                      Dwight J. LOVING, Private
                        U.S. Army, Petitioner

                                    v.

                      UNITED STATES, Respondent

                              No. 06-8006

                       Crim. App. No. 19891123

       United States Court of Appeals for the Armed Forces

                       Argued October 29, 2008

                        Decided July 17, 2009

ERDMANN, J., delivered the opinion of       the court, in which
EFFRON, C.J., and BAKER, J., joined.        EFFRON, C.J., filed a
separate concurring opinion. STUCKY,        J., filed a separate
opinion concurring in part and in the       result. RYAN, J., filed a
separate dissenting opinion.

                                 Counsel


For Petitioner: Teresa L. Norris, Esq. (argued); Lieutenant
Colonel Mark Tellitocci and Captain William J. Stephens (on
brief).

For Respondent: Captain Adam S. Kazin (argued); Colonel Denise
R. Lind, Lieutenant Colonel Steven P. Haight, and Lieutenant
Colonel Mark H. Sydenham (on brief).

Amicus Curiae for Petitioner: Michelle M. Lindo McCluer, Esq.,
Jonathan E. Tracy, Esq., Eugene R. Fidell, Esq., and Stephen A.
Saltzburg, Esq. (on brief) -- for the National Institute of
Military Justice.

Military Judges: Stephen V. Saynisch (trial) and Theodore E.
Dixon (DuBay hearing)



       This opinion is subject to revision before final publication.
Loving v. United States, No. 06-8006/AR



     Judge ERDMANN delivered the opinion of the court.

     Private Dwight J. Loving was convicted in 1989 of

premeditated murder, felony murder, attempted murder, and

several specifications of robbery.    The court-martial sentenced

Loving to a dishonorable discharge, forfeiture of all pay and

allowances, and to be put to death.   The United States Army

Court of Criminal Appeals affirmed the findings of guilty and

the sentence.   United States v. Loving, 34 M.J. 956, 970

(A.C.M.R. 1992).    We affirmed on direct review in 1994.   United

States v. Loving, 41 M.J. 213, 300 (C.A.A.F. 1994), modified by

42 M.J. 109 (C.A.A.F. 1995).   The Supreme Court affirmed that

decision in 1996.   Loving v. United States, 517 U.S. 748, 774

(1996).

     The case is now before us on Loving’s petition for

extraordinary relief in the nature of a writ of habeas corpus

alleging that defense counsel provided constitutionally

ineffective representation in the sentencing phase of his trial.

Assuming without deciding that the performance of Loving’s

defense counsel was deficient as alleged, we conclude that

Loving has failed to demonstrate that there is a reasonable

probability that, but for counsel’s deficient performance, the

result of the proceeding would have been different.   We hold

that Loving has failed to meet his burden to establish prejudice



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Loving v. United States, No. 06-8006/AR

under Strickland v. Washington, 466 U.S. 668 (1984), and deny

the petition for extraordinary relief in the nature of a writ of

habeas corpus.

                             BACKGROUND

1.   Procedural Background

      When a court-martial sentence includes the death penalty,

the case remains pending in the military justice system through

five separate stages:   (1) action by the convening authority

under Article 60, Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 860 (2006); (2) review by the appropriate Court of

Criminal Appeals under Article 66, UCMJ, 10 U.S.C. § 866, 10

U.S.C. § 866 (2006); (3) review by the United States Court of

Appeals for the Armed Forces under Article 67(a)(1), UCMJ, 10

U.S.C. § 867(a)(1) (2006); review by the Supreme Court under

Article 67a(a), UCMJ, 10 U.S.C. § 867a(a) (2006), if certiorari

is sought and granted as provided in 28 U.S.C. § 1259 (2006);

and (5) consideration by the President under Article 71(a),

UCMJ, 10 U.S.C. § 871(a) (2006).       A case does not become final

under the UCMJ until completion of all five stages.      See Article

76, UCMJ, 10 U.S.C. § 876 (2006).

      In the present case, the United States Army Court of

Criminal Appeals affirmed the findings of guilty and the

sentence.   Loving, 34 M.J. at 970.      On direct review to this

court, we also affirmed the findings of guilty and the sentence.



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Loving v. United States, No. 06-8006/AR

Loving, 41 M.J. at 300.   In doing so, we considered, inter alia,

Loving’s ineffective assistance of counsel claim under

Strickland, which included allegations that his defense counsel

“failed to request funds for a mitigation specialist or to

present a cohesive, comprehensible background, social, medical,

and environmental history” during the sentencing phase of

Loving’s trial.   Id. at 249.   We determined that this claim

lacked merit, holding that defense counsel’s investigation and

presentation of mitigation evidence and their decisions

regarding use of expert testimony at sentencing were reasonable.

Id. at 250.

     The Supreme Court issued its decision affirming the death

sentence on June 3, 1996, completing stage four of the five

stage process under the UCMJ.   Loving, 517 U.S. at 774.    In the

thirteen years since the Supreme Court’s decision, the case has

remained pending within the military justice system, awaiting

presidential action.1   Loving’s case remains in a posture where

his military remedies have not been exhausted -- a critical

component of any effort to obtain review in the Article III

courts.   See Loving, 62 M.J. 248-51.   As a result, review in the

Article III courts is not reasonably available to Loving so long


1
  A more detailed appellate history is documented in prior
opinions. See Loving v. United States, 64 M.J. 132, 134-36
(C.A.A.F. 2006); Loving v. United States, 62 M.J. 235, 238-39
(C.A.A.F. 2005); Loving v. Hart, 47 M.J. 438, 440 (C.A.A.F.
1998).

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Loving v. United States, No. 06-8006/AR

as his case remains pending in the military justice system.     See

id.

      On February 18, 2004, prior to filing the present habeas

petition, Loving sought relief from our court through a writ of

coram nobis under the All Writs Act, 28 U.S.C. § 1651(a).    See

id. at 236.   Among other allegations, relying on the intervening

Supreme Court decision in Wiggins v. Smith, 529 U.S. 510 (2003),

Loving argued that this court committed clear error during

mandatory review of Loving’s ineffective assistance of counsel

in sentencing claim because the court did not focus on the

investigative aspect leading to counsel’s decisions.   Loving

alleged that defense counsel’s investigation was not reasonable

and that counsel’s deficient conduct was prejudicial in

sentencing.

      In the course of considering his coram nobis petition, we

addressed the jurisdictional issues presented by the status of

his case -- a case that remained pending in the military justice

system after review by our court and the Supreme Court.   Loving,

62 M.J. at 239-46.   We specifically considered the implications

of the relationship between cases pending in the military

justice system and collateral review in the Article III courts.

Id.

      We concluded that a case pending final action under the

UCMJ remained subject to extraordinary writ consideration by the



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Loving v. United States, No. 06-8006/AR

appellate courts in the military justice system.   Id. at 246.

We further concluded that a writ of error coram nobis was not

the proper vehicle for considering Appellant’s claim because a

writ of habeas corpus under the All Writs Act remained

available.   Id. at 257.

     At that time, we could have converted Loving’s coram nobis

filings into a petition for habeas corpus, but we declined to

make that decision for him.   Id. at 259.   Instead, “mindful that

a habeas petition before this Court could affect Petitioner’s

right and strategy to raise . . . the issues . . . . if

eventually filed in an Article III court,” we dismissed

Appellant’s petitions for extraordinary relief without prejudice

for Loving to file a writ of habeas corpus in our court, citing

Noyd v. Bond, 395 U.S. 683, 695 n.7 (1969).2   Id. at 256, 258-60.


2
  In Noyd, Justice Harlan, writing for the majority, discussed
the power of this court to issue a writ of habeas corpus under
the All Writs Act:

     Since the All Writs Act [28 U.S.C. § 1651(a)] applies
     by its terms to any “courts established by Act of
     Congress,” and since the Revisers of 1948 expressly
     noted that “the revised section extends the power to
     issue writs in aid of jurisdiction, to all courts
     established by Act of Congress, thus making explicit
     the right to exercise powers implied from the creation
     of such courts,” we do not believe that there can be
     any doubt as to the power of the Court of Military
     Appeals [now the Court of Appeals for the Armed
     Forces] to issue an emergency writ of habeas corpus in
     cases, like the present one, which may ultimately be
     reviewed by that court. 395 U.S. at 695 n.7; see also
     United States v. Denedo, 2009 U.S. LEXIS 4160, at *14,
     2009 WL 1576568, at *5 (June 8, 2009) (recognizing

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Loving v. United States, No. 06-8006/AR

In so doing, we expressly alerted Loving to the potential effect

of a habeas petition before our Court on future habeas petitions

filed in the Article III courts.       Id. at 258-60 (citing, inter

alia, 28 U.S.C. § 2244).

     While the case remained pending within the military justice

system, Loving had a number of options, including filing a

habeas petition in our court or awaiting action by the President

before seeking judicial review.    He elected to file a petition

for writ of habeas corpus in our court.      Loving v. United

States, 64 M.J. 132, 134 (C.A.A.F. 2006).

     Loving filed his habeas petition with this court on

February 2, 2006, raising essentially the same claim as to the

trial defense team’s constitutionally ineffective performance at

sentencing that he raised in the previous coram nobis petition.

Loving, 64 M.J. at 135.    In the course of considering the habeas

petition, we focused on what standard of review to apply to a

habeas corpus action under the All Writs Act with respect to a

case that remained pending in the military justice system.      Id.

at 144-46.   Taking into account the importance of deference to

decisions made during direct judicial review, and recognizing




     that when military appellate courts have subject-
     matter jurisdiction over the case or controversy,
     “military courts, like Article III tribunals, are
     empowered to issue extraordinary writs under the All
     Writs Act, Noyd v. Bond, 395 U.S. 683, 695, n.7
     (1969)”).

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Loving v. United States, No. 06-8006/AR

the limited scope of review under the All Writs Act, we adopted

the highly deferential standard for collateral review used by

other federal courts.   See id. at 145-46.   That restrictive

standard requires us to determine:

     whether this Court’s prior review: (1) resulted
     in a decision that was contrary to, or involved
     an unreasonable application of, clearly
     established Federal law, as determined by the
     Supreme Court of the United States; or (2)
     resulted in a decision that was based on an
     unreasonable determination of the facts in light
     of the evidence presented in the [prior]
     proceeding.

Id. at 145 (citing 28 U.S.C. § 2254(d)) (alteration in

original).

     Applying that standard to the pending habeas petition, we

observed in our prior decision that the factual record was

inadequate.   Id. at 150-52.   Accordingly, we remanded for

proceedings under United States v. DuBay, 17 C.M.A. 147, 37

C.M.R. 411 (1967), which provides a well-established procedure

for development of a post-trial evidentiary record, followed by

return of the case to our court for further review.   Loving, 64

M.J. at 152-53.

      In particular, we determined that in light of Wiggins, “we

[did] not have the factual predicate to determine if our prior

decision addressing the issue of ineffective assistance of

counsel was correct under the Strickland standard.”     Id. at 134.

We ordered a DuBay hearing to address the issue of “whether



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Loving v. United States, No. 06-8006/AR

Petitioner’s trial defense counsel ‘chose to abandon their

investigation at an unreasonable juncture, making a fully

informed decision with respect to sentencing strategy

impossible’ thereby prejudicing Petitioner in the capital

sentencing phase of the court-martial.”    Id. (quoting Wiggins,

539 U.S. at 527-28).   We directed the DuBay judge to issue

findings of fact and conclusions of law on several specific

matters related to counsel’s investigation into Loving’s

background.    Id. at 152-53.   We also directed the DuBay judge to

reweigh the evidence adduced at trial and in the DuBay

proceeding to determine whether there was a reasonable

probability that the panel would have returned a different

sentence if the new evidence had been presented at trial.      Id.

at 153.

     The DuBay hearing has been completed and the record has

been returned to this court for further review.    At the DuBay

proceeding, the parties had full opportunity to present

witnesses, documentary evidence, and legal arguments.    The

military judge considered the evidence and arguments of the

parties, applied the standard set forth in our prior opinion,

and addressed the issues identified in our remand order.    At the

conclusion of the proceeding, the military judge issued a

comprehensive decision detailing his factual findings and legal

conclusions.   In summary, the DuBay judge found that “a



                                   9
Loving v. United States, No. 06-8006/AR

reasonable investigation as required by St[r]ickland, as further

explained in Wiggins, was conducted under the circumstances of

this case.    PVT Loving’s defense counsel did not choose to

abandon their investigation at an unreasonable juncture.”      The

DuBay judge also concluded:

       [A]fter reweighing all of the evidence adduced at
       trial and considering the evidence presented in the
       DuBay hearing . . . had the panel been confronted with
       the evidence at issue, there is no reasonable
       probability that at least one member of the panel
       would have struck a different balance thereby not
       voting for a death sentence and the result of the
       sentencing proceeding would not have been different.

