                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA


LADARION D. STANTON                                   )
                                                      )
                 Petitioner,                          )
                                                      )
             v                                        )   Civil Case No. 19-699 (RJL)
                                                      )
JAMES A. JACOBSON                                     )
Major General, U.S. Air Force,                        )
UNITED STATES, et al.,                                )
                                                      )
                 Respondents.                         )

                                        *l
                                MEMORANDUM OPINION
                                (April 7,2020) [##s 1 , 14, I7l

       Petitioner Ladarion Stanton ("Stanton" or "petitioner"), a former airman in the

United States Air Force, seeks collateral review of his conviction for petty larceny and

the punishment of 'ono sentence" imposed by the military justice system.l Respondent

Major James Jacobson ("Jacobson") was the "Convening Authority" of Stanton's general

court-mafiial and imposed the sentence on Stanton after his case wended its way through

the military appeals process. (The other respondent is the United States.) The gravamen



I Stanton styled this rnatter as a petition for habeas corpus under 28 U.S.C. 2241
                                                                               5
because "the writ of habeas corpus has long been recognized as the appropriate remedy
for servicemen who claim to be unlawfully retained in the armed forces." Parisi v.
Davidson,405 U.S. 34,39 (1972). However, as I will explain below, Stanton is now
discharged from the armed forces, and he is not in custody. Therefore, this Court does
not have jurisdiction under 28 U.S.C. E 2241(c), which precludes granting habeas relief
unless a petitioner is in custody. However, Stanton also asserts jurisdiction under 28
U.S.C. $ 133 l, see Pet. at 3, and this Court does have jurisdiction to entertain a collateral
attack on Stanton's conviction under this provision, see'New v. Rumsfeld,448 F.3d 403,
406 (D,C. Cir.2006).
of Stanton's petition is that, afterhis earlier convictions on several unrelated charges

were overturned and remanded to Jacobson for retrial and resentencing, Jacobson

accepted Stanton's offer to resolve his case via a "discharge in lieu of court-martial."

Stanton believed this resolution would not only result in vacating the charges overturned

on appeal but also the charge of larceny, to which he had already pled guilty and which

had already been affinned. Stanton also believed the discharge would leave the military

without any jurisdiction over him. Although respondents acknowledge, as an

administrative matter, that Stanton was discharged when Jacobson accepted Stanton's

discharge in lieu of court-martial, they nonetheless contend that this discharge had no

effect on Stanton's larceny conviction. Indeed, they insist that the military has retained

jurisdiction over Stanton's court-martial. The parties' cross-motions for summary

judgment are now ripe. After extensive briefing and with the benefit of oral argument,2 I

have concluded that Stanton's larceny conviction did survive his adrninistrative

discharge. Therefore, I GRANT respondents' motion for summary judgment, DENY

petitioner's motion for summary judgment, and DISMISS petitioner's petition for habeas

corpus.




2
 As I explain below, oral argument on Stanton's motion for prelirninary injunction was
held before one of my colleagues before the case was transferred to me on August 5,
2019. I have reviewed the transcript of those proceedings.

                                              2
                                       BACKGROUND

         The parties generally agree on the facts underlying this collateral attack on

Stanton's conviction.3 The matter began with a general court-martial, convened by

Jacobson. Decl. of Maj. Matthew Bush ("Bush Decl.") [Dkt. #14-4] fl 1. On June 6,

2016 Stanton went to trial and four days later was convicted of two specificationsa of

sexual assault and one specification of aggravated sexual contact, Resp't's Statement     of

Material Facts ("SOMF") fl 2.5 Prior to his trial, Stanton pled guilty to one charge of

larceny.   Id.   As punishment for both the larceny and sexual assault convictions, Stanton

was sentenced to confinement for 96 months and a dishonorable discharge.6 Id. 113.



