UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MICHAEL R. HENRY, Petitioner, v. Civil Action No. 21-865 (CKK) 1 FRANK KENDALL III, United States Secretary of the Air Force, Respondent.

MEMORANDUM OPINION (August 3, 2022)

Petitioner Michael R. Henry (“Petitioner”) was convicted by a general court-martial in

April 2015 of three charges relating to incidents of sexual assault. On appeal, his conviction for

one these charges was set aside due to an erroneous jury instruction. United States v. Henry,

, 606–09 (A.F. Ct. Crim. App. 2017) (“Henry I”), rev. denied without prejudice,

(C.A.A.F. 2017). A later rehearing acquitted him of this charge. Petitioner appealed again,

claiming that exculpatory evidence adduced at the rehearing should acquit him of the remaining

two charges, which had previously been affirmed and not remanded for rehearing. The United

States Air Force Court of Criminal Appeals rejected Petitioner’s argument, concluding that the

evidence presented at the rehearing did not differ significantly from the original court-martial

findings and that his prior convictions were neither clearly erroneous nor resulted in manifest

injustice. United States v. Henry, No. ACM 38886 (reh),

, at *2 (A.F. Ct. Crim.

App. Jan. 14, 2020) (“Henry II”).

1 Pursuant to Federal Rule of Civil Procedure 25(d), Secretary Kendall is automatically substituted as the respondent in this action.

1 Petitioner now seeks a writ of error coram nobis, claiming that the Air Force Court of

Criminal Appeals failed to review Petitioner’s convictions de novo in accordance with Article 66

of the Uniform Code of Military Justice (“Article 66”). Pet. at 10, ECF No. 2-1. Respondent

Frank Kendall, United States Secretary of the Air Force (“Respondent”) moves to dismiss under

Federal Rule of Civil Procedure 12(b)(6), arguing that Petitioner was entitled to only one Article

66 review of those charges, which Petitioner received in Henry I. Respondent also argues that, in

any event, the Air Force Court of Criminal Appeals did satisfy Article 66’s review standard in

Henry II.

Upon review of the pleadings, 2 the relevant legal authority and the record as a whole, for

the reasons below, the Court concludes that Petitioner has failed to establish that he is entitled to

the extraordinary remedy of a writ of error coram nobis. Accordingly, the Court GRANTS

Respondent’s [12] Motion to Dismiss and dismisses the Petition.

I. BACKGROUND

On April 23, 2015, Petitioner was convicted by a general court-martial of (1) rape and

sexual assault in violation of Article 120 of the Uniform Code of Military Justice (“UCMJ”)

(“Charge I”); (2) assault consummated by battery in violation of Article 128 (“Charge II”); and (3)

and communication of threats in violation of Article 134 (“Charge III”). Henry I,

.

The charges arose from a three-month relationship between Petitioner and “EW” in December

2 The Court’s consideration has focused on: x Petitioner’s Application for a Writ of in the Nature of Error Coram Nobis and Supporting Brief (corrected), (“Pet.”), ECF No. 2-1; x Memorandum of Points & Authorities in Support of Respondent’s Motion to Dismiss (“Resp’t’s Mot.”), ECF No. 12; x Petitioner’s Answer to Government’s Motion to Dimis (“Pet’r’s Opp’n”), ECF No. 13; and x Respondent’s Reply Memorandum in Further Support of Respondent’s Motion to Dismiss (“Resp’t’s Reply”), ECF No. 14. In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f).

2 2013.

According to the court-martial’s findings, after their breakup, Petitioner appeared at

EW’s parents’ house where he threatened EW, grabbed her neck, and raped her.

Petitioner

was initially charged with two specifications 3 of rape occurring approximately a week apart, but

prior to the arraignment, the Prosecution withdrew the second specification. Henry II,

, at *2. After being convicted on all three charges by the court-martial, Petitioner was

sentenced to seven years confinement, dishonorable discharge, forfeiture of all pay and

allowances, and reduction to E-1. Henry I,

.