       As a result of the standards and procedures adopted by our

court, we now have before us a comprehensive record, developed

by a military judge, which provides the precise framework

necessary for effective and accurate habeas review.    The parties

submitted additional briefs to this court and we held oral

argument on October 29, 2008.3


3
    We ordered briefing on two issues:

         I.   WHETHER THE RECORD OF THE EVIDENTIARY HEARING
              ORDERED PURSUANT TO UNITED STATES V. DUBAY, 17
              C.M.A. 147, 37 C.M.R. 411 (1967), SHOULD BE
              RETURNED TO THE JUDGE ADVOCATE GENERAL OF THE
              ARMY FOR REMAND TO THE CONVENING AUTHORITY
              AND/OR THE ARMY COURT OF CRIMINAL APPEALS FOR
              REVIEW PRIOR TO REVIEW BY THIS COURT.

        II.   WHETHER PETITIONER’S WRIT OF HABEAS CORPUS
              SHOULD ISSUE IN VIEW OF THE FINDINGS OF FACT AND
              CONCLUSIONS OF LAW ENTERED BY THE MILITARY JUDGE
              IN THE DUBAY PROCEEDING ON THE QUESTION OF
              WHETHER THE TRIAL DEFENSE TEAM CONDUCTED A
              REASONABLE INVESTIGATION INTO POTENTIAL EVIDENCE

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Loving v. United States, No. 06-8006/AR

2.   Factual Summary and Current Allegations

        On the night of December 11, 1988, Loving robbed two

convenience stores at gunpoint.     Loving, 41 M.J. at 229.     He

then robbed three cab drivers at gunpoint and killed two of the

drivers after receiving money and other items.     Id.   He

attempted to kill the third cab driver, but the victim struggled

the gun away from Loving and fled the scene.     Id. at 229-31.

Loving was apprehended the next day and advised of his rights.

Id. at 230.     He waived his rights and confessed in a videotaped

interview.    Id.

        Three military defense counsels were detailed to Loving’s

case:    Captain William Ibbotson, Captain John Smart, and Major

David Hayden.    All three met with Loving shortly after his

apprehension.    On January 17, 1989, Hayden traveled to Loving’s

hometown of Rochester, New York, to conduct a background

investigation.      As to the details of the trip, the DuBay judge

found as follows:

        [Major Hayden] spent all of 18 Jan 89 (the whole day,
        and into the evening) and part of 19 Jan 89,




              IN MITIGATION AND PROVIDED EFFECTIVE ASSISTANCE
              OF COUNSEL AT SENTENCING.

67 M.J. 22 (C.A.A.F. 2008). As to the first issue, both parties
and amicus curiae argued that it was appropriate for us to
address the underlying issues at this time without remand to the
convening authority or the Court of Criminal Appeals. We agree
and turn directly to the second issue.

                                   11
Loving v. United States, No. 06-8006/AR

     interviewing some family members, friends, and others
     (e.g., boxing coach, school teacher, Detective Verna4).

     The purpose of the visit, according to MAJ Hayden, was
     “to find out information, as much information as I
     could about Dwight Loving’s background.” As suggested
     by CPT Ibbotson, he was also looking for evidence of
     impulsive behavior, as well as evidence of head
     trauma.

     In Rochester, MAJ Hayden met with several of PVT
     Loving’s family members including his mother, father,
     and some of PVT Loving’s siblings. He learned more
     about PVT Loving’s “upbringing” his “family structure”
     and his “relationship with his brothers and sisters.”

     MAJ Hayden learned “a lot” from his interview of Mr.
     Johnson, PVT Loving’s childhood boxing coach. . . .

     . . . .

     As further preparation for trial, CPT Ibbotson
     conducted additional background investigation by
     telephone of PVT Loving’s history prior to his
     military service. He spoke with PVT Loving’s mother,
     four brothers, and his sister Gwendolyn. He also
     spoke by telephone with Detective Verna. . . .

     In addition to these investigative efforts, CPT
     Ibbotson and CPT Smart also interviewed unit
     witnesses, Ms. Pessina [Loving’s girlfriend], friends
     of Ms. Pessina, and confinement officers supervising
     Private Loving in pretrial detention.

     In the habeas petition before us, Loving alleges

ineffective assistance of counsel in the investigation and

presentation of mitigation evidence related to Loving’s

background and social history.   Loving faults defense counsel

for failing to obtain the assistance of a mitigation specialist


4
  Detective Verna was an officer in the Rochester police
department who had information about the rough neighborhoods in
Rochester and problems with drugs and violence in the city.

                                 12
Loving v. United States, No. 06-8006/AR

or social worker.    He also alleges deficiencies in the number

of, approach to, and conduct of the background interviews that

defense counsel conducted with Loving’s family members and

others, as well as deficiencies in the amount of social history

records collected.   Loving contends that the interviews were

ineffective because defense counsel were looking for specific

information in line with preconceived theories determined on the

basis of their initial discussions with Loving and without the

benefit of an open-ended investigation.

     Loving also argues that during sentencing defense counsel

only presented “skeletal information concerning Loving’s

background and environment that was wholly inadequate to present

to the jury a true picture of his tortured life and the impact

upon him.”   According to Loving, if “this true picture had been

presented there is a reasonable probability that at least one

juror would have struck a different balance in the sentencing

determination.”5


5
  In his habeas petition filed February 2, 2006, Loving also
alleged that defense counsel failed to adequately investigate
and to present evidence in mitigation related to Loving’s
intoxication and mental state at the time of the offenses.
This contention was largely based on affidavits from Gerlinde
Joseph and Beverly Sedberry, acquaintances of Loving at the time
of the murders. Both individuals testified at the DuBay
hearing, and the DuBay judge determined that neither their
affidavits nor their respective testimony were credible or
reliable. As Loving has not pursued this line of argument
following the DuBay hearing and we see no clear error in the
military judge’s credibility rulings, we focus on the alleged
deficiencies related to his family and social background.

                                 13
Loving v. United States, No. 06-8006/AR

               INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

     We consider claims of ineffective assistance of counsel

under the two-prong test of Strickland.    See Strickland, 466

U.S. at 687.   First, Loving must show that counsel’s performance

was deficient.   Id.   “This requires showing that counsel made

errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.”      Id.

Second, Loving must show that the deficient performance

prejudiced the defense.   Id.   “This requires showing that

counsel’s errors were so serious as to deprive the defendant of

a fair trial, a trial whose result is reliable.”   Id.    We need

not analyze the Strickland prongs in any particular order.     As

the Supreme Court stated:

     [A] court need not determine whether counsel’s
     performance was deficient before examining the
     prejudice suffered by the defense as a result of the
     alleged deficiencies. The object of an
     ineffectiveness claim is not to grade counsel’s
     performance. If it is easier to dispose of an
     ineffectiveness claim on the ground of lack of
     sufficient prejudice, which we expect will often be
     so, that course should be followed.

Id. at 697; see, e.g., United States v. Quick, 59 M.J. 383, 386

(C.A.A.F. 2004).   Here we will assume without deciding that the

performance of Loving’s defense counsel was deficient as alleged

for purposes of analyzing the prejudice prong of Strickland.

     To establish prejudice under Strickland, Loving must show

that “there is a reasonable probability that, but for counsel’s



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Loving v. United States, No. 06-8006/AR

unprofessional errors, the result of the proceeding would have

been different.    A reasonable probability is a probability

sufficient to undermine confidence in the outcome.”   Strickland,

466 U.S. at 694.   In the context of this capital case

challenging the death sentence, “we reweigh the evidence in

aggravation against the totality of available mitigating

evidence.”   Wiggins, 539 U.S. at 534.   The question is whether

if the members had been able to place the additional evidence

“on the mitigating side of the scale, there is a reasonable

probability that at least one [member] would have struck a

different balance.”   Id. at 537.

     In this case, we undertake this prejudice review de novo.

Under the standards of 28 U.S.C. § 2254(d), a habeas review of a

constitutional claim would normally employ a deferential review

of the challenged decision.   See Bell v. Cone, 535 U.S. 685,

698-99 (2002).    However, we did not reach the prejudice prong of

Strickland in our 1994 direct review of this case.    See Loving,

41 M.J. at 250.    Consequently, our review is not circumscribed

by any previous conclusions of this court.   See Wiggins, 539

U.S. at 534.   Nor is our review impacted by the DuBay judge’s

conclusion on prejudice, which we also review de novo.   See

United States v. Davis, 60 M.J. 469, 473 (C.A.A.F. 2005).

      We have carefully reviewed the totality of the evidence --

both that adduced at trial and the evidence adduced in the DuBay



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Loving v. United States, No. 06-8006/AR

proceeding.   After reweighing the evidence in aggravation

against the totality of available mitigating evidence, we

conclude that Loving has failed to meet his burden to show a

reasonable probability that at least one member would have

struck a different balance.   Accordingly, we deny the writ under

the second prong of Strickland without “grad[ing] counsel’s

performance” under the first prong.   Strickland, 466 U.S. at

697.

       Our analysis will commence with a summary of the

aggravation and mitigation evidence presented at trial.   We will

then review the mitigation evidence presented at the DuBay

hearing and “reweigh the evidence in aggravation against the

totality of available mitigation evidence.”    Wiggins, 539 U.S.

at 534.

1.   Aggravation Evidence Presented at Trial

       We adopt the detailed description of the crimes from our

direct review in 1994.   See Loving, 41 M.J. at 229-31.   After

robbing two convenience stores at gunpoint, Loving got into a

taxicab driven by Christopher Fay, an active-duty soldier

working as a cab driver for extra money.

       [Loving] directed Fay to a secluded area on Fort Hood
       and, at gunpoint, demanded all his money. After
       receiving an unknown amount of money from Fay,
       [Loving] shot him in the back of the head. While
       watching the blood “gushing out” of the back of Fay’s
       head, [Loving] shot him in the back of the head a
       second time. Fay died as a result of the gunshots.



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Loving v. United States, No. 06-8006/AR

      His body was discovered by another soldier at Fort
      Hood about 30 minutes later.

           [Loving] fled from the cab to his barracks room,
      counted the money, and called for a second cab at
      about 8:15 p.m. The driver of the second cab was
      Bobby Sharbino, a retired Army sergeant. [Loving]
      directed Sharbino to a secluded street in Killeen and,
      at gunpoint, took his money pouch, wallet, and a green
      BIC cigarette lighter. He ordered Sharbino to lie
      down on the seat and shot him in the head, killing
      him.

Id. at 229.

      Afterwards, Loving went to his girlfriend’s home.    A short

time later, he and his girlfriend went to a club with friends.

      [There, Loving] became involved in an altercation with
      another male patron because the patron was staring at
      [his girlfriend]. During the altercation, [Loving]
      drew his pistol and invited the patron to go outside.
      As the patron advanced toward [Loving], [Loving]
      backed up, stumbled over a chair, and dropped his
      pistol on the ground, causing it to discharge.

Id.   Loving and his girlfriend left the club and took a cab,

driven by Howard Douglas Harrison.   Loving’s girlfriend was

dropped off near her home.

      After pulling a gun, [Loving] directed Harrison to a
      secluded street, demanded money, and took Harrison’s
      wallet and coin changer, obtaining about $94.00.
      [Loving] jerked Harrison’s head around and told him to
      open his mouth. Believing that he was about to be
      killed, Harrison grabbed the pistol. During the
      ensuing struggle, Harrison gained possession of the
      pistol after it went off. Then he attempted to shoot
      appellant, but the pistol would not fire. Harrison
      fled the scene, with [Loving] chasing him. After
      Harrison hit him, [Loving] ran to [his girlfriend’s]
      house, having regained possession of the pistol.

Id. at 229-30.



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Loving v. United States, No. 06-8006/AR

     During the sentencing phase of the trial, the Government

presented evidence showing that Loving had previously been

subject to nonjudicial punishment under Article 15, UCMJ, 10

U.S.C. § 815 (2006), and that he had received counseling related

to poor duty performance on prior occasions.

     The Government also presented evidence to show that Loving

lacked remorse for his recent crimes.    Private Forrest Kevin

Brown, who was in pretrial confinement with Loving, testified

that Loving told him that “he did the first -- did it the first

time to see if he could get away with it, and then he did it

because it was fun, and then he said something along the lines,

‘Because love makes you do crazy things.’”   Brown also testified

that he heard Loving say, “if he had to do it over, the only

difference is he wouldn’t get caught.”    After Brown testified,

the parties presented testimony from prison personnel as to

whether Brown would have had occasion to speak alone with

Loving.   Defense counsel argued that Brown was not credible and

that other evidence shows that Loving had shown remorse.

     The military judge instructed the members that a death

sentence may not be adjudged unless all the court members find

beyond a reasonable doubt that one or more of the following

aggravated circumstances existed:

     [1] the premeditated murder of Bobby Gene Sharbino
     was committed while the accused was engaged in the
     commission or the attempted commission of a robbery;



                                18
Loving v. United States, No. 06-8006/AR

     [2] having been found guilty of the felony murder of
     Christopher Fay . . . the accused was the actual
     perpetrator of the killing;

     [3] having been found guilty of premeditated murder
     of Bobby Gene Sharbino, the accused was also found
     guilty of another violation of Article 118, [UCMJ], in
     the same case, and that’s referring to the murder of
     Christopher Fay.

See Rule for Courts-Martial (R.C.M.) 1004(c).   The members

unanimously found beyond a reasonable doubt that all three of

these aggravating factors were proven.

