Summary
The United States Court of Appeals for the D.C. Circuit reviews a district court’s denial of a habeas corpus petition filed by a former Navy sailor convicted by court-martial for failing to disclose his HIV-positive status before engaging in sexual intercourse. The appellant argued that the military courts lacked subject matter jurisdiction over his convictions and that he procedurally defaulted on several claims. The appellate court held that the appellant’s challenges went to the merits of the case rather than jurisdiction, meaning standard procedural default rules applied. Finding that the military courts fully and fairly considered his preserved claims, the court affirmed the district court’s judgment.
Topics
Practice areas
Questions Presented
- Whether Forbes's challenges to the sufficiency of the Article 120 specifications were jurisdictional challenges to the court-martial's subject-matter jurisdiction or nonjurisdictional merits challenges subject to procedural default and deferential review.
- Whether Forbes's challenges to the Article 134 conviction based on the Assimilative Crimes Act and the UCMJ preemption doctrine were jurisdictional or nonjurisdictional and, if nonjurisdictional, procedurally defaulted.
- Whether Forbes preserved an ex post facto challenge to the military courts' interpretation of Article 120.
- Whether the military courts fully and fairly considered Forbes's preserved challenge to the adequacy of the Article 120 specifications.
Holdings
- A military court has subject-matter jurisdiction when the accused was a member of the armed forces at the time of the offense and the military charged the accused under an identified UCMJ article. A challenge asserting that the facts alleged do not establish an element of the offense is a merits challenge, not a jurisdictional challenge.
- Forbes procedurally defaulted claims that he failed to raise before the military courts, while his preserved statutory challenge to the Article 120 convictions received full and fair consideration. The district court therefore properly denied habeas relief.
- Forbes's challenges to the Article 134 conviction based on improper assimilation and UCMJ preemption were merits defenses, not jurisdictional challenges, and were procedurally defaulted because Forbes did not raise them before the military courts.
- Forbes procedurally defaulted his ex post facto challenge because he did not raise it before the military courts in a timely manner.
- Even if preserved, Forbes's ex post facto challenge would fail because applying the established Article 128 interpretation of offensive touching to Article 120 was not unexpected and indefensible in light of prior law.
Key quotations
“Because Forbes’s challenges are non-jurisdictional, all standard procedural default rules apply, and we review the military courts’ decisions on his preserved claims only to determine whether the military courts fairly considered them.” (3)
“In sum, a military court has subject matter jurisdiction to hear a criminal case so long as: (1) the defendant was a member of the military at the time of the offense charged; and (2) the military set out a charge identifying the article of the UCMJ the defendant is accused of violating.” (10)
“A judicial interpretation of a criminal statute operates as an unconstitutional ex post facto law if “[it] is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.”” (23)
Factual background
Forbes, a former Navy sailor, tested positive for HIV in 2012 and received counseling to refrain from sexual activity unless he first disclosed his diagnosis to prospective partners. Between 2013 and 2015, he had unprotected sexual intercourse with four women without disclosing his HIV-positive status; none contracted HIV, and Forbes maintained that antiretroviral treatment made transmission impossible or extremely unlikely. He pleaded guilty to one Article 107 offense, three Article 120 sexual-assault specifications, and one Article 134 offense assimilating Virginia's infected sexual battery statute.
Procedural history
Forbes pleaded guilty before a military judge sitting as a general court-martial to offenses under Articles 107, 120, and 134 of the UCMJ and received eight years' confinement, reduction to paygrade E-1, and a dishonorable discharge. The Navy-Marine Corps Court of Criminal Appeals and the Court of Appeals for the Armed Forces affirmed his convictions. While on supervised release, Forbes filed a § 2241 habeas petition in the District Court for the District of Columbia, which held that several claims were procedurally defaulted and that the military courts had fully and fairly considered the preserved claims. The D.C. Circuit affirmed.