Clifford B. Hubbard v. United States of America

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
C LIFFORD B. HUBBARD,
Petitioner-Appellant,
v.
UNITED S TATES OF A MERICA,
Respondent-Appellee.
No. 20-16094
D.C. No.
1:19-mc-00333-
LEK-KJM
OPINION
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Argued and Submitted July 7, 2021
Honolulu, Hawaii
Filed August 10, 2021
Before: Jacqueline H. Nguyen, John B. Owens, and
Michelle T. Friedland, Circuit Judges.
Per Curiam Opinion;
Concurrence by Judge Friedland

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SUMMARY*
Innocence Protection Act
The panel affirmed the district court’s dismissal for lack
of subject-matter jurisdiction of a petition brought by U.S.
Army Private Clifford Hubbard seeking DNA testing under
the Innocence Protection Act (“IPA”).
In 1982, a court-martial convicted Hubbard of murder
and sentenced him to life in prison. He sought DNA testing
under the IPA to prove his innocence.
The panel held that the district court lacked jurisdiction
because the district court was not the court that entered the
judgment of conviction. Rather, Hubbard’s conviction was
entered by a general court-martial, which has since
dissolved, not in federal court. The panel rejected Hubbard’s
contention that the district court had the power to grant his
petition for DNA testing under the IPA.
The panel also rejected Hubbard’s contention that the
IPA should nonetheless be construed to allow him to petition
for DNA testing in the district court because he would
otherwise have no forum in which to seek his relief. The
panel held that the IPA, unlike the federal habeas statutes,
does not provide a procedural mechanism for prisoners
convicted by courts-martial to seek collateral relief in federal
court.
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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HUBBARD V . UNITED S TATES 3
Concurring, Judge Friedland joined by Judges Nguyen
and Owens, wrote to urge Congress to amend the IPA to
explicitly provide servicemembers convicted by courts-
martial the same avenues for post-conviction DNA testing
afforded to other prisoners.
COUNSEL
Jennifer Brown (argued) and William A. Harrison (argued),
Hawaiʻi Innocence Project, Honolulu, Hawaii, for
Petitioner-Appellant.
Marion Percell (argued), Chief of Appeals; Kenji M. Price,
United States Attorney; United States Attorney’s Office,
Honolulu, Hawaii; for Respondent-Appellee.
OPINION
PER CURIAM:
In 1982, a court-martial convicted U.S. Army Private
Clifford Hubbard of murder and sentenced him to life in
prison. Hubbard has unsuccessfully challenged his
conviction on both direct review in military court and habeas
review in federal court. He now seeks another form of relief,
which he asserts will prove his innocence: DNA testing
under the Innocence Protection Act of 2004 (“IPA”),
18 U.S.C. § 3600. The district court dismissed Hubbard’s
petition for lack of jurisdiction. We affirm.

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I.
A.
Hubbard was charged with premeditated murder; felony
murder; sodomy; and the commission of indecent, lewd, and
lascivious acts with a child under the age of sixteen, all under
the Uniform Code of Military Justice, 10 U.S.C. §§ 918, 925,
934 (1982). A general court-martial was convened, and a
trial was held at Fort Shafter, Hawaii, from June 28 to July
1, 1982. At trial, the prosecution presented no direct
physical evidence of Hubbard’s involvement in the victim’s
death. Rather, the prosecution primarily relied on statements
from a witness who had also been a suspect and who
absconded before trial. The court-martial convicted
Hubbard on all charges and sentenced him to life in prison.1
Hubbard has unsuccessfully challenged his conviction in
military court and federal court. On direct appeal, he argued
that the witness’s testimony was both inadmissible and
insufficient to establish his guilt. The military courts
rejected these arguments. United States v. Hubbard, 18 M.J.
678 (A.C.M.R. 1984), aff’d, 28 M.J. 27 (C.M.A. 1989).2
The Supreme Court denied certiorari. Hubbard v. United
States, 493 U.S. 847 (1989) (Mem.).
In 1990, while Hubbard was incarcerated at a military
facility in Kansas, he filed a habeas petition challenging his
1 As to the premeditated murder and sodomy charges, the court
convicted Hubbard of the lesser crimes of unpremeditated murder and
attempted sodomy.
2 The Court of Military Appeals set aside the unpremeditated murder
conviction as multiplicitous with the felony murder conviction.
Hubbard, 28 M.J. at 34. This had no effect on Hubbard’s sentence. Id.

