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

                           Misc. Dkt. No. 2017-05
                          ________________________

                          James R. LEWIS
             Senior Airman (E-4), U.S. Air Force, Petitioner
                                   v.
                             UNITED STATES
                               Respondent
                          ________________________

      Review of Petition for Extraordinary Relief in the Nature of
                         a Writ of Coram Nobis
                        Decided 20 September 2017
                          ________________________

Military Judge: Donald R. Eller, Jr.
Approved sentence: Dishonorable discharge, confinement for 9 years,
forfeiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 13 December 2012 by GCM convened at Barksdale Air Force
Base, Louisiana.
For Petitioner: Lieutenant Colonel Nicholas W. McCue, USAF; Major
Thomas A. Smith, USAF; Brian L. Mizer, Esquire.
For Respondent: Colonel Katherine E. Oler, USAF; Major Mary Ellen
Payne, USAF; Gerald R. Bruce, Esquire.
Before MAYBERRY, JOHNSON, and MINK, Appellate Military Judges.
Senior Judge JOHNSON delivered the opinion of the court, in which
Senior Judge MAYBERRY and Judge MINK joined.
                          ________________________

                 PUBLISHED OPINION OF THE COURT
                          ________________________

JOHNSON, Senior Judge:
   A general court-martial composed of officer members convicted Petitioner,
contrary to his pleas, of one specification of aggravated sexual assault and two
                Lewis v. United States, Misc. Dkt. No. 2017-05


specifications of wrongful sexual contact, in violation of Article 120, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 920. 1 The court-martial sen-
tenced Petitioner to a dishonorable discharge, confinement for nine years, total
forfeiture of pay and allowances, and reduction to the grade of E-1. The con-
vening authority approved the sentence as adjudged. This court affirmed the
findings and sentence, and the United States Court of Appeals for the Armed
Forces (CAAF) denied review. United States v. Lewis, No. ACM 38321, 2014
CCA LEXIS 760 (A.F. Ct. Crim. App. 9 Oct. 2014) (unpub. op.), rev. den., 74
M.J. 263 (C.A.A.F. 2015).
    Petitioner has submitted a Petition for Extraordinary Writ in the Nature
of a Writ of Coram Nobis, seeking a rehearing or, in the alternative, a new
review of his convictions under Article 66, UCMJ, 10 U.S.C. § 866. Petitioner
contends the CAAF’s recent decisions in United States v. Hills, 75 M.J. 350
(C.A.A.F. 2016), and United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017),
demonstrate the military judge erroneously permitted evidence of the charged
offenses to be used as propensity evidence pursuant to Military Rule of Evi-
dence (Mil. R. Evid.) 413, and erroneously instructed the court members ac-
cordingly, thereby violating Petitioner’s presumption of innocence and commit-
ting a constitutional error. See Hills, 75 M.J. at 356. We find Petitioner is not
entitled to the requested writ and deny his petition.

                                I. BACKGROUND
    Petitioner was charged with two specifications of aggravated sexual assault
and two specifications of wrongful sexual contact involving four different vic-
tims, as well as one specification of indecent acts involving one of the victims.
Petitioner pleaded not guilty to all the alleged offenses and was tried by a panel
of officer members. The military judge found the evidence of each of the
charged sexual assaults was “admissible as to one another under [Mil. R. Evid.]
413.” Accordingly, he instructed the court members, inter alia:
       Evidence that the Accused committed the offenses of sexual as-
       sault alleged in Specifications one through four of the Charge
       may be considered by you with regard to one another for an ad-
       ditional basis with regard to one another under certain circum-
       stances. First, those offenses may have no bearing on your delib-
       erations in relation to one another unless you first determine by
       a preponderance of the evidence, that is more likely than not,
       any of those alleged offenses of sexual assault occurred.



1 Petitioner was acquitted of one specification of aggravated sexual assault and one
specification of indecent conduct in violation of Article 120, UCMJ.