3
  Indeed, in response to the Government's statement of material facts, Stanton declares
that "[o]nly one rnaterial fact in this case is in dispute, and it is not advanced by
Respondent in this Court." Pet'r's Opp'n 2, In reply, the government agrees, noting that
o'stanton does not dispute the material facts advanced by
                                                              fthe Government] in this case,
except to disagree with fthe government] regarding the legal consequences of Stanton's
previously affirmed larceny conviction." Resp't's Reply 1.

o
    "[A] 'specification
                      is a plain, concise, and definite statement of the essential facts
constituting the offense charged ."' United States v. Fosler,70 M.J. 225,234 (C.A.A.F.
20lI) (Effron, C.J., dissenting) (quoting Manualfor Courts-Martial, United StatesPtule
("R.C.M.") 307(cX3) (2008 ed.)). By contrast, "[a] charge states the article of the IJCMJ,
law of war, or local penal law . . . which the accused is alleged to have violated." R.C.M.
307(cX2) (2019 ed.). Multiple specifications can therefore appear under the same
'ocharge."

s
  Because the parties generally agree (and because Stanton did not file an opposition to
the government's SOMF), I will cite to the government's SOMF whenever applicable
and not directly disputed by Stanton . See Fed. R. Civ. P. 56(e)(2) ("If a party fails to
properly support an assertion of fact or fails to properly address anotherparty's assertion
of a fact as required by Rule 56(c), the court may . . . consider the fact undisputed for
purposes of the motion . . . .").

6
  His sentence included other punishrnents, but those listed are the ones most relevant to
the present petition. SOMF fl 3.

                                                a
                                                J
Stanton then appealed his conviction and sentence. Id. fl     4.   On February 7,2018, the    Air

Force Court of Criminal Appeals ("AFCCA") affirmed Stanton's larceny conviction but

set aside his convictions on the sexual assault charges and author rzed arehearing on the

findings and as to the sentence.T Id. Anew trial was set for July 23,2018 on the sexual

assault charges, but the alleged sexual assault victims notified the    Air Force that they no

longer wished to testify at, or participate in, Stantonos rescheduled court-martial. See id.

fl 5. Accordingly, Jacobson withdrew the sexual assault charges against Stanton without

prejudice on July 20,2018. Id. n 6.

    '   At this point, Stanton faced   a re-sentencing hearing   only on his guilty plea to

larceny. Seeking to avoid this hearing, Stanton requested to be adrninistratively

discharged in lieu of a trial by court-martial pursuant to Chapter 4 of    Air Force

Instruction ("AFI") 36-3208 ("Chapter 4').8 Id. fl 7. Chapter 4 provides that airmen who

are "subject to trial by court-m artial" rnay "fr]equest discharge in lieu of   trial," AFI 36-
                          oocharges
3208 4.1.1, provided that           have been preferred with respect to an offense for

which   a   punitive discharge is authoriz ed," id. 4.1.2. In his request for a discharge under


7
  At the time of Stanton's sentencing, courts rnartial imposed a single sentence for all
offenses. ,See R.C.M. 1002(b) (2016 ed.) ("Sentencing by a court-martial is unitary. The
court-martial will adjudge a single sentence for all the offenses of which the accused was
found guilty."); see also R.C.M. App'x 21 Rule 1006(c) (recognizing same unitary
sentencing concept under 2012 rules that applied to Stanton's sentencing). Therefore,
overturning Stanton's conviction on any charge or specification required reconsideration
of his entire sentencs.

8
 Available at https://static.e-publishing.af.mil/production/1/a{_a1lpubli cationlafi36-
32081afi36-3208.pdf. Although the version of AFI 36-3208 available at this website
carries an issuance date of 14 June 2018 (and a reissuance date of 13 June 2019), the
applicable provisions of Chapter 4 appear not to have changed since at least 2013.


