UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA. Case No.:

Transcription

1 Case :-cv-0-gpc-jma Document Filed 0// PageID. Page of 0 0 David P. Sheldon (DC Bar # 0) Law Offices of David P. Sheldon, P.L.L.C. 00 M Street S.E., Suite 00 Washington, DC 00 davidsheldon@militarydefense.com Tel: Fax: 0..0 Attorney for Plaintiff Kevin B. McDermott (CA Bar # 0) Law Offices of Kevin B. McDermott 00 Spectrum Center Drive, Suite 0 Irvine, CA warlawyer@aol.com Tel:..00 Fax:.- Associate Local Counsel UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA JAMES R. RICH, Naval Consolidated Brig Marine Corps Station Miramar Miramar Way, Suite San Diego, California vs. Petitioner, The Honorable Sean J. Stackley Secretary of the Navy Department of the Navy 00 Navy Pentagon Washington, DC 00 Respondent, Case No.: 'CV GPC JMA PETITION FOR A WRIT OF HABEAS CORPUS

2 Case :-cv-0-gpc-jma Document Filed 0// PageID. Page of 0 0 Petitioner, James R. Rich, is being unlawfully detained due to a general court-martial conviction and sentence, and requests that this court reverse, overturn, and vacate the general court-martial conviction and sentence imposed by the convening authority. I. JURISDICTION AND VENUE ) This court has jurisdiction to issue a writ of habeas corpus under U.S.C. (0). ) Under U.S.C. (c)(), a person held in custody by the United States may seek habeas corpus relief. ) The writ of habeas corpus is the proper procedure for securing the immediate release of a member of the U.S. Navy, where the Navy unlawfully continues to confine the member due to an unconstitutional denial of that member s right to due process. Burns v. Wilson, U.S., (). ) Venue in this district is proper pursuant to (d) which states that the application for a writ of habeas corpus may be filed in the district court for the district wherein such person is in custody. II. THE PARTIES ) Petitioner was an Aviation Structural Mechanic (Equipment) Second Class (AME) in the U.S. Navy. He is presently confined in the stockade at the Naval Consolidated Brig Miramar, California.

3 Case :-cv-0-gpc-jma Document Filed 0// PageID. Page of 0 0 ) Petitioner was convicted by general court-martial of aggravated sexual abuse of a child, aggravated sexual contact with a child, and indecent liberty with a child in violation of Article 0 Uniform Code of Military Justice (UCMJ), and was sentenced to confinement for seven years and a dishonorable discharge. 0 U.S.C. 0 (00). ) On review by convening authority, Petitioner had the second and third charges dismissed and the automatic six-month forfeitures waived, but the convening authority approved and ordered the sentence executed, except the punitive discharge. ) Defendant acts on behalf of the United States of America in his official capacity as the Secretary of the Navy. III. STATEMENT OF FACTS ) In early 0, Petitioner lived in Virginia Beach, VA with his girlfriend Michelle Dalrymple (M.D.) and her three-year-old daughter, A.D., in a twobedroom apartment. 0) A.D. was the daughter of M.D. from a prior marriage, and as a result of the divorce, A.D. spent two-month periods with her mother. ) Petitioner, M.D., and A.D. had a family-oriented relationship and Petitioner and M.D. had plans to get married in the near future.

4 Case :-cv-0-gpc-jma Document Filed 0// PageID. Page of 0 0 ) M.D. trusted Petitioner with her daughter and Petitioner was given the duty of watching A.D. when M.D. was busy working or taking classes. M.D. took evening classes in January 0 and Petitioner was responsible for picking A.D. up from preschool and watching her until M.D. returned from class. ) A.D. required attention and entertainment, so Petitioner allowed A.D. to use his phone as a form of supervised entertainment. ) Petitioner s phone contained a video of a sexual act being performed between M.D. and Petitioner. ) This specific video depicted a male s genitals, without showing the face or torso, and M.D. laying in a dark room performing oral sex on Petitioner in the video. ) In this video M.D. never requested that the man stop or remove his hand from the back of her head, smiled throughout the video, and did not make any complaints. ) On January, 0 M.D. returned from class and prepared A.D. and herself for a shower as a part of their nightly bedtime routine. Petitioner was not home at the time, and M.D. and A.D. were the only two present in the house. ) At this time A.D., in a proud and happy manner, stated, Guess what. I kissed Guy s private parts. Guy was the nickname that A.D. used to recognize Petitioner.

