Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-28-2008

Armann v. Warden FCI McKean
Precedential or Non-Precedential: Precedential

Docket No. 07-3874




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                                   PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT


                 No. 07-3874


            KURTIS E. ARMANN

                       v.

          WARDEN FCI McKEAN,

                       Appellant


On Appeal from the United States District Court
   for the Western District of Pennsylvania
           (D.C. No. 04-cv-00118E)
District Judge: Honorable Sean J. McLaughlin


          Argued October 1, 2008
     Before: FISHER, CHAGARES and
       HARDIMAN, Circuit Judges.

         (Filed: November 28, 2008 )
Thomas E. Booth (Argued)
United States Department of Justice
Appellate Section, Room 1511
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

Rebecca R. Haywood
Office of United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
       Attorneys for Appellant

Thomas W. Patton (Argued)
Office of Federal Public Defender
1001 State Street
1111 Renaissance Centre
Erie, PA 16501
       Attorney for Appellee




                 OPINION OF THE COURT


FISHER, Circuit Judge.

       Appellee Kurtis Armann filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 in the United States
District Court for the Western District of Pennsylvania. The
District Court adopted the Magistrate Judge’s decision to grant
Armann’s motion for an evidentiary hearing to develop factually

                              2
whether he was mentally incompetent on the day of his plea and
sentencing before a military court-martial. The