            U NITED S TATES N AVY –M ARINE C ORPS
                C OURT OF C RIMINAL A PPEALS
                              _________________________
                                      No. 200700143
                              _________________________
                          CHARLES M. BURLESON
                                        Petitioner
                                            v.
                     UNITED STATES OF AMERICA
                                       Respondent
                              _________________________
 Review of Petition for Extraordinary Relief in the Nature of a Writ
         of Error Coram Nobis and Writ of Audita Querela
        For Petitioner: Commander Brian L. Mizer, JAGC, USN R.
        For Respondent: Lieutenant George R. Lewis, JAGC, USN;
               Lieutenant Megan P. Marinos, JAGC, USN .
                         _________________________
                             Decided 26 February 2018
                              _________________________
  Before M ARKS , J ONES , and W OODARD , Appellate Military Judges
                                _________________________
                      PUBLISHED OPINION OF THE COURT
                                _________________________
   WOODARD, Judge:
    This case is before us for a fourth time. The petitioner, a former service
member, seeks extraordinary relief from this court in the nature of a writ of
error coram nobis or, in the alternative, in the nature of a writ of audita
querela, under the All Writs Act, 28 U.S.C. § 1651(a). The petitioner avers
that his appellate defense counsel were ineffective in representing him by
failing to raise as error M ILITARY R ULE OF E VIDENCE (M IL . R. E VID .)
413, M ANUAL FOR C OURTS -M ARTIAL , U NITED S TATES (2005 ed.) issues
raised at trial.1 Alternatively, he asserts that even if his appellate defense
counsel were not ineffective and no writ of error coram nobis should issue, a

   1   Petition of 7 Jun 2017 at 1.
                         Burleson v. United States, No. 200700143


writ of audita querela should issue to prevent continued enforcement of his
conviction—and the resulting sex offender registration requirements—in
light of the Court of Appeals for the Armed Forces’s (CAAF) decision in
United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016).2 The petitioner claims
Hills should apply retroactively to his case.3
    Having considered the petitioner’s prayer for relief, the briefs submitted,
and the case law, we find that the petitioner has not established a clear and
indisputable right to the relief requested under either writ. Accordingly, the
petition is denied.
                                    I. BACKGROUND
    In May 2006, a general court-martial composed of officer and enlisted
members convicted the petitioner, contrary to his pleas, of rape,4 assault
consummated by a battery, housebreaking, and indecent assault in violation
of Articles 120, 128, 130, and 134, Uniform Code of Military Justice (UCMJ),
10 U.S.C. §§ 920, 928, 930, and 934 (2005). He was sentenced to 20 years’
confinement, total forfeitures, reduction to paygrade E-1, and a dishonorable
discharge. The convening authority (CA) approved the sentence as adjudged
and, with the exception of the dishonorable discharge, ordered it executed.
    On direct appeal, after considering the assignment of errors (AOE) raised
on the petitioner’s behalf by his appellate defense counsel, we affirmed the
findings and sentence. United States v. Burleson, No. 200700143, , 2008 CCA
LEXIS 386, unpublished op. (N-M. Ct. Crim. App. 21 Oct 2008). The
petitioner appealed to the CAAF, who dismissed the petitioner’s conviction
for indecent assault5 and remanded the case to us to either conduct a
sentence reassessment or order a rehearing on the sentence. United States v.
Burleson, 69 M.J. 165 (C.A.A.F. 2010) (summary disposition). The CAAF,
however, affirmed this court’s decision “in all other respects”—thus affirming



   2  In Hills, the CAAF held that it was error for the finder of fact to consider
evidence of the accused’s commission of one sexual assault offense as evidence of an
accused’s propensity to commit another sexual assault, pursuant to MIL. R. EVID. 413,
if both alleged sexual assaults are charged at the same court-martial and the accused
has pled not guilty to the sexual assaults. Hills, 75 M.J. at 356.
   3   Petition at 25.
   4 For the purpose of this opinion, the terms rape and sexual assault are used
synonomously.
   5  The petitioner had been convicted of the indecent assault as a lesser included
offense of rape under Article 120, UCMJ; that conviction was set aside by CAAF
which held in United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) that indecent
assault is not a lesser included offense of rape.


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                    Burleson v. United States, No. 200700143


the petitioner’s convictions for rape, assault consummated by battery, and
housebreaking. Id.
    On remand from the CAAF, we did not conduct a sentence reassessment
and the record was instead remanded to the CA with a rehearing on sentence
authorized. At his resentencing proceeding, pursuant to a post-trial
agreement, the petitioner elected to be sentenced by the military judge, who
sentenced him to 12 years’ confinement, reduction to paygrade E-1, and a
dishonorable discharge. The CA approved the sentence as adjudged, but
suspended all confinement in excess of 10 years in accordance with the post-
trial agreement and, except for the dishonorable discharge, ordered the
sentence executed.
    Following the petitioner’s resentencing, this case was submitted to us
with no additional AOEs. As the remaining findings had been previously
affirmed by the CAAF, we examined the record of the resentencing
proceedings, concluded the sentence was correct in law and fact and that no
error materially prejudicial to the substantial rights of the petitioner had
occurred during the resentencing proceeding, and affirmed the sentence as
approved by the CA. United States v. Burleson, No. 200700173, 2011 CCA
LEXIS 682, unpublished op. (N-M. Ct. Crim. App. Apr. 28, 2011) (per
curiam). The petitioner did not seek further review of his case by the CAAF
in accordance with RULES FOR COURTS-MARTIAL (R.C.M.) 1204, MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2008 ed.), nor did he petition for a new
trial in accordance with R.C.M. 1210.
    The CAAF decided Hills on 27 June 2016.6 Almost one year later, the
petitioner filed this petition for extraordinary relief.