5 Case :-cv-0-gpc-jma Document Filed 0// PageID. Page of 0 0 ) M.D. responded, No, you didn t and A.D. replied Mmhmm. 0) M.D. questioned A.D. further about the statement that she had just made. M.D. stated that she continued asking questions and after further answers and gestures made by A.D. about the interaction with Petitioner earlier that day, M.D. concluded that A.D. had performed an act of oral sex on the Petitioner. ) When Petitioner returned home that night, M.D. did not confront him with these allegations. The next day M.D. consulted a friend about the incident and then reported the alleged sexual abuse of A.D. to civilian authorities. ) After M.D. filed a report with the authorities, A.D. went to live with her father in Pennsylvania, while M.D. and Petitioner continued to live together for five to six weeks and remained sexually intimate. ) When the Trial Counsel visited A.D. at her residence, A.D. could not recall the events she had told her mother about, involving herself and the Petitioner, and could not remember what had allegedly happened between herself and the Petitioner. ) Trial Counsel moved, in part, to admit A.D. s statement and demonstration of the sexual act performed between her and Petitioner, and both A.D. and M.D. testified in support of this motion. ) At the time of the trial when A.D. testified, she was six years old, and three years removed from the act that had allegedly occurred in January 0.

6 Case :-cv-0-gpc-jma Document Filed 0// PageID. Page of 0 0 ) A.D. and M.D. s testimonies were noticeably different when recounting the alleged act that had occurred three years prior. The testimonies deviated in the aspects of ) when A.D. reported the incident to her mother; and ) A.D. s description of where the alleged act happened. ) A.D. was unable to recall and describe the alleged act in the way that she had described it to her mother in January of 0. This led the military judge to rule that A.D. s out-of-court statements to her mother were permissible under dual bases of the excited utterance exception (Mil. R. Evid. 0()) and the residual hearsay exception (Mil. R. Evid. 0). Mil. R. Evid. 0(). Mil. R. Evid. 0. ) When selecting panel members for trial, Petitioner decided to be tried by officer and enlisted members. One of these members was Lieutenant Hyun Kim who was from South Korea and had learned English as a second language. stating: ) During group voir dire, the military judge gave instructions to the panel If the accused is found guilty of any of the offenses it will be your duty to adjudge an appropriate punishment. I will instruct you on the law you must follow in arriving at an appropriate sentence in this case. Included will be an instruction to the effect that you should consider all matters presented in extenuation and mitigation of the offenses by the accused, as well as all matters presented in aggravation of the offenses by the counsel. 0) The military judge then proceeded in asking questions, which included the following questions:

7 Case :-cv-0-gpc-jma Document Filed 0// PageID. Page of 0 0 () Is there any member who will be unable to follow my instructions on the law that must be applied in the case? Every member of the panel, including LT Kim, responded no, which lead to further questioning. () You may not have any preconceived formula or any fixed, inelastic, or inflexible attitudes concerning a particular type of punishment that you feel must or should be imposed including an opinion as to whether a dishonorable discharge or confinement must be adjudged simply because of the nature of number of the offenses or because the accused has been found guilty. Will each of you be able to follow this instruction, if sentencing is necessary? All of the panel members, including LT Kim, responded affirmatively. ) During voir dire, LT Kim indicated that he would be able to follow the military judge s instructions in considering all matters presented before the panel and that he would not have a fixed, inflexible, or preconceived notion towards a particular punishment for Petitioner. ) During presentencing, the Petitioner presented evidence through documents and testimonies that showed he had good military character. This included presenting evaluations and awards. Petitioner had his supervisor, Aviation Structural Mechanic Chief (AMEC) Williams, testify on his behalf. Williams stated that Petitioner was in the top five percent of all of the sailors under his supervision throughout his tenure with the Navy and had an outstanding character.

8 Case :-cv-0-gpc-jma Document Filed 0// PageID. Page of 0 0 ) Once Petitioner had presented all forms of documentation and testimonies, the military judge instructed the members of the panel, stating: all the evidence you have heard in this case is relevant on the subject of sentencing. He told the panel they had to resolve the question of guilt based on the evidence presented and the prior instructions he had given to them. The military judge told the panel that evidence of Petitioner s good military character may be sufficient to cause reasonable doubt as to Petitioner s guilt. ) Petitioner was convicted by the general court-martial panel of aggravated sexual abuse of a child, aggravated sexual contact with a child, and indecent liberty with a child in violation of Article 0, Uniform Code of Military Justice (UCMJ), and was sentenced to confinement for years and a dishonorable discharge. 0 U.S.C. 0 (00). ) On review by the convening authority, Petitioner had the second and third charges dismissed and the automatic six-month forfeitures waived, but the convening authority approved and ordered the sentence executed except the punitive discharge. ) Three months after Petitioner s general court-martial had concluded, LT Kim served as a panel member in a case titled United States v. Delaney which was also a court-martial case.

