IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KURTIS E. ARMANN, )

Petitioner ) C.A. No. 04-118 Erie

)

v. ) District Judge McLaughlin

) Magistrate Judge Baxter

WARDEN - FCI-McKEAN, )

Respondent )

MAGISTRATE JUDGE’S OPINION

On March 14, 2006, this Court issued an Order granting Petitioner’s motion for an

evidentiary hearing. [Document # 44]. Respondent appealed the Order to District Judge Sean J.

McLaughlin, who held a telephonic status conference on June 2, 2006, and ordered the parties to

supplement the record in this case with various documents that were filed during the military

court proceedings. After the record was supplemented as ordered, District Judge McLaughlin

issued a Memorandum Opinion and Order denying Respondent’s appeal and remanding the

matter to this Court for further proceedings. [Document # 64]. Upon receipt of District Judge

McLaughlin’s Order, the undersigned mistakenly interpreted the Order as a directive to reschedule an evidentiary hearing in this case. Accordingly, the undersigned issued an Order on

September 15, 2006, re-scheduling the evidentiary hearing for October 17, 2006. Nonetheless,

after reviewing the entire record of Petitioner’s military trial and appellate proceedings, this

Court maintains its decision to hold an evidentiary hearing is appropriate for the following

reasons.

In the seminal case of Burns v. Wilson, 346 U.S. 137 (1957), the United States Supreme

Court held that “when a military decision has dealt fully and fairly with an allegation raised in [a

habeas petition], it is not open to a federal civil court to grant the writ simply to re-evaluate the

evidence.” 346 U.S. at 142, citing Whelchel v. McDonald, 340 U.S. 122 (1950). Thus, “[i]t is

the limited function of the civil courts to determine whether the military have given fair

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consideration” to each claim raised in the petition. Id. at 144. 

Although the Third Circuit has struggled with applying Burns’ full and fair consideration

test, it has conclusively determined that “a court’s inquiry in a military habeas case may not go

further than its inquiry in a state habeas case.” Brosius v, Warden, U.S. Penitentiary, Lewisburg,

PA, 278 F.3d 239, 245 (3d Cir. 2002), citing Burns, 346 U.S. at 142. The Third Circuit has

assumed, for the sake of argument, that 28 U.S.C. § 2254(d) applies, and that habeas relief may

not be granted unless the military court’s determination on the merits of the claim resulted in a

decision that was either (i) contrary to, or involved an unreasonable application of, clearly

established federal law, as determined by the Supreme Court of the United States; or (ii) based

on an unreasonable determination of the facts in light of the evidence presented. Brosius, 278

F.3d at 245; Fell v. Zenk, 139 Fed. Appx. 391, 393 (3d Cir. 2005). See also Williams v. Taylor,

529 U.S. 362 (2000).

Section 2254(d)(1) explicitly limits the deferential review to only those claims that were

“adjudicated on the merits in state court proceedings.” 28 U.S.C. § 2254(d)(1). “It follows that

when, although properly preserved by the defendant, the state court has not reached the merits of

a claim thereafter presented to a federal habeas court, the deferential standards provided by

AEDPA and explained in Williams do not apply.” Appel v. Horn, 250 F.3d 203, 210 (3d

Cir.2001). In such cases, the court should exercise “pre-AEDPA independent judgment” on

those claims. Hameen v. State of Delaware, 212 F.3d 226, 248 (3d Cir. 2000)("[U]nder the

AEDPA the limitation on the granting of an application for a writ of habeas corpus is only 'with

respect to any claim that was adjudicated on the merits in state court proceedings.' Hence we

exercise pre-AEDPA independent judgment ...."). 

In this case, Petitioner is requesting that this Court hold an evidentiary hearing with

regard to his habeas claim that he was not competent at his plea and sentencing hearing before

the military court due to the medication regimen he was taking at the time. In particular,

Petitioner claims that the amount of medication he took on the date of the plea and sentencing

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An appeal to the CAAF is the second level of direct military appeals after an initial appeal to the United States

Army Court of Criminal Appeals (“ACCA”). Petitioner acknowledges that he did not raise the competency issue

before the ACCA. (Document # 37 at p. 19).

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hearings severely impaired his ability to understand the nature of the proceedings and to assist

his attorneys in his defense. Petitioner first raised this issue in his appeal to the United States

Court of Appeals for the Armed Forces (“CAAF”), by attaching his medication logs as an

appendix to his Supplement to Petition for Grant of Review that was filed with the CAAF.

(Document # 37 at p. 3).1 Nevertheless, Petitioner argues that the CAAF failed to address the

competency issue in its order affirming the decision of the ACCA. (Document # 37 at p. 9 and

Exhibit Q).

Petitioner contends that the CAAF’s failure to develop a factual record on appeal, and its

failure “to make any finding whatsoever” regarding his competency in its summary affirmation

of the ACCA’s decision, evidences its failure to fully and fairly consider the competency issue

that is now presented to this Court in his habeas petition. In response, Respondent cites the case

of Watson v. McCotter, 782 F.2d 143, 144-45 (10th Cir. 1986) in support of its argument that

summary denials of claims can constitute full and fair consideration; however, Watson

specifically holds that “[w]hen an issue is briefed and argued before a military board of review,

we have held that the military tribunal has given the claim fair consideration, even though its

opinion summarily disposed of the issue with the mere statement that it did not consider the

issue meritorious or requiring discussion.” Id. at 145 (citation omitted). Here, although

Petitioner raised the competency issue for the first time before the CAAF, the government

merely relied upon its brief that was filed with the ACCA to oppose the appeal. Thus, the

competency issue was not fully briefed or argued before the CAAF. Moreover, the CAAF’s

order affirming the ACCA’s decision did not, in any way, acknowledge the competency issue. 

Respondent argues further that the CAAF’s grant of Petitioner’s Petition for Review

necessarily implies that the CAAF reviewed and considered the full record, including the

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competency issue, before rendering its decision. Given the constitutional implications raised by

Petitioner’s competency argument, however, this Court is unwilling to imply that the

competency issue was given full and fair consideration by the CAAF, without more concrete

evidence of record to support such an implication. This Constitutional issue is not one that rests

in the expertise of the military courts, but, rather, raises an issue particularly suited for review by

a federal court sitting in habeas.

Since the military record is devoid of any factual findings regarding Petitioner’s

competency claim arising from his medication regimen, this Court is called to exercise its preAEDPA independent judgment to determine whether Petitioner is entitled to habeas relief under

28 U.S.C. § 2544(d). To do so, this Court believes that an evidentiary hearing is necessary and

appropriate to further develop the factual record in this case. See Brown v. Johnson, 224 F.3d

461, 465 (5th Cir. 2000), quoting Young v. Herring, 938 F.2d 543, 559 (5th Cir. 1991)(“Where

no findings of fact have been made by the state courts with respect to a particular habeas claim,

however, a federal habeas petitioner is entitled to some form of federal evidentiary hearing so

long as his ‘allegations, if proved, would establish the right to habeas relief.’”).

S/Susan Paradise Baxter 

SUSAN PARADISE BAXTER

Chief U.S. Magistrate Judge

Date: October 6, 2006 

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