Dwight J. LOVING, Private 

U.S. Army, Petitioner 

v. 

UNITED STATES, Respondent 

No. 06-8006 

Crim. App. No. 19891123 

United States Court of Appeals for the Armed Forces 

Argued October 29, 2008 

Decided July 17, 2009 

ERDMANN, J., delivered the opinion of the court, in which 

EFFRON, C.J., and BAKER, J., joined. EFFRON, C.J., filed a 

separate concurring opinion. STUCKY, J., filed a separate 

opinion concurring in part and in the result. RYAN, J., filed a 

separate dissenting opinion. 

Counsel 

For Petitioner: Teresa L. Norris, Esq. (argued); Lieutenant 

Colonel Mark Tellitocci and Captain William J. Stephens (on 

brief). 

For Respondent: Captain Adam S. Kazin (argued); Colonel Denise 

R. Lind, Lieutenant Colonel Steven P. Haight, and Lieutenant 

Colonel Mark H. Sydenham (on brief). 

Amicus Curiae for Petitioner: Michelle M. Lindo McCluer, Esq., 

Jonathan E. Tracy, Esq., Eugene R. Fidell, Esq., and Stephen A. 

Saltzburg, Esq. (on brief) -- for the National Institute of 

Military Justice. 

Military Judges: Stephen V. Saynisch (trial) and Theodore E. 

Dixon (DuBay hearing) 

This opinion is subject to revision before final publication. 
Loving v. United States, No. 06-8006/AR 

2

Judge ERDMANN delivered the opinion of the court. 

 Private Dwight J. Loving was convicted in 1989 of 

premeditated murder, felony murder, attempted murder, and 

several specifications of robbery. The court-martial sentenced 

Loving to a dishonorable discharge, forfeiture of all pay and 

allowances, and to be put to death. The United States Army 

Court of Criminal Appeals affirmed the findings of guilty and 

the sentence. United States v. Loving, 34 M.J. 956, 970 

(A.C.M.R. 1992). We affirmed on direct review in 1994. United 

States v. Loving, 41 M.J. 213, 300 (C.A.A.F. 1994), modified by

42 M.J. 109 (C.A.A.F. 1995). The Supreme Court affirmed that 

decision in 1996. Loving v. United States, 517 U.S. 748, 774 

(1996). 

The case is now before us on Loving’s petition for 

extraordinary relief in the nature of a writ of habeas corpus 

alleging that defense counsel provided constitutionally 

ineffective representation in the sentencing phase of his trial. 

Assuming without deciding that the performance of Loving’s 

defense counsel was deficient as alleged, we conclude that 

Loving has failed to demonstrate that there is a reasonable 

probability that, but for counsel’s deficient performance, the 

result of the proceeding would have been different. We hold 

that Loving has failed to meet his burden to establish prejudice 
Loving v. United States, No. 06-8006/AR 

3

under Strickland v. Washington, 466 U.S. 668 (1984), and deny 

the petition for extraordinary relief in the nature of a writ of 

habeas corpus. 

BACKGROUND 

1. Procedural Background

When a court-martial sentence includes the death penalty, 

the case remains pending in the military justice system through 

five separate stages: (1) action by the convening authority 

under Article 60, Uniform Code of Military Justice (UCMJ), 10 

U.S.C. § 860 (2006); (2) review by the appropriate Court of 

Criminal Appeals under Article 66, UCMJ, 10 U.S.C. § 866, 10 

U.S.C. § 866 (2006); (3) review by the United States Court of 

Appeals for the Armed Forces under Article 67(a)(1), UCMJ, 10 

U.S.C. § 867(a)(1) (2006); review by the Supreme Court under 

Article 67a(a), UCMJ, 10 U.S.C. § 867a(a) (2006), if certiorari 

is sought and granted as provided in 28 U.S.C. § 1259 (2006); 

and (5) consideration by the President under Article 71(a), 

UCMJ, 10 U.S.C. § 871(a) (2006). A case does not become final 

under the UCMJ until completion of all five stages. See Article 

76, UCMJ, 10 U.S.C. § 876 (2006). 

 In the present case, the United States Army Court of 

Criminal Appeals affirmed the findings of guilty and the 

sentence. Loving, 34 M.J. at 970. On direct review to this 

court, we also affirmed the findings of guilty and the sentence. 
Loving v. United States, No. 06-8006/AR 

4

Loving, 41 M.J. at 300. In doing so, we considered, inter alia, 

Loving’s ineffective assistance of counsel claim under 

Strickland, which included allegations that his defense counsel 

“failed to request funds for a mitigation specialist or to 

present a cohesive, comprehensible background, social, medical, 

and environmental history” during the sentencing phase of 

Loving’s trial. Id. at 249. We determined that this claim 

lacked merit, holding that defense counsel’s investigation and 

presentation of mitigation evidence and their decisions 

regarding use of expert testimony at sentencing were reasonable. 

Id. at 250. 

 The Supreme Court issued its decision affirming the death 

sentence on June 3, 1996, completing stage four of the five 

stage process under the UCMJ. Loving, 517 U.S. at 774. In the 

thirteen years since the Supreme Court’s decision, the case has 

remained pending within the military justice system, awaiting 

presidential action.1

 Loving’s case remains in a posture where 

his military remedies have not been exhausted -- a critical 

component of any effort to obtain review in the Article III 

courts. See Loving, 62 M.J. 248-51. As a result, review in the 

Article III courts is not reasonably available to Loving so long 

 

1

 A more detailed appellate history is documented in prior 

opinions. See Loving v. United States, 64 M.J. 132, 134-36 

(C.A.A.F. 2006); Loving v. United States, 62 M.J. 235, 238-39 

(C.A.A.F. 2005); Loving v. Hart, 47 M.J. 438, 440 (C.A.A.F. 

1998). 
Loving v. United States, No. 06-8006/AR 

5

as his case remains pending in the military justice system. See

id. 

On February 18, 2004, prior to filing the present habeas 

petition, Loving sought relief from our court through a writ of 

coram nobis under the All Writs Act, 28 U.S.C. § 1651(a). See

id. at 236. Among other allegations, relying on the intervening 

Supreme Court decision in Wiggins v. Smith, 529 U.S. 510 (2003), 

Loving argued that this court committed clear error during 

mandatory review of Loving’s ineffective assistance of counsel 

in sentencing claim because the court did not focus on the 

investigative aspect leading to counsel’s decisions. Loving 

alleged that defense counsel’s investigation was not reasonable 

and that counsel’s deficient conduct was prejudicial in 

sentencing. 

In the course of considering his coram nobis petition, we 

addressed the jurisdictional issues presented by the status of 

his case -- a case that remained pending in the military justice 

system after review by our court and the Supreme Court. Loving, 

62 M.J. at 239-46. We specifically considered the implications 

of the relationship between cases pending in the military 

justice system and collateral review in the Article III courts. 

Id. 

We concluded that a case pending final action under the 

UCMJ remained subject to extraordinary writ consideration by the 
Loving v. United States, No. 06-8006/AR 

6

appellate courts in the military justice system. Id. at 246. 

We further concluded that a writ of error coram nobis was not 

the proper vehicle for considering Appellant’s claim because a 

writ of habeas corpus under the All Writs Act remained 

available. Id. at 257. 

At that time, we could have converted Loving’s coram nobis 

filings into a petition for habeas corpus, but we declined to 

make that decision for him. Id. at 259. Instead, “mindful that 

a habeas petition before this Court could affect Petitioner’s 

right and strategy to raise . . . the issues . . . . if 

eventually filed in an Article III court,” we dismissed 

Appellant’s petitions for extraordinary relief without prejudice 

for Loving to file a writ of habeas corpus in our court, citing 

Noyd v. Bond, 395 U.S. 683, 695 n.7 (1969).2

 Id. at 256, 258-60. 

 

2

 In Noyd, Justice Harlan, writing for the majority, discussed 

the power of this court to issue a writ of habeas corpus under 

the All Writs Act: 

Since the All Writs Act [28 U.S.C. § 1651(a)] applies 

by its terms to any “courts established by Act of 

Congress,” and since the Revisers of 1948 expressly 

noted that “the revised section extends the power to 

issue writs in aid of jurisdiction, to all courts 

established by Act of Congress, thus making explicit 

the right to exercise powers implied from the creation 

of such courts,” we do not believe that there can be 

any doubt as to the power of the Court of Military 

Appeals [now the Court of Appeals for the Armed 

Forces] to issue an emergency writ of habeas corpus in 

cases, like the present one, which may ultimately be 

reviewed by that court. 395 U.S. at 695 n.7; see also

United States v. Denedo, 2009 U.S. LEXIS 4160, at *14, 

2009 WL 1576568, at *5 (June 8, 2009) (recognizing 
Loving v. United States, No. 06-8006/AR 

7

In so doing, we expressly alerted Loving to the potential effect 

of a habeas petition before our Court on future habeas petitions 

filed in the Article III courts. Id. at 258-60 (citing, inter 

alia, 28 U.S.C. § 2244). 

While the case remained pending within the military justice 

system, Loving had a number of options, including filing a 

habeas petition in our court or awaiting action by the President 

before seeking judicial review. He elected to file a petition 

for writ of habeas corpus in our court. Loving v. United 

States, 64 M.J. 132, 134 (C.A.A.F. 2006). 

Loving filed his habeas petition with this court on 

February 2, 2006, raising essentially the same claim as to the 

trial defense team’s constitutionally ineffective performance at 

sentencing that he raised in the previous coram nobis petition. 

Loving, 64 M.J. at 135. In the course of considering the habeas 

petition, we focused on what standard of review to apply to a 

habeas corpus action under the All Writs Act with respect to a 

case that remained pending in the military justice system. Id.

at 144-46. Taking into account the importance of deference to 

decisions made during direct judicial review, and recognizing 

 

that when military appellate courts have subjectmatter jurisdiction over the case or controversy, 

“military courts, like Article III tribunals, are 

empowered to issue extraordinary writs under the All 

Writs Act, Noyd v. Bond, 395 U.S. 683, 695, n.7 

(1969)”). 
Loving v. United States, No. 06-8006/AR 

8

the limited scope of review under the All Writs Act, we adopted 

the highly deferential standard for collateral review used by 

other federal courts. See id. at 145-46. That restrictive 

standard requires us to determine: 

whether this Court’s prior review: (1) resulted 

in a decision that was contrary to, or involved 

an unreasonable application of, clearly 

established Federal law, as determined by the 

Supreme Court of the United States; or (2) 

resulted in a decision that was based on an 

unreasonable determination of the facts in light 

of the evidence presented in the [prior] 

proceeding. 

Id. at 145 (citing 28 U.S.C. § 2254(d)) (alteration in 

original). 

 Applying that standard to the pending habeas petition, we 

observed in our prior decision that the factual record was 

inadequate. Id. at 150-52. Accordingly, we remanded for 

proceedings under United States v. DuBay, 17 C.M.A. 147, 37 

C.M.R. 411 (1967), which provides a well-established procedure 

for development of a post-trial evidentiary record, followed by 

return of the case to our court for further review. Loving, 64 

M.J. at 152-53. 

 In particular, we determined that in light of Wiggins, “we 

[did] not have the factual predicate to determine if our prior 

decision addressing the issue of ineffective assistance of 

counsel was correct under the Strickland standard.” Id. at 134. 

We ordered a DuBay hearing to address the issue of “whether 
Loving v. United States, No. 06-8006/AR 

9

Petitioner’s trial defense counsel ‘chose to abandon their 

investigation at an unreasonable juncture, making a fully 

informed decision with respect to sentencing strategy 

impossible’ thereby prejudicing Petitioner in the capital 

sentencing phase of the court-martial.” Id. (quoting Wiggins, 

539 U.S. at 527-28). We directed the DuBay judge to issue 

findings of fact and conclusions of law on several specific 

matters related to counsel’s investigation into Loving’s 

background. Id. at 152-53. We also directed the DuBay judge to 

reweigh the evidence adduced at trial and in the DuBay

proceeding to determine whether there was a reasonable 

probability that the panel would have returned a different 

sentence if the new evidence had been presented at trial. Id.

at 153. 

The DuBay hearing has been completed and the record has 

been returned to this court for further review. At the DuBay

proceeding, the parties had full opportunity to present 

witnesses, documentary evidence, and legal arguments. The 

military judge considered the evidence and arguments of the 

parties, applied the standard set forth in our prior opinion, 

and addressed the issues identified in our remand order. At the 

conclusion of the proceeding, the military judge issued a 

comprehensive decision detailing his factual findings and legal 

conclusions. In summary, the DuBay judge found that “a 
Loving v. United States, No. 06-8006/AR 

10

reasonable investigation as required by St[r]ickland, as further 

explained in Wiggins, was conducted under the circumstances of 

this case. PVT Loving’s defense counsel did not choose to 

abandon their investigation at an unreasonable juncture.” The 

DuBay judge also concluded: 

[A]fter reweighing all of the evidence adduced at 

trial and considering the evidence presented in the 

DuBay hearing . . . had the panel been confronted with 

the evidence at issue, there is no reasonable 

probability that at least one member of the panel 

would have struck a different balance thereby not 

voting for a death sentence and the result of the 

sentencing proceeding would not have been different. 