    6 We acknowledge that if the petitioner’s case were to come before us today on
direct review, we would be bound by our superior court’s holding in Hills. For the
purposes of this petition, we note the military judge in petitioner’s case did not repeat
the precise instructional error in Hills. Instead, the military judge, without
specifying a burden of proof, instructed the members that:
        evidence that the accused committed the rape of [CEG] as alleged in
        Specification 1 of Charge I may be considered by you as evidence of
        the accused’s propensity, if any, to commit the rape alleged in
        Specification 2 of Charge I. You may not, however, convict the
        accused of one offense merely because you believe he committed this
        other offense or merely because you believe he has a propensity to
        commit sexual assault. Each offense must stand on its own and proof
        of one offense carries no inference that the accused is guilty of any
        other offense. In other words, proof of one rape creates no inference
        that the accused is guilty of any other rape. However, it may
        demonstrate that the accused has a propensity to commit that type of
        offense. The prosecution’s burden of proof to establish the accused’s


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                  Burleson v. United States, No. 200700143


                                II. DISCUSSION
A. Jurisdiction
    In order to determine whether we can grant the relief requested by the
petitioner we must first determine whether we have the authority to act upon
his request. The All Writs Act states that “all courts established by Act of
Congress may issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and principles of law.” 28
U.S.C. 1651(a). See also United States v. Denedo, 556 U.S. 904, 911 (2009);
R.C.M. 1203(b), Discussion. “‘[M]ilitary courts, like Article III tribunals, are
empowered to issue extraordinary writs under the All Writs Act.’” LRM v.
Kastenberg, 72 M.J. 364, 367 (C.A.A.F. 2013) (quoting Denedo, 556 U.S. at
911) (alteration in original). However, the All Writs Act does not serve as “an
independent grant of jurisdiction, nor does it expand [our] existing statutory
jurisdiction.” Id. (citation omitted). Therefore, in order to grant the
petitioner’s prayer for relief, “the All Writs Act requires two determinations:
(1) that the requested writ is in aid of [our] existing jurisdiction; and (2) the
requested writ is necessary or appropriate.” Id. at 367-68 (quoting Denedo v.
United States, 66 M.J. 114, 119 (C.A.A.F. 2008)) (internal quotation marks
omitted).
    As a court established by an act of Congress, we conclude that we can
consider the petitioner’s prayer for relief. In doing so, we are mindful that
“judgment finality is not to be lightly cast aside;” and we must be cautious
and limit the granting of extraordinary writ relief to only “extreme cases.”
Denedo, 556 U.S. at 916. Because the petitioner is asking this court to issue
an extraordinary writ, he must establish a “clear and indisputable right to
the requested relief.” Denedo, 66 M.J. at 126 (citing Cheney v. United States
Dist. Court, 542 U.S. 367, 381 (2004)).
   We first consider the writ of error coram nobis.
B. Writ of error coram nobis
    The petitioner seeks coram nobis relief alleging his appellate defense
counsel were ineffective. A writ of error coram nobis is extraordinary relief
available only under exceptional circumstances where an error is based upon
facts that were not apparent to the court during the original consideration of


       guilt beyond a reasonable doubt, remains as to each and every
       element of each offense charged.
Record at 1157.




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                   Burleson v. United States, No. 200700143


the case and that may change the result. United States v. Frischholz, 36
C.M.R. 306, 309 (C.M.A. 1966). The alleged factual errors must be “of the
most fundamental character, that is, such as rendered the proceeding itself
irregular and invalid.” United States v. Morgan, 346 U.S. 502, 509 n.15 (1954)
(citations and internal quotation marks omitted). The Supreme Court has
declared that writs of coram nobis may be issued to correct factual and legal
errors, of the most fundamental character, such as deprivation of the right to
effective assistance of counsel. Denedo, 556 U.S. at 911.
   In Denedo, the CAAF established standards applicable to this court’s
review of claims raised via a writ of error coram nobis petition. It adopted the
two-tiered evaluation used by Article III courts. Denedo, 66 M.J. at 126. In
the first tier, the petitioner must satisfy six threshold requirements:
       (1) The alleged error is of the most fundamental character;
       (2) no remedy other than coram nobis is available to rectify the
       consequences of the error;
       (3) valid reasons exist for not seeking relief earlier;
       (4) the new information presented in the petition could not
       have been discovered through the exercise of reasonable
       diligence 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.
Id. at 126-27. Only if the petitioner satisfies all six threshold requirements do
we then turn to the second tier, the evaluation of the ineffective assistance of
counsel claim. Id. at 126. We conclude that the petitioner has failed to satisfy
two of the six Denedo threshold requirements for coram nobis review—
requirements four and five. Accordingly, we need not address the second
tier’s evaluation of his ineffective assistance of counsel claim. First, we
conclude that the writ does seek to reevaluate previously considered legal
issues—the application of MIL. R. EVID. 413 to evidence admitted at trial and
the MIL. R. EVID. 413 instructions given for consideration of that evidence.
Second, because we conclude that Hills announced a “new rule” of criminal
procedure that does not apply retroactively, we also conclude that the
petitioner has not presented any new information that we can properly
consider in order to grant coram nobis review.
   1. Petitioner seeks reevaluation of previously considered legal issues
    The petitioner’s claim, that his appellate defense counsel were ineffective,
rests upon his assertion that “[d]espite [his] objection at trial, preserving the

