The review is based on Csady v. Ashworth, but it is equally applicable when federal courts examine habeas corpus petitions from military prisoners under 28 U.S.C. 2241.

I. Overview and Holding

The opinion addresses whether a federal district court may collaterally review the military court-martial conviction of Csady, a service member who was not subject to punitive discharge or confinement. The court concludes that it lacks authority to do so, reaffirming the traditional deference owed to the military justice system and the narrow scope of permissible collateral review by Article III courts.

II. The Military Justice System: Structure and Independence

1. Constitutional Basis:
   
   The military justice system operates under Article I of the Constitution (U.S. Const. art. I, § 8, cl. 14), giving Congress authority to “make Rules for the Government and Regulation of the land and naval Forces.”
   
   See Ortiz v. United States, 585 U.S. 427 (2018); Santucci v. Commandant, U.S. Disciplinary Barracks, 66 F.4th 844, 852 (10th Cir. 2023).
2. Comprehensive Review Mechanism:
   
   The Uniform Code of Military Justice (UCMJ) establishes a multi-tiered appellate process. See Burns v. Wilson, 346 U.S. 137, 140–41 (1953) (plurality opinion).
   • Trial courts: summary, special, and general courts-martial (Willenbring v. United States, 559 F.3d 225, 227 n.4 (4th Cir. 2009)).
   • Intermediate appeals: Service-specific Courts of Criminal Appeals (CCAs) (10 U.S.C. § 866).
   • Discretionary review: The Judge Advocate General may refer cases to a CCA (10 U.S.C. § 869).
   • Final military review: U.S. Court of Appeals for the Armed Forces (CAAF) (10 U.S.C. § 867).
   • Ultimate review: U.S. Supreme Court by certiorari (28 U.S.C. § 1259).
3. Non-Automatic Review in Non-Punitive Cases:
   
   In cases like Csady’s—where there is no confinement or punitive discharge—automatic appellate review is not available, and discretionary review by the Judge Advocate General and subsequent appellate bodies is limited.
   
   See 10 U.S.C. §§ 869(d), 867.

III. Scope of Collateral Review by Federal District Courts

1. Presumption Against Civil Review:
   
   The Supreme Court has long held that civil courts lack authority to review military court decisions absent jurisdictional or fundamental defects. See Smith v. Whitney, 116 U.S. 167, 177 (1886); Schlesinger v. Councilman, 420 U.S. 738, 746–48 (1975).
2. Schlesinger Exception:
   
   Federal courts may intervene if the court-martial judgment is void due to a fundamental defect, including lack of jurisdiction or egregious legal error. This review must consider both:
   • The nature of the alleged defect, and
   • The gravity of the harm, evaluated with deference to the military system. Schlesinger, 420 U.S. at 753.
3. Burns Exception (Habeas Context Only):
   
   In Burns v. Wilson, the Court recognized a narrow habeas-based exception permitting collateral review where the military failed to provide full and fair consideration of constitutional claims.
   
   However, courts are not to reweigh evidence unless claims were ignored or unaddressed. See Burns, 346 U.S. at 142–44.
4. Dodson Factors (Non-Jurisdictional Habeas Review):
   
   Under Dodson v. Zelez, 917 F.2d 1250 (10th Cir. 1990), courts apply a four-part test to assess if a habeas claim merits review:Substantial constitutional claim;Pure legal issue, not factual dispute;No overriding military interest against review;Inadequate military consideration or improper legal standard.See also Santucci, 66 F.4th at 856; Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975).
5. Application to Non-Habeas Claims:
   
   While Burns and Dodson primarily apply to habeas cases, courts have occasionally used them in evaluating non-habeas collateral attacks as part of a threshold analysis for voidness under Schlesinger.
   
   See Allen v. U.S. Air Force, 603 F.3d 423, 431 (8th Cir. 2010); Yongo v. United States, No. 5:10-cv-220, 2013 WL 2285341, at *6 (E.D.N.C. May 23, 2013), aff’d sub nom. Yongo v. McHugh, 540 F. App’x 237 (4th Cir. 2013).

