              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS

Jesse L. BRAZELL                           )      Misc. Dkt. No. 2018–08
Staff Sergeant (E-5)                       )
U.S. Air Force                             )
             Petitioner                    )
                                           )
                v.                         )      ORDER
                                           )
Cliff J. UDDENBERG                         )
Commander (O-5)                            )
Commanding Officer                         )
Naval Consolidated Brig                    )
Miramar                                    )
U.S. Navy                                  )
             Respondent                    )      Panel 1


    This order resolves Petitioner’s 16 October 2018 request for extraordinary
relief in the nature of a writ of habeas corpus (Petition) under the All Writs
Act, 28 U.S.C. § 1651(a). Petitioner asks this court to order the commanding
officer of the Naval Consolidated Brig Miramar to immediately release Peti-
tioner from confinement on the grounds that “Petitioner remains in the cus-
tody of CDR Cliff Uddenberg as a result of a court-martial which lacked sub-
ject-matter jurisdiction due to the provisions of the Japan-U.S. Status of
Forces Agreement.” We summarize the necessary procedural history in this
case to resolve the Petition.
    Petitioner, while assigned to the 592d Special Operations Maintenance
Squadron at Duke Field, Florida, was tried by a general court-martial con-
vened at Eglin Air Force Base (AFB), Florida, from 22 to 26 May 2017, for
offenses alleged to have occurred in July 2016 during Petitioner’s unofficial
travel in a leave status to Okinawa, Japan. A panel of officer and enlisted
members found Petitioner guilty, contrary to his pleas, of two specifications of
sexual assault of a child and one specification of sexual abuse of a child, in
violation of Article 120b, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 920b. The three offenses involved Petitioner’s conduct with a 12-year-old
female who lived in Louisiana with her mother but was in Japan to visit her
father, a United States government contract employee who lived and worked
in Okinawa. Petitioner was sentenced to a dishonorable discharge, confine-
ment for seven years, forfeiture of all pay and allowances, and reduction to
the grade of E-1. On 11 September 2017, the convening authority approved
                Brazell v. Uddenberg, Misc. Dkt. No. 2018–08


the sentence as adjudged and ordered it executed except for the dishonorable
discharge.
    On 19 September 2017, Petitioner’s direct appeal of his trial was docketed
for our review under Article 66(b)(1), UCMJ, 10 U.S.C. § 866(b)(1). On 29
June 2018, Petitioner filed three assignments of error, which the United
States answered on 30 July 2018. On 4 October 2018, Petitioner moved this
court for leave to file a supplemental assignment of error, claiming the court-
martial that tried him at Eglin AFB lacked subject-matter jurisdiction. Peti-
tioner based his claim on provisions of the executive agreement that was ne-
gotiated pursuant to Article VI of the Treaty of Mutual Cooperation and Se-
curity between the United States of America and Japan, Japan-U.S., Jan. 19,
1960, 11 U.S.T. 1632, entitled Agreement under Article VI of the Treaty of Mu-
tual Cooperation and Security between the United States of America and Ja-
pan, Regarding Facilities and Areas and the Status of United States Armed
Forces in Japan, Japan-U.S., Jan. 19, 1960, 11 U.S.T. 1652 (SOFA). The
United States filed its opposition to Petitioner’s motion on 9 October 2018.
This court denied Petitioner’s motion for leave to file a supplemental assign-
ment of error on 15 October 2018.
   On 16 October 2018, Petitioner petitioned this court to order Respondent
to immediately release Petitioner from confinement, again claiming the
court-martial that tried him lacked subject-matter jurisdiction under the SO-
FA. We docketed the Petition on 18 October 2018, and, on 23 October 2018,
we ordered the Government to show good cause as to why Petitioner’s re-
quested relief should not be granted. The Government submitted a timely re-
sponse on 31 October 2018 requesting this court deny the Petition.
    Having summarized the procedural history, we turn to the applicable law.
The “essence of habeas corpus is an attack by a person in custody upon the
legality of that custody, and that the traditional function of the writ is to se-
cure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484
(1973). Our superior court’s predecessor called the writ of habeas corpus the
“traditional remedy for unlawful imprisonment.” Waller v. Swift, 30 M.J. 139,
142 (C.M.A. 1990) (citations omitted). Our assessment is not “whether the
Petitioner presented a meritorious case as to why he should be released, but
rather whether his confinement is illegal.” Clark v. United States, 74 M.J.
826, 827 (N.M. Ct. Crim. App. 2015).
    The Supreme Court of the United States has held three conditions must
be met before a court provides extraordinary relief: (1) the party seeking the
relief must show the “right to issuance of the writ is clear and indisputable;”
(2) the party seeking the writ must have “no other adequate means to attain
the relief;” and (3) “even if the first two prerequisites have been met, the issu-
ing court, in the exercise of its discretion, must be satisfied that the writ is

