Rafi Dhakaa Khan v. Col. William L. Hart, 943 F.2d 1261, 10th Cir. (1991)
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Scribd Government DocsRafi Dhakaa Khan v. Col. William L. Hart, 943 F.2d 1261, 10th Cir. (1991)
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Scribd Government Docs943 F.
2d 1261
Rafi Dhakaa KHAN Petitioner-Appellant,
v.
Col. William L. HART, Respondent-Appellee.
No. 91-3022.
United States Court of Appeals,
Tenth Circuit.
Sept. 5, 1991.
Submitted on the briefs: *
Rafi Dhakaa Khan, pro se.
Lee Thompson, U.S. Atty., Melanie Karo, Asst. U.S. Atty., Topeka, Kan.
and Major Alice Kottmyer, Trial Atty., HQ USAF/JACL, General
Litigation Div., Washington, D.C. for respondent-appellee.
Before LOGAN, MOORE and BALDOCK, Circuit Judges.
BALDOCK, Circuit Judge.
Rafi Dhakaa Khan, confined in disciplinary barracks at Ft. Leavenworth,
Kansas, appeals from the dismissal of his habeas corpus petition. 28 U.S.C.
2241. Petitioner pled guilty to several offenses including rape and robbery and
was sentenced to dishonorable discharge, confinement for twenty-seven years,
forfeiture of all pay and allowances and reduction to the grade of E-1. The Air
Force Court of Military Review reviewed his case and affirmed, and the Court
of Military Appeals denied his petition for review.
Several years later, petitioner sought extraordinary relief from the Court of
Military Appeals on the new theory that art. 56 of the Uniform Code of Military
Justice (UCMJ), 10 U.S.C. 856,1 is an unlawful delegation of congressional
power because the President may set maximum penalties for offenses. He also
claimed that the punishment under the UCMJ is vague.2 In a formulary order,
the Court of Military Appeals "denied the petition for extraordinary relief in the
nature of a writ of habeas corpus." Petitioner then filed this habeas action in
federal district court urging the same grounds. The district court denied relief
on the merits. See Khan v. Hart, No. 90-3359-R, unpub. order (D.Kan. Jan. 4,
1991). On appeal, petitioner argues that (1) the UCMJ must prescribe with
certainty and clarity the consequences of a violation, (2) Congress must set
forth reasonable and intelligible standards for the President to derive UCMJ
criminal penalties, and (3) because these conditions are not met, his conviction
cannot be sustained. Petitioner's Brief (Form A-11) at 6. We construe
petitioner's claims as a straightforward challenge to art. 56, UCMJ, as contrary
to the nondelegation doctrine.3
3
As an initial matter, we note that the government answered the petition and
sought dismissal on the merits. Our review of the district court's resolution of
this habeas petition is de novo. Monk v. Zelez, 901 F.2d 885, 888 (10th
Cir.1990). Neither the district court nor the parties addressed the scope of
federal civil review of petitioner's court-martial, however, and we raise the
issue sua sponte.
Our jurisdiction to review a military conviction for constitutional error is
limited because habeas jurisdiction of a federal civil court does not extend to a
reassessment of the facts and issues fully and fairly considered by a military
court. Burns v. Wilson, 346 U.S. 137, 142, 73 S.Ct. 1045, 1048, 97 L.Ed. 1508
(1953); Lundy v. Zelez, 908 F.2d 593, 594-95 (10th Cir.1990). See also art. 76,
UCMJ; 10 U.S.C. 876 (final, conclusive and binding nature of court-martial
proceedings). In Dodson v. Zelez, 917 F.2d 1250 (10th Cir.1990), we listed
four factors which may inform the scope of our jurisdiction: (1) whether the
claimed error is of substantial constitutional dimension, (2) whether a legal
issue is involved, rather than a factual issue previously resolved by military
courts, (3) whether military considerations may warrant different treatment of
constitutional claims such that federal civil court intervention would be
inappropriate, and (4) whether the military courts have given adequate
consideration to the claimed error and applied proper legal standards. Id. at
1252-53 (relying on Calley v. Callaway, 519 F.2d 184, 199-203 (5th Cir.1975),
cert. denied, 425 U.S. 911, 96 S.Ct. 1505, 47 L.Ed.2d 760 (1976)). In addition,
"federal courts will not entertain habeas petitions by military prisoners unless
all available military remedies have been exhausted." Schlesinger v.