IV. Application to Csady’s Case

• No Punitive Discharge or Confinement: Csady’s case does not meet the threshold for automatic military appellate review under 10 U.S.C. § 866.
• Non-Custodial Petitioner: Because he is not in custody, the Burns-based habeas exception does not apply.
• No Void Judgment: Csady fails to demonstrate a jurisdictional or fundamental defect under Schlesinger, and cannot satisfy even the Burns or Dodson thresholds for constitutional violation.
• Respect for Military Finality: The court emphasizes that Article III courts are not forums of appellate review over courts-martial, echoing a consistent jurisprudential theme. See Santucci, 66 F.4th at 853; Burns, 346 U.S. at 140.

V. Legal and Policy Implications

This opinion reinforces:

• The insulation of military adjudications from civilian judicial review,
• The integrity and autonomy of the Article I military justice system,
• And the principle of comity between the military and civilian branches of federal judicial power.

It reflects a careful balancing of constitutional rights with military discipline and expertise, upholding the notion that military courts must remain the primary guardians of justice for service members, absent clear constitutional transgressions.

Conclusion

The opinion stands as a compelling reaffirmation of longstanding Supreme Court and circuit precedent limiting federal district court review of military court decisions. Without evidence of jurisdictional voidness, a breakdown in procedural fairness, or a significant constitutional issue wrongly decided, collateral review remains foreclosed. The motion to dismiss was therefore properly granted.

For many, Burdick v. United States, 236 U.S. 79 (1925), answered the question in the affirmative. In Burdick, the appellant was offered but declined a pardon. He then refused to testify in a criminal trial. Several conclusions seem to follow from the opinion.

1. A pardon can be given before conviction and sentence. If correct, this settles the discussion about several Trump pardons issued before the servicemember was tried.
2. A pardon can be refused and there is “no power in a court to force it on [the person].” @90.
3. Acceptance of a pardon “implies” acceptance of guilt. @91.

“This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession. It is tantamount to the silence of the witness. It is noncommittal. It is the unobtrusive act of the law given protection against a sinister use of his testimony, not like a pardon, requiring him to confess his guilt in order to avoid a conviction of it.” @94.

It is from this language that people thought accepting a pardon was accepting guilt.

Now along comes Lorrance v. Commandant, USDB, a decision from the 10th Circuit. Here is the nub of it.

1. Does acceptance of a pardon and release from custody equal a “confession?”
2. Does acceptance of a pardon and release from custody waive or forfeit the right to petition for habeas corpus?

The Tenth concludes that there is no confession and Lorrance does not otherwise lose his right to petition for habeas corpus relief for his court-martial conviction and sentence. The case was remanded for further action not inconsistent with the court’s opinion.

“The writ of habeas corpus shall not extend to a prisoner unless” the prisoner is “in custody.” 28 U.S.C. § 2241(c). Notwithstanding that provision, a petitioner’s release from custody does not automatically moot a habeas petition. Carafas v. LaVallee, 391 U.S. 234, 237–38 (1968). Instead, a habeas petitioner can maintain his habeas action following his release from custody if he can identify “collateral consequences” constituting “disabilities or burdens [which] may flow from petitioner’s conviction.” Id. (quotations omitted).”

According to the court, there remained serious collateral consequences from the conviction.

1. Backpay,u
2. Rank.
3. VA benefits.
4. Retirement years credit.
5. Expungement of the conviction.

In a historical review of the pardon power and its effect, the court finds that the implication in Burdick is dicta and has been taken out of context. Among other facts, the court honed in on this,

“The U.S. Pardon Attorney included a letter to Lorance with the presidential pardon. Among other things, the letter informed Lorance, “A presidential pardon is a sign of forgiveness. It does not erase or expunge the record of conviction and does not indicate innocence.” (Id. at 80 (emphasis added).) The letter does not state that acceptance of the pardon is a confession of guilt or a waiver of habeas rights.”