As a result of the standards and procedures adopted by our 

court, we now have before us a comprehensive record, developed 

by a military judge, which provides the precise framework 

necessary for effective and accurate habeas review. The parties 

submitted additional briefs to this court and we held oral 

argument on October 29, 2008.3

 

3

 We ordered briefing on two issues: 

I. WHETHER THE RECORD OF THE EVIDENTIARY HEARING 

ORDERED PURSUANT TO UNITED STATES V. DUBAY, 17 

C.M.A. 147, 37 C.M.R. 411 (1967), SHOULD BE 

RETURNED TO THE JUDGE ADVOCATE GENERAL OF THE 

ARMY FOR REMAND TO THE CONVENING AUTHORITY 

AND/OR THE ARMY COURT OF CRIMINAL APPEALS FOR 

REVIEW PRIOR TO REVIEW BY THIS COURT. 

II. WHETHER PETITIONER’S WRIT OF HABEAS CORPUS 

SHOULD ISSUE IN VIEW OF THE FINDINGS OF FACT AND 

CONCLUSIONS OF LAW ENTERED BY THE MILITARY JUDGE 

IN THE DUBAY PROCEEDING ON THE QUESTION OF 

WHETHER THE TRIAL DEFENSE TEAM CONDUCTED A 

REASONABLE INVESTIGATION INTO POTENTIAL EVIDENCE 
Loving v. United States, No. 06-8006/AR 

11

2. Factual Summary and Current Allegations

On the night of December 11, 1988, Loving robbed two 

convenience stores at gunpoint. Loving, 41 M.J. at 229. He 

then robbed three cab drivers at gunpoint and killed two of the 

drivers after receiving money and other items. Id. He 

attempted to kill the third cab driver, but the victim struggled 

the gun away from Loving and fled the scene. Id. at 229-31. 

Loving was apprehended the next day and advised of his rights. 

Id. at 230. He waived his rights and confessed in a videotaped 

interview. Id.

Three military defense counsels were detailed to Loving’s 

case: Captain William Ibbotson, Captain John Smart, and Major 

David Hayden. All three met with Loving shortly after his 

apprehension. On January 17, 1989, Hayden traveled to Loving’s 

hometown of Rochester, New York, to conduct a background 

investigation. As to the details of the trip, the DuBay judge 

found as follows: 

[Major Hayden] spent all of 18 Jan 89 (the whole day, 

and into the evening) and part of 19 Jan 89, 

 

IN MITIGATION AND PROVIDED EFFECTIVE ASSISTANCE 

OF COUNSEL AT SENTENCING. 

67 M.J. 22 (C.A.A.F. 2008). As to the first issue, both parties 

and amicus curiae argued that it was appropriate for us to 

address the underlying issues at this time without remand to the 

convening authority or the Court of Criminal Appeals. We agree 

and turn directly to the second issue. 
Loving v. United States, No. 06-8006/AR 

12

interviewing some family members, friends, and others 

(e.g., boxing coach, school teacher, Detective Verna4). 

The purpose of the visit, according to MAJ Hayden, was 

“to find out information, as much information as I 

could about Dwight Loving’s background.” As suggested 

by CPT Ibbotson, he was also looking for evidence of 

impulsive behavior, as well as evidence of head 

trauma. 

In Rochester, MAJ Hayden met with several of PVT 

Loving’s family members including his mother, father, 

and some of PVT Loving’s siblings. He learned more 

about PVT Loving’s “upbringing” his “family structure” 

and his “relationship with his brothers and sisters.” 

MAJ Hayden learned “a lot” from his interview of Mr. 

Johnson, PVT Loving’s childhood boxing coach. . . . 

. . . . 

As further preparation for trial, CPT Ibbotson 

conducted additional background investigation by 

telephone of PVT Loving’s history prior to his 

military service. He spoke with PVT Loving’s mother, 

four brothers, and his sister Gwendolyn. He also 

spoke by telephone with Detective Verna. . . . 

In addition to these investigative efforts, CPT 

Ibbotson and CPT Smart also interviewed unit 

witnesses, Ms. Pessina [Loving’s girlfriend], friends 

of Ms. Pessina, and confinement officers supervising 

Private Loving in pretrial detention. 

In the habeas petition before us, Loving alleges 

ineffective assistance of counsel in the investigation and 

presentation of mitigation evidence related to Loving’s 

background and social history. Loving faults defense counsel 

for failing to obtain the assistance of a mitigation specialist 

 

4

 Detective Verna was an officer in the Rochester police 

department who had information about the rough neighborhoods in 

Rochester and problems with drugs and violence in the city. 
Loving v. United States, No. 06-8006/AR 

13

or social worker. He also alleges deficiencies in the number 

of, approach to, and conduct of the background interviews that 

defense counsel conducted with Loving’s family members and 

others, as well as deficiencies in the amount of social history 

records collected. Loving contends that the interviews were 

ineffective because defense counsel were looking for specific 

information in line with preconceived theories determined on the 

basis of their initial discussions with Loving and without the 

benefit of an open-ended investigation. 

Loving also argues that during sentencing defense counsel 

only presented “skeletal information concerning Loving’s 

background and environment that was wholly inadequate to present 

to the jury a true picture of his tortured life and the impact 

upon him.” According to Loving, if “this true picture had been 

presented there is a reasonable probability that at least one 

juror would have struck a different balance in the sentencing 

determination.”5

 

 

5

 In his habeas petition filed February 2, 2006, Loving also 

alleged that defense counsel failed to adequately investigate 

and to present evidence in mitigation related to Loving’s 

intoxication and mental state at the time of the offenses. 

This contention was largely based on affidavits from Gerlinde 

Joseph and Beverly Sedberry, acquaintances of Loving at the time 

of the murders. Both individuals testified at the DuBay

hearing, and the DuBay judge determined that neither their 

affidavits nor their respective testimony were credible or 

reliable. As Loving has not pursued this line of argument 

following the DuBay hearing and we see no clear error in the 

military judge’s credibility rulings, we focus on the alleged 

deficiencies related to his family and social background. 
Loving v. United States, No. 06-8006/AR 

14

INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM 

 We consider claims of ineffective assistance of counsel 

under the two-prong test of Strickland. See Strickland, 466 

U.S. at 687. First, Loving must show that counsel’s performance 

was deficient. Id. “This requires showing that counsel made 

errors so serious that counsel was not functioning as the 

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. 

Second, Loving must show that the deficient performance 

prejudiced the defense. Id. “This requires showing that 

counsel’s errors were so serious as to deprive the defendant of 

a fair trial, a trial whose result is reliable.” Id. We need 

not analyze the Strickland prongs in any particular order. As 

the Supreme Court stated: 

[A] court need not determine whether counsel’s 

performance was deficient before examining the 

prejudice suffered by the defense as a result of the 

alleged deficiencies. The object of an 

ineffectiveness claim is not to grade counsel’s 

performance. If it is easier to dispose of an 

ineffectiveness claim on the ground of lack of 

sufficient prejudice, which we expect will often be 

so, that course should be followed. 

Id. at 697; see, e.g., United States v. Quick, 59 M.J. 383, 386 

(C.A.A.F. 2004). Here we will assume without deciding that the 

performance of Loving’s defense counsel was deficient as alleged 

for purposes of analyzing the prejudice prong of Strickland. 

To establish prejudice under Strickland, Loving must show 

that “there is a reasonable probability that, but for counsel’s 
Loving v. United States, No. 06-8006/AR 

15

unprofessional errors, the result of the proceeding would have 

been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Strickland, 

466 U.S. at 694. In the context of this capital case 

challenging the death sentence, “we reweigh the evidence in 

aggravation against the totality of available mitigating 

evidence.” Wiggins, 539 U.S. at 534. The question is whether 

if the members had been able to place the additional evidence 

“on the mitigating side of the scale, there is a reasonable 

probability that at least one [member] would have struck a 

different balance.” Id. at 537. 

In this case, we undertake this prejudice review de novo. 

Under the standards of 28 U.S.C. § 2254(d), a habeas review of a 

constitutional claim would normally employ a deferential review 

of the challenged decision. See Bell v. Cone, 535 U.S. 685, 

698-99 (2002). However, we did not reach the prejudice prong of 

Strickland in our 1994 direct review of this case. See Loving, 

41 M.J. at 250. Consequently, our review is not circumscribed 

by any previous conclusions of this court. See Wiggins, 539 

U.S. at 534. Nor is our review impacted by the DuBay judge’s 

conclusion on prejudice, which we also review de novo. See

United States v. Davis, 60 M.J. 469, 473 (C.A.A.F. 2005). 

 We have carefully reviewed the totality of the evidence -- 

both that adduced at trial and the evidence adduced in the DuBay
Loving v. United States, No. 06-8006/AR 

16

proceeding. After reweighing the evidence in aggravation 

against the totality of available mitigating evidence, we 

conclude that Loving has failed to meet his burden to show a 

reasonable probability that at least one member would have 

struck a different balance. Accordingly, we deny the writ under 

the second prong of Strickland without “grad[ing] counsel’s 

performance” under the first prong. Strickland, 466 U.S. at 

697. 

Our analysis will commence with a summary of the 

aggravation and mitigation evidence presented at trial. We will 

then review the mitigation evidence presented at the DuBay

hearing and “reweigh the evidence in aggravation against the 

totality of available mitigation evidence.” Wiggins, 539 U.S. 

at 534. 

1. Aggravation Evidence Presented at Trial 

We adopt the detailed description of the crimes from our 

direct review in 1994. See Loving, 41 M.J. at 229-31. After 

robbing two convenience stores at gunpoint, Loving got into a 

taxicab driven by Christopher Fay, an active-duty soldier 

working as a cab driver for extra money. 

[Loving] directed Fay to a secluded area on Fort Hood 

and, at gunpoint, demanded all his money. After 

receiving an unknown amount of money from Fay, 

[Loving] shot him in the back of the head. While 

watching the blood “gushing out” of the back of Fay’s 

head, [Loving] shot him in the back of the head a 

second time. Fay died as a result of the gunshots. 
Loving v. United States, No. 06-8006/AR 

17

His body was discovered by another soldier at Fort 

Hood about 30 minutes later. 

[Loving] fled from the cab to his barracks room, 

counted the money, and called for a second cab at 

about 8:15 p.m. The driver of the second cab was 

Bobby Sharbino, a retired Army sergeant. [Loving] 

directed Sharbino to a secluded street in Killeen and, 

at gunpoint, took his money pouch, wallet, and a green 

BIC cigarette lighter. He ordered Sharbino to lie 

down on the seat and shot him in the head, killing 

him. 

Id. at 229. 

Afterwards, Loving went to his girlfriend’s home. A short 

time later, he and his girlfriend went to a club with friends. 

[There, Loving] became involved in an altercation with 

another male patron because the patron was staring at 

[his girlfriend]. During the altercation, [Loving] 

drew his pistol and invited the patron to go outside. 

As the patron advanced toward [Loving], [Loving] 

backed up, stumbled over a chair, and dropped his 

pistol on the ground, causing it to discharge. 

Id. Loving and his girlfriend left the club and took a cab, 

driven by Howard Douglas Harrison. Loving’s girlfriend was 

dropped off near her home. 

After pulling a gun, [Loving] directed Harrison to a 

secluded street, demanded money, and took Harrison’s 

wallet and coin changer, obtaining about $94.00. 

[Loving] jerked Harrison’s head around and told him to 

open his mouth. Believing that he was about to be 

killed, Harrison grabbed the pistol. During the 

ensuing struggle, Harrison gained possession of the 

pistol after it went off. Then he attempted to shoot 

appellant, but the pistol would not fire. Harrison 

fled the scene, with [Loving] chasing him. After 

Harrison hit him, [Loving] ran to [his girlfriend’s] 

house, having regained possession of the pistol. 

Id. at 229-30. 
Loving v. United States, No. 06-8006/AR 

18

During the sentencing phase of the trial, the Government 

presented evidence showing that Loving had previously been 

subject to nonjudicial punishment under Article 15, UCMJ, 10 

U.S.C. § 815 (2006), and that he had received counseling related 

to poor duty performance on prior occasions. 

The Government also presented evidence to show that Loving 

lacked remorse for his recent crimes. Private Forrest Kevin 

Brown, who was in pretrial confinement with Loving, testified 

that Loving told him that “he did the first -- did it the first 

time to see if he could get away with it, and then he did it 

because it was fun, and then he said something along the lines, 

‘Because love makes you do crazy things.’” Brown also testified 

that he heard Loving say, “if he had to do it over, the only 

difference is he wouldn’t get caught.” After Brown testified, 

the parties presented testimony from prison personnel as to 

whether Brown would have had occasion to speak alone with 

Loving. Defense counsel argued that Brown was not credible and 

that other evidence shows that Loving had shown remorse. 

 The military judge instructed the members that a death 

sentence may not be adjudged unless all the court members find 

beyond a reasonable doubt that one or more of the following 

aggravated circumstances existed: 

[1] the premeditated murder of Bobby Gene Sharbino 

was committed while the accused was engaged in the 

commission or the attempted commission of a robbery; 
Loving v. United States, No. 06-8006/AR 

19

[2] having been found guilty of the felony murder of 

Christopher Fay . . . the accused was the actual 

perpetrator of the killing; 

[3] having been found guilty of premeditated murder 

of Bobby Gene Sharbino, the accused was also found 

guilty of another violation of Article 118, [UCMJ], in 

the same case, and that’s referring to the murder of 

Christopher Fay. 

See Rule for Courts-Martial (R.C.M.) 1004(c). The members 

unanimously found beyond a reasonable doubt that all three of 

these aggravating factors were proven. 