     The military judge also instructed the members that seven

additional aggravating circumstances may be considered:

     [1]   the Article 15’s received by the accused;

     [2] the testimony of Captain Bush that the accused is
     of average intelligence and has been counseled on
     occasions in an effort to make him a satisfactory duty
     performer and, in his opinion, has no rehabilitative
     potential;

     [3] the nature of the weapon used in the commission
     of the offenses and the fact that the accused fired
     the weapon during the course of each offense;

     [4] the fact that the accused killed his victims
     after they had fully cooperated with him and had given
     him their money;

     [5] the nature and extent of the injuries suffered by
     the victims;

     [6] the accused’s lack of any remorse;6 [and]
     . . . .

     [7] the testimony of Private Brown that the accused
     told Private Brown that the first killing was to see

6
  The military judge instructed the members that whether the
evidence established remorse or lack of remorse was for them to
decide.

                                19
Loving v. United States, No. 06-8006/AR

      if he could get away with it and, after that, it was
      for fun.

2.   Mitigation Evidence Presented at Trial

      This is not a case where the record of trial was devoid of

mitigation evidence at sentencing.     The military judge

instructed the members that they must consider the following

nineteen circumstances in extenuation and mitigation:

      [1]    The accused’s age;

      [2] The accused grew up in a low income urban area in
      Rochester, New York;

      [3] The accused grew up in a single parent household
      with seven other children;

      [4] Mr. Loving, Sr., the accused’s father, and his
      [e]ffect on the accused;

      [5] The accused was a nonregent student in a troubled
      school system who did not finish high school;

      [6] The accused was exposed to violence during his
      youth;

      [7] The accused favorably responded to positive
      leadership at several points in his life;

      [8] The accused has difficulty expressing and showing
      emotion;

      [9] Drug involvement in any of these offenses that
      was demonstrated though the evidence, if any;

      [10] During his early youth, the accused was a
      follower;

      [11]   The accused’s boxing experiences;

      [12] The accused’s good duty performance under the
      guidance of strong leadership;




                                  20
Loving v. United States, No. 06-8006/AR

     [13] The accused has exhibited remorse for these
     offenses . . .;7

     [14] The offenses were committed over a relatively
     short period of time;

     [15]   The accused’s motives for these offenses;

     [16]   The accused’s . . . adaptation to confinement;
     and,

     [17] The accused is precluded from pleading guilty to
     capital offenses by the [UCMJ] . . .;

     [18] [T]he duration of the accused’s pretrial
     confinement, which began on 13 December 1988;

     [19] The accused’s entitlements to wear certain
     medals and awards . . . .

     One of the mitigating factors emphasized by the defense was

Loving’s motivation at the time he committed the offenses, which

defense counsel attributed to his girlfriend’s influence over

Loving.   However, evidence of Loving’s family and social

background was also prominent in the mitigation case.   Defense

counsel introduced the idea that Loving’s background would be an

issue in mitigation during his opening argument in findings,

stating as follows:

     From an inter-city [sic] neighborhood, in Rochester,
     New York; a large, Northeastern city -- a larger,
     Northeastern city. The youngest of eight children. A
     father -- an alcoholic, with a rapsheet about four
     pages long. You’ll see this information about the
     kind of upbringing he had; the kind -- the lack of a
     strong, parental figure he had -- the need he had for
     that. The need he had for acceptance . . . .

7
  The military judge again instructed the members that they would
have to resolve the question of whether the evidence shows
remorse or lack of remorse for themselves. See supra n.6.

                                21
Loving v. United States, No. 06-8006/AR


     During closing argument on findings, defense counsel

stated:

     You’ve learned a little bit about him from his squad
     leader, Sergeant Key. You know where he’s from. A
     city in the northeast. You know a little bit about
     his family and his background. You know what sort of
     person he was. As -- when he was in the military you
     can pick up on some of the things you’ve heard
     already. He was a soldier who wasn’t socialized very
     well when he came in. He wasn’t mature and he wasn’t
     educated and he didn’t have the kind of background
     that would allow him to do well in the military and
     this cost him. . . . Now that tells you something
     that he didn’t have, when he came in the Army; a
     certain lack of background and training and how to
     deal with life. Go on down the road to that summer
     and fall of 1988 when he met Nadia Pessina.

     During the sentencing phase, defense counsel presented the

testimony of a number of witnesses to address Loving’s family

and social background.   These included:   Joe Loving Sr.,

Loving’s father; Lucille Williams, Loving’s mother; Ronald

Loving, Loving’s brother; Wendolyn Black, Loving’s sister; Lord

Johnson, Loving’s childhood boxing coach; and Detective Verna of

the Rochester police department.     Stipulated testimony was

submitted from Harryl Loving, Loving’s brother, and Kenneth

Wilson, Loving’s childhood teacher.    The arrest records of

Loving’s father, the arrest record of a childhood friend, and

Loving’s school records were also admitted into evidence.8



8
  In support of other mitigating factors, defense presented
testimony from two prison guards, a prison counselor, and his
first line supervisor.

                                22
Loving v. United States, No. 06-8006/AR

     The mitigation evidence showed that Loving was the youngest

of Lucille Williams’s eight children and his early years were

spent in a violent neighborhood in a dangerous section of

Rochester, New York.   As to Loving’s home life, there was

evidence that Loving’s father was a heavy drinker, who would

come in and out of his children’s lives.    Loving’s father was

physically abusive towards Loving’s mother, which regularly

resulted in police intervention and medical attention.    Ms.

Williams told her children not to get involved in the fights

unless they saw him killing her.     Loving’s oldest sibling,

Wendolyn, acknowledged one incident where she had to “try to

pull him off” her mother.

     Ms. Williams worked nights at Rochester Psychiatric Center

and suffered from narcolepsy, a sleeping disorder that

eventually required her to quit work.    Wendolyn testified that

she cooked and cleaned and babysat to help out around the house.

According to Wendolyn, her mother kept a clean house.    As to

discipline, Wendolyn indicated that she and her siblings

respected their mother and were disciplined only when they

needed it.   Wendolyn stated, “She’d beat us . . . she might whip

us with the belt or . . . hit at us with her hand.”    Joe Loving

Sr., testified that he “spanked [the children] when they did

something real bad. . . . to make them cry . . . it would hurt a

little bit, but I wouldn’t just beat ‘em up.”



                                23
Loving v. United States, No. 06-8006/AR

     Lord Johnson, who coached Loving and his brothers in boxing

and knew the family over many years, testified that Ms. Williams

was a single mother on welfare.    He agreed that she was “a good

woman” and indicated that the children had food and clothes and

were “always clean when you see them.”    He stated that the

children had some parental guidance in the home but “needed a

little bit more.”

     The testimony of Loving’s mother, his brother Harryl, his

brother Ronald, and Lord Johnson shows that of all his siblings,

Loving was closest to Ronald, who was five years older than

Loving.    Harryl testified that when Loving was with Ronald,

“they were involved in getting high and playing basketball.”

According to Loving’s mother, Ronald “turned to the streets,”

got into trouble, and spent some time in jail.   Harryl described

Ronald as a “street fighter” and “a very active thief [who] had

attacked a number of people.”   When asked what it was like

“being a kid in Rochester,” Ronald testified that it was “[a]

jungle . . . You’ve got to survive.”   He elaborated:

     It was just -- you had the Puerto Ricans and you had
     the blacks and you had the whites and Jamaicans. A
     lot of prejudice, you know, a lot of gangs. It was
     just rough. You had to wake up thinking like, you
     know, you had to fight sometimes to go to the store.
     We had family fights with people living next door to
     us . . . .

He said:   “[Y]ou either fight or you move -- move meaning out of

Rochester.”   When asked why such a choice existed, Ronald



                                  24
Loving v. United States, No. 06-8006/AR

stated:   “Well, it’s scary.   They take you -- they take you out

-- they’ll kill you.    If they don’t kill you, they’ll wound you

real bad.”   Ronald said that he “fought every day.”   He had been

“stabbed,” “busted up side the head,” “jumped,” “hit by a car,”

“shot at,” “cut,” and “tricked.”

     Several other witnesses addressed problems of drugs and

gang violence that the Loving children were exposed to as they

grew up in Rochester.   Detective Verna stated that there are

four “very, very rough neighborhoods” in Rochester and that a

great number of assaults occur in the Rochester schools, which

many people consider “armed camps.”    He testified that the drug

problem in Rochester is “pervasive.”    According to Loving’s

mother, “they’re fighting, they’re drinking, they’re stealing,

they’re doing everything.”     Harryl testified that “[t]here are

neighborhoods where the violence is high, where the street gangs

roam and where you can get into trouble, even if you’re not

looking for it.”   Harryl testified that his sister’s house was

burned down by gang members and that his brother Darryl was

jumped by gang members.   Lord Johnson also discussed gangs in

the Rochester neighborhoods, reiterating that Loving’s brother

was beaten up by a gang, and indicating that a close friend of

Loving’s from the boxing program who joined a gang was

incarcerated for “tr[ying] to kill someone.”




                                  25
Loving v. United States, No. 06-8006/AR

        Other testimony from these family and background witnesses

established that Loving lived in two different neighborhoods

when he was growing up.    The second was much cleaner and safer

than the first.    According to Harryl, “Oakbend was the worst.

The house on Stunz was better.    It was cleaner and had better

neighbors.    There were not as many fights, drug sellers, or

criminal acts as there were on Oakbend Street.”    Harryl, who was

two years older than Loving, testified that the family moved to

the better neighborhood when Harryl was in about eighth grade in

1979.    Harryl claimed that the second neighborhood was

“relatively drug free when we were growing.”    Harryl stated that

he “stayed in the new neighborhood, but his brothers Ronald and

Joe Junior used to go back to their friends in the old

neighborhood.”

        The stipulated testimony of Kenneth Wilson, Loving’s school

teacher, described Loving as moody and temperamental --

“feverish” -- which he said was typical of students who had a

history of poor performance in academics and lived in the inner

city.    He testified that Loving appeared distracted and had to

be closely monitored.    He was transferred to a special school

for students having problems with their regular high school.

Ms. Williams stated that Loving never graduated.    Loving’s

father was not aware that he had transferred schools and

believed that he “graduated every year.”    School records showed



                                  26
Loving v. United States, No. 06-8006/AR

that Loving was frequently absent from school and that he was

suspended for fighting at school and for possession of a knife

on school premises.    According to Mr. Wilson, Loving’s parents

never came to high school to ask about progress or problems.

        For about thirteen years prior to trial, Ms. Williams’s

current husband, Mr. Williams, lived in her home.    Ms. Williams

testified that Mr. Williams “always done well by all of [the

children], but they . . . resent him saying what he wanted to

say.”    Ronald Loving testified that he hated Mr. Williams.     He

described him as the “worstest [sic] man I’ve ever met in my

life, and I’ve met some bad people.”

        The mitigation evidence related to Loving’s background

predominantly focused on the difficulties Loving and his

siblings faced in childhood.    Some testimony from Lord Johnson,

however, was positive.    Mr. Johnson talked favorably about the

facility where he ran the boxing program, the sense of direction

that the boxing program offers the children, and Loving’s

success at boxing.    He spoke about the “beautiful relationship”

that he had with Loving while Loving was training and competing

in the boxing program.    During closing on sentencing, defense

counsel argued that this evidence showed that Loving could

respond to positive leadership in his life and that he did

“attempt to rise above his situation there and he did achieve




                                  27
Loving v. United States, No. 06-8006/AR

some measure of success.   But it may be a case of too little,

too late in his development.”

     Defense counsel spent a fair portion of his closing

argument calling the members’ attention to Loving’s troubled

background.   He urged the members to consider the “surroundings

under which he grew up, especially from the ages of zero to ten,

when he was on Oak Lawn -- or, Oakland,9 in that area, that’s

been torn down, that’s being redone because what was there was

not acceptable.”   He urged the members to “[c]onsider what

[e]ffect that had in shaping his development as he was growing

up, forming his values, deciding how he makes judgements.”

Defense counsel argued that Loving grew up in “environment

filled with violence,” in an “urban, northeastern city,

sometimes on the streets” in a broken home with “no real father

to speak of.”   Defense counsel reminded the members of Loving’s

brothers’ testimony as to the violence they saw in their youth

and the family’s interaction with gangs.

     Defense counsel also mentioned Loving’s mother’s illness

and how as the youngest of eight children Loving received less

of the guidance, love and care that was necessary.   He argued

that Loving’s siblings were not good role models, pointing to

his brother Darryl, who had been attacked by a gang, and his




                                28
Loving v. United States, No. 06-8006/AR

brother Ronald, “the survivalist.”   Defense counsel also

discussed how the school environment failed to provide Loving

with “the socialization skills for getting along with people

later in life” and argued that Loving’s parents were not there

to guide him through school when the system failed him.

     Defense counsel urged the members to decide against the

death penalty because of Loving’s “values, his judgement, and

his maturity or, more accurately, his immaturity.”   Defense

counsel argued:

     You know where he learned these things, he learned his
     values, you know he learned them from. He didn’t have
     a strong brother, he didn’t have a strong father, a
     mother with the time to provide him what he needed.
     His teachers didn’t help. . . . His background makes
     him less able to handle situations like he did back on
     the 11 and 12 December. Like they say, you can take
     the man off the streets, but can’t necessarily take
     the street . . . out of the man.