The Tenth Circuit is generally known as unwelcoming to military prisoners when a writ of habeas corpus is before the district and appellate court. While many can disagree with the issuance of pardons by President Trump, the issues discussed in Lorrance are important and appear proper.

Now we need to know if the DoJ will petition the Supreme Court.

Narula v. Yakubisin (CO, NAVCONBRING Miramar), No. 15-55658 (9th Cir. 17 May 2016).

It is common for the military appellant to think about federal court once their military appeal is complete. The route to federal court is through a federal habeas corpus proceeding, in accordance with 28 U.S.C. § 2241. It is rare to get past a motion to dismiss, let alone win on the merits.

In one page, the 9th disposed of Narula’s petition–correctly stating the law.

Narula’s constitutional claims are barred because he failed to exhaust his remedies in the military courts. Narula did not raise the issue of unconstitutional joinder either in the military trial court or on direct appeal in the United States Air Force Court of Criminal Appeals (AFCCA). He did challenge the constitutionality of Article 120 of the Uniform Code of Military Justice in the military trial court, but he failed to raise the issue on direct appeal in the AFCCA. “Military prisoners must exhaust military remedies before seeking relief in federal court.” Davis v. Marsh, 876 F.2d 1446, 1449 (9th Cir. 1989) (citing Gusik v. Schilder, 340 U.S. 128, 131-32 (1950)). Absent a showing of cause and prejudice, constitutional challenges to court-martial convictions are waived when not raised on direct appeal in the military courts. See id. at 1448-50.

This is a reminder to ensure that all issues are properly litigated before the CCA and through petition to CAAF, even if the issue is filed in accordance with United States v. Grostefon.

Unfortunately, the various CCA/CAAF opinions are not publicly available.

As a practical matter, you need to have a serious constitutional issue which you have litigated before the court of criminal appeals (CCA), petitioned the Court of Appeals for the Armed Forces (CAAF), had a grant from CAAF, a decision from CAAF, a denial of a petition for a writ of certiorari to the U.S. Supreme Court, and then a very good argument that the CAAF’s adverse decision is constitutionally infirm. Without this, you do not have a hope of getting past a motion to dismiss in federal court.

Valois v. Commandant, USDB

The case provides a fascinating discussion of the maze and complexities of DoD and Service regulations the award of good time credit, work abatement, and such, applicable to clients confined at the USDB.