The military judge also instructed the members that seven 

additional aggravating circumstances may be considered: 

[1] the Article 15’s received by the accused; 

[2] the testimony of Captain Bush that the accused is 

of average intelligence and has been counseled on 

occasions in an effort to make him a satisfactory duty 

performer and, in his opinion, has no rehabilitative 

potential; 

[3] the nature of the weapon used in the commission 

of the offenses and the fact that the accused fired 

the weapon during the course of each offense; 

[4] the fact that the accused killed his victims 

after they had fully cooperated with him and had given 

him their money; 

[5] the nature and extent of the injuries suffered by 

the victims; 

[6] the accused’s lack of any remorse;6

 [and] 

 . . . . 

[7] the testimony of Private Brown that the accused 

told Private Brown that the first killing was to see 

 

6

 The military judge instructed the members that whether the 

evidence established remorse or lack of remorse was for them to 

decide. 
Loving v. United States, No. 06-8006/AR 

20

if he could get away with it and, after that, it was 

for fun. 

2. Mitigation Evidence Presented at Trial

This is not a case where the record of trial was devoid of 

mitigation evidence at sentencing. The military judge 

instructed the members that they must consider the following 

nineteen circumstances in extenuation and mitigation: 

[1] The accused’s age; 

 

[2] The accused grew up in a low income urban area in 

Rochester, New York; 

[3] The accused grew up in a single parent household 

with seven other children; 

[4] Mr. Loving, Sr., the accused’s father, and his 

[e]ffect on the accused; 

[5] The accused was a nonregent student in a troubled 

school system who did not finish high school; 

 

[6] The accused was exposed to violence during his 

youth; 

 

[7] The accused favorably responded to positive 

leadership at several points in his life; 

 

[8] The accused has difficulty expressing and showing 

emotion; 

 

[9] Drug involvement in any of these offenses that 

was demonstrated though the evidence, if any; 

 

[10] During his early youth, the accused was a 

follower; 

 

[11] The accused’s boxing experiences; 

 

[12] The accused’s good duty performance under the 

guidance of strong leadership; 

 
Loving v. United States, No. 06-8006/AR 

21

[13] The accused has exhibited remorse for these 

offenses . . .;7

 

[14] The offenses were committed over a relatively 

short period of time; 

[15] The accused’s motives for these offenses; 

 

[16] The accused’s . . . adaptation to confinement; 

and, 

 

[17] The accused is precluded from pleading guilty to 

capital offenses by the [UCMJ] . . .; 

 

[18] [T]he duration of the accused’s pretrial 

confinement, which began on 13 December 1988; 

 

[19] The accused’s entitlements to wear certain 

medals and awards . . . . 

One of the mitigating factors emphasized by the defense was 

Loving’s motivation at the time he committed the offenses, which 

defense counsel attributed to his girlfriend’s influence over 

Loving. However, evidence of Loving’s family and social 

background was also prominent in the mitigation case. Defense 

counsel introduced the idea that Loving’s background would be an 

issue in mitigation during his opening argument in findings, 

stating as follows: 

From an inter-city [sic] neighborhood, in Rochester, 

New York; a large, Northeastern city -- a larger, 

Northeastern city. The youngest of eight children. A 

father -- an alcoholic, with a rapsheet about four 

pages long. You’ll see this information about the 

kind of upbringing he had; the kind -- the lack of a 

strong, parental figure he had -- the need he had for 

that. The need he had for acceptance . . . . 

 

7

 The military judge again instructed the members that they would 

have to resolve the question of whether the evidence shows 

remorse or lack of remorse for themselves. See supra n.6. 
Loving v. United States, No. 06-8006/AR 

22

 During closing argument on findings, defense counsel 

stated: 

You’ve learned a little bit about him from his squad 

leader, Sergeant Key. You know where he’s from. A 

city in the northeast. You know a little bit about 

his family and his background. You know what sort of 

person he was. As -- when he was in the military you 

can pick up on some of the things you’ve heard 

already. He was a soldier who wasn’t socialized very 

well when he came in. He wasn’t mature and he wasn’t 

educated and he didn’t have the kind of background 

that would allow him to do well in the military and 

this cost him. . . . Now that tells you something 

that he didn’t have, when he came in the Army; a 

certain lack of background and training and how to 

deal with life. Go on down the road to that summer 

and fall of 1988 when he met Nadia Pessina. 

 

During the sentencing phase, defense counsel presented the 

testimony of a number of witnesses to address Loving’s family 

and social background. These included: Joe Loving Sr., 

Loving’s father; Lucille Williams, Loving’s mother; Ronald 

Loving, Loving’s brother; Wendolyn Black, Loving’s sister; Lord 

Johnson, Loving’s childhood boxing coach; and Detective Verna of 

the Rochester police department. Stipulated testimony was 

submitted from Harryl Loving, Loving’s brother, and Kenneth 

Wilson, Loving’s childhood teacher. The arrest records of 

Loving’s father, the arrest record of a childhood friend, and 

Loving’s school records were also admitted into evidence.8

 

 

8

 In support of other mitigating factors, defense presented 

testimony from two prison guards, a prison counselor, and his 

first line supervisor. 
Loving v. United States, No. 06-8006/AR 

23

The mitigation evidence showed that Loving was the youngest 

of Lucille Williams’s eight children and his early years were 

spent in a violent neighborhood in a dangerous section of 

Rochester, New York. As to Loving’s home life, there was 

evidence that Loving’s father was a heavy drinker, who would 

come in and out of his children’s lives. Loving’s father was 

physically abusive towards Loving’s mother, which regularly 

resulted in police intervention and medical attention. Ms. 

Williams told her children not to get involved in the fights 

unless they saw him killing her. Loving’s oldest sibling, 

Wendolyn, acknowledged one incident where she had to “try to 

pull him off” her mother. 

Ms. Williams worked nights at Rochester Psychiatric Center 

and suffered from narcolepsy, a sleeping disorder that 

eventually required her to quit work. Wendolyn testified that 

she cooked and cleaned and babysat to help out around the house. 

According to Wendolyn, her mother kept a clean house. As to 

discipline, Wendolyn indicated that she and her siblings 

respected their mother and were disciplined only when they 

needed it. Wendolyn stated, “She’d beat us . . . she might whip 

us with the belt or . . . hit at us with her hand.” Joe Loving 

Sr., testified that he “spanked [the children] when they did 

something real bad. . . . to make them cry . . . it would hurt a 

little bit, but I wouldn’t just beat ‘em up.” 
Loving v. United States, No. 06-8006/AR 

24

Lord Johnson, who coached Loving and his brothers in boxing 

and knew the family over many years, testified that Ms. Williams 

was a single mother on welfare. He agreed that she was “a good 

woman” and indicated that the children had food and clothes and 

were “always clean when you see them.” He stated that the 

children had some parental guidance in the home but “needed a 

little bit more.” 

The testimony of Loving’s mother, his brother Harryl, his 

brother Ronald, and Lord Johnson shows that of all his siblings, 

Loving was closest to Ronald, who was five years older than 

Loving. Harryl testified that when Loving was with Ronald, 

“they were involved in getting high and playing basketball.” 

According to Loving’s mother, Ronald “turned to the streets,” 

got into trouble, and spent some time in jail. Harryl described 

Ronald as a “street fighter” and “a very active thief [who] had 

attacked a number of people.” When asked what it was like 

“being a kid in Rochester,” Ronald testified that it was “[a] 

jungle . . . You’ve got to survive.” He elaborated: 

It was just -- you had the Puerto Ricans and you had 

the blacks and you had the whites and Jamaicans. A 

lot of prejudice, you know, a lot of gangs. It was 

just rough. You had to wake up thinking like, you 

know, you had to fight sometimes to go to the store. 

We had family fights with people living next door to 

us . . . . 

He said: “[Y]ou either fight or you move -- move meaning out of 

Rochester.” When asked why such a choice existed, Ronald 
Loving v. United States, No. 06-8006/AR 

25

stated: “Well, it’s scary. They take you -- they take you out 

-- they’ll kill you. If they don’t kill you, they’ll wound you 

real bad.” Ronald said that he “fought every day.” He had been 

“stabbed,” “busted up side the head,” “jumped,” “hit by a car,” 

“shot at,” “cut,” and “tricked.” 

Several other witnesses addressed problems of drugs and 

gang violence that the Loving children were exposed to as they 

grew up in Rochester. Detective Verna stated that there are 

four “very, very rough neighborhoods” in Rochester and that a 

great number of assaults occur in the Rochester schools, which 

many people consider “armed camps.” He testified that the drug 

problem in Rochester is “pervasive.” According to Loving’s 

mother, “they’re fighting, they’re drinking, they’re stealing, 

they’re doing everything.” Harryl testified that “[t]here are 

neighborhoods where the violence is high, where the street gangs 

roam and where you can get into trouble, even if you’re not 

looking for it.” Harryl testified that his sister’s house was 

burned down by gang members and that his brother Darryl was 

jumped by gang members. Lord Johnson also discussed gangs in 

the Rochester neighborhoods, reiterating that Loving’s brother 

was beaten up by a gang, and indicating that a close friend of 

Loving’s from the boxing program who joined a gang was 

incarcerated for “tr[ying] to kill someone.” 
Loving v. United States, No. 06-8006/AR 

26

Other testimony from these family and background witnesses 

established that Loving lived in two different neighborhoods 

when he was growing up. The second was much cleaner and safer 

than the first. According to Harryl, “Oakbend was the worst. 

The house on Stunz was better. It was cleaner and had better 

neighbors. There were not as many fights, drug sellers, or 

criminal acts as there were on Oakbend Street.” Harryl, who was 

two years older than Loving, testified that the family moved to 

the better neighborhood when Harryl was in about eighth grade in 

1979. Harryl claimed that the second neighborhood was 

“relatively drug free when we were growing.” Harryl stated that 

he “stayed in the new neighborhood, but his brothers Ronald and 

Joe Junior used to go back to their friends in the old 

neighborhood.” 

The stipulated testimony of Kenneth Wilson, Loving’s school 

teacher, described Loving as moody and temperamental -- 

“feverish” -- which he said was typical of students who had a 

history of poor performance in academics and lived in the inner 

city. He testified that Loving appeared distracted and had to 

be closely monitored. He was transferred to a special school 

for students having problems with their regular high school. 

Ms. Williams stated that Loving never graduated. Loving’s 

father was not aware that he had transferred schools and 

believed that he “graduated every year.” School records showed 
Loving v. United States, No. 06-8006/AR 

27

that Loving was frequently absent from school and that he was 

suspended for fighting at school and for possession of a knife 

on school premises. According to Mr. Wilson, Loving’s parents 

never came to high school to ask about progress or problems. 

For about thirteen years prior to trial, Ms. Williams’s 

current husband, Mr. Williams, lived in her home. Ms. Williams 

testified that Mr. Williams “always done well by all of [the 

children], but they . . . resent him saying what he wanted to 

say.” Ronald Loving testified that he hated Mr. Williams. He 

described him as the “worstest [sic] man I’ve ever met in my 

life, and I’ve met some bad people.” 

The mitigation evidence related to Loving’s background 

predominantly focused on the difficulties Loving and his 

siblings faced in childhood. Some testimony from Lord Johnson, 

however, was positive. Mr. Johnson talked favorably about the 

facility where he ran the boxing program, the sense of direction 

that the boxing program offers the children, and Loving’s 

success at boxing. He spoke about the “beautiful relationship” 

that he had with Loving while Loving was training and competing 

in the boxing program. During closing on sentencing, defense 

counsel argued that this evidence showed that Loving could 

respond to positive leadership in his life and that he did 

“attempt to rise above his situation there and he did achieve 
Loving v. United States, No. 06-8006/AR 

28

some measure of success. But it may be a case of too little, 

too late in his development.” 

Defense counsel spent a fair portion of his closing 

argument calling the members’ attention to Loving’s troubled 

background. He urged the members to consider the “surroundings 

under which he grew up, especially from the ages of zero to ten, 

when he was on Oak Lawn -- or, Oakland,9 in that area, that’s 

been torn down, that’s being redone because what was there was 

not acceptable.” He urged the members to “[c]onsider what 

[e]ffect that had in shaping his development as he was growing 

up, forming his values, deciding how he makes judgements.” 

Defense counsel argued that Loving grew up in “environment 

filled with violence,” in an “urban, northeastern city, 

sometimes on the streets” in a broken home with “no real father 

to speak of.” Defense counsel reminded the members of Loving’s 

brothers’ testimony as to the violence they saw in their youth 

and the family’s interaction with gangs. 

Defense counsel also mentioned Loving’s mother’s illness 

and how as the youngest of eight children Loving received less 

of the guidance, love and care that was necessary. He argued 

that Loving’s siblings were not good role models, pointing to 

his brother Darryl, who had been attacked by a gang, and his 
Loving v. United States, No. 06-8006/AR 

29

brother Ronald, “the survivalist.” Defense counsel also 

discussed how the school environment failed to provide Loving 

with “the socialization skills for getting along with people 

later in life” and argued that Loving’s parents were not there 

to guide him through school when the system failed him. 

Defense counsel urged the members to decide against the 

death penalty because of Loving’s “values, his judgement, and 

his maturity or, more accurately, his immaturity.” Defense 

counsel argued: 

You know where he learned these things, he learned his 

values, you know he learned them from. He didn’t have 

a strong brother, he didn’t have a strong father, a 

mother with the time to provide him what he needed. 

His teachers didn’t help. . . . His background makes 

him less able to handle situations like he did back on 

the 11 and 12 December. Like they say, you can take 

the man off the streets, but can’t necessarily take 

the street . . . out of the man. 

