PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-6626

JOSEPH M. WARD, III, Captain (0-3) U.S. Air Force,

Petitioner – Appellant,

v.

UNITED STATES OF AMERICA,

Respondent – Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O’Grady, Senior District Judge. (1:18-cv-00569-LO-MSN)

Argued: September 8, 2020 Decided: December 10, 2020

Before KING and FLOYD, Circuit Judges, and Thomas S. KLEEH, United States District Judge for the Northern District of West Virginia, sitting by designation.

Affirmed by published opinion. Judge King wrote the opinion, in which Judge Floyd and Judge Kleeh joined.

ARGUED: Captain Brian Lee Mizer, AIR FORCE APPELLATE DEFENSE DIVISION, Joint Base Andrews, Maryland, for Appellant. Matthew James Mezger, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: G. Zachary Terwilliger, United States Attorney, John E. Swords, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. KING, Circuit Judge:

In these

proceedings, Joseph M. Ward III petitioned in the Eastern

District of Virginia for habeas corpus relief from his military court convictions and

sentence, claiming violations of his Fifth Amendment right to due process and Sixth

Amendment right to the effective assistance of counsel. The district court dismissed

Ward’s § 2241 petition under Federal Rule of Civil Procedure 12(b)(1) for lack of

jurisdiction over the due process claim and under Rule 12(b)(6) for failure to state a

plausible ineffective assistance claim. See Ward v. United States, No. 1:18-cv-00569 (E.D.

Va. Mar. 27, 2019), ECF No. 10 (the “Dismissal Order”). As explained below, we affirm

the dismissal of Ward’s § 2241 petition but recognize that Rule 12(b)(6) is the proper basis

for the dismissal of both claims.

I.

A.

The record reflects that Ward, then a Captain in the Air Force, was charged with

nine violations of the Uniform Code of Military Justice, including two specifications of

aggravated sexual assault, two specifications of forcible sodomy, three specifications of

assault consummated by battery, and two specifications of conduct unbecoming an officer

and a gentleman. The charged crimes involved two women — referred to herein as “M.W.”

and “R.S.” — who had been dating Ward in 2011 and 2012 when he allegedly victimized

them. Although M.W. and R.S. disclosed that they had numerous consensual sexual

encounters with Ward, they also accused him of various acts of sexual assault.

2 In December 2012, Ward was tried by a general court-martial at Davis-Monthan Air

Force Base in Arizona. The prosecution presented evidence that M.W. had reported to

Ward’s command earlier that year that Ward was engaging in threatening behavior against

her (conduct that did not include sexual assault). Shortly thereafter, R.S. separately went

to Ward’s command and requested a “no-contact” order against him. Pressed to explain

why she was seeking the order, R.S. divulged that Ward had sexually assaulted her.

Because of R.S.’s allegations, military investigators set up an interview with M.W., in

which she revealed that she also had been sexually assaulted by Ward. Under the

prosecution’s theory of the case, R.S. and M.W. were credible because — despite not

knowing each other — their allegations against Ward were quite similar. The defense

countered with a theory, however, that R.S. and M.W. actually were acquainted and

conspired to falsely accuse Ward of sexual assault to punish him for being unfaithful to

and then scorning each of them.

Over Ward’s objection, the military judge instructed the jurors that, if one charged

act of sexual assault was proved by at least a preponderance of the evidence, that act could

be used as propensity evidence when considering other sexual assault charges. See J.A.

196-97. 1 That propensity instruction was based on a pattern instruction in the then-

applicable 2006 version of the Military Judges’ Benchbook, addressing how a jury could

use propensity evidence under Military Rule of Evidence 413, entitled “Similar Crimes in

1 Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by the parties in this appeal.

