1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MICHAEL R. HENRY, Petitioner,

v. FRANK KENDALL III, 1 United States Secretary of the Air Force, Respondent. Civil Action No. 21-865 (CKK)

MEMORANDUM OPINION (August 3, 2022) Petitioner Michael R. Henry (“ Petitioner”) was convicted by a general court-martial in April 2015 of three charges relating to incidents of sexual assault. On appeal, his conviction for one these charges was set aside due to an erroneous jury instruction. United States v. Henry , 76 M.J. 595, 606–09 (A.F. Ct. Crim. App. 2017) ( “Henry I” ), rev. denied without prejudice , 76 M.J. 431 (C.A.A.F. 2017). A later rehearing acquitted h im of this charge. Petitioner appealed again, claiming that exculpatory eviden ce adduced at the rehearing shoul d acquit him of the remaining two charges, which had previously been affirm ed and not remanded for rehearing. The United States Air Force Court of Criminal Appeals reje cted Petitioner’s argument, concluding that the evidence presented at the rehearing did not differ significantly from the original court-martial findings and that his prior convictions were neither clearly erroneous nor resulted in manifest injustice. United States v. Henry , No. ACM 38886 (reh), 2020 WL 278402, at *2 (A.F. Ct. Crim. App. Jan. 14, 2020) (“Henry II” ).

1 Pursuant to Federal Rule of Civil Procedure 25(d), Secr etary Kendall is automatically substituted as the respondent in this action.2 Petitioner now seeks a writ of error coram nobis , claiming that the Air Force Court of Criminal Appeals failed to revi ew Petitioner’s convictions de novo in accordance with Article 66 of the Uniform Code of MilitaryJustice (“Article 66”). Pet. at 10, ECF No. 2-1. Respondent Frank Kendall, United States Secretary of the Air Force (“Respondent”) moves to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that Petitioner was entitled to only one Article 66 review of those charges, which Petitioner received in Henry I . Respondent also argues that, in any event, the Air Force Court of Criminal Appeals did satisfy Article 66’s review standard in Henry II

. Upon review of the pleadings, 2 the relevant legal authority an d the record as a whole, for the reasons below, the Court concl udes that Petitioner has failed to establish that he is entitled to the extraordinary remedy of a writ of error coram nobis . Accordingly, the Court GRANTS Respondent’s [12] Motion to Dismis s and dismisses the Petition.
I. BACKGROUND On April 23, 2015, Petitioner was convicted by a general court-martia l of (1) rape and sexual assault in violation of Article 120 of th e Uniform Code of Milit ary Justice (“UCMJ”) (“Charge I”); (2) assault consumma ted by battery in violation of Article 128 (“Charge II”); and (3) and communication of threats in violat ion of Article 134 (“Charge III”). Henry I , 76 M.J. at 598. The charges arose from a thre e-month relationship between Petitioner and “EW” in December

2 The Court’s consideration has focused on:

x Petitioner’s Application for a Writ of in the Nature of Error Coram Nobis and Supporting Brief (corrected), (“Pet.”), ECF No. 2-1;

x Memorandum of Points & Authorities in Support of Respondent’s Motion to Dismiss (“Resp’t’s Mot.”), ECF No. 12;

x Petitioner’s Answer to Government’s Motion to Dimis (“Pet’r’s Opp’n”), ECF No. 13; and