 Acknowledging that Loving grew up in the inner city where 

there are gangs, drugs, and violence, that Loving’s brother 

participated in some of that violence, and that Loving’s father 

beat his mother, trial counsel responded that there was little 

testimony as to what the real effect of this was on Loving 

himself. He pointed out that Ms. Williams was a good woman who 

did everything she could, that his parents did not teach Loving 

that it was alright to commit crimes, that while his mother took 

 

9

 Defense counsel was referring to one of the first streets the 

Loving family lived on in Rochester, which was identified as 
Loving v. United States, No. 06-8006/AR 

30

a belt to the children when the kids deserved it, they were not 

abused children. He noted that Loving himself was not a street 

fighter like his brother Ronald and that Loving had 

opportunities through a special school and through the boxing 

program, both of which he gave up on. 

Of the nineteen mitigating circumstances that the military 

judge instructed the members they must consider, at least six 

related to the hardships from Loving’s background and 

environment, including: the “accused grew up in a low income 

urban area in Rochester, New York;” the “accused grew up in a 

single parent household with seven other children;” “Mr. Loving, 

Sr., the accused’s father, and his [e]ffect on the accused;” 

the “accused was a nonregent student in a troubled school system 

who did not finish high school;” the “accused was exposed to 

violence during his youth;” and “[d]uring his early youth, the 

accused was a follower.” 

3. Mitigating Evidence at the DuBay Hearing

In this case, the crux of our prejudice inquiry under 

Strickland is whether there is a reasonable probability that the 

mitigating evidence introduced at the DuBay hearing would have 

produced a different result had it been introduced at trial. 

See Wiggins, 539 U.S. at 537-38; see also Rompilla v. Beard, 545 

U.S. 374, 393 (2005). At the DuBay hearing, four witnesses 

 

either “Oakbend” or “Oakman” during the trial and the DuBay
Loving v. United States, No. 06-8006/AR 

31

provided testimony about Loving’s background: his sisters 

Wendolyn and Gwendolyn Black, his brother Harryl Loving, and his 

aunt, Alline Anderson. Wendolyn Black and Harryl Loving had 

testified at trial; the other two had not. The defense also 

presented the testimony of Ms. Janet Vogelsang, a social worker, 

along with Ms. Vogelsang’s written biopsychosocial assessment of 

Loving. The defense also submitted records from the New York 

State Department of Social Services documenting some of the 

services, assistance, and home visits provided to the family 

from 1967 to 1985, as well as some medical records related to 

Loving’s birth and pediatric care.10

 

hearing. 

10 We have also reviewed the testimony of the other witnesses who 

testified at the DuBay hearing, including the three trial 

defense counsel, a forensic psychiatrist who consulted with 

trial defense counsel, various capital litigation experts, an 

expert in psychopharmacology, acquaintances of Loving who were 

with him on the night of the murders, and a fellow 

servicemember. The testimony of these witnesses pertains to 

allegations of counsel’s deficient performance under the first 

prong of Strickland or to counsel’s alleged failure to present 

evidence in mitigation related to Loving’s intoxication and 

mental state at the time of the offenses. As our analysis of 

the prejudice prong of Strickland focuses on the mitigation 

evidence related to Loving’s family and social background, we do 

not recount this other testimony in detail here. See supra pp. 

12-13 and n.5. Similarly, we reviewed but do not recount in 

detail other documentary evidence presented at the DuBay hearing 

including but not limited to submissions regarding the standards 

of practice for capital defense attorneys, trial defense 

counsel’s notes, Loving’s possible drug use around the time of 

the murders, and medical records of Loving’s brothers, which 

were generated in February 1989, November and December 1991, and 

August and September 1992. 

 
Loving v. United States, No. 06-8006/AR 

32

The testimony of all four family members addressed Loving’s 

father’s drinking problem and his physical abuse toward their 

mother. A few specific incidents were described, including one 

where Wendolyn hit Joe Loving Sr., with a hammer to protect her 

mother and another where Joe Loving Sr., beat Lucille Williams 

“so bad he stripped her, just tore everything off, and left her 

in the street.” The testimony also gave specifics as to 

violence between the Loving family and their neighbors on 

Oakbend Street. Wendolyn testified that her family would get 

into fist-fights with the neighbors and her uncle once brought 

out a gun. Gwendolyn testified that she was hit in the head 

 

In addition, affidavits from Gwendolyn and Wendolyn Black, 

Ronald and Harryl Loving, and Lucille Williams, which were 

signed in 1993, were submitted as part of the habeas 

proceedings. These affidavits had previously been filed with 

this court and we instructed the DuBay judge to evaluate the 

credibility and reliability of the factual information contained 

in the affidavits. Loving, 64 M.J. at 152. Noting that the 

affidavits of Harryl Loving, Wendolyn Black, and Gwendolyn Black 

“were drafted by an unknown third party and presented to each 

individual for signature, not read (or not read thoroughly) by 

the individual prior to signing, and contained inaccurate or 

false information,” the DuBay judge found the information in 

these three affidavits was not reliable. As to the affidavits 

of Lucille Williams and Ronald Loving, who did not testify at 

the DuBay hearing, the DuBay judge indicated that he was not 

able to judge their credibility and found that the information 

contained in those two affidavits was credible to the extent 

that it was consistent with their testimony at trial or 

otherwise corroborated by the testimony of the DuBay witnesses. 

We review the DuBay judge’s credibility determinations for clear 

error and find none. See United States v. Brownfield, 52 M.J. 

40, 44 (C.A.A.F. 1999). As such, while we have reviewed the 

affidavits, we find it appropriate to focus our discussion on 

the background information provided through live testimony and 

other documentary evidence. 
Loving v. United States, No. 06-8006/AR 

33

with a bat and her brother Joe was hit with a bed rail. She 

recalled hearing about an incident when “molly [sic] cocktails” 

were thrown through the windows of the family home. Ms. 

Anderson described a night when bullets started coming through 

the windows and they all had to duck to the floor. 

Gang violence was also addressed in the DuBay testimony. 

Wendolyn believed that Loving was staying with his sister at the 

time her house was burned down by a gang and Gwendolyn believed 

the act was in retaliation for Loving’s “beating them up.” 

Wendolyn recalled that Loving was having problems with gangs, 

who “jumped on his friend.” She also testified that a gang 

“jumped on [her brother Darryl] and beat him senseless.” 

Loving’s siblings addressed questions as to whether the 

children suffered any physical harm from the disciplinary 

actions of their parents or siblings while growing up. Harryl 

and Gwendolyn indicated that Joe Loving Sr., would use a leather 

belt to whip the boys’ bare skin. When asked what prompted such 

punishment, Harryl stated that “it’s hard to remember a lot of 

the bad things that we did as kids.” Harryl remembered one 

incident when his mother spanked the children with a stitching 

cord after they skipped school and went to a shopping center 

where they started stealing. Gwendolyn testified her mother 

would discipline them with a belt, switch or extension cord. 
Loving v. United States, No. 06-8006/AR 

34

Wendolyn testified that while her mother was working 

nights, she and her sister Gwendolyn would take care of the 

younger children. There were instances when Wendolyn would hit 

the other children, “knock ‘em up-side the head or something” 

with her hand. Gwendolyn testified that she and Wendolyn would 

teach the boys to fight each other and if they did not want to 

fight, they would hit them to get them to fight. Harryl denied 

any recollection of Wendolyn abusing him. At one point, Harryl 

described his sibling relationship as follows: “when we were 

real young, we all hung together. We played together. We 

played kickball. We played football. We played basketball. We 

played baseball. We played volleyball. We played dodge ball. . 

. . [W]hen we were on Oakman Street, we all played together.” 

Each of the three siblings testified as to the drinking and 

drug habits of the children growing up. There was consensus 

that all the children drank. Drug use also seemed prevalent 

among the children, although some appeared more involved with 

drugs than others. Although Gwendolyn denied it, there was 

testimony from the other siblings that she sold drugs and Ronald 

and Joe Jr., worked for her while they were teenagers. Harryl 

testified that Ronald supplied Loving with alcohol and 

marijuana. Gwendolyn testified that she saw Loving smoke 

marijuana and drink Wild Irish Rose when he was fourteen years 

old. 
Loving v. United States, No. 06-8006/AR 

35

The family witnesses offered other details about the Loving 

family’s background. Ms. Anderson discussed tragedies that 

occurred in Ms. Williams’s life before she lived with Joe Loving 

Sr. There was also testimony as to Ms. Williams’s belief in 

“roots,” which was described as “voodoo” that caused bad things 

to happen to people. Ms. Anderson testified that Ms. Williams 

kept “clean homes” but there were big rats in the house. There 

was testimony that the family “struggled badly” and there “were 

times we ate beans with no bread, no meat. There were times we 

ate bread, no meat, no vegetable, or anything -- no lettuce, no 

nothing; just mayonnaise and tomato sandwiches, banana 

sandwiches. So we struggled -- wearing brother’s and sister’s 

hand-me-downs.” 

As to additional details revealed during the DuBay hearing, 

Wendolyn testified that Joe Loving Sr., sexually abused her when 

she was twelve years old. Gwendolyn moved out when she got 

pregnant at the age of thirteen. Mr. Williams, who eventually 

married Loving’s mother, was described as an alcoholic, who 

constantly drank and cursed. He used to say things to the 

children like “‘[t]he more education you have the stupider you 

are,’ ‘You’re never going to amount to anything,’ ‘You don’t 

have anything, you’re not going to get anything.’” 

The records from the Department of Social Services document 

some of Ms. Williams’s struggles in supporting her family as a 
Loving v. United States, No. 06-8006/AR 

36

single mother. The records show that they moved frequently due 

to poor housing conditions before moving to Oakbend Street. 

Various entries describe Ms. Williams in such terms as “hard 

worker,” “a strict disciplinarian [and] at times rather harsh,” 

“full control at home -- good disciplinarian,” “fiery temper.” 

Loving’s brief cites to the social worker’s documentation of an 

instance when Ms. Williams was hospitalized and it was reported 

that one of the boys was not dressed adequately, that the house 

was very messy, that the children were not being sufficiently 

cared for, and that Ms. Williams objected to the assignment of a 

homemaker. By contrast, a follow-up entry after Ms. Williams 

returned home from the hospital reflects that Ms. Williams is a 

“wonderful mother and has no problem managing 8 children. The 

children are very well behaved and all follow their mother’s 

guidance. They each have assigned tasks to do at home and the 

household is run very smoothly.” 

As part of the habeas proceedings, Ms. Vogelsang, a 

clinical social worker, performed a biopsychosocial assessment 

of Loving. During the DuBay hearing, Ms. Vogelsang testified 

that the most significant dynamic in Loving’s family, which has 

spanned over generations, is a pattern of over reactive behavior 

to violent behavior in the face of loss, abandonment, or 

rejection. Ms. Vogelsang testified that these behaviors 

occurred “within a context of family violence, community 
Loving v. United States, No. 06-8006/AR 

37

violence, abuse, alcohol and drug use, neglect, and a lack of 

intervention on a long term or consistent basis especially 

during the developmental years.” Ms. Vogelsang identified a 

number of factors that when present in a child’s home lead to 

children who are unable to bounce back from adversity, and she 

opined that most of these factors were present in Loving’s 

home.11 

Ms. Vogelsang discussed her views as to the significance of 

certain difficulties in Loving’s childhood and addressed such 

issues as the traumatic social background of his parents, the 

nature of the violence between his parents, the troubling role 

his siblings played in his upbringing, his frequent moves among 

insufficient housing before the age of five, the incidents of 

violence brought against his home, and a pattern of drugs and 

alcohol in his family. Ms. Vogelsang also explained that when a 

child lives in a community where there is a constant fear of 

gang violence that at times has been realized against the child 

himself or a family member, “a child either has to isolate 

 

11 These factors include lack of guidance and mental health 

intervention, divorce and separation, multiple moves, abuse, 

abandonment, homelessness, a disabled family member, immigrant 

status, lack of role models, growing up witnessing violence, the 

lack of consistent care giving, an inability to trust, worry 

about violence in the home which affects learning in school, 

impaired cognitive functioning, inability to deal with 

aggressive feelings, repression of feelings, sense of 

helplessness, and poor problem solving skills. According to Ms. 

Vogelsang, all applied to Loving except immigrant status and 

possibly impaired cognitive learning. 
Loving v. United States, No. 06-8006/AR 

38

themselves and engage in all the behaviors that go along with 

that isolation, or they have to go out there and learn to 

survive on those streets along with the other kids.” She 

presented a model designed to explain the impact of 

“psychological battering” on children and provided examples from 

Loving’s life that exemplified the model. As to harsh physical 

discipline, Ms. Vogelsang explained that “[m]any in the mental 

health field believe that this has an impact on self worth, on 

self-esteem, that you’re not valued as a human being.” 

Ms. Vogelsang stated: 

There is an accumulation of factors over time that do 

build, and if there is not anything to compensate for 

that, if there are not any positive factors, if 

there’s not a degree of resilience, then those people 

tend to be at high risk as adults. They tend to have 

poor judgment and insight; they tend to make poor 

decisions. They start doing all of that as children 

and then it leads them into adulthood where they are 

doing the same things only now they’re bigger and, you 

know, less safe. 