                                        5
                      Burleson v. United States, No. 200700143


error, his appellate defense counsel never raised the MIL. R. EVID. 413 issue
on direct review[.]”7 We find to the contrary. His counsel did raise the MIL. R.
EVID. 413 issues on direct appeal before both this court and the CAAF.
   At trial, the petitioner was charged with raping CEG in July 2005, raping
KMR in November 2005, and with housebreaking related to the rape of KMR.
The petitioner was also charged with an unrelated physical assault of a male
service member.
    In the petitioner’s case, the government provided the defense MIL. R.
EVID. 404(b) and 413 notice of its intent to: (1) use evidence of one charged
sexual assault offense as propensity evidence of another charged sexual
assault offense; (2) introduce statements the petitioner made to CEG that he
had “done this [sexually assault women] four other times”; and (3) introduce
this evidence to show “motive, opportunity, intent, knowledge, and/or absence
of mistake or accident.”8 After receiving the notice, the petitioner’s trial
defense counsel filed a motion in limine seeking to “prevent the government
from presenting evidence of one charged sexual assault to prove another
under [MIL. R. EVID.] 413.”9 In the motion, trial defense counsel argued that
“[t]he use of evidence of one charged [sexual assault] to prove a separate but
concurrently-charged [sexual assault] raises serious constitutional issues.”10
He further argued “that the proffered evidence [did] not qualify as evidence of
a prior sexual assault, the proffered evidence [was] not legally relevant under
[MIL. R. EVID.] 401 and 402, and whatever relevance the evidence [had was]
substantially outweighed by its prejudicial value under [MIL. R. EVID.] 413.”11
The motion also sought to prevent the trial counsel from presenting evidence
that the petitioner had told CEG he had committed several other prior
uncharged sexual assaults.
    The trial defense counsel also filed a motion to sever the two charged
sexual assault offenses. In this motion, the trial defense counsel argued the
same constitutional concerns he had argued in the MIL. R. EVID. 413 motion,
stating, “[w]hen separate crimes are joined, . . . fundamental concern for due
process prevents accumulation of evidence of the various [sexual assaults]
charged to find guilt when, if considered separately, they would not so find .12
He also argued the danger of the members misusing the MIL. R. EVID. 413

   7   Petition at 1 (emphasis added).
   8   Appellate Exhibit (AE) XXIV at 10.
   9   AE XXX at 1.
   10   Id. at 3 (citation and internal quotation marks omitted).
   11   Id. at 4.
   12   AE XXIV at 3.


                                            6
                      Burleson v. United States, No. 200700143


propensity evidence by applying a “lightning cannot strike twice rationale” to
convict.13 Finally, the trial defense counsel addressed the same MIL. R. EVID.
413 issues that were raised in these two motions in his petition for a mistrial
after it was discovered that extraneous information which had not been
admitted into evidence was inadvertently published to and considered by the
members during their deliberations on findings.14 Accordingly, we conclude,
as a preliminary matter, that the trial defense counsel did raise MIL. R. EVID.
413 issues at trial in his three motions—thus properly preserving any
potential issue on the record.
    During the petitioner’s first round of appellate review, he was
represented, at different times, by three military appellate counsel, along
with an experienced civilian appellate defense counsel. The AOEs raised for
this court’s consideration by the petitioner’s initial appellate defense team
included:
         a. In light of the MIL. R. EVID 606 violation, the military judge
         abused his discretion when he found that the government
         proved that the erroneous publication of unadmitted evidence
         to the members was harmless beyond a reasonable doubt.
         b. The MIL. R. EVID. 413 propensity instruction given by the
         military judge resulted in prejudice from the previous issue
         spilling over into deliberations and findings of guilt of rape.
         c. The military judge committed prejudicial error by denying
         the defense motion to sever the charged sexual assault
         specifications.15
In their briefs, counsel addressed the MIL. R. EVID. 413 concerns raised at
trial, the severance motion, and the petition for mistrial. The MIL. R. EVID.
413 propensity instruction and the prejudice arguably resulting from the use
and misuse of sexual assault propensity evidence by the members in reaching
their findings were central themes throughout the appellate defense counsel’s
briefs.16
    In addressing the AOEs raised by appellate defense counsel, this court
quoted the MIL. R. EVID. 413 propensity instruction, citing it as one of several
factors for determining that the improperly considered extraneous material
had no spillover effect or impact on the members’ decision to convict the


   13   Id. at 6.
   14   AE XCIV.
   15   Appellant’s Brief of 12 Feb 2008.
   16   Appellant’s Brief and Appellant’s Reply Brief of 19 May 2008, n1.


                                            7
                      Burleson v. United States, No. 200700143


petitioner of rape. We concluded that “[t]he members carefully reviewed the
evidence, and rendered a verdict based on that evidence and not on the
appellant’s propensity to commit sexual assaults.” Burleson, 2008 CCA LEXIS
386, at *17 (emphasis added).
    Following our decision, appellate defense counsel then petitioned the
CAAF for review of the same AOEs listed above.17 The arguments made by
the appellate defense counsel to the CAAF were essentially the same as those
made to this court. Although the petitioner’s initial appellate defense team
did not present the same error identified in Hills,18 we find that the manner
in which they addressed the admission of MIL. R. EVID. 413 evidence, the MIL.
R. EVID. 413 instruction given, and the possible misuse of the propensity
evidence by the members, placed the legal issues later addressed in Hills
directly before this court and the CAAF for consideration.
    For reasons not developed in the record, the CAAF granted review on a
different issue not previously raised by the appellate defense counsel.19 The
appellate defense counsel briefed this issue,20 and the CAAF set aside the
indecent assault conviction and the sentence but affirmed our decision “in all
other respects”—thus affirming the petitioner’s assault consummated by
battery, rape, and housebreaking convictions. Burleson, 69 M.J. at 165. We
declined to reassess the sentence and ordered the record remanded to the CA
with a rehearing on sentence authorized.
    Prior to the rehearing, the petitioner’s trial defense team filed a number
of motions, to include a motion for reconsideration of the mistrial petition
which had been denied at his previous trial.21 The counsel argued that in the
petitioner’s original court-martial the government had linked the evidence of
two charged sexual assault offenses through a propensity argument, and the
military judge had reinforced that linkage through his MIL. R. EVID. 413
instruction. They reasoned that because the CAAF had overturned the

   17   Appellant’s Supplement to Petition for Grant of Review of 15 Jan 2008 at ii.
   18 Again we note the military judge in petitioner’s case did not repeat the precise
instructional error in Hills. See n.4 supra.
   19  The issue on which the CAAF granted review was whether, at the time of the
petitioner’s court-martial, an indecent assault charged as a violation of Article 134,
UCMJ, was an offense necessarily included in Article 120 (rape), UCMJ. United
States v. Burleson, 68 M.J. 163 (C.A.A.F. 2009) (summary disposition).
   20   Appellant’s Brief of 20 Aug 2009.
   21 The motions submitted to the court prior to petitioner’s resentencing hearing
included a motion for reconsideration of the motion for mistrial (AE CIX), two
motions in limine to exclude evidence (AEs CX and CXI), and a motion for
appropriate relief for unlawful punishment under Article 13, UCMJ (AE CXII).