Councilman, 420 U.S. 738, 758, 95 S.Ct. 1300, 1313, 43 L.Ed.2d 591 (1975);
Watson v. McCotter, 782 F.2d 143, 145 (10th Cir.), cert. denied, 476 U.S.
1184, 106 S.Ct. 2921, 91 L.Ed.2d 549 (1986).
The following factors favor our review: (1) a substantial constitutional question
has been raised concerning the nondelegation doctrine as applied to art. 56,
UCMJ, (2) the question is one of law, which has not been addressed by the
Court of Military Appeals, although it has been rejected by other military courts
for varying reasons, compare United States v. Turner, 30 M.J. 1276, 1277-83
(N.M.C.M.R.1990) (delegation not sufficiently definite, but upheld because of
special relationship between Congress and President in military affairs) with
United States v. Herd, 29 M.J. 702, 705-08 (A.C.M.R.1989) (delegation
upheld), review granted in part, 30 M.J. 220, aff'd in part and judgment set
aside in part, 32 M.J. 33 (C.M.A.1990), (3) the question does not turn on
disputed facts, (4) the formulary order of the Court of Military Appeals denying
relief does not indicate the consideration given to petitioner's claims or admit of
review, see King v. Moseley, 430 F.2d 732, 734 (10th Cir.1970), (5) petitioner
attempted to exhaust his military remedies, and (6) the government does not
argue that review is inappropriate, but rather has defended on the merits, see
Mendrano v. Smith, 797 F.2d 1538, 1542, n. 6 (10th Cir.1986). On the other
hand, the potential for a different constitutional norm on this nondelegation
issue would counsel against review, see Turner, 30 M.J. at 1281-83, however,
we strike the balance in favor of review.
6
At the time petitioner was sentenced, the President had promulgated maximum
limits of punishment in accordance with art. 56, UCMJ. See Manual for CourtsMartial, United States, 1969 127 (rev. ed.).4 Under the UCMJ, Congress
defined the offenses and provided for maximum penalties. In the punitive
articles,5 Congress provided for punishment "by death," 6 "by death or
imprisonment for life as a court martial may direct,"7 "by death or such other
punishment as a court-martial may direct,"8 "punishment, other than death, as a
court martial may direct,"9 punishment "as a court-martial may direct," 10 and
finally, punishment "at the discretion of [the] court."11 Certain forms of
punishment, deemed to be cruel and unusual, are not allowed.12 Thus, the
incorporated limitations on the President's discretion include a mandatory death
penalty for spying, see supra note 6, a death penalty or life imprisonment for
premeditated or felony murder, see supra note 7, a limitation on use of a death
penalty without an express allowance in the punitive articles, see supra notes 6,
7 & 8; Turner, 30 M.J. at 1281, and a limitation on forms of punishment, see
supra note 12.
Without question, the President has considerable discretion in this scheme. But
that does not mean that the scheme is contrary to the nondelegation doctrine.
Several principles inform our judgment. First, Congress may seek assistance
from other branches of government, "the extent and character of that assistance
must be fixed according to common sense and the inherent necessities of the
governmental co-ordination." J.W. Hampton, Jr., & Co. v. United States, 276
U.S. 394, 406, 48 S.Ct. 348, 351, 72 L.Ed. 624 (1928). The need for
governmental coordination between the Congress and the President in military
affairs is essential because the President is the commander in chief of the
armed forces. U.S. Const. art. II, 2, cl. 1. The special relationship between the
Congress and the President in military affairs suggests that a narrow or
technical view of the delegation issue would not be appropriate. See United
States v. Chemical Found., 272 U.S. 1, 12, 47 S.Ct. 1, 5, 71 L.Ed. 131 (1926)
(power to dispose of enemy property delegated to President was not an
unlawful delegation of legislative power; "[i]t was peculiarly within the
province of the Commander-in-Chief to know the facts and to determine what
disposition should be made of enemy properties in order effectively to carry on
the war").