Petitioner appealed to the Air Force Court of Criminal Appeals arguing that (1) the

evidence before the court martial was not legally or factually sufficient to sustain the rape and

sexual assault convictions and (2) the military judge’s instructions were erroneous. 4 Henry I,

. Petitioner challenged the instruction to the jury that it could consider previous

instances of sexual assault (not involving EW) as evidence of “propensity” if the jury determined

by a preponderance of evidence that the previous assault occurred.

. The Air Force Court

of Criminal Appeals concluded that this instruction erroneously permitted the court-martial to

convict Petitioner beyond a reasonable doubt using evidence applied under a preponderance of

evidence standard. See

. The court further reasoned that because the case “turned largely

on credibility,” it could not “say beyond a reasonable doubt that the instructions did not” “tip[ ]

the balance.”

Based on this error, the court “set aside” the trial court’s findings with respect

to Charge I and remanded this charge and Petitioner’s sentence to the convening authority, who

3 A specification is a “statement of charges against one who is accused of an offense, esp. a military offense.” Black’s Law Dictionary (11th ed. 2019). Where a charge sets forth an offense, a specification gives details to what the accused has done. That is, a military member can be charged with an offense with several specifications giving detail as to why that charge was brought. 4 Petitioner raised additional errors with the court-martial proceedings, which are not pertinent to the pending Petition and Motion to Dismiss. See Henry I,

.

3 later authorized a rehearing. 5

. In the same opinion, the Air Force Court of Criminal

Appeals affirmed the “findings of guilty” as to Charges II (assault consummated by battery) and

III (communication of threats).

On remand and in advance of the rehearing as to Charge I, Petitioner sought discovery

related to the second specification of rape that had been withdrawn prior to the first trial. Henry

II,

at *2–3. After the government indicated that it had “no information or

documents responsive to this request,” Petitioner filed a motion requesting “appropriate relief due

to the loss or destruction of ‘exculpatory’ evidence.” Id. at *3. Specifically, Petitioner claimed

that EW had made a statement to the prosecution “days before trial,” but no interview notes were

provided to Petitioner. Id. EW was called to testify at the hearing on Petitioner’s discovery

motion, during which the military judge asked her if “from her perspective, she had been consistent

with her description of the second event all along and maybe it somehow got misinterpreted, EW

said yes.” Id. The judge denied Petitioner’s motion, concluding that “there was no evidence that

the Government failed to provide exculpatory evidence in discovery” related to this withdrawn

specification. Id. There was evidence that “EW admitted . . that the second incident did not

involve rape, which must necessarily be somewhat inconsistent with other evidence that led to the

referral of the second rape specification involving EW. The military judge ruled the Defense

would have the full ability at the rehearing to explore all issues arising from any such

inconsistency.” Id.

The rehearing proceeded and resulted in Petitioner being acquitted of Charge I and

resentenced to 12 months of confinement, reduction to E-4, and a reprimand based on previous

5 The convening authority is “An officer (usu. a commanding officer) with the power to convene, or who has convened a court martial.” Black’s Law Dictionary (11th ed. 2019).

4 convictions on other charges. Id. at *1. The convening authority disapproved of the reprimand but

authorized the remaining components of the sentence. Id.

Petitioner again appealed to the Air Force Court of Criminal Appeals, contending that “new

evidence” related to EW’s credibility undermined the sufficiency of proof for his conviction for

Charges II and III that that had previously been affirmed. See id. In its review of Petitioner’s

second appeal, the Air Force Court of Criminal Appeals concluded “having considered all the

evidence presented, we find that the impact of the evidence adduced at the rehearing was not

significantly different, and our original decision finding [Petitioner’s] contention that the evidence

is not legally or factually sufficient to sustain these convictions to be without merit was neither

clearly erroneous nor a manifest injustice.” Id. at *2 (emphasis added). Therefore, the Air Force

Court of Criminal Appeals affirmed Petitioner’ conviction as to Charges II and III and the re-

sentencing. Id. at *1.

