            U NITED S TATES N AVY –M ARINE C ORPS
                C OURT OF C RIMINAL A PPEALS
                             _________________________

                                 No. 201600191
                             _________________________

                     UNITED STATES OF AMERICA
                                      Appellee
                                          v.

                            BRIAN C. LEONARD
              Electrician’s Mate Third Class (E-4), U.S. Navy
                                 Appellant
                          _________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary

        Military Judge: Captain David M. Harrison, JAGC USN.
         For Appellant: Commander R.D. Evans, Jr., JAGC, USN.
       For Appellee: Lieutenant Commander Justin C. Henderson ,
       JAGC, USN; Lieutenant Megan P. Marinos, JAGC, USN.
                        _________________________

                           Decided 29 September 2016
                            _________________________

Before C AMPBELL , R UGH , and H UTCHISON , Appellate Military Judges
                        _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                       _________________________

HUTCHISON, Judge:

   At special court-martial, a military judge convicted the appellant,
consistent with his pleas, of two specifications of assault consummated by
battery in violation of Article 128, Uniform Code of Military Justice, (UCMJ)
10 U.S.C. § 928.1 The military judge sentenced the appellant to four months’

   1  A charge and two specifications alleging violations of Article 120, UCMJ, 10
U.S.C. § 920 were referred to special court-martial on 6 October 2015. Pursuant to a
pretrial agreement, the convening authority agreed to withdraw and dismiss that
charge and refer only the current charge. Appellate Exhibits I, II, and III.
                       United States v. Leonard, No. 201600191


confinement, reduction to pay grade E-1, forfeiture of $1,044.00 pay per
month for four months, and a bad-conduct discharge. The convening
authority (CA) approved the sentence as adjudged.
   The appellant now alleges as error that he suffered illegal post-trial
punishment.2 We disagree, find no error materially prejudicial to the
appellant’s substantial rights, and affirm the findings and sentence. Arts.
59(a) and 66(c), UCMJ.
                                  I. BACKGROUND
     The appellant was assigned to the USS FRANK CABLE (AS 40),
homeported in Guam. Following the FRANK CABLE’s return from
deployment, the appellant and several other Sailors attended a party at an
off-base residence where Air Force Senior Airman FA resided with one of the
appellant’s shipmates. At the end of the evening, the appellant and FA went
to sleep in FA’s bed, and the appellant unlawfully touched FA on the vagina
and put her hand on his penis.
    Following his conviction, the appellant was confined to the Joint Region
Marianas Confinement Facility, operated by the 36th Security Forces
Squadron onboard Anderson Air Force Base, Guam. On 30 March 2016, 62
days after being placed into confinement, the appellant’s trial defense counsel
submitted matters to the CA, pursuant to RULE FOR COURTS-MARTIAL 1105,
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), alleging, inter
alia, that the appellant was subjected to “cruel and unusual post-trial
punishment in violation of the Eighth Amendment of the United States
Constitution.”3 Trial defense counsel claimed the appellant was subjected to
“de facto solitary confinement,” permitted no time outdoors or access to
physical activity equipment, and received deliberate indifference from
confinement facility personnel and his command members regarding
appellant’s medical needs.4
   On 12 April 2016, the CA’s staff judge advocate (SJA) responded to trial
defense counsel’s allegations of cruel and unusual punishment, noting that
Guam had only one confinement facility and with relatively few courts-


   2  Specifically, the appellant contends that: (1) the court should disapprove the
punitive discharge in light of the illegal post-trial punishment that the appellant
suffered; or (2) in the alternative, the court should order remand for a hearing
consistent with United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967), on issues
surrounding the appellant’s claim that he suffered cruel and unusual punishment.
   3   Detailed Defense Counsel letter dtd 30 Mar 2016.
   4 Id. Prior to trial, the appellant had hand surgery that required follow-on care
during confinement.


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martial on the island, often had very few prisoners.5 The SJA also commented
on the appellant’s medical care and detailed the various steps the command
had taken to ensure the appellant made it to his “weekly appointments for
consults, therapy, and multiple surgeries from a civilian hand surgeon
specialist.”6 On 22 April 2016, trial defense counsel renewed his allegations
that this “de facto” solitary confinement and denial of necessary medical care
was cruel and unusual punishment.7 The CA took his action on 2 May 2016
and approved the sentence as adjudged.
                                  II. DISCUSSION
A. Cruel and unusual punishment
   The appellant alleges that the conditions of his confinement at Joint
Region Marianas Confinement Facility constituted cruel and unusual
punishment in violation of Article 55, UCMJ, and the Eighth Amendment.
    We review allegations of cruel or unusual punishment under a de novo
standard. United States v. White, 54 M.J. 469, 471 (C.A.A.F. 2001). In
evaluating both constitutional and statutory allegations of cruel or unusual
punishment, we apply the Supreme Court’s Eighth Amendment
jurisprudence “in the absence of legislative intent to create greater
protections in the UCMJ.” United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F.
2006). The Eighth Amendment forbids punishment that is “‘incompatible
with the evolving standards of decency that mark the progress of a maturing
society, or which involve the unnecessary and wanton infliction of pain.’” Id.
at 214 (quoting Estelle v. Gamble, 429 U.S. 97, 102-03 (1976)). The Court of
Appeals for the Armed Forces (CAAF) has imposed three requirements on
appellants claiming their confinement violated the Eighth Amendment: “(1)
an objectively, sufficiently serious act or omission resulting in the denial of
necessities; (2) a culpable state of mind on the part of prison officials
amounting to deliberate indifference to [the appellant’s] health and safety;
and (3) that he has exhausted the prisoner-grievance system . . . and that he
has petitioned for relief under Article 138, UCMJ, 10 USC § 938 [2000].” Id.


