United States District Court, C.D. Illinois, Peoria Division
GLENN E. HURN, Petitioner,
STEVE KALLIS, Respondent.
ORDER & OPINION
BILLY MCDADE UNITED STATES SENIOR DISTRICT JUDGE.
matter is before the Court on a Petition for Writ of Habeas
Corpus Under 28 U.S.C. § 2241 filed by Glenn Hurn. The
petition has been fully briefed. For the reasons stated
below, the petition is DENIED.
is currently incarcerated at the Federal Correctional
Institution in Pekin, Illinois. Sometime in 1997, Hurn was
convicted by general court-martial of rape, forcible sodomy,
indecent acts, 4 specifications of assault, and indecent
assault, all involving a child under 16 years of age, in
violation of Articles 120, 121, 125, 128, and 134, Uniform
Code of Military Justice, 10 U.S.C. §§ 920, 921,
925, 928, and 934. United States v. Hurn, 55 M.J.
446, 447 (C.A.A.F. 2001). Hurn was sentenced to life in
appealed his conviction to the U.S. Navy-Marine Corps Court
of Criminal Appeals asserting fifteen assignments of error,
only six of which were commented on by the appeals court: (1)
the military judge erred under Batson v. Kentucky,
476 U.S. 79 (1986) by granting the trial counsel's
peremptory challenge against the only non-Caucasian member of
the court-martial; (2) because Hurn suffered from a mental
disease or defect and was unable to appreciate the nature and
wrongfulness of his action, the evidence was factually
insufficient to sustain his conviction; (3) excessive
sentence; (4) the military judge erred when he denied
Hurn's motion for the services of a mitigation
specialist; (5) ineffective assistance of counsel for
counsel's failure to object to the denial of the
mitigation specialist; and (6) the military judge erred by
instructing the members that a personality disorder could not
constitute a severe mental disease or defect. The Court of
Criminal Appeals denied all six claims on the merits.
United States v. Hurn, 52 M.J. 629 (N-M. Ct. Crim.
App. 1999). The remaining nine assignments of error raised
ineffective assistance of counsel pursuant to U.S. v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), but the Court of
Criminal Appeals summarily held that those assignments had no
merit. Hurn, 52 M.J. at 630.
September 27, 2001, the U.S. Court of Appeals for the Armed
Forces set aside the decision by the U.S. Navy-Marine Corps
Court of Criminal Appeals. U.S. v. Hurn, 55 M.J.
446, 450 (C.A.A.F. 2001). It remanded the record to the Judge
Advocate General of the Navy for submission to a convening
authority to reconsider Hurn's Batson challenge.
Id. Following the military judge's finding on
remand that the subject peremptory challenge was
race-neutral, the U.S. Court of Appeals for the Armed Forces
affirmed Hurn's convictions and sentence. U.S. v.
Hurn, 58 M.J. 199 (C.A.A.F. 2003). Hurn filed a petition
for writ of certiorari with the United States Supreme Court,
which was denied on October 14, 2003. Hurn v. U.S.,
540 U.S. 949 (2003).
6, 2005, Hurn filed his first Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241 with the District of
Kansas arguing ineffective assistance of counsel for defense
counsel's failure to inform Hurn of his right to a speedy
trial and for his failure to file a motion for speedy trial
violations. Hurn v. McGuire, No. 04-3008, 2005 WL
1076100 (D. Kan. 2005). The District of Kansas dismissed
Hurn's petition because the military courts were
presented with and considered the issues raised in Hurn's
§ 2241 petition. Id. The Tenth Circuit affirmed
the district court's dismissal of Hurn's § 2241
petition. Hurn v. McGuire, No. 05-3206, 2006 WL
367846 (10th Cir. 2006).
December 2014, Hurn sent an Application for Correction of
Military Record to the Department of the Navy, Board for
Corrections of Naval Records (“BCNR”), asking
that his enlistment contract be declared void, that he not be
subject to the Uniform Code of Military Justice
(“UCMJ”) for the duration of his military
service, and that his court-martial proceedings be removed
from his Official Military Personnel File. (Doc. 8-2 at 4-5).
On July 18, 2016, the BCNR issued a decision denying
Hurn's application on the merits, even though Hurn's
application was untimely filed. Id. at 1-3. The
Board found “the evidence submitted was insufficient to
establish the existence of probable material error or
injustice.” Id. at 1. The Board determined
that Hurn's 1992 enlistment contract with the Marine
Corps was valid, that Hurn certified at the time of signing
that he understood its content and terms, and that he agreed
to subject himself to the UCMJ as a member of the Armed
forces. Id. at 2.