On May 21, 2020, the Court of Appeals for the Armed Forces denied to Petitioner a grant

of review in a one sentence opinion. United States v. Henry,

(2020).

Petitioner filed an Application for a Writ of Error Coram Nobis on March 31, 2021 in this

Court. He claims that “the [Air Force Court of Criminal Appeals] failed to complete a valid

jurisdictionally-required Art. 66, UCMJ factually sufficiency review.” Pet. at 7. Petitioner claims

that, on its second review (after the rehearing), the Air Force Court of Criminal Appeals failed to

review his conviction de novo as required under Article 66, UCMJ. Id.;

Art. 66.

He seeks a writ compelling the Air Force to revoke the orders executing the punitive discharge

and for this Court to forward the record of trial to the Judge Advocate General of the Air Force for

de novo review. Pet. at 3.

5 II. LEGAL STANDARDS

A. Federal Rule of Civil Procedure 12(b)(6)

Respondent moves to dismiss the Petition under Federal Rule of Civil Procedure 12(b)(6)

for failure to “state a claim upon which relief may be granted.” Fed. R. Civ. P. 12(b)(6). Resp’t’s

Mot. at 1. The factual allegations within a complaint, if accepted as true, must be sufficient to

“state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

(2007. “A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678. Courts “do not accept as true, however, the plaintiff’s legal conclusions or

inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in

U.S.,

, 314–15 (D.C. Cir. 2014).

B. Standard of Review of Military Court Decisions

As the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”)

has aptly summarized, the standard of review applicable to military court proceedings is “tangled.”

United States ex rel. New v. Rumsfeld,

(D.C. Cir. 2006) (“New II”). Indeed,

“two lines of precedent are relevant: the first deals with the ‘full and fair consideration’ standard

that applies for habeas review of court martials, and the second deals with the ‘void’ standard that

applies to collateral attacks on court martial proceedings by persons who are not in custody.”

Sanford v. United States,

(D.C. Cir. 2009). Ultimately, the Court must (1) “review

. . . the military court’s thoroughness in examining the relevant claims, at least where thoroughness

is contested”; and (2) take “a close look at the merits of the claim, although with some degree of

deference…”

.

6 In Burns v. Wilson, the Supreme Court directed that “when a military decision has dealt

fully and fairly with an allegation raised in that application, it is not open to a federal civil court to

grant the writ simply to re-evaluate the evidence.”

(1953) (emphasis added).

The D.C. Circuit has interpreted this “full and fair consideration standard” as granting the same

reviewability standard to military decisions as it would other state habeas cases. Kauffman v. Sec’y

of the Air Force,

(D.C. Cir. 1969). Soon after, the Supreme Court clarified the

review standard applicable to non-custodial petitioners, holding that “collateral relief from the

consequences of a court martial judgment is barred unless the judgment is ‘void.’” Oppermann v.

United States, Civil Action No. 06-1824 (EGS),

, at *4 (D.D.C. June 15, 2007)

(citing Schlesinger v. Councilman,

(1975)). The Supreme Court stated a

judgement is not deemed void “merely by error”; the defect must be fundamental. Schlesinger,

420 U.S. at 746–48.

The D.C. Circuit attempted to reconcile the differences between these standards of

deference in New II, expressing “serious doubt whether the judicial mind is really capable of

applying the sort of fine gradations in deference that the varying formulae may indicate.” New II,

. The Circuit explained that “a non-habeas review is if anything more deferential

than habeas review of military judgments.”

Because the court determined that the “void”

standard was more deferential than the full and fair consideration test, it reasoned that “a military

court’s judgment [for non-custodial petitioners] will not suffer such a defect if it satisfies Burns

fair consideration test.”

Therefore, if a military court’s judgment passes a Burns “fair

consideration” test for a non-custodial petitioner, it will also satisfy the “void judgment” standard

under Schlesinger.

