United States District Court, D. South Carolina, Florence Division
REPORT AND RECOMMENDATION
E. ROGERS, UNITED STATES MAGISTRATE JUDGE
Petitioner, Jerry Clifft, (“Petitioner”),
appearing pro se, filed this petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241 on October 18,
2018. On March 20, 2019, the Respondent filed a motion to
dismiss pursuant to Fed.R.Civ.P. 12(b)(6) or, in the
alternative, a motion for summary judgment pursuant to
Fed.R.Civ.P. 56 along with a return containing supporting
memorandum and exhibits. (ECF No. 27, 28, 29). The
undersigned issued an order filed March 21, 2019, pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975),
advising the Petitioner of the motion and the possible
consequences if he failed to respond adequately. (ECF No.30).
On April 17, 2019, Petitioner filed a response. (ECF No. 33).
FOR SUMMARY JUDGMENT
parties submitted evidence outside of the pleadings, the
motion to dismiss or, in the alternative, motion for summary
judgment, will be treated as a Motion for Summary Judgment.
moving party bears the burden of showing that summary
judgment is proper. Summary judgment is proper if there is no
genuine dispute of material fact and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Summary judgment is proper if the non-moving party fails to
establish an essential element of any cause of action upon
which the non-moving party has the burden of proof.
Celotex, 477 U.S. 317. Once the moving party has
brought into question whether there is a genuine dispute for
trial on a material element of the non-moving party's
claims, the non-moving party bears the burden of coming
forward with specific facts which show a genuine dispute for
trial. Fed.R.Civ.P. 56(e); Matsushita Electrical
Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574
(1986). The non-moving party must come forward with enough
evidence, beyond a mere scintilla, upon which the fact finder
could reasonably find for it. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). The facts and
inferences to be drawn therefrom must be viewed in the light
most favorable to the non-moving party. Shealy v.
Winston, 929 F.2d 1009, 1011 (4th Cir. 1991).
However, the non-moving party may not rely on beliefs,
conjecture, speculation, or conclusory allegations to defeat
a motion for summary judgment. Barber v. Hosp. Corp. of
Am., 977 F.2d 874-75 (4th Cir. 1992). The
evidence relied on must meet “the substantive
evidentiary standard of proof that would apply at a trial on
the merits.” Mitchell v. Data General Corp.,
12 F.3d 1310, 1316 (4th Cir. 1993).
that a genuine dispute of material fact exists, a party may
not rest upon the mere allegations or denials of his
pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e)
permits a proper summary judgment motion to be opposed by any
of the kinds of evidentiary materials listed in Rule 56(c),
except the mere pleadings themselves). Rather, the party must
present evidence supporting his or her position through
“depositions, answers to interrogatories, and
admissions on file, together with . . . affidavits, if
any.” Id. at 322; see also Cray
Communications, Inc. v. Novatel Computer Systems, Inc.,
33 F.3d 390 (4th Cir. 1994); Orsi v.
Kickwood, 999 F.2d 86 (4th Cir. 1993); Local
Rules 7.04, 7.05, D.S.C.
Review of Military Justice Determinations
corpus relief may be granted under 28 U.S.C. 2241(c) if the
federal prisoner demonstrates that he is in custody in
violation of the Constitution or law or treaties of the
United States. However, federal court review of court-martial
proceedings is limited to determining whether the claims
raised by the petitioner were given full and fair
consideration by the military courts. If the issues have been
given full and fair consideration in the military courts, a
district court should not reach the merits and should deny
the petition. See Lips v. Commandant, United States
Disciplinary Barracks, 997 F.2d 808, 811 (10th Cir.
1983), cert denied, 510 U.S. 1091, 114 S.Ct. 920,
(1994). Unless the military court failed to consider an issue
properly presented to it, the federal district court should
not conduct a review. If an issue is briefed and considered,
it has been given fair consideration. See Watson v.
McCotter, 782 F.2d 143, 145 (10th Cir. 1986)
(“When an issue is briefed and argued before a military
board of review, we have held that the military tribunal has
given the claim fair consideration, even though its opinion
summarily disposed of the issue with the mere statement that
it did not consider the issue meritorious or requiring
discussion.”) Where a military court decision has
considered fully and fairly the allegation raised in a
federal habeas petition, it is not open for the federal court
to grant the writ by reassessing the evidentiary
determinations. See Burns v. Wilson, 346 U.S. 137 73
S.Ct. 1045 (1953).
Circuit courts that have interpreted what constitutes
“full and fair consideration” have not defined a
uniform standard. See Armann v. McKean, 549 F.3d
279, 289 n. 10 (3rd Cir.2008) (collecting cases). This court
is unaware of binding Fourth Circuit precedent analyzing the
“full and fair consideration” test. The Tenth
Circuit has developed jurisprudence on this subject primarily
due to the fact that the United States Disciplinary Barracks
are located in Fort Leavenworth, Kansas, which is located in
the Tenth Circuit. Even though the Tenth Circuit decisions
are not binding precedent in this Circuit, in the absence of
controlling Fourth Circuit case law, this court, like other
courts, finds the Tenth Circuit precedent instructive.
Tenth Circuit has held that the following four factors should
be considered upon habeas review of a military conviction: 1)
the asserted error was of substantial constitutional
dimension: 2) the issue is one of law rather than of disputed
fact already determined by the military tribunal; 3) there
are no military considerations that warrant different
treatment of constitutional claims; and 4) the military
courts failed to give adequate consideration to the issues
involved or failed to apply proper legal standards. The
fourth factor has been held as the most critical factor.
See Lips v. Commandant, U.S. Disciplinary Barracks,
997 F.2d at 811 (“Under Burns, if the military
gave full and fair consideration to claims asserted in a
federal habeas corpus petition, the petition should be
denied. Only when the military has not given a
petitioner's claims full and fair consideration does the
scope of review by the federal civil court expand .”).
on Petitioner's notice of change of address to Stuart,
Oklahoma, Petitioner is no longer incarcerated in South
Carolina, and it appears he may not be incarcerated at all.
(ECF No. 32). Petitioner filed his petition pursuant to 28
U.S.C. § 2241,  challenging his 2016 general court martial
conviction, contrary to his pleas, for making a false
official statement, one specification of sexual assault, and
two specifications of assault consummated by a battery in
violation of Articles 107, 120, and 128, UCMJ. Petitioner was
sentenced to four years, to be reduced to the lowest
paygrade, and to be dishonorably discharged from the U.S.
Coast Guard. On appeal, the U.S. Coast Guard Court of
Criminal Appeals affirmed the findings of guilty and the
sentence issued. The U.S. Court of Appeals for the armed
forces denied a petition for grant of review and the
court-martial became final.
sets forth a history of the facts as outlined in the order of
March 12, 2018, as follows, quoted verbatim in part:
Petitioner and his wife had a tumultuous marriage. Following
arguments and physical assaults, she left the marital home.
Petitioner persuaded his wife to return to the marital home
but problems continued. The police were called to the home in
July 2014, and a civilian temporary protective order was
issued against Petitioner. After a judge declined to extend
the protective order, Petitioner returned home. Petitioner
and his wife engaged in consensual sexual intercourse over
the next few days. On the evening of July 21, 2014, the wife
awoke to Petitioner attempting to initiate sexual intercourse
to which she said she did want to have sex with him and left
to use the restroom. When the wife returned, Petitioner
grabbed her, pulled her on top of him, and wrapped his arms
around her so she could not move. Petitioner initiated
vaginal intercourse with the wife despite her repeatedly
saying no and that she was hurting. The wife testified that
she was afraid Petitioner would hurt her if she tried to
fight him so she “rolled ...