3 Sexual Offense Cases.” Precedent of the Court of Appeals for the Armed Forces suggested

that the propensity instruction was proper. See United States v. Burton,

, 152-

53 (C.A.A.F. 2009); United States v. Wright,

(C.A.A.F. 2000). And,

“at that time, the common understanding of the law [among the trial judges and the lower

military courts of criminal appeals] was that charged misconduct could be used as

propensity evidence under [Rule] 413.” See United States v. Hukill,

(C.A.A.F. 2017). The judge in Ward’s court-martial proceedings instructed, inter alia, that

“proof of one [charged] sexual assault creates no inference that the accused is guilty of any

other sexual assault. However, it may demonstrate that the accused has a propensity to

commit that type of offense.” Id. at 197.

The prosecutor referenced the propensity instruction in his closing arguments,

explaining that “here’s what it boils down to: If you believe that [Ward committed] one of

those [charged] sexual assaults . . . to a preponderance of the evidence, but it doesn’t meet

that beyond a reasonable doubt, you can still use that for another offense to show that he

has a propensity to commit sexual assaults.” See J.A. 202. The prosecutor elaborated:

So you can think, “Well, I think [Ward] did it. I think he committed the assault against [M.W.], but it doesn’t rise to the level of beyond a reasonable doubt, but I still think he did it.” You can actually use that for the sexual assault alleged against [R.S.] That’s an important instruction for you guys to consider because these charges, these victims, it didn’t happen in a vacuum. And so this evidence can be used in a very important way.

Id. at 202-03.

Ultimately, however, the prosecutor emphasized in his closing arguments that the

case turned on the joint credibility of M.W. and R.S. That is, the prosecutor argued that

4 the jurors would either believe both women because of their similar accounts of sexual

assault and convict Ward on all nine charges, or the jurors would doubt the women’s

credibility based on Ward’s theory of a conspiracy and acquit him on all charges. See J.A.

228-30. Ward’s defense counsel then pronounced in his closing arguments that “I agree

that this case is about credibility of [M.W. and R.S.]. And I agree that it’s essentially an

all-or-nothing case.” Id. at 250. Thereafter, the members of the court-martial convicted

Ward on all charges and sentenced him to eight years of confinement.

Although Ward’s counsel had repeatedly stated his objection to the propensity

instruction during the court-martial proceedings, he failed to raise any challenge to that

instruction on direct appeal. By its decision of October 23, 2014, the Air Force Court of

Criminal Appeals rejected the appellate issues presented by Ward and confirmed his

convictions and sentence. The Court of Appeals for the Armed Forces denied review of

that decision by its order of February 18, 2015.

B.

On June 27, 2016, more than a year after Ward’s losing efforts to overturn his

convictions on direct appeal, the Court of Appeals for the Armed Forces decided in United

States v. Hills that a propensity instruction like the one given during Ward’s court-martial

proceedings constituted a misuse of Military Rule of Evidence 413 and a breach of the

defendant’s Fifth Amendment right to due process. See

(C.A.A.F.

2016). With respect to the constitutional error in giving the instruction, the Hills court

reasoned that allowing the use of charged conduct as propensity evidence to prove other

charges “violated [the defendant’s] presumption of innocence and right to have all findings

5 made clearly beyond a reasonable doubt.”

at 356 (citing In re Winship,

(1970); Coffin v. United States,

(1895)). In the court’s words,

“[i]t is antithetical to the presumption of innocence to suggest that conduct of which an

accused is presumed innocent may be used to show a propensity to have committed other

conduct of which he is presumed innocent.”

Within the next year, the Court of Appeals for the Armed Forces reiterated its Hills

holding in its May 2, 2017 decision in Hukill. The Hills and Hukill decisions explained

that, on direct appeal, an improper propensity instruction is subject to harmless error

review. See Hills,

(“If instructional error is found when there are

constitutional dimensions at play, the appellant’s claims must be tested for prejudice under

the standard of harmless beyond a reasonable doubt.” (alteration and internal quotation

marks omitted)); accord Hukill,

. The propensity instructions in Hills and

Hukill were determined to be prejudicial; in direct appeals in the military courts since then,

similar instructions have been deemed prejudicial in some circumstances and harmless in

others.