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                 Brazell v. Uddenberg, Misc. Dkt. No. 2018–08


appropriate under the circumstances.” Cheney v. U.S. Dist. Ct. for D.C., 542
U.S. 367, 380–81 (2004) (citations and internal quotation marks omitted).
    Subject-matter jurisdiction is established by showing military status at
the time of the commission of an offense punishable by the UCMJ. United
States v. Ali, 71 M.J. 256, 261 (C.A.A.F. 2012) (citation omitted); see generally
Solorio v. United States, 483 U.S. 435, 439 (1987) (“In an unbroken line of de-
cisions from 1866 to 1960, [the Supreme Court has] interpreted the Constitu-
tion as conditioning the proper exercise of court-martial jurisdiction over an
offense on one factor: the military status of the accused.”). Subject-matter ju-
risdiction is exercised “over the offenses” and personal jurisdiction is exer-
cised “over the accused.” See, e.g., United States v. Nealy, 71 M.J. 73, 76
(C.A.A.F. 2012). Post-Solorio, “the status of the individual is the focus for de-
termining both jurisdiction over the offense and jurisdiction over the person.”
Ali, 71 M.J. at 264 (citations omitted). “The only difference is that jurisdiction
over the person depends on the person’s status as a ‘person subject to the
Code’ both at the time of the offense and at the time of trial.” Id. at 265 (cita-
tions omitted).
   We conclude Petitioner lacks standing to contest the exercise of subject-
matter jurisdiction by the United States.1 For this determination, we rely on
Rule for Courts-Martial (R.C.M.) 201(d)(3), which states,
       Where an act or omission is subject to trial by court-martial
       and by one or more civil tribunals, foreign or domestic, the de-
       termination which nation, state, or agency will exercise juris-
       diction is a matter for the nations, states, and agencies con-
       cerned, and is not a right of the suspect or accused.
See United States v. Choisnard, No. ACM 36654, 2008 CCA LEXIS 265, at
*11–12 (A.F. Ct. Crim. App. 15 Jul. 2008) (unpub. op.) (“[T]his issue is
squarely addressed in both the Rules for Court-Martial and in standing prec-
edent. These authorities provide that [the appellant] has no standing to ob-
ject to ‘violations’ of the SOFA and even if he did, the court-martial still
would have jurisdiction because of the appellant’s active duty status.”).
    Petitioner argues that the SOFA gives Japanese authorities the primary
right to exercise jurisdiction and overrides “contrary” United States law that
defines the subject-matter jurisdiction of a court-martial and R.C.M.

1 Petitioner does not contest that he was a member of the United States Air Force
and subject to the personal jurisdiction of a court-martial. Petitioner also does not
dispute that he was on active duty at the time of the charged offenses and that he
was charged with offenses punishable by Article 120b, UCMJ.




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201(d)(3), which denies Petitioner standing to challenge that jurisdiction. Pe-
titioner further argues that, because Japan never released jurisdiction to the
United States, his court-martial was a nullity and this court must set aside
and dismiss the findings of guilty and order Petitioner’s immediate release
from confinement. We are not persuaded.
    The SOFA allocates exclusive and concurrent jurisdiction between Japan
and the United States for offenses committed in Japan by American service-
members. The SOFA does so without using the terms “personal” and “subject-
matter” jurisdiction and does not set forth discrete rules for assigning juris-
diction over an offense separate from assigning jurisdiction over a service-
member in like manner as does military law. Article XVII, paragraph 2 of the
SOFA affords the United States and Japan exclusive jurisdiction with respect
to offenses that the other does not punish. In Petitioner’s case, neither coun-
try has exclusive jurisdiction because both countries criminalize sexual abuse
of minors.2
    In the absence of exclusive jurisdiction, Article XVII, paragraph 1, of the
SOFA assigns to both countries “the right to exercise concurrent jurisdiction”
for all other circumstances. Consequently, in Petitioner’s case jurisdiction is
not exclusive but concurrent, and the United States retains the plenary right
to exercise all disciplinary jurisdiction for violations of the UCMJ, even if Ja-
pan also criminalizes the same conduct and the offenses are committed in Ja-
pan.
    Article XVII, paragraph 3 of the SOFA provides that Japanese authorities
have the primary right to exercise concurrent jurisdiction where the purport-
ed victim of the offense is the dependent of a contractor as is the case here.
Petitioner argues this primary right is effectively exclusive until the primary
right is affirmatively waived. We disagree. Even assuming arguendo that
provisions of the SOFA have the force of United States law as Petitioner
claims they do,3 we decline to interpret a primary right to exercise concurrent


2 Petitioner, citing Keihō [Pen. C.] 1907, art. 176, no. 45 (Japan), avers Japanese law
prohibits the sexual abuse of minors in a provision substantially similar to the Arti-
cle 120b, UCMJ, offense of which Petitioner was convicted.
3   In United States v. Murphy, 18 M.J. 220 (C.M.A. 1984), our superior court observed:
          While there is still some dispute over the relative supremacy of Executive
          agreements as contrasted to treaties, and whether or not specific internation-
          al agreements are deemed to be self-executing, the question of the binding
          nature of the obligations of the Japanese SOFA and its implementing inter-
          pretations was resolved by Wilson v. Girard.

(Footnote continues on next page)


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jurisdiction as an exclusive right of jurisdiction. Although prosecutorial prior-
ity is addressed by the SOFA, the United States neither waived nor ceded
subject-matter jurisdiction to Japan. Thus, the SOFA provides no reason to
depart from established law that subject-matter jurisdiction is determined by
showing military status at the time of the commission of an offense punisha-
ble by the UCMJ. Ali, 71 M.J. at 261.
    We conclude Petitioner’s court-martial did not lack subject-matter juris-
diction and Petitioner lacks standing to challenge the exercise of concurrent
jurisdiction. Consequently, Petitioner has failed to demonstrate a clear and
indisputable right to the issuance of a writ of habeas corpus.
   Accordingly, it is by the Court on this 28th day of January, 2019,
ORDERED:
   The Petition for Extraordinary Relief in the Nature of a Writ of Habeas
Corpus is DENIED.


                  FOR THE COURT



                  CAROL K. JOYCE
                  Clerk of the Court




Id. at 229 (citing Wilson v. Girard, 354 U.S. 524, 528–29 (1957)). In Wilson, the Su-
preme Court held the United States was not barred by the Constitution or statute
from waiving its primary right of jurisdiction under the then-existing SOFA and
agreeing to deliver a servicemember to Japan for trial.




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