9 Case :-cv-0-gpc-jma Document Filed 0// PageID. Page of 0 0 ) During voir dire of the Delaney case, LT Kim stated that he would not consider the entire career of the accused when deliberating and determining a sentence, which is inconsistent with the statement he made during voir dire of Petitioner s case. In Petitioner's case, LT Kim stated that he would consider the accused s entire career if that is what the military judge instructed. ) In voir dire of Delaney, LT. Kim said that he did not consider Petitioner s entire military record when determining the punishment and that the deciding factor for him was the nature of the crime. LT Kim stated: In the previous trial I was presented with all the evals and all the great things that the defendant had done for the Navy prior to what he committed but I just found them to be irrelevant at the time. I didn t really care if he was an EP Sailor or an MP Sailor. The only thing that mattered to me at the time was that he committed the crime and that was my only consideration at the time. ) LT Kim made it clear that he did not believe the Petitioner s military career and prior military accomplishments were relevant in determining his punishment, even though the military judge had instructed the panel not to overlook the Petitioner s good military character when determining the conviction and sentence. 0) When LT Kim was asked if he didn t consider all of the evidence that was presented in Petitioner s case and didn t think the evidence mattered because of the severity of the crime, he responded in the affirmative. LT Kim also stated that he might have zoned out when the military judge was giving instructions.

10 Case :-cv-0-gpc-jma Document Filed 0// PageID.0 Page 0 of 0 0 ) In learning of LT Kim s disregard of the military judge s instructions, Petitioner appealed the decision of the general court-martial and filed an appeal in the United States Navy-Marine Corps Court of Criminal Appeals on March, 0. ) The Petitioner made three arguments upon appeal which included: () Petitioner did not receive a fair and impartial member panel because LT Kim did not honestly answer the questions during voir dire and, if he had answered honestly, the defense would have been able to challenge him for actual and implied bias. () The military judge improperly allowed A.D. s hearsay statement to her mother, saying it was improper because A.D. was not stressed or excited when making the statement and the probative value of the testimony A.D. made was low. Also, the defense argued that it was an error by the military judge to admit M.D. s testimony. () The defense s introduction of the video in which A.D. s mother was performing the same sexual act that A.D. alleged, and the defense argued that A.D. saw this video and created a falsified allegation against Petitioner. The defense argued that A.D. also had given inconsistent statements and this showed the dishonesty of her statements. ) The Court of Criminal Appeals disagreed with Petitioner s appeal and affirmed the findings and sentences made by the general court-martial on December, 0.

11 Case :-cv-0-gpc-jma Document Filed 0// PageID. Page of 0 0 ) The Court of Criminal Appeals answered Petitioner s three arguments upon appeal as follows: () Military Rule of Evidence 0(b) and prior Supreme Court application of this rule shows that evidence of what a juror said during deliberations to demonstrate a juror s dishonesty during voir dire is excluded. The only evidence of LT Kim s dishonesty during voir dire was his statement about his mental process when deciding the appropriate sentence, and this is precluded under Military Rule 0(b). () The findings and permission by the military judge to allow A.D. s initial statements to her mother to be used at trial fall under the residual hearsay exception of Military Rule of Evidence 0, and therefore the military judge s findings of fact and permission to allow the initial statement were not clearly erroneous and were not an abuse of discretion. () The testimony of A.D. was relevant and sufficiently credible, and the fact that the statements were spontaneous and consistent, showed usage of age appropriate terms and concepts, and the lack of an indication that she made the statements with a motive to fabricate show that A.D. s statements were legally and factually sufficient. Appendix I. ) On February, 0 Petitioner filed a petition for the United States Court of Appeals for the Armed Forces for a grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals which was denied on March, 0. Appendix II.