 

Ultimately, in her written assessment, Ms. Vogelsang concluded: 

There was an accumulation of factors that over 

time resulted in the missocialization of Dwight 

Loving. Whatever potential he had, and he did have 

potential that was occasionally brought to light for 

brief periods, was not developed consistently enough 

to create the resilience he needed to resist the 

influence of his home and community during his 

developing years. Dwight succumbed to the patterns in 

his family and this is best illustrated by his 

inability to handle rejection and the self-medication 

of his pain with substances, both of which were 

prominent in the weeks and days prior to and during 

the crimes for which he stands convicted. 
Loving v. United States, No. 06-8006/AR 

39

4. Discussion 

The Supreme Court has repeatedly recognized that “evidence 

about the defendant’s background and character is relevant 

because of the belief, long held by this society, that 

defendants who commit criminal acts that are attributable to a 

disadvantaged background, or to emotional and mental problems, 

may be less culpable than defendants who have no such excuse.” 

Boyde v. California, 494 U.S. 370, 382 (1990) (citation, 

quotations marks, and emphasis omitted); see also Wiggins, 539 

U.S. at 535 (“Petitioner thus has the kind of troubled history 

we have declared relevant to assessing a defendant’s moral 

culpability.”). Without question, this case involves a 

defendant with a disadvantaged background. However, in contrast 

to cases like Rompilla, 545 U.S. at 378, Wiggins, 539 U.S. at 

515, and Williams v. Taylor, 529 U.S. 362, 369 (2000), which 

addressed defense counsel’s complete failure to inform the 

sentencing panel about the defendant’s difficult past, trial 

defense counsel in this case presented a mitigation case to the 

members that devoted a significant degree of attention to 

Loving’s troubled childhood. 

In making his case for prejudice, Loving characterizes the 

difference between the mitigation case presented at sentencing 

and the mitigation case presented at the DuBay hearing as 

“remarkable.” Loving argues that at the trial his defense 
Loving v. United States, No. 06-8006/AR 

40

counsel presented only a “superficial glance at the horrific 

reality of Dwight Loving’s life” and did not provide “a true 

picture of the horrors of his life.” He contends that the 

mitigation evidence presented at trial was “just general 

background information concerning the Loving family without any 

real focus on Dwight Loving” and that trial counsel highlighted 

this shortcoming during his argument to the members. Quoting 

Wiggins, 539 U.S. at 537, Loving argues that “[i]f the panel had 

heard the full extent of this ‘excruciating life history’ and 

its impact on his development and mental state ‘there is a 

reasonable probability that at least one juror would have struck 

a different balance.’” 

In a comparable context, the United States Court of Appeals 

for the Sixth Circuit articulated a framework that we find 

useful: “[T]o establish prejudice, the new evidence that a 

habeas petitioner presents must differ in a substantial way -- 

in strength and subject matter -- from the evidence actually 

presented at sentencing.” Hill v. Mitchell, 400 F.3d 308, 319 

(6th Cir. 2005); cf. Williams v. Allen, 542 F.3d 1326, 1342 

(11th Cir. 2008) (finding prejudice when the new mitigation 

evidence “paints a vastly different picture of [the defendant’s] 

background” than testimony presented at trial); Buckner v. Polk, 

453 F.3d 195, 207 (4th Cir. 2006) (concluding that there is no 

prejudice under Strickland when new evidence merely “rounds out 
Loving v. United States, No. 06-8006/AR 

41

the details of a personal history already presented to the 

jury”). In this case, the mitigation case presented at the 

DuBay hearing provided some new information and arguably did 

more than “round[] out the details” of Loving’s personal history 

by offering additional grim and graphic information about 

Loving’s disadvantaged upbringing. Buckner, 453 F.3d at 207. 

However, it did not ultimately change the sentencing profile 

presented by defense counsel at trial. We do not believe that 

the new evidence sufficiently differed in strength and subject 

matter from the information considered by the members at trial 

to establish prejudice in this case. 

As made clear by our description of the sentencing evidence 

above, the evidence presented at the trial showed that Loving 

was the youngest of eight children raised by a single mother on 

welfare in a dangerous section of the inner city. The members 

were informed that Loving’s mother had to stop working because 

of her narcolepsy, that she struggled financially, and that she 

suffered severe physical abuse at the hands of Loving’s 

alcoholic father in the presence of the children. The evidence 

showed that Loving’s childhood environment and family life were 

marked by alcoholism, drugs, family violence, neighborhood 

violence, school violence, and gang violence. 

The evidence adduced during the DuBay hearing emphasized 

Loving’s father’s drinking problem and provided specific 
Loving v. United States, No. 06-8006/AR 

42

examples of violence in Loving’s home and neighborhood. There 

is no doubt that the DuBay evidence added some detail about the 

violence the family witnessed and participated in, the financial 

struggles they endured, and the children’s exposure to drugs and 

alcohol, but it was largely cumulative of the type of 

information presented to the members at trial. The evidence 

adduced during the DuBay also emphasized that Ms. Williams was a 

harsh disciplinarian and punished the children by using a belt, 

switch, or extension cord. Again, this is largely cumulative of 

evidence presented at sentencing where Wendolyn Black testified 

that their mother “would beat” the children, “whip [them] with 

the belt,” or “hit [them] with her hand.”12 

We note that some new information came out of the DuBay

proceedings. The DuBay hearing revealed instances where the 

children mistreated each other and Loving points to one instance 

of neglect documented in the social service records when their 

mother was hospitalized and the children were without adequate 

adult supervision. While we do not diminish the troubling 

nature of these circumstances, we do not believe the evidence 

 

12 The DuBay evidence established that Loving’s father also 

disciplined the children by hitting them with a belt, which 

differed from the trial presentation where he testified only 

that he spanked the children so that it would “hurt a little 

bit.” However, the basic fact that the children endured harsh 

corporal punishment was consistent between the presentations, 

and the DuBay evidence does not raise allegations about physical 

abuse by Loving’s parents any more so than the sentencing 

evidence presented at trial. 
Loving v. United States, No. 06-8006/AR 

43

differs in kind or degree from circumstances as they were 

presented to the members. This is particularly so considering 

that the DuBay hearing offered some contrasting evidence on 

these particular points. Harryl Loving’s testimony during the 

DuBay described how the children played together when they were 

young and denied that his sister abused them. After following 

up on Ms. Williams’s return from the hospital the same social 

service records documenting the neglect characterize Loving’s 

mother as a “wonderful mother.” 

We recognize, moreover, that the DuBay hearing also touched 

on the history of violence and abuse in Lucille Williams’s 

upbringing, her belief in voodoo, Gwendolyn’s teenage pregnancy 

and Wendolyn’s sexual abuse, none of which were raised at the 

initial trial. Further, the DuBay hearing included testimony 

from a social worker explaining how Loving’s traumatic childhood 

negatively impacted his development. 

As to the new evidence, including the expert’s testimony 

about the impact that Loving’s tragic childhood had on his 

development, we simply do not find the additional information to 

be sufficiently compelling as to establish prejudice in this 

case, where the aggravating factors are overwhelming and where 

the members were presented with substantial information 

regarding Loving’s disadvantaged youth. Loving killed two cab 

drivers in separate instances by shooting them in the back of 
Loving v. United States, No. 06-8006/AR 

44

the head after each one complied with his demand for money. He 

tried to kill again but the third cab driver struggled the gun 

away from Loving as he was about to shoot him. The members 

found three required aggravating factors beyond a reasonable 

doubt and imposed the death penalty despite being instructed on 

nineteen mitigating factors by the military judge, including 

substantial evidence as to Loving’s disadvantaged background. 

Certainly the mitigation evidence presented at the DuBay

hearing reinforced and emphasized Loving’s traumatic childhood. 

It also provided some new details about the hardships he and his 

family endured as he was growing up and included expert 

testimony that he lacked the resilience to resist the influence 

of his home and community during his developing years and 

eventually succumbed to the patterns of his family life. 

However, the members were aware that Loving’s childhood 

environment and family life were scarred by alcoholism, drugs, 

family violence, neighborhood violence, school violence, and 

gang violence. And while we do not diminish the potential value 

of expert testimony in capital sentencing proceedings that 

addresses how a traumatic childhood could negatively impact a 

defendant’s development, the members in this case were at least 

exposed to this theory through defense counsel’s argument, which 

urged them to consider that Loving’s background made him less 

able to handle situations like those he confronted on the night 
Loving v. United States, No. 06-8006/AR 

45

of his crimes.13 We conclude that the new details as to these 

circumstances do not alter the sentencing profile in a material 

manner. 

Reweighing the aggravating evidence against the totality of 

mitigating evidence, we are convinced beyond a reasonable doubt 

that if the members had been able to place the additional 

evidence adduced during the habeas proceedings on the mitigating 

side of the scale, a reasonable probability that at least one 

member would have struck a different balance does not exist. We 

conclude that Loving has failed to meet his burden to establish 

prejudice under Strickland and deny the petition for 

extraordinary relief in the nature of a writ of habeas corpus. 

DECISION 

Loving’s petition for extraordinary relief in the nature of 

a writ of habeas corpus is denied. 

 

13 Defense counsel had been consulting with a forensic 

psychiatrist who was competent to assess the impact of Loving’s 

traumatic social background on his development and to advise 

defense counsel in this regard. This expert was able to inform 

defense counsel’s understanding of the social history nexus and 

to influence how defense counsel presented this information to 

the members. 
Loving v. United States, No. 06-8006/AR 

 EFFRON, Chief Judge (concurring): 

 I concur in the majority opinion. I write separately 

solely to note adherence to my previously expressed views in 

Loving v. Hart, 47 M.J. 438, 454-60 (C.A.A.F. 1998) (Effron, J., 

concurring in part and dissenting in part), regarding the 

distinct issues raised in that writ-appeal concerning the voting 

procedures during sentencing at petitioner’s court-martial. 
Loving v. United States, No. 06-8006/AR 

 STUCKY, Judge (concurring in part and in the result): 

 I have concerns similar to those raised by Judge Ryan 

regarding the appropriateness of applying to the review of this 

Court’s own previous decisions the same habeas standards, under 

28 U.S.C. § 2254 (2006), as federal courts apply in habeas 

reviews of state court decisions. Judge Ryan also makes an 

interesting point about our habeas corpus jurisdiction in cases 

in which direct appellate review has been completed. I write 

separately today, however, solely because I am convinced that 

the defense team’s performance was not deficient. I concur with 

the majority’s conclusion that, in any event, Loving failed to 

show that he was prejudiced by his counsel’s performance. 

I. Effective Assistance of Counsel 

A. The Law 

 “A military accused is entitled under the Constitution and 

Article 27(b), Uniform Code of Military Justice, (UCMJ), 10 

U.S.C. § 827(b) (2000), to the effective assistance of counsel.” 

Denedo v. United States, 66 M.J. 114, 127 (C.A.A.F. 2008). In 

reviewing claims of ineffective assistance of counsel, this 

Court employs the two-part standard of Strickland v. Washington, 

466 U.S. 668, 692-93 (1984). United States v. Gutierrez, 66 

M.J. 329, 330-31 (C.A.A.F. 2008). 

First, the defendant must show that counsel’s 

performance was deficient. This requires showing that 

counsel made errors so serious that counsel was not 
Loving v. United States, No. 06-8006/AR 

2

functioning as the “counsel” guaranteed the defendant 

by the Sixth Amendment. Second, the defendant must 

show that the deficient performance prejudiced the 

defense. This requires showing that counsel’s errors 

were so serious as to deprive the defendant of a fair 

trial, a trial whose result is reliable. 

Strickland, 466 U.S. at 687. These same standards apply to 

capital sentencing proceedings. Id. at 686 (Strickland itself 

was a capital sentencing case). 

 “This Court reviews factual findings under a clearly 

erroneous standard, but looks at the questions of deficient 

performance and prejudice de novo.” United States v. Gutierrez, 

66 M.J. 329, 330-31 (citing United States v. Paxton, 64 M.J. 

484, 488 (C.A.A.F. 2007)); United States v. Davis, 60 M.J. 469, 

473 (C.A.A.F. 2005). 

 The first part of the test requires an appellant to “show 

that counsel’s representation fell below an objective standard 

of reasonableness” “under prevailing professional norms.” 

Strickland, 466 U.S. at 688 (citations omitted). “[A] court 

deciding an actual ineffectiveness claim must judge the 

reasonableness of counsel’s challenged conduct on the facts of 

the particular case, viewed as of the time of counsel’s 

conduct.” Id. at 690. 

Judicial scrutiny of counsel’s performance must be 

highly deferential. . . . A fair assessment of 

attorney performance requires that every effort be 

made to eliminate the distorting effects of hindsight, 

to reconstruct the circumstances of counsel’s 

challenged conduct, and to evaluate the conduct from 
Loving v. United States, No. 06-8006/AR 

3

counsel’s perspective at the time. Because of the 

difficulties inherent in making the evaluation, a 

court must indulge a strong presumption that counsel’s 

conduct falls within the wide range of reasonable 

professional assistance; that is, the defendant must 

overcome the presumption that, under the 

circumstances, the challenged action “might be 

considered sound trial strategy.” 

Id. at 689 (citations omitted); United States v. Perez, 64 M.J. 

239, 243 (C.A.A.F. 2006). “[T]he court should recognize that 

counsel is strongly presumed to have rendered adequate 

assistance and made all significant decisions in the exercise of 

reasonable professional judgment.” Strickland, 466 U.S. at 690. 

As the Court of Appeals concluded, strategic choices 

made after thorough investigation of law and facts 

relevant to plausible options are virtually 

unchallengeable; and strategic choices made after less 

than complete investigation are reasonable precisely 

to the extent that reasonable professional judgments 

support the limitations on investigation. In other 

words, counsel has a duty to make reasonable 

investigations or to make a reasonable decision that 

makes particular investigations unnecessary. In any 

ineffectiveness case, a particular decision not to 

investigate must be directly assessed for 

reasonableness in all the circumstances, applying a 

heavy measure of deference to counsel’s judgments. 