     Acknowledging that Loving grew up in the inner city where

there are gangs, drugs, and violence, that Loving’s brother

participated in some of that violence, and that Loving’s father

beat his mother, trial counsel responded that there was little

testimony as to what the real effect of this was on Loving

himself.   He pointed out that Ms. Williams was a good woman who

did everything she could, that his parents did not teach Loving

that it was alright to commit crimes, that while his mother took

9
  Defense counsel was referring to one of the first streets the
Loving family lived on in Rochester, which was identified as



                                29
Loving v. United States, No. 06-8006/AR

a belt to the children when the kids deserved it, they were not

abused children.   He noted that Loving himself was not a street

fighter like his brother Ronald and that Loving had

opportunities through a special school and through the boxing

program, both of which he gave up on.

      Of the nineteen mitigating circumstances that the military

judge instructed the members they must consider, at least six

related to the hardships from Loving’s background and

environment, including:    the “accused grew up in a low income

urban area in Rochester, New York;” the “accused grew up in a

single parent household with seven other children;” “Mr. Loving,

Sr., the accused’s father, and his [e]ffect on the accused;”

the “accused was a nonregent student in a troubled school system

who did not finish high school;” the “accused was exposed to

violence during his youth;” and “[d]uring his early youth, the

accused was a follower.”

3.   Mitigating Evidence at the DuBay Hearing

      In this case, the crux of our prejudice inquiry under

Strickland is whether there is a reasonable probability that the

mitigating evidence introduced at the DuBay hearing would have

produced a different result had it been introduced at trial.

See Wiggins, 539 U.S. at 537-38; see also Rompilla v. Beard, 545

U.S. 374, 393 (2005).   At the DuBay hearing, four witnesses


either “Oakbend” or “Oakman” during the trial and the DuBay


                                 30
Loving v. United States, No. 06-8006/AR

provided testimony about Loving’s background:   his sisters

Wendolyn and Gwendolyn Black, his brother Harryl Loving, and his

aunt, Alline Anderson.   Wendolyn Black and Harryl Loving had

testified at trial; the other two had not.   The defense also

presented the testimony of Ms. Janet Vogelsang, a social worker,

along with Ms. Vogelsang’s written biopsychosocial assessment of

Loving.   The defense also submitted records from the New York

State Department of Social Services documenting some of the

services, assistance, and home visits provided to the family

from 1967 to 1985, as well as some medical records related to

Loving’s birth and pediatric care.10




hearing.
10
   We have also reviewed the testimony of the other witnesses who
testified at the DuBay hearing, including the three trial
defense counsel, a forensic psychiatrist who consulted with
trial defense counsel, various capital litigation experts, an
expert in psychopharmacology, acquaintances of Loving who were
with him on the night of the murders, and a fellow
servicemember. The testimony of these witnesses pertains to
allegations of counsel’s deficient performance under the first
prong of Strickland or to counsel’s alleged failure to present
evidence in mitigation related to Loving’s intoxication and
mental state at the time of the offenses. As our analysis of
the prejudice prong of Strickland focuses on the mitigation
evidence related to Loving’s family and social background, we do
not recount this other testimony in detail here. See supra pp.
12-13 and n.5. Similarly, we reviewed but do not recount in
detail other documentary evidence presented at the DuBay hearing
including but not limited to submissions regarding the standards
of practice for capital defense attorneys, trial defense
counsel’s notes, Loving’s possible drug use around the time of
the murders, and medical records of Loving’s brothers, which
were generated in February 1989, November and December 1991, and
August and September 1992.



                                31
Loving v. United States, No. 06-8006/AR

     The testimony of all four family members addressed Loving’s

father’s drinking problem and his physical abuse toward their

mother.   A few specific incidents were described, including one

where Wendolyn hit Joe Loving Sr., with a hammer to protect her

mother and another where Joe Loving Sr., beat Lucille Williams

“so bad he stripped her, just tore everything off, and left her

in the street.”   The testimony also gave specifics as to

violence between the Loving family and their neighbors on

Oakbend Street.   Wendolyn testified that her family would get

into fist-fights with the neighbors and her uncle once brought

out a gun.   Gwendolyn testified that she was hit in the head



     In addition, affidavits from Gwendolyn and Wendolyn Black,
Ronald and Harryl Loving, and Lucille Williams, which were
signed in 1993, were submitted as part of the habeas
proceedings. These affidavits had previously been filed with
this court and we instructed the DuBay judge to evaluate the
credibility and reliability of the factual information contained
in the affidavits. Loving, 64 M.J. at 152. Noting that the
affidavits of Harryl Loving, Wendolyn Black, and Gwendolyn Black
“were drafted by an unknown third party and presented to each
individual for signature, not read (or not read thoroughly) by
the individual prior to signing, and contained inaccurate or
false information,” the DuBay judge found the information in
these three affidavits was not reliable. As to the affidavits
of Lucille Williams and Ronald Loving, who did not testify at
the DuBay hearing, the DuBay judge indicated that he was not
able to judge their credibility and found that the information
contained in those two affidavits was credible to the extent
that it was consistent with their testimony at trial or
otherwise corroborated by the testimony of the DuBay witnesses.
We review the DuBay judge’s credibility determinations for clear
error and find none. See United States v. Brownfield, 52 M.J.
40, 44 (C.A.A.F. 1999). As such, while we have reviewed the
affidavits, we find it appropriate to focus our discussion on
the background information provided through live testimony and
other documentary evidence.

                                32
Loving v. United States, No. 06-8006/AR

with a bat and her brother Joe was hit with a bed rail.      She

recalled hearing about an incident when “molly [sic] cocktails”

were thrown through the windows of the family home.    Ms.

Anderson described a night when bullets started coming through

the windows and they all had to duck to the floor.

     Gang violence was also addressed in the DuBay testimony.

Wendolyn believed that Loving was staying with his sister at the

time her house was burned down by a gang and Gwendolyn believed

the act was in retaliation for Loving’s “beating them up.”

Wendolyn recalled that Loving was having problems with gangs,

who “jumped on his friend.”    She also testified that a gang

“jumped on [her brother Darryl] and beat him senseless.”

     Loving’s siblings addressed questions as to whether the

children suffered any physical harm from the disciplinary

actions of their parents or siblings while growing up.    Harryl

and Gwendolyn indicated that Joe Loving Sr., would use a leather

belt to whip the boys’ bare skin.     When asked what prompted such

punishment, Harryl stated that “it’s hard to remember a lot of

the bad things that we did as kids.”    Harryl remembered one

incident when his mother spanked the children with a stitching

cord after they skipped school and went to a shopping center

where they started stealing.   Gwendolyn testified her mother

would discipline them with a belt, switch or extension cord.




                                 33
Loving v. United States, No. 06-8006/AR

       Wendolyn testified that while her mother was working

nights, she and her sister Gwendolyn would take care of the

younger children.    There were instances when Wendolyn would hit

the other children, “knock ‘em up-side the head or something”

with her hand.   Gwendolyn testified that she and Wendolyn would

teach the boys to fight each other and if they did not want to

fight, they would hit them to get them to fight.    Harryl denied

any recollection of Wendolyn abusing him.    At one point, Harryl

described his sibling relationship as follows:    “when we were

real young, we all hung together.     We played together.   We

played kickball.    We played football.   We played basketball.   We

played baseball.    We played volleyball.   We played dodge ball. .

. . [W]hen we were on Oakman Street, we all played together.”

       Each of the three siblings testified as to the drinking and

drug habits of the children growing up.     There was consensus

that all the children drank.   Drug use also seemed prevalent

among the children, although some appeared more involved with

drugs than others.   Although Gwendolyn denied it, there was

testimony from the other siblings that she sold drugs and Ronald

and Joe Jr., worked for her while they were teenagers.      Harryl

testified that Ronald supplied Loving with alcohol and

marijuana.   Gwendolyn testified that she saw Loving smoke

marijuana and drink Wild Irish Rose when he was fourteen years

old.



                                 34
Loving v. United States, No. 06-8006/AR

      The family witnesses offered other details about the Loving

family’s background.   Ms. Anderson discussed tragedies that

occurred in Ms. Williams’s life before she lived with Joe Loving

Sr.   There was also testimony as to Ms. Williams’s belief in

“roots,” which was described as “voodoo” that caused bad things

to happen to people.   Ms. Anderson testified that Ms. Williams

kept “clean homes” but there were big rats in the house.    There

was testimony that the family “struggled badly” and there “were

times we ate beans with no bread, no meat.    There were times we

ate bread, no meat, no vegetable, or anything -- no lettuce, no

nothing; just mayonnaise and tomato sandwiches, banana

sandwiches.   So we struggled -- wearing brother’s and sister’s

hand-me-downs.”

      As to additional details revealed during the DuBay hearing,

Wendolyn testified that Joe Loving Sr., sexually abused her when

she was twelve years old.   Gwendolyn moved out when she got

pregnant at the age of thirteen.     Mr. Williams, who eventually

married Loving’s mother, was described as an alcoholic, who

constantly drank and cursed.   He used to say things to the

children like “‘[t]he more education you have the stupider you

are,’ ‘You’re never going to amount to anything,’ ‘You don’t

have anything, you’re not going to get anything.’”

      The records from the Department of Social Services document

some of Ms. Williams’s struggles in supporting her family as a



                                35
Loving v. United States, No. 06-8006/AR

single mother.   The records show that they moved frequently due

to poor housing conditions before moving to Oakbend Street.

Various entries describe Ms. Williams in such terms as “hard

worker,” “a strict disciplinarian [and] at times rather harsh,”

“full control at home -- good disciplinarian,” “fiery temper.”

Loving’s brief cites to the social worker’s documentation of an

instance when Ms. Williams was hospitalized and it was reported

that one of the boys was not dressed adequately, that the house

was very messy, that the children were not being sufficiently

cared for, and that Ms. Williams objected to the assignment of a

homemaker.   By contrast, a follow-up entry after Ms. Williams

returned home from the hospital reflects that Ms. Williams is a

“wonderful mother and has no problem managing 8 children.   The

children are very well behaved and all follow their mother’s

guidance.    They each have assigned tasks to do at home and the

household is run very smoothly.”

     As part of the habeas proceedings, Ms. Vogelsang, a

clinical social worker, performed a biopsychosocial assessment

of Loving.   During the DuBay hearing, Ms. Vogelsang testified

that the most significant dynamic in Loving’s family, which has

spanned over generations, is a pattern of over reactive behavior

to violent behavior in the face of loss, abandonment, or

rejection.   Ms. Vogelsang testified that these behaviors

occurred “within a context of family violence, community



                                 36
Loving v. United States, No. 06-8006/AR

violence, abuse, alcohol and drug use, neglect, and a lack of

intervention on a long term or consistent basis especially

during the developmental years.”     Ms. Vogelsang identified a

number of factors that when present in a child’s home lead to

children who are unable to bounce back from adversity, and she

opined that most of these factors were present in Loving’s

home.11

     Ms. Vogelsang discussed her views as to the significance of

certain difficulties in Loving’s childhood and addressed such

issues as the traumatic social background of his parents, the

nature of the violence between his parents, the troubling role

his siblings played in his upbringing, his frequent moves among

insufficient housing before the age of five, the incidents of

violence brought against his home, and a pattern of drugs and

alcohol in his family.   Ms. Vogelsang also explained that when a

child lives in a community where there is a constant fear of

gang violence that at times has been realized against the child

himself or a family member, “a child either has to isolate


11
  These factors include lack of guidance and mental health
intervention, divorce and separation, multiple moves, abuse,
abandonment, homelessness, a disabled family member, immigrant
status, lack of role models, growing up witnessing violence, the
lack of consistent care giving, an inability to trust, worry
about violence in the home which affects learning in school,
impaired cognitive functioning, inability to deal with
aggressive feelings, repression of feelings, sense of
helplessness, and poor problem solving skills. According to Ms.
Vogelsang, all applied to Loving except immigrant status and
possibly impaired cognitive learning.

                                37
Loving v. United States, No. 06-8006/AR

themselves and engage in all the behaviors that go along with

that isolation, or they have to go out there and learn to

survive on those streets along with the other kids.”   She

presented a model designed to explain the impact of

“psychological battering” on children and provided examples from

Loving’s life that exemplified the model.   As to harsh physical

discipline, Ms. Vogelsang explained that “[m]any in the mental

health field believe that this has an impact on self worth, on

self-esteem, that you’re not valued as a human being.”

     Ms. Vogelsang stated:

     There is an accumulation of factors over time that do
     build, and if there is not anything to compensate for
     that, if there are not any positive factors, if
     there’s not a degree of resilience, then those people
     tend to be at high risk as adults. They tend to have
     poor judgment and insight; they tend to make poor
     decisions. They start doing all of that as children
     and then it leads them into adulthood where they are
     doing the same things only now they’re bigger and, you
     know, less safe.