                                            8
                       Burleson v. United States, No. 200700143


indecent assault conviction, the reliability of his remaining rape conviction
was now very much in question and was likely due to the now-invalid
propensity argument.22 Trial defense counsel further argued that, unless the
court granted the defense motion for reconsideration of the petition for
mistrial, the petitioner would be sentenced for a rape conviction derived from
evidence that was never properly evaluated under MIL. R. EVID. 413 or 403.23
   The petitioner then leveraged the petition for mistrial reconsideration
motion, as well as other motions filed prior to the resentencing hearing, to
obtain a post-trial agreement with the CA. As consideration for the
agreement, the petitioner agreed, among other things, to withdraw all
pending motions and be sentenced by military judge alone.24 In return, the
CA agreed to suspend all confinement adjudged in excess of 10 years.25
    Following the resentencing proceeding, the petitioner’s case was
submitted to this court for the third time and a second appellate review. His
appellate counsel submitted the petitioner’s case on its merits, without
alleging any additional assignments of error.26
    Although the petitioner’s second appellate defense counsel did not rebrief
the previously raised, litigated, and considered MIL. R. EVID. 413 issues
following the resentencing proceeding, the fact remains that his initial
appellate defense team had raised these issues. Furthermore, at his
resentencing proceeding the petitioner waived the issues for the benefit of his
post-trial agreement.
     “[W]aiver is the intentional relinquishment or abandonment of a known
right.” United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (quoting
United States v. Olano, 507 U.S. 725, 733 (1993)) (additional citation and
internal quotation marks omitted). Waived issues are not normally
reviewable on appeal as “a valid waiver leaves no error . . . to correct on
appeal.” United States v. Campos, 67 M.J. 330, 332 (C.A.A.F. 2009) (quoting
United States v. Pappas, 409 F.3d 828, 830 (7th Cir. 2005)) (additional
citation and internal quotation marks omitted). Although, the plenary
review mandate of Article 66(c), UCMJ requires “the CCAs . . . to assess the
entire record to determine whether to leave an accused's waiver intact, or to
correct the error,” in this case there was not only no error to correct under the

   22   AE CIX at 3.
   23   Id. at 7.
   24   AE CIII.
   25   AE CIV at 1.
   26Appellant’s Submission of Case Without Additional Assignments of Error of 18
Mar 2011.


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                      Burleson v. United States, No. 200700143


case law at the time, but the appellant leveraged waiver of the motion to his
benefit. United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016) (citation
omitted).
    During the resentencing hearing, the military judge conducted a thorough
inquiry with the petitioner regarding his understanding of, and agreement
with, all of the terms and conditions of his post-trial agreement.27 She
specifically questioned the petitioner regarding the withdrawal of the
pending motions, which included the motion for reconsideration of the motion
for mistrial. The petitioner affirmatively acknowledged that by withdrawing
the motions previously filed he was affirmatively “waiving” those issues and
that by doing so “preclude[d] the trial court, or any appellate court, from
having the opportunity to determine if [he was] entitled to any relief based
upon [the withdrawn motions].”28 Because the adjudged sentence included
confinement for 12 years, and his agreement protected him from confinement
over 10 years, he realized an actual benefit from the agreement.29
    The record establishes that the petitioner was fully aware of the matters
addressed in the mistrial reconsideration motion, including the MIL. R. EVID.
413 issues it raised. The original motion had been fully litigated in front of
him. Furthermore, it was also the basis of several AOEs raised before both
this court and the CAAF. Finally, during the resentencing hearing, the
military judge specifically directed his attention to the post-trial agreement
provision concerning the waiver of the motion, and the petitioner stated that
he understood the provision and its impact at his resentencing proceeding
and on appeal, and that he was affirmatively and voluntarily waiving the
motion. The petitioner voluntarily waived a known right—the petition for
mistrial reconsideration motion and the MIL. R. EVID. 413 issues it
addressed—at his resentencing proceeding.
    Additionally, this court, the trial court, and the CA were “without power
to modify, amend, alter, set aside, or in any manner disturb or depart from
the judgment[.]” United States v. Montesinos, 28 M.J. 38, 43 (C.M.A. 1989)
(citation and internal quotation marks omitted). As explained by the court, on
remand, the scope of issues which can be considered is limited by the terms
and conditions of the remand order. Id. As further explained in United States
v. Ginn, “[a]ll that is to be done on remand is for the court below to consider
the matter which is the basis for the remand and then to add whatever
discussion is deemed appropriate to dispose of that matter in the original


   27   Record of Resentencing at 23-46.
   28   Id. at 45.
   29   Id. at 127.


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                    Burleson v. United States, No. 200700143


