MEMORANDUM IN SUPPORT Respondents are not entitled to either dismissal or summary judgment Dismissal for failure to state a claim To survive a Rule 12

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1 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA EASTERN DIVISION TIMOTHY HENNIS, : Case No.: 5:2009hc02169 Petitioner, : Honorable Judge Boyle Vs. : FRANK HELMICK, ET AL : Respondents, : PETITIONER S CORRECTED RESPONSE TO RESPONDENT S MOTION TO DISMISS/SUMMARY JUDGMENT Now comes the Petitioner and responds to the arguments set forth by the respondents in their motion to dismiss/summary judgment. A memorandum in support is attached and is incorporated as if fully typed herein. Respectfully submitted, /s/ William O Richardson William O Richardson Attorney for Petitioner P. O Box South Front Street Fayetteville, North Carolina, Columbus, Ohio Phone: Tele No Fax: Fax No /s/ Eric J Allen Eric J Allen Attorney for Petitioner NC State Bar # Ohio State Bar # billy.richardson@richardsonbrittain.com eric@eallenlaw.com Admitted to the Eastern District LR 83.1 Counsel 1

2 MEMORANDUM IN SUPPORT Respondents are not entitled to either dismissal or summary judgment Dismissal for failure to state a claim To survive a Rule 12(b)(6) motion, [f]actual allegations must be enough to raise a right to relief above the speculative level and have enough facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 1974, 167 L.Ed.2d 929 (2007). Moreover, the court need not accept the [plaintiff's] legal conclusions drawn from the facts, nor need it accept as true unwarranted inferences, unreasonable conclusions, or arguments. Kloth v. Microsoft Corp., 444 F.3d 312, 319 (4th Cir.2006) (internal quotation marks omitted). Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 616 n. 26 (4th Cir.2009). Summary Judgment standard Summary judgment should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Where a case is decided on summary judgment, there have not yet been factual findings by a judge or jury, and [the appellant's] version of events... differs substantially from [the appellee's,]... courts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the... motion. Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1774, 167 L.Ed.2d 686 (2007) (internal quotation marks and alterations omitted). However, [a]t the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those 2

3 facts. Id. at 1776 (quoting Fed.R.Civ.P. 56(c)). Moreover, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact... Factual disputes that are irrelevant or unnecessary will not be counted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, , 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). Respondents have failed to meet their burdens in both motions. The facts asserted by the Petitioner seen in a light most favorable to same allow this court to grant relief. Petitioner has exhausted all of his military remedies The United States Supreme Court has held federal courts normally will not entertain habeas petitions by military prisoners unless all available military remedies have been exhausted. Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146 (1950). In Gusik v. Schilder, 340 U.S., at , 71 S.Ct., at , the Court drew an explicit analogy to the exhaustion requirement for federal habeas attacks on state criminal convictions. See Gosa v. Mayden, 413 U.S., at , 93 S.Ct., at (Marshall, J., dissenting) Petitioner has exhausted all available military remedies in regards to his single ground for relief contained in this petition. Respondent claims that because Petitioner s challenges are extraordinary writs he failed to exhaust his military remedies. Respondent further claims that because Petitioner did not file these challenges as a direct appeal following a conviction, he has not exhausted his military remedies. In essence, because Petitioner has not endured a court martial, been convicted, then appealed his conviction he cannot yet challenge the 3

4 jurisdictional issue contained in the petition. The basis for Respondent s contention is Schlesinger v Councilman. Schlesinger v Councilman Councilman allows intervention by the Civilian Federal Court System only in extraordinary circumstances. However, Councilman specifically does not address the definition of those extraordinary circumstances. Justice Powell stated, We have no occasion to attempt to define those circumstances, if any, in which equitable intervention into pending court-martial proceedings might be justified. In the circumstances disclosed here, we discern nothing that outweighs the strong considerations favoring exhaustion of remedies or that warrants intruding on the integrity of military court processes. Schlesinger v Councilman, 420 U.S. 728,761. Emphasis added. Respondent does not believe that standing trial a third time for the capital murder of a woman and her two children warrant extraordinary circumstances. No where else has anyone been convicted of capital murder, spent years on death row, been acquitted, and then tried for the same crime almost twenty-five years later. This matter stands alone in the annals of Military Jurisprudence. This matter stands alone in the annals of American Jurisprudence. It is extraordinary and it falls underneath the exception to Councilman abstention. Respondent does not believe that standing trial in a case where the convening and presiding authority have lost all jurisdiction is an extraordinary circumstance. Petitioner would disagree. Hirshberg robs the convening authority of any jurisdiction making this case extraordinary. 4