                                                 4
Chapter 4, Stanton affirmed his understanding that he could be discharged under other

than honorable conditions. SOMF fl     7. Matthew Bush, the Chief of Military    Justice in

the Office of the Staff Judge Advocate for the    Air Force District of Washington

("AFDW"), spoke with Stanton's defense counsel regarding Stanton's Chapter 4 request

before Bush presented Stanton's request to Jacobson.     Id.'ll 9. During this conversation,

Bush noted the Government's belief that Jacobson had limited, to no authority, to disturb

the affirmed larceny conviction.n Id.; Pet'r's Opp'n   2.   Stanton's counsel, however,

confirmed Stanton's desire to continue nonetheless with the Chapter 4 request. SOMF

lle
       AFDW proceeded to consider Stanton's request for discharge under Chapter 4

On July 23,2018, a staffjudge advocate in Jacobson's office wrote up a legal review

recommending that Jacobson grant the request. See Legal Review        - Request for
Discharge in Lieu of Trial by Court-Martial, United States v. AIC Ladarion D. Stanton

("Legal Review") [Dkt.   #l-2].   The review noted that although Stanton faced up to six

months' confinement and a bad conduct discharge for larceny of less than $500 in

property (i.e., an iPad), the chance of a court-martial panel actually sentencing him to   a


punitive discharge was "incredibly low." Id. at 1-2. What's more, the review reported

that the larceny victim supported Stanton's.request for a discharge in lieu of court




e
  According to Stanton, the sole material fact in the case that is in dispute is whether or
not Mr. Stanton's former counsel agreed with Bush about the Government's inability to
disturb Stanton's larceny conviction. See Pet'r's Opp'n 2. Because I conclude that this
fact is ultimately immaterial to my legal analysis, I include here the version of the facts
set forth by Stanton.


                                              5
martial. Id. Ultimately, on July 25,2018, Jacobson approved Stanton's Chapter 4

request and directed that Stanton "be discharged with an Under Other Than Honorable

Conditions service characterization." SOMF fl 10 (quoting Dkt. #1-1) (internal quotation

marks omitted). A legal staffer in Jacobson's office then issued an order in Stanton's

court-martial proceeding stating that "[a] rehearing was found to be impracticable" and

that "[a] sentence providing forono punishment' is approved." General Court-Martial

Order No. 45 fDkt. #1-31.

        The case then returned automatically to the AFCCA, over Stanton's strong

objection. Shortly after the AFCCA re-docketed the record of Stanton's case, see SOMF

tf 1 1, Stanton argued that the court lacked jurisdiction over hirn because he had been

administratively discharged and was not subject to a sentence that would provide the

court a basis for continuing jurisdiction, see Stanton's AFCCA Mot. to Dismiss, Def.'s

Opp'n to Mot. for Prelirninary Injunction Ex. C [Dkt. #10-1 at 5]. After the Government

filed an opposition, the court summarily denied the motion. See id. at     I. Stanton then
petitioned the Court of Appeals for the Armed Forces for a writ of mandamus, but this

petition was also summarily denied. See Stanton v. United States,78 M.J. 258 (CAAF

2018). Undaunted, Stanton filed the present petition for habeas corpus and a motion for      a


preliminary injunction on March 12, 2019   . ,See Petition [Dkt. # I ]; First Mot. for a

Prelirninary Injunction [Dkt. #2]. The case was assigned to one of my colleagues who set

a   briefing schedule and held oral argument on April 18, 20 19. See Minute Entry for

Proceedings Held on 411812019. After hearing argument, my colleague declined to grant




                                              6
a   preliminary injunction but set a further briefing schedule for summary judgment

motions. See id.

         Meanwhile, proceedings continued on a parallel track in the military justice

system. On March 21,2019, the AFCCA remanded the case on procedural grounds,

noting that Stanton's no-punishment sentence was imposed in an order signed by                     a


member of Jacobson's staff, when only Jacobson himself could irnpose the sentence.
                                                                oono
AFCCA Order Remanding Case [Dkt. #S]. After Jacobson signed the      punishment"

order hirnself on remand, see SOMF     fl   14, the case returned to the AFCCA, which issued

an opinion on July 16,2019. See United States v. Stanton, No.              ACM 39161 (reh)

(AFCCA July 16, 2019) ("Stanton") [Dkt. #20-ll. In its opinion, the AFCCA rejected

two arguments Stanton had raised before       it.   First, the court concluded that it did retain

jurisdiction over Stanton even after his administrative discharge. Stanton at 4-5.

