UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

In re Joseph L. NEIS ) Misc Dkt No. 2019–02

Technical Sergeant (E-6) )

U.S. Air Force )

Petitioner )

) ORDER

)

)

) Panel 2

On 15 May 2019, Petitioner filed with this court a Petition for Writ of Habeas Corpus in propria persona, seeking to have this court order his immediate 

release from confinement and declare his conviction for rape unlawful. Petitioner asserts that in accordance with the decisions of United States Court of 

Appeals for the Armed Forces (CAAF) in United States v. Mangahas, 77 M.J. 

220 (C.A.A.F. 2018), and United States v. Briggs, 78 M.J. 289 (C.A.A.F. 2019), 

his conviction for a rape committed on or about 15 September 2006 was barred 

by a five-year statute of limitations pursuant to the version of Article 43, 

UCMJ, 10 U.S.C. § 843, in effect at the time of the offense. We find the requested writ is not warranted.

I. BACKGROUND

On 1 March 2017, several specifications were preferred against Petitioner, 

including one specification of rape in violation of Article 120, UCMJ, 10 U.S.C. 

§ 920, committed in September 2006. The summary court-martial convening 

authority received these specifications on the same day. At a trial held from 23 

August 2017 until 2 September 2017, a general court-martial convicted Petitioner, contrary to his pleas, of the specification of rape in September 2006 as 

well as one specification of abusive sexual contact, also in violation of Article 

120, UCMJ. The court-martial sentenced Petitioner to a dishonorable discharge, confinement for seven years, and reduction to the grade of E-3. On 3 

January 2018, the military judge granted in part a post-trial defense motion 

for a new trial, and vacated the conviction for abusive sexual contact and the 

sentence. The convening authority subsequently dismissed the specification of 

abusive sexual contact. At a sentencing rehearing on the remaining conviction 

for rape, conducted on 24–26 April 2018, Petitioner was sentenced to a dishonorable discharge, confinement for five years, and reduction to the grade of E-1. 

On 23 August 2018, the convening authority approved a reduction only to the 

grade of E-3, as well as the dishonorable discharge and confinement for five 

years. 
In re Neis, Misc. Dkt. No. 2019–02

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II. LAW

“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)). A writ of habeas 

corpus is one such extraordinary writ. See id. The “essence of habeas corpus is 

an attack by a person in custody upon the legality of that custody, and . . . the 

traditional function of the writ is to secure release from illegal custody.” Preiser 

v. Rodriguez, 411 U.S. 475, 484 (1973). The writ of habeas corpus is the “traditional remedy for unlawful imprisonment.” Waller v. Swift, 30 M.J. 139, 142 

(C.M.A. 1990) (citations omitted). 

The Supreme Court has held three conditions must be met before a court 

provides extraordinary relief: (1) the petitioner must show the “right to issuance of the writ is clear and indisputable;” (2) the petitioner seeking the writ 

must have “no other adequate means to attain the relief;” and (3) “even if the 

first two prerequisites have been met, the issuing court, in the exercise of its 

discretion, must be satisfied that the writ is appropriate under the circumstances.” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380–81 (2004) (citations and internal quotation marks omitted).

III. ANALYSIS

Petitioner fails to demonstrate a “clear and indisputable” right to his requested relief. He contends that in Mangahas, the CAAF “held that the statute 

of limitations is five years for any alleged UCMJ Article 120 violation (i.e., rape 

of an adult) that occurred prior to October 1, 2007.” Petitioner is incorrect. 

Prior to 6 January 2006, Article 43(a), UCMJ, provided that a person 

“charged with an offense punishable by death” was subject to trial and punishment by court-martial “at any time without limitation.” 10 U.S.C. § 843(a), 

Manual for Courts-Martial, United States (2005 ed.) (2005 MCM). In Mangahas, the CAAF overruled its precedent in Willenbring v. Neurauter, 48 M.J. 

152, 178, 180 (C.A.A.F. 1998), to hold that a rape in violation of Article 120, 

UCMJ, allegedly committed in 1997 was not “an offense punishable by death” 

within the meaning of the pre-2006 version of Article 43, UCMJ, because the 

death penalty was “simply unavailable for the charged offense on constitutional grounds.” 77 M.J. at 224–25. Therefore, the alleged 1997 rape was subject to the general five-year statute of limitation applicable to most offenses 

under the UCMJ. Mangahas, 77 M.J. at 225; see 10 U.S.C. § 843(a), 2005 MCM.

However, on 6 January 2006, the National Defense Authorization Act for 

Fiscal Year 2006 (NDAA) amended Article 43(a), UCMJ, to explicitly remove 

any temporal limitation on trial or punishment for the offense of rape, as well 

as murder or “any other offense punishable by death.” Pub. L. No. 109–163, § 
In re Neis, Misc. Dkt. No. 2019–02

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553, 119 Stat. 3136, 3264 (2006). Congress did not specify a particular implementation date with respect to § 553 of the NDAA, which is the section that 

removed the statute of limitations for the offense of rape.1 “It is a well-established principle of statutory construction that, absent a clear direction of Congress to the contrary, a law takes effect on the date of its enactment.” United 

States v. Christian, 63 M.J. 205, 208 (C.A.A.F. 2006) (citations omitted). Therefore, contrary to Petitioner’s claim, the September 2006 rape for which Petitioner was convicted was not subject to any statute of limitation because the 

amendment took effect on 6 January 2006.2

Because Petitioner has failed to demonstrate a “clear and indisputable 

right” to the requested relief, we need not address whether he meets the remaining conditions for the writ he seeks. 

Accordingly, it is by the court on this 27th day of February, 2020, 

ORDERED:

The Petition for Writ of Habeas Corpus is hereby DENIED.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court

 

1 Congress did provide certain other modifications to the UCMJ implemented by the 

NDAA with an effective date of 1 October 2007. However, this delayed effective date 

applied to § 552 of the NDAA, and not to § 553 which removed the statute of limitations 

for rape. Pub. L. No. 109–163, §§ 552–53, 119 Stat. 3136, 3264 (2006).

2 Petitioner also cites Briggs, 78 M.J. at 293–95, in which the CAAF held that the 2006 

amendment did not retroactively apply to a rape allegedly committed in 2005, which 

was thus still subject to a five-year statute of limitations. However, Briggs is inapposite 

to Petitioner’s conviction for an offense committed in September 2006; the CAAF has 

never held that the prosecution of a rape allegedly committed after 6 January 2006 

was subject to the five-year limit.