Ward v. United States

982 F.3d 906

Joseph M. WARD, III, Captain (0-3) U.S. Air Force, Petitioner – Appellant,

v.UNITED STATES of America, Respondent – Appellee.

No. 19-6626

United States Court of Appeals, Fourth Circuit.

Argued: September 8, 2020

Decided: December 10, 2020

ARGUED: Captain Brian Lee Mizer, AIR FORCE APPELLATE DEFENSE DIVISION, Joint Base Andrews, Maryland, for Appellant. Matthew James Mezger, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: G. Zachary Terwilliger, United States Attorney, John E. Swords, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Before KING and FLOYD, Circuit Judges, and Thomas S. KLEEH, United States District Judge for the Northern District of West Virginia, sitting by designation.

Affirmed by published opinion. Judge King wrote the opinion, in which Judge Floyd and Judge Kleeh joined.

KING, Circuit Judge:

In these 28 U.S.C. § 2241 proceedings, Joseph M. Ward III petitioned in the Eastern District of Virginia for habeas corpus relief from his military court convictions and sentence, claiming violations of his Fifth Amendment right to due process and Sixth Amendment right to the effective assistance of counsel. The district court dismissed Ward's § 2241 petition under Federal Rule of Civil Procedure 12(b)(1) for lack of jurisdiction over the due process claim and under Rule 12(b)(6) for failure to state a plausible ineffective assistance claim. See Ward v. United States , No. 1:18-cv-00569 (E.D. Va. Mar. 27, 2019), ECF No. 10 (the "Dismissal Order"). As explained below, we affirm the dismissal of Ward's § 2241 petition but recognize that Rule 12(b)(6) is the proper basis for the dismissal of both claims.

I.

A.

The record reflects that Ward, then a Captain in the Air Force, was charged with nine violations of the Uniform Code of Military Justice, including two specifications of aggravated sexual assault, two specifications of forcible sodomy, three specifications of assault consummated by battery, and two specifications of conduct unbecoming an officer and a gentleman. The charged crimes involved two women — referred to herein as "M.W." and "R.S." — who had been dating Ward in 2011 and 2012 when he allegedly victimized them. Although M.W. and R.S. disclosed that they had numerous consensual sexual encounters with Ward, they also accused him of various acts of sexual assault.

In December 2012, Ward was tried by a general court-martial at Davis-Monthan Air Force Base in Arizona. The prosecution presented evidence that M.W. had reported to Ward's command earlier that year that Ward was engaging in threatening behavior against her (conduct that did not include sexual assault). Shortly thereafter, R.S. separately went to Ward's command and requested a "no-contact" order against him. Pressed to explain why she was seeking the order, R.S. divulged that Ward had sexually assaulted her. Because of R.S.’s allegations, military investigators set up an interview with M.W., in which she revealed that she also had been sexually assaulted by Ward. Under the prosecution's theory of the case, R.S. and M.W. were credible because — despite not knowing each other — their allegations against Ward were quite similar. The defense countered with a theory, however, that R.S. and M.W. actually were acquainted and conspired to falsely accuse Ward of sexual assault to punish him for being unfaithful to and then scorning each of them.

Over Ward's objection, the military judge instructed the jurors that, if one charged act of sexual assault was proved by at least a preponderance of the evidence, that act could be used as propensity evidence when considering other sexual assault charges. See J.A. 196-97.¹ That propensity instruction was based on a pattern instruction in the then-applicable 2006 version of the Military Judges’ Benchbook , addressing how a jury could use propensity evidence under Military Rule of Evidence 413, entitled "Similar Crimes in Sexual Offense Cases." Precedent of the Court of Appeals for the Armed Forces suggested that the propensity instruction was proper. See United States v. Burton , 67 M.J. 150, 152-53 (C.A.A.F. 2009) ; United States v. Wright , 53 M.J. 476, 481-83 (C.A.A.F. 2000). And, "at that time, the common understanding of the law [among the trial judges and the lower military courts of criminal appeals] was that charged misconduct could be used as propensity evidence under [Rule] 413." See United States v. Hukill , 76 M.J. 219, 222 (C.A.A.F. 2017). The judge in Ward's court-martial proceedings instructed, inter alia, that "proof of one [charged] sexual assault creates no inference that the accused is guilty of any other sexual assault.

However, it may demonstrate that the accused has a propensity to commit that type of offense." Id. at 197.

