Garner v. Gutierrez

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Michael A Garner,
Petitioner,
v.
Mark Gutierrez,
Respondent.
No. CV-25-00017-TUC-RM (JR)
REPORT & RECOMMENDATION
Before the Court is Petitioner Michael A Garner’s (“Petitioner”) Petition Under
28 U.S.C. § 2241 for Writ of Habeas Corpus by a Person in Federal Custody (“Petition”).
(Doc. 1.) Respondent filed Respondent’s Return and Answer to Petition For a Writ of
Habeas Corpus Under 28 U.S.C. § 2241 (“Answer”). (Doc. 14.) Petitioner filed his reply.
(Doc. 19.) Pursuant to Local Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,
this matter was referred to United States Magistrate Judge Jacqueline Rateau for Report
and Recommendation. (Doc. 5.)
As more fully set forth below, the undersigned recommends that the district court,
after independent review of the record, dismiss the Petition.
I. BACKGROUND1
1. Court-Martial Proceedings
On April 26, 2008, a general court-martial with members found Petitioner guilty of
1 Unless otherwise indicated all factual references are taken from exhibits attached to
Respondent’s Answer.
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rape, forcible sodomy, indecent assault of his biological daughter, possessing child
pornography, desertion, and disobeying a no-contact order in violation of Articles 120,
125, 134, 85, and 90 of the Uniform Code of Military Justice (UCMJ). 10 U.S.C. §§ 920,
925, 934, 885, 890 (2006). (See Doc. 14-1.) Petitioner was sentenced to be reduced to the
grade of E-1; to forfeiture of all pay and allowances; to be confined for life; and to be
dishonorably discharged from the service. (See Doc. 14-11 at 4.)
2. Military Appeals
On December 16, 2010, Petitioner filed an appellant brief and Grostefon2 brief to
the United States Army Court of Appeals (“ACCA”). (Docs. 14-2, 14-3.) Petitioner’s
Grostefon brief made several claims: ineffective assistance of counsel (“IAC”) for failure
to thoroughly investigate and present certain witnesses, error by the trial court in admitting
certain testimony, and error in the court’s failure to suppress a search. (See Doc. 14-2.)
Petitioner’s appellant brief claimed IAC for failure to present sentencing evidence and
sufficiency of the evidence for Charge III pertaining to viewing or possessing child
pornography. (See Doc. 14-3.)
On November 29, 2011, the ACCA affirmed the findings with regard to the IAC
claims, as well as the sufficiency of Charge III, and the sentence. United States v. Garner,
No. ARMY 20020401, 2011 WL 6088629 (A. Ct. Crim. App. Nov. 29, 2011); see also
(Doc. 14-10.)
On June 4, 2012, Petitioner filed an appellant brief to the United States Court of
Appeals for the Armed Forces (“CAAF”), alleging the trial court erred by failing to give a
sentencing instruction upon reconsideration. (Doc. 14-6.) On January 8, 2013, the CAAF
affirmed the ACCA’s decision except as to the finding of guilt as to Specification 1 of
Charge III, Indecent Assault, which the CAAF reversed, and as to the sentence. (Doc. 14-
7.) The CAAF found that Specification 1 of Charge III failed to state an offense and
remanded the case to the ACCA for further consideration and resentencing. (Id.)
2 United States v. Grostefon, 12 M.J. 431, 436-37 (1982), “allows an appellant to raise
matters independent of the brief filed by his counsel on his behalf but does not require
those matters to be briefed.” Threats v. Howard, 2023 WL 8112601, at *2 (D. Ariz. March
24, 2023).
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On February 22, 2013, the ACCA set aside and dismissed its finding of guilt as to
Specification 1 of Charge III. (Doc. 14-8 at 2.) The ACCA stated, “reassessing the sentence
on the basis of the error noted, the entire record, and in accordance with the principles of
United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v. Moffeit, 23 M.J. 40
(C.A.A.F. 2006)…the court affirms the sentence.” (Id.)