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HUBBARD V . UNITED S TATES 5
conviction on multiple grounds. See Hubbard v. Berrong,
No. 90-3120, 1993 WL 62402 (D. Kan. Feb. 18, 1993). The
district court dismissed the petition and denied relief, id., and
the Tenth Circuit affirmed, see Hubbard v. Berrong, 7 F.3d
1045 (10th Cir. 1993) (unpublished table decision).
Hubbard then filed a second habeas petition, which the
district court dismissed, and the Tenth Circuit again
affirmed. Hubbard v. Lowe, 43 F.3d 1483 (10th Cir. 1994)
(unpublished table decision). The Supreme Court again
denied Hubbard’s petition for certiorari. Hubbard v. Lowe,
514 U.S. 1100 (1995) (Mem.).
B.
In 2019, Hubbard filed the instant petition under the IPA
in the U.S. District Court for the District of Hawaii,
requesting DNA testing of the evidence collected during the
investigation leading to his 1982 conviction. The IPA
“opens the door to revisiting mistaken convictions, when the
new science of identifying people by their DNA left at a
crime scene may exonerate the wrongly convicted.” United
States v. Watson, 792 F.3d 1174, 1177 (9th Cir. 2015).
Specifically, the IPA provides:
Upon a written motion by an individual
sentenced to imprisonment or death pursuant
to a conviction for a Federal offense . . . , the
court that entered the judgment of conviction
shall order DNA testing of specific evidence
if the court finds that all of the following [ten
statutory conditions] apply.
18 U.S.C. § 3600(a). In support of his petition, Hubbard
argued that none of the physical evidence collected from the
crime scene and introduced at trial had been forensically

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linked to him, and that if the evidence were reexamined
today using DNA testing technology that was unavailable in
1982, it would demonstrate his innocence.
The district court dismissed Hubbard’s petition for lack
of subject-matter jurisdiction, holding that Hubbard did not
qualify for relief under the IPA because his court-martial
convictions were not for “Federal offense[s].” Id. Hubbard
timely appealed.
II.
“We review questions of subject-matter jurisdiction and
statutory interpretation de novo.” Mollison v. United States,
568 F.3d 1073, 1075 (9th Cir. 2009).
In the district court and in their briefs on appeal, the
parties disputed whether the term “Federal offense” in the
IPA includes offenses committed in violation of the Uniform
Code of Military Justice. 18 U.S.C. § 3600(a). We need not
resolve that dispute here, however, because it is clear that the
district court lacked jurisdiction for a different reason: the
district court was not “the court that entered the judgment of
conviction.” Id. Hubbard’s judgment of conviction was
instead entered by a general court-martial, not in federal
court. That court-martial has since dissolved. See
McClaughry v. Deming, 186 U.S. 49, 64 (1902) (explaining
that a court-martial is “a special body convened for a specific
purpose, and when that purpose is accomplished its duties
are concluded and the court is dissolved”). For this reason
alone, we reject Hubbard’s contention that the district court
had the power to grant his petition for DNA testing under the
IPA.
Conceding that the district court is not “the court that
entered the judgment of conviction,” Hubbard argues that

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HUBBARD V . UNITED S TATES 7
the IPA should nonetheless be construed to allow him to
petition for DNA testing in the district court because he
would otherwise have no forum in which to seek relief. For
this proposition, Hubbard points to the availability of habeas
proceedings for prisoners convicted by courts-martial.
Although a court-martial is “not available for collateral
review” of guilty verdicts, Denedo v. United States, 66 M.J.
114, 124 (C.A.A.F. 2008), aff’d, 556 U.S. 904 (2009), a
prisoner convicted and sentenced by court-martial may seek
habeas relief in federal court, see Burns v. Wilson, 346 U.S.
137, 142 (1953) (plurality opinion); Clinton v. Goldsmith,
526 U.S. 529, 537 n.11 (1999). According to Hubbard,
fundamental fairness compels the same result here.
Hubbard’s analogy to habeas overlooks the fact that the
federal habeas statutes, unlike the IPA, provide a procedural
mechanism for prisoners convicted by courts-martial to seek
collateral relief in federal court. Ordinarily, a federal
prisoner seeking to challenge the legality of his detention
may do so only by “mov[ing] the court which imposed the
sentence to vacate, set aside or correct the sentence.”
28 U.S.C. § 2255(a) (emphasis added). This language in
§ 2255(a), without more, suggests that prisoners sentenced
by courts-martial may not seek relief in federal court. But
§ 2255 includes a savings clause under which a federal
prisoner may challenge his conviction by filing a habeas
petition in the custodial court if the § 2255 remedy is
“inadequate or ineffective to test the legality of his
detention.” Hernandez v. Campbell, 204 F.3d 861, 865 (9th
Cir. 2000) (per curiam) (quoting 28 U.S.C. § 2255(e)). It is
this savings clause that enables prisoners who were
convicted and sentenced by courts-martial to file habeas
petitions in the district in which they are in custody, just as