Strickland, 466 U.S. at 690-91. 

B. Discussion 

 Appellant focuses his complaint of deficient performance on 

two aspects of the trial defense team’s conduct: (1) the 

failure to hire a mitigation specialist; and (2) the claim that 

a mitigation theory was initially formulated, and the subsequent 
Loving v. United States, No. 06-8006/AR 

4

investigation was restricted to its narrow confines. I find 

neither argument persuasive. 

(1) Failure to hire a mitigation specialist 

 Citing the 1989 American Bar Association Guidelines for the 

Appointment and Performance of Counsel in Death Penalty Cases 

(ABA Guidelines), Appellant asserts that the “prevailing 

professional norms” at the time required the defense team to 

secure the assistance of experts who could assist in the 

investigation and presentation of mitigating evidence. ABA 

Guideline 11.4.1.D.7(D) provides that “[c]ounsel should secure 

the assistance of experts where it is necessary or appropriate 

for . . . presentation of mitigation.” There is no requirement, 

even today, that a mitigation specialist be hired in every death 

penalty case. 

 Despite a gradually emerging practice of hiring a social 

worker or other mitigation specialist, the prevailing norm at 

the time of Appellant’s trial was for the defense team to 

conduct a reasonable, independent investigation into the 

accused’s family and background in an effort to discover 

mitigating evidence. 

While use of an analysis prepared by an independent 

mitigation expert is often useful, we decline to hold 

that such an expert is required. What is required is 

a reasonable investigation and competent presentation 

of mitigation evidence. 
Loving v. United States, No. 06-8006/AR 

5

United States v. Loving, 41 M.J. 213, 250 (C.M.A. 1994). As the 

DuBay hearing1 judge concluded, there was certainly no consensus 

as to the need for mitigation specialists in 1989. 

 Appellant was sentenced to death on April 3, 1989, and the 

ABA did not adopt the Guidelines until its February 1989 Midyear 

Meeting, while the defense team was litigating Appellant’s case. 

The ABA specifically noted in the introduction to the Guidelines 

that (1) “[w]hile some local standards may exist for capital 

representation, national guidelines on the assignment and 

performance of counsel in capital cases did not exist prior to 

these Guidelines,” and (2) the ABA House of Delegates’ 

resolution approving the Guidelines specifically provided “for 

such exceptions to the Guidelines as may be appropriate in the 

military.” Although we have found the Guidelines “instructive,” 

this Court has “expressly declined to mandate that military 

defense counsel meet” those guidelines. United States v. 

Murphy, 50 M.J. 4, 9 (C.A.A.F. 1998) (concerning the appointment 

of death penalty qualified attorneys) (citing Loving, 41 M.J. at 

300). 

 Appellant further argues that, contrary to the Supreme 

Court’s holdings in Wiggins v. Smith, 539 U.S. 510 (2003), 

Williams v. Taylor, 529 U.S. 362 (2000), and Strickland, the 

defense team formulated its theory of the sentencing case before 

 

1

 United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). 
Loving v. United States, No. 06-8006/AR 

6

they fully investigated, restricted the rest of the 

investigation to facts supporting that theory, and thus failed 

to discover important mitigating evidence. In Wiggins and 

Strickland, the trial defense counsel attempted “to justify 

their limited investigation as reflecting a tactical judgment 

not to present mitigating evidence at sentencing and to pursue 

an alternative strategy instead.” Wiggins, 539 U.S. at 521 

(referring to Strickland, 466 U.S. at 673). In Williams, the 

Supreme Court found the “ineffectiveness claim meritorious” 

because “counsel’s failure to uncover and present voluminous 

mitigating evidence at sentencing could not be justified as a 

tactical decision to focus on Williams’ voluntary confessions, 

because counsel had not ‘fulfilled their obligation to conduct a 

thorough investigation of the defendant’s background.’” Id. at 

522 (quoting Williams, 529 U.S. at 396). 

 Appellant’s defense team did form a tentative sentencing 

theory shortly after being assigned to the case, and Appellant 

is correct in asserting that now, years after he was sentenced 

to death, his family has come forward with some mitigating 

evidence. But the defense team at the time acquired all of the 

relevant school, medical, mental health, and military records. 

They interviewed Appellant extensively, visited his hometown, 

spoke to family, friends, teachers, law enforcement officials, 

and the community center boxing coach. They learned much about 
Loving v. United States, No. 06-8006/AR 

7

Appellant, his background, his family, and the community from 

which he entered military service, and were fully able to 

present that evidence to the court-martial. They also obtained 

the services of a forensic psychiatrist who had a law degree. 

The forensic psychiatrist reviewed all the records, including 

the sanity board and statements, spoke with the witnesses and at 

least one member of the sanity board, and examined Appellant. 

 Ultimately, the defense team decided not to have the 

forensic psychiatrist testify because they feared it would cause 

the military judge to release the full contents of the sanity 

board to the prosecution, revealing that Appellant had 

“sociopathic tendencies.” This is precisely the kind of 

tactical decision that, under Strickland, we will not secondguess. 466 U.S. at 689; United States v. Perez, 64 M.J. at 243; 

United States v. Anderson, 55 M.J. 198, 202 (C.A.A.F. 2001). 

 In Wiggins and Williams (529 U.S. at 396), the defense 

teams abandoned their investigations prematurely because of the 

constraints of their tentative theories of their cases. 

Appellant’s defense team, on the other hand, did everything that 

the counsel in those cases failed to do. The scope of their 

investigation was reasonable under the prevailing professional 

norms “as seen ‘from counsel’s perspective at the time.’” 

Wiggins, 539 U.S. at 523 (quoting Strickland, 466 U.S. at 689). 

Their performance did not fall “below an objective standard of 
Loving v. United States, No. 06-8006/AR 

8

reasonableness.” Strickland, 466 U.S. at 688. They were, 

therefore, not ineffective. 
Loving v. United States, 06-8006/AR 

RYAN, J., (dissenting): 

I. Introduction 

Direct judicial review of this case was completed in 1996 

upon affirmation of Petitioner Loving’s conviction by both this 

Court and the Supreme Court. United States v. Loving (Loving 

I), 41 M.J. 213 (C.A.A.F. 1994); Loving v. United States (Loving 

II), 517 U.S. 748 (1996). In 2005, this Court considered and 

rejected Loving’s petition for a writ of error coram nobis, but 

suggested that it could and would entertain a petition for a 

writ of habeas corpus. Loving v. United States (Loving III), 62 

M.J. 235, 256 (C.A.A.F. 2005). In 2006, the Court entertained 

the present petition and ordered an evidentiary hearing.1 Loving 

 

1

 The Court ordered that Loving’s case be returned directly to 

this Court following the evidentiary hearing, rather than first 

allowing the appropriate convening authority and court of 

criminal appeals (CCA) to review the military judge’s factual 

findings. Loving IV, 64 M.J. at 152-53. The Court did so 

without considering how such makeshift collateral review of 

final cases would impact procedural mechanisms we have already 

made up. By commanding that the case be returned directly to 

this Court, the Court disturbed the multi-step review of the 

records of courts-martial provided by the Uniform Code of 

Military Justice (UCMJ), see generally Articles 60, 66, 67, 

UCMJ, 10 U.S.C. §§ 860, 866, 867 (2006) (establishing the 

various steps for review of courts-martial), that our practice 

of remanding for “DuBay hearings” seeks to emulate. See

generally United States v. DuBay, 17 C.M.A. 147, 149, 37 C.M.R. 

411, 413 (C.M.A. 1967) (setting forth the procedure for 

developing new factual matters after trial, to include a 

convening authority referring the case to a court-martial for an 

evidentiary hearing to enter findings of fact and conclusions of 

law on the record for further review by the convening authority 

and, if necessary, by the appropriate CCA and CAAF). This 

judicially crafted DuBay procedure at least creates the legal 
Loving v. United States, 06-8006/AR 

2 

v. United States (Loving IV), 64 M.J. 132, 132 (C.A.A.F. 2006). 

The majority now rules on the merits of this petition, and 

determines that it should be denied. Loving v. United States

(Loving V), __ M.J. __ (2-3) (C.A.A.F. 2009). To reach this 

conclusion, the majority entertains a habeas corpus petition for 

a case in which direct review is complete. This Court lacks 

jurisdiction to hear such a petition. Rather, jurisdiction 

falls squarely within the authority of Article III courts, both 

by statute and historic practice. I would dismiss the petition 

for lack of jurisdiction and, therefore, respectfully dissent. 

II. The Jurisdiction Fiction: Loving III

The assumption of jurisdiction made by this Court in 2005 

and echoed today was not based on any statute authorizing us to 

conduct habeas review of a case in which direct review has been 

completed. And it was made despite clear statutory jurisdiction 

over such cases by Article III courts. The labyrinthine 

reasoning that underlies the 2005 conclusion that this Court had 

jurisdiction is unsustainable. See infra 12-17. 

To the extent review of a case in which direct review is 

 

fiction that we are only reviewing facts in “the record,” by 

having the new facts reviewed by the convening authority and 

CCA. See Denedo v. United States, 66 M.J. 114, 136 (C.A.A.F. 

2008) (Ryan, J., dissenting) (noting the “unwieldy and imperfect 

system” created by DuBay to enable additional factfinding). In 

this case the facts considered are not properly in “the record” 

-- we do not have, because we bypassed it, the benefit of review 

of the military judge’s factual findings by either the convening 

authority or the Army Court of Criminal Appeals. 
Loving v. United States, 06-8006/AR 

3 

complete may be undertaken by this Court at all, the Supreme 

Court’s recent decision in United States v. Denedo clarifies 

that such jurisdiction rests on the nature of the writ in 

question; it must constitute “direct review” of the original 

case under Article 67, UCMJ, and not rely on a general notion of 

continuing jurisdiction over cases where we once had 

jurisdiction. 129 S. Ct. 2213 (2009). Compare id. at 2221 

(distinguishing jurisdiction over a coram nobis petition -- “a 

belated extension of the original proceeding,” dependent 

entirely upon whether there was jurisdiction over the original 

proceeding under Articles 66 and 67, UCMJ -- and a habeas corpus 

petition, “‘a separate civil proceeding’” (quoting United States 

v. Morgan, 346 U.S. 502, 505 n.4 (1954)); with Loving III, 62 

M.J. at 250 (“Congress gave this Court the authority to conduct 

a mandatory review of death penalty cases. Under this 

authority, this Court remains the primary judicial body with 

jurisdiction over Petitioner's case, and this Court has 

authority to reexamine its prior decision in this case.”). Even 

if the relevant statutes and historic practice did not clearly 

establish that Article III courts, and not this Court, have 

jurisdiction over this habeas petition, Denedo compels that 

conclusion. See infra pp. 12-13. 
Loving v. United States, 06-8006/AR 

4 

A. This Court Has No Jurisdiction Over This Habeas 

Petition Under Article 67, UCMJ 

This Court’s jurisdiction is strictly defined by Congress 

in Article 67, UCMJ. See Christianson v. Colt Indus. Operating 

Corp., 486 U.S. 800, 818 (1988) (“‘Courts created by statute can 

have no jurisdiction but such as the statute confers.’” (quoting 

Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850))). Although 

created to oversee the military justice system, this Court is 

limited in both the types of cases it may review and the extent 

to which it may review them. See Article 67(c), UCMJ (“[T]he 

Court of Appeals for the Armed Forces may act only with respect 

to the findings and sentence as approved by the convening 

authority and as affirmed or set aside as incorrect in law by 

the Court of Criminal Appeals.”); Denedo, 129 S. Ct. at 2223 

(emphasizing that C.A.A.F.’s jurisdiction is limited by Article 

67, UCMJ); Clinton v. Goldsmith, 526 U.S. 529, 535-37 (1999) 

(C.A.A.F.’s “jurisdiction is narrowly circumscribed. . . . [It] 

is accorded jurisdiction by statute (so far as it concerns us 

here) to ‘review the record in [specified] cases reviewed by’ 

the [CCAs] . . . . [T]he CAAF spoke too expansively when it 

held itself to be ‘empowered by the All Writs Act to grant 

extraordinary relief in a case in which the court-martial 

rendered a sentence that constituted an adequate basis for 

direct review . . . .” (citations omitted)). 
Loving v. United States, 06-8006/AR 

5 

 Following direct review by this Court, an accused may 

petition the Supreme Court for review. Article 67a, UCMJ, 10 

U.S.C. § 867a (2006). After the Supreme Court has acted on that 

petition, the “judgment as to the legality of the proceedings is 

final,” ending direct judicial review. Article 71(c), UCMJ, 10 

U.S.C. § 871 (2006); accord Rule for Courts-Martial (R.C.M.) 

1209(a). The Supreme Court’s affirmation of Loving’s conviction 

in 1996 marked the end of direct judicial review in this case. 

See Article 71(c), UCMJ; Loving IV, 64 M.J. at 137. 

After direct judicial review is complete in a capital case, 

the military justice system provides three possible extrajudicial remedies that stand between an accused and the 

carrying-out of his sentence: a successful petition to the 

Judge Advocate General for a new trial under Article 73, UCMJ, 

10 U.S.C. § 873 (2006); action taken by a service secretary 

under Article 74, UCMJ, 10 U.S.C. § 874 (2006); and presidential 

approval or commutation of the capital sentence under Article 

71(a), UCMJ. While the availability of these extra-judicial 

remedies may impact the res judicata effect of judgments under 

Article 76, UCMJ, 10 U.S.C. § 876 (2006), it does not change the 

fact that direct judicial review is complete. 