x Respondent’s Reply Memorandum in Further Support of Respondent’s Motion to Dismiss (“Resp’t’s Reply”), ECF No. 14. In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f).3 2013. Id . According to the court-martial’s findings , after their breakup, Pe titioner appeared at EW’s parents’ house where he threatened EW, grabbed her neck, and raped her. Id . Petitioner was initially charged with two specifications 3 of rape occurring approximately a week apart, but prior to the arrai gnment, the Prosecution withdrew the second specification. Henry II , 2020 WL 278402, at *2. After being convicted on all three charges by the court-ma rtial, Petitioner was sentenced to seven years confinement, disho norable discharge, forfeiture of all pay and allowances, and reduction to E-1. Henry I , 76 M.J. at 598. Petitioner appealed to the Air Force Court of Criminal Appeals arguing that (1) the evidence before the court martial was not legally or factually sufficient to sustain the rape and sexual assault convictions and (2) the milit ary judge’s instructions were erroneous. 4 Henry I , 76 M.J. at 598. Petitioner challenged the instructi on to the jury that it could consider previous instances of sexual assault (not involving EW) as evidence of “pr opensity” if the jury determined by a preponderance of evidence thatthe previous a ssault occurred. Id . at 608. The Air Force Court of Criminal Appeals concluded th at this instruction erroneously permitted the court-martial to convict Petitioner beyond a reas onable doubt using evidence a pplied under a preponderance of evidence standard. See id. at 609. The court further reasoned that because the case “turned largely on credibility,” it could not “say beyond a reasonable doubt that th e instructions did not” “tip[ ] the balance.” Id. Based on this error, the court “set aside” the trial court’s findings with respect to Charge I and remanded this charge and Petitioner’s senten ce to the convening authority, who

3 A specification is a “statement of charges against one who is accused of an offense, esp. a military offense.” Black’s Law Dictionary (11 thed. 2019). Where a charge sets forth an offense, a specification gives details to what the accused has done. That is, a military member can be charged with an offense with several specifications giving detail as to why that charge was brought.
4 Petitioner raised additional errors wi th the court-martial proceedings, which are not pertinent to the pending Petition and Motion to Dismiss. See Henry I , 76 M.J. at 598.4 later authorized a rehearing. 5 Id. at 610. In the same opinion, th e Air Force Court of Criminal Appeals affirmed the “findings of guilty” as to Charges II (assault consummated by battery) and III (communication of threats). Id. On remand and in advance of the rehearing as to Charge I, Petitioner sought discovery related to the sec ond specification of rape that had been withdrawn prior to the first trial. Henry
II

, 2020 WL 278402 at *2–3. After th e government indicated that it had “no information or documents responsive to this request,” Petitioner filed a motion requesting “appropriate relief due to the loss or destruction of ‘exculpatory’ evidence.” Id . at *3. Specifically, Petitioner claimed that EW had made a statement to the prosecution “days before trial,” but no interview notes were provided to Petitioner. Id. EW was called to testify at the hearing on Petitioner’s discovery motion, during which the military judge asked her if “from her perspective, she had been consistent with her description of the second event all al ong and maybe it somehow got misinterpreted, EW said yes.” Id. The judge denied Petitioner’s motion, concluding that “there was no evidence that the Government failed to provide exculpatory evidence in discove ry” related to this withdrawn specification. Id . There was evidence that “EW admitted . . that the second incident did not involve rape, which must necessarily be somewhat inconsistent with other evidence that led to the referral of the second rape specification involv ing EW. The military judge ruled the Defense would have the full ability at the rehearing to explore all issues ar ising from any such inconsistency.” Id. The rehearing proceeded and resulted in Pe titioner being acquitted of Charge I and resentenced to 12 months of confinement, redu ction to E-4, and a reprimand based on previous