12 Case :-cv-0-gpc-jma Document Filed 0// PageID. Page of ) Petitioner now presents this petition for habeas corpus. 0 0 IV. SCOPE OF REVIEW ) In habeas reviews, federal civil courts must review claims of denial of due process rights to which military courts have not given full and fair consideration. Burns, U.S. at. ) Four questions are examined to determine whether a federal habeas court should decide in favor of a constitutional challenge to a court-martial conviction: () whether the asserted error is of substantial constitutional dimension; () whether the issue is one of law rather than one of disputed fact already determined by military tribunals; () whether military considerations warrant different treatment of the constitutional claim(s); and () whether the military courts gave adequate consideration to the issues involved and applied proper legal standards. Calley v. Callaway, F.d, 0 (th Cir. ) (en banc), cert. denied, U.S. (). See Monk v. Zelez, 0 F.d, (0th Cir. 0)); Mendrano v. Smith, F. d, n. (0th Cir. ). ) As stated by the Burns Court:

13 Case :-cv-0-gpc-jma Document Filed 0// PageID. Page of 0 0 The constitutional guarantee of due process is meaningful enough, and sufficiently adaptable, to protect soldiers as well as civilians from the crude injustices of a trial so conducted that it becomes bent on fixing guilt by dispensing with rudimentary fairness rather than finding truth through adherence to those basic guarantees which have long been recognized and honored by the military courts as well as the civilian courts. Burns, U.S. at -. 0) As such, Burns holds that where military courts have manifestly refused to consider (a habeas petitioner s) claims, federal district courts may review such claims de novo. Id. at. ) The standard of review for military habeas cases is extremely narrow. Monk, 0 F.d at. Therefore, the U.S. Supreme Court may not review by writ of certiorari under any section any action by the Court of Appeals for the Armed Forces in refusing to grant a petition for review. 0 U.S.C.. V. Claims A. Count I: Violation of a Fair and Impartial Jury ) The Sixth Amendment requirement of an impartial jury also applies to court-martial members and includes not only their selection, but also their conduct during the trial proceedings and the subsequent deliberations. United States v. Lambert, M.J., (C.A.A.F. 00). ) Voir dire is used to uncover any bias that a member of the panel may have so that the accused receives an impartial and fair trial. To ensure an impartial and fair trial, members of the panel who show bias can be challenged for cause and

14 Case :-cv-0-gpc-jma Document Filed 0// PageID. Page of 0 0 dismissed from the panel. Where a potential member is not forthcoming the process may well be burdened intolerably. United States v. Mack, M.J., (C.M.A. ). ) The Supreme Court has stated: Voir dire examination serves to protect that right (fair trial) by exposing possible biases, both known and unknown, on the part of potential jurors. Demonstrated bias in the responses to question on voir dire may result in a juror being excused for cause...the necessity of truthful answers by prospective jurors if this process is to serve its purpose is obvious. United States v. Albaaj, M.J., (C.A.A.F. 00) (quoting McDonough Power Equip. Inc. v. Greenwood, U.S., ()). ) Panel members, when participating in voir dire, are expected to provide complete honesty with the court-martial. United States v. Albaaj, M.J., (C.A.A.F. 00) (citing United States v. Modesto, M.J., (C.A.A.F. )). Anything less undermines the purpose of the member selection process at trial and, in turn, potentially deprives an accused of an impartial determination of guilt and fair trial. Albaaj, M.J. at. ) The Court created a two-pronged test to determine whether a new trial is warranted when a juror has failed to disclose information during voir dire. () The juror failed to answer the material question, during voir dire, honestly; and () a correct response would have provided a valid basis for a challenge for cause. Mack, M.J. at.

15 Case :-cv-0-gpc-jma Document Filed 0// PageID. Page of 0 0 ) LT Kim s post-trial comments show that he was not honest in his responses to the voir dire questions in Petitioner s court martial. ) During voir dire, LT Kim was asked by the military judge if he would follow instructions, would consider mitigation and extenuation matters, and would not have a preconceived notion for sentencing based on the alleged offense of Petitioner. He affirmed all of these to the military judge. ) The answers LT Kim provided in voir dire were dishonest, as he disregarded the service record of Petitioner in the finding and sentencing made by the court-martial panel. 0) LT Kim presented both actual and implied bias. Actual bias was evident through LT Kim s predetermined mindset that good military character was not a relevant factor in the trial. LT Kim s personal bias would not have been altered by the military judge s instructions or the evidence produced at trial. Implied bias was evident because LT Kim s impartiality and fairness would be doubted by a reasonable person of the public. ) Had LT Kim answered truthfully during voir dire in Petitioner s case, his bias would have permitted a successful challenge for cause. By lying during voir dire, the defense was unaware that they needed to uncover his actual and implied bias.