On July 12, 2017, a then-imprisoned Ward filed a petition in the Air Force Court of

Criminal Appeals for a writ of error coram nobis, invoking the Hills and Hukill decisions

and asserting that the propensity instruction given during his court-martial proceedings

contravened his Fifth Amendment right to due process. On September 20, 2017, while

Ward’s coram nobis petition was pending, the court of criminal appeals issued its decision

in Lewis v. United States,

(A.F. Ct. Crim. App. 2017), denying the coram nobis

6 petition of another prisoner who claimed under Hills and Hukill that a propensity

instruction was unconstitutional.

Favorably to the petitioner, the Air Force Court of Criminal Appeals recognized in

Lewis that it has “jurisdiction over a petition for a writ of coram nobis alleging an earlier

judgment of conviction previously reviewed by this court was flawed in some fundamental

respect.” See 76 M.J. at 833. For support, the Lewis court invoked the precedent of

Chapman v. United States,

(A.F. Ct. Crim. App. 2016). The Chapman decision

explained that — although, unlike federal district courts, the Air Force Court of Criminal

Appeals lacks jurisdiction over habeas corpus petitions — it possesses jurisdiction over

coram nobis petitions. See 75 M.J. at 600-01 (citing United States v. Denedo,

(2009)). 2

After confirming its jurisdiction over the coram nobis petition, however, the Lewis

court proceeded to rule that the petitioner failed to satisfy the threshold requirements for

relief. See 76 M.J. at 834. As outlined in Chapman, such requirements include that “no

remedy other than coram nobis is available to rectify the consequences of the error” and

that “the sentence has been served, but the consequences of the erroneous conviction

2 In its Denedo decision, the Supreme Court observed that “coram nobis is . . . an extraordinary tool to correct a legal or factual error” and that “an application for the writ is properly viewed as a belated extension of the original proceeding during which the error allegedly transpired.” See

. The Court also explained that “[b]ecause [a] request for coram nobis is simply a further step in [the petitioner’s] criminal appeal, the . . . jurisdiction [of a military court of criminal appeals] to issue the writ derives from the earlier jurisdiction it exercised to hear and determine the validity of the conviction on direct review.”

(internal quotation marks omitted).

7 persist.” See 75 M.J. at 601 (internal quotation marks omitted). The Lewis petitioner failed

to satisfy those requirements, the court explained, because he “remain[ed] in confinement”

and thus was “eligible to seek a writ of habeas corpus from a federal district court.” See

76 M.J. at 834.

Finally, in apparent dicta, the Air Force Court of Criminal Appeals observed in its

Lewis decision that “[e]ven if [the petitioner] met the threshold requirements for coram

nobis relief, his petition would fail on the issue of retroactive application of Hills.” See 76

M.J. at 834. The Lewis court provided a lengthy explanation of why it interpreted Hills to

announce a new rule of criminal procedure that was not a watershed rule and therefore

“would [not] apply retroactively to [the petitioner’s] case.” See id. at 834-36 (assessing

retroactivity of Hills under principles of Teague v. Lane,

(1989) (plurality

opinion)).

On September 21, 2017, the day after it issued its decision denying the coram nobis

petition in Lewis, the Air Force Court of Criminal Appeals entered an order summarily

denying Ward’s coram nobis petition. The order simply cited the Lewis decision, as well

as the Chapman decision on which Lewis relied.

Following the denial of his coram nobis petition by the Air Force Court of Criminal

Appeals on the basis of Lewis and Chapman, Ward appealed to the Court of Appeals for

the Armed Forces. By its one-sentence order of November 13, 2017, that court denied

Ward’s appeal without explanation or citation to any authority, including Lewis or

Chapman. Notably, in a decision issued that same day in another case, United States v.

8 Gray, the court disclaimed jurisdiction over the coram nobis petition at issue therein. See

, 6 (C.A.A.F. 2017).

C.

On May 10, 2018, Ward filed his habeas corpus petition under

in

the Eastern District of Virginia, where he is now on parole. In support of his Fifth

Amendment due process claim, Ward contends — like he did in his coram nobis petition

in the military courts — that the propensity instruction given during his court-martial

proceedings contravened his right to due process, as subsequently recognized by the Court

of Appeals for the Armed Forces in its Hills and Hukill decisions. With respect to his Sixth

Amendment ineffective assistance claim, which he did not raise in the military courts,

Ward asserts that his counsel was constitutionally ineffective in failing to challenge the

propensity instruction on direct appeal before Hills and Hukill were decided.

