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Habeas & Coram

Please let me out.

Normally, a military prisoner cannot seek a habeas corpus petition until all their military appeals are final. Finally comes with a "mandate" issued by the Court of Appeals for the Armed Forces or when and if the U.S. Supreme Court denies a petition for certiorari (or in the rare military case, decides the merits).

Keep in mind that any writ petition must be based in 28 U.S.C. sec. 2241 and cannot be brought under sec. 2255. See, e.g., Dillon v. Wormuth, No. 1:21-cv-02124 (CJN), 2022 WL 971087, at *3. The District Court for the Western District of Washington, has recently noted with approval that rule in Andreozzi v. Manager, Seattle Residential Reentry Management-- Case No. 2:23-cv-01106-JNW-GJL.

In Andreozzi, the court also discussed ways in which a military prisoner could end up "abusing" the writ with too many writs, and have a subsequent writ denied on that basis. The court cites McCleskey v. Zant, 499 U.S. 467, 489 (1991); Benchoff v. Colleran, 404 F.3d 812, 818 (3d Cir. 2005),

A petition for a writ of habeas corpus is a legal challenge to the lawfulness of a person's imprisonment. "Habeas corpus" is a Latin term that translates to "you shall have the body," referring to the legal protection that allows individuals to seek relief from unlawful imprisonment.

The writ of habeas corpus is a fundamental right that ensures that a person's detention is justified and lawful. It checks the government's power to deprive individuals of their liberty without proper legal authority. The petition is typically filed by the person being detained, known as the petitioner or the "habeas petitioner," or by the military defense counsel.

The petition challenges the legality of the detention on various grounds, which may include:

Lack of jurisdiction: Arguing that the court or authority that ordered the detention had no legal power to do so.

Procedural errors: Asserting that the proper legal procedures were not followed during the arrest, trial, or sentencing.

Constitutional violations: Claiming that the detention violates the person's constitutional rights, such as the right to due process, freedom from cruel and unusual punishment, or protection against unlawful searches and seizures.

New evidence: Presenting new evidence not available during the original trial or legal proceedings may prove the person's innocence or undermine the original conviction.

When a petition for a writ of habeas corpus is filed, the court reviews the allegations. It determines whether there is a legitimate basis to question the lawfulness of the detention. Suppose the court finds merit in the petition. In that case, it may issue the writ, which orders the custodian of the detained person (such as the prison warden) to produce the individual in court and provide justifications for the detention.

Ultimately, the purpose of a petition for a writ of habeas corpus is to safeguard individual liberty and ensure that people are not unlawfully deprived of their freedom. It is an essential legal recourse for challenging detentions and seeking redress for rights violations.

Likeability: Jurors' personal opinions and biases can come into play during a trial. A defendant who presents themselves as likable, polite, and respectful may create a more favorable impression on the jury, potentially influencing their overall perception of the individual and their case.

Nonverbal Communication: Nonverbal cues, such as facial expressions, posture, and gestures, can communicate information to the jury. A defendant who appears attentive, engaged, and cooperative may be seen as more credible and trustworthy. In contrast, a defendant who displays arrogance, hostility, or disinterest may create a negative impression.

It's important to note that a defendant's demeanor is just one factor among many that can influence a jury's decision. The strength of the evidence, the effectiveness of the attorneys' arguments, and other factors related to the case itself also play crucial roles in determining the final outcome.

At Cave & Freeburg, we represent servicemembers convicted at court-martial in their appeal of the case. One of the issues we have been monitoring is the undue length of time it takes the command to prepare the record of trial and send it to the appellate court for docketing. There are various ways to try and get "relief" or a reduction in sentence for that. However, that effort to get relief itself takes time. Here are some cases which demonstrate the problem that you can read.

United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002) (citing United States v. Collazo, 53 M.J. 721, 727 (Army Ct. Crim. App. 2000)); United States v. Winfield, 83 M.J. ___ ARMY 20210092, 2023 CCA LEXIS 189 *8 (Army Ct. Crim. App. Apr. 27, 2023); United States v. Livak, 80 M.J. 631 (A.F. Ct. Crim. App. 2020).

Meaningless relief is no relief and can result in an empty remedy.

With that in mind as your military appellate defense lawyers we have created a potential challenge to post-trial confinement through the use of a motion or writ of habeas corpus. The idea is creative, novel, and untested. But, you might talk to us about trying that in your case.

If you have been in confinement since trial for longer than six months and you still don't have a record of trial, contact us to discuss.

It's Over, but Occasionally not

[Military sexual assault, military defense lawyer, appellate military defense lawyer before the Air Force, Army, Coast Guard, Navy, Marine Corps court of criminal appeal.]

The Air Force Court of Criminal Appeals has two recent decisions (Chapman and Erickson) which help explain when appellate and military appeals court jurisdiction is over, except maybe for coram nobis petitions. As a military defense lawyer I have experience with such coram nobis petitions.

United States v. Denedo is the most recent and famous success when the Supreme Court agreed that Denedo could proceed. Sadly, after winning in the Supreme Court, his military appellate defense counsel then missed a filing deadline and the case was dismissed. A pyrrhic victory. The Supreme Court later held in favor of the appellant in a later case on the issues raised by Denedo. That case is now applicable nation-wide. See, Padilla v. Kentucky, __ U.S. ___ (2009).

Military Appellate Jurisdiction Ends

In United States v. Chapman, 75 M.J. 598 (A.F. Ct. Crim. App. 2016) (AFCCA), the court had a habeas corpus petition to consider. The court determined that all of Chapman's appeals were complete through the Court of Appeals for the Armed Forces (CAAF) level. In Chapman he had not met the rigorous requirements to succeed in coram nobis. Reconsideration was denied. United States v. Chapman, Misc. Dkt. No. 2016-07 (A. F. Ct. Crim. App. 9 June 2016)(unpub.),

In United States v. Erickson, Misc. Dkt. No. 2016-09 (A. F. Ct. Crim. App. 9 June 2016)(unpub.), the same court applied Chapman to deny the habeas petition. In Erickson, the court said that, "Petitioner may later file a writ of error coram nobis.]" Slip op. at 2. The court again lays out the rather tough hurdles a coram nobis petitioner has to go through to gain relief.

Chapman actually is a rather notorious series of cases with the same accused. Originally, he was convicted of rape, attempted murder, sodomy, and burglary. He was sentenced to life without the possibility of parole (LWOP) and began serving his sentence at the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas. United States v. Chapman, No. ACM 35564, 2006 CCA LEXIS 179, at *1-2 (A.F. Ct. Crim. App. July 14, 2006)(unpub.), aff'd 65 M.J. 289 (C.A.A.F. 2007), cert. denied 552 U.S. 952 (2007). On 28 September 2012, the AFCCA denied a habeas petition.

While confined for his first court-martial, he was playing softball and disagreed with the umpire. So he took the baseball bat he was playing with and killed the umpire, who was himself something of a notorious prisoner. See, United States v. Fricke, 53 M.J. 149 (C.A.A.F. 2000). Reporting on the fight here and here. Note, Fricke was about a month away from leaving the USDB for parole.

Should you get to the stage of considering a coram nobis, your military defense lawyer should give you honest and straight advice about the chances of success and the complexity of the issues.

Coram nobis petitions would be filed with the military courts of appeal. A habeas petition would be filed in federal district court. There may be the occasional case where a habeas should be filed in a military appellate court. This usually happens when the case is still in the military appeals process and there is a reason to seek immediate release.

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