United States District Court, S.D. New York
ORDER ADOPTING REPORT AND RECOMMENDATION
RONNIE ABRAMS, District Judge.
In this amended petition for a writ of habeas corpus (the "Petition"), filed pursuant to 28 U.S.C. § 2241, Petitioner Peter T. Roukis challenges his conviction by general court-martial and subsequent confinement. On January 23, 2013, Magistrate Judge Debra C. Freeman issued a Report and Recommendation (the "Report") recommending the dismissal of the Petition, to which Petitioner has objected. For the following reasons, the Court adopts the Report with the modifications stated herein.
In April 1998, Petitioner, who had been a private in the United States Army, was convicted by general court-martial of the pre-meditated murder of his wife, Jennifer Roukis. He was sentenced to a dishonorable discharge, forfeiture of all pay and allowances, reduction to Private E 1, a reprimand, and confinement for life. (United States Army's Response to Petition for Writ of Habeas Corpus ("Resp.") Ex. 11.) Petitioner then appealed his conviction and sentence to the United States Army Court of Criminal Appeals ("ACCA") and the United States Court of Appeals for the Armed Forces ("CAAF"). (Report 10.)
On January 30, 2006, after the completion of the military appellate courts' direct review of his case, Petitioner was discharged from the Army and his sentence became final under Article 76 of the Uniform Code of Military Justice. (See Resp. Exs. 2, 26.) In 2008, Petitioner began filing pro se petitions for habeas and other extraordinary relief in the ACCA and CAAF, all of which were summarily denied. (See id. Exs. 16, 18, 19, 22, 24, 25, 28.)
In the instant Petition (his seventh overall), Petitioner asserts six claims challenging his conviction and confinement: (1) Petitioner should have been granted a new Article 32 investigation after defense counsel raised concerns about his mental competency; (2) the military judge erred by allowing the Government to introduce statements Petitioner made during psychological evaluations; (3) the military judge erred by allowing the Government to introduce statements Petitioner made to a New York City detective; (4) defense counsel was ineffective for failing to advise Petitioner of a plea offer; (5) defense counsel was ineffective by waiving Petitioner's pre-trial objection to the testimony of a fellow service member; and (6) Petitioner's confinement in the Bureau of Prisons ("BOP"), and not the United States Military Barracks, violates his rights to due process and equal protection of law (together, the "original claims").
Petitioner raised these six claims at various points throughout his court-martial, direct appeal, and collateral review proceedings in the ACCA and CAAF. Claim One, regarding the Article 32 investigation, was raised in a pre-trial motion and denied by the military judge. (Resp. Exs. 10, 14.) Petitioner did not appeal the claim, but he later asserted it in habeas corpus petitions to the ACCA and CAAF. (Id. Exs. 18, 21.) Similarly, Claim Two, regarding the use of statements from psychological evaluations, was first raised as an objection to their introduction at trial, and then not raised again until Petitioner applied to the military appellate courts for habeas relief after the conclusion of his direct appeals. (Id. Exs. IE, 18, 21.) Claim Three, concerning the statements made to a New York City detective, was raised at trial, appealed to the ACCA (but not further appealed to the CAAF), and then later raised again in Petitioner's military appellate court habeas petitions. (Id. Exs. 4, 9, 10, 15, 18, 21.) Claims Four and Five, which raise allegations of ineffective assistance of counsel, were not raised on direct appeal but were asserted in Petitioner's military appellate court habeas petitions. (Id. Exs. 18, 21.) Claim Six, which challenges Petitioner's BOP confinement, did not arise until he was serving his sentence and was first raised in petitions for unspecified extraordinary relief filed in the ACCA and CAAF. (Id. Exs. 16, 17, 24, 28.)
Upon review of the instant Petition, Judge Freeman concluded that the record was sufficient to establish that Petitioner's six claims, although "summarily denied by the military courts, " were given "fair consideration" by those courts on direct and collateral review. (Report 23-24.) Judge Freeman also reached the merits of Claim Six, which unlike his other claims, was not challenged by Respondent on the basis that it had been fully and fairly considered by the military courts. Judge Freeman nonetheless concluded that the BOP-confinement claim failed on the merits because Petitioner's "treatment as a civilian prisoner does not offend the Constitution." (Id. 25.)