5 The convening authority is “An officer (usu. a commanding officer) with the po wer to convene, or who has convened a court martial.” Black’s Law Dictionary (11 thed. 2019).5 convictions on other charges. Id. at *1. The convening authority disapproved of the reprimand but authorized the remaining components of the sentence. Id. Petitioner again appealed to the Air Force Court of Criminal Appeals, contending that “new evidence” related to EW’s credibility undermined the sufficie ncy of proof for his conviction for Charges II and III that that ha d previously been affirmed. See id. In its review of Petitioner’s second appeal, the Air Force Court of Crimin al Appeals concluded “having considered all the evidence presented , we find that the impact of the eviden ce adduced at the rehearing was not significantly different, and our or iginal decision finding [Petitioner’s ] contention that the evidence is not legally or factuall y sufficient to sustain these convictions to be without merit was neither clearly erroneous nor a manifest injustice.” Id. at *2 (emphasis added). Therefore, the Air Force Court of Criminal Appeals affirmed Petitioner’ conviction as to Charges II and III and the resentencing. Id . at *1. On May 21, 2020, the Court of Appeals for the Ar med Forces denied to Petitioner a grant of review in a one sentence opinion. United States v. Henry , 80 M.J. 177 (2020). Petitioner filed an Application for a Writ of Error Coram Nobis on March 31, 2021 in this Court. He claims that “the [A ir Force Court of Criminal App eals] failed to complete a valid jurisdictionally-required Art. 66, UC MJ factually sufficiency review.” Pet. at 7. Petitioner claims that, on its second review (after the rehearing), the Air Force Cour t of Criminal Appeals failed to review his conviction de novo as required under Article 66, UCMJ. Id. ; 10 U.S.C. § 866 Art. 66. He seeks a writ compelling the Ai r Force to revoke the orders executing the punitive discharge and for this Court to forward the record of trial to the Judge Advo cate General of the Air Force for de novo review. Pet. at 3.6 II. LEGAL STANDARDS
A. Federal Rule of Civil Procedure 12(b)(6) Respondent moves to dismiss the Petition under Federal Rule of Civil Procedure 12(b)(6) for failure to “state a cl aim upon which relief may be granted.” Fed. R. Civ. P. 12(b)(6). Resp’t’s Mot. at 1. The factual allegations within a complaint, if accepted as true, must be sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for th e misconduct alleged.” Iqbal , 556 U.S. at 678. Courts “do not accept as true, however, the pl aintiff’s legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in
U.S. , 758 F.3d 296, 314–15 (D.C. Cir. 2014).
B. Standard of Review of Military Court Decisions As the United States Court of Appeals for the Di strict of Columbia Circuit (“D.C. Circuit”) has aptly summarized, the standard of review applicab le to military court proceedings is “tangled.” United States ex rel. New v. Rumsfeld , 448 F.3d. 403, 406 (D.C. Cir. 2006) ( “New II” ). Indeed, “two lines of precedent are releva nt: the first deals with the ‘full and fair consideration’ standard that applies for habeas review of court martials, and the second deals with the ‘void’ standard that applies to collateral a ttacks on court martial proceedings bypersons who are not in custody.” Sanford v. United States , 586 F.3d 28, 31 (D.C. Cir. 2009). Ult imately, the Court must (1) “review . . . the military court’s thoroughness in examining the relevant cl aims, at least where thoroughness is contested”; and (2) take “a close look at the meri ts of the claim, although with some degree of deference...” Id. at 32.7 In Burns v. Wilson , the Supreme Court directed that “when a military decision has dealt fully and fairlywith an allegation raised in that applica tion, it is not open to a federal civil court to grant the writ simply to re-evaluate the evidence.” 346 U.S. 137, 140 (1953) (emphasis added). The D.C. Circuit has interpreted this “full and fair consideration standard” as granting the same reviewability standard to military decisions as it would other state habeas cases. Kauffman v. Sec’y of the Air Force , 415 F.2d 991, 997 (D.C. Cir. 1969). Soon af ter, the Supreme Court clarified the review standard applicable to non-custodial pe titioners, holding that “c ollateral relief from the consequences of a court martial judgment is barred unless the judgment is ‘void.’” Oppermann v. United States , Civil Action No. 06-1824 (EGS), 2007 WL 1748920, at *4 (D.D.C. June 15, 2007) (citing Schlesinger v. Councilman , 420 U.S. 738, 748 (1975)). The Supreme Court stated a judgement is not deemed void “merely by er ror”; the defect must be fundamental. Schlesinger , 420 U.S. at 746–48. The D.C. Circuit attempted to reconcile th e differences between these standards of deference in New II , expressing “serious doubt whether the judicial mind is really capable of applying the sort of fine gradations in deference that th e varying formulae may indicate.” New II , 448 F.3d at 408. The Circuit explaine d that “a non-habeas review is if anything more deferential than habeas review of military judgments.” Id. Because the court deter mined that the “void” standard was more deferential than the full and fair consideration test, it reasoned that “a military court’s judgment [for non-custodial petitioners] will not suffer such a defect if it satisfies Burns fair consideration test.” Id. Therefore, if a military court’s judgment passes a Burns “fair consideration” test for a non-custodial petitioner, it will also satisfy the “void judgment” standard under Schlesinger