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Hubbard did in the District of Kansas.3 Cf. Goldsmith,
526 U.S. at 537 n.11.
By contrast, the IPA does not identify a forum that
should have jurisdiction to hear a petition for DNA testing
when the tribunal that entered the conviction has dissolved.
Indeed, an earlier version of the bill that later became the
IPA would have provided a route for prisoners convicted by
courts-martial to apply for DNA testing. It would have
required such prisoners to apply for relief in “the appropriate
Federal court,” defined as:
(A) the United States District Court which
imposed the sentence from which the
applicant seeks relief; or
(B) in relation to a crime under the Uniform
Code of Military Justice, the United States
District Court having jurisdiction over the
place where the court martial was convened
that imposed the sentence from which the
applicant seeks relief, or the United States
District Court for the District of Columbia, if
no United States District Court has
jurisdiction over the place where the court
martial was convened.
Innocence Protection Act of 2002, S. 486, 107th Cong. § 101
(as reported by S. Comm. on the Judiciary, Oct. 16, 2002)
3 Hubbard is currently in custody at the Holmes Correctional
Institution in Florida. He filed the instant petition in the District Court
for the District of Hawaii because the crime occurred within that district
and because he believes that the evidence was “collected, preserved and
maintained” there.

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HUBBARD V . UNITED S TATES 9
(emphasis added). But the phrase “the appropriate Federal
court” and its accompanying definition were replaced with
“the court that entered the judgment of conviction” in the
enacted text. See 18 U.S.C. § 3600(a). The removal of the
language in (B) suggests that Congress considered, but
ultimately rejected, the notion that district courts should
provide a forum for prisoners convicted by courts-martial to
seek DNA testing under the IPA.
Hubbard also argues that the title of the comprehensive
bill in which the IPA was enacted—the Justice for All Act
of 2004—evinces Congress’s intent that the statute should
apply broadly and thus cover prisoners with court-martial
convictions. See Pub. L. No. 108-405, § 1, 118 Stat. 2260,
2260. But although a statute’s title “can be used to resolve
ambiguity, it cannot control the plain meaning of a statute.”
Logan v. U.S. Bank Nat’l Ass’n, 722 F.3d 1163, 1172 (9th
Cir. 2013) (cleaned up). The plain meaning of the phrase
“the court that entered the judgment” in § 3600(a) indicates
that federal courts cannot provide relief to prisoners whose
judgments were entered by a court-martial that has since
dissolved.
Finally, we recognize the broader argument that a “literal
interpretation” of § 3600(a) will have the practical effect of
preventing servicemembers who were convicted by courts-
martial, such as Hubbard, from seeking the statute’s benefits.
But we are not “free to rewrite clear statutes under the banner
of our own policy concerns.” Azar v. Allina Health Servs.,
139 S. Ct. 1804, 1815 (2019). We note, however, that
although Hubbard may not seek an order compelling the
military to conduct DNA testing in the district court, the IPA
is silent as to whether the military may voluntarily test any
existing evidence in cases like Hubbard’s. The absence of
physical evidence at trial connecting Hubbard to the crimes

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makes this a particularly compelling case for DNA testing,
as it presents at least the possibility that the wrong person
has spent nearly forty years in prison.
III.
For the foregoing reasons, we affirm the district court’s
dismissal for lack of subject-matter jurisdiction.
AFFIRMED.
FRIEDLAND, Circuit Judge, with whom NGUYEN and
OWENS, Circuit Judges, join, concurring:
The IPA’s text creates the bizarre and unjust result that
servicemembers convicted by courts-martial are less able to
obtain DNA testing than other categories of prisoners,
federal or state. See Kerry Abrams & Brandon L. Garrett,
DNA and Distrust, 91 Notre Dame L. Rev. 757, 776 (2015)
(“Today, all fifty states have enacted statutes providing
access to DNA and post-conviction relief.”); Samuel R.
Wiseman, Waiving Innocence, 96 Minn. L. Rev. 952, 954
(2012) (“DNA has provoked a small revolution in criminal
procedure, causing almost every state legislature, as well as
Congress, to rethink well-established notions . . . to allow for
post-conviction testing and relief.” (footnotes omitted)).
This disparity is entirely inconsistent with the respect usually
given to veterans. I urge Congress to remedy this unfairness
by amending the IPA to explicitly provide servicemembers
convicted by courts-martial the same avenues for post-
conviction DNA testing afforded to other prisoners.

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