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Hurn v. Kallis

United States District Court, C.D. Illinois, Peoria Division

June 6, 2018

GLENN E. HURN, Petitioner,
v.
STEVE KALLIS, Respondent.

          ORDER & OPINION

          JOE BILLY MCDADE UNITED STATES SENIOR DISTRICT JUDGE.

         This 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.

         Background

         Petitioner 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 prison.

         Hurn 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.

         On 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).

         On May 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).

         In 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.

         On 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.

         The Government filed its Amended Response on February 27, 2018 (Doc. 10), and Hurn filed his Reply on May 30, 2018 (Doc. 16).[1] Thus, this matter is ripe for decision.

         Preliminary Procedural Considerations

         Typically, 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.

         However, 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)).

         Furthermore, 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 ...


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