Second, the court declined to set aside Stanton's larceny conviction in order to avoid a

"manif'est injustice." 'I'hus, as things stand now, Stanton has been adrninistratively

discharged from the    Air Force under other than honorable conditions and with               an

affirmed conviction for larceny for which he received         a   punishment of "no sentence."

                                    LEGAL STANDARDS

         Both parties seek summary judgment. Summary judgrnent is appropriate "only                    if
one of the moving parties is entitled to judgment as a matter of law upon material facts

that are not genuinely dispute   d." Airlie Foundation v, IRS,283 F. Supp. 2d 58, 61

(D.D.C. 2003) (citing Rhoads v. McFerran, 517 F .2d 66, 67 (2d Cir.              I 97   5)); see also Fed,

R. Civ. P, 56(a) ("The court shall grant summary judgment            if   the movant shows that there


                                                    7
is no genuine dispute as to any material fact and the rnovant is entitled to judgment as             a


matter of law."). The party seeking summary judgment bears the burden             of

demonstrating the absence of a genuine issue of material fact. Celotex Corp. v, Catrett,

477 U.5.317,322 (1986).     A genuine issue of material fact is one that "might affect the

outcome of the suit under the governing law." Andersotn v. Liberty Lobby, Inc. 477 IJ.S.

242,248 (1936), In determining whether there exists a genuine issue of material fact, the

court must view all facts, and reasonable inference drawn therefrom, in the light most

favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 514,587 (1936).

       The legal question at issue on summary judgrnent involves review of the military

justice system's jurisdiction over Stanton. Article   III   courts have long had the authority

to consider collateral attacks challenging a court-martial tribunal's jurisdiction to try        a


case. See In re Grimley,13T U.S. 147,150 (1890)       ("lt cannot be doubted that the civil

courts may in any case inquire into the jurisdiction of a court-martial, and       if it   appears

that the party condemned was not amenable to its jurisdiction, may discharge hirn from

the sentence."). In cases involving collateral attacks by mernbers of the military who are

                                                               oofor
not in custody, our Circuit Court has opined that in order             a court to grant any   relief

to such plaintiffs, the military court judgrnent must be 'void,' meaning the error must be

fundamental."l0 Sanfordv. tJnited States,586 F.3d 28,32 (D.C. Cir. 2009) (quoting

Schlesinger v. Councilman,420 U.S. 738,753 (1975)).


l0Filing his own motion for summary judgment before the rnilitary justice systern had
completed its process, Stanton argued that he was not collaterally attacking a cornpleted


                                               8
       Stanton identifies both jurisdictional and non-jurisdictional errors here.

Jurisdictional errors are, of course, fundamental. See Councilman, 420 U .5. at 7 47

(stating district courts may grant relief where court martial suffered from"lack       of

jurisdiction or some other equally fundamental defect" (ernphasis added)); see also Toth

v. Quarles, 350 U.S.   II,   14 (1955)   ("[]t has never been intimated by this Court . . . that
Article I rnilitary jurisdiction could be extended to civilian ex-soldiers who had severed

all relationship with the rnilitary and its institutions."). Whether a non-jurisdictional error

is fundarnental "may turn on [1] the nature of the alleged defect, and [2] the gravity of the

harm from which relief is sought. Moreover, both factors must be assessed in light of the

deference that should be accorded the judgments of the carefully designed rnilitary justice

system established by Congress." Sanford, 586 F.3d at 307

                                            ANALYSIS

       For the most part, the Government and Stanton talk past each other in their

motions. The Govetnment contends that Jacobson lacked the authority to vacate

Stanton's already-affirmed conviction on remand and that the AFCCA properly retained

jurisdiction over Stanton's sentence even post-discharge. Stanton argues that Chapter         4


authorized Jacobson to grant a discharge in lieu of a court-martial regardless of the

AFCCA's previous decision, that Stanton was entitled to the full benefit of his bargain (a



court martial but rather attacking the right of a court martial to try him in the first place,
which our Circuit Court has recognized as an exception to the general requirernent that
servicemembers exhaust the military justice process before seeking review in a civilian
court. See Pet'r's Opp'n at 4-5 (citing New v. Cohen, 129 F.3d 639,644 (D.C. Cir.
1997)). As the military justice process has now run its course in any event, I need not
consider whether Stanton was required to exhaust its processes.