opinion. . . . This procedure does not permit or require starting the review
process anew . . . .” 47 M.J. 236, 238 n.2 (C.A.A.F. 1997) (emphasis added).
   The CAAF’s affirmation of the findings of guilty on the rape, assault, and
housebreaking offenses were final and conclusive. At the time of the direct
review of petitioner’s resentencing proceeding, they were binding on this
court. The scope of the CAAF remand limited this court’s authority under
Artice 66(c) to the sentence approved on remand.
    Having concluded that the MIL. R. EVID. 413 legal issues were previously
raised at trial and by his first appellate defense team for consideration by
this court and the CAAF, and that his second appellate defense counsel did
not rebrief these issues following petitioner’s valid waiver of this issue on
remand and the limited scope of the remand order, we conclude that the
petitioner seeks reevaluation of previously considered legal issues. Therefore
he has failed to meet the fifth Denedo threshold requirement. Denedo, 66 M.J.
at 126.
    2. No new information because Hills does not apply retroactively
    Even assuming, arguendo, that we determined that the MIL. R. EVID. 413
issues had not been previously raised and considered—either at trial or on
appeal—the petitioner still fails to provide any new information which we can
properly consider. Therefore, he also fails to meet the fourth Denedo
threshold requirement. We agree that the new information presented in the
petition—the Hills decision—could not have been discovered through the
exercise of reasonable diligence prior to his judgment. However, because we
find that Hills announced a new rule of criminal procedure that was not
retroactive, the petitioner cannot claim its benefit and we cannot consider
this new information to grant coram nobis review.
    The petitioner argues that Hills created a new rule which applies
retroactively and renders his remaining rape conviction infirm. Alternatively,
and conversely, he asserts that Hills did not create a new rule, it only
restated old law that should have been applied at his trial but was not.
Because of this, he argues that due process requires that we set aside his
rape conviction.30 We disagree with both positions.
    We are guided in our retroactivity analysis by Teague v. Lane, 489 U.S.
288 (1989)—the seminal case on the retroactive application of court-created
rules of criminal law—and its progeny. New court-created rules are either
substantive or procedural. Schriro v. Summerlin, 542 U.S. 348, 351-52 (2004).


    30Petitioner raises the retroactivity of Hills as a basis for this court to issue a
writ of audita querela. But because he also raises it as a basis for a writ of error
coram nobis, we will address it here first. See Petitioner’s Reply Brief of 25 Aug 2017.


                                          11
                  Burleson v. United States, No. 200700143


    A new rule is substantive if it alters the range of conduct or class of
persons that the law punishes or modifies the elements of an offense. See
Bousley v. United States, 523 U.S. 614, 620-21 (1998). New substantive rules
generally apply retroactively because such rules would “necessarily carry a
significant risk that a defendant stands convicted of an act that the law does
not make criminal or faces a punishment that the law cannot impose upon
him.” Schriro, 542 U.S. at 351-52 (citations and internal quotation marks
omitted).
    In contrast, a new rule is procedural if it regulates “only the manner of
determining the defendant’s culpability[.]” Id. at 353 (citation omitted). New
procedural rules generally do not apply retroactively. Teague, 489 U.S. at
310.
    Judged by this standard, if the holding announced in Hills created a new
rule, that rule—evidence of one charged sexual assault offense cannot be used
as MIL. R. EVID. 413 propensity evidence of another charged sexual assault
offense in the same case where the accused has pleaded not guilty to both
offenses—would be procedural. The holding in Hills did not alter the range of
conduct or class of persons that the law punishes or modify the elements of
the sexual assault offenses involved. It only invalidated an evidentiary
procedure used for introducing evidence to be considered by the finder of fact
in contested sexual assault trials.
   a. Teague evaluation
    Having determined that if Hills created a new rule it was one of
procedure, we now turn to whether Hills actually did announce a new rule. If
it did, we must then determine if that new procedural rule applies
retroactively to the petitioner. We find that Hills did create a new rule of
criminal procedure. We further find that this new rule of criminal procedure
does not apply retroactively to petitioner’s case.
    In Teague, the Court held that “[u]nless they fall within an exception to
the general rule, new constitutional rules of criminal procedure will not be
applicable to those cases which have become final before the new rules are
announced.” Teague, 489 U.S. at 310. In Teague, the Court went on to
recognize two exceptions to the general rule of non-retroactivity: (1) the rule
“places certain kinds of primary, private individual conduct beyond the power
of the criminal law-making authority to proscribe”; or (2) it is a “watershed”
rule. Id. at 311 (citations and internal quotation marks omitted). As later
explained by the Court, the new procedural rule must either: (1) prohibit
punishment for certain conduct or prohibit a certain category of punishment
for a class of defendants because of their status or offense; or (2) be a
watershed rule—one without which the likelihood of an accurate conviction is
seriously diminished—implicating the fundamental fairness and accuracy of

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                   Burleson v. United States, No. 200700143


the criminal trial. Beard v. Banks, 542 U.S. 406, 416-17 (2004) (citations
omitted). Rules that fall within the first exception “are more accurately
characterized as substantive rules not subject to [Teague’s] bar[]” to
retroactive application. Schriro, 542 U.S. at 352, n.4.
    Following the framework of Teague, the Supreme Court established a
three-step process for determining whether a rule of procedure applies to a
case on collateral review. First, we must determine when petitioner’s
conviction became final. Second, we must survey the legal landscape as of
that date and determine whether existing precedent compelled the rule—that
is, we must decide whether the rule is actually a “new rule.” Third, if the rule
is new, we must determine whether either of the two exceptions to the
general rule of non-retroactivity applies. Banks, 542 U.S. at 411.
   (1) Judgment finality
    “[A] military justice case is final for the purposes of Teague when ‘there is
a final judgment as to the legality of the proceedings’ under Article 71(c),
UCMJ.” Loving v. United States, 64 M.J. 132, 136 (C.A.A.F. 2006) (quoting
Art. 71(c)(1), UCMJ). As the petitioner’s case was not otherwise reviewable
by the CAAF, the judgment in his case became final not later than 6 July
2011, when review of his case had been completed by this court and the
petitioner did not file a Petition for Grant of Review by the CAAF.31 See Art.
71(c), UCMJ; CAAF Rule 19(a)(1)(B). The petitioner’s case was final for
purposes of Teague nearly five years prior to the CAAF’s decision in Hills on
27 June 2016. See Hills, 75 M.J. at 350.
   (2) Did Hills announce a “new” rule?
   In determining whether a decision of a court has announced a “new rule,”
the Court in Teague 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.