3. 2022 Petition for Writ of Habeas Corpus
On January 14, 2022, Petitioner filed a Petition for Writ of Habeas Corpus in this
Court alleging that his sentences should be vacated based on newly discovered mitigating
evidence of metal illness that trial counsel withheld during the sentencing phase of the
court-martial. See Garner v. Colbert, 2022 WL 21747982, at *3 (D. Ariz. Oct. 20, 2022.)
On October 20, 2022, this Court dismissed that petition because it found Petitioner failed
to raise the claim in his military proceedings, and he could not establish cause and prejudice
excusing the waiver. Id. at *7. Petitioner appealed the dismissal to the United States Court
of Appeals for the Ninth Circuit. The Ninth Circuit affirmed the Court’s findings holding
that Petitioner waived his claim and the Court did not abuse its discretion by denying that
petition without an evidentiary hearing. Garner v. Colbert, 2024 WL 3311137, at *1-2 (9th
Cir. July 5, 2024).
4. Petition, Answer, and Summary of Conclusion
Petitioner now seeks relief on one ground, namely, that he is actually innocent of
the charges of which he was convicted. (Doc. 1 at 6.) Petitioner alleges that there is no
physical or medical evidence which would support his conviction. (Id. at 6-7.) Petitioner
requests the District Court find him innocent of the charges and grant him immediate
release. (Id. at 8.)
Respondent seeks dismissal of the Petition on three grounds: (1) that the Petition is
an abuse of writ; (2) that Petitioner’s claim is waived; and (3) that Petitioner’s claim was
given full and fair consideration by the military courts. (Doc. 14 at 2.) In sum, Respondent
argues that Petitioner does not present a claim that is reviewable by the Court and therefore
the Petition should be denied. (Id.)
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As more fully set forth below, this Court finds Petitioner has failed to raise a
constitutional claim for which relief may be granted, the Petition is an abuse of writ, and
Petitioner’s claim of actual innocence is procedurally barred.
II. LEGAL STANDARD
1. District Court Review of Court-Martial Proceedings is Strictly Limited
The plaintiff bears the burden of establishing the propriety of the court's jurisdiction.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S. Ct. 1673 (1994).
“Title 28 U.S.C. § 2241 ‘vests federal courts with jurisdiction over applications for habeas
corpus from persons confined by the military courts.’” Johnson v. Rodriguez, 2022 WL
2119136, at *2 (C.D. Cal. Apr. 27, 2022), report and recommendation adopted, 2022 WL
2866671 (C.D. Cal. July 20, 2022) (quoting Burns v. Wilson, 346 U.S. 137, 139 (1953)).
“Servicemen who were convicted and sentenced by courts-martial may file habeas petitions
in the district in which they are in custody.” Johnson, 2022 WL 2119136, at *2 (citing
Hubbard v. United States, 7 F.4th 1228, 1231 (9th Cir. 2021)). “Court-martials ‘are thus
collaterally reviewable for constitutional or jurisdictional error.’” Johnson, 2022 WL
2119136, at *2 (quoting Davis v. Marsh, 876 F.2d 1446, 1448 (9th Cir. 1989)).
Habeas review is limited, however, if the petitioner is in custody pursuant to a
judgment imposed by a military court-martial. Erickson v. Shartle, 2019 WL 1921596 (D.
Ariz. Apr. 30, 2019), affirmed, Erickson v. von Blanckensee, 2021 WL 5399871 (9th Cir.
Nov. 16, 2021) (citing Burns, 346 U.S. at 139-42). Military law is a separate area of
jurisprudence with its own specialized system of rights and procedures. Burns, 349 U.S. at
139-42. Civilian courts must show deference to “the fair determination of the military
tribunals,” whose decisions are “‘final’ and ‘binding’ upon all courts.” Id. at 142. “[W]hen
a military decision has dealt fully and fairly with an allegation raised in [an] application
[for habeas corpus], it is not open to a federal civil court to grant the writ simply to re-
evaluate the evidence.” Id.