 In contrast with the direct judicial review authorized and 

dictated under Articles 66 and 67, UCMJ, and R.C.M. 1201-1205 

and 1209, no statutory authority, guidance, or process for 
Loving v. United States, 06-8006/AR 

6 

collateral review by this Court exists once direct review has 

been completed.2

 See Noyd v. Bond, 395 U.S. 683, 695 n.7 (1969) 

(distinguishing between this Court’s power to issue a writ of 

habeas corpus in cases “like the present one [a case pending 

direct review], which may ultimately be reviewed by [the] Court” 

and “a case which the [Court] is not authorized to review under 

the governing statutes”);3 Burns v. Wilson, 346 U.S. 137, 141 

 

2

 Nor does practice within the military justice system reflect a 

different understanding. Since the current military justice 

system was created under the UCMJ in 1951, there have been 

twelve executions and fourteen death sentences that were 

affirmed on direct review but commuted by the President. Dwight 

H. Sullivan, “Executive Branch Consideration of Military Death 

Sentences,” Evolving Military Justice 137 (Eugene R. Fidell & 

Dwight H. Sullivan eds., 2002). In no capital case other than 

this one has a writ of habeas corpus been sought in any court 

before the President approved the sentence. (For cases in which 

a habeas petition was filed after presidential approval of the 

death sentence, see, for example, Thomas v. Davis, 249 F.2d 232 

(10th Cir. 1957); Day v. Wilson, 247 F.2d 60 (D.C. Cir. 1957); 

and Suttles v. Davis, 215 F.2d 760 (10th Cir. 1954).) And no 

military prisoner with a capital sentence -- including one 

prisoner currently facing a presidentially approved capital 

sentence -- has ever requested a writ of habeas corpus from this 

Court after direct review was completed, even after the 

President acted. See Petitioner’s Response to Motion for 

Reconsideration, To Lift Stay of Execution and Request for Oral 

Argument at 5, Gray v. Gray, No. 08-3289-RDR (D. Kan. Dec. 2, 

2008) (“Private Gray is seeking federal habeas court review for 

the first time and he has not delayed commencing this action. 

In fact, until the President approved his death sentence, there 

was no action available.”). 

3

 The latter part of this quotation is neither cited nor 

addressed by the majority. And with respect to the part of the 

quotation that is cited, the majority fails to explain how, 

where direct review is completed, the fact that the President 

has not yet acted pursuant to Article 71(a), UCMJ, transforms 

this case into one where further review by this Court is 

authorized. No review of presidential action under Article 
Loving v. United States, 06-8006/AR 

7 

(1953) (plurality opinion) (recognizing a petition for a new 

trial as the only mechanism within the military justice system, 

apart from ordinary appellate review, to collaterally attack a 

judgment); United States v. Murphy, 50 M.J. 4, 5-6 (C.A.A.F. 

1998) (recognizing the absence of rules or procedures for postconviction collateral attacks in the military justice system and 

thus reviewing an ineffective-assistance-of-counsel claim on 

direct review); Witham v. United States, 355 F.3d 501, 505 (6th 

Cir. 2004) (“[N]either the [UCMJ] nor the Manual for CourtsMartial provides for collateral review within the military 

courts.”); Gilliam v. Bureau of Prisons, 2000 U.S. App. LEXIS 

3684, at *4, 2000 WL 268491, at *2 (8th Cir. Mar. 10, 2000) 

(“‘Unlike the practice in the United States Circuit Courts of 

Appeal and District Courts, neither the UCMJ . . . nor the 

Manual for Courts-Martial . . . provides procedures for 

collateral, post-conviction attacks on guilty verdicts.’” 

(quoting Murphy, 50 M.J. at 5)). 

B. Article III Courts Have Jurisdiction 

Over This Habeas Petition 

 Article III courts, though, have clear statutory 

jurisdiction and authority to collaterally review convictions by 

petitioners held in custody when constitutional error is 

 

71(a), UCMJ, is provided for or authorized by any statute. 

Other than by ipse dixit, this case is not one that “may 

ultimately be reviewed by” this Court. Noyd, 395 U.S. at 695 

n.7. 
Loving v. United States, 06-8006/AR 

8 

alleged. See 28 U.S.C. § 1331 (2006) (providing Article III 

district courts with original jurisdiction over federal 

questions); id. § 2241(a) (“Writs of habeas corpus may be 

granted by the Supreme Court, any justice thereof, the district 

courts and any circuit judge within their respective 

jurisdictions.”); id. § 2241(c)(3) (extending writ of habeas 

corpus to prisoners “in custody in violation of the Constitution 

or laws or treaties of the United States”); Denedo, 129 S. Ct. 

at 2226 n.1 (Roberts, C.J., dissenting) (recognizing that courtmartial convictions may be collaterally attacked in an Article 

III court, which has jurisdiction under §§ 1331 and 2241); 

Goldsmith, 526 U.S. at 537 n.11 (1999) (“[O]nce a criminal 

conviction has been finally reviewed within the military system, 

. . . [a servicemember] is entitled to bring a habeas corpus 

petition, see 28 U.S.C. § 2241(c), claiming that his conviction 

is affected by a fundamental defect that requires that it be set 

aside.”); Burns, 346 U.S. at 139 (plurality opinion) 

(recognizing that the federal civil courts have jurisdiction 

over habeas corpus petitions and that “[b]y statute Congress has 

charged them with the exercise of that power” (citing § 2241; In 

re Yamashita, 327 U.S. 1, 8 (1946)). 

And while the statutes are already clear regarding the 

court system to which a habeas corpus petition should be 

addressed after direct review is complete, it is further 
Loving v. United States, 06-8006/AR 

9 

instructive that Article III courts have been collaterally 

reviewing court-martial convictions where direct review has been 

completed since at least the mid-1800s. See Ex parte Reed, 100 

U.S. 13, 19-23 (1879) (entertaining a habeas corpus petition 

alleging that a military court-martial lacked jurisdiction over 

the petitioner). Since that time, debate has focused not on to 

whom the writ should be addressed, but rather on the appropriate 

procedures, claims, and standards of review for collaterally 

attacking court-martial convictions in federal court. See, 

e.g., Gusik v. Schilder, 340 U.S. 128, 131 (1950) (requiring 

exhaustion of military remedies before allowing collateral 

review in federal courts); Burns, 346 U.S. at 142 (plurality 

opinion) (recognizing collateral review of constitutional claims 

that have not been “fully and fairly” considered by the military 

justice system); Schlesinger v. Councilman, 420 U.S. 738, 749-53 

(1975) (holding that Article 76, UCMJ, does not affect the 

jurisdiction of Article III courts or insulate military 

convictions from collateral review in federal court). By 

comparison, only since the mid-1960s has this Court in any way 

asserted the power of collateral review over final convictions. 

See United States v. Frischholz, 16 C.M.A. 150, 152-53, 36 

C.M.R. 306, 308-09 (1966) (holding that the All Writs Act 

empowers this Court to issue a post-conviction writ of coram 

nobis). 
Loving v. United States, 06-8006/AR 

10 

C. The All Writs Act Cannot And Does Not Give 

This Court Jurisdiction Where None 

Exists Under Article 67, UCMJ 

 Despite the absence of express statutory jurisdiction to 

entertain a habeas corpus petition, this Court in 2005 found 

that it had such authority under the All Writs Act, 28 U.S.C. § 

1651, based on our prior direct review jurisdiction under 

Article 67, UCMJ. Loving III, 62 M.J. at 245-46, 250; cf.

Loving V, __ M.J. __ (7) (asserting that cases pending 

presidential action remain subject to extraordinary writ 

consideration by this Court). To do so, the Court distinguished 

Goldsmith, where the Supreme Court held that this Court erred by 

directing the Air Force not to drop a servicemember from its 

rolls (an administrative action), stating this Court was “not 

given authority, by the All Writs Act or otherwise, to oversee 

all matters arguably related to military justice.” 526 U.S. at 

536. The Loving III Court found Goldsmith inapplicable because 

unlike that case, it reasoned, Loving III involved a finding and 

sentence imposed by a court-martial that was not final under 

Article 76, UCMJ, such that the extraordinary relief requested 

would be in aid of the Court’s direct review jurisdiction under 

Article 67, UCMJ. Loving III, 62 M.J. at 246. 

But Article 76, UCMJ, does not change the fact that direct 

review is complete. Article 76, UCMJ, codifies the common-law 

principle of finality of judgments; it neither expands nor 
Loving v. United States, 06-8006/AR 

11 

contracts the subject-matter jurisdiction of either this Court, 

Denedo, 129 S. Ct. at 2221, 2223 (emphasizing that the principle 

that Congress decides federal courts’ jurisdiction “applies with 

added force to Article I tribunals” and noting that Article 76, 

UCMJ, sets out a rule of finality rather than a jurisdictional 

bar), or Article III courts, Councilman, 420 U.S. at 749. See

also Loving III, 62 M.J. at 247 (recognizing that the 

President’s approval or commutation of the death sentence “is 

not part of the direct judicial review of the case”). 

Even more curiously, the Loving III Court explicitly 

recognized that it was empowered to act by neither the general 

federal habeas statute, § 2241, nor by any other congressionally 

enacted habeas corpus statute. 62 M.J. at 255 (noting that the 

plain language of §§ 2241 and 2255 did not include this Court). 

The Court nonetheless went on to determine that the All Writs 

Act -- a residual source of writ authority in aid of existing 

jurisdiction -- authorized it to issue the writ in aid of its 

former direct review jurisdiction. Id. at 256. See generally

Article 67(a)(1), UCMJ (providing for mandatory review of “all 

cases in which the sentence, as affirmed by a Court of Criminal 

Appeals, extends to death”). 

 Supreme Court precedent addressing this Court’s authority 

under the All Writs Act, however, makes clear this holding was 

in error. Although the Supreme Court has confirmed that this 
Loving v. United States, 06-8006/AR 

12 

Court may sometimes issue writs under the Act, its 

interpretation of the scope of the Act and of our jurisdiction 

demonstrates that the Act does not authorize this Court to 

entertain a collateral attack through a habeas corpus petition 

that is not part of the direct review authorized by statute. 

See Noyd, 395 U.S. at 695 n.7 (noting that although there was no 

longer “any doubt as to the power of the Court of Military 

Appeals to issue an emergency writ of habeas corpus” under the 

All Writs Act, the power was recognized only for cases “which 

may ultimately be reviewed by th[e] court” and not cases “which 

the [court] is not authorized to review under the governing 

statutes”). 

 In Goldsmith, the Supreme Court made it clear that 

jurisdiction on direct review of a court-martial conviction does 

not establish jurisdiction for all potential post-conviction 

remedies. 526 U.S. at 536. Reversing this Court’s decision, 

the Supreme Court stated that this Court could not always “act 

as a plenary administrator even of criminal judgments it has 

affirmed.” Id. (emphasis added). The Supreme Court noted our 

opinion “spoke too expansively” when it decided that former 

jurisdiction over the accused’s court-martial conviction 

triggered the provisions of the All Writs Act. Id.

Likewise, in Denedo the Supreme Court reaffirmed that the 

authority granted under the All Writs Act “does not determine 
Loving v. United States, 06-8006/AR 

13 

the anterior question whether military courts have jurisdiction 

to entertain a petition for [extraordinary relief].” 129 S. Ct. 

at 2221. The Act itself is “not a source of subject-matter 

jurisdiction.” Id. at 2222. Further, in holding that this 

Court could issue a writ of coram nobis under the facts of 

Denedo, the Supreme Court relied heavily on the nature of coram 

nobis as a “belated extension of the original proceeding during 

which the error allegedly transpired.” Id. at 2221. A military 

court’s jurisdiction to issue such a writ was thus derived from 

“the earlier jurisdiction it exercised to hear and determine the 

validity of the conviction on direct review.” Id. at 2222. 

 Unlike the writ in Denedo, the relief requested by Loving 

-- a writ of habeas corpus -- is not appropriately entertained 

by this Court under the All Writs Act for three reasons. First, 

unlike a writ of coram nobis, habeas corpus is not a “belated 

extension” of the original court-martial proceeding. It is 

instead an entirely separate civil proceeding in which the 

petitioner asserts his rights against those who hold him in 

custody. See id. at 2221 (“[C]oram nobis is ‘a step in the 

criminal case and not, like habeas corpus where relief is sought 

in a separate case and record, the beginning of a separate civil 

proceeding.’” (quoting Morgan, 346 U.S. at 505 n.4)); Riddle v. 

Dyche, 262 U.S. 333, 335-36 (1923) (“The writ of habeas corpus 

is not a proceeding in the original criminal prosecution, but an 
Loving v. United States, 06-8006/AR 

14 

independent civil suit . . . .”); Ex parte Tom Tong, 108 U.S. 

556, 559 (1883) (“The prosecution against [petitioner] is a 

criminal prosecution, but the writ of habeas corpus which he has 

obtained is not a proceeding in that prosecution.”). 

Second, even if a post-conviction habeas corpus petition 

fell within the ambit of this Court’s All Writs Act authority as 

an extension of our Article 67, UCMJ, review (which it does 

not), entertaining such a petition is inappropriate in the 

present case because the All Writs Act is limited to 

circumstances where no other remedy is available. Goldsmith, 

526 U.S. at 537 (“The All Writs Act invests a court with a power 

essentially equitable and, as such, not generally available to 

provide alternatives to other, adequate remedies at law.”). 