    31 On 6 July 2011, the CA was notified by written correspondence that the

petitioner had been served with our opinion, 60 days had elapsed since that
notification and no petition for review had been received, and that appellate review
in the petitioner’s case was considered complete. Head, Case Management Branch,
Navy-Marine Corps Appellate Review Activity (Code 40) ltr 5814 Ser Code 40 of 6 Jul
2011.


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                   Burleson v. United States, No. 200700143


Teague, 489 U.S. at 301 (citations omitted). “[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 and internal
quotation marks omitted).
    Agreeing with our sister court’s decision in Lewis v. United States, 76 M.J.
829 (A.F. Ct. Crim. App. 2017), rev. denied, __ M.J. __, 2017 CAAF LEXIS
1106 (C.A.A.F Nov 13, 2017), we find that the CAAF’s decision in Hills
announced a new rule of procedure in that it broke new ground, no existing
precedent dictated its result, and the result would not have been apparent to
all reasonable jurists when the petitioner’s conviction became final. See
Chaidez, 568 U.S. at 347.32
    We conclude that Hills announced a “new rule” of procedure based upon
the following four observations. First, prior to its decision in Hills, the CAAF
found that MIL. R. EVID. 413 was not facially unconstitutional. See United
States v. Wright, 53 M.J. 476, 483 (C.A.A.F. 2000). The CAAF also suggested
that MIL. R. EVID. 413 could be applied to evidence of both charged and
uncharged sexual offenses to show propensity. See United States v. Burton,
67 M.J. 150, 152 (C.A.A.F. 2009) (“The [g]overnment may not introduce
similarities between charged offenses and prior conduct, whether charged or
uncharged, to show . . . propensity without using a specific exception within
our rules of evidence, such as [MIL. R. EVID.] 404 or 413.”). It had also held
that uncharged sexual assaults that occurred after the charged sexual offense
were not barred by MIL. R. EVID. 413. See United States v. James, 63 M.J.
217, 218 (C.A.A.F. 2006). Furthermore, in Hills, the CAAF referenced the
lack any existing precedent stating, “[h]owever, none of these holdings
answer the question of whether [MIL. R. EVID.] 413 may be used as it was in
this case.” Hills, 75 M.J. at 354.
   Second, prior to Hills, three service appellate courts had determined that
MIL. R. EVID. 413 was constitutional when applied in this manner, provided
the proper notice had been given, the military judge had properly conducted
and made the initial threshold admissibility determinations, and the
appropriate instructional safeguards were provided. See United States v.
Bass, 74 M.J. 806, 815 (N-M. Ct. Crim. App. 2015); United States v. Barnes,


   32 We recognize, as did our sister court, that our conclusion here is somewhat at
odds with the decision of the Army Court of Criminal Appeals (ACCA), in a related
but distinct context. See United States v. Hoffman, 76 M.J. 758, 767-68 (A. Ct. Crim.
App. 2017) (on direct appeal, when determining whether an appellant’s failure to
object at trial to MIL. R. EVID. 414 instructions waived or forfeited the issue on
appeal, the ACCA found Hills did not establish a “new rule” because Hills did not
“overturn or reverse prior case law” and “it was never well settled that the
instruction in Hills was proper.”).


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                   Burleson v. United States, No. 200700143


74 M.J. 692, 697 (A. Ct. Crim. App. 2015); United States v. Maliwat, 2015
CCA LEXIS 443, at *13-15, unpublished opinion (A.F. Ct. Crim. App. 19 Oct
2015).
    Third, from the time of petitioner’s trial until well after his conviction
became final in 2011, the Military Judges’ Benchbook included specific model
instructions regarding the use of a charged instance of sexual assault as
propensity evidence under MIL. R. EVID. 413 to prove another charged
incident of sexual assault.33
   Fourth, in the nearly 18 months since the Hills decision, the courts of
criminal appeals and the CAAF have reviewed more than three dozen cases
involving assignments of error specifically addressing the Hills-implicated
MIL. R. EVID. 413 or 414 propensity instruction. In most cases, the appellate
courts have set aside the sexual assault convictions impacted and remanded
the cases for proceedings in light of the Hills opinion and its progeny.
   (3) Does the new procedural rule apply retroactively?
   Having found that the petitioner’s conviction was final before Hills
announced a new procedural rule, we now turn to the third step in the
Teague analysis—whether the rule falls into one of the two exceptions
requiring retroactive application. We conclude that it does not.
   Generally, 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”—do not apply retroactively. Schriro,
542 U.S. at 352. The rationale is because procedural rules have a “more
speculative connection to innocence[.]” Id.
     As a new procedural rule, the Hills rule did not forbid punishment for any
particular conduct, nor did it prohibit a certain category of punishment for a
class of defendants because of their status or offense. Therefore, the only
available exception and permissible way Hills can be applied retroactively is
if it is deemed a watershed rule.
   As explained by the Court in Schriro, retroactivity is given only to:
        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
        conviction is seriously diminished. . . . This class of rules is


   33 Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9, ¶ 7-13-1, Note 4
(12 Sep 2002 ed. and 1 Jan 2010 ed.) and Note 4.2 (10 Sep 2014 ed.).


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                  Burleson v. United States, No. 200700143