The 10th Circuit3 has set forth four specific requirements that must be met for a
3 Because of the presence of the military prison in Fort Leavenworth, Kansas,
considerable attention to this area of law exists in the 10th Circuit.
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collateral attack of a military conviction to proceed on the merits in a district court:
(1) the asserted error is of substantial constitutional dimension;
(2) the issue is one of law rather than of disputed fact already
determined by the military tribunal; (3) there are no military
considerations that warrant different treatment of
constitutional claims; and (4) the military courts failed to give
adequate consideration to the issues involved or failed to apply
proper legal standards.
Lips v. Commandant, U.S. Disciplinary Barracks, 997 F.2d 808, 811 (10th Cir. 1993)
(citing Dodson v. Zelez, 917 F.2d 1250 (10th Cir. 1990)). “[Factor One] is important,
however, as a reminder that we will only review habeas corpus petitions from the military
courts that raise substantial constitutional issues.” Roberts v. Callahan, 321 F.3d 994, 997
(10th Cir. 2003). Petitioner must meet each of these requirements for this Court to consider
the merits of his case. Id. at 996-97.
2. Failure to Exhaust Remedies Further Limits Scope of Review
If a petitioner fails to raise an issue before the military courts of appeal, it is waived
and barred from review absent a showing of cause and prejudice. Davis, 876 F.2d at 1448.
Davis held, “[w]hile the analogy between the military justice system and a state court
system is not perfect, the two are sufficiently congruent to justify adopting an identical
waiver rule.” Id. at 1450. “The Wainwright-Frady-Engle4 line of cases recognizes that if
there is good cause for not having advanced the particular matter relied on in the federal
collateral habeas corpus proceeding at trial, and there is actual prejudice, then federal relief
may be available.” Wolff v. United States, 737 F.2d 877, 880 (10th Cir. 1984).
To establish cause required to overcome a procedural bar to federal habeas review,
a “petitioner must assert that the procedural default is due to an objective factor that is
external to the petitioner and that cannot fairly be attributed to him.” Manning v. Foster,
224 F.3d 1129, 1133 (9th Cir. 2000) (citing Coleman v. Thompson, 501 U.S. 722, 753
(1991)) (additional citation omitted). Cause is demonstrated when a petitioner establishes
that “some external impediment prevent[ed] counsel from constructing or raising the
4 Wainwright v. Sykes, 433 U.S. 72 (1977); United States v. Frady, 456 U.S. 152
(1982); Engle v. Isaac, 456 U.S. 107 (1982).
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claim.” Murray v. Carrier, 477 U.S. 478, 479 (1986). In addition to establishing cause, a
petitioner must also show “‘actual prejudice’ resulting from the errors of which he
complains.” United States v. Frady, 456 U.S. 152, 168 (1982). This requires “a reasonable
probability that, absent errors, the factfinder would have had a reasonable doubt respecting
guilt.” Strickland v. Washington, 466 U.S. 668, 695 (1984).
The Supreme Court has recognized, however, that “the cause and prejudice standard
will be met in those cases where review of a state prisoner's claim is necessary to correct
‘a fundamental miscarriage of justice.’” Coleman, 501 U.S. at 748 (quoting Engle v. Isaac,
456 U.S. 107, 135 (1982)). “The fundamental miscarriage of justice exception is available
‘only where the prisoner supplements his constitutional claim with a colorable showing of
factual innocence.’” Herrara v. Collins, 506 U.S. 390, 404 (1993) (emphasis in original)
(quoting Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986)). Thus, “‘actual innocence’ is not
itself a constitutional claim, but instead a gateway through which a habeas petitioner must
pass to have his otherwise barred constitutional claim considered on the merits.” Herrara,
506 U.S. at 404; see also Schlup v. Delo, 513 U.S. 298, 315 (1995). Petitioner must
establish new facts that “raise[ ] sufficient doubt about [his] guilt to undermine confidence
in the result of the trial without the assurance that that trial was untainted by constitutional
error.” Schlup, 513 U.S. at 317; see also Narula v. Yakubisin, 650 Fed. App'x 337 (9th Cir.