Ultimately, in her written assessment, Ms. Vogelsang concluded:

          There was an accumulation of factors that over
     time resulted in the missocialization of Dwight
     Loving. Whatever potential he had, and he did have
     potential that was occasionally brought to light for
     brief periods, was not developed consistently enough
     to create the resilience he needed to resist the
     influence of his home and community during his
     developing years. Dwight succumbed to the patterns in
     his family and this is best illustrated by his
     inability to handle rejection and the self-medication
     of his pain with substances, both of which were
     prominent in the weeks and days prior to and during
     the crimes for which he stands convicted.




                               38
Loving v. United States, No. 06-8006/AR

4.   Discussion

      The Supreme Court has repeatedly recognized that “evidence

about the defendant’s background and character is relevant

because of the belief, long held by this society, that

defendants who commit criminal acts that are attributable to a

disadvantaged background, or to emotional and mental problems,

may be less culpable than defendants who have no such excuse.”

Boyde v. California, 494 U.S. 370, 382 (1990) (citation,

quotations marks, and emphasis omitted); see also Wiggins, 539

U.S. at 535 (“Petitioner thus has the kind of troubled history

we have declared relevant to assessing a defendant’s moral

culpability.”).    Without question, this case involves a

defendant with a disadvantaged background.    However, in contrast

to cases like Rompilla, 545 U.S. at 378, Wiggins, 539 U.S. at

515, and Williams v. Taylor, 529 U.S. 362, 369 (2000), which

addressed defense counsel’s complete failure to inform the

sentencing panel about the defendant’s difficult past, trial

defense counsel in this case presented a mitigation case to the

members that devoted a significant degree of attention to

Loving’s troubled childhood.

      In making his case for prejudice, Loving characterizes the

difference between the mitigation case presented at sentencing

and the mitigation case presented at the DuBay hearing as

“remarkable.”     Loving argues that at the trial his defense



                                  39
Loving v. United States, No. 06-8006/AR

counsel presented only a “superficial glance at the horrific

reality of Dwight Loving’s life” and did not provide “a true

picture of the horrors of his life.”   He contends that the

mitigation evidence presented at trial was “just general

background information concerning the Loving family without any

real focus on Dwight Loving” and that trial counsel highlighted

this shortcoming during his argument to the members.   Quoting

Wiggins, 539 U.S. at 537, Loving argues that “[i]f the panel had

heard the full extent of this ‘excruciating life history’ and

its impact on his development and mental state ‘there is a

reasonable probability that at least one juror would have struck

a different balance.’”

     In a comparable context, the United States Court of Appeals

for the Sixth Circuit articulated a framework that we find

useful:   “[T]o establish prejudice, the new evidence that a

habeas petitioner presents must differ in a substantial way --

in strength and subject matter -- from the evidence actually

presented at sentencing.”   Hill v. Mitchell, 400 F.3d 308, 319

(6th Cir. 2005); cf. Williams v. Allen, 542 F.3d 1326, 1342

(11th Cir. 2008) (finding prejudice when the new mitigation

evidence “paints a vastly different picture of [the defendant’s]

background” than testimony presented at trial); Buckner v. Polk,

453 F.3d 195, 207 (4th Cir. 2006) (concluding that there is no

prejudice under Strickland when new evidence merely “rounds out



                                40
Loving v. United States, No. 06-8006/AR

the details of a personal history already presented to the

jury”).   In this case, the mitigation case presented at the

DuBay hearing provided some new information and arguably did

more than “round[] out the details” of Loving’s personal history

by offering additional grim and graphic information about

Loving’s disadvantaged upbringing.   Buckner, 453 F.3d at 207.

However, it did not ultimately change the sentencing profile

presented by defense counsel at trial.    We do not believe that

the new evidence sufficiently differed in strength and subject

matter from the information considered by the members at trial

to establish prejudice in this case.

     As made clear by our description of the sentencing evidence

above, the evidence presented at the trial showed that Loving

was the youngest of eight children raised by a single mother on

welfare in a dangerous section of the inner city.   The members

were informed that Loving’s mother had to stop working because

of her narcolepsy, that she struggled financially, and that she

suffered severe physical abuse at the hands of Loving’s

alcoholic father in the presence of the children.   The evidence

showed that Loving’s childhood environment and family life were

marked by alcoholism, drugs, family violence, neighborhood

violence, school violence, and gang violence.

     The evidence adduced during the DuBay hearing emphasized

Loving’s father’s drinking problem and provided specific



                                41
Loving v. United States, No. 06-8006/AR

examples of violence in Loving’s home and neighborhood.   There

is no doubt that the DuBay evidence added some detail about the

violence the family witnessed and participated in, the financial

struggles they endured, and the children’s exposure to drugs and

alcohol, but it was largely cumulative of the type of

information presented to the members at trial.   The evidence

adduced during the DuBay also emphasized that Ms. Williams was a

harsh disciplinarian and punished the children by using a belt,

switch, or extension cord.   Again, this is largely cumulative of

evidence presented at sentencing where Wendolyn Black testified

that their mother “would beat” the children, “whip [them] with

the belt,” or “hit [them] with her hand.”12

     We note that some new information came out of the DuBay

proceedings.   The DuBay hearing revealed instances where the

children mistreated each other and Loving points to one instance

of neglect documented in the social service records when their

mother was hospitalized and the children were without adequate

adult supervision.   While we do not diminish the troubling

nature of these circumstances, we do not believe the evidence


12
  The DuBay evidence established that Loving’s father also
disciplined the children by hitting them with a belt, which
differed from the trial presentation where he testified only
that he spanked the children so that it would “hurt a little
bit.” However, the basic fact that the children endured harsh
corporal punishment was consistent between the presentations,
and the DuBay evidence does not raise allegations about physical
abuse by Loving’s parents any more so than the sentencing
evidence presented at trial.

                                42
Loving v. United States, No. 06-8006/AR

differs in kind or degree from circumstances as they were

presented to the members.   This is particularly so considering

that the DuBay hearing offered some contrasting evidence on

these particular points.    Harryl Loving’s testimony during the

DuBay described how the children played together when they were

young and denied that his sister abused them.   After following

up on Ms. Williams’s return from the hospital the same social

service records documenting the neglect characterize Loving’s

mother as a “wonderful mother.”

     We recognize, moreover, that the DuBay hearing also touched

on the history of violence and abuse in Lucille Williams’s

upbringing, her belief in voodoo, Gwendolyn’s teenage pregnancy

and Wendolyn’s sexual abuse, none of which were raised at the

initial trial.   Further, the DuBay hearing included testimony

from a social worker explaining how Loving’s traumatic childhood

negatively impacted his development.

     As to the new evidence, including the expert’s testimony

about the impact that Loving’s tragic childhood had on his

development, we simply do not find the additional information to

be sufficiently compelling as to establish prejudice in this

case, where the aggravating factors are overwhelming and where

the members were presented with substantial information

regarding Loving’s disadvantaged youth.   Loving killed two cab

drivers in separate instances by shooting them in the back of



                                  43
Loving v. United States, No. 06-8006/AR

the head after each one complied with his demand for money.    He

tried to kill again but the third cab driver struggled the gun

away from Loving as he was about to shoot him.   The members

found three required aggravating factors beyond a reasonable

doubt and imposed the death penalty despite being instructed on

nineteen mitigating factors by the military judge, including

substantial evidence as to Loving’s disadvantaged background.

     Certainly the mitigation evidence presented at the DuBay

hearing reinforced and emphasized Loving’s traumatic childhood.

It also provided some new details about the hardships he and his

family endured as he was growing up and included expert

testimony that he lacked the resilience to resist the influence

of his home and community during his developing years and

eventually succumbed to the patterns of his family life.

However, the members were aware that Loving’s childhood

environment and family life were scarred by alcoholism, drugs,

family violence, neighborhood violence, school violence, and

gang violence.   And while we do not diminish the potential value

of expert testimony in capital sentencing proceedings that

addresses how a traumatic childhood could negatively impact a

defendant’s development, the members in this case were at least

exposed to this theory through defense counsel’s argument, which

urged them to consider that Loving’s background made him less

able to handle situations like those he confronted on the night



                                44
Loving v. United States, No. 06-8006/AR

of his crimes.13   We conclude that the new details as to these

circumstances do not alter the sentencing profile in a material

manner.

     Reweighing the aggravating evidence against the totality of

mitigating evidence, we are convinced beyond a reasonable doubt

that if the members had been able to place the additional

evidence adduced during the habeas proceedings on the mitigating

side of the scale, a reasonable probability that at least one

member would have struck a different balance does not exist.      We

conclude that Loving has failed to meet his burden to establish

prejudice under Strickland and deny the petition for

extraordinary relief in the nature of a writ of habeas corpus.

                              DECISION

     Loving’s petition for extraordinary relief in the nature of

a writ of habeas corpus is denied.




13
  Defense counsel had been consulting with a forensic
psychiatrist who was competent to assess the impact of Loving’s
traumatic social background on his development and to advise
defense counsel in this regard. This expert was able to inform
defense counsel’s understanding of the social history nexus and
to influence how defense counsel presented this information to
the members.

                                 45
Loving v. United States, No. 06-8006/AR


     EFFRON, Chief Judge (concurring):

     I concur in the majority opinion.    I write separately

solely to note adherence to my previously expressed views in

Loving v. Hart, 47 M.J. 438, 454-60 (C.A.A.F. 1998) (Effron, J.,

concurring in part and dissenting in part), regarding the

distinct issues raised in that writ-appeal concerning the voting

procedures during sentencing at petitioner’s court-martial.
Loving v. United States, No. 06-8006/AR


     STUCKY, Judge (concurring in part and in the result):

     I have concerns similar to those raised by Judge Ryan

regarding the appropriateness of applying to the review of this

Court’s own previous decisions the same habeas standards, under

28 U.S.C. § 2254 (2006), as federal courts apply in habeas

reviews of state court decisions.    Judge Ryan also makes an

interesting point about our habeas corpus jurisdiction in cases

in which direct appellate review has been completed.    I write

separately today, however, solely because I am convinced that

the defense team’s performance was not deficient.     I concur with

the majority’s conclusion that, in any event, Loving failed to

show that he was prejudiced by his counsel’s performance.

               I.   Effective Assistance of Counsel

                            A.    The Law

     “A military accused is entitled under the Constitution and

Article 27(b), Uniform Code of Military Justice, (UCMJ), 10

U.S.C. § 827(b) (2000), to the effective assistance of counsel.”

Denedo v. United States, 66 M.J. 114, 127 (C.A.A.F. 2008).      In

reviewing claims of ineffective assistance of counsel, this

Court employs the two-part standard of Strickland v. Washington,

466 U.S. 668, 692-93 (1984).     United States v. Gutierrez, 66

M.J. 329, 330-31 (C.A.A.F. 2008).

     First, the defendant must show that counsel’s
     performance was deficient. This requires showing that
     counsel made errors so serious that counsel was not
Loving v. United States, No. 06-8006/AR


     functioning as the “counsel” guaranteed the defendant
     by the Sixth Amendment. Second, the defendant must
     show that the deficient performance prejudiced the
     defense. This requires showing that counsel’s errors
     were so serious as to deprive the defendant of a fair
     trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687.   These same standards apply to

capital sentencing proceedings.   Id. at 686 (Strickland itself

was a capital sentencing case).

     “This Court reviews factual findings under a clearly

erroneous standard, but looks at the questions of deficient

performance and prejudice de novo.”   United States v. Gutierrez,

66 M.J. 329, 330-31 (citing United States v. Paxton, 64 M.J.

484, 488 (C.A.A.F. 2007)); United States v. Davis, 60 M.J. 469,

473 (C.A.A.F. 2005).

     The first part of the test requires an appellant to “show

that counsel’s representation fell below an objective standard

of reasonableness” “under prevailing professional norms.”

Strickland, 466 U.S. at 688 (citations omitted).   “[A] court

deciding an actual ineffectiveness claim must judge the

reasonableness of counsel’s challenged conduct on the facts of

the particular case, viewed as of the time of counsel’s

conduct.”   Id. at 690.

     Judicial scrutiny of counsel’s performance must be
     highly deferential. . . . A fair assessment of
     attorney performance requires that every effort be
     made to eliminate the distorting effects of hindsight,
     to reconstruct the circumstances of counsel’s
     challenged conduct, and to evaluate the conduct from


                                  2
Loving v. United States, No. 06-8006/AR


     counsel’s perspective at the time. Because of the
     difficulties inherent in making the evaluation, a
     court must indulge a strong presumption that counsel’s
     conduct falls within the wide range of reasonable
     professional assistance; that is, the defendant must
     overcome the presumption that, under the
     circumstances, the challenged action “might be
     considered sound trial strategy.”

Id. at 689 (citations omitted); United States v. Perez, 64 M.J.

239, 243 (C.A.A.F. 2006).    “[T]he court should recognize that

counsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of

reasonable professional judgment.”     Strickland, 466 U.S. at 690.

