UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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BARRY N. NIXON, SR., 

 Petitioner - Appellant,

v.

DAWN HILTON, Colonel, 

Commandant USDB-Leavenworth, 

 Respondent - Appellee.

No. 19-3002

(D.C. No. 5:18-CV-03139-JWL)

(D. Kan.)

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ORDER AND JUDGMENT*

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Before HOLMES, KELLY, and BACHARACH, Circuit Judges.

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This appeal involves timeliness of a criminal charge against a 

servicemember, Mr. Barry N. Nixon, Sr. Mr. Nixon was tried in a general

court-martial and found guilty of rape. He sought habeas relief, arguing 

that the charge was untimely. 

* We conclude that oral argument would not materially help us to 

decide the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). 

So we have decided the appeal based on the record and the parties’ briefs.

Our order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But the order and judgment may be cited for its persuasive value if 

otherwise appropriate under Fed. R. App. P. 32.1(a) and 10th Cir. R. 

32.1(A).

FILED

United States Court of Appeals

Tenth Circuit

January 12, 2021

Christopher M. Wolpert

Clerk of Court
2

To decide this claim, we must decide what the limitations period is: 

Mr. Nixon contends that the limitations period is five years; and the 

government contends that there is no limitations period, allowing the 

government to bring the charge at any time.

The charge was brought roughly five years and nine months after the 

last alleged rape. At the time of the rapes, the pertinent statute provided

that for any crime punishable by death, no limitations period existed. 10 

U.S.C. § 843(a) (1986). For all other crimes, the limitations period was 

five years. 10 U.S.C. § 843(b)(1) (1986). So was rape punishable by death? 

If it was, no limitations period existed. 1

By statute, rape was punishable by death. 10 U.S.C. § 920(a) (1996).

But the Supreme Court had held that the Constitution prohibited the death 

penalty for a rape that doesn’t result in death. Coker v. Georgia, 433 U.S. 

584, 598 (1977). Based on this constitutional prohibition, the Court of 

Appeals for the Armed Forces held in United States v. Mangahas that the 

limitations period for rape was five years. 77 M.J. 220, 222 (C.A.A.F. 

2018).

But Mangahas was decided on direct appeal, and Mr. Nixon is 

collaterally challenging his conviction through a habeas petition. So the 

1 After the alleged rapes, Congress changed the law, clarifying that no 

limitations period existed for rape or any other offense punishable by 

death. 10 U.S.C. § 843(a), (b)(1) (2006).
3

district court (naturally) considered whether Mangahas applied 

retroactively to cases on collateral review. On that question, the district 

court answered “no,” concluding that no limitations period existed for the 

criminal charge.

But the law changed during the pendency of the appeal, with the 

Supreme Court abrogating Mangahas. In abrogating Mangahas, the 

Supreme Court reasoned that the military limitations period bases the 

possibility of the death penalty on the statutory penalty rather than case 

law addressing the constitutionality of a death sentence. United States v. 

Briggs, 19–108, 2020 WL 7250099, at *2 (U.S. Dec. 10, 2020). 2 Because 

the statute authorizes the death penalty for rape, no limitations period

existed. United States v. Briggs, 19–108, 2020 WL 7250099, at *2 (U.S. 

Dec. 10, 2020). 

Given the absence of a limitations period, the government could 

charge Mr. Nixon at any time for the rapes. We thus affirm the denial of 

habeas relief.

Entered for the Court

Robert E. Bacharach

Circuit Judge

2 We had abated the appeal during the pendency of United States v. 

Briggs. Because the opinion has now issued, we lift the abatement.