                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                            FOR THE TENTH CIRCUIT                         October 11, 2019
                        _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
 MARK EVANS,

       Petitioner - Appellant,

 v.                                                        No. 19-3023
                                                  (D.C. No. 5:18-CV-03240-JWL)
 CAROLINE HORTON, Colonel, United                            (D. Kan.)
 States Army Commandant, United States
 Disciplinary Barracks,

       Respondent - Appellee.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before MORITZ, McKAY, and CARSON, Circuit Judges.
                  _________________________________

      Mark Evans appeals the district court’s order dismissing his 28 U.S.C. § 2241

petition. For the reasons explained below, we affirm.

                                    Background

      A court-martial tried and convicted Evans of raping and assaulting a female

German citizen and of obstructing justice.1 The court-martial sentenced Evans to 20




      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
       1
         The court-martial also convicted him of assaulting a male coworker. But it
acquitted him on charges that he attempted to sexually assault, and perpetrated
abusive sexual contact against, the same male coworker.
years’ confinement, reduced his grade to E-1, and ordered his dishonorable

discharge.

      Evans appealed to the Air Force Court of Criminal Appeals, challenging the

sufficiency of the evidence and the severity of his sentence. The appellate court

affirmed the court-martial’s findings and sentence. See United States v. Evans, ACM

38651, 2015 WL 6657428, at *1 (A.F. Ct. Crim. App. Oct. 22, 2015) (unpublished).

Evans then sought review by the Court of Appeals for the Armed Forces, again

challenging the sufficiency of the evidence. That court declined review. See United

States v. Evans, 75 M.J. 288, 288 (C.A.A.F. 2016) (unpublished).

      Evans then filed the § 2241 petition at issue here. He asserted that under

United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), the court-martial’s finding on

his rape charge was fundamentally flawed because it was based on an

unconstitutional instruction about propensity evidence. Specifically, Evans argued

that the court-martial’s propensity instruction unconstitutionally undermined the

presumption of innocence by allowing the factfinder to consider evidence of charged

conduct for propensity purposes—even if the factfinder did not find Evans guilty

beyond a reasonable doubt of that charged conduct. The government responded that

Evans could not raise the Hills issue as a basis for habeas relief because he failed to

raise it before the military courts and could not establish cause or prejudice to

overcome this procedural default.

      The district court denied Evans’s petition, but in so doing, it did not address

the government’s arguments about waiver or cause and prejudice. Instead, the district

                                               2
court concluded that under Teague v. Lane, 489 U.S. 288 (1989), the rule set forth in

Hills did not apply retroactively to Evans’s case. Evans appeals.2 We review the

district court’s decision de novo. See Brace v. United States, 634 F.3d 1167, 1169

(10th Cir. 2011).

                                      Analysis

      In his habeas petition, Evans asserted the military judge provided an

unconstitutional instruction that allowed the factfinder to consider charged conduct—

as opposed to uncharged conduct—as propensity evidence for other charged crimes.

See Mil. R. Evid. 413 (“In a court-martial proceeding for a sexual offense, the

military judge may admit evidence that the accused committed any other sexual

offense. The evidence may be considered on any matter to which it is relevant.”);

Hills, 75 M.J. at 354 (holding that Military Rule of Evidence 413 “may not” be used

“as a mechanism for admitting evidence of charged conduct to which an accused has

pleaded not guilty in order to show a propensity to commit the very same charged

conduct”).

      The government does not dispute that the instruction in Evans’s 2014 trial was

improper under Hills, which was decided in 2016. But it contends that Evans waived



      2
         Evans does not need a certificate of appealability. See Nixon v. Ledwith, 635
F. App’x 560, 561 n.1 (10th Cir. 2016) (unpublished) (holding that military prisoner
“does not need a certificate of appealability to appeal from the district court’s
decision” denying his § 2241 petition); Montez v. McKinna, 208 F.3d 862, 866–67
(10th Cir. 2000) (noting that “federal prisoner proceeding under § 2241 does not need
a certificate of appealability to appeal a district court’s denial of the petition”
(emphasis omitted)).
                                              3
his challenge to this jury instruction by failing to raise it before the military courts,

either at trial or on appeal. The government is correct that “if a ground for relief was

not raised in the military courts, then the [federal] court must deem that ground

waived.” Roberts v. Callahan, 321 F.3d 994, 995 (10th Cir. 2003). And here, Evans

does not contest that he failed to challenge the jury instruction at trial or on appeal.

Thus, we conclude that Evans waived this argument. See id. As such, we will only

reach the merits of Evans’s jury-instruction argument if he can show both cause and

prejudice: cause for failing to raise this argument before the military courts and

actual prejudice resulting from the allegedly unconstitutional jury instruction. See id.

(“The only exception to the waiver rule is that a petitioner may obtain relief by

showing cause and actual prejudice.”).

       Evans argues that we should find cause and excuse his failure to raise this

issue before the military courts because the law at the time of his trial was “settled”

such that raising the issue “would have been frivolous.” Aplt. Br. 23. In other words,

Evans insists that because Hills changed the law about this particular jury instruction,

we should excuse him for failing to challenge the instruction at trial or on appeal. But

“[c]hanges in law do not automatically constitute cause.” Daniels v. United States,

254 F.3d 1180, 1190 (10th Cir. 2001). Nor does futility. See Bousley v. United States,

523 U.S. 614, 622 (1998) (“[F]utility cannot constitute cause if it means simply that a

claim was ‘unacceptable to that particular court at that particular time.’” (quoting

Engle v. Isaac, 456 U.S. 107, 130 n.35 (1982))). Instead, the question in this context

is whether “a constitutional claim is so novel that its legal basis [was] not reasonably

                                                4
available to counsel.” Reed v. Ross, 468 U.S. 1, 16 (1984). So even if we accept

Evans’s appellate arguments—by assuming both that (1) military law at the time of

Evans’s trial and appeal was settled and allowed this now-unconstitutional jury

instruction and (2) any challenge to the instruction would have failed—these

assumptions are not enough to automatically excuse his failure to challenge the jury

instruction in the military courts.