.8 In Sanford , the D.C. Circuit summarized the New II court’s analysis: “Although in New II the court did not describe the exact degree of deference accorded to military courts, its analysis suggests there are two steps in appl ying the ‘full and fair considera tion’ standard: (1) a review of the military court’s thoroughness in examining the relevant claims , at least where thoroughness is contested; and (2) a clos e look at the merits of the claim, although with some degree of deference[.]” Sanford , 586 F.3d at 32.
III. DISCUSSION Petitioner here seek s a writ of error coram nobis , which the Supreme Court has described as an “extraordinary tool to correct a legal or factual error.” United States v. Denedo , 556 U.S. 904, 912–13 (2009). Federal courts have th e authority to grant a writ of error coram nobis under the All Writs Act, 28 U.S.C. § 1651. United States v. Williams , 630 F. Supp. 2d 28, 32 (D.D.C. 2009). Whether to grant such “extraordinary” relie f is a “decision committe d to the discretion of the Court.” United States v. Hansen , 906 F. Supp. 688, 692 (D.D.C. 199 5). Petitioner contends that he is entitled to this remedy because the Air Force Court of Criminal Appeals failed to apply the correct standard of review to his conviction. For the reasons below, the Court concludes that Petitioner has failed to establish that he is entitl ed to the extraordinary relief of a writ of error coram nobis , and so the Court shall dismiss his Petition. Plaintiff claims that the Air Force Court of Criminal Appeals failed to engage in the appropriate review of his convic tions, which is provided in Articl e 66 of the UCMJ. Pursuant to Article 66(c), military courts of criminal appeals must “conduct a de novo review of legal and factual sufficiency of the case.” United States v. Washington , 57 M.J. 394, 399 (C.A.A.F 2002) (citing United States v. Cole , 31 M.J. 270, 272 (C.M.A. 1990)). In other words, “to sustain appellant’s conviction,” the milita ry appeals court “must find that the government has proven all9 essential elements and taken as a whole, the parcels of proof cred ibly and coherently demonstrate that appellant is guilty beyond a reasonable doubt.” United States v. Gilchrist , 61 M.J. 785, 793 (Army Ct. of Crim. App. 2005). In the present Petition for Writ of Error Coram Nobis , Petitioner argues that he “has yet to re ceive an appellate factual revi ew which is both plenary and de novo .” Pet’r’s Opp’n at 2. Petitioner contends that the Henry I review was not “plenary” be cause it did not consider evidence “raised at the rehearing” for the obviou s reason that such evidence was not yet on the record. See Pet’r’s Opp’n at 2. In other words, he argues that he was entitled to a de novo review of Charges II and III (whi ch were affirmed in Henry I ) in Henry II due to “new, exculpatory evidence regarding EW’s credibility” resulting from the rehearing as to Charge I. Pet. at 12. In Henry II , the Air Force Court of Criminal Appeals not ed that although Article 66 entitled Petitioner to a “plenary review,” it entitled him “only . . . . to one such review.” Henry II , 2020 WL 278402 at *4 (citing United States v. Smith , 41 M.J. 385, 386 (C.A.A.F. 1995)). The court explained that it had conducted such a plenary review as to Charges II and III in Henry I , and therefore was not required by Article 66 to conduct a second “plenary review” as to those two previously-affirmed charges. Id. at *2. Petitioner argues that the court’s reliance on Smith for this proposition was misplaced. Pet.
at 12–13. In Smith , the accused was convicted of larceny and the decision was remanded by the appellate court after a revi ew pursuant to Article 66. Smith , 41 M.J. at 385. On remand, a new appellate defense counsel briefed two additional issues not previously considered and not under the scope of the remand. Id. The court in Smith found that although these issues were novel and not previously subject to a revi ew pursuant to Article 66, the acc used had already received an10 Article 66 review and the court di d not have to consider any new issues raised outside the scope of the remand. Id . at 386. Petitioner distinguishes the posture of case from Smith , arguing that the issues on remand
in Smith dealt with a potential conflict of interest with the appellant’s counsel and “had no relation to the guilt or innocent of the Smith appellant.” Pet. at 12. Petiti oner claims that, in contrast, evidence adduced during th e rehearing about Charge I was “hi ghly exculpatory” and relevant to the factual record to affirm Charges II and III, necessita ting another review under Article 66. Id