2016).
III. ANALYSIS
Petitioner's sole claim for relief is that he is “actually innocent” of the charges
against him. (Doc. 1 at 6.) As discussed in Section II, supra, habeas relief is available only
to those alleging a constitutional violation. Herrara, 506 U.S. at 404; see also Schlup, 513
U.S. at 315. Here, Petitioner has not explicitly alleged any constitutional violation in his
Petition (see Doc. 1) and has failed to establish new facts that “raise[ ] sufficient doubt
about [his] guilt to undermine confidence in the result of the trial without the assurance
that that trial was untainted by constitutional error.” Schlup, 513 U.S. at 317; see also
Narula, 650 Fed. App'x 337. As such, the Petition (Doc. 1) should be dismissed. The Court
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will, however, give Petitioner's claims their broadest construction and address each
supporting argument in turn.
1. Petitioner does not raise a substantial constitutional issue, and his factual
allegations were fully and fairly considered by the military courts
It is the limited function of the civil courts to determine whether the military have
given fair consideration to each of [Petitioner's] claims.” Burns, 346 U.S. at 144, (citations
omitted). The Court “will entertain military prisoners’ claims if they were raised in the
military courts and those courts refused to consider them.” Watson v. McCotter, 782 F.2d
143, 145 (10th Cir. 1986). However, “when an issue is briefed and argued before a military
board of review, we have held that the military tribunal has given the claim fair
consideration[.]” Id. As such, “when a military decision has dealt fully and fairly with an
allegation raised in that application, it is not open to a federal civil court to grant the writ
simply to re-evaluate the evidence.” Burns, 346 U.S. at 142 (citing Whelchel v. McDonald,
340 U.S. 122, 71 S. Ct. 146, 95 L. Ed. 141 (1950)); see also Roberts, 321 F.3d at 995; Lips,
997 F.2d at 808, 810, 811.
Here, Petitioner asserts that he is actually innocent of the crimes for which he was
convicted, but does not argue a specific substantial constitutional error or legal issue
occurred as required for civil court review under Dodson, but instead makes the following
factual allegations:
1. His son “D.G.” and Petitioner’s biological daughter “S.G.,” the victim, were in
a sexual relationship;
2. D.G. and S.G. had sexual encounters on the Petitioner’s blue and white
comforter in Petitioner’s residence;
3. Semen detected on the blue and white comforter did not positively identify
Petitioner as the contributor;
4. Evidence obtained from the comforter “more likely than not” proves Petitioner’s
innocence;
5. Petitioner has never confessed to any sexual acts with S.G., while D.G. and S.G.
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continue to engage in sexual activities per phone conversations between
Petitioner and D.G. as recently as 2022;
6. No physical or medical evidence of sexual intercourse between Petitioner and
S.G. exists.
(Id. at 6-7.)
Attached to the Petition is a February 25, 2008 motion in limine filed by Petitioner’s
trial defense counsel and the corresponding military court order titled “Supplemental
Findings and Ruling on Defense Motion in Limine to Introduce MRE 412 Evidence.” (Doc.
1-1 at 1-7.) Upon motion by Petitioner’s defense counsel, the Military Court made the
following findings of fact by a preponderance of the evidence:
a. [S.G.] and [D.G.] engaged in sexual acts including oral sex
and intercourse.
b. At least some of the sexual acts between [S.G.] and [D.G.]
occurred on the blue and white comforter that was seized
from [Petitioner’s] quarters.
c. There are five semen stains on the comforter that could be
derived from [Petitioner] or from [D.G.].
d. It is not possible to tell from the DNA testing conducted on
the comforter whether [Petitioner] or [D.G.] contributed to
these five semen stains as both their DNA is present in the
mixed sample.