7 In Sanford, the D.C. Circuit summarized the New II court’s analysis: “Although in New II

the court did not describe the exact degree of deference accorded to military courts, its analysis

suggests there are two steps in applying the ‘full and fair consideration’ standard: (1) a review of

the military court’s thoroughness in examining the relevant claims, at least where thoroughness is

contested; and (2) a close look at the merits of the claim, although with some degree of

deference[.]” Sanford,

.

III. DISCUSSION

Petitioner here seeks a writ of error coram nobis, which the Supreme Court has described

as an “extraordinary tool to correct a legal or factual error.” United States v. Denedo,

, 912–13 (2009). Federal courts have the authority to grant a writ of error coram nobis under

the All Writs Act,

. United States v. Williams,

(D.D.C.

2009). Whether to grant such “extraordinary” relief is a “decision committed to the discretion of

the Court.” United States v. Hansen,

(D.D.C. 1995). Petitioner contends

that he is entitled to this remedy because the Air Force Court of Criminal Appeals failed to apply

the correct standard of review to his conviction. For the reasons below, the Court concludes that

Petitioner has failed to establish that he is entitled to the extraordinary relief of a writ of error

coram nobis, and so the Court shall dismiss his Petition.

Plaintiff claims that the Air Force Court of Criminal Appeals failed to engage in the

appropriate review of his convictions, which is provided in Article 66 of the UCMJ. Pursuant to

Article 66(c), military courts of criminal appeals must “conduct a de novo review of legal and

factual sufficiency of the case.” United States v. Washington,

(C.A.A.F 2002)

(citing United States v. Cole,

(C.M.A. 1990)). In other words, “to sustain

appellant’s conviction,” the military appeals court “must find that the government has proven all

8 essential elements and taken as a whole, the parcels of proof credibly and coherently demonstrate

that appellant is guilty beyond a reasonable doubt.” United States v. Gilchrist,

(Army Ct. of Crim. App. 2005). In the present Petition for Writ of Error Coram Nobis, Petitioner

argues that he “has yet to receive an appellate factual review which is both plenary and de novo.”

Pet’r’s Opp’n at 2.

Petitioner contends that the Henry I review was not “plenary” because it did not consider

evidence “raised at the rehearing” for the obvious reason that such evidence was not yet on the

record. See Pet’r’s Opp’n at 2. In other words, he argues that he was entitled to a de novo review

of Charges II and III (which were affirmed in Henry I) in Henry II due to “new, exculpatory

evidence regarding EW’s credibility” resulting from the rehearing as to Charge I. Pet. at 12. In

Henry II, the Air Force Court of Criminal Appeals noted that although Article 66 entitled Petitioner

to a “plenary review,” it entitled him “only . . . . to one such review.” Henry II,

at *4 (citing United States v. Smith,

(C.A.A.F. 1995)). The court explained that

it had conducted such a plenary review as to Charges II and III in Henry I, and therefore was not

required by Article 66 to conduct a second “plenary review” as to those two previously-affirmed

charges. Id. at *2.

Petitioner argues that the court’s reliance on Smith for this proposition was misplaced. Pet.

at 12–13. In Smith, the accused was convicted of larceny and the decision was remanded by the

appellate court after a review pursuant to Article 66. Smith,

. On remand, a new

appellate defense counsel briefed two additional issues not previously considered and not under

the scope of the remand.

The court in Smith found that although these issues were novel and

not previously subject to a review pursuant to Article 66, the accused had already received an

9 Article 66 review and the court did not have to consider any new issues raised outside the scope

of the remand.

.

