Chinchilla v. Whitley

RICARDO CHINCHILLA, Petitioner, v. JOHN E. WHITLEY, Acting Secretary of the Army, et al., Respondents.

Civil Action No. 3:20cv871-HEH

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

May 5, 2021

MEMORANDUM OPINION

(Granting Respondents' Motion to Dismiss)

This matter comes before the Court on a Motion to Dismiss filed by Respondents John E. Whitley,¹ Kathleen S. Miller, Christopher C. Miller, and the United States ("Respondents") on February 16, 2021. (ECF No. 18.) Respondents seek to dismiss Petitioner Ricardo Chinchilla's ("Petitioner") collateral attack of his conviction by a general court-martial² of one specification (hereinafter "count") of sexual assault inviolation of Article 120 of the Uniform Code of Military Justice, 10 U.S.C. § 920 ("UCMJ"). Petitioner filed a Petition for Declaratory Judgment and Writ of Mandamus in this Court on November 12, 2020, asking this Court to grant him the following relief: reverse, overturn, and vacate his conviction; remove him from Virginia's sex offender registry; expunge his records; remove his DNA from law enforcement databases; return him to active duty; and "restore all pay, rank, benefits, entitlements, and privileges as have been unlawfully denied" as a result of his prosecution and conviction. (Pet. 38-39, ¶¶ 1-6, ECF No. 1.) The parties have filed memoranda supporting their respective positions, and the matter is ripe for this Court's review. The Court will dispense with oral argument because the facts and legal contentions are adequately presented in the materials before it, and oral argument would not aid in the decisional process. See E.D. Va. Local Civ. R. 7(J). For the reasons that follow, Respondents' Motion to Dismiss will be granted.

I. BACKGROUND

On July 4, 2014, several soldiers, including Petitioner and Sergeant First Class KM ("SFC KM"), celebrated Independence Day in Myrtle Beach, South Carolina. United States v. Chinchilla, No. ARMY 20150266, 2017 WL 3601216, at *1 (A. Ct. Crim. App. Aug. 18, 2017), review denied, 77 M.J. 119 (C.A.A.F. 2017). SFC KM shared a hotel room with ten friends, both military and civilian. Id. The group spent theholiday drinking heavily. Id. Over the course of the evening, SFC KM consumed at least thirteen alcoholic drinks. Id. at *3. At the end of the evening, Petitioner accompanied the group back to their hotel. Id. at *5. Petitioner declined offers from members of the group to pay his cab fare to go to another hotel, electing instead to sleep on the floor of SFC KM's hotel room next to her bed. Id. After SFC KM fell asleep, Petitioner "climbed into SFC KM's bed and removed her clothing." Id. at *4. SFC KM initially did not awake, until "another soldier in the room spoke," at which point "SFC KM realized what was happening and immediately began screaming." Id. Petitioner fled, leaving SFC KM "crying and hyperventilating." Id. at *1. The next morning, SFC KM reported the assault to the Myrtle Beach Police Department and underwent a Sexual Assault Forensic Exam. Id. at *2.

Petitioner was subsequently tried in a general court-martial for sexual assault. Id. at *1. Petitioner claimed that, after everyone was asleep, SFC KM kicked him twice as he lay on the floor and that he responded, "[w]hat do you want? Do you want to hook up or something?" Id. at *2. Although the room was dark, he testified that he saw her give him "a look with a nod." Id. Petitioner stated that, in response, he told SFC KM to "scoot over," and said, "[h]ey, if you want to do this, you have to put me inside of you." Id. Notably, no one else in the hotel suite heard these statements. Id.

The court-martial panel (hereinafter "jury") convicted Petitioner of one count of sexual assault in violation of Article 120(b)(3), UCMJ, 10 U.S.C. § 920 (2012), which prohibits "sexual act[s] upon another person when the other person is incapable of consenting to the sexual act due to—(A) impairment by any drug, intoxicant, or othersimilar substance, and that condition is known or reasonably should be known by the person." Id. He was sentenced to a dishonorable discharge, two years of confinement, and demotion to the rank of Private E1. Id. at *1. The jury acquitted Petitioner of two other counts of sexual assault arising out of the same incident. Id.