(See id. at 1-2.)
As such, assuming arguendo that Petitioner’s factual claims imply a constitutional
error, the military courts fully and fairly considered such claims by allowing Petitioner to
introduce evidence supporting those claims during the court martial proceedings, making
a finding of fact regarding those factual claims, and considering those same facts during
Petitioner’s appeal process. (Docs. 1-1 at 1-7, 14-2 at 8 n.3.) Accordingly, the record
clearly supports a finding that Petitioner “enjoyed the hallmark of full and fair
consideration on the issue he now brings in [the Petition].” Threats v. Howard, 2023 WL
8112601, at *8 (D. Ariz. Mar. 24, 2023.)
Therefore, the undersigned recommends that the district court dismiss the Petition
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as the Petitioner’s claims were fully and fairly considered by the military courts.
2. Petitioner’s claim is unexhausted and should be rejected as procedurally
barred
In his appeal before the Army Court of Criminal Appeals, Petitioner raised two
issues for review. Garner, 2011 WL 6088629, at *1-3. First, Petitioner argued that “his
trial defense counsels’ performance was deficient in the pre-sentencing phase of his court-
martial because they called no witnesses and presented no documentary evidence.” Id. at
*1. Second, Petitioner argued that “he was convicted of possessing unlawful ‘images of
children’ when in fact all 59 of the charged images were of the same child.” Id. at *2.
Additionally, the Army Court of Criminal Appeals, sua sponte, considered whether
“Specification 1 of Charge III fail[ed] to specifically allege at least one of the three clauses
commonly referred to as the ‘terminal element’ of Article 134.” Id. (footnote omitted).
In his subsequent appeal to the Court of Appeals for the Armed Forces, that court
considered whether the military judge erred in failing to give a reconsideration instruction
to the members after examining the members’ completed initial sentence worksheet,
finding it ambiguous, and returning the members for further deliberations. United States v.
Garner, 71 M.J. 430, 431 (C.A.A.F. 2013). The armed forces appellate court also
considered whether the failure to allege the terminal element in Specification 1 of Charge
III was prejudicial error. Id. As mentioned above, the armed forces court of appeals
returned the record to the Judge Advocate General of the Army for remand to the Army
Court of Criminal Appeals for further consideration. Id. On remand, the Army Court of
Criminal Appeals set aside and dismissed the guilty finding on Specification 1 of Charge
III and affirmed Petitioner’s sentence. United States v. Garner, 2013 WL 777395, at *1
(C.A.A.F. Feb. 22, 2013).
In light of the foregoing, the Court finds the record is clear that the claim alleged in
this Petition—that Petitioner is actually innocent of the crime for which he was convicted
due to the sufficiency of the evidence—was not raised in the military courts below. In order
for this Court to have jurisdiction over the claim alleged in the instant Petition, Petitioner
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must establish cause and actual prejudice for his failure to raise the claim below in his
military proceedings. Davis, 876 F.2d at 1448-50 (applying the analogous waiver doctrine
from habeas petitions originating in state court to those originating from a military
conviction). In his Reply, Petitioner fails to establish that cause and actual prejudice exist
such that this Court may consider the merits of his claim. Instead, Petitioner makes the
conclusory argument that his ongoing assertion of innocence is reason enough for this
Court to consider the Petition. (Doc. 19 at 8.)
Here, Petitioner does not allege any external impediment which might have caused
him from raising the immediate claim during his military appeal and therefore has failed
to establish the requisite cause for this Court to excuse his procedural default. Murray, 477
U.S. at 497. Accordingly, the undersigned recommends the district court dismiss the
Petition as procedurally barred.