                                                  9
discharge without a conviction), and that the AFCCA lacked jurisdiction over Stanton

once he was discharged from the       Air Force by Jacobson. I conclude that because

Stanton's conviction was indeed final before he even initiated the discharge in lieu            of

court-martial process, that conviction (and the sentence of "no punishment") survived his

administrative "discharge in lieu of court-martial." How so?

   A. The Larceny Conviction Was Final

         At the time Stanton requested    a discharge   in lieu of court-martial, the conviction

had already been affirmed by the AFCCA, which, according to statute, executive order,

and military legal precedent, accorded it     finality. First, under the Uniform Code of

Military Justice ("UCMJ"), the AFCCA's findings           as   to guilt are final and binding (both

on the   Air Force and on this Court):

         The appellate review of records of trial provided by this chapter [and] the
         . . . findings . . . of courts-martial as . . . affirmed as required by this chapter
         . . . are final and conclusive. Orders publishing the proceedings of courts-
         martial and all action taken pursuant to those proceedings are binding upon
         all departments, courts, agencies, and officers of the United States, subject
         only to farticles 73 and 74 of this titlerr] and the authority of the President.

r0 u.s.c. $ 876.

         Next, the Manual for Courts Martial ("MCM"), an Executive Order issued by the

President, recognizes that a military Court of Criminal Appeals may affirm some findings




rr Article 73 deals with newly discovered evidence or fraud on the court. See I0 U.S.C.
                                                          ooany
$ 873. Article 74 provides for remission or suspension of       sentence" by certain
officials but says nothing about convictions. 10 U.S.C. $ 874 (emphasis  added). Neither
provision applies here.

                                                  10
of guilt and effectively lock them in while ordering further proceedings below (which

must be consistent with those affirrned findings):

       If a superior competent authority  has approved some of the findings of guilty
       and has authorized   a rehearing   as to other offenses and the sentence, the
       convening authority may, unless otherwise directed, reassess the sentence
       based on the approved findings of guilty and dismis s the remaining charges.
       Reassessment is appropriate only where . . . the reassessed sentence is
       appropriate in relation to the ffirmedfindings of guilty.

R.C.M. 1 107(e)(2)(Bxiii) (2016 ed.) (emphasis added); see a/so R.C.M.

1107(e)(1)(BXiv) (2012 ed.) (same). By contrast, the MCM nowhere authorizes a

convening authority to dismiss already-affirmed charges

       Finally,   as the Government points out, the   military courts long ago held that   a


convening authority was not empowered to overturn an already-affirmed conviction in            a


case like Stanton's

       Nothing in the terms of the remand [in the case under review] . . . perrnitted
       the convening authority to take any action as to the findings of guilty. Indeed,
       those findings had already been affirmed by the Court of Military Review
             "fA]fter remand of a case, a lower court, or in the military any lower
       echelon, is without power to modify, atnend, alter, set aside, or in any manner
       disturb or depart from the judgrnent of the reviewing court."

United States v, Montesinos,2S M.J. 38,43 (C.M.A. 1989) (quoting United States v

Stevens,2T C.M.R. 491,492      n.l (C.M.A. 1959)).     Thus, Stanton's conviction was final

and unalterable before he sought a discharge in lieu of court-martial from Jacobson.

       Because Stanton did not frame his argument in terms of finality, he does not

directly challenge the finality of the conviction. Instead, he contends that the Chapter 4

discharge in lieu of court-martial could set aside the conviction. As    I explain below, I

disagree


                                              11
   B. The Discharge in Lieu of Court-Martial Had No Effect on Stanton's
       Conviction

       Stanton's successful request for a discharge in lieu of court-martial had no effect

on his already-final larceny conviction.