5 Respondent yet again wishes to focus its analysis on the fact Petitioner had not yet received final pay in June of Certainly the speed at which the Military processes paychecks cannot be used to justify reactivating jurisdiction. Respondents also want to focus on Petitioner s awards and his retirement. Being a good soldier during Petitioner s subsequent terms of service in the military does not resuscitate the jurisdiction of the military for the first term. Dooley v Ploger Respondent based most of its exhaustion argument on the Fourth Circuit case of Dooley v Ploger. Factually, The Fourth Circuit found: In Dooley v. Ploger (No ), we hold that Sergeant Thomas R. Dooley's application for a writ of habeas corpus was premature. In his habeas petition, Sergeant Dooley sought pretrial release and freedom from military trial of the questions of his guilt and the service-connection of the alleged offenses (possession and sale of cocaine). Before seeking relief from a district court, Sergeant Dooley must first exhaust his military remedies, at least to the extent that a military tribunal is given the opportunity to find the facts of service-connection, as well as guilt or innocence, and to impart its expert understanding of the impact of specific offenses on military capability. Dooley v Ploger, 491 F. 2d 608 Dooley failed to even present the presiding authority with the chance to hear his challenge to the court martial jurisdiction. Dooley immediately filed a petition for habeas corpus. Petitioner presented three separate challenges to the jurisdiction of the Army to court martial him. Petitioner filed a request for extraordinary relief to both ACCA and CAAF. Dooley states, Dooley would be required to exhaust the fact-finding mechanisms of the system of military justice. But once the factual basis of possible serviceconnections was established, Dooley would be excused from further exhaustion of 5

6 military remedies and could seek a writ of habeas corpus from a district court. Dooley at 615. All of the facts have been developed by Petitioner in the Military Justice system. The most important of those facts is the Petitioner s ETS. Motions were filed at the trial level and hearings were held for the purpose of developing the facts. Petitioner s presiding authority made specific findings of fact related to his challenge. See attachments to Petition and return of record. Hamdan v Rumsfeld Hamdan, a Yemen national, was accused by the government of being a part of the attacks of September 11, He was captured and imprisoned at Camp X-Ray Delta, Guantanamo Bay, Cuba. A military tribunal was convened to try him for his alleged terrorist activities. The United States Supreme Court found that because Councilman distinguished service personnel from civilians, whose challenges to ongoing military proceedings are cognizable in federal court. See, e.g., United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955). As we explained in Councilman, abstention is not appropriate in cases in which individuals raise substantial arguments denying the right of the military to try them at all, and in which the legal challenge turn[s] on the status of the persons as to whom the military asserted its power. 420 U.S., at 759, 95 S.Ct (quoting Noyd v. Bond, 395 U.S. 683, 696, n. 8, 89 S.Ct. 1876, 23 L.Ed.2d 631 (1969)). In other words, we do not apply Councilman abstention when there is a substantial question whether a military tribunal has personal jurisdiction over the defendant. Because we conclude that abstention is inappropriate for a more basic reason, we need not consider whether the jurisdictional exception recognized in Councilman applies here. Hamdan v Rumsfeld 548 U.S FN 17 Petitioner would argue that after he was discharged by the Army on June 12, 1989 his status was the same as Hamdan s. The military lacked personal jurisdiction to try him per Hirshberg. That period of time between when he was discharged and when he re- 6

7 enlisted, he was a civilian. There is a substantial question whether there is personal jurisdiction over Petitioner. Abstention is not proper in this case just as it was not proper in Hamdan s case. United States Military lacks personal and subject matter jurisdiction Hirshberg The ruling in Hirshberg survives despite the lingering reports of its death. Although it may be of a post-war vintage, it still provides this court with a settled United States Supreme Court precedent. If age were the prerequisite to determining whether a decision is binding or discretionary only those decisions recently minted by the current Supreme Court would remain good law. Those antiquated decisions like Brown v Board of Education, Miranda v Arizona, Gideon v Wainwright, and others could be tossed aside because of their age or vintage. One cannot merely discount a case because it was pronounced in the 1940 s. To be clear, Hirshberg held that once a serviceman is discharged he cannot be brought to court martial for any crimes that occurred prior to the discharge. U.S. ex rel Hirshberg v Cooke 336 US 210, 218. It is simple, straight forward settled law at the time of Petitioner s discharge in The court stated in that case The concessions made by the Government in urging such a literal construction of this Article expose the whimsical and uncertain nature of the distinctions that would mark the boundaries of court-martial powers. It is conceded that had petitioner not re-enlisted in the Navy after his 1946 discharge, no Navy court-martial could have tried him for offenses committed during his prior naval service. Thus, under the construction here urged, naval court-martial jurisdiction for a prior enlistment offense is made wholly to depend on whether the naval offender either voluntarily re-enters the Navy or is drafted into its service. And punishment of the gravest nature might be imposed on a naval volunteer or draftee which no 7