16 Case :-cv-0-gpc-jma Document Filed 0// PageID. Page of 0 0 ) Petitioner s convictions and sentence were a result of having a biased member on the panel in the court-martial. The findings and sentence should be set aside because Petitioner was deprived of a fair and impartial panel. ) Therefore, in view of the refusal by the Court of Criminal Appeals to remand for a rehearing with an impartial panel, and the denial of the Court of Appeals for the Armed Forces to review any procedural violations, the failure of these appellate courts to assure that Petitioner was properly granted a fair and impartial trial now mandates issuance of a writ of habeas corpus. B. Count II: Error in Granting a Hearsay/Excited Utterance Exception ) The military judge ruled that A.D. s original statement to her mother was admissible under two hearsay exceptions: () excited utterance; and () the residual hearsay exception. ) The military judge made an error in granting A.D. s out-of-court statement under the excited utterance exception. Granting this excited utterance exception is in violation of the Military Rules of Evidence 0(). Mil. Rule. Evid. 0(). The Manual for Court-Martial defines an excited utterance as a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. ) The court has interpreted excited utterance to mean that: It must appear that the declarant s condition at the time was such that the statement was spontaneous or impulsive rather than the product of reflection

17 Case :-cv-0-gpc-jma Document Filed 0// PageID. Page of 0 0 or deliberation since the key to the rule is lack of capacity to fabricate not lack of time, the lapse of time between the alleged event and the statement is not outcome-determinative. The crucial point is that the court must be able to find that the declarant s state of mind at the time (s)he made the declaration ruled out the possibility of conscious thought. United States v. Keatts, 0 M.J. 0, (C.M.R. ). ) The court has ruled that statement(s) are not considered excited utterances when the child () shows no signs of excitement or agitation when describing the event; and () the comments are responses to questions asked by the mother. United States v. LeMere, M.J., (C.M.A. ). ) In the case at bar, in view of the fact that A.D. was described as proud, happy, and wasn t scared shows that A.D. was not stressed or excited during the statements to her mother describing the alleged event. The statement provided by A.D. on the night of the alleged incident was a result of deliberate questioning by M.D., and A.D. s responses showed no signs of emotional outburst. ) The admission of an excited utterance can only be overturned upon a showing of a clear abuse of discretion by the judge. Keatts, 0 M.J. at. 0) Thus as a matter of law, A.D. s statement was not an excited utterance and it was an abuse of discretion for the military judge to admit A.D. s statement based upon the excited utterance exception, and a clear violation of law to not subject this lack of due process to appellate review.

18 Case :-cv-0-gpc-jma Document Filed 0// PageID. Page of 0 0 ) The military judge made an error in granting A.D. s out-of-court statement under the residual hearsay exception as well. The granting of the residual hearsay exception is in violation of Military Rule of Evidence 0. A statement that does not meet the other hearsay exceptions is admissible if: () it is evidence of material fact; () it is more probative than other evidence; and () the general purpose of the rules and the interests of justice are served by its admission. Mil. R. Evid. 0. ) Congress intended that the residual hearsay exception(s) will be used very rarely, and only in exceptional circumstances. United States v. Guaglione, M.J., (C.M.A. ). ) The court has held that in order for the residual hearsay exception(s) to apply, the Government has the burden in establishing that it is unable to procure a more probative testimony through other reasonable means, pursuant to Military Rule of Evidence 0(b). United States v. Czachorowski, M.J., (C.A.A.F. 00). ) In the case at bar the Government failed to show that the admitted hearsay was more probative than other available evidence. ) M.D. s testimony was not more probative than A.D s testimony, because A.D. was able to recall her own experience and tell the members about what

19 Case :-cv-0-gpc-jma Document Filed 0// PageID. Page of 0 0 allegedly happened to her. Thus, M.D. s testimony should not have been admitted as a residual hearsay. ) The courts have also found that the residual hearsay exception is inapplicable when the evidence is able, or reasonably able, to be obtained directly from the declarant. Czachorowski, M.J. at. ) The direct testimony of the hearsay declarant is considered to be the most probative evidence. ) In the case at bar not only was A.D. available to testify, but she did in fact testify. M.D. s testimony about what A.D. had said the night of the incident fails the second prong of the residual hearsay exception, because it was not the most probative evidence. The most probative evidence was A.D. s testimony that she gave directly at trial. ) The military judge erred when he relied on the assertion of the Government that the most probative evidence available was M.D. s testimony about A.D. s statements the night of the alleged incident. 0) Therefore, the military judge s admittance of A.D. s out of court statement through M.D. s testimony shows a clear abuse of discretion, and a clear violation of law to not subject this to appellate review. C. Count III: Factually and Legally Insufficient Convictions