Valois challenges the amount of good conduct time (“GCT”) credit that will be administratively deducted from his sentence. On June 30, 2006, Valois was transferred to the United States Disciplinary Barracks (“USDB”) in Fort Leavenworth, Kansas, where he is presently serving his sentence. On May 11, 2010, Valois filed a claim for administrative relief with the Commandant of the USDB, contesting the amount of good time that was being credited against his sentence. This request was denied on May 12, 2010. Valois repeated the request on May 14, 2010, and it was again denied on May 26, 2010. On June 17, 2010, Valois filed a complaint under Article 138 of the UCMJ on June 17, 2010, which was denied on August 5, 2010. He filed additional Article 138 complaints on June 8 and 28, 2011, both of which were denied. On September 12, 2012, the Air Force Court of Criminal Appeals denied his pro se Writ of Habeas Corpus without prejudice due to lack of counsel. Valois submitted a motion for reconsideration but on February 11, 2013, sought dismissal. Four days later, on February 15, 2013, Valois filed the instant petition. In his petition, Valois asserts two arguments. First, he contends he is entitled to GCT credit of ten days rather than five days per month. Specifically, he contends that the Secretary of the Air Force has the authority to determine the award of GCT, and that Air Force Joint Instruction (“AFJI”) 31-215, which provides for GCT at the rate of ten days per month, controls. Valois argues that later amendments or modifications to AFJI 31-215 were either invalid or have expired. Second, Valois argues that changes in GCT after his conviction constitute an ex post facto violation of the Constitution. The arguments asserted by Valois are related. First, he contends that Congress has authorized the Secretary of each military service group to establish military correctional facilities and provide regulations for their operation. From this, he reasons that the Secretary of the Air Force controls the award of GCT. Next, Valois contends that Air Force regulations, not those of the Department of Defense (“DoD”), control his GCT. He argues that DoD regulations, which purportedly amended the Air Force regulations, are not valid because they expired and were not properly activated again. Finally, based upon these arguments, Valois contends that the less generous GCT rate under the DoD regulations illegally increases his time in confinement in violation of the Ex Post Facto Clause of the United States Constitution. The Court first examines the maze of GCT regulations that the Air Force and DoD have issued over the last 50 years. These regulations are not always uniform and their effective dates and subsequent cancellations are often difficult to discern. The Honorable Richard D. Rogers has previously explained the problem with military regulations on issues of parole and GCT: [T]he military regulations governing parole and good time for prisoners at the USDB are difficult to locate and decipher. Piecemeal changes have been made numerous times; some are Department of Defense directives while others are Army and Air Force regulations. Some contain disorganized provisions on the same subject, some are poorly written with seeming inconsistencies, and some subjects seem not to be adequately addressed. These regulations are not in the Code of Federal Regulations or available to the court through normal research channels. Instead, the court must rely on excerpts selected by the parties and provided with the pleadings. Young v. Nickels, 59 F. Supp.2d 1137, 1139 (D. Kan. 1999).

Like military counsel, “With some trepidation, the Court enters the military labyrinth of regulations.” After entering and leaving that labyrinth the court denies relief.

Part of Valois’ claim is that he received IAC when taking his PTA because he was wrongly advised of his likely good time credit. The court cites to United States v. Griffitts, No. 201000673, 2011 WL 4985719 at * 4 (N-M. Ct. Crim. App. Oct. 20, 2011)(defense counsel’s mistaken reliance on outdated Navy instruction which awarded ten days GCT credit did not lead to improvident plea and was not ineffective assistance of counsel).

The case had something of a tortured appellate history, ultimately leading to a habeas corpus petition in federal court. See Background, at p.1.

Like the mythical Phoenix, Latorre sought to get some lift from the U.S. District Ct. for the Northern District of Ohio, in Latorre v. FCI Elkton.[1]

In Ehlers v. Warden, [1] the court sets out the common understanding of federal review of a court-martial.

“[T]he scope of a habeas corpus review of a military conviction is more narrow than a habeas corpus review of a conviction by a civil court.” Swisher v. United States,354 F.2d 472, 475 (8th Cir. 1966). “In military habeas corpus cases, . . . it would be in disregard of the statutory scheme if the federal civil courts failed to take account of the prior proceedings—of the fair determinations of the military tribunals after all military remedies have been exhausted.” Burns, 346 U.S. at 142. Therefore, it is not the duty of the civil courts to re-examine and re-weigh each item of evidence or events which tend to prove or disprove one of the allegations in the applications for habeas corpus. Id. at 144. “It is the limited function of the civil courts to determine whether the military have given fair consideration to each of these claims.” Id. In other words, federal civil courts “must defer to the decision of the military court if that court has given fair consideration to the claims advanced in the habeas petition.”Gilliam v. Bureau of Prisons, No. 99-1222, 2000 WL 268491, at *2 (8th Cir. Mar. 10, 2000) (citing Burns, 346 U.S. at 142-44). “[W]here an issue is adequately briefed and argued before the military courts the issue has been given fair consideration, even if the military court disposes of the issue summarily.” Allen v. U.S. Air Force, 603 F.3d 423, 431 (8th Cir. 2010) (quoting Roberts v. Callahan, 321 F.3d 994, 997 (10th Cir. 2003)).