Here, another remedy is available: a habeas corpus petition in 

an Article III court. 

Despite recognizing that such a writ was an available 

remedy for military prisoners, the Loving III Court nonetheless 

went on to discount that remedy on the ground that Article III 

courts would, based on the doctrine of exhaustion, abstain from 

considering Loving’s petition until the President approved 

Loving’s death sentence. See 62 M.J. at 248-50; Loving V, __ 

M.J. __ (4-5). Lack of presidential approval notwithstanding, I 

do not believe the exhaustion doctrine prevents Article III 

review of Loving’s petition. This Court decided in 2005 that 
Loving v. United States, 06-8006/AR 

15 

the possibility of clemency from the President is not part of 

the direct judicial review process and, as such, is not an 

available remedy sufficient to preclude issuing a writ of coram 

nobis.4 Loving III, 62 M.J. at 247 (“We conclude that 

presidential action is not an adequate remedy at law. 

Presidential action is akin to a state governor’s action, and as 

such, is not part of the direct judicial review of the case.”). 

Our determination of what the UCMJ means receives great 

deference in Article III courts. Middendorf v. Henry, 425 U.S. 

25, 43 (1976); see also Noyd, 395 U.S. at 694, 696. It follows, 

therefore, that the exhaustion doctrine would not necessarily 

preclude those courts from hearing Loving’s petition based on 

the mere possibility of executive action. 

But even if Article III courts chose to view presidential 

approval of the sentence in a capital case as a necessary 

predicate to exhaustion, that view would not necessarily deprive 

those courts of review power. The Supreme Court has made clear 

that exhaustion is a prudential doctrine, not a jurisdictional 

one; it remains subject to the circumstances of the case, 

 

4

 Strangely, while holding that presidential action was an 

inadequate remedy to preclude a writ of coram nobis -- which may 

only be filed in the absence of any other remedy, see, e.g.,

Denedo, 129 S. Ct. at 2220 -- this Court went on to determine 

that the same presidential action was an adequate-enough remedy 

to prevent Article III judicial review under the principle of 

exhaustion -- which also requires that there be no other remedy, 

Gusik, 340 U.S. at 131-32. Loving III, 62 M.J. at 247, 249-50. 

This purported distinction makes no sense. 
Loving v. United States, 06-8006/AR 

16 

including the potential for long delay.5

 See Boumediene v. Bush, 

128 S. Ct. 2229, 2275 (2008) (refusing to apply the exhaustion 

doctrine in cases where petitioners faced “months, if not years, 

of delay”); see also Denedo v. United States, 66 M.J. 114, 122 

(C.A.A.F. 2008) (acknowledging that the Supreme Court has not 

precluded “the possibility that the circumstances of a 

particular case might warrant consideration of a habeas petition 

by an Article III court prior to exhaustion.” (citing 

Councilman, 420 U.S. at 761)). Thus, an Article III court could 

choose to hear a military prisoner’s habeas petition in light of 

significant potential delay in presidential action.6

Finally, the usual canon of statutory construction that 

favors specific statutes over general ones suggests that the All 

Writs Act cannot be asserted to extend our Article 67, UCMJ, 

jurisdiction in the face of specific habeas corpus statutes. 

See Hinck v. United States, 550 U.S. 501, 506 (2007) (repeating 

 

5

 Of course, the doctrine of exhaustion is prudential in part 

because of principles of comity and, relatedly, because remedies 

not yet asserted may moot the question being considered by a 

collaterally reviewing court. Councilman, 420 M.J. at 756-57.

6

 Regardless, there is little reason to believe that a military 

prisoner who has been sentenced to death will seek habeas corpus 

relief before presidential approval, which provides its own 

delay, given the natural interest a prisoner has in delaying his 

execution. See Dwight H. Sullivan, The Last Line of Defense: 

Federal Habeas Review of Military Death Penalty Cases, 144 Mil. 

L. Rev. 1, 5 n.13 (1994) (“Because death row inmates have an 

obvious interest in delay of any kind, no service member under a 

military death sentence would have an incentive to seek habeas 

relief before presidential action on the sentence.”) (citation 

omitted). 
Loving v. United States, 06-8006/AR 

17 

“the well-established principle that, in most contexts, ‘a 

precisely drawn, detailed statute pre-empts more general 

remedies’” (quoting EC Term of Years Trust v. United States, 550 

U.S. 429, 434 (2007)). “The All Writs Act is a residual source 

of authority to issue writs that are not otherwise covered by 

statute. Where a statute specifically addresses the particular 

issue at hand, it is that authority, and not the All Writs Act, 

that is controlling.” Penn. Bureau of Corr. v. U.S. Marshals 

Serv., 474 U.S. 34, 43 (1985) (emphasis added). Even if we were 

to ignore the plain language of Article 67, UCMJ, and assume a 

theoretical continuing jurisdiction over capital cases in which 

we once had jurisdiction, such as that advanced by the Loving 

III Court, see 62 M.J. at 244 (“[W]e conclude that this Court’s 

subject matter jurisdiction continues even after the Supreme 

Court’s decision affirming Petitioner’s death sentence.”), the 

fact remains that Article 67, UCMJ, provides only a general 

grant of authority, and the All Writs Act provides only a 

broadly defined mechanism to issue writs in aid of alreadyexisting jurisdiction. 

In contrast, Article III habeas corpus power is set down in 

reticulated statutes detailing not only which courts have the 

authority to issue writs of habeas corpus, 28 U.S.C. § 2241 

(2006), but also specifics related to, inter alia, the form, 

timing, filing, standards of review, and statutes of limitation 
Loving v. United States, 06-8006/AR 

18 

for such writs, 28 U.S.C. §§ 2241-55 (2006).7

 Thus, even if the 

Court’s statutory jurisdiction could be stretched as far as the 

majority assumes, this Court may not entertain Loving’s petition 

because an Article III court could properly consider a military 

prisoner’s habeas corpus petition and the All Writs Act does not 

allow this Court to act in the face of another, specific 

statute. See Goldsmith, 526 U.S. at 537.8 

III. This Court’s Foray Into Habeas Corpus Law Helps Neither 

This Nor Future Petitioners 

 

I do not doubt that Loving sought a writ of coram nobis 

here in 2005 because there was presumably nothing to lose. If 

we entertained it, there was a possibility we would afford him 

relief. If we refused to entertain it, he was presumably no 

worse off. But we proposed he file a habeas petition, and, with 

the Court’s judgment today, he is afforded no relief and is 

worse off if the judgment is allowed to stand. 

 

7

 Which is not to suggest that these reticulated statutes apply 

perfectly to the review of military courts-martial. But any 

difficulty in Article III courts’ habeas review of courtsmartial convictions neither divests them of jurisdiction to 

conduct such review, nor gives this Court authority to expand 

its own jurisdiction. It is for Congress to change the who and 

the how of habeas review, not this Court. 

8

 This seems all the more obvious where, as here, the legal issue 

is not one that turns on any interpretation of military law or 

nuance of military service, but rather presents the 

constitutional claim of ineffective assistance of counsel -- a 

claim with which Article III courts are at least as familiar as 

this Court. 
Loving v. United States, 06-8006/AR 

19 

And Loving has no incentive to let the judgment stand.9

 The 

Court’s 2005 expansion of jurisdiction beyond the statutory 

limits established by Congress was not only unnecessary, given 

the statutory availability of recourse to an Article III court, 

but unfortunate. First, we have hastened post-conviction 

collateral review of a habeas corpus petition in a capital case 

before the President has acted to approve the sentence. See

supra note 6. 

Second, we have foreclosed initial review of Loving’s 

habeas corpus petition by an Article III court on this claim, 

potentially placing him in the unenviable position of being a 

successive petitioner. Congress has moved to limit habeas 

corpus by restricting successive petitions presenting the same 

claims: 

No circuit or district judge shall be required to 

 

9

 Even though Loving now has every incentive to challenge this 

judgment, we ought not to wait for such a challenge; it is our 

responsibility to ensure we have jurisdiction, not his. See, 

e.g., Ashcroft v. Iqbal, 129 S. Ct. 1937, 1945 (2009) (“Subjectmatter jurisdiction cannot be forfeited or waived and should be 

considered when fairly in doubt.”); Arbaugh v. Y & H Corp., 546 

U.S. 500, 514 (2006) (“[S]ubject-matter jurisdiction, because it 

involves a court’s power to hear a case, can never be forfeited 

or waived. Moreover, courts, including this Court, have an 

independent obligation to determine whether subject-matter 

jurisdiction exists, even in the absence of a challenge from any 

party.” (citation and quotation marks omitted)); United States 

v. Cotton, 535 U.S. 625, 630 (2002) (“[S]ubject-matter 

jurisdiction, because it involves a court’s power to hear a 

case, can never be forfeited or waived. Consequently, defects 

in subject-matter jurisdiction require correction regardless of 

whether the error was raised in district court.”). 
Loving v. United States, 06-8006/AR 

20 

entertain an application for a writ of habeas corpus 

to inquire into the detention of a person pursuant to 

a judgment of a court of the United States if it 

appears that the legality of such detention has been 

determined by a judge or court of the United States on 

a prior application for a writ of habeas corpus, 

except as provided in section 2255. 

28 U.S.C. § 2244(a). If an Article III court concludes that 

this Court, the United States Court of Appeals for the Armed 

Forces, is “a court of the United States” under § 2244, the 

Article III court would not be required to hear the petition. 

See Loving V, __ M.J. __ (7) (recognizing “the potential effect 

of a habeas petition before our Court on future habeas petitions 

filed in the Article III courts”). 

Third, in light of the above, the standard of review 

indiscriminately plucked10 by this Court to review habeas corpus 

challenges to our own prior decisions is especially cold comfort 

to Loving. See Loving IV, 64 M.J. at 145 (adopting the standard 

of review from 28 U.S.C. § 2254 (2000), which, in part, 

restricts Article III court review of a state proceeding to 

whether the state decision was contrary to or an unreasonable 

application of federal law); accord Loving V, __ M.J. __ (8). 

 

10 Other than asserting its jurisdiction to entertain this habeas 

petition and selecting its own standard of review, this Court 

elected not to provide any further guidance to future 

petitioners as to when and how they should approach us with 

their claims. Habeas corpus unmoored from any procedural rules 

and provisions is a novelty, to say the least. The Court failed 

to consider the prudence of asserting jurisdiction and adopting 

a standard of review in a vacuum. 
Loving v. United States, 06-8006/AR 

21 

Deference to state court decisions under § 2254 reflects the 

need to balance federal review against respect for proceedings 

conducted by a separate sovereign -- the state. See Williams v. 

Taylor, 529 U.S. 420, 436-37 (2000) (discussing § 2254’s 

deference to state court proceedings). Such deference is 

inexplicable and inappropriate when this Court reviews its own 

prior holdings. A petitioner seeking collateral review of his 

court-martial at this Court faces the unusual and uphill battle 

of convincing us that our own previous actions were not just 

erroneous, but unreasonable. 

While such deference may or may not be warranted when an 

Article III court is reviewing a decision of this Court, it 

seems untoward to apply it to our own previous decisions. Most 

people -- a category that arguably includes most judges -- would 

not have adopted a position in the first instance if they 

thought it was unreasonable. 

IV. Conclusion 

The writ of habeas corpus is “the most celebrated writ in 

English law,” William Blackstone, 3 Commentaries 129 (1768), and 

I do not begrudge Loving’s desire to exercise his constitutional 

right to challenge on collateral review the alleged ineffective 

assistance of counsel he received at his capital trial.11 But 

 

11 Further, while I take issue with this Court’s continued 

expansion of its own jurisdiction beyond the limits established 
Loving v. United States, 06-8006/AR 

22 

absent statutory changes from Congress, the appropriate venue 

for review of this petition is the Article III courts. 

Therefore, I respectfully dissent. 

 

by Congress, this Court could provide an adequate venue to 

evaluate Loving’s conviction if the UCMJ provided jurisdiction 

over cases in which direct review is completed (preferably with 

related procedural guidance, in the case of habeas petitions) 

and if the U.S. Code did not already invest jurisdiction over 

these cases in Article III courts. Whatever its beginnings, far 

from being “a rough form of justice,” Reid v. Covert, 354 U.S. 

1, 35 (1957), the military justice system today, including this 

Court, generally provides “substantial procedural protections 

and provision for appellate review by independent civilian 

judges [to] ‘vindicate servicemen’s constitutional rights.’” 

Hamdan v. Rumsfeld, 548 U.S. 557, 586 (2006) (quoting 

Councilman, 420 U.S. at 758). This is confirmed by the 

extensive and careful review received in this case to date. See

United States v. Loving, 34 M.J. 956 (A.C.M.R. 1992) (direct 

appeal); United States v. Loving, 34 M.J. 1065 (A.C.M.R. 1992) 

(petition for reconsideration); United States v. Loving, 41 M.J. 

213 (C.A.A.F. 1994) (mandatory direct review); United States v. 

Loving, 42 M.J. 109 (C.A.A.F. 1995) (petition for 

reconsideration); Loving v. Hart, 47 M.J. 438 (C.A.A.F. 1998) 

(petition for writ of mandamus to CCA); Loving v. United States, 

62 M.J. 235 (C.A.A.F. 2005) (petitions for writ of coram nobis); 

Loving v. United States, 64 M.J. 132 (C.A.A.F. 2006) (petition 

for writ of habeas corpus). But the fact that this Court may be 

competent to adjudicate Loving’s constitutional claim does not 

answer the antecedent question whether Congress has authorized 

it to do so once direct review is completed.