       Several CAAF cases, taken together, provide a framework for considering

Stanton's jurisdictional challenge here. First, longstanding CAAF precedent establishes

that a servicemernber's adrninistrative discharge has no effect on a pre-existing

conviction (and sentence), nor on further actions by the military justice system pursuant

to that conviction (and sentence):

       This Court has held that,     ifa person is discharged administratively while
       appellate review is pending, there is "no good reason to hold the findings and
       sentence of the court-martial are impaired by the discharge." Similarly, the
       power of review authorities over the court-martial is unaffected by the
       administrative discharge. Moreover, the administrative discharge does not
       negate the responsibility of the convening authority to act on the findings and
       sentence; nor does it restrict his power to do so.

Steele v. Van Riper,50 M.J. 89 (C.A.A.F. 1999) (quoting United States v. Speller,24

C.M.R. 173,178 (C.M.A. 1957)), Next, another CAAF case explains that when a finding

of guilt is affirrned on appeal but a sentence is vacated, the military courts retain

jurisdiction even when a defendant has been adrninistratively discharged in the

meantrme

       The question before us is, when an appellate court approves the findings of
       a court-martial, disapproves the sentence, and orders a sentence rehearing,
       does a post-trial administrative discharge preclude cornpletion of the
       sentence proceedings ordered by an appellate court?          [O]ur precedent
       recognizes that there is "continuing jurisdiction" over a case that has been
       tried and in which the accused was convicted while in a status that subjected
       him or her to the UCMJ.



                                              I2
United States v. Davis,63 M.J. 17I,176 (C.A.A.F. 2006).12 A third CAAF case applying

Steele explains that while a pretrial adrninistrative discharge terminates a court-martial's

jurisdiction over the accused, "[a] post-trial administrative discharge operates to remit the

unexecuted punitive discharge portion of an adjudged court-martial sentence." United

States v. Watson,69 M.J. 415,416-17 (C.A.A.F.       20ll).   Finally, a fourth CAAF   case,


albeit in a different factual context, makes clear that a convening authority's powers on

remand are circumscribed to just those necessary to accomplish what was ordered by the

superior court

       It is well established that in a case subject to review under Article 66, UCMJ,
       a convening authority ooloses jurisdiction of the case once he has published
       his action or has officially notified the accused' of that action. At that point,
       the 'only further contact that the convening authority has with the case occurs
       in the event of a remand" or the exercise of his clemency powers. . . . fE]ven
       when acting on remand, a convening authority rnay still only take action "that
       conforms to the limitations and conditions prescribed by the remand." The
       AFCCA's remand "did not purport to confer upon [the] convening authority
       all the powers that a convening authority would have possessed on the initial
       appellate review of the case pursuant to Article 60." Instead, the convening
       authority acted "by delegation from the [Court of Crirninal Appeals]-to
       which he was subordinate" because he possessedoollo independent statutory
       authority atthat time to act on the findings and sefltence."




12
    Stanton attempts to distinguish both Steele and Davis on the grounds that they both
 involved servicemen who were administratively discharged by rnistake. This matters, he
 contends, because while an administrative error does not divest the military courts of
jurisdiction, a discharge pursuant to a binding contract does. But Steele cites Speller for
 its jurisdictional holding, and Speller cites cases involving a variety of discharges in
 different contexts dating back at least as far as the latter half nineteenth century. See
Speller,24 C.M.R . at 176 ("[T]he general rule has long obtained that jurisdiction once
 acquired is not lost by a change in the status of a defendant."); see also id. (citing Carter
 v. McClaughry,183 U.S. 365, 383 (1902); Colemanv. Tennessee,9T U,S. 509 (1878)).
 So whether the discharge was based on mistake is irrelevant. I respond to Stanton's
 contractual argument below.


                                              13
United States v. Carter,76MJ.293,295-96 (C.A.A.F. 2017) (quoting Montesinos,23

M.J. at 42,44). Taken together, these four cases stand for the proposition that a finding

of guilty, once affirmed on appeal, remains final on remand despite an intervening

administrative discharge and that the convening authority has no power over this finding

of guilty on remand for resentencing. In other words, in cases like Stanton's, Jacobson

could not set aside Stanton's conviction.

