                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

IVOR G. LUKE                                        :
                                                    :
                Plaintiff,                          :     Civil Action No.:       12-00834 (RC)
                                                    :
                v.                                  :     Re Document No.:        3
                                                    :
UNITED STATES,                                      :
                                                    :
                Defendant.                          :

                                   MEMORANDUM OPINION

                        GRANTING THE DEFENDANT’S MOTION TO DISMISS

                                        I. INTRODUCTION

                This matter comes before the court on the defendant’s motion to dismiss. The

plaintiff previously served as a Hospital Corpsman Second Class in the United States Navy. The

defendant is the United States. The plaintiff brings suit against the United States alleging that

the Court of Appeals for the Armed Forces deprived him of a full and fair hearing, and that his

conviction was unconstitutional. The plaintiff claims that this court has subject matter

jurisdiction pursuant to 28 U.S.C. § 1331. The defendants move to dismiss the plaintiff’s claims,

asserting that the plaintiff’s claim is barred for lack of subject mater jurisdiction, or, in the

alternative, that the plaintiff failed to state a claim upon which relief can be granted. For the

reasons discussed below, the Court grants the defendant’s motion.



            II. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

        Ivor Luke (“the plaintiff”) previously served as a Hospital Corpsman Second Class in the

United States Navy. Compl. ¶ 2. The plaintiff was convicted by a general court-martial of two

specifications of indecent assault in violation Article 134 of the Uniform Code of Military Justice
(“UCMJ”), 10 U.S.C. § 934, based on an incident between the plaintiff and a shipmate, Seaman

Recruit TN (“TN”). Compl. ¶¶ 4, 5; United States v. Luke, NMCCA 200000481, 2004 CCA

LEXIS 218, at *1 (N-M. Ct. Crim. App. Sept. 28, 2004). The plaintiff names the United States

(“the defendant”) as the sole defendant in the present action. The plaintiff claims that his

constitutional rights were violated when the Court of Appeals for the Armed Forces (“CAAF”)

affirmed his conviction despite the fact that the expert witness that prepared the DNA samples in

his case was discredited subsequent to trial. The plaintiff also claims that he was denied a full

and fair review when the CAAF did not review one of the issues it had assigned for review, but

did not reach, when the case made a previous trip to that appellate court. Compl. ¶¶ 24, 25.

       Sometime in 1988, in his capacity as a Hospital Corpsman, the plaintiff examined

shipmate Fireman A, during which a skin rash was discovered. Id. Fireman A conveyed that the

rash might be a result of his sexual activities with TN, id, after which the plaintiff informed

Fireman A that he planned to report TN and Fireman A’s relationship as a violation of the ship’s

“no-dating” policy. Id. ¶ 5.

       At some point after the plaintiff examined Fireman A, TN went to the medical spaces to

be examined for a possible sexually transmitted disease. 1 Id. ¶ 8. At trial, TN testified that, while

in the plaintiff’s company, he sexually assaulted her instead of giving her a proper medical

examination. Id. ¶ 8; Luke, 2004 CCA LEXIS 218, at *3. The plaintiff denied any physical




1
  According to the plaintiff’s complaint, TN “visited the facility where Plaintiff worked in search
of Fireman A . . . [and] spent a few minutes in the medical spaces looking for Fireman A in the
restroom and back room where a phone was located and left the medical spaces upset over
plaintiff’s intention to report her relationship with Fireman A and lamenting its potential for
disciplinary action.” Compl. ¶ 8. The complaint also notes that TN testified that, while she was
in the medical spaces, the plaintiff “examined her on a bed in the sleeping quarters for the
possibility of a sexually transmitted disease, and that that she was sexually assaulted during the
examination.” Id.


                                                  2
contact with TN during this visit, and claimed that TN left the medical spaces upset because of

the plaintiff’s intention to report her relationship with Fireman A. Compl. ¶¶ 7, 8.

        On February 22, 1999, a general court-martial composed of “members with enlisted

representation” heard the plaintiff’s case. Id. ¶¶ 4, 9. The prosecution presented two experts from

the United States Army Criminal Investigations Laboratory (“USACIL”), one of which was

Phillip Mills (“Mills”), previously a forensic chemist. Id. ¶ 9. Mills performed the serology

analysis of TN’s bra and the sheet from the bed on which the assault had allegedly occurred.

Compl. ¶¶ 10, 12. Mills testified before the court-martial that the presence of amylase and

epithelial cells on both the bed sheet from the medical spaces and on TN’s under garments

supported TN’s allegations of sexual assault. Id. ¶ 12; Def.’s Mot. at 6. Another USACIL

examiner, Marilyn Chase (“Chase”), conducted the subsequent DNA sequencing and analysis,

and “testified that her analysis was dependent upon the integrity of [] Mills’ serology testing.” Id.

¶ 11.