       extremely narrow, and it is unlikely that any . . . ha[s] yet to
       emerge.
542 U.S. at 352 (citations and internal quotation marks omitted) (alteration
in original).
      In order to be a watershed rule, the new procedural rule “must be
necessary to prevent an impermissibly large risk of an inaccurate conviction.
. . . [and must] alter our understanding of the bedrock procedural elements
essential to the fairness of a proceeding.” Whorton v. Bockting, 549 U.S. 406,
418 (2007) (citations and internal quotation marks omitted). Since deciding
Teague, the Supreme Court has identified no new rules of criminal procedure
meriting watershed status. Id. This includes the landmark procedural rule
announced in Crawford v. Washington, 541 U.S. 36 (2004), that “[t]estimonial
statements of witnesses absent from trial” are admissible “only where the
declarant is unavailable, and only where the defendant has had a prior
opportunity to cross examine [the witness].” Id. at 59; see Bockting, 549 U.S.
at 421 (holding that Crawford announced a new rule of criminal procedure
that did not merit watershed status).
   The only court-created rule of criminal procedure that the Supreme Court
has ever recognized as meriting watershed status is the rule announced in
Gideon v. Wainwright, 372 U.S. 335 (1963), holding that “counsel must be
appointed for any indigent defendant charged with a felony.” Bockting, 549
U.S. at 419. As the Court explained, this is because “[w]hen a defendant who
wishes to be represented by counsel is denied representation, . . . the risk of
an unreliable verdict is intolerably high.” Id. (citations omitted).
    Although the new procedural rule announced in Hills may improve the
accuracy of fact finding in some sexual assault cases, the new rule did not
upset the CAAF’s previous finding that MIL. R. EVID. 413 was a
constitutionally valid statute. See Wright, 53 M.J. at 483. Nor did Hills
completely eliminate the use of MIL. R. EVID. 413 propensity evidence in
sexual assault cases. Hills merely interpreted an existing rule of evidence
and announced a new procedural rule regarding the permissible use of
otherwise admissible evidence of one charged sexual assault offense in
relation to another charged sexual assault offense—an issue it had not
previously directly addressed. Hills, 75 M.J. at 354. Like Crawford, Hills
addressed an issue of fundamental constitutional concern. However, as made
clear by the Court in Bockting, that is not enough to merit watershed status.
See 549 U.S. at 418-21.
    We find that the new rule of criminal procedure announced in Hills does
not fall within one of the two recognized exceptions to non-retroactivity. It is
not one which prohibited punishment for certain conduct or prohibited a
certain category of punishment for a class of defendants because of their

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                  Burleson v. United States, No. 200700143


status or offenses. Nor is it “one without which the likelihood of an accurate
conviction [in petitioner’s case was] seriously diminished[,]” and it did not
“constitute a previously unrecognized bedrock procedural element that [was]
essential to the fairness of [petitioner’s] proceeding.” Bockting, 549 U.S. at
420, 418.
    Having found that Hills announced a new rule of criminal procedure that
does not apply retroactively to the petitioner’s case, we conclude that the
petitioner has also failed to meet the fourth Denedo threshold requirements
for coram nobis review. The petitioner has raised issues previously litigated,
and he has not presented any new information that we can properly consider.
Accordingly, we deny the petition for a writ of coram nobis.
   We now turn to petitioner’s prayer for relief in the form of a writ of audita
querela.
C. Writ of audita querela
    The petitioner avers that a writ of audita querela is necessary to prevent
continued enforcement of his conviction, which he argues was rendered
infirm by Hills. We disagree.
    The ancient common law writ of audita querela, literally translated as
having heard the quarrel or complaint, is defined as “[a] writ available to a
judgment debtor who seeks a rehearing of a matter on grounds of newly
discovered evidence or newly existing legal defenses.” Black’s Law Dictionary
(7th ed. 1999). In the military justice system, the five common law writs
which have been recognized under the All Writs Act are: (1) the writ of
habeas corpus, (2) the writ of mandamus, (3) the writ of coram nobis, (4) the
writ of prohibition, and (5) the writ of certiorari. DAVID A. SCHLUETER,
MILITARY CRIMINAL JUSTICE, PRACTICE AND PROCEDURE, § 17-19 (6th ed.
2004). The writ of audita querela has never been raised or recognized as a
basis for relief under the All Writs Act in the post-conviction military justice
context by the CAAF or any of our sister services’ courts of criminal appeals.
Additionally, the Supreme Court has never opined that a writ of audita
querela is available in this context. See Morgan, 346 U.S. at 512 (holding that
a writ of coram nobis is available under the All Writs Act as form of relief in
the criminal post-conviction context).
    Assuming, arguendo, that the writ of audita querela may be available as a
remedy under the All Writs Act in the military justice post-conviction
context, we examine what the writ is, its historical use, and how other
jurisdictions have interpreted its availability in the criminal context.
   In ENGLISH LEGAL HISTORY, L.B. Curzon attributed the introduction of
the writ of audita querela into practice to the reign of King Edward III of



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                      Burleson v. United States, No. 200700143


England (1327-1377).34 Curzon explained that the writ “was available to re-
open a judgment in certain circumstances. It was issued as a remedy to a
defendant where an important matter concerning his case had arisen since
the judgment. Its issue was based on equitable, rather than common law
principles.”35 An example was a monetary judgment paid or otherwise
discharged but not recorded as such. Subsequent discovery of the unrecorded
payment or discharge would render further execution of the judgment
inequitable.36
    Because it does not challenge the validity of the judgment, a writ of
audita querela is distinguishable from a writ of coram nobis, which
challenges the validity of the original judgment. 7A Corpus Juris Secondum,
Audita Querela, § 2 at 901. Although tracing the lineage of the writ of audita
querela is a muddled practice at best, what is apparent is that throughout the
vast majority of its historical legal development, the writ was exclusively a
civil remedy. Moreover, it was a writ of equity in that it only applied post-
judgment and did not challenge the validity of the judgment itself.
    In 1948, the writ of audita querela was formally “abolished” as a remedy
in federal civil cases by FEDERAL RULE OF CIVIL PROCEDURE (FED. R. CIV. P.)
60(b).37 FED. R. CIV. P. 60(b) also abolished the writ of error coram nobis as a
remedy in federal civil cases but, unlike a writ of audita querela which was
only historically available in civil cases, a writ of error coram nobis was
available historically in both civil and criminal courts. See Morgan, 346 U.S.
at 507. The Court in Morgan held that FED. R. CIV. P. 60(b) did not limit the
availability of a writ of error coram nobis, in the federal criminal post-
conviction context, to collaterally attack the validity of a criminal conviction.
Id. at 512-13. However, the Court in Morgan did not reference or opine
whether the writ of audita querela or any of the other common law writs
covered by FED. R. CIV. P. 60(b) would also be available to collaterally
challenge a criminal conviction.
   Although Morgan only addressed the writ of error coram nobis, it has
been the basis for other federal courts to consider whether a writ of audita
querela is available to collaterally challenge a conviction. The Seventh Circuit
Court of Appeals was the first to address this issue in United States v.
Kimberlin, 675 F.2d 866 (7th Cir. 1982). The Kimberlin court could not
conclude from Morgan that a writ of audita querela “[wa]s unavailable in a


   34   L.B. CURZON, ENGLISH LEGAL HISTORY (2d ed. 1979) at 103.
   35   Id.
   36   Id.
   37   The current provision is found in FED. R. CIV. P. 60(e).