3. The Petition abuses the writ
“The doctrine of abuse of writ defines the circumstances in which federal courts
decline to entertain a claim presented for the first time in a second of subsequent petition
for a writ of habeas corpus.” McClesky v. Zant, 499 U.S. 467, 470 (1991). While the second
or successive habeas petition prohibitions of 28 U.S.C. § 2244 may not apply to military
prisoners convicted by a general court martial such as petitioner, the Supreme Court
determined that “Congress did not intend § 2244(b) to foreclose application of court-
announced principles defining and limiting a district court’s discretion to entertain abusive
petitions.” Threats, 2023 WL 8112601, at *6 (quoting McClesky, 499 U.S. at 487).
Accordingly, “Under the common law ‘abuse of the writ’ doctrine, a court need not
entertain a petition that abuses the habeas process.” Esposito v. Ashcroft, 392 F.3d 549,
550 (2d Cir. 2004).
“[A] petitioner can abuse the writ by raising a claim in a subsequent petition that he
could have raised in his first, regardless of whether the failure to raise it earlier stemmed
from a deliberate choice.” McClesky, 499 U.S. at 489; see also James v. Walsh, 308 F.3d
162, 167 (2d Cir. 2002) (same); Esposito, 392 F.3d at 550 (“One frequently recognized
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indicator of abusiveness is whether the petitioner could have asserted his present claims in
his prior petition.”); Delo v. Stokes, 495 U.S. 320, 321-22 (1990) (holding claims raised for
the first time in a fourth federal habeas petition abused the writ because they “could have
been raised” or “developed” in the first federal habeas petition); Kuhlmann, 477 U.S. at
444 n.6 (petition that raises grounds “available but not relied upon in a prior petition” is an
example of abuse of the writ); Straight v. Wainwright, 476 U.S. 1132, 1133 (1986) (Powell,
J., joined by three Justices, concurring in denial of stay) (new arguments in second petition
that “plainly could have been raised earlier” constitute abuse of the writ); Rose v. Lundy,
455 U.S. 509, 521 (1982) (plurality opinion) (prisoner who proceeds with exhausted claims
in first federal petition and deliberately sets aside his unexhausted claims risks dismissal
of subsequent federal petitions).
Here, despite the ability to do so, Petitioner failed to raise his current claim in his
first habeas petition to this Court. See Garner, 2022 WL 21747982. The record reflects
Petitioner was aware of the factual basis for his immediate Petition at the time he filed his
2022 habeas petition because, as discussed above, these same factual assertions were made
by his Counsel in front of the military court as early as February 2008, the military court
considered and made a factual finding regarding these assertions in 2009, and the same or
similar claims were brought up during his military appeal. (Docs. 1-1 at 1-7, 14-2 at 8.)
Accordingly, the undersigned alternatively recommends that the Petition be dismissed as
an abuse of the writ.
MOTION TO APPOINT COUNSEL
Indigent prisoners applying for habeas corpus relief “are not entitled to appointed
counsel unless the circumstances of a particular case indicate that appointed counsel is
necessary to prevent due process violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th
Cir. 1986). However, the Court has discretion to appoint counsel when “the interests of
justice so require.” 18 U.S.C. § 3006A(a)(2)(B).
Here, Petitioner has not shown, and nothing in the record indicates, appointment of
counsel will be necessary to prevent due process violations in the immediate matter, nor
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that the interests of justice compel the court to so order. Accordingly, the undersigned
recommends the district court deny Petitioner’s motion.
RECOMMENDATION
The Magistrate Judge RECOMMENDS that the district court, after its independent
review, issue an order ADOPTING this Report and Recommendation and DENYING the
Petition (Doc. 1) and DENYING the Petitioner’s Motion to Appoint Counsel (Doc. 21).
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file
written objections within fourteen days of being served with a copy of the Report and
Recommendation. A party may respond to the other party=s objections within fourteen
days. No reply shall be filed unless leave is granted by the district court. If objections are
not timely filed, they may be deemed waived. Failure to file timely objections to any factual
or legal determination of the Magistrate Judge may be considered a waiver of a party's right
to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003) (en banc). If objections are filed, the parties should use the following
case number: CV-25-17-RM.
Dated this 7th day of April, 2026.
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