   5. SJA’s   Addendum to the Recommendation dtd 12 Apr 2016.
   6   Id. at 3.
   7  Defense Response to First SJA’s Recommendation Addendum of 22 Apr 2016. In
both the original clemency matters and in response to the Addendum, trial defense
counsel’s arguments focused on two central issues: 1) that the CA’s failure to transfer
the appellant to Consolidated Brig Miramar, as was required by Bureau of Naval
Personnel Instruction 1640.22 for personnel sentenced to either a punitive discharge
or confinement in excess of 30 days, amounted to deliberate indifference to the
appellant’s “de facto” solitary confinement; and 2) the denial of necessary medical
care for his injured hand; specifically the need for occupational therapy.


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at 215 (citations and internal quotation marks omitted) (alteration in
original). The appellant failed to demonstrate that he exhausted his
administrative remedies; therefore, his complaints fall short of the standard
required for intervention by this court.8
B. Exhaustion of administrative remedies
    Before a prisoner may petition an appellate court with a claim of cruel
and unusual punishment in confinement, he or she must first seek
administrative relief. United States v. Coffey, 38 M.J. 290, 291 (C.M.A. 1993).
An appellant must show, “absent some unusual or egregious circumstance,
that he has exhausted the prisoner grievance system of the [confinement
facility] and that he has petitioned for relief under Article 138, UCMJ, 10
USC § 938.” Id. (citation omitted); see also White, 54 M.J. at 472. “[T]he
exhaustion requirement in Coffey is intended to ensure that an adequate
record has been developed with respect to the procedures for considering a
prisoner grievance and applicable standards.” United States v. Miller, 46 M.J.
248, 250 (C.A.A.F. 1997).
    The record regarding cruel and unusual punishment in this case consists
only of trial defense counsel’s clemency matters submitted to the CA.9
Consequently, there is no evidence within the record that the appellant
availed himself of the confinement facility’s grievance system, that he
submitted an Article 138, UCMJ complaint or, conversely, that unusual or
egregious circumstances prevented him from doing either.10 Despite having
spent six weeks in post-trial confinement before authentication of the record
of trial, the record is devoid of any request for a post-trial Article 39(a),
UCMJ, session that would have involved the military judge in discussions of
confinement conditions. See Miller, 46 M.J. at 250. Thus the record contains
no other evidence or findings of fact from the military judge. There is no
evidence in the record that confinement facility leadership was aware of the
appellant’s complaints or was indifferent to them.
   The fact that the appellant’s trial defense counsel raised illegal
confinement conditions with the CA is also insufficient. The CAAF has


   8 We also note that the appellant has not alleged, either in his post-trial clemency
matters or in his pleadings before this court, that there existed unusual or egregious
circumstances necessitating judicial intervention; nor do we find any.
   9  The appellant did not submit an affidavit detailing the conditions of his
confinement or describing the administrative remedies he sought.
   10 Notably, the appellant’s communications were not stifled; trial defense counsel
submitted a deferment request on behalf of the appellant within two days of being
placed into confinement and the clemency matters submitted confirm the fact that
the appellant had access to his defense counsel.


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recognized that simply complaining to the CA about post-trial confinement
conditions does not satisfy the Coffey requirement to first seek administrative
relief. In White, the appellant first sought relief for his perceived illegal
confinement conditions when he petitioned the CA for clemency; however, the
court recognized that the CA owned neither “the confinement facility [n]or
the Air Force Base on which the confinement facility was located.” White, 54
M.J. at 472. Here, the CA commands a Navy ship and has no authority over
either the Joint Region Marianas Confinement Facility or the Air Force
installation on which it is located. Therefore, we conclude that the appellant
failed to exhaust the prisoner-grievance system or petition for relief under
Article 138, UCMJ, at Joint Base Marianas Confinement Facility as required
by Coffee and Lovett.
C. DuBay hearing
    As alternative relief, the appellant urges this court to remand the case for
a DuBay hearing in order to determine whether the appellant suffered cruel
and unusual punishment, whether he exhausted his administrative remedies,
and, if he did not exhaust those remedies, whether circumstances excuse his
failure to exhaust those administrative remedies.
    Mindful of the framework established in United States v. Ginn, 47 M.J.
236 (C.A.A.F. 1997) and extended to post-trial, collateral claims of cruel and
unusual punishment in United States v. Fagan, 59 M.J. 238 (C.A.A.F. 2004),
we decline to order a DuBay hearing. The Ginn/Fagan framework relies on
“affidavit-based” post-trial claims. Id. at 242. “Specifically, [the Ginn
framework] focuses on the circumstances under which a DuBay hearing is
required to resolve a post-trial claim that is framed by conflicting affidavits.”
Id. at 241. Here, appellant has submitted no affidavit explaining his
confinement conditions, what administrative remedies he sought, or what
unusual or egregious circumstances existed. Moreover, nothing in the
appellant’s post-trial clemency submissions or his pleadings before this court
indicates that he did anything to meet the threshold requirement that he
exhaust his administrative remedies. Simply put, there are no conflicting
facts regarding the pursuit of administrative remedies that a DuBay hearing
would resolve.




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                          III. CONCLUSION
The findings and the sentence are affirmed.
Senior Judge CAMPBELL and Judge RUGH concur.


                               For the Court




                                R.H. TROIDL
                                Clerk of Court




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