The Dist. Ct. finds that, “In his Petition, he asserts that his trial [defense] counsel [2] was ineffective during sentencing because he produced only written statements from mitigation witnesses but would not call them to testify. He claims this led to an unfairly long sentence. For the reasons set forth below, the Petition is denied and this action is dismissed.” Of interest in the court’s opinion is this observation.

While “full and fair consideration” is the universal standard for military habeas petitions, the Federal Circuits have not developed a uniform analysis to determine what constitutes “full and fair consideration” by the military courts.

After a review of cases the court went on to suggest that:

In Lips [Lips v. Commandant, 907 F.2d 808 (10th Cir. 1993)], the Tenth Circuit applied a four-part test to help determine whether the federal court may consider the merits of a military habeas case. See Lips, 997 F.2d at 811.See also Dodson v. Zelez, 917 F.2d 125, 1252-53 (10th Cir. 1990) (adopting the four-part test from the Fifth Circuit’s opinion in Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911 (1976)); see also Roberts v. Callahan, 321 F.3d 994, 997 (10th Cir. 2003) (clarifying that the four-part test is meant to aid courts in applying Burns rather than serve as a separate hurdle to be met before review of a military court decision). In the Tenth Circuit, before reaching the merits of any claim, the federal habeas court must consider four factors: (1) the asserted error is of substantial constitutional dimension;

more

(2) the issue is one of law rather than of disputed fact already determined by the military tribunal;

(3) there are no military considerations that warrant different treatment of constitutional claims; and

(4) the military courts failed to give adequate consideration to the issues involved or failed to apply proper legal standards.

Lips, 997 F.2d at 811. While each consideration is relevant, the fourth is the most important.

The bottom line from Latorre, is and I believe remains the very significant hurdle that:

To overcome his waiver and obtain habeas review, Petitioner must demonstrate cause excusing the procedural default and prejudice resulting from the error. Id. (citing Wolff v. United States, 737 F.2d 877 (10th Cir. 1984)).

Establishing that cause is a very high hurdle indeed. It should be noted that a denial of a petition by C.A.A.F. is not sufficient cause. And another consequence when C.A.A.F. denies a petition, addressed frequently and elsewhere (and here), is that the appellant is denied access to the U.S. Supreme Court for direct review. Congressional efforts to change this discriminatory practice have been unavailing.

——

[1] It is not unusual for military prisoners to seek habeas corpus relief in federal court alleging various improprieties in their court-martial conviction and sentence. Most of the litigation arises in the federal court with jurisdiction over the USDB, which is effectively the Tenth Circuit court of appeals. Latorre it appears, like others, has been transferred to a federal civilian facility to serve his sentence. There is a procedure where this may happen at the prisoners request or through an administrative decision of the USDB in concert with the Federal Bureau of Prisons. See e.g., Ehlers v. Warden, filed in the U.S. Dist. Ct. for Minn.

On August 21, 2007, a military judge sitting as a general court-martial convicted Petitioner of (1) one specification of sodomy with a child under the age of 12 years by force and without consent, in violation of Art. 125, Uniform Code of Military Justice (“UCMJ”), 10 U.S.C. § 925; (2) one specification of assault consummated by a battery, in violation of Art. 128, UCMJ, 10 U.S.C. § 928; and (3) one specification of indecent liberties with a child under the age of 16 years, in violation of Art. 134, UCMJ, 10 U.S.C. § 934. Response to Pet. for Writ of Habeas Corpus Ex. 1, ECF No. 10. Petitioner was sentenced to confinement for a period of 25 years, forfeiture of all pay and allowances, reduction to pay grade E-1, and a dishonorable discharge. Id.

[2] A word of caution here. It can be confusing to civilian practitioners and judges. In the military, the Trial Counsel is the prosecutor. But in the civilian world reference to trial counsel is a reference to the defense counsel. The confusion can be exacerbated when a trial counsel unwittingly calls a civilian and introduces themselves as “trial counsel” in a case. The civilian attorney thinks they are the defense.