September 5, 2017, Hurn filed the instant § 2241
petition-his second one. (Doc. 1). By the instant Petition,
Hurn challenges (1) the BCNR's decision that Hurn's
Enlistment Contract was valid; (2) the BCNR's
determination that Hurn understood the Enlistment
Contract's terms and content; (3) the BCNR's
determination that Hurn agreed to subject himself to UCMJ as
a member of the Armed Forces; (4) the BCNR's
determination that Hurn's statements did not overcome the
presumption of regularity; (5) the BCNR's findings that
the evidence Hurn submitted was insufficient to establish the
existence of material error or injustice; and (6) the
BCNR's refusal to correct Hurn's record. (Doc. 2 at
1-2). He also argues that 10 U.S.C. § 802, Article
2(a)(b)(c) is unconstitutional “because it changes
Petitioner's legal status which deprives Petitioner of
Constitutional Rights and Article III procedural protections
constitutionally mandated in trials for purely civilian
offenses without due process.” Id. at 51.
Government filed its Amended Response on February 27, 2018
(Doc. 10), and Hurn filed his Reply on May 30, 2018 (Doc.
Thus, this matter is ripe for decision.
federal prisoners who wish to collaterally attack their
convictions or sentences ordinarily must do so under 28
U.S.C. § 2255. Brown v. Rios, 696 F.3d 638, 640
(7th Cir. 2012). Prisoners may petition under 28 U.S.C.
§ 2241 only in the rare circumstance in which the remedy
provided under § 2255 “is inadequate or
ineffective to test the legality of his detention.”
See 28 U.S.C. § 2255(e) (which is often
referred to as “the Savings Clause”). The Seventh
Circuit's decision in In re Davenport, 147 F.3d
605, 609-10 (7th Cir. 1998), articulated three conditions
that a petitioner must meet in order to file a § 2241
petition instead of a § 2255 motion. This case is
unique, however, because Hurn was convicted by court-martial.
The Court has not located any cases in this circuit that
address whether Petitioners who have been convicted in
military court must also meet the requirements of In re
Davenport to file a § 2241 petition, and the
Government does not address this issue in its response.
the Supreme Court has stated that petitions for writ of
habeas corpus pursuant to 28 U.S.C. § 2241 are a
permissible method for members of the United States Armed
Forces to seek federal civil court review of court-martial
convictions. Clinton v. Goldsmith, 526 U.S. 529, 537
n. 11 (1999) (“And of course, once a criminal
conviction has been finally reviewed within the military
system, and a service member in custody has exhausted other
avenues provided under the UCMJ to seek relief from his
conviction . . . he is entitled to bring a habeas corpus
petition, see 28 U.S.C. § 2241(c), claiming
that his conviction is affected by a fundamental defect that
requires that it be set aside.”); Burns v.
Wilson, 346 U.S. 137, 139 (1953); United States v.
Augenblick, 393 U.S. 348, 350 n. 3 (1969); see Tartt
v. Sec'y of Army, 841 F.Supp. 236, 238 (N.D. Ill.
1993) (“Habeas corpus relief is the
‘well-established and appropriate jurisdictional
route' for a federal court to review decisions by the
military that restrict the freedom of a member of the
service.”) (quoting Leonard v. Dep't of the
Navy, 786 F.Supp. 82, 87 (D. Me. 1992)).
at least two Circuit Courts of Appeals have held that 28
U.S.C. § 2241 is the only available avenue for
court-martial convicts to collaterally attack their
convictions. Section 2255 “is intended to be an avenue
of relief to be pursued before the court which imposed
sentence.” Witham v. United States, 355 F.3d
501, 505 (6th Cir. 2004). But courts-martial proceedings
“dissolve after the purpose for which they were
convened has been resolved. As a result, there is not a
sentencing court in which a military prisoner may bring a
§ 2255 motion.” Witham, 355 F.3d at 505;
Gilliam v. Bureau of Prisons, No. 99-1222, 2000 WL
268491, *1 (8th Cir. Mar. 10, 2000) (“Strictly
speaking, a person convicted in a court-martial proceeding
may not file a section 2255 challenge in the court of
conviction because, following conviction, that court ceases
to exist.”) (citing United States v. DuBay, 37
C.M.R. 411, 413 n. 2 (C.M.A.1967) (noting that, unlike the
civil courts, the court-martial structure does not allow for
consideration of collateral issues by the trial court));
see also Prost v. Anderson, 636 F.3d 578, 588 (10th
Cir. 2011) (“[R]esort to § 2241 is the norm rather
than the exception when ...