70 M.J. 225(C.A.A.F. 2011); (2) the petitioner’s Sixth Amendment speedytrial rights were violated by the delay between the firstallegations of misconduct and the trial; (3) the military judgeabused his authority by failing to dismiss the charges becausethe petitioner’s right against self-incrimination was violatedby a special agent interrogating the petitioner; (4) theprosecution withheld exculpatory evidence at trial; (5) themilitary judge’s findings were ambiguous; (6) the Naval CriminalInvestigative Service (NCIS) failed to follow establisheddirectives by failing to report the allegations at issue to theFamily Advocacy Program (FAP); and (7) an NCIS special agenttampered with evidence.After carefully considering the petition, the accompanyingdocuments , and this court’s prior decision, we conclude thatthe petitioner has failed to demonstrate that an extraordinarywrit is appropriate. We deny his petition. Discussion  This court has the authority to issue emergency writspursuant to the All Writs Act, 28 U.S.C. § 1651. Noyd v. Bond  ,395 U.S. 683 (1969). The writ at issue in this case is a writof habeas corpus . The All Writs Act authorizes “all courtsestablished by Act of Congress [to] issue all writs necessary orappropriate in aid of their respective jurisdictions . . . .”28 U.S.C. § 1651. The Act requires two separatedeterminations: first, whether the requested writ is in aidof a court's jurisdiction; and second, whether the requestedwrit is necessary or appropriate. See Denedo v. United   3 States , 66 M.J. 114, 120 (C.A.A.F. 2008), aff’d and remanded  ,  United States v. Denedo, 556 U.S. 904 (2009). Issuance of awrit is “a drastic remedy that should be used only in trulyextraordinary situations.” Aviz v. Carver  , 36 M.J. 1026, 1028(N.M.C.M.R. 1993) (citing United States v. LaBella , 15 M.J. 228(N.M.C.M.R. 1983)). The petitioner has the heavy burden ofshowing that he has “a clear and indisputable right” to theextraordinary relief that he has requested. Id  . A writ of habeas corpus orders the release of a petitioner because hisconfinement is either improper or illegal. Fisher v. Commander, 56 M.J. 691 (N.M.Ct.Crim.App. 2001).The petitioner makes the following arguments in support ofhis request for a writ. He claims, in essence: (1) that therule announced in Fosler  is retroactive; (2) that the passage oftime from the date of offense to date of trial wasConstitutionally unacceptable; (3) that in stating that he wasnot going to consider the petitioner’s election to terminate hisinterrogation and request counsel, the military judge ignoredthe petitioner’s “civil right,” necessitating dismissal ofcharges; (4) that the Government prevented an exculpatorywitness from testifying at trial, and failed to discloseexculpatory evidence in its possession; (5) that the militaryjudge should have specified the particular occasion on which thefindings were predicated, despite the fact that thespecifications did not allege on “divers” occasions; (6) that analleged administrative failure in involving FAP in thepetitioner’s investigation requires the remedy of dismissal ofthe charges; and (7) that an NCIS special agent violated thepetitioner’s rights, having admitted to the military judge thathe (the agent) did in fact mark upon the drawing offered asevidence. We are not persuaded that this set of circumstancesmerits an extraordinary writ.We briefly address each of the petitioner’s claims. As tohis first claim, Fosler  has no retroactive application. TheSupreme Court has held that a “‘habeas court need only apply theconstitutional standards that prevailed at the time the srcinalproceedings took place.’” Teague v. Lane . 489 U.S. 288, 306(1989) (quoting Desist v. United States, 394 U.S. 244, 262-63(1969)). The Supreme Court has identified two exceptions wherea new rule may have retroactive application during habeasreview: (1) where the new rule places private individual conductbeyond the power of criminal law-making authority; and (2) arule articulates fundamental procedures without which thechances for accurate conviction are severely diminished. Loving v. United States, 64 M.J. 132, 156 (C.A.A.F. 2006) (Effron, J.,  4 concurring in part and in the result) (citing Teague , 489 U.S.at 311-13). We do not believe that Fosler  falls into eithercategory. Even if it did, a petitioner’s failure to raise aclaim during prior proceedings constitutes a procedural defaultunless a petitioner “can show cause for the default andprejudice resulting therefrom.” Id  . (quoting Teague , 489 U.S.at 298). Petitioner did not raise this claim on direct appeal,and he has not articulated any reason in his petition for theomission.As to his second, accepting the dates the petitioneralleges at face value, the offenses occurred between 2002 and2003. They were reported in June of 2004. In April 2005, thepetitioner was interrogated, and in May 2005, he was polygraphedand interrogated again. The Article 32, UCMJ, hearing was heldin February 2007, and the petitioner was sentenced in August2007. Recognizing that pre-indictment or pre-charging delay maybe prejudicial, there is nothing in the petitioner’s submissionsto suggest that the delay at any stage in any way prejudicedhim. Barker v. Wingo, 407 U.S. 514, 532 (1972) (holding thatprejudice is one of the factors a court should consider whenexamining whether a defendant has been deprived hisconstitutional right to a speedy trial). We also note that theappellant failed to raise a speedy trial claim on direct appeal.Likewise, accepting the petitioner’s claim that themilitary judge acknowledged that the petitioner invoked hisright to terminate and to counsel during his NCIS interrogation,in this military judge-alone trial, we can discern no basis forrelief of any sort based on the petitioner’s complaint. “Amilitary judge is presumed to know the law and apply itcorrectly, is presumed capable of filtering out inadmissibleevidence, and is presumed not to have relied on such evidence onthe question of guilt or innocence.” United States v. Robbins, 52 M.J. 455, 457 (C.A.A.F. 2000).The petitioner’s allegation regarding an exculpatorywitness and exculpatory evidence is also unpersuasive. In hissubmission, the petitioner claims that the Government nevercalled RH, a witness to accusatory statements made by thevictim, claiming both that she was available at trial and flownto the situs to testify. It appears, however, that theGovernment did not call her, leading to the petitioner’scomplaint that he was denied the chance to confront her. Hefurther alleges that he was denied the chance to call RH as awitness himself, because he was not aware that RH would addressthe truthfulness of the allegations. We can discern neither a
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