     As the Court of Appeals concluded, strategic choices
     made after thorough investigation of law and facts
     relevant to plausible options are virtually
     unchallengeable; and strategic choices made after less
     than complete investigation are reasonable precisely
     to the extent that reasonable professional judgments
     support the limitations on investigation. In other
     words, counsel has a duty to make reasonable
     investigations or to make a reasonable decision that
     makes particular investigations unnecessary. In any
     ineffectiveness case, a particular decision not to
     investigate must be directly assessed for
     reasonableness in all the circumstances, applying a
     heavy measure of deference to counsel’s judgments.

Strickland, 466 U.S. at 690-91.

                            B.   Discussion

     Appellant focuses his complaint of deficient performance on

two aspects of the trial defense team’s conduct:    (1) the

failure to hire a mitigation specialist; and (2) the claim that

a mitigation theory was initially formulated, and the subsequent




                                   3
Loving v. United States, No. 06-8006/AR


investigation was restricted to its narrow confines.   I find

neither argument persuasive.

          (1)   Failure to hire a mitigation specialist

     Citing the 1989 American Bar Association Guidelines for the

Appointment and Performance of Counsel in Death Penalty Cases

(ABA Guidelines), Appellant asserts that the “prevailing

professional norms” at the time required the defense team to

secure the assistance of experts who could assist in the

investigation and presentation of mitigating evidence.    ABA

Guideline 11.4.1.D.7(D) provides that “[c]ounsel should secure

the assistance of experts where it is necessary or appropriate

for . . . presentation of mitigation.”    There is no requirement,

even today, that a mitigation specialist be hired in every death

penalty case.

     Despite a gradually emerging practice of hiring a social

worker or other mitigation specialist, the prevailing norm at

the time of Appellant’s trial was for the defense team to

conduct a reasonable, independent investigation into the

accused’s family and background in an effort to discover

mitigating evidence.

     While use of an analysis prepared by an independent
     mitigation expert is often useful, we decline to hold
     that such an expert is required. What is required is
     a reasonable investigation and competent presentation
     of mitigation evidence.




                                4
Loving v. United States, No. 06-8006/AR


United States v. Loving, 41 M.J. 213, 250 (C.M.A. 1994).      As the

DuBay hearing1 judge concluded, there was certainly no consensus

as to the need for mitigation specialists in 1989.

        Appellant was sentenced to death on April 3, 1989, and the

ABA did not adopt the Guidelines until its February 1989 Midyear

Meeting, while the defense team was litigating Appellant’s case.

The ABA specifically noted in the introduction to the Guidelines

that (1) “[w]hile some local standards may exist for capital

representation, national guidelines on the assignment and

performance of counsel in capital cases did not exist prior to

these Guidelines,” and (2) the ABA House of Delegates’

resolution approving the Guidelines specifically provided “for

such exceptions to the Guidelines as may be appropriate in the

military.”    Although we have found the Guidelines “instructive,”

this Court has “expressly declined to mandate that military

defense counsel meet” those guidelines.    United States v.

Murphy, 50 M.J. 4, 9 (C.A.A.F. 1998) (concerning the appointment

of death penalty qualified attorneys) (citing Loving, 41 M.J. at

300).

        Appellant further argues that, contrary to the Supreme

Court’s holdings in Wiggins v. Smith, 539 U.S. 510 (2003),

Williams v. Taylor, 529 U.S. 362 (2000), and Strickland, the

defense team formulated its theory of the sentencing case before

1
    United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).

                                   5
Loving v. United States, No. 06-8006/AR


they fully investigated, restricted the rest of the

investigation to facts supporting that theory, and thus failed

to discover important mitigating evidence.    In Wiggins and

Strickland, the trial defense counsel attempted “to justify

their limited investigation as reflecting a tactical judgment

not to present mitigating evidence at sentencing and to pursue

an alternative strategy instead.”    Wiggins, 539 U.S. at 521

(referring to Strickland, 466 U.S. at 673).    In Williams, the

Supreme Court found the “ineffectiveness claim meritorious”

because “counsel’s failure to uncover and present voluminous

mitigating evidence at sentencing could not be justified as a

tactical decision to focus on Williams’ voluntary confessions,

because counsel had not ‘fulfilled their obligation to conduct a

thorough investigation of the defendant’s background.’”   Id. at

522 (quoting Williams, 529 U.S. at 396).

     Appellant’s defense team did form a tentative sentencing

theory shortly after being assigned to the case, and Appellant

is correct in asserting that now, years after he was sentenced

to death, his family has come forward with some mitigating

evidence.   But the defense team at the time acquired all of the

relevant school, medical, mental health, and military records.

They interviewed Appellant extensively, visited his hometown,

spoke to family, friends, teachers, law enforcement officials,

and the community center boxing coach.    They learned much about


                                 6
Loving v. United States, No. 06-8006/AR


Appellant, his background, his family, and the community from

which he entered military service, and were fully able to

present that evidence to the court-martial.   They also obtained

the services of a forensic psychiatrist who had a law degree.

The forensic psychiatrist reviewed all the records, including

the sanity board and statements, spoke with the witnesses and at

least one member of the sanity board, and examined Appellant.

     Ultimately, the defense team decided not to have the

forensic psychiatrist testify because they feared it would cause

the military judge to release the full contents of the sanity

board to the prosecution, revealing that Appellant had

“sociopathic tendencies.”   This is precisely the kind of

tactical decision that, under Strickland, we will not second-

guess.   466 U.S. at 689; United States v. Perez, 64 M.J. at 243;

United States v. Anderson, 55 M.J. 198, 202 (C.A.A.F. 2001).

     In Wiggins and Williams (529 U.S. at 396), the defense

teams abandoned their investigations prematurely because of the

constraints of their tentative theories of their cases.

Appellant’s defense team, on the other hand, did everything that

the counsel in those cases failed to do.   The scope of their

investigation was reasonable under the prevailing professional

norms “as seen ‘from counsel’s perspective at the time.’”

Wiggins, 539 U.S. at 523 (quoting Strickland, 466 U.S. at 689).

Their performance did not fall “below an objective standard of


                                 7
Loving v. United States, No. 06-8006/AR


reasonableness.”   Strickland, 466 U.S. at 688.   They were,

therefore, not ineffective.




                                 8
Loving v. United States, 06-8006/AR


     RYAN, J., (dissenting):

                         I.    Introduction

     Direct judicial review of this case was completed in 1996

upon affirmation of Petitioner Loving’s conviction by both this

Court and the Supreme Court.    United States v. Loving (Loving

I), 41 M.J. 213 (C.A.A.F. 1994); Loving v. United States (Loving

II), 517 U.S. 748 (1996).     In 2005, this Court considered and

rejected Loving’s petition for a writ of error coram nobis, but

suggested that it could and would entertain a petition for a

writ of habeas corpus.   Loving v. United States (Loving III), 62

M.J. 235, 256 (C.A.A.F. 2005).    In 2006, the Court entertained

the present petition and ordered an evidentiary hearing.1    Loving


1
  The Court ordered that Loving’s case be returned directly to
this Court following the evidentiary hearing, rather than first
allowing the appropriate convening authority and court of
criminal appeals (CCA) to review the military judge’s factual
findings. Loving IV, 64 M.J. at 152-53. The Court did so
without considering how such makeshift collateral review of
final cases would impact procedural mechanisms we have already
made up. By commanding that the case be returned directly to
this Court, the Court disturbed the multi-step review of the
records of courts-martial provided by the Uniform Code of
Military Justice (UCMJ), see generally Articles 60, 66, 67,
UCMJ, 10 U.S.C. §§ 860, 866, 867 (2006) (establishing the
various steps for review of courts-martial), that our practice
of remanding for “DuBay hearings” seeks to emulate. See
generally United States v. DuBay, 17 C.M.A. 147, 149, 37 C.M.R.
411, 413 (C.M.A. 1967) (setting forth the procedure for
developing new factual matters after trial, to include a
convening authority referring the case to a court-martial for an
evidentiary hearing to enter findings of fact and conclusions of
law on the record for further review by the convening authority
and, if necessary, by the appropriate CCA and CAAF). This
judicially crafted DuBay procedure at least creates the legal
Loving v. United States, 06-8006/AR


v. United States (Loving IV), 64 M.J. 132, 132 (C.A.A.F. 2006).

     The majority now rules on the merits of this petition, and

determines that it should be denied.    Loving v. United States

(Loving V), __ M.J. __ (2-3) (C.A.A.F. 2009).     To reach this

conclusion, the majority entertains a habeas corpus petition for

a case in which direct review is complete.     This Court lacks

jurisdiction to hear such a petition.    Rather, jurisdiction

falls squarely within the authority of Article III courts, both

by statute and historic practice.     I would dismiss the petition

for lack of jurisdiction and, therefore, respectfully dissent.

             II.   The Jurisdiction Fiction:   Loving III

     The assumption of jurisdiction made by this Court in 2005

and echoed today was not based on any statute authorizing us to

conduct habeas review of a case in which direct review has been

completed.   And it was made despite clear statutory jurisdiction

over such cases by Article III courts.    The labyrinthine

reasoning that underlies the 2005 conclusion that this Court had

jurisdiction is unsustainable.    See infra 12-17.

     To the extent review of a case in which direct review is


fiction that we are only reviewing facts in “the record,” by
having the new facts reviewed by the convening authority and
CCA. See Denedo v. United States, 66 M.J. 114, 136 (C.A.A.F.
2008) (Ryan, J., dissenting) (noting the “unwieldy and imperfect
system” created by DuBay to enable additional factfinding). In
this case the facts considered are not properly in “the record”
-- we do not have, because we bypassed it, the benefit of review
of the military judge’s factual findings by either the convening
authority or the Army Court of Criminal Appeals.


                                  2
Loving v. United States, 06-8006/AR


complete may be undertaken by this Court at all, the Supreme

Court’s recent decision in United States v. Denedo clarifies

that such jurisdiction rests on the nature of the writ in

question; it must constitute “direct review” of the original

case under Article 67, UCMJ, and not rely on a general notion of

continuing jurisdiction over cases where we once had

jurisdiction.   129 S. Ct. 2213 (2009).   Compare id. at 2221

(distinguishing jurisdiction over a coram nobis petition -- “a

belated extension of the original proceeding,” dependent

entirely upon whether there was jurisdiction over the original

proceeding under Articles 66 and 67, UCMJ -- and a habeas corpus

petition, “‘a separate civil proceeding’” (quoting United States

v. Morgan, 346 U.S. 502, 505 n.4 (1954)); with Loving III, 62

M.J. at 250 (“Congress gave this Court the authority to conduct

a mandatory review of death penalty cases.   Under this

authority, this Court remains the primary judicial body with

jurisdiction over Petitioner's case, and this Court has

authority to reexamine its prior decision in this case.”).      Even

if the relevant statutes and historic practice did not clearly

establish that Article III courts, and not this Court, have

jurisdiction over this habeas petition, Denedo compels that

conclusion.   See infra pp. 12-13.




                                 3
Loving v. United States, 06-8006/AR


       A. This Court Has No Jurisdiction Over This Habeas
                 Petition Under Article 67, UCMJ

     This Court’s jurisdiction is strictly defined by Congress

in Article 67, UCMJ.   See Christianson v. Colt Indus. Operating

Corp., 486 U.S. 800, 818 (1988) (“‘Courts created by statute can

have no jurisdiction but such as the statute confers.’” (quoting

Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850))).   Although

created to oversee the military justice system, this Court is

limited in both the types of cases it may review and the extent

to which it may review them.   See Article 67(c), UCMJ (“[T]he

Court of Appeals for the Armed Forces may act only with respect

to the findings and sentence as approved by the convening

authority and as affirmed or set aside as incorrect in law by

the Court of Criminal Appeals.”); Denedo, 129 S. Ct. at 2223

(emphasizing that C.A.A.F.’s jurisdiction is limited by Article

67, UCMJ); Clinton v. Goldsmith, 526 U.S. 529, 535-37 (1999)

(C.A.A.F.’s “jurisdiction is narrowly circumscribed. . . . [It]

is accorded jurisdiction by statute (so far as it concerns us

here) to ‘review the record in [specified] cases reviewed by’

the [CCAs] . . . .   [T]he CAAF spoke too expansively when it

held itself to be ‘empowered by the All Writs Act to grant

extraordinary relief in a case in which the court-martial

rendered a sentence that constituted an adequate basis for

direct review . . . .” (citations omitted)).



                                 4
Loving v. United States, 06-8006/AR


     Following direct review by this Court, an accused may

petition the Supreme Court for review.   Article 67a, UCMJ, 10

U.S.C. § 867a (2006).   After the Supreme Court has acted on that

petition, the “judgment as to the legality of the proceedings is

final,” ending direct judicial review.   Article 71(c), UCMJ, 10

U.S.C. § 871 (2006); accord Rule for Courts-Martial (R.C.M.)

1209(a).   The Supreme Court’s affirmation of Loving’s conviction

in 1996 marked the end of direct judicial review in this case.

See Article 71(c), UCMJ; Loving IV, 64 M.J. at 137.