In his objections to the Report, filed on March 5, 2013, Petitioner specifically references Claims One, Two, and Six and otherwise objects to the Report "in its entirety." (Petitioner's Objections to the Report & Recommendation ("Obj.") 3, 7, 10-11.) Petitioner also raises three new arguments which were not presented to Judge Freeman: (1) that the ACCA and CAAF lacked jurisdiction to entertain his petitions for collateral relief (id. 5); (2) that there have been changes in the "scope of inquiry on habeas corpus" petitions (id. 12-13); and (3) that two documents, neither of which Petitioner submitted with the Petition, should be considered in adjudicating the Petition (id. 15-33). The United States Army responded to Petitioner's objections by way of letter dated April 15, 2013. (Dkt. 48.) On September 26, 2013, Petitioner filed an application to appoint counsel pursuant to 18 U.S.C. § 3006(A)(g). (Dkt. 51.) After the Court denied the application, (Dkt. 53), Petitioner submitted a reply on November 19, 2013, (Dkt. 54).
A district court reviewing a magistrate judge's report and recommendation "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). A court may accept portions of a report to which no objections are made as long as those portions are not "clearly erroneous." Greene v. WCI Holdings Corp., 956 F.Supp. 509, 513 (S.D.N.Y. 1997) (citing Fed.R.Civ.P. 72(b)). A court must undertake a de novo review of those portions to which specific objections are made. See § 636(b)(1); Greene, 956 F.Supp. at 513 (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)). However, "to the extent that the party makes only conclusory or general objections, or simply reiterates the original arguments, the Court will review the Report strictly for clear error." See, e.g., Alam v. HSBC Bank USA, N.A., No. 07 Civ. 3540 (LTS), 2009 WL 3096293, at *1 (S.D.N.Y. Sept. 28, 2009). "Objections of pro se litigants are generally accorded leniency and construed to raise the strongest arguments that they suggest." Quinn v. Stewart, No. 10 Civ. 8692 (PAE) (JCF), 2012 WL 1080145, at *4 (S.D.N.Y. April 2, 2012) (internal quotations omitted). "Nonetheless, even a prose party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no party be allowed a second bite at the apple' by simply relitigating a prior argument." Id . (quoting Pinkney v. Progressive Home Health Servs., 06 Civ. 5023 (LTS), 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008)).
The scope of federal habeas review of the decision of a military court-martial is circumscribed. Initially, the court "must determine whether the military courts gave full and fair consideration to the petitioner's claims." Brown v. Gray, 483 F.Appx. 502, 504 (10th Cir. 2012). If the military courts gave full and fair consideration to a petitioner's claims, "it is not open to a federal civil court to grant the writ simply to re-evaluate the evidence." Burns v. Wilson, 346 U.S. 137, 142 (1953), reh'g denied, 346 U.S. 844 (1953). It is only when the military has not dealt fully and fairly with a claim that "the scope of review by the federal civil court expand[s]" and the federal civil court may reach the merits of the petitioner's claims. Lips v. Commandant, U.S. Disciplinary Barracks, 997 F.2d 808, 811 (10th Cir. 1993).
As a general matter, an issue has been given "full and fair consideration" when it has been "adequately briefed and argued before the military courts... even if the military court disposes of the issue summarily." Roberts v. Callahan, 321 F.3d 994, 997 (10th Cir. 2003). Similarly, a court's failure to hear oral argument is not fatal to "full and fair consideration." "[M]ilitary courts, like civilian courts, must diligently review all arguments presented by the parties, " and courts "decline to presume a military appellate court has failed to consider all the issues presented to it before making a decision." Thomas v. U.S. Disciplinary Barracks, 625 F.3d 667, 671-72 (10th Cir. 2010).
"Finally, a petitioner cannot argue that his claims were not given full and fair consideration by the military courts, if he never presents the claims to the military courts." Grafmuller v. Wegner, 13 Civ. 50 (RAJ) (DEM), 2013 WL 4808881, at *8 (E.D. Va. Aug. 9, 2013), report and recommendation adopted, 2013 WL 4804288 (E.D. Va. Sept. 5, 2013), aff'd, 571 F.Appx. 184 (4th Cir. 2014); see also Roberts, 321 F.3d at 995; Watson v. McCotter, 782 F.2d 143, 145 (10th Cir. 1986). "If a habeas petitioner neither makes a timely objection to an issue nor raises the issue on appeal, then he has waived that claim." Grafmuller, 2013 WL 4808881 at *8 (citing Lips, 997 F.2d at 812); see also Wolff v. United States, 737 F.2d 877, 880 (10th Cir. 1984). Relatedly, a petitioner seeking relief from an Article III court must first exhaust all remedies in the military courts. Loving v. U.S., 68 M.J. 1, 3 (C.A.A.F. 2009). To overcome procedural default and "obtain federal habeas review of ...