8 court-martial could have imposed but for such a voluntary or forced entry into the Navy. For under this interpretation had the same naval offender re-entered his country's service by way of the Army rather than the Navy, either by choice or by accident of draft assignment, no court-martial, either Navy or Army, could have punished him. Jurisdiction to punish rarely, if ever, rests upon such illogical and fortuitous contingencies. We therefore must look beyond the literal language of the Article, ambiguous at best, in order to determine whether this court-martial acted within its power. See Runkle v. United States, 122 U.S. 543, 555, 556, 7 S.Ct. 1141, 1145, 1146, 30 L.Ed. 1167; Ex parte Reed, 100 U.S. 13, 23, 25 L.Ed U.S. ex rel. Hirshberg v. Cooke, 336 U.S. 210, In other words, Petitioner and Hirshberg were in exactly the same position. The Navy could not court martial Hirshberg and the Army should not be able to court martial Petitioner. The court has in its possession a copy of the discharge from June It clearly discharges the Petitioner after his ETS date. Clardy The ruling in Clardy merely explains or clarifies the ruling in Hirshberg. The Court stated in Clardy: We do not question that under Hirshberg military jurisdiction is terminated by a discharge at the end of an enlistment or period of service even though the service member immediately reenters service. The break in "status", irrespective of length of time between discharge and reenlistment, is sufficient to terminate jurisdiction. U.S. vs. Clardy, 13 M.J 308, 316 If the ETS date had not expired prior to final discharge and the discharge was for the sole purpose of reenlistment, the Army retained jurisdiction. If the ETS date had expired prior to discharge the Army loses jurisdiction. The military lost jurisdiction in Petitioner s case under the aged, yet precedential Hirshberg decision. In fact, nowhere in the analysis done by the military judge does he mention the Clardy case. Presumably because it does not apply to Petitioner. 8

9 Petitioner was not discharged to re-enlist Petitioner enlisted in 1980 for a period of four years. He extended this enlistment for a period of one year in During his trial he extended this period for seven months. While Petitioner was in jail he could not perform any service for the Army. This so called bad or lost time was added to the end of his term of service. Following his conviction the Army approved his discharge, less than honorably, from the Army, with that finding stayed pending appeal. Petitioner was successful in his direct appeal to the North Carolina Supreme Court. Under the United States Code at the time, lost time could be added to a term of enlistment only after a conviction became final. As Petitioner s conviction was overturned on his first appeal, it never became final under 10 USC Section 972. Similarly, all of Petitioner s time in pre-trial confinement prior to his second trial, which resulted in his acquittal, could not be properly counted as lost time and added to his term of enlistment under 10 USC Section 972. The Code at the time of Petitioner s trial, arrest and acquittal stated: An enlisted member of an armed force who- (1) deserts ; (2) is absent from his organization, station, or duty for more than one day without proper authority, as determined by competent authority; (3) is confined for more than one day while awaiting trial and disposition of his case, and whose conviction has become final; (4) is confined for more than one day under a sentence that has become final ; or ( 5 ) is unable for more than one day, as determined by competent authority, to perform his duties because of intemperate use of drugs or alcoholic liquor, or because of disease or injury resulting from his misconduct ;is liable, after his return to full duty, to serve for a period that, when added to the period that he served before his absence from duty, amounts to the term for which he was enlisted or inducted' 10 USC 972 9

10 Thus, the discharge was never executed. The expiration of his term of service, absent the lost time improperly added to his term of service, was recalculated to be August of The new honorable discharge became final on June 12, Military law recognizes there was a break in service between the time the Petitioner was discharged and when he reenlisted. On June 13, 1989, he reenlisted. Petitioner s uncontested expiration of term of service was August of No one, including the judge presiding over Petitioner s capital murder trial, disputes this fact. Under the law of the day, Hirshberg, this break in service stripped the military of its jurisdiction. Without jurisdiction, the Army is precluded from holding a court-martial against the Petitioner for capital murder. Final pay, awards and retirement It is true that Petitioner reenlisted in the army. It is true he had not yet received his final payment. It is also true he received awards for being a good, loyal soldier. None of this is relevant to the analysis this court must do in granting or denying relief. This analysis done by the Military Courts and the Military prosecutors is based on how the law reads now. It is not how the cases were treated in The fact that is not in conflict is the exact termination of service date. The judge presiding in the case set it at August, Petitioner s discharge date is June 12, All the awards, paychecks and pensions cannot change that fact. The cold hard truth is that the Army lost jurisdiction to try Petitioner for capital murder on the expiration of termination of service date. 10