         Stanton makes three arguments why his conviction should be (or, more accurately,

was) set aside based on the discharge in lieu of a court martial. First, he contends that

different military legal precedent stands for the proposition that a request for discharge in

lieu of a court-martial that is granted after a conviction causes that conviction to be

vacated. ln United States v. Woods,26MJ.372 (C.M.A. 1988), the Court of Military

Appeals did indeed order a court-martial conviction to be "abated" because of a discharge

in lieu of court-martial that was granted after the conviction was entered. In addition to

that factual setup, there is language in the opinion that is helpful to Stanton:

         The power of the Secretary to approve or disapprove resignations in
         accordance with his own regulations and the power of a convening authority
         to convene courts-martial harmoniously coexist. Just as we have recognized
         that an administrative action cannot divest a court-martial of its iudicial
         power, we likewise recognize that a court-martial can neither deprive the
         Secretary of his powers nor defeat a lawful agreement between an accused
         and the secretary.

Woods, 26 MJ . at 37 5 .13 Petitioner also cites United States v. Patterson, 1998 WL

433963 (N.M. Ct. Crirn. App. July 7, 1998), in which the Navy-Marine Court of Criminal




13
     A concurrence in the opinion has even better language for petitioner:

                                              I4
Appeals sirnilarly overturned a conviction that was followed by an approved request for

discharge in lieu of court-martial, id. at *2.

         But there are four crucial differences that lead me to disregard Woods and

Patterson in this case. First, in both cases, the requesr for discharge was made before the

actual finding of guilty was entered.la Second, in both cases, it was the negligence (in

Patterson,an outright misrepresentation) of rnilitary officials that led to the discharge not

being approved until after the conviction had been entered. Once again, in the present

case, the discharge was not even requested until after the conviction had been approved

by the convening authority (and affirrned on appeal). Third, relatedly, the benefit for

which the defendants in Woods and Pattersonbargained was that there would be no

court-martial at all, Just because one was ultimately conducted (again, because of

negligence on the part of military officials charged with processing the discharge request)

does not change the nature of the original bargain. Here, by contrast, the court martial

had already happened. What was bargained away was a re-sentencing hearing.l5 So it




          It seems clear that fthe Army's discharge in lieu of court-martial] Regulation
          contemplates that, if a resignation is accepted after a conviction has'occurred,
          the result will be the same as if a court-martial had never taken place. Such
          an outcome seems irnplicit in the concept of a resignation in lieu of court-
         rnartial.
Woods, 26 MJ. at 37 5 (Everett, C.J., concurring).
14
   It is not clear to me that the Chapter 4 discharge in lieu of court-martial regulation was
even intended to apply in a case like Stanton's, where a conviction had been affirmed on
appeal, but I need noideciOe that question to conclude that there is a fundamental
difference between a request made before a court-martial took place and one made after a
court-martial's finding of guilty had been affirmed on appeal.

 r5
      Stanton disagrees with this characterizalion, as I address more fully below.


                                                 t5
makes sense that here the sentence, rather than the court-martial itself, would be

o'abated." Finally, in both Woods and Patterson, the discharge was approved before the


case ever went up   for appellate review. Thus, at the time each defendant was actually

discharged, the finding of guilty had not yet been affirmed on appeal and was not yet law

of the case. In light of these differences, I do not find Woods and Pattersoiz persuasive

here.

        Stanton's second argument is that he did not receive the benefit of his bargain with

the Air Force. He argues that he forewent the statutory and constitutional rights afforded

him at a court-martial sentencing rehearing in exchange for his case being resolved

administratively instead of crirninally. As such, he contends that the Air Force violated

its contract with hirn by maintaining his conviction and imposing a sentence of no

punishmen   t.   SeePet'r's Opp'n 7-8 (citing United States v. Henry,758 F.3d 427,431

(D.C. Cir.2014) ("In interpreting the terms of a plea agreement, we look to principle of

contract law."); United States v, Lundy,63 M.J. 299,301 (C.A.A.F.2006)          ("[A] pretrial

agreement is a constitutional rather than a commercial contract.")).     I disagree. Stanton's

case is simply different from the normal discharge in lieu of court-martial in that his was

a discharge in lieu of re-sentencing. His court-martial had already taken place, and he

faced no prospect of a new court-martial. Benjamin Beliles, Stanton's trial counsel who

assisted him with the Chapter 4 request, insists that he believed the convening authority's

understanding that nothing could be done about the affirmed larceny conviction was

incorrect, see Decl. of Benjamin Beliles, Pet'r's Opp'n Ex.   1   tl 4, but even Beliles




                                              l6
acknowledges that the convening authority did not represent that he intended to do

anything about that already-affirmed conviction, see id.