8
Second, Congress need only "lay down by legislative act an intelligible
principle to which the person or body authorized to [act] is directed to
conform." Hampton, 276 U.S. at 409, 48 S.Ct. at 352. "Only if we could say
that there is an absence of standards for the guidance of the [President's] action,
so that it would be impossible in a proper proceeding to ascertain whether the
will of Congress has been obeyed, would we be justified in overriding its
choice of means" for further limiting the punishments which a court-martial
may direct. See Yakus v. United States, 321 U.S. 414, 426, 64 S.Ct. 660, 668,
88 L.Ed. 834 (1944). In enacting the UCMJ, Congress is presumed aware of
the manner in which the President had exercised his delegated authority to limit
military punishment. See Herd, 29 M.J. at 707 (concluding that Congress was
aware in fact of the Table of Maximum Punishments in the Manual for CourtsMartial, United States, 1949).
This is not a delegation in which the President effectively determines what
conduct is criminal. See Touby v. United States, --- U.S. ----, 111 S.Ct. 1752,
114 L.Ed.2d 219 (1991) (temporary scheduling of controlled substances by
Attorney General upheld); Fahey v. Mallonee, 332 U.S. 245, 249, 67 S.Ct.
1552, 1553, 91 L.Ed. 2030 (1947). Rather, Congress has defined what conduct
is criminal, provided various categories of punishment indicative of its view of
the gravity of each offense, restricted the form of punishment, and relied upon
the President to further limit punishment in accordance with operating the
military. Though not nearly as specific a delegation as the delegation to the
United States Sentencing Commission approved in Mistretta v. United States,
488 U.S. 361, 371-79, 109 S.Ct. 647, 654-58, 102 L.Ed.2d 714 (1989), we
believe that, given the President's unique role in national defense, it is a
sufficiently intelligible delegation to satisfy constitutional concerns.
10
We GRANT petitioner leave to proceed on appeal in forma pauperis, 28 U.S.C.
1915(a), GRANT petitioner a certificate of probable cause, 28 U.S.C. 2253,
see Lozada v. Deeds, --- U.S. ----, 111 S.Ct. 860, 861-62, 112 L.Ed.2d 956
(1991), and AFFIRM the district court's judgment denying habeas relief.
Respondent-appellee elected not to file a brief. After examining petitioner's
brief and the appellate record, which includes briefing of the legal issues, this
panel has determined unanimously that oral argument would not materially
assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R.
34.1.9. The cause therefore is ordered submitted without oral argument
Art. 56, UCMJ, provides:
Maximum limits
The punishment which a court martial may direct for an offense may not
exceed such limits as the President may prescribe for that offense.
10 U.S.C. 856.
From our independent research, it appears that petitioner first sought habeas
relief on these claims in the federal district court in Kansas. The district court
denied relief for failure to exhaust military remedies. Khan v. Berrong, No. 883406-O, unpub. order (D.Kan. Jan. 3, 1990)
Art. I, 1, cl. 1 of the United States Constitution provides: "All legislative
Powers herein shall be vested in a Congress of the United States...." The
nondelegation doctrine is based upon separation of powers and provides "that
Congress generally cannot delegate its legislative power to another Branch."