     After direct judicial review is complete in a capital case,

the military justice system provides three possible extra-

judicial remedies that stand between an accused and the

carrying-out of his sentence:   a successful petition to the

Judge Advocate General for a new trial under Article 73, UCMJ,

10 U.S.C. § 873 (2006); action taken by a service secretary

under Article 74, UCMJ, 10 U.S.C. § 874 (2006); and presidential

approval or commutation of the capital sentence under Article

71(a), UCMJ.   While the availability of these extra-judicial

remedies may impact the res judicata effect of judgments under

Article 76, UCMJ, 10 U.S.C. § 876 (2006), it does not change the

fact that direct judicial review is complete.

     In contrast with the direct judicial review authorized and

dictated under Articles 66 and 67, UCMJ, and R.C.M. 1201-1205

and 1209, no statutory authority, guidance, or process for


                                 5
Loving v. United States, 06-8006/AR


collateral review by this Court exists once direct review has

been completed.2   See Noyd v. Bond, 395 U.S. 683, 695 n.7 (1969)

(distinguishing between this Court’s power to issue a writ of

habeas corpus in cases “like the present one [a case pending

direct review], which may ultimately be reviewed by [the] Court”

and “a case which the [Court] is not authorized to review under

the governing statutes”);3 Burns v. Wilson, 346 U.S. 137, 141


2
  Nor does practice within the military justice system reflect a
different understanding. Since the current military justice
system was created under the UCMJ in 1951, there have been
twelve executions and fourteen death sentences that were
affirmed on direct review but commuted by the President. Dwight
H. Sullivan, “Executive Branch Consideration of Military Death
Sentences,” Evolving Military Justice 137 (Eugene R. Fidell &
Dwight H. Sullivan eds., 2002). In no capital case other than
this one has a writ of habeas corpus been sought in any court
before the President approved the sentence. (For cases in which
a habeas petition was filed after presidential approval of the
death sentence, see, for example, Thomas v. Davis, 249 F.2d 232
(10th Cir. 1957); Day v. Wilson, 247 F.2d 60 (D.C. Cir. 1957);
and Suttles v. Davis, 215 F.2d 760 (10th Cir. 1954).) And no
military prisoner with a capital sentence -- including one
prisoner currently facing a presidentially approved capital
sentence -- has ever requested a writ of habeas corpus from this
Court after direct review was completed, even after the
President acted. See Petitioner’s Response to Motion for
Reconsideration, To Lift Stay of Execution and Request for Oral
Argument at 5, Gray v. Gray, No. 08-3289-RDR (D. Kan. Dec. 2,
2008) (“Private Gray is seeking federal habeas court review for
the first time and he has not delayed commencing this action.
In fact, until the President approved his death sentence, there
was no action available.”).
3
  The latter part of this quotation is neither cited nor
addressed by the majority. And with respect to the part of the
quotation that is cited, the majority fails to explain how,
where direct review is completed, the fact that the President
has not yet acted pursuant to Article 71(a), UCMJ, transforms
this case into one where further review by this Court is
authorized. No review of presidential action under Article


                                 6
Loving v. United States, 06-8006/AR


(1953) (plurality opinion) (recognizing a petition for a new

trial as the only mechanism within the military justice system,

apart from ordinary appellate review, to collaterally attack a

judgment); United States v. Murphy, 50 M.J. 4, 5-6 (C.A.A.F.

1998) (recognizing the absence of rules or procedures for post-

conviction collateral attacks in the military justice system and

thus reviewing an ineffective-assistance-of-counsel claim on

direct review); Witham v. United States, 355 F.3d 501, 505 (6th

Cir. 2004) (“[N]either the [UCMJ] nor the Manual for Courts-

Martial provides for collateral review within the military

courts.”); Gilliam v. Bureau of Prisons, 2000 U.S. App. LEXIS

3684, at *4, 2000 WL 268491, at *2 (8th Cir. Mar. 10, 2000)

(“‘Unlike the practice in the United States Circuit Courts of

Appeal and District Courts, neither the UCMJ . . . nor the

Manual for Courts-Martial . . . provides procedures for

collateral, post-conviction attacks on guilty verdicts.’”

(quoting Murphy, 50 M.J. at 5)).

             B. Article III Courts Have Jurisdiction
                    Over This Habeas Petition

      Article III courts, though, have clear statutory

jurisdiction and authority to collaterally review convictions by

petitioners held in custody when constitutional error is


71(a), UCMJ, is provided for or authorized by any statute.
Other than by ipse dixit, this case is not one that “may
ultimately be reviewed by” this Court. Noyd, 395 U.S. at 695
n.7.


                                   7
Loving v. United States, 06-8006/AR


alleged.   See 28 U.S.C. § 1331 (2006) (providing Article III

district courts with original jurisdiction over federal

questions); id. § 2241(a) (“Writs of habeas corpus may be

granted by the Supreme Court, any justice thereof, the district

courts and any circuit judge within their respective

jurisdictions.”); id. § 2241(c)(3) (extending writ of habeas

corpus to prisoners “in custody in violation of the Constitution

or laws or treaties of the United States”); Denedo, 129 S. Ct.

at 2226 n.1 (Roberts, C.J., dissenting) (recognizing that court-

martial convictions may be collaterally attacked in an Article

III court, which has jurisdiction under §§ 1331 and 2241);

Goldsmith, 526 U.S. at 537 n.11 (1999) (“[O]nce a criminal

conviction has been finally reviewed within the military system,

. . . [a servicemember] 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, 346 U.S. at 139 (plurality opinion)

(recognizing that the federal civil courts have jurisdiction

over habeas corpus petitions and that “[b]y statute Congress has

charged them with the exercise of that power” (citing § 2241; In

re Yamashita, 327 U.S. 1, 8 (1946)).

     And while the statutes are already clear regarding the

court system to which a habeas corpus petition should be

addressed after direct review is complete, it is further


                                 8
Loving v. United States, 06-8006/AR


instructive that Article III courts have been collaterally

reviewing court-martial convictions where direct review has been

completed since at least the mid-1800s.   See Ex parte Reed, 100

U.S. 13, 19-23 (1879) (entertaining a habeas corpus petition

alleging that a military court-martial lacked jurisdiction over

the petitioner).   Since that time, debate has focused not on to

whom the writ should be addressed, but rather on the appropriate

procedures, claims, and standards of review for collaterally

attacking court-martial convictions in federal court.   See,

e.g., Gusik v. Schilder, 340 U.S. 128, 131 (1950) (requiring

exhaustion of military remedies before allowing collateral

review in federal courts); Burns, 346 U.S. at 142 (plurality

opinion) (recognizing collateral review of constitutional claims

that have not been “fully and fairly” considered by the military

justice system); Schlesinger v. Councilman, 420 U.S. 738, 749-53

(1975) (holding that Article 76, UCMJ, does not affect the

jurisdiction of Article III courts or insulate military

convictions from collateral review in federal court).   By

comparison, only since the mid-1960s has this Court in any way

asserted the power of collateral review over final convictions.

See United States v. Frischholz, 16 C.M.A. 150, 152-53, 36

C.M.R. 306, 308-09 (1966) (holding that the All Writs Act

empowers this Court to issue a post-conviction writ of coram

nobis).


                                 9
Loving v. United States, 06-8006/AR


           C.   The All Writs Act Cannot And Does Not Give
                  This Court Jurisdiction Where None
                     Exists Under Article 67, UCMJ

       Despite the absence of express statutory jurisdiction to

entertain a habeas corpus petition, this Court in 2005 found

that it had such authority under the All Writs Act, 28 U.S.C. §

1651, based on our prior direct review jurisdiction under

Article 67, UCMJ.    Loving III, 62 M.J. at 245-46, 250; cf.

Loving V, __ M.J. __ (7) (asserting that cases pending

presidential action remain subject to extraordinary writ

consideration by this Court).    To do so, the Court distinguished

Goldsmith, where the Supreme Court held that this Court erred by

directing the Air Force not to drop a servicemember from its

rolls (an administrative action), stating this Court was “not

given authority, by the All Writs Act or otherwise, to oversee

all matters arguably related to military justice.”    526 U.S. at

536.   The Loving III Court found Goldsmith inapplicable because

unlike that case, it reasoned, Loving III involved a finding and

sentence imposed by a court-martial that was not final under

Article 76, UCMJ, such that the extraordinary relief requested

would be in aid of the Court’s direct review jurisdiction under

Article 67, UCMJ.    Loving III, 62 M.J. at 246.

       But Article 76, UCMJ, does not change the fact that direct

review is complete.    Article 76, UCMJ, codifies the common-law

principle of finality of judgments; it neither expands nor


                                  10
Loving v. United States, 06-8006/AR


contracts the subject-matter jurisdiction of either this Court,

Denedo, 129 S. Ct. at 2221, 2223 (emphasizing that the principle

that Congress decides federal courts’ jurisdiction “applies with

added force to Article I tribunals” and noting that Article 76,

UCMJ, sets out a rule of finality rather than a jurisdictional

bar), or Article III courts, Councilman, 420 U.S. at 749.    See

also Loving III, 62 M.J. at 247 (recognizing that the

President’s approval or commutation of the death sentence “is

not part of the direct judicial review of the case”).

     Even more curiously, the Loving III Court explicitly

recognized that it was empowered to act by neither the general

federal habeas statute, § 2241, nor by any other congressionally

enacted habeas corpus statute.   62 M.J. at 255 (noting that the

plain language of §§ 2241 and 2255 did not include this Court).

The Court nonetheless went on to determine that the All Writs

Act -- a residual source of writ authority in aid of existing

jurisdiction -- authorized it to issue the writ in aid of its

former direct review jurisdiction.    Id. at 256.   See generally

Article 67(a)(1), UCMJ (providing for mandatory review of “all

cases in which the sentence, as affirmed by a Court of Criminal

Appeals, extends to death”).

     Supreme Court precedent addressing this Court’s authority

under the All Writs Act, however, makes clear this holding was

in error.   Although the Supreme Court has confirmed that this


                                 11
Loving v. United States, 06-8006/AR


Court may sometimes issue writs under the Act, its

interpretation of the scope of the Act and of our jurisdiction

demonstrates that the Act does not authorize this Court to

entertain a collateral attack through a habeas corpus petition

that is not part of the direct review authorized by statute.

See Noyd, 395 U.S. at 695 n.7 (noting that although there was no

longer “any doubt as to the power of the Court of Military

Appeals to issue an emergency writ of habeas corpus” under the

All Writs Act, the power was recognized only for cases “which

may ultimately be reviewed by th[e] court” and not cases “which

the [court] is not authorized to review under the governing

statutes”).

     In Goldsmith, the Supreme Court made it clear that

jurisdiction on direct review of a court-martial conviction does

not establish jurisdiction for all potential post-conviction

remedies.    526 U.S. at 536.   Reversing this Court’s decision,

the Supreme Court stated that this Court could not always “act

as a plenary administrator even of criminal judgments it has

affirmed.”    Id. (emphasis added).    The Supreme Court noted our

opinion “spoke too expansively” when it decided that former

jurisdiction over the accused’s court-martial conviction

triggered the provisions of the All Writs Act.     Id.

     Likewise, in Denedo the Supreme Court reaffirmed that the

authority granted under the All Writs Act “does not determine


                                  12
Loving v. United States, 06-8006/AR


the anterior question whether military courts have jurisdiction

to entertain a petition for [extraordinary relief].”    129 S. Ct.

at 2221.   The Act itself is “not a source of subject-matter

jurisdiction.”   Id. at 2222.   Further, in holding that this

Court could issue a writ of coram nobis under the facts of

Denedo, the Supreme Court relied heavily on the nature of coram

nobis as a “belated extension of the original proceeding during

which the error allegedly transpired.”   Id. at 2221.   A military

court’s jurisdiction to issue such a writ was thus derived from

“the earlier jurisdiction it exercised to hear and determine the

validity of the conviction on direct review.”   Id. at 2222.

     Unlike the writ in Denedo, the relief requested by Loving

-- a writ of habeas corpus -- is not appropriately entertained

by this Court under the All Writs Act for three reasons.   First,

unlike a writ of coram nobis, habeas corpus is not a “belated

extension” of the original court-martial proceeding.    It is

instead an entirely separate civil proceeding in which the

petitioner asserts his rights against those who hold him in

custody.   See id. at 2221 (“[C]oram nobis is ‘a step in the

criminal case and not, like habeas corpus where relief is sought

in a separate case and record, the beginning of a separate civil

proceeding.’” (quoting Morgan, 346 U.S. at 505 n.4)); Riddle v.

Dyche, 262 U.S. 333, 335-36 (1923) (“The writ of habeas corpus

is not a proceeding in the original criminal prosecution, but an


                                 13
Loving v. United States, 06-8006/AR


independent civil suit . . . .”); Ex parte Tom Tong, 108 U.S.

556, 559 (1883) (“The prosecution against [petitioner] is a

criminal prosecution, but the writ of habeas corpus which he has

obtained is not a proceeding in that prosecution.”).

     Second, even if a post-conviction habeas corpus petition

fell within the ambit of this Court’s All Writs Act authority as

an extension of our Article 67, UCMJ, review (which it does

not), entertaining such a petition is inappropriate in the

present case because the All Writs Act is limited to

circumstances where no other remedy is available.   Goldsmith,

526 U.S. at 537 (“The All Writs Act invests a court with a power

essentially equitable and, as such, not generally available to

provide alternatives to other, adequate remedies at law.”).