20 Case :-cv-0-gpc-jma Document Filed 0// PageID.0 Page 0 of 0 0 ) The court(s) have established tests for both legal and factual sufficiency. The test for legal sufficiency is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt. Jackson v. Virginia, U.S. 0, (). Id. at. ) The test for factual sufficiency is: whether, after weighing evidence in the record of trial and making allowances for not having personally observed the witnesses, (the Court is) convinced of the accused s guilt beyond a reasonable doubt. ) The Court is to judge the credibility of witnesses, determine controverted questions of fact, and substitute its judgement for that of the military judge or court-martial members. United States v. Cole, M.J. 0, (C.M.A. 0). ) In the case at bar, the Government failed to prove beyond a reasonable doubt that Petitioner engaged in the alleged sexual conduct with A.D. ) A.D. s testimony is the only evidence in support of the alleged sexual act, but the testimony was taken when A.D. was six years old, nearly three years after the alleged event had occurred. This requires that A.D. remember facts and details of an event that occurred when she was only three years of age.

21 Case :-cv-0-gpc-jma Document Filed 0// PageID. Page of 0 0 ) The three-year period between the alleged event and A.D. s testimony marks a time that calls A.D. s credibility into question. During this time period, A.D. claimed to have no memory of the alleged events, but then at the time of trial was able to testify about the same event and describe it in detail. ) This sense of indecisiveness that lingered over A.D. can be attributed to two major issues, which call into question her credibility. () A video displaying A.D. s mother (M.D.) performing oral sex on Petitioner. This video was found on Petitioner s cell phone, and was located on the cell phone at the time A.D. made her allegations. Considering the fact that A.D. was happy and proud when discussing the alleged incident to her mother, it can be inferred that A.D. had seen the video and created a story that she thought would impress her mother. () A.D. was not a credible witness. This lack of credibility is due to her claim of having no memory of the alleged event when the trial counsel visited her before trial. Then at trial, A.D. testified that she remembered the alleged incident and was able to describe it in detail, without an explanation as to why she had forgotten the event prior to trial. ) Under these circumstances, no reasonable members panel should have found Petitioner guilty beyond a reasonable doubt, making Petitioner s convictions both legally and factually insufficient.

22 Case :-cv-0-gpc-jma Document Filed 0// PageID. Page of 0 0 Prayer for Relief WHEREFORE, Petitioner respectfully prays that this Honorable Court: ) Immediately reverse, overturn, and vacate, in its entirety, the general courtmartial conviction and sentence imposed by the convicting authority and affirmed by the Court of Criminal Appeals which ultimately found Petitioner guilty of Petitioner was convicted by the general court martial panel of aggravated sexual abuse of a child in violation of Article 0, Uniform Code of Military Justice (UCMJ), wherein a sentence of confinement for years and a dishonorable discharge was imposed. 0 U.S.C. 0 (00). ) Order Respondent to immediately release Petitioner from said unlawful detention and custody. ) Order Respondent to show cause within five () days why such conviction and sentence should not be permanently vacated. ) Order Respondent to immediately and forthwith restore all pay, rank, benefits, entitlements, and privileges as have been unlawfully denied by Respondent of said prosecution and conviction. ) Order Respondent to immediately, completely, and expeditiously make all such changes to all of Petitioner s official and unofficial records in Respondent s care, custody, and/or control in order to fully effectuate, enable, and carry out the Order of this Court.

23 Case :-cv-0-gpc-jma Document Filed 0// PageID. Page of 0 0 ) Award Petitioner costs and attorney s fees. ) Grant all such other and further relief as this Court deems just and proper. Dated: June 0 Respectfully Submitted, /s/ Kevin B. McDermott (CA Bar # 0) Law Offices of Kevin B. McDermott 00 Irvine Center Drive, Suite 0 Irvine, CA Associate Local Counsel David P. Sheldon (DC Bar # 0) Law Offices of David P. Sheldon, P.L.L.C. 00 M Street S.E., Suite 00 Washington, DC 00 davidsheldon@militarydefense.com Tel: Fax: 0..0 Attorney for Plaintiff