The prosecutor referenced the propensity instruction in his closing arguments, explaining that "here's what it boils down to: If you believe that [Ward committed] one of those [charged] sexual assaults ... to a preponderance of the evidence, but it doesn't meet that beyond a reasonable doubt, you can still use that for another offense to show that he has a propensity to commit sexual assaults." See J.A. 202. The prosecutor elaborated:

So you can think, "Well, I think [Ward] did it. I think he committed the assault against [M.W.], but it doesn't rise to the level of beyond a reasonable doubt, but I still think he did it." You can actually use that for the sexual assault alleged against [R.S.] That's an important instruction for you guys to consider because these charges, these victims, it didn't happen in a vacuum. And so this evidence can be used in a very important way.

Id. at 202-03.

Ultimately, however, the prosecutor emphasized in his closing arguments that the case turned on the joint credibility of M.W. and R.S. That is, the prosecutor argued that the jurors would either believe both women because of their similar accounts of sexual assault and convict Ward on all nine charges, or the jurors would doubt the women's credibility based on Ward's theory of a conspiracy and acquit him on all charges. See J.A. 228-30. Ward's defense counsel then pronounced in his closing arguments that "I agree that this case is about credibility of [M.W. and R.S.]. And I agree that it's essentially an all-or-nothing case." Id. at 250. Thereafter, the members of the court-martial convicted Ward on all charges and sentenced him to eight years of confinement.

Although Ward's counsel had repeatedly stated his objection to the propensity instruction during the court-martial proceedings, he failed to raise any challenge to that instruction on direct appeal. By its decision of October 23, 2014, the Air Force Court of Criminal Appeals rejected the appellate issues presented by Ward and confirmed his convictions and sentence. The Court of Appeals for the Armed Forces denied review of that decision by its order of February 18, 2015.

B.

On June 27, 2016, more than a year after Ward's losing efforts to overturn his convictions on direct appeal, the Court of Appeals for the Armed Forces decided in United States v. Hills that a propensity instruction like the one given during Ward's court-martial proceedings constituted a misuse of Military Rule of Evidence 413 and a breach of the defendant's Fifth Amendment right to due process. See 75 M.J. 350, 354-57 (C.A.A.F. 2016). With respect to the constitutional error in giving the instruction, the Hills court reasoned that allowing the use of charged conduct as propensity evidence to prove other charges "violated [the defendant's] presumption of innocence and right to have all findings made clearly beyond a reasonable doubt." Id. at 356 (citing In re Winship , 397 U.S. 358, 363-64, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ; Coffin v. United States , 156 U.S. 432, 453-54, 15 S.Ct. 394, 39 L.Ed. 481 (1895) ). In the court's words, "[i]t is antithetical to the presumption of innocence to suggest that conduct of which an accused is presumed innocent may be used to show a propensity to have committed other conduct of which he is presumed innocent." Id.

Within the next year, the Court of Appeals for the Armed Forces reiterated its Hills holding in its May 2, 2017 decision in Hukill . The Hills and Hukill decisions explained that, on direct appeal, an improper propensity instruction is subject to harmless error review. See Hills , 75 M.J. at 358 ("If instructional error is found when there are constitutional dimensions at play, the appellant's claims must be tested for prejudice under the standard of harmless beyond a reasonable doubt." (alteration and internal quotation marks omitted)); accord Hukill , 76 M.J. at 222. The propensity instructions in Hills and Hukill were determined to be prejudicial; in direct appeals in the military courts since then, similar instructions have been deemed prejudicial in some circumstances and harmless in others.

On July 12, 2017, a then-imprisoned Ward filed a petition in the Air Force Court of Criminal Appeals for a writ of error coram nobis, invoking the Hills and Hukill decisions and asserting that the propensity instruction given during his court-martial proceedings contravened his Fifth Amendment right to due process. On September 20, 2017, while Ward's coram nobis petition was pending, the court of criminal appeals issued its decision in Lewis v. United States , 76 M.J. 829 (A.F. Ct. Crim. App. 2017), denying the coram nobis petition of another prisoner who claimed under Hills and Hukill that a propensity instruction was unconstitutional.

Favorably to the petitioner, the Air Force Court of Criminal Appeals recognized in Lewis that it has "jurisdiction over a petition for a writ of coram nobis alleging an earlier judgment of conviction previously reviewed by this court was flawed in some fundamental respect." See 76 M.J. at 833. For support, the Lewis court invoked the precedent of Chapman v. United States , 75 M.J. 598 (...