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       If you determine by a preponderance of the evidence any of those
       alleged offenses occurred, even if you are not convinced beyond
       a reasonable doubt that the Accused is guilty of that offense, you
       may nonetheless then consider the evidence of that offense for
       its bearing on any matter to which it is relevant in relation to
       the remainder of those offenses of sexual assault; that is Speci-
       fications one through four of the Charge.
       You may also consider the evidence of those other offenses for its
       tendency, if any, to show the Accused’s propensity or predisposi-
       tion to engage in acts of sexual assault. You may not, however,
       convict the Accused of any offense solely because you believe he
       committed some other offense or solely because you believe the
       Accused has a propensity or predisposition to engage in acts of
       sexual assault.
   In closing argument, trial counsel argued Petitioner did, in fact, have a pro-
pensity to engage in sexual assault. The members found Petitioner guilty of
one aggravated sexual assault and both wrongful sexual contact specifications,
and not guilty of the remaining specifications. His trial concluded on 13 De-
cember 2012. This court affirmed the findings and sentence on 9 October 2014,
Lewis, unpub. op. at *25, and the CAAF denied review on 10 February 2015,
Lewis, 74 M.J. 263.
    On 27 June 2016, the CAAF decided Hills. The CAAF held that evidence of
the accused’s commission of a sexual assault may not be admitted and consid-
ered on “any matter to which it is relevant,” including propensity to commit
sexual assault, pursuant to Mil. R. Evid. 413 if that alleged sexual assault is
charged in the same court-martial and the accused has pleaded not guilty to it.
Hills, 75 M.J. at 356. The CAAF further held that under such circumstances
the instructions accompanying the use of evidence of charged offenses for Mil.
R. Evid. 413 purposes, such as the instructions given at Petitioner’s trial, im-
plicate fundamental constitutional due process concerns by undermining an
accused’s presumption of innocence and the Government’s requirement to
prove guilt beyond a reasonable doubt. Id. at 357.
    On 2 May 2017, the CAAF issued Hukill, which clarified that Hills is not
to be interpreted narrowly. The court stated:
       [T]he use of evidence of charged conduct as M.R.E. 413 propen-
       sity evidence for other charged conduct in the same case is error,
       regardless of the forum, the number of victims, or whether the
       events are connected. Whether considered by members or a mil-
       itary judge, evidence of a charged and contested offense, of which




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       an accused is presumed innocent, cannot be used as propensity
       evidence in support of a companion charged offense.
Hukill, 76 M.J. at 222.

                                 II. DISCUSSION
A. Jurisdiction
    “The All Writs Act, 28 U.S.C. § 1651(a), grants this court authority to issue
extraordinary writs necessary or appropriate in aid of its jurisdiction.” United
States v. Chapman, 75 M.J. 598, 600 (A.F. Ct. Crim. App. 2016) (citing Loving
v. United States, 62 M.J. 235, 246 (C.A.A.F. 2005)). “However, the Act does not
enlarge our jurisdiction, and the writ must be in aid of our existing statutory
jurisdiction.” Id. (citing Clinton v. Goldsmith, 526 U.S. 529, 534–35 (1999)). We
have jurisdiction over a petition for a writ of coram nobis alleging an earlier
judgment of conviction previously reviewed by this court was flawed in some
fundamental respect. Id. at 601 (citing United States v. Denedo, 556 U.S. 904,
917 (2009)). Accordingly, we have jurisdiction to consider Petitioner’s allega-
tion that his convictions should be set aside or reconsidered under Article 66,
UCMJ, in light of the constitutional concerns identified in Hills and Hukill.
B. Analysis
    The petitioner for a writ of coram nobis has the burden to show a clear and
indisputable right to the extraordinary relief requested. Denedo v. United
States, 66 M.J. 114, 126 (C.A.A.F. 2008), aff’d and remanded, 556 U.S. 904
(2009) (citing Cheney v. United States Dist. Court, 542 U.S. 367, 381 (2004)).
“This court uses a two-tier approach to evaluate claims raised via a writ of
coram nobis. First, the petitioner must meet the [six] threshold requirements
for a writ of coram nobis. [ ] If the petitioner meets the threshold requirements,
his claims are then evaluated under the standards applicable to his issues.”
Chapman, 75 M.J. at 601 (citing Denedo, 66 M.J. at 126). As the Government
identifies in its excellent brief, Petitioner’s claim fails on both levels.
   1. Threshold Requirements for Writ of Coram Nobis
    The writ of coram nobis is “an extraordinary remedy” that “should be
granted only in extraordinary cases under circumstances compelling such ac-
tion to achieve justice.” Id. (citations omitted). Accordingly, the petitioner must
meet six “stringent threshold requirements”:
       (1) the alleged error is of the most fundamental character; (2) no
       remedy other than coram nobis is available to rectify the conse-
       quences of the error; (3) valid reasons exist for not seeking relief
       earlier; (4) the new information presented in the petition could