Petitioner distinguishes the posture of case from Smith, arguing that the issues on remand

in Smith dealt with a potential conflict of interest with the appellant’s counsel and “had no relation

to the guilt or innocent of the Smith appellant.” Pet. at 12. Petitioner claims that, in contrast,

evidence adduced during the rehearing about Charge I was “highly exculpatory” and relevant to

the factual record to affirm Charges II and III, necessitating another review under Article 66.

at 12–13. However, Petitioner does not cite any legal authority supporting his argument that the

reasoning of Smith should not apply based on this distinction. Although he makes broad references

to the fact that a rehearing is a continuation of the original hearing, this argument does not explain

why the military appellate court would have been required to re-review the evidence pertaining to

charges it previously affirmed (and for which it had already conducted an Article 66 review).

Moreover, as Respondent notes, “just because Petitioner had a rehearing on [C]harge I, this did

not automatically negate the sufficiency of evidence that supported his convictions for [C]harges

II and III,” because those latter charges “were not presented to members for findings at the

rehearing.” Resp’t’s Mot. at 13.

Assuredly, the Air Force Court of Criminal Appeals in Henry I did grant the review

required under Article 66. In Henry II, the Air Force Court of Criminal Appeals writes, “Generally,

[Petitioner] is entitled to one plenary review under Article 66, UCMJ,

. In Henry

I, we affirmed the factual sufficiency of the assault consummated by a battery [Charge II] and

communication of a threat [Charge III] convictions.” Henry II,

at *2. The Henry

I court analyzed the factual and legal record. The panel recounted the charges, claiming “the

victim’s testimony was powerful” but “the evidence was not free from conflict.” Henry I, at 609.

10 It detailed inconsistencies in the evidence including evidence that Petitioner and EW had engaged

in “rough sex,” the lack of physical evidence to EW’s door, and the contradiction between a nurse’s

testimony to vaginal trauma and lack of corroborating, photographic evidence. Ultimately, the

panel concluded that “[t]his case largely turned on the credibility and resulted in mixed findings

with respect to [the] alleged victims.”

After reviewing the entirety of the factual and legal

sufficiency, the Henry I panel determined erroneous jury instructions were not harmless.

Ultimately the court remanded Charge I yet still affirmed Charges II and III—the charges in

question here—while reviewing the factual sufficiency. Id. at 598. In sum, the Court agrees with

the Air Force Court of Criminal Appeals and Respondent that Petitioner received an Article 66

review as to Charges II and III in Henry I—which affirmed the findings of guilt as to those charges.

He was not, therefore, entitled to a second “plenary review” on his second appeal after the

rehearing as to those charges.

Even though the Henry II court properly noted that Petitioner was not entitled to a second

Article 66 review, the court did consider the factual sufficiency of those charges, explaining:

Ordinarily we would decline to revisit this issue. However, we choose to revisit the factual sufficiency of the previously affirmed offenses based on the unique facts and circumstances involved in this case. Having considered all of the evidence presented, we find that the impact of the evidence adduced at the rehearing was not significantly different, and our original decision finding Appellant’s contention that the evidence is not legally or factually sufficient to sustain these convictions to be without merit was neither clearly erroneous nor a manifest injustice.

Henry II,

, at *2 (emphasis added). In sum, the Air Force Court of Criminal

Appeals indicates that it did consider “all the evidence presented” in affirming the two charges

that it had previously affirmed in Henry I.

11 Petitioner claims that the court in Henry II applied the “law-of-the-case doctrine” instead

of Article 66’s “plenary review.” The law-of-the-case doctrine directs that “a court should not

normally reconsider a decision unless it was clearly erroneous and would work a manifest

injustice.” Henry II,

at *4 (citing United States v. Riley,

(C.A.A.F. 1999)). This standard is more deferential; it requires a court to continue to govern the

same issues in a later stage of a case as it did before. See Arizona v. California,

(1983). The court in Henry II stated the “law-of-the-case doctrine, however, is a matter of

appellate policy, not a binding legal doctrine. Because the law-of-the-case doctrine is

discretionary, it need not be applied when the lower court’s decision is ‘clearly erroneous and

would work a manifest injustice.’” Henry II,

at *4 (citing United States v.