        On September 28, 2004, the Navy-Marine Corps Court of Criminal Appeals (“NMCCA”)

affirmed the court-martial’s findings and affirmed the plaintiff’s conviction and sentence. Id. ¶

16. The plaintiff then appealed the NMCCA’s decision to the CAAF, which granted his petition

for review and heard oral argument on two issues: first, whether the lower court erred when it

upheld the trial judge’s exclusion during cross-examination of evidence concerning TN’s

abortion, after it became relevant and material rebuttal to her testimony; 2 and second, whether

the lower court erred when it upheld the government’s failure to disclose evidence that it had
2
  According to the plaintiff’s complaint, at the time of the events in question, TN was pregnant
with Fireman A’s child; the pregnancy, however, was not known at the time of the incident but
was revealed during the subsequent investigation. Compl. ¶¶ 5, 6. It was the plaintiff’s theory at
trial that the fact of the abortion, which the plaintiff theorizes was obtained in order to conceal
TN’s relationship to Fireman A, demonstrated the lengths to which TN went to conceal that
relationship, making it more credible that, for the same purpose, she would fabricate the claim
that plaintiff sexually assaulted her. Compl. ¶ 19.


                                                 3
prepared to use on re-direct examination of a government witness. 3 Id. ¶¶ 17, 18. The CAAF also

granted review of a supplemental issue, which is at the heart of these proceedings: whether the

plaintiff’s conviction could be rightfully affirmed in light of the fact that evidence of fraudulent

DNA testing had been newly discovered. Def.’s Mot. at 4; see Compl. ¶ 30.

       The current challenge to Mills’s testimony arises out of a USACIL-issued memorandum

identifying Mills as having conducted serology tests utilizing improper practices and attributing a

falsified entry to him during an unrelated DNA analysis. Compl. ¶¶ 20, 21 (“[T]echnicians

determined that Mills had represented on several documents that he had completed a step of a

forensic test that he had never conducted and then fabricated the results of that step.”).

According to the plaintiff’s complaint, the USACIL investigation of Mills uncovered “substantial

evidence of dishonesty, sloppiness and incompetence in [his] work product during his time at

USACIL.” Compl. ¶ 23. The plaintiff claims that, although USACIL’s investigation concluded

that Mills’s serology work was incorrect more than 55 percent of the time, USACIL destroyed

the DNA evidence from the plaintiff’s case, foreclosing the ability to re-test it. Id. ¶¶ 24, 25. The

defendant conversely notes that a 2005 USACIL review of Mills’s serology work revealed that

his “major flaw was a failure to locate stains,” Def.’s Mot. at 7, and “found no evidence that []

Mills falsified any serology data in [the p]laintiff’s or any other case.” Id. The defendant further

asserts that the “NMCCA also held that, even without the forensic evidence in the case, the

Government’s case was strong enough to prove [the p]laintiff’s guilt,” Def.’s Mot. at 7, noting

that TN’s testimony was corroborated by both Fireman A and an impartial third party, and that



3
  In light of its findings on the supplemental issue concerning forensic chemist Mills, the CAAF
found that it would be premature to address the first two issues. Compl. ¶ 19 (“The first issue
involved an assignment of error asserted before the NMCCA, [and a]lthough the NMCCA held
the assignment of error was without merit, CAAF granted and held argument review on the issue
and manifestly refuse [sic] to render a decision on the issue.”).


                                                  4
TN reported the incident regardless of having to reveal her inappropriate romantic relationship

with Fireman A. Id.

       Pursuant to the findings regarding Mills’s suspect handling of DNA samples, the CAAF

set aside the NMCCA’s opinion affirming the conviction, returned the record of trial to the Judge

Advocate General of the Navy for a Dubay hearing, 4 and directed that the record be returned to

the CAAF. Compl. ¶ 31; Def.’s Mot. at 5; see United States v. Dubay, 17 U.S.C.M.A. 147

(1967). The military judge conducted two subsequent Dubay hearings in June 2006 and August

2008, respectively, both of which addressed an ongoing internal USACIL investigation of

Mills’s prior work. Compl. ¶¶ 32, 33; Def.’s Mot. at 5. The plaintiff alleges, however, that these

hearings were “exercises in futility because NCIS had, as a result of USACIL’s negligence,

destroyed the evidence, thereby eliminating any chance at retesting and ultimately undermining

the very reason for CAAF to order the hearings by precluding the retesting necessary to answer

the fundamental question of contamination of the evidence[.]” 5 Compl. ¶ 33. After receiving the

final USACIL report and considering it alongside the findings from the two Dubay hearings, the

NMCCA affirmed the findings and the plaintiff’s original sentence on July 31, 2009. Id. ¶ 34.

The NMCCA also concluded that the plaintiff’s original assignments of error were without merit.

United States v. Luke, 2009 WL 2345124, at *7 (N. M. Ct. Crim. App. July 31, 2009).

4
  The CAAF found that post-trial developments presented sufficient evidence to warrant a further
fact-finding inquiry on the plaintiff’s “claim of contamination of his DNA sample and
falsification of his test results.” Compl. ¶ 31; Def.’s Mot. at 4 (“In particular, the CAAF
addressed a memorandum issued by USACIL to all staff judge advocates in August 2005, over
six years after Plaintiff’s court-martial and one month prior to the oral argument on the two
issues initially granted, warning about an internal quality control review in April 2005 that
detected a falsified entry by a DNA examiner that led to the examiner’s suspension from DNA
casework.”).
5
  These assertions are ultimately unsubstantiated, because there is nothing contained in the
current record that indicates that the plaintiff was prejudiced without retesting of the evidence, or
that retesting would have uncovered information that would have led to a different verdict. See,
e.g., United States v. Burns, 495 F.3d 873, 875 (8th Cir. 2007). See infra at 17-18.