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       not have been discovered through the exercise of reasonable dil-
       igence prior to the original judgment; (5) the writ does not seek
       to reevaluate previously considered evidence or legal issues; and
       (6) the sentence has been served, but the consequences of the
       erroneous conviction persist.
Denedo, 66 M.J. at 126 (citations omitted).
    In Chapman, this court considered whether it might grant relief via a writ
of coram nobis to a pro se petitioner who filed a petition for a writ of habeas
corpus. 75 M.J. at 601; see Nkosi v. Lowe, 38 M.J. 552, 553 (A.F.C.M.R. 1993)
(“The label placed on a petition for extraordinary relief is of little signifi-
cance.”). 2 There we found the petitioner failed to meet the second threshold
requirement because coram nobis was not the only remedy available; he could
seek relief through a writ of habeas corpus from a federal district court. Chap-
man, 75 M.J. at 601 (citing Denedo, 556 U.S. at 911). In addition, Chapman
failed to meet the sixth requirement because he remained in confinement and
had not served his sentence. Id. at 602.
    Here, Petitioner’s request for a writ of coram nobis must fail for similar
reasons. Like Chapman, Petitioner remains in confinement; therefore, coram
nobis is not the sole remedy available to him because he is eligible to seek a
writ of habeas corpus from a federal district court. 3 Similarly, Petitioner has
failed to demonstrate his sentence to nine years of confinement has been
served. Accordingly, even if we were to assume arguendo Petitioner meets the
remaining requirements, under Chapman no writ should issue on his petition.
    Petitioner insists Chapman is inapplicable as precedent for his case be-
cause Chapman filed for a writ of habeas corpus, and our consideration of his
eligibility for coram nobis relief was “gratuitous.” We are not persuaded. This
court clearly and explicitly considered Chapman’s petition under the threshold
requirements for coram nobis relief, and the import of our reasoning and hold-
ing in Chapman to Petitioner’s case is plain.




2Our conclusion that we lacked jurisdiction to issue a writ of habeas corpus in Chap-
man because the case had become final under Article 76, UCMJ, 10 U.S.C. § 876, ap-
plies equally in Petitioner’s case. See Chapman, 75 M.J. at 600.
3 In United States v. Loving, 62 M.J. 235, 254 (C.A.A.F. 2005), the CAAF declined to
decide whether coram nobis relief was available to a military petitioner who remained
in custody. However, the court noted broad agreement among the federal circuit courts
that coram nobis relief was unavailable from the federal civilian courts to petitioners
in custody, regardless of “whether or not habeas relief is a realistic possibility.” Id.
(citations omitted).


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   2. Retroactive Application of Hills
    Even if Petitioner met the threshold requirements for coram nobis relief,
his petition would fail on the issue of retroactive application of Hills. The par-
ties agree that whether Hills would apply retroactively to Petitioner’s case is
governed by Teague v. Lane, 489 U.S. 288 (1989) (plurality opinion). Teague,
the seminal case on retroactive application of court-created new rules of crim-
inal law, held that “new constitutional rules of criminal procedure will not be
applicable to those cases which have become final before the new rules are an-
nounced” unless they fall within an exception. Id. at 310. The Court subse-
quently expounded a three-step process to determine whether a constitutional
rule of criminal procedure applies to a case on collateral review: (1) the court
must determine when the conviction became final; (2) the court must survey
the legal landscape as of that date and decide whether existing precedent com-
pelled the rule—in other words, whether the rule is actually “new” for purposes
of the petitioner’s case; and (3) the court must determine whether either of the
two exceptions to the general rule of non-retroactivity applies. Beard v. Banks,
542 U.S. 406, 411 (2004).
    “[A] military justice case is final for purposes of Teague when ‘there is a
final judgment as to the legality of the proceedings’ under Article 71(c), UCMJ.”
Loving, 64 M.J. at 136. The final judgment as to the legality of Petitioner’s
court-martial occurred when the CAAF denied review on 10 February 2015.
See 10 U.S.C. § 871(c).
   Considering the state of the law at that time, we find that Hills did an-
nounce a “new rule” for purposes of Teague. In Teague, the Court stated:
       In general . . . a case announces a new rule when it breaks new
       ground or imposes a new obligation on the States or the Federal
       Government. . . . To put it differently, a case announces a new
       rule if the result was not dictated by precedent existing at the
       time the defendant’s conviction became final.
489 U.S. at 301 (citations omitted) (emphasis in original). “[A] holding is not so
dictated . . . unless it would have been ‘apparent to all reasonable jurists.’”
Chaidez v. United States, 568 U.S. 342, 347 (2013) (citation omitted).
    Hills was not decided until 27 June 2016. However, the CAAF had previ-
ously rejected a facial constitutional challenge to Mil. R. Evid. 413 in United
States v. Wright, 53 M.J. 476, 483 (C.A.A.F. 2000) and suggested in dicta that
Mil. R. Evid. 413 could be applied to evidence of charged as well as uncharged
offenses of sexual assault to show propensity. See United States v. Burton, 67
M.J. 150, 152 (C.A.A.F. 2009) (“The Government may not introduce similari-
ties between a charged offense and prior conduct, whether charged or un-
charged, to show . . . propensity without using a specific exception within our