Parker,

, 464–65 (C.A.A.F. 2006)). In sum, the law-of-the-case doctrine requires a

court to adhere to prior decisions in later stages of a case as long as that adherence would not be

clearly erroneous or work a manifest injustice.

The court in Henry II followed the law of the case doctrine, adhering to Henry I’s decision

to affirm Charges II and III. However, because of the “unique facts and circumstances involved

in this case” the Air Force Court of Criminal Appeals still decided to review the factual sufficiency

of the entire record to determine if the lower court’s decision would be “clearly erroneous or work

a manifest injustice” before following the law of the case doctrine. Henry II,

at

*2, *4. In other words, the court in Henry II engaged in a factual sufficiency review of the entire

record to determine whether applying the law of the case doctrine was appropriate.

Indeed, the Henry II’s review of the factual sufficiency of Petitioner’s charges is evident

in its opinion. The court reviewed the testimony on the record throughout the opinion. Id. at *5

(“We reviewed the testimony prior to our original opinion and again for the appellate review.”).

12 It described the circumstances surrounding EW’s testimony, stating “[o]ne of the named victims,

EW, was unwilling to participate in the rehearing until two weeks prior to the scheduled start date,

five months after Appellant was arraigned. This fact, along with contested discovery is integral to

our analysis of the errors Appellant alleges.” Id. at *1 (emphasis added). The court noted that EW

was a “reluctant participant from the outset” and specifically discussed her credibility regarding

this unwillingness to participate. Id. at *1–2. The court also analyzed the withdrawn offense in

detail and how that affected the charges as whole—noting, for example, that “[t]here was evidence

that EW admitted then, and admits now, that the second incident did not involve rape, which must

necessarily be somewhat inconsistent with other evidence that led to the referral of the second rape

specification involving EW.” Id. Throughout the opinion, the court in Henry II reviewed the

factual sufficiency of EW’s testimony and ultimately how that informs their analysis of whether

to apply the law of the case doctrine in its decision to set aside or affirm Charges II and III.

Petitioner argues that “[t]he law of the case doctrine has no place in [the] court’s factual

sufficiency review” and that “[a] court conducting a factual sufficiency review does not apply the

law of the case doctrine because the law of the case doctrine only deals with questions of law.”

Pet. at 11. Petitioner cites a Texas State Appellate court for this proposition that the law of the

case doctrine only applies to question of law and not facts and would therefore fail the standard

for review under Article 66. However, the court in Henry II applied the law-of-the-case doctrine

only after reviewing the factual and legal record. It would appear that if a court applied an entire

factual sufficiency review as required under Article 66, but did so in determining if a decision was

clearly erroneous as in this instance, this would still satisfy the Article 66 standard. In Henry II,

the Air Force Court of Criminal Appeals did precisely this where after a factual sufficiency review

of the testimony, they write, “[h]aving examined the record of trial and making allowances for not

13 having personally observed the witnesses, we find the decision of a previous panel of this court

was neither clearly erroneous not worked a manifest injustice.” Henry II,

at *5.

Therefore, because the appellate court in Henry II reviewed the entire record in making its decision

to apply the law of the case doctrine, this satisfies the review standard for Article 66.

Petitioner seeks the “extraordinary remedy” of a writ of error coram nobis based on his

claim that he did not receive the proper review under Article 66. An accused member is entitled

to only one Article 66 review, and Petitioner in the Air Force Court of Criminal Appeals in Henry

I clearly granted him this. Even if the circumstances of this case required another review pursuant

to Article 66 after his rehearing, Petitioner was granted this yet again when the Air Force Court of

Criminal Appeals in Henry II reviewed the entire factual record and again affirmed Charges II and

III. For these Petitioner’s Application for a Write of Error Coram Nobis will be dismissed.

IV. CONCLUSION

For the foregoing reasons, the Court shall GRANT Respondent’s Motion to Dismiss and

shall order that Petitioner’s Application for a Writ of in the Nature of Error Coram Nobis be

dismissed. An appropriate Order accompanies this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge Date: August 3, 2022

14