Mistretta v. United States, 488 U.S. 361, 372, 109 S.Ct. 647, 654, 102 L.Ed.2d
714 (1989). Congress may, however, seek the assistance of other branches of
government provided that Congress legislates an intelligible principle to guide
the performance of the delegated duty. Id
The current version is the Manual for Courts-Martial, United States, 1984 pt. II,
R. 1003; pt. IV & app. 12
Arts. 77-134, UCMJ; 10 U.S.C. 877-934
Art. 106 (spying in time of war), UCMJ; 10 U.S.C. 906
Art. 118(1) & (4) (premeditated murder & felony murder), UCMJ; 10 U.S.C.
918(1) & (4)
Arts. 85 (desertion in time of war), 90 (assaulting or willfully disobeying
superior commissioned officer in time of war), 94 (mutiny or sedition), 99
(misbehavior before the enemy), 100 (subordinate compelling surrender), 101
(improper use of countersign), 102 (forcing a safeguard), 104 (aiding the
enemy), 106a (espionage), 110(a) (willfull and wrongful hazarding of vessel),
113 (misbehavior of sentinel in time of war) & 120(a) (rape), UCMJ; 10 U.S.C.
885, 890, 894, 899, 900, 901, 902, 904, 906a, 910(a), 913 & 920(a)
9
Arts. 85 (desertion not in time of war), 90 (assaulting or willfully disobeying
superior commissioned officer not in time of war), & 113 (misbehavior of
sentinel not in time of war), UCMJ; 10 U.S.C. 885, 890 & 913
10
Arts. 78 (accessory after the fact), 80 (attempts), 81 (conspiracy), 82
(solicitation), 83 (fraudulent enlistment, appointment or separation), 84
(unlawful enlistment, appointment or separation), 86 (absence without leave),
87 (missing movement); 88 (contempt toward officials), 89 (disrespect toward
superior commissioned officer), 91 (insubordinate conduct toward warrant
officer, noncommissioned officer or petty officer), 92 (failure to obey order or
regulation), 93 (cruelty and maltreatment), 95 (resistance, breach of arrest, and
escape), 96 (releasing prisoner without proper authority), 97 (unlawful
detention), 98 (noncompliance with procedural rules), 103 (captured or
abandoned property), 105 (misconduct as a prisoner), 107 (false official
statements), 108 (loss, damage, destruction, or wrongful disposition of military
property of United States), 109 (waste, spoilage or destruction of property,
other than military property, of the United States), 110(b) (negligent improper
hazarding of vessel), 111 (drunken or reckless driving), 112 (drunk on duty),
112a (wrongful use, possession, etc. of controlled substances), 114 (dueling),
115 (malingering), 116 (riot or breach of peace), 117 (provoking speeches or
gestures), 118(2) & (3) (murder with intent to kill or to inflict great bodily harm
& murder while engaged in inherently dangerous act), 119 (manslaughter),
120(b) (carnal knowledge), 121 (larceny and wrongful appropriation), 122
(robbery), 123 (forgery), 123a (making, drawing or uttering check, draft or
order without sufficient funds), 124 (maiming), 125 (sodomy), 126 (arson), 127
(extortion), 128 (assault), 129 (burglary), 130 (housebreaking), 131 (perjury),
132 (frauds against the United States) & 133 (conduct unbecoming an officer
and a gentleman), UCMJ; 10 U.S.C. 878, 880, 881, 882, 883, 884, 886, 887,
888, 889, 891, 892, 893, 895, 896, 897, 898, 903, 905, 907, 908, 909, 910(b),
911, 912, 912a, 914, 915, 916, 917, 918(2) & (3), 919, 920(b), 921, 922, 923,
923a, 924, 925, 926, 927, 928, 929, 930, 931, 932 & 933
11
Art. 134 (general article), UCMJ; 10 U.S.C. 934
12
Art. 55, UCMJ, provides:
Punishment by flogging, or by branding, marking, or tatooing on the body, or
any other cruel or unusual punishment, may not be adjudged by any courtmartial or inflicted upon any person subject to this chapter. The use of irons,
single or double, except for the purpose of safe custody, is prohibited.
10 U.S.C. 855.