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rules of evidence, such as [Mil. R. Evid.] 404 or 413.”). In addition, the version
of the Military Judges’ Benchbook in use at the time the judgment in Peti-
tioner’s case became final included a specific model instruction regarding the
use of a charged instance of sexual assault as propensity evidence under Mil.
R. Evid. 413. Military Judges’ Benchbook, Dept. of the Army Pamphlet 27–9, ¶
7–13–1, Note 4.2 (10 Sep. 2014). Moreover, in the same year that Petitioner’s
case became final, three Courts of Criminal Appeals specifically held that evi-
dence of charged offenses of sexual assault could properly be used under Mil.
R. Evid. 413, only to be overruled by Hills the following year. United States v.
Barnes, 74 M.J. 692, 697–98 (A. Ct. Crim. App. 2015), rev. den., 75 M.J. 27
(C.A.A.F. 2015); United States v. Bass, 74 M.J. 806, 815 (N–M. Ct. Crim. App.
2015); United States v. Maliwat, No. ACM 38579, 2015 CCA LEXIS 443, at
*14–15 (A.F. Ct. Crim. App. 19 Oct. 2015), rev’d, 76 M.J. 128 (14 Feb. 2017).
Under these circumstances, we find the CAAF’s decision in Hills broke new
ground and would not have been “apparent to all reasonable jurists” in Febru-
ary 2015. 4 See Chaidez, 568 U.S. at 347.
    Thus, Petitioner’s case was final before Hills established a new rule of crim-
inal procedure. Accordingly, we consider whether an exception to the general
rule of non-retroactivity applies. New substantive rules—including “decisions
that narrow the scope of a criminal statute” and “constitutional determinations
that place particular conduct or persons covered by the statute beyond the
State’s power to punish”—generally do apply retroactively. Schriro v. Summer-
lin, 542 U.S. 348, 351–52 (2004). However, new rules of criminal procedure—
rules that “merely raise the possibility that someone convicted with the use of
the invalidated procedure might have been acquitted otherwise”—generally do
not apply retroactively. Id. at 352. With respect to new procedural rules, the
Court has said:
       Because of this more speculative connection to innocence, we
       give retroactive effect to only a small set of “‘watershed rules of
       criminal procedure’ implicating the fundamental fairness and
       accuracy of the criminal proceeding.” . . . That a new procedural
       rule is “fundamental” in some abstract sense is not enough; the
       rule must be one “without which the likelihood of an accurate




4 We recognize this conclusion is somewhat at odds with the recent decision of our
sister court, in a related but distinct context, in United States v. Hoffman, Army
20140172, 2017 CCA LEXIS 425, at *20–24 (A. Ct. Crim. App. 27 Jun. 2017) (finding
Hills did not establish a “new rule” for purposes of determining whether the appellant’s
failure to object to Mil. R. Evid. 414 instructions waived the issue on appeal).


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       conviction is seriously diminished.” . . . This class of rules is ex-
       tremely narrow, and “it is unlikely that any . . . ‘ha[s] yet to
       emerge.’”
Id. (citations omitted). To qualify as “watershed,” a new procedural rule must
both be necessary to prevent an “impermissibly large risk” of an inaccurate
conviction and alter bedrock procedural elements essential to a fair proceeding.
Whorton v. Bockting, 549 U.S. 406, 418 (2007) (citations and internal quotation
marks omitted). Since Teague was decided, the Court has identified no such
watershed rules of criminal procedure meriting retroactive application, and
has rejected several that were proposed. See id.
    The new procedural rule announced in Hills was not a “previously unrec-
ognized bedrock procedural element that is essential to the fairness” of a trial.
Id. at 421. Rather, the CAAF interpreted a military rule of evidence regarding
the use of admissible evidence of charged instances of sexual assault, a point
it had not previously specifically addressed. Hills, 75 M.J. at 354. That Hills
cited fundamental constitutional concerns is not enough to achieve watershed
status. See Bockting, 549 U.S. at 418–21. Accordingly, Petitioner is not entitled
to the requested relief.

                               III. CONCLUSION
   Petitioner’s request for an Extraordinary Writ in the Nature of a Writ of
Coram Nobis is DENIED.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court




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