       Nor can Evans meet Reed’s novel-claim standard.3 On the contrary, and as the

government points out, litigants in other cases taking place around the same time as

Evans’s 2014 trial and 2015 appeal raised this very argument. See, e.g., Hills, 75 M.J.

at 352 (noting that criminal acts occurred in 2012 and appeal to Army Court of

Criminal Appeals occurred in 2015; accepting argument that Rule 413 only allows

admission of evidence of uncharged conduct); United States v. Bass, 74 M.J. 806,

815 (N-M. Ct. Crim. App. 2015) (rejecting Rule 413 argument later accepted in

Hills). And “cause will not be found where the ‘basis of a constitutional claim is

available, and other defense counsel have perceived and litigated that claim.’”

Clanton v. Muncy, 845 F.2d 1238, 1242 (4th Cir. 1988) (quoting Engle, 456 U.S. at

134). Thus, Evans fails to show cause to excuse his failure to raise this issue before

the military courts.




       3
          Indeed, he arguably does not even attempt to meet this standard. He never
cites it, and in his reply brief, he simply doubles down on his position that
challenging the jury instruction at trial or on appeal would have been futile because
under military law at that time, the instruction was proper.
                                               5
       And even if Evans could show cause, he would also be required to show actual

prejudice resulting from the court’s decision to give this instruction at his trial. See

United States v. Frady, 456 US. 152, 167 (1982). In the context of an instruction that

is later determined to be unconstitutional, the prejudice inquiry does not merely ask

“whether ‘the instruction is undesirable, erroneous, or even universally condemned.’”

Id. at 169 (quoting Henderson v. Kibbe, 431 U.S. 145, 154 (1977)). Rather, a court

must determine “whether the ailing instruction by itself so infected the entire trial

that the resulting conviction violates due process.” Id. (quoting Henderson, 431 U.S.

at 154).

       Moreover, “[t]he burden of showing prejudice is not an easy one.” Daniels,

254 F.3d at 1191. “[I]t is not enough to assert that an error ‘might have changed the

outcome of the trial.’” Id. (emphasis added) (quoting Strickler v. Greene, 527 U.S.

263, 289 (1999)). Instead, Evans “must convince us that ‘there is a reasonable

probability’ that the result of the trial would have been different” in the absence of

the propensity instruction. Strickler, 527 U.S. at 289 (quoting Kyles v. Whitley, 514

U.S. 419, 433 (1995)).

       Evans cannot make such a showing here, primarily because the other evidence

against him was overwhelming. Evans met the 16-year-old victim at an Oktoberfest

festival. Evans, 2015 WL 6657428, at *1. Near the end of the evening, Evans and the

victim went a little away from the festival tent. Id. at *1–2. The victim testified that

Evans kissed her and that she refused Evans’s further advances, knocked his hands

away from her, and told him to stop. Id. at *2. She said that when she cried out,

                                                6
Evans put his fingers in her mouth to keep her quiet; when she bit his fingers, he held

her mouth closed. Id. She further stated that she struggled against Evans and asked

him not to kill her. Id. She testified that Evans pulled her pants down, engaged in

sexual intercourse with her, and then got up and walked away. Id.

       Critically, Evans’s own videotaped statement to military investigators largely

corroborated the victim’s version of events. Evans “admitted . . . that his

‘animalistic’ urges took over during the encounter, that he pulled [the victim] down,

that he was a ‘little bit too aggressive,’ and that [the victim] ‘wasn’t really into it.’”

Id. at *3. Further, Evans said that the victim “‘kind of screamed out’ and that he

probably put his hand over her mouth to keep her quiet.” Id. He “recalled [the victim]

telling him something to the effect of ‘don’t hurt me’ while he was penetrating her.”

Id. Evans “conceded . . . that he believed [the victim] did not want to have sexual

intercourse with him . . . but said he decided to continue anyway.” Id. Finally, Evans

“confided to investigators that his first thought after the incident was that he had just

raped her.” Id.

       The prosecution, for its part, highlighted these incriminating statements in its

closing statement—it did not focus on propensity evidence or on the Hills instruction.

In fact, only six lines of its 48-page closing argument mention the Hills instruction or

refer to propensity evidence.

       Thus, in light of the overwhelming evidence against Evans, along with the

prosecution’s lack of focus on propensity, there is no reasonable probability that the

factfinder would have reached a different result in the absence of the improper

                                                 7
instruction.4 See Frady, 456 U.S. at 169. Accordingly, Evans fails to show any

prejudice flowing from the alleged constitutional violation.

                                      Conclusion

      Because Evans cannot establish cause or prejudice to overcome the waiver of

the jury-instruction challenge in his habeas petition, we affirm the district court’s

order denying that petition. See Brimeyer v. Nelson, 712 F. App’x 732, 737 & n.2

(10th Cir. 2017) (unpublished) (affirming district court’s denial of claim in § 2241

petition on alternative grounds because record was “sufficient to perform our de novo

analysis”); cf. Nixon, 635 F. App’x at 564 (agreeing “with the district court’s result,

but not its reasoning,” and affirming order denying habeas relief on alternative

waiver grounds).


                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge




      4
         Evans fails to make an express prejudice argument on appeal. But elsewhere
in his brief, he suggests that the evidence against him was not overwhelming. Yet in
so doing, he ignores the impact of his own incriminating statements. We therefore
find his argument unconvincing.
                                               8