Here, another remedy is available:    a habeas corpus petition in

an Article III court.

     Despite recognizing that such a writ was an available

remedy for military prisoners, the Loving III Court nonetheless

went on to discount that remedy on the ground that Article III

courts would, based on the doctrine of exhaustion, abstain from

considering Loving’s petition until the President approved

Loving’s death sentence.   See 62 M.J. at 248-50; Loving V, __

M.J. __ (4-5).   Lack of presidential approval notwithstanding, I

do not believe the exhaustion doctrine prevents Article III

review of Loving’s petition.   This Court decided in 2005 that


                                14
Loving v. United States, 06-8006/AR


the possibility of clemency from the President is not part of

the direct judicial review process and, as such, is not an

available remedy sufficient to preclude issuing a writ of coram

nobis.4   Loving III, 62 M.J. at 247 (“We conclude that

presidential action is not an adequate remedy at law.

Presidential action is akin to a state governor’s action, and as

such, is not part of the direct judicial review of the case.”).

Our determination of what the UCMJ means receives great

deference in Article III courts.     Middendorf v. Henry, 425 U.S.

25, 43 (1976); see also Noyd, 395 U.S. at 694, 696.     It follows,

therefore, that the exhaustion doctrine would not necessarily

preclude those courts from hearing Loving’s petition based on

the mere possibility of executive action.

     But even if Article III courts chose to view presidential

approval of the sentence in a capital case as a necessary

predicate to exhaustion, that view would not necessarily deprive

those courts of review power.   The Supreme Court has made clear

that exhaustion is a prudential doctrine, not a jurisdictional

one; it remains subject to the circumstances of the case,

4
  Strangely, while holding that presidential action was an
inadequate remedy to preclude a writ of coram nobis -- which may
only be filed in the absence of any other remedy, see, e.g.,
Denedo, 129 S. Ct. at 2220 -- this Court went on to determine
that the same presidential action was an adequate-enough remedy
to prevent Article III judicial review under the principle of
exhaustion -- which also requires that there be no other remedy,
Gusik, 340 U.S. at 131-32. Loving III, 62 M.J. at 247, 249-50.
This purported distinction makes no sense.


                                15
Loving v. United States, 06-8006/AR


including the potential for long delay.5   See Boumediene v. Bush,

128 S. Ct. 2229, 2275 (2008) (refusing to apply the exhaustion

doctrine in cases where petitioners faced “months, if not years,

of delay”); see also Denedo v. United States, 66 M.J. 114, 122

(C.A.A.F. 2008) (acknowledging that the Supreme Court has not

precluded “the possibility that the circumstances of a

particular case might warrant consideration of a habeas petition

by an Article III court prior to exhaustion.” (citing

Councilman, 420 U.S. at 761)).   Thus, an Article III court could

choose to hear a military prisoner’s habeas petition in light of

significant potential delay in presidential action.6

     Finally, the usual canon of statutory construction that

favors specific statutes over general ones suggests that the All

Writs Act cannot be asserted to extend our Article 67, UCMJ,

jurisdiction in the face of specific habeas corpus statutes.

See Hinck v. United States, 550 U.S. 501, 506 (2007) (repeating

5
  Of course, the doctrine of exhaustion is prudential in part
because of principles of comity and, relatedly, because remedies
not yet asserted may moot the question being considered by a
collaterally reviewing court. Councilman, 420 M.J. at 756-57.
6
  Regardless, there is little reason to believe that a military
prisoner who has been sentenced to death will seek habeas corpus
relief before presidential approval, which provides its own
delay, given the natural interest a prisoner has in delaying his
execution. See Dwight H. Sullivan, The Last Line of Defense:
Federal Habeas Review of Military Death Penalty Cases, 144 Mil.
L. Rev. 1, 5 n.13 (1994) (“Because death row inmates have an
obvious interest in delay of any kind, no service member under a
military death sentence would have an incentive to seek habeas
relief before presidential action on the sentence.”) (citation
omitted).


                                 16
Loving v. United States, 06-8006/AR


“the well-established principle that, in most contexts, ‘a

precisely drawn, detailed statute pre-empts more general

remedies’” (quoting EC Term of Years Trust v. United States, 550

U.S. 429, 434 (2007)).   “The All Writs Act is a residual source

of authority to issue writs that are not otherwise covered by

statute.   Where a statute specifically addresses the particular

issue at hand, it is that authority, and not the All Writs Act,

that is controlling.”    Penn. Bureau of Corr. v. U.S. Marshals

Serv., 474 U.S. 34, 43 (1985) (emphasis added).    Even if we were

to ignore the plain language of Article 67, UCMJ, and assume a

theoretical continuing jurisdiction over capital cases in which

we once had jurisdiction, such as that advanced by the Loving

III Court, see 62 M.J. at 244 (“[W]e conclude that this Court’s

subject matter jurisdiction continues even after the Supreme

Court’s decision affirming Petitioner’s death sentence.”), the

fact remains that Article 67, UCMJ, provides only a general

grant of authority, and the All Writs Act provides only a

broadly defined mechanism to issue writs in aid of already-

existing jurisdiction.

     In contrast, Article III habeas corpus power is set down in

reticulated statutes detailing not only which courts have the

authority to issue writs of habeas corpus, 28 U.S.C. § 2241

(2006), but also specifics related to, inter alia, the form,

timing, filing, standards of review, and statutes of limitation


                                 17
Loving v. United States, 06-8006/AR


for such writs, 28 U.S.C. §§ 2241-55 (2006).7    Thus, even if the

Court’s statutory jurisdiction could be stretched as far as the

majority assumes, this Court may not entertain Loving’s petition

because an Article III court could properly consider a military

prisoner’s habeas corpus petition and the All Writs Act does not

allow this Court to act in the face of another, specific

statute.    See Goldsmith, 526 U.S. at 537.8

    III.   This Court’s Foray Into Habeas Corpus Law Helps Neither
                      This Nor Future Petitioners

       I do not doubt that Loving sought a writ of coram nobis

here in 2005 because there was presumably nothing to lose.    If

we entertained it, there was a possibility we would afford him

relief.    If we refused to entertain it, he was presumably no

worse off.    But we proposed he file a habeas petition, and, with

the Court’s judgment today, he is afforded no relief and is

worse off if the judgment is allowed to stand.




7
  Which is not to suggest that these reticulated statutes apply
perfectly to the review of military courts-martial. But any
difficulty in Article III courts’ habeas review of courts-
martial convictions neither divests them of jurisdiction to
conduct such review, nor gives this Court authority to expand
its own jurisdiction. It is for Congress to change the who and
the how of habeas review, not this Court.
8
  This seems all the more obvious where, as here, the legal issue
is not one that turns on any interpretation of military law or
nuance of military service, but rather presents the
constitutional claim of ineffective assistance of counsel -- a
claim with which Article III courts are at least as familiar as
this Court.


                                  18
Loving v. United States, 06-8006/AR


     And Loving has no incentive to let the judgment stand.9       The

Court’s 2005 expansion of jurisdiction beyond the statutory

limits established by Congress was not only unnecessary, given

the statutory availability of recourse to an Article III court,

but unfortunate.   First, we have hastened post-conviction

collateral review of a habeas corpus petition in a capital case

before the President has acted to approve the sentence.      See

supra note 6.

     Second, we have foreclosed initial review of Loving’s

habeas corpus petition by an Article III court on this claim,

potentially placing him in the unenviable position of being a

successive petitioner.   Congress has moved to limit habeas

corpus by restricting successive petitions presenting the same

claims:

     No circuit or district judge shall be required to

9
  Even though Loving now has every incentive to challenge this
judgment, we ought not to wait for such a challenge; it is our
responsibility to ensure we have jurisdiction, not his. See,
e.g., Ashcroft v. Iqbal, 129 S. Ct. 1937, 1945 (2009) (“Subject-
matter jurisdiction cannot be forfeited or waived and should be
considered when fairly in doubt.”); Arbaugh v. Y & H Corp., 546
U.S. 500, 514 (2006) (“[S]ubject-matter jurisdiction, because it
involves a court’s power to hear a case, can never be forfeited
or waived. Moreover, courts, including this Court, have an
independent obligation to determine whether subject-matter
jurisdiction exists, even in the absence of a challenge from any
party.” (citation and quotation marks omitted)); United States
v. Cotton, 535 U.S. 625, 630 (2002) (“[S]ubject-matter
jurisdiction, because it involves a court’s power to hear a
case, can never be forfeited or waived. Consequently, defects
in subject-matter jurisdiction require correction regardless of
whether the error was raised in district court.”).


                                19
Loving v. United States, 06-8006/AR


     entertain an application for a writ of habeas corpus
     to inquire into the detention of a person pursuant to
     a judgment of a court of the United States if it
     appears that the legality of such detention has been
     determined by a judge or court of the United States on
     a prior application for a writ of habeas corpus,
     except as provided in section 2255.

28 U.S.C. § 2244(a).   If an Article III court concludes that

this Court, the United States Court of Appeals for the Armed

Forces, is “a court of the United States” under § 2244, the

Article III court would not be required to hear the petition.

See Loving V, __ M.J. __ (7) (recognizing “the potential effect

of a habeas petition before our Court on future habeas petitions

filed in the Article III courts”).

     Third, in light of the above, the standard of review

indiscriminately plucked10 by this Court to review habeas corpus

challenges to our own prior decisions is especially cold comfort

to Loving.   See Loving IV, 64 M.J. at 145 (adopting the standard

of review from 28 U.S.C. § 2254 (2000), which, in part,

restricts Article III court review of a state proceeding to

whether the state decision was contrary to or an unreasonable

application of federal law); accord Loving V, __ M.J. __ (8).


10
  Other than asserting its jurisdiction to entertain this habeas
petition and selecting its own standard of review, this Court
elected not to provide any further guidance to future
petitioners as to when and how they should approach us with
their claims. Habeas corpus unmoored from any procedural rules
and provisions is a novelty, to say the least. The Court failed
to consider the prudence of asserting jurisdiction and adopting
a standard of review in a vacuum.


                                20
Loving v. United States, 06-8006/AR


Deference to state court decisions under § 2254 reflects the

need to balance federal review against respect for proceedings

conducted by a separate sovereign -- the state.   See Williams v.

Taylor, 529 U.S. 420, 436-37 (2000) (discussing § 2254’s

deference to state court proceedings).   Such deference is

inexplicable and inappropriate when this Court reviews its own

prior holdings.   A petitioner seeking collateral review of his

court-martial at this Court faces the unusual and uphill battle

of convincing us that our own previous actions were not just

erroneous, but unreasonable.

     While such deference may or may not be warranted when an

Article III court is reviewing a decision of this Court, it

seems untoward to apply it to our own previous decisions.    Most

people -- a category that arguably includes most judges -- would

not have adopted a position in the first instance if they

thought it was unreasonable.

                          IV.   Conclusion

     The writ of habeas corpus is “the most celebrated writ in

English law,” William Blackstone, 3 Commentaries 129 (1768), and

I do not begrudge Loving’s desire to exercise his constitutional

right to challenge on collateral review the alleged ineffective

assistance of counsel he received at his capital trial.11    But


11
  Further, while I take issue with this Court’s continued
expansion of its own jurisdiction beyond the limits established


                                 21
Loving v. United States, 06-8006/AR


absent statutory changes from Congress, the appropriate venue

for review of this petition is the Article III courts.

Therefore, I respectfully dissent.




by Congress, this Court could provide an adequate venue to
evaluate Loving’s conviction if the UCMJ provided jurisdiction
over cases in which direct review is completed (preferably with
related procedural guidance, in the case of habeas petitions)
and if the U.S. Code did not already invest jurisdiction over
these cases in Article III courts. Whatever its beginnings, far
from being “a rough form of justice,” Reid v. Covert, 354 U.S.
1, 35 (1957), the military justice system today, including this
Court, generally provides “substantial procedural protections
and provision for appellate review by independent civilian
judges [to] ‘vindicate servicemen’s constitutional rights.’”
Hamdan v. Rumsfeld, 548 U.S. 557, 586 (2006) (quoting
Councilman, 420 U.S. at 758). This is confirmed by the
extensive and careful review received in this case to date. See
United States v. Loving, 34 M.J. 956 (A.C.M.R. 1992) (direct
appeal); United States v. Loving, 34 M.J. 1065 (A.C.M.R. 1992)
(petition for reconsideration); United States v. Loving, 41 M.J.
213 (C.A.A.F. 1994) (mandatory direct review); United States v.
Loving, 42 M.J. 109 (C.A.A.F. 1995) (petition for
reconsideration); Loving v. Hart, 47 M.J. 438 (C.A.A.F. 1998)
(petition for writ of mandamus to CCA); Loving v. United States,
62 M.J. 235 (C.A.A.F. 2005) (petitions for writ of coram nobis);
Loving v. United States, 64 M.J. 132 (C.A.A.F. 2006) (petition
for writ of habeas corpus). But the fact that this Court may be
competent to adjudicate Loving’s constitutional claim does not
answer the antecedent question whether Congress has authorized
it to do so once direct review is completed.


                               22