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                  Burleson v. United States, No. 200700143


federal criminal case[,]” presuming that the “same result would be reached if
a criminal defendant could show that relief from a judgment by means of
audita querela was necessary to plug a gap in the system of federal post-
conviction remedies.” Id. at 869. However, the Kimberlin court was skeptical
that a writ of audita querela would be the means to fill that gap given the
availability of a writ of error coram nobis and the history of a writ of audita
querela as an equitable remedy primarily for judgment debtors. Id.
    Following Kimberlin, there developed a split in the federal courts on when
and how a writ of audita querela would be available, if at all, to fill any
existing gaps in the federal post-conviction remedial framework. A small
minority of courts found that a writ of audita querela could be used in its
purely equitable historical manner. See, e.g., United States v. Salgado, 692 F.
Supp. 1265, 1268 (E.D. Wash. 1988) (granting the petitioner a writ of audita
querela vacating his 24-year-old felony conviction for failing to pay a federally
imposed transfer tax so that he would no longer be ineligible for amnesty
under the Immigration Reform Act of 1986, 8 U.S.C. § 1255a, on purely
equitable grounds); United States v. Ghebreziabher, 701 F. Supp. 115, 116-17
(E.D. La. 1988) (granting petitioner’s petition for writ of audita querela and
vacating one of his three misdemeanor guilty plea convictions for food stamp
trafficking in violation of 7 U.S.C. § 2024(b), on purely equitable grounds so
that he would no longer be ineligible for amnesty under the Immigration
Reform Act of 1986”).
    However, the overwhelming majority of federal courts have held that,
even if a writ of audita querela can provide post-conviction relief, a purely
equitable basis is not enough to invoke the writ. Instead, it must be
established that a subsequent change in the law created a constitutional
defect in the underlying conviction, and that defect is not cognizable under
another remedy in the federal post-conviction framework. There must
actually exist a gap in the federal post-conviction remedy framework. See Doe
v. Immigration and Naturalization Service, 120 F.3d 200, 203 n.4 (9th Cir.
1997); United States v. LaPlante, 57 F.3d 252, 253 (2nd Cir. 1995); United
States v. Johnson, 962 F.2d 579, 581 (7th Cir. 1992); United States v. Reyes,
945 F.2d 862, 866 (5th Cir. 1991); United States v. Holder, 936 F.2d 1, 3 (1st
Cir. 1991); United States v. Ayala, 894 F.2d 425, 426 (D.C. Cir. 1990). If there
is another remedy under which the petitioner can seek relief, such as coram
nobis, a writ of audita querela is not available, even if the other remedy
provides no relief. To grant relief under such circumstances would be to do so
in a purely equitable manner. See Doe, 120 F.3d at 204; LePlante, 57 F.3d at
253; Johnson, 962 F.2d at 583; Reyes, 945 F.2d at 866; Holder, 936 F.2d at 3;
Ayala, 894 F.2d at 429.




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                   Burleson v. United States, No. 200700143


    Furthermore, a petitioner cannot collaterally challenge his conviction by
re-styling his writ of error coram nobis “as a petition for a writ of audita
querela simply to evade the Supreme Court’s painstakingly formulated
‘retroactivity’ rules.” Ayala, 894 F.2d at 429, n.8.
   If we were to conclude that a writ of audita querela is available in the
military justice post-conviction context, it cannot be issued on purely
equitable grounds. As the CAAF has stated, “while [we] have broad
authority . . . to disapprove a finding, that authority is not unfettered. It must
be exercised in the context of legal—not equitable—standards . . . .” United
States v. Nerad, 69 M.J. 138, 140 (C.A.A.F. 2010) (citation omitted).
   If we were to conclude that the writ of audita querela exists at all in the
military justice post-conviction context, we would have to conclude that it
could be a remedy under the All Writs Act only when there has been a
subsequent change in the law which created a constitutional legal defect in
the underlying criminal conviction, and that defect was not addressable by
some other post-conviction remedy, such as a writ of error coram nobis. See
Doe, 120 F.3d at 203-04; LePlante, 57 F.3d at 253; Johnson, 962 F.2d at 583;
Reyes, 945 F.2d at 866; Holder, 936 F.2d at 3; Ayala, 894 F.2d at 429.
    Despite some federal courts finding that the writ of audita querela may
exist to fill the interstices in the post-conviction remedial framework, the
historical use and meaning of the writ and our authority to act only on
legal—not equitable—grounds, absent clear binding precedent to the
contrary, lead us to conclude that the common law writ of audita querela is
not available in the military justice system. As such, the petitioner’s request
for a writ of audita querela is denied.
    Even if we were to conclude that the writ of audita querela may be
available, we would conclude that there was another post-conviction remedy
available to the petitioner—the writ of error coram nobis he has asserted.
Having denied the petitioner coram nobis relief, we would also deny a writ of
audita querela, finding that it is neither necessary nor appropriate, as there
exists no post-conviction remedy gap for the writ of audita querela to fill.
                               III. CONCLUSION
   The petition for extraordinary relief in the nature of a writ of error coram
nobis or a writ of audita querela is denied.
   Senior Judge MARKS and Judge JONES concur.
                                        For the Court


                                        R.H. TROIDL
                                        Clerk of Court


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