       Another AFCCA case, which Stanton does not cite but did rely on before the

AFCCA, is instructive because it demonstrates what true reliance by Stanton on receiving

a discharge   would have looked like. In United States v. Perez, No. ACM 38559,2019

WL 1110433 (A.F. Ct. Crim. App. March       8, 2019), the AFCCA reviewed a situation

almost identical to the one in this case-the AFCCA previously had affirrned a finding          of

guilt on one specification, set aside other specifications and the sentence, and remanded

to the convening authority for further action, but on remand, the convening authority

accepted a discharge in lieu of court-martial, see id. at   *2.   One key difference between

Perez and Stanton's case, however, is that in Perez, the convening authority explicitly

purported to set aside the affirrned conviction. See id. On appeal, the AFCCA made

clear, consistent with its later ruling in Stanton's case, that the convening authority lacked

the power to set aside an already-affirmed conviction   . See id. at *4 ("[W]e find

inconsistent with the remand and thus improper the convening authority's withdrawal and

dismissal of Specification 4 . . . . Because this court had already affirmed Appellant's

conviction . . . the convening authority could not dismiss the specification and charge.").

But because the defendant in Perezhad'oreasonably relied on the convening authority's

beliefthat he could withdraw and dismiss" the already affirmed charge, the AFCCA

upheld the dismissal because it concluded that to do otherwise would be a "manifest

injustice." Id, at *5 (ernphasis added). Here, Stanton could noireasonablyhave relied

on the convening authority's belief that he could dismiss Stanton's already affirmed


                                              t7
charge because, as Stanton himself agrees, the convening authority did not purport to

believe that.16 Here, Stanton's sentence was abated, which was the appropriate outcome

for a discharge in lieu of a re-sentencing hearing

       Third, Stanton insists that the AFCCA had no jurisdiction at all after his

administrative discharge and so erred in once more taking up his case after that discharge.

Stanton cites Clinton v. Goldsmith,525 U.S. 961 (1998), for this proposition, but his

reliance is misplaced. In Goldsmith, the Supreme Court held that the Court of Appeals

for the Armed Forces could not enjoin the Secretary of the Air Force from

adrninistratively discharging an airman simply because that airman was also serving out     a


sentence irnposed by court-martial. See id. at 536-37. But here, the AFCCA made no

atternpt to interfere with Stanton's discharge; instead, it reviewed his conviction and

sentence of no punishment. Stanton argues that the conviction itself was voided, causing

the AFCCA to lose its jurisdiction, but as I have explained, the conviction survived his

discharge. And there is no question that the AFCCA retains 'Jurisdiction over a case that

has been tried and in which the accused was convicted while in a status that subjected

hirn or her to the UCMJ." Devis,63 M.J. at 176




16
   Stanton does not argue before this Court, nor could he, that the AFCCA erred in
declining to use its authority to correct a manifest injustice in his case. That is precisely
the sort of discretionary action by the military courts that I cannot set aside as void on
collateral review. See Stanford,586 F.3d at 307 (noting that military cases must be
'oassessed in light of the deference that should be accorded the judgments of the carefully
designed rnilitary justice system established by Congress" (quoting Councilman, 420
U.S. at 753) (internal quotation marks omitted)).


                                              18
                                  CONCLUSION

      For the foregoing reasons, petitioner's Motion for Summary Judgment is

DENIED. Respondents'Motion for Summary Judgment is GRANTED. Petitioher's

Petition for a Writ of Habeas Corpus is DISMISSED. A separate Order consistent with

this decision accompanies this Memorandum Opinion.
                                                  t

                                              zu
                                              United         istrict Judge




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