. at 12–13. However, Petitioner does not cite any legal authority supporting his argument that the reasoning of Smith should not apply based on this distinct ion. Although he make s broad references to the fact that a rehearing is a continuation of the original hearing, this argument does not explain why the military appellate court w ould have been required to re-revi ew the evidence pertaining to charges it previously affirmed (and for which it had already conducted an Article 66 review). Moreover, as Respondent notes, “just because Peti tioner had a rehearing on [C]harge I, this did not automatically negate the sufficiency of evid ence that supported his co nvictions for [C]harges II and III,” because those latter charges “were not presented to members for findings at the rehearing.” Resp’t ’s Mot. at 13. Assuredly, the Air Force Court of Criminal Appeals in Henry I did grant the review required under Article 66. In Henry II , the Air Force Court of Criminal Appeals writes, “Generally, [Petitioner] is entitled to one plenary review under Article 66, UCMJ, 10 U.S.C. § 866. In Henry
I

, we affirmed the factual sufficiency of the assault consummated by a battery [Charge II] and communication of a threat [C harge III] conv ictions.” Henry II , 2020 WL 278402 at *2. The Henry
I

court analyzed the factual and legal record. The panel recount ed the charges, claiming “the victim’s testimony was powerful” but “the evidence was not free from conflict.” Henry I , at 609.11 It detailed inconsistencies in the evidence incl uding evidence that Petitioner and EW had engaged in “rough sex,” the lack of physical evidence to EW ’s door, and the contradiction between a nurse’s testimony to vaginal trauma and lack of corro borating, photographic evid ence. Ultimately, the panel concluded that “[t]his case largely turned on the credibilityand resulted in mixed findings with respect to [the] alleged victims.” Id . After reviewing the entirety of the factual and legal sufficiency, the Henry I panel determined erroneous juryinstructions were not harmless