The government filed a motion to dismiss Ward’s § 2241 petition on February 19,

2019, and the district court granted that motion by its Dismissal Order of March 27, 2019.

The district court dismissed the Fifth Amendment due process claim under Federal Rule of

Civil Procedure 12(b)(1) for lack of jurisdiction, on the ground that the claim was fully and

fairly considered by a military court. The court relied on the Supreme Court’s decision in

Burns v. Wilson,

(1953), for the proposition that “[w]hen a military court has

‘fully and fairly’ considered the issues raised in a federal habeas petition, ‘it is not open to

a federal civil court to grant the writ simply to re-evaluate the evidence.’” See Dismissal

Order 3 (quoting Burns,

). The district court reasoned that the Air Force

Court of Criminal Appeals fully and fairly considered Ward’s due process claim by

9 dismissing it pursuant to that court’s Lewis decision, in that Lewis “held, albeit in dicta,

that the rule announced in Hills did not apply retroactively on collateral review.”

As

the district court explained its ruling, “[b]ecause [Ward’s] Hills arguments have . . . already

been fully and fairly considered by a military court, this Court lacks jurisdiction to

reconsider them.”

(internal quotation marks omitted).

Next, the district court dismissed the Sixth Amendment ineffective assistance claim

under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. In so

doing, the court recognized that Ward was obliged to “allege facts that, if true, would

establish that (a) his appellate counsel’s representation fell below ‘an objective standard of

reasonableness’ and (b) ‘there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of’ his direct appeal ‘would have been different.’” See

Dismissal Order 3-4 (quoting Strickland v. Washington,

(1984)).

Without reaching the prejudice prong, the court then concluded that Ward’s ineffective

assistance claim fails on the performance prong. Specifically, the court determined that

although Ward’s counsel objected to the propensity instruction at trial, “counsel did not act

unreasonably in failing to re-raise [Ward’s] preserved objections [on direct appeal].” Id.

at 4. In its analysis, the court observed that counsel generally has no duty to raise a

frivolous issue or even all colorable claims on appeal. Id. The court also emphasized that

“until the [Court of Appeals for the Armed Forces] decided Hills after [Ward’s] direct

appeal had become final, military appellate court precedent held that evidence of charged

offenses of sexual assault could properly be used as propensity evidence under Military

10 Rule of Evidence 413.” Id. (citing three decisions issued by military courts of criminal

appeals after Ward’s direct appeal concluded and prior to Hills).

Ward timely noted this appeal from the district court’s Dismissal Order. We possess

jurisdiction pursuant to

.

II.

Our review of the district court’s dismissal of Ward’s

petition is

de novo. See Willenbring v. United States,

(4th Cir. 2009) (“We review

de novo the legal rulings made by a district court in habeas corpus proceedings.”). We

begin with the dismissal of the Fifth Amendment due process claim and then turn to the

dismissal of the Sixth Amendment ineffective assistance claim.

A.

At the outset, we recognize that the district court erred in characterizing its dismissal

of Ward’s Fifth Amendment due process claim as a dismissal under Federal Rule of Civil

Procedure 12(b)(1) for lack of jurisdiction. See Dismissal Order 3 (relying on Burns v.

Wilson,

(1953)). That is because, as the Supreme Court explained in its Burns

decision, § 2241 “vests federal courts with jurisdiction over applications for habeas corpus

from persons confined by the military courts.” See

. Although the Burns

Court did caution that a military court decision that “has dealt fully and fairly with an

allegation in [the § 2241] application” is “‘final’ and ‘binding’ upon all courts,” the Court

emphasized “that this does not displace the civil courts’ jurisdiction.” Id. at 142. Stated

another way, the federal court possesses jurisdiction over the § 2241 petition but “cannot

11 review” claims “fully and fairly reviewed” by the military courts. See United States v.