The United States Army Court of Criminal Appeals ("ACCA") affirmed Petitioner's conviction and sentence on August 18, 2017. Chinchilla, 2017 WL 3601216. The ACCA found that the evidence showed beyond a reasonable doubt that SFC KM remained asleep as Petitioner removed her clothes—which would have awoken "the sober sleeper"—and, therefore, she "was incapable of consenting to [Petitioner's] sexual act because of impairment by alcohol." Id. at *5. In a November 29, 2017 Order, the United States Court of Appeals for the Armed Forces ("CAAF") denied Petitioner's petition for grant of review. (Pet., Ex. 2.)

Petitioner asks this Court to now issue a declaratory judgment and a writ of mandamus, claiming that the military proceedings were constitutionally defective. He contends that the evidence was insufficient to support the jury's verdict and that the ACCA violated his Fifth Amendment right against double jeopardy by affirming his conviction "on a theory of which he was acquitted and on theories with which he was never charged." (Id. ¶¶ 47, 59-76.) Petitioner argues that the ACCA based its decision on the theory that SFC KM could not consent because she was asleep and not, as the jury concluded, because she was intoxicated. (Id. ¶¶ 48-49.) Additionally, Petitioner alleges that the military court erred in allowing a Sexual Assault Nurse Examiner ("SANE") to give "human lie detector testimony" and to testify as an expert. (Id. at ¶¶ 77-91.)Finally, he brings an ineffective assistance of counsel claim, based upon the trial counsel's cross examination of the SANE and failure to question SFC KM about her past relationship with an eyewitness, which "would have severely damaged both her credibility and [the eyewitness's] credibility." (Id. ¶¶ 92-104.) Respondents argue that this Court cannot address any of Petitioner's claims because they were fully and fairly considered by the military courts.

II. STANDARD OF REVIEW

In their Motion, Respondents invoke Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) as grounds for dismissing Petitioner's claims. Civil courts have jurisdiction to consider a plaintiff's collateral attack of a court-martial conviction under certain limited circumstances. Ward v. United States, 982 F.3d 906, 912 (4th Cir. 2020) ("[T]he federal court possesses jurisdiction over the [habeas] petition but 'cannot review' claims 'fully and fairly reviewed' by the military courts." (quoting United States v. Willenbring, 178 F. App'x 223, 224-25 (4th Cir. 2006))); Yongo v. United States, No. 5:10CV220F, 2013 WL 2285341, at *6 (E.D.N.C. May 23, 2013) (finding civil courts have jurisdiction over non-habeas collateral attacks as well as habeas collateral attacks), aff'd, 540 F. App'x 237 (4th Cir. 2013) (mem.). Therefore, this Court finds that Rule 12(b)(6) guides its analysis here.

"In reviewing a motion to dismiss for failure to state a claim, [a court] must 'accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in favor of the plaintiff.'" Ray v. Roane, 948 F.3d 222, 226 (4th Cir. 2020) (quoting King v. Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016)). A Rule12(b)(6) motion "does not resolve contests surrounding facts, the merits of a claim, or the applicability of defenses." Tobey v. Jones, 706 F.3d 379, 387 (4th Cir. 2013) (quoting Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)). "A complaint need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Ray, 948 F.3d at 226 (alteration in original) (quoting Tobey, 706 F.3d at 387). However, a "complaint must provide 'sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Turner v. Thomas, 930 F.3d 640, 644 (4th Cir. 2019) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "Allegations have facial plausibility 'when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Tobey, 706 F.3d at 386 (quoting Iqbal, 556 U.S. at 679). A court, however, "need not accept legal conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or arguments." Turner, 930 F.3d at 644 (quoting Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012)). In considering such a motion, a plaintiff's well-pleaded allegations are taken as true, and the complaint is viewed in the light most favorable to the plaintiff. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009). Legal conclusions enjoy no such deference. Iqbal, 556 U.S. at 678.

Generally, the district court does not consider extrinsic materials when evaluating a complaint under Rule 12(b)(6). The court, however, may "consider documents attached to the complaint" in addition to documents "attached to the motion to dismiss, so long as they are integral to the complaint and authentic." Fusaro v. Cogan, 930 F.3d 241, 248(4th Cir. 2019) (quoting Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009)). Courts may also take judicial notice of matters of public record such as court filings. Witthohn v. Fed. Ins. Co., 164 F. App'x 395, 396-97 (4th Cir. 2006).

III. DISCUSSION

Civil courts cannot review claims that have been "fully and fairly" considered by the military justice system. Burns v. Wilson, 346 U.S. 137, 142 (1953). Typically, collateral attacks of military-court convictions are raised in civil courts in the form of habeas petitions. See, e.g., id. at 144 ("It is the limited function of the civil courts to determine whether the military have given fair consideration...