11 Article 3 of UCMJ does not allow a court martial in this case The sole potential exception that exists and existed in 1989, under Article 3 of the UCMJ allows a court marital if two inclusive factors are met: 1. Potential sentence carries more than five years; 2. Serviceman could not be tried in any other court at any time. Article 3 (a) UCMJ, 1989 Version The fatal factor to re-trial in this case by the military is the second factor. Petitioner has been tried twice for capital murder. Petitioner spent 845 days on death row in North Carolina. Respondent claims this argument is meritless. Petitioner has been tried twice in North Carolina and could be indicted and stand trial a third time. In North Carolina, double jeopardy is an affirmative defense requiring pleading by the defendant or it is waived. Petitioner was and can still be brought to trial in state court. Federal Courts can stay Court Martial proceedings Watada In Watada a federal court intervened and stayed a court martial proceeding. Watada v Head, Western District of Washington at Tacoma, C BHS. Judge Settle stated, the writ for habeas corpus is not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose-the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty. Peyton v Rowe, 391 U.S. 54,66. To that end, Judge Settle stayed a court martial proceeding that would have violated Lieutenant Watada s right against being tried twice for the same offense, a jurisdictional issue. 11

12 Watada followed the same exact course as Petitioner. Watada filed motions in the trial court and then sought relief from the Military court system. Only as a last resort did he seek enjoinment by the Federal Court. Watada deals with what the Respondents use to bolster their argument, preservation of order and morale in the Armed Forces. Watada refused to deploy in what he considered an illegal war. The Armed Forces had a much better argument in that case and the Federal Court intervened. Petitioner wholly supports the idea of federalism or comity. Councilman is not an absolute abstention doctrine, it allows intervention in extraordinary circumstances. 12

13 Conclusion Councilman requires this court to abstain from hearing this case except in extraordinary circumstances. These extraordinary circumstances are not defined by the court and require a case-by-case analysis. If this case does not meet the stringent test required by the Supreme Court, then it is an impossible, hyper-deferential standard. Certainly if this court was not convinced that death is different and no intervention was required there is an extraordinary set of circumstances present in this case. In 1985, Petitioner was convicted of three counts of capital murder. After finding a plethora of prosecutorial misconduct, he was granted a new trial, in Wilmington, North Carolina. In 1989, Petitioner was acquitted of three counts of capital murder. Petitioner decided to re-enlist after his ETS date had run and he had been discharged. Hirshberg deprives military of its jurisdiction at this point. The military wishes to exert jurisdiction over a person whom they have no absolutely right to do so. The constant barrage of allegations that Petitioner was paid, won awards and he served another twenty years is an attempt to confuse and cloud the issues. Hirshberg denies the convening authority, Respondents here, of jurisdiction to court martial Petitioner. Antiquated or not, Hirshberg is still good law despite the amendment of the UCMJ and subsequent holdings by the Supreme Court of The United States. All of the arguments by respondents are based upon military court cases. The only case on point here is Hirshberg. A United States Supreme Court case. 13

14 Respectfully submitted, /s/ William O Richardson William O Richardson Attorney for Petitioner P. O Box South Front Street Fayetteville, North Carolina, Columbus, Ohio Phone: Tele No Fax: Fax No /s/ Eric J Allen Eric J Allen Attorney for Petitioner NC State Bar # Ohio State Bar # billy.richardson@richardsonbrittain.com eric@eallenlaw.com Admitted to the Eastern District LR 83.1 Counsel Certificate of Service I hereby certify that on February 15, 2010, a copy of the Foregoing Response to Motion to Dismiss/summary judgment was filed electronically. Notice of this filing will be sent to all parties by operation of the Court s electronic filing system. /s/ William O Richardson William O Richardson Attorney for Petitioner P. O Box South Front Street Fayetteville, North Carolina, Columbus, Ohio Phone: Tele No Fax: Fax No /s/ Eric J Allen Eric J Allen Attorney for Petitioner NC State Bar # Ohio State Bar # billy.richardson@richardsonbrittain.com eric@eallenlaw.com Admitted to the Eastern District LR 83.1 Counsel 14