. Ultimately the court remanded Charge I yet still affirmed Charges II and III—the charges in question here—while reviewi ng the factual sufficiency. Id . at 598. In sum, th e Court agrees with the Air Force Court of Criminal Appeals and Res pondent that Petitioner received an Article 66 review as to Charges II and III in Henry I —which affirmed the findings of guilt as to those charges. He was not, therefore, entitled to a second “p lenary review” on his second appeal after the rehearing as to those charges. Even though the Henry II court properly noted that Petiti oner was not entitled to a second Article 66 review, the court did consider the factual sufficiency of those charges, explaining: Ordinarily we would decline to revisit this issue. However, we choose to revisit the fa ctual sufficiency of th e previously affirmed offenses based on the unique fact s and circumstances involved in this case. Having considered all of the evidence presented, we find that the impact of the evidence adduced at the rehearing was not significantly different , and our original deci sion finding Appellant’s contention that the evidence is not legally or factually sufficient to sustain these convictions to be without merit was neither clearly erroneous nor a manifest injustice. Henry II , 2020 WL 278402, at *2 (emphasis added). In sum, the Air Force Court of Criminal Appeals indicates that it did consider “all the evidence presente d” in affirming the two charges that it had previously affirmed in Henry I.12 Petitioner claims that the court in Henry II applied the “law-of-the-case doctrine” instead of Article 66’s “plenary review.” The law-of -the-case doctrine directs that “a court should not normally reconsider a decision unless it was clearly erroneous and would work a manifest injustice.” Henry II , 2020 WL 278402 at *4 (citing United States v. Riley , 50 M.J. 410, 420 (C.A.A.F. 1999)). This st andard is more de ferential; it re quires a court to continue to govern the same issues in a later stage of a case as it did before. See Arizona v. California , 460 U.S. 605, 618 (1983). The court in Henry II stated the “law-of-the-case doctr ine, however, is a matter of appellate policy, not a binding legal doctrine. Because the law-of-the-case doctrine is discretionary, it need not be applied when the lo wer court’s decision is ‘clearly erroneous and would work a manifest injustice.’” Henry II , 2020 WL 278402 at *4 (citing United States v. Parker , 62 M.J. 459, 464–65 (C.A.A.F. 2006) ). In sum, the law-of-the-case doctrine requires a court to adhere to prior decisions in later stages of a case as l ong as that adherence would not be clearly erroneous or work a manifest injustice. The court in Henry II followed the law of the case doctrine, adhering to Henry I ’s decision to affirm Charges II and III. However, because of the “unique facts and circumstances involved in this case” the Air Force Court of Criminal Appeals still decided to review th e factual sufficiency of the entire record to determin e if the lower court’s decision woul d be “clearly erroneous or work a manifest injustice” before follow ing the law of the case doctrine. Henry II , 2020 WL 278402 at *2, *4. In other words, the court in Henry II engaged in a factual sufficie ncy review of the entire record to determine whether applying the law of the case doctrine was appropriate. Indeed, the Henry II ’s review of the factual sufficiency of Petitioner’s charges is evident in its opinion. The court reviewed the testimony on the record throughout the opinion. Id . at *5 (“We reviewed the testimony prior to our original opinion and again for the appellate review.”).13 It described the circumstances surrounding EW’s testimony, stating “[o]ne of the named victims, EW, was unwilling to participate in the rehearing un til two weeks prior to the scheduled start date, five months after Appellant was arraigned. This fact, along with conteste d discovery is integral to our analysis of the errors Appellant alleges.” Id . at *1 (emphasis added). The court noted that EW was a “reluctant participant from the outset” and specifically discussed her credibility regarding this unwillingness to participate. Id. at *1–2. The court also analyz ed the withdrawn offense in detail and how that affected the charges as whol e—noting, for example, that “[t]here was evidence that EW admitted then, a nd admits now, that the second incide nt did not involve rape, which must necessarily be somewhat inconsiste nt with other evidence that led to the referral of the second rape specification involving EW.” Id . Throughout the opin ion, the court in Henry II reviewed the factual sufficiency of EW’s testimony and ultimately how that informs their analysis of whether to apply the law of the case doctrine in its decisi on to set aside or affi rm Charges II and III. Petitioner argues that “[t]he law of the cas e doctrine has no place in [the] court’s factual sufficiency review” and that “[a] court conducting a factual sufficiency re view does not apply the law of the case doctrine because the law of the case doctrine only deals with questions of law.” Pet. at 11. Petitioner cites a Texas State Appellat e court for this proposition that the law of the case doctrine only applies to quest ion of law and not facts and woul d therefore fail the standard for review under Article 66. However, the court in Henry II applied the law-o f-the-case doctrine only after reviewing the factual and legal r ecord. It would appear that if a court applied an entire factual sufficiency review as requ ired under Article 66, but did so in determining if a decision was clearly erroneous as in this instance, this w ould still satisfy the Ar ticle 66 standard. In Henry II , the Air Force Court of Criminal Appeals did precise ly this where after a factual sufficiency review of the testimony, they write, “[h]av ing examined the reco rd of trial and making allowances for not14 having personally observed the witne sses, we find the decision of a previous panel of this court was neither clearly erroneous not worked a manifest injustice.” Henry II , 2020 WL 278402 at *5. Therefore, because the appellate court in Henry II reviewed the entire record in making its decision to apply the law of the case doctrine, this sa tisfies the review sta ndard for Article 66. Petitioner seeks the “extraordinary remedy” of a writ of error coram nobis based on his claim that he did not receive the proper review under Article 66. An accused member is entitled to only one Article 66 review, a nd Petitioner in the Air Force Court of Criminal Appeals in Henry
I clearly granted him this. Even if the circumstances of this case required another review pursuant to Article 66 after his rehearing, Petitioner was granted this yet ag ain when the Air Force Court of Criminal Appeals in Henry II reviewed the entire f actual record and again a ffirmed Charges II and III. For these Petitioner’s App lication for a Write of Error Coram Nobis will be dismissed.
IV. CONCLUSION For the foregoing reasons, the Court shall GRANT Respondent’s Motion to Dismiss and shall order that Petitioner’s Application for a Writ of in the Nature of Error Coram Nobis be dismissed. An appropriate Order ac companies this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge Date: August 3, 2022