Willenbring,

(4th Cir. 2006).

In any event, if the district court properly determined that Ward’s Fifth Amendment

due process claim was fully and fairly considered by a military court, then the dismissal of

that claim is appropriate under Rule 12(b)(6) for failure to state a claim upon which relief

can be granted. Ward offers several arguments as to why his due process claim was not

accorded full and fair consideration by a military court, including the following:

● Contrary to the Dismissal Order, the Air Force Court of Criminal Appeals cannot have fully and fairly considered Ward’s due process claim by relying on mere dicta — i.e., the dicta in Lewis v. United States,

(A.F. Ct. Crim. App. 2017), indicating that the rule of United States v. Hills,

(C.A.A.F. 2016), is not retroactively applicable in coram nobis proceedings;

● The Air Force Court of Criminal Appeals also cannot have fully and fairly considered Ward’s due process claim in reliance on Lewis’s principal ruling that coram nobis relief is unavailable to a petitioner eligible to seek a writ of habeas corpus from a federal court, as the district court’s resultant inability to entertain the claim would leave Ward “in limbo,” see Br. of Appellant 15; and

● By denying Ward’s appeal in the coram nobis proceedings on the same day that it issued its decision disclaiming jurisdiction over the coram nobis petition in United States v. Gray,

(C.A.A.F. 2017), the Court of Appeals for the Armed Forces evidenced that it denied Ward’s appeal for lack of jurisdiction and therefore did not fully and fairly consider his due process claim.

Without unnecessarily delving into those complicated issues, we conclude that the

Rule 12(b)(6) dismissal of Ward’s Fifth Amendment due process claim is proper for a

reason readily apparent from the record: The propensity instruction given during Ward’s

court-martial proceedings was insufficiently prejudicial to entitle him to habeas corpus

12 relief. Simply put, Ward cannot satisfy the heavy “burden of demonstrating that [the

propensity] instruction was so prejudicial that it . . . by itself so infected the entire trial that

the resulting conviction[s] violate[] due process.” See Henderson v. Kibbe,

(1977) (internal quotation marks omitted).

As heretofore recounted, the prosecution presented an “all-or-nothing case” that

hinged on the joint credibility of Ward’s two victims. The jury’s primary reason for

believing the women was the similarity of their accounts of being sexually abused by Ward,

and the jury’s principal basis for doubting the women was Ward’s theory that they

conspired to falsely accuse him of sexual assault. In these circumstances, it is improbable

that the jury believed one of the women beyond a reasonable doubt but not the other and

then relied on the propensity instruction to convict Ward on all charges. Accordingly, it is

questionable whether the propensity instruction would be deemed prejudicial under even

the harmless error standard applied by the military courts in direct appeals. See Hills,

; see also United States v. Hukill,

(C.A.A.F. 2017). To be

sure, Ward cannot demonstrate that the propensity instruction was sufficiently prejudicial

to entitle him to habeas corpus relief.

B.

For similar reasons, we conclude that the Rule 12(b)(6) dismissal of Ward’s Sixth

Amendment ineffective assistance claim is proper. Notably, Ward contests the district

court’s ruling that his ineffective assistance claim fails on the performance prong of

Strickland v. Washington,

(1984); specifically, Ward argues that because

other lawyers were challenging similar instructions during the relevant time period, his

13 counsel acted unreasonably in failing to raise the propensity instruction as an issue on direct

appeal. We need not reach and address the merits of that contention, however, because

Ward’s claim clearly fails on Strickland’s prejudice prong. See

(requiring

“a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different”). As we explained in affirming the dismissal of

Ward’s Fifth Amendment due process claim, the propensity instruction may well have

constituted harmless error under Hills and Hukill. Thus, Ward cannot show a reasonable

probability that a challenge to the propensity instruction on direct appeal would have been

successful.

III.

Pursuant to the foregoing, we affirm the dismissal by the district court of the Eastern

District of Virginia of Ward’s habeas corpus petition under

.

AFFIRMED

14