                                                 5
        On the case’s return to the Court of Appeals, the CAAF granted review of the plaintiff’s

case for three issues: (1) whether the results of the plaintiff’s trial are not reliable in light of

newly discovered evidence of Mills’s misconduct; (2) whether the military judge erred when he

found the government was not required to disclose evidence prepared for use on re-direct

examination of a Government witness; and (3) whether the plaintiff’s due process rights were

violated by the untimely post-trial processing and appellate review of his court-martial. United

States v. Luke, 69 M.J. 309, 311 (C.A.A.F. 2011). The CAAF did not grant review of the issue

on which it had previously granted review: whether the lower court erred when it upheld the trial

court’s exclusion of evidence concerning TN’s abortion after it became material rebuttal to her

testimony. Id.

        On January 25, 2011, the CAAF affirmed the NMCCA’s decision and denied all three of

the plaintiff’s assignments of error on appeal. Id. Applying the standard contained in R.C.M.

1210(f)(2) for a new trial based on newly discovered evidence, the CAAF specifically held,

despite the plaintiff’s arguments to the contrary, that the newly discovered evidence involving

Mills’s misconduct would probably not have resulted in a substantially more favorable result for

the plaintiff, Luke, 69 M.J. at 318, and based this conclusion on the USACIL finding that Mills’s

defective testing resulted in false negatives rather than false positives. Id.; See United States v.

Brooks, 49 M.J. 64, 69 (C.A.A.F. 1998) (finding that the appropriate inquiry is “whether the

newly discovered evidence, if considered by a court-martial in light of all other pertinent

evidence, would probably produce a substantially more favorable result of the accused.”). The

CAAF “found that ‘the report did not contain any evidence of contamination or false reporting in

Mills’ serological analysis between 1995 and 1999,’ the time period during which [] Mills




                                                    6
worked on [the p]laintiff’s case.” Luke, 69 M.J. at 316. The CAAF concluded that the newly

discovered evidence did not warrant a new trial under R.C.M. 1210(f)(2). Id. at 318.

       It is from this CAAF ruling that plaintiff brings suit in this Court. In his complaint,

plaintiff claims, based on the standard set forth in Mesarosh v. United States, 352 U.S. 1 (1956),

that his constitutional rights were violated when the CAAF affirmed his conviction despite it

being undermined by the post-trial discrediting of Mills’s lab work. Plaintiff also claims that

CAAF deprived him of a full and fair hearing by failing to rule on the plaintiff’s original

assignments of error. Compl. ¶¶ 49, 50, 51. The defendant has moved to dismiss both of the

plaintiff’s claims. For the reasons set forth below, the defendant’s motion to dismiss is granted.



                                   III. STANDARDS OF REVIEW

                     A. Legal Standard for a Rule 12(b)(1) Motion to Dismiss

       The defendants move to dismiss this case pursuant to Rule 12(b)(1), or, in the alternative,

Rule 12(b)(6). A Rule 12(b)(1) motion “imposes an affirmative obligation to ensure that it is

acting within the scope of its jurisdictional authority,” and gives the plaintiff the burden of

establishing that the court has jurisdiction. Grand Lodge of Fraternal Order of Police v.

Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). “Because subject-matter jurisdiction focuses on

the court's power to hear the plaintiff's claim, a Rule 12(b)(1) motion imposes on the court an

affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority.”

Id. at 13-14. In considering a Rule 12(b)(1) motion to dismiss, the court need not limit itself to

the allegations in the complaint, but may consider such materials outside of the pleadings as it

deems appropriate to resolve the question of whether it has jurisdiction in the case. Id. (citing

Scolaro v. D.C. Board of Elections and Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000)). Even so,




                                                   7
the plaintiff’s factual allegations in the complaint bear close scrutiny in resolving a 12(b)(1)

motion. See id.

                     B. Legal Standard for a Rule 12(b)(6) Motion to Dismiss

        A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal

sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The

motion does not test the plaintiff’s ultimate likelihood of success on the merits, but rather,

whether the plaintiff has properly stated a claim. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

The complaint is only required to set forth a short and plain statement of the claim, in order to

give the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park

Civic Ass’n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing Fed. R. Civ. P. 8(a)(2) and

Conley v. Gibson, 355 U.S. 41, 47 (1957)).

        A court considering a Rule 12(b)(6) motion presumes the factual allegations of the

complaint to be true and construes them liberally in the plaintiff’s favor. See, e.g., United States

v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000). It is not necessary for the

plaintiff to plead all elements of his prima facie case in the complaint, Swierkiewicz v. Sorema

N.A., 534 U.S. 506, 511–14 (2002), nor to plead law or match facts for every element of a legal

theory, Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000) (internal citations omitted).

Nonetheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (internal quotation marks omitted); Bell Atl. Corp. v. Twombly, 550

U.S. 544, 562 (2007). A claim is facially plausible when the pleaded factual content “allows the

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

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin




                                                   8
to a ‘probability requirement,’ but it asks for more than a sheer possibility that defendant has

acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). The court need not accept as true

inferences unsupported by facts set out in the complaint or legal conclusions cast as factual

allegations. Warren v. District of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004); Browning, 292

F.3d at 242. “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at

555).

              C. Jurisdiction and Standard of Review for Military Court Decisions

                                          1. Jurisdiction

        The plaintiff, who is no longer in custody, collaterally attacks his conviction asserting

that this Court may review the CAAF’s decision pursuant to its federal question jurisdiction.

Collateral attacks on court-martial proceedings are not confined to habeas petitions. Kauffman v.

Secretary of the Air Force, 415 F.2d 991 (D.C. Cir. 1969). A district court has subject matter

jurisdiction to hear a non-custodial plaintiff’s collateral attack based on federal question

jurisdiction. Sanford v. United States, 586 F.3d 28, 31 (D.C. Cir. 2009). Thus, while habeas

review is appropriate for convicted military personnel who are still in custody, for non-custodial

individuals such as plaintiff, federal question jurisdiction under 28 U.S.C. § 1331 is the

appropriate avenue for a service member to seek collateral review of the outcome of a military

court-martial proceeding. United States ex rel. New v. Rumsfeld, 448 F.3d 403, 406 (D.C. Cir.

2006) (holding that the district court had subject matter jurisdiction to hear the petitioner’s

collateral attack under § 1331) (“New II”); Williamson v. Sec'y of the Navy, 395 F.Supp. 146, 147

(D.D.C.1975) (same).




                                                  9
                                       2. Standard of Review

        Although, as set forth above, this Court’s jurisdiction to hear the plaintiff’s challenge is

clear, the applicable standard of review to apply has been described by the D.C. Circuit as

“tangled.” New II, 448 F.3d at 406. “Two lines of precedent are relevant: the first deals with the

‘full and fair consideration’ standard that applies for habeas review of courts-martial, and the

second deals with the ‘void’ standard that applies to collateral attacks on court-martial

proceedings by persons who are not in custody.” Sanford, 586 F.3d at 31. Both lines are

addressed below, as well as the Circuit’s attempt to reconcile them.

        The first line of precedent goes back sixty years when the Supreme Court addressed a

challenge to courtsmartial brought by habeas petitioners who had been found guilty of murder

and rape and sentenced to death. Burns v. Wilson, 346 U.S. 137 (1953). The petitioners alleged

that their court-martial proceedings denied them the basic rights guaranteed by the Constitution.

Id. The Supreme Court held that, “when a military decision has dealt fully and fairly with an

allegation raised in [a habeas] application, it is not open to a federal civil court to grant the writ

simply to re-evaluate the evidence.” Id. at 142. Thus, when the record makes it plain that the

military courts have heard the petitioners out on every significant allegation, “it is not the duty of

the civil courts to repeat that process – to re-examine and reweigh each item of evidence of the

occurrence of events which tend to prove or disprove one of the allegations in the applications

for habeas corpus. It is the limited function of the civil courts to determine whether the military

has given fair consideration to each of the[] claims.” Id. at 144.

        Sixteen years later, in a case involving a non-custodial plaintiff, the D.C. Circuit put its

gloss on the Burns standard. Kauffman, 415 F.2d at 991. The Circuit read the deferential

standard set forth in Burns to apply to the military courts’ findings of fact, similar to the general




                                                  10
non-reviewability of state court factual findings upon habeas review. Id. at 997. The reason for

this limited review is clear: “the enactment of the Uniform Code of Military Justice and the

establishment of the Court of Military Appeals made up of civilian judges to enforce its

procedural guarantees are proof of Congress’ concern that the system of military justice afford

the maximum protection to the rights of servicemen.” Kauffman, 415 F.2d at 995-96. But, with

respect to review of military rulings on constitutional issues, the Kauffman court required the

application of a “fairness” standard. Id. “[T]he test of fairness requires that military rulings on

constitutional issues conform to Supreme Court standards, unless it is shown that conditions

peculiar to military life require a different rule.” Id.

        A few years later, in a case involving a challenge to a court-martial proceeding prior to

any conviction, the Supreme Court returned to the subject of the appropriate standard of review.

Schlesinger v. Councilman, 420 U.S. 738 (1975). The Court held that collateral relief from the

consequences of a court-martial judgment is barred unless it appears that the judgment is void.

Id. at 746-48. But a judgment “is not rendered void merely by error . . .”; the defect must be

fundamental. Id. The question of whether a judgment may properly be deemed void turns “on

the nature of the alleged defect, and the gravity of the harm from which relief is sought.” Id. at

753. “Moreover, both factors must be assessed in light of the deference that should be accorded

the judgments of the carefully designed military justice system established by Congress.” Id.

Shortly thereafter, in an opinion that neither cites Burns nor Kauffman, the D.C. Circuit adopted

the Schlesinger void standard in a non-custodial collateral attack on a conviction by court-

martial. Priest v. Sec’y of Navy, 570 F.2d 1013, 1015 (D.C. Cir. 1977).

        More recently, in New II, a non-custodial collateral attack to a court-martial conviction,

the D.C. Circuit attempted to reconcile the differing standards of review to be applied. Tracing




                                                   11
the steps of the above-referenced cases along with the evolution of habeas review over the years

until the 1996 Antiterrorism and Effective Death Penalty Act, the Court advised caution,

expressing “serious doubt [that] the judicial mind is really capable of applying the fine

gradations of deference that the varying formulae may indicate.” New II, 448 F.3d at 112.

Eschewing a precise formulation of the applicable standard, the D.C. Circuit simply repeated

“Councilman’s statement that errors must be fundamental to void a court-martial judgment on

collateral review” and, because “non-habeas review is if anything more deferential than habeas

review of military judgments . . . a military court’s judgment clearly will not suffer such a

defect if it satisfies Burns’s ‘fair consideration’ test.” Id. “Although in New II the [D.C.

Circuit] did not describe the exact degree of deference accorded to the military courts, its

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

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

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

degree of deference . . . .” Sanford, 586 F.3d at 32.   Regardless, under any of these standards,

the plaintiff’s claims fail.



                                          IV. ANALYSIS

        The plaintiff’s complaint contains two causes of action. In the first cause of action, the

plaintiff collaterally attacks the CAAF’s affirmance of his conviction arguing that the affirmance

is unconstitutional because it does not conform to Supreme Court standards as articulated in

Mesarosh. In his second cause of action, the plaintiff argues that the CAAF did not provide him

with a full and fair hearing because, in its initial proceeding, it granted review of but did not

resolve his claim of error concerning the trial judge’s exclusion, during cross-examination, of




                                                  12
evidence concerning TN’s abortion after that issue became relevant and material to her

testimony, but in its later proceeding it declined to re-grant review of the same issue. For the

reasons set forth below, both of the plaintiff’s causes of action must be dismissed.

                                       A. Cause of Action #1

        As set forth above, the plaintiff collaterally attacks the CAAF’s affirmance of his

conviction arguing that the affirmance is unconstitutional because it does not conform to

Supreme Court standards as articulated in Mesarosh. This argument is based on the contention

that the subsequently revealed problems with Mills’s lab work so discredited his testimony that,

consistent with Mesarosh, a new trial is required. As set forth below, the plaintiff’s first cause of

action fails because the CAAF gave this argument full and fair consideration, the judgment is not

void, and there is nothing in the current record demonstrating that the affirmance of the

conviction did not conform to relevant Supreme Court standards.

                              1. The Defendant’s Waiver Argument

        Before the Court addresses the merits of the plaintiff’s argument, it must address the

defendant’s argument that the plaintiff waived the constitutional argument based on Mesarosh.

The defendant argues that, even if the plaintiff’s claims rise to the level of constitutional claims

that would be subject to this Court’s jurisdiction, the plaintiff’s failure to raise the constitutional

claim on direct appeal within the military court system has resulted in its waiver. Def.’s Mot.

at14. Rather than specifically challenging the court-martial panel’s verdict based on the

deprivation of a constitutional right, the defendant asserts that the plaintiff instead sought a new

trial based solely on his claim of newly discovered evidence. Thus, according to the defendant,

because the plaintiff did not raise a constitutional claim on direct appeal, he waived his right to

collaterally attack his conviction before this Court based on a violation of constitutional rights.




                                                  13
See Aguilar Mortega v. Dep’t of Defense, 520 F. Supp. 2d 1, 5 (D.D.C. 2007); see also Kendall

v. Army Bd. for Corr. of Military Records, 996 F.2d 362, 366 (D.C. Cir. 1993).

       This Court has recognized that because military courts are independent of the federal

courts, military courts are analogized to state courts when individuals convicted by court-martial

seek redress in federal courts. Aguilar Mortega, 520 F. Supp. 2d at 5. Thus, when reviewing a

collateral attack on a court-martial, federal courts apply waiver rules identical to those applied to

state courts to bar claims raised for the first time in federal court. Kendall, 996 F.2d at 366

(citing Engle v. Isaac, 456 U.S. 107 (1982) (holding that failure to comply with state

contemporaneous objection rule bars federal review absent a showing of cause and prejudice)).

       This waiver standard has been applied in practice to mean that a plaintiff who failed to

raise an issue on direct appeal in the military justice system has waived his right to subsequently

raise that issue in the federal courts. See Aguilar Mortega, 520 F. Supp. 2d at 5. In Aguilar

Mortega, the plaintiff rejected the presiding military judge’s offer to decline the defense counsel

detailed to represent him, declined to hire civilian counsel of his choice, declined to exercise his

right to obtain a military lawyer, and expressed no dissatisfaction with the defense counsel’s

performance. Id. On collateral review, the Aguilar Mortega Court held that the plaintiff’s

failure to raise issues pertaining to the quality of the defense counsel's services or any other

alleged errors in the military courts resulted in a waiver barring review of those issues in this

court. Id; see also Kendall, 996 F.2d at 366.

       The defendant argues that the constitutional claims that the plaintiff raises here – i.e., that

the CAAF’s affirmance of his conviction despite Mills’s post-trial discrediting violates the

constitutional principles set forth in Mesarosh – were not raised before the military courts and




                                                 14
are, thus, waived and cannot be raised here for the first time. But the Court does not have

sufficient information to address that waiver claim.

       To be sure, the dissenting opinion in the plaintiff’s most recent appeal before the CAAF

explicitly analyzed Mesarosh and its application to the plaintiff’s case in light of the post-trial

discrediting of Mills. The parties seem to assume that the dissent did so sua sponte. Given that

the plaintiff argues that his criminal conviction violates the constitution based on the misconduct

of one of the government’s primary witnesses, this Court is hesitant to find a waiver of such an

important claim without substantial justification to do so. But without the briefs that were filed

during the proceedings in the military courts, it is impossible for this Court to fully assess

whether the Mesarosh issue was raised, either explicitly or implicitly, before the military courts.

Because the dissenting judge clearly reached the very issue the defendant now claims was

waived, without assessing the actual briefs filed, this Court is not in a position to determine with

certainty whether the dissenting judge reached the issue sua sponte or based on the defendant’s

arguments (even if not explicitly based on Mesarosh). Consequently, the Court cannot clearly

determine whether this constitutional claim was waived. As such, the Court declines to dismiss

the constitutional claim based on a waiver theory.

                                 2. Full and Fair Consideration

       As set forth above, after the issues concerning Mills’s lab work came to light, the military

courts held extensive proceedings. The CAAF set aside the NMCCA’s opinion, returned the

record of trial to the Judge Advocate General of the Navy for a Dubay hearing, and directed that

the record be returned to the CAAF. The military judge conducted two subsequent Dubay

hearings, both of which addressed the issues of Mills’s problematic lab work. In the end, in an

extensive and thorough opinion, the CAAF, applying a newly discovered evidence standard,




                                                  15
concluded that the plaintiff was not entitled to a new trial because he had not demonstrated that

the new evidence probably would have resulted in a substantially more favorable result for him.

Luke, 69 M.J. at 318.

       The CAAF’s opinion carefully assessed all of the evidence presented. Specifically, the

CAAF noted the military judge’s findings of fact following the Dubay hearing that: despite the

problems with Mills’s lab work, there was no evidence that he had altered any results to falsely

show the presence or absence of DNA in a sample or that his failure to follow proper procedures

was an attempt to improperly influence or alter the outcome of the DNA analysis; in the

plaintiff’s case, Mills had prepared the sample but not performed the DNA analysis, thus

reducing the opportunity he could have had to falsify the results; and, in the plaintiff’s case,

Mills had no motive to falsify results, such as the desire to cover up a mistake, as he had in the

documented case. These findings, entitled to deference, strongly rebut any argument that Mills

may have purposefully falsified the DNA results. The CAAF also noted the military judge’s

findings that: the panties could not have contaminated the bra with the plaintiff’s DNA because

his DNA was not found on the panties; and, neither the bed sheet or any other item could have

contaminated the bra during the serology portion, because the sample of the bra was cut and

sealed in a test tube before the other items were opened. These findings, also entitled to

deference, strongly rebut any argument that Mills’s sloppiness resulted in the presence of the

plaintiff’s DNA on the bra. Thus, absent any indication of falsified results or contaminated

samples, the finding of the plaintiff’s DNA on the bra is best explained by plaintiff having come

into contact with it before it was collected as evidence. Luke, 69 M.J. at 315. Moreover,

although the CAAF noted that Mills’s serological work raised concerns in fifteen of thirty-seven

cases he handled between 1995 and 1999, it further noted that Mills’s screening techniques may




                                                 16
have resulted in questionable negative results where DNA was present, not false positives where

no DNA was present. Id. at 316. Based on these factual findings, the CAAF concluded that the

new evidence would merely have provided impeachment of Mills’s testimony; it would not have

shown that Mills’s credibility was intertwined with the credibility of the DNA evidence. Id.

Because the plaintiff failed to show a probability of contamination in the serology screening

accounting for his DNA being present on the bra, and the plaintiff being left with the prospect of

rebutting compelling DNA statistics with a weak defense (concerning his masturbation and

thumb-sucking), the CAAF concluded that the newly discovered evidence would probably not

have resulted in a more favorable result for the plaintiff. As such, he was not entitled to a new

trial. This was a full and fair consideration of the plaintiff’s arguments.

       Given the thoroughness with which the CAAF treated the plaintiff’s arguments, he is left

to attack his conviction based on the destruction of the DNA evidence in his case which

prohibited retesting of the samples. The plaintiff argues that the military court’s review could

not have provided full and fair consideration because the destruction of the DNA evidence

prevented it from being examined during the Dubay hearings. Pl’s Mot. Opp’n at 14. Thus, the

plaintiff concludes, “[w]ithout the ability to retest the evidence, it simply cannot be said that the

military courts’ review of [plaintiff’s] new evidence claims were sufficiently thorough.” Id. But

the plaintiff fails to establish that re-testing of the evidence would have made any difference

whatsoever.

       Although re-testing could have clearly shown that there was no DNA on the items or that

the DNA was not the plaintiff’s, that is not what is at issue here. It is unclear whether the

plaintiff challenges the conclusion that his DNA was on the bedsheet (he testified that he

masturbated and fell asleep on that bed subsequent to TN’s visit). Presumably, he challenges the




                                                  17
analysis indicating that TN’s DNA was on the bedsheet (corroborating her testimony that he

examined and assaulted her on that bed). And he presumably also challenges the finding that his

DNA was found on the bra (corroborating TN’s testimony that he sucked on her breast during

the exam). But the plaintiff has not established that re-testing of the now-destroyed samples

would be capable of determining that the presence of TN’s DNA on the bedsheet or his DNA on

the bra was due to cross-contamination from other items (either intentional or due to negligence)

rather than from the plaintiff and TN having caused their bodily fluids to be on those items

through their contact with them. Thus, without the context of what re-testing would be capable

of scientifically establishing, the Court cannot determine whether the destruction of the evidence

had any significance whatsoever to the plaintiff’s specific claim of contamination. 6

       And it is similarly unclear whether retesting would support a claim of fabrication.

Because Chase performed the actual DNA testing, it does not appear that re-testing could

establish that Mills fabricated results, inconsistent with the actual samples, to falsely implicate

the plaintiff. And, regardless, Mills has never been shown in the past to intentionally alter

samples in order to falsely implicate the guilt of a defendant. Luke, 69 M.J. at 317 (“there is no

evidence from either the Dubay hearings or the USACIL report that Mills intentionally

contaminated a sample in order to support a prosecution.”). Thus, the plaintiff has failed to

demonstrate that re-testing of the now-destroyed samples would have been capable of supporting

his specific claims.

       The plaintiff is essentially asking that this Court reweigh the evidence and substitute its

judgment for that of the military courts. This Court is not empowered or inclined to do so.

6
  And as the CAAF noted, “the military judge at the first Dubay hearing found that neither the
bedsheet nor the bra could have been contaminated by other items because ‘the sample of the bra
was cut and sealed in a test tube before the other items were opened.’” Luke, 69 M.J. at 317
(quoting Luke, 64 M.J. at 197).


                                                 18
Given the deferential standard that is to be applied in cases such as this, this Court is not in a

position to conclude that the military courts’ full, fair and thorough analysis of the plaintiff’s

arguments were unreasonable or incorrect.

                         3. Conformity with Supreme Court Standards

       The plaintiff’s primary argument in challenging his conviction is that the CAAF’s

affirmance of the conviction despite the problems with Mills’s lab work is unconstitutional

because it fails to conform to Supreme Court standards set forth in Mesarosh, 352 U.S. at 1.

But, contrary to the plaintiff’s argument, the standard set forth in Mesarosh does not apply to the

facts of the plaintiff’s case. Accordingly, the CAAF affirmed his conviction in conformity with

Supreme Court standards.

       The facts and posture of Mesarosh are easily distinguished from the case at hand. In

Mesarosh, the Government had questioned the credibility of its own witness, who had lied under

oath, in a submission from the Solicitor General that had “wholly discredited” him. The witness

was “conceded by the government to have testified . . . in such a bizarre fashion as to raise the

inference that he was either an inveterate perjurer or a disordered mind.” United States v. Stofsky,

527 F.2d 237, 246 (2d Cir. 1975) (discussing the Mesarosh holding). The Mesarosh Court

distinguished the government’s attack on its own witness from a defense motion for a new trial

pursuant to Federal Rule of Criminal Procedure 33. Mesarosh, 352 U.S. at 7-8. The Court noted

that it was “not dealing . . . with a motion for a new trial initiated by the defense under Rule 33

of the Federal Rules of Criminal Procedure presenting untruthful statements by a government

witness subsequent to the trial as newly discovered evidence affecting his credibility at the trial.

Such allegation by the defense ordinarily will not support a motion for a new trial, because new

evidence which is ‘merely cumulative or impeaching’ is not, according to the often-repeated




                                                  19
statement of the courts, an adequate basis for the grant of a new trial.” Id. (internal citation

omitted).

       Unlike the extreme circumstances in Mesarosh, the CAAF did not act unreasonably in

determining that the plaintiff was not entitled to a new trial because Mills’s misconduct did not

undermine the integrity of the conviction. Mills was not entirely discredited in the same way the

witness in Mesarosh was; the plaintiff himself describes Mills’s conduct as potentially careless

and less-than-thorough, but he falls exceedingly short of presenting any evidence that Mills

falsified the serological results to support a conviction. Pl.’s Mot. Opp’n at 17 (“The

investigations into Mr. Mills’ misconduct revealed history of incompetence, cross-

contamination, and violation of laboratory protocols[.]”). There is no evidence in the plaintiff’s

specific conviction that Mills utilized improper procedures, cross-contaminated samples, or

perjured himself in any way. Thus, the plaintiff must rely on problems with Mills’s work in

other cases in order to, by inference, discredit Mills’s work in his case. But in Mesarosh there

was no question that the witness had perjured himself or suffered from such profound mental

illness that his testimony was incredible. Such extreme circumstances entirely discrediting

Mills’s testimony are not present here.

       Further still, appellate courts have significantly narrowed the breadth of the application of

Mesarosh. See, e.g., United States v. Berry, 624 F.3d 1031, 1043 (9th Cir. 2010) (applying

Mesarosh only in “those rare situations where the credibility of a key government witness has

been wholly discredited by the witness’ commission of perjury in other cases involving

substantially similar subject matter”) (internal citation and quotation omitted; United States v.

Burns, 495 F.3d 873, 875 (8th Cir. 2007)) (“The Mesarosh holding has no application to the

present case because there is no evidence whatever that [the witness] was a practiced perjurer or




                                                  20
suffered from some disqualifying mental condition.”); United States v. Anderson, 933 F.2d 1261,

1275 (5th Cir. 1991) (declining to apply Mesarosh where no person “presented any proof that

[the witness] gave false testimony about material facts, and there has been no recantation of

testimony as to material facts.”); Stofsky, 527 F.2d at 246 (noting that Mesarosh was a sui

generis case, and, in light of new evidence that the witness previously engaged in perjury,

balancing the potential damage to that witness’s credibility against the possibility that the new

evidence would be construed as evidence of a broader scheme rather than produce a different

verdict for the defendant to find that the disclosure of perjury probably would not have produced

a different verdict). Thus, the Court is not inclined to give Mesarosh the broad application that

the plaintiff suggests.

        The CAAF treated the issues concerning the problems with Mills’s lab work as newly

discovered evidence that would have served as material for the impeachment of Mills, but would

not have undermined the compelling DNA statistics. Even the Mesarosh Court distinguished the

facts it faced (the complete discrediting of a perjurer) from the type presented here (impeachment

evidence only). Thus, because Mesarosh is inapposite to the plaintiff’s case, the CAAF did not

have to apply its principles to the plaintiff’s case making the affirmance of the plaintiff’s

conviction entirely consistent with Supreme Court standards. As such, because the military

courts gave the plaintiff’s arguments full and fair consideration throughout the proceedings, the

judgment is not void, the CAAF’s affirmance conforms to Supreme Court standards, and the

plaintiff’s first cause of action must be dismissed.

                                      B. Cause of Action #2

        The plaintiff further claims that the last CAAF appellate panel’s decision to uphold “the

trial judge’s exclusion, during cross-examination, of an alleged victim’s abortion after it became




                                                 21
relevant and material rebuttal to the victim’s testimony” deprived him of full and fair

consideration. Pl.’s Mot. in Opp’n at 19. The plaintiff’s argument is based on the fact that the

CAAF had previously granted discretionary review of the issue, had the issue briefed, and heard

oral argument, but, after the case was remanded based on another issue and the case was

subsequently back before it, the CAAF declined to re-exercise its discretion to review the same

issue. But the plaintiff has failed to show that once the CAAF has granted discretionary review,

it must exercise its discretion in the same way when the case is subsequently back before it. And

because the plaintiff’s claim is based solely on this argument, and makes no argument that the

intermediate appellate court did not fully and fairly consider the argument, this Court holds that

the military courts gave “full and fair consideration” to the plaintiff’s claims.

       There is no dispute that the CAAF’s review of a party’s claim of error is entirely

discretionary. Thus, the CAAF had no obligation to accept the issue for resolution in the first

instance. See Sanford, 586 F.3d at 30 (“A further appeal may be had upon petition to the

[CAAF] at that court’s discretion.”) (emphasis added). When the case was back before it, the

CAAF simply chose not to exercise its discretion in the same way. Because the issue was

specifically referenced in a footnote as an issue for which review had been initially granted, it is

clear that the CAAF’s exercise of discretion to not review that issue upon the case’s return to the

court was intentional and not an oversight. Luke, 69 M.J. at 311, n. 2.

       Thus, the plaintiff’s only viable argument would be that once a panel exercises its

discretion to hear an issue, it must exercise its discretion in the same way when the case has a

subsequent trip to the court. But, although the plaintiff cites cases supporting the notion that

once a panel accepts an issue for resolution it must address the issue, even if in summary fashion,

the plaintiff cites no cases involving the facts presented here – i.e., an initial acceptance of an




                                                  22
issue for review with a later explicit exercise of discretion denying review of the same issue upon

a subsequent trip to the court. Because the CAAF’s review of a claim of error is entirely

discretionary, the Court views the procedural posture of this case as similar to a Supreme Court

case in which the Court has granted certiorari, has had full briefing, and has heard argument, but

subsequently determines that certiorari was improvidently granted. See, e.g., Vasquez v. United

States, 132 S. Ct. 1532 (2012); First American Fin. Corp. v. Edwards, 132 S. Ct. 2536 (2012).

In this context, no one could plausibly argue that the Supreme Court is bound by its earlier

exercise of discretion to hear an issue. Likewise here, the CAAF did not have to grant

discretionary review of the plaintiff’s claim of error simply because it had previously done so.

Consequently, this Court holds that the plaintiff’s claim received full and fair consideration by

the military courts below and the plaintiff’s second cause of action is dismissed for failure to

state a claim upon which relief may be granted pursuant to Rule 12(b)(6).



                                       V. CONCLUSION

       Because the plaintiff’s claims were given a full and fair consideration throughout the

proceedings in the military court system and the judgment is not void, and because there is

nothing on the record to demonstrate that the CAAF’s affirmance of the plaintiff’s conviction

failed to conform to relevant Supreme Court standards, the Court grants the defendant’s motion

to dismiss. An Order consistent with this Memorandum Opinion is separately and

contemporaneously issued this 2nd day of May, 2013.

                                                                      RUDOLPH CONTRERAS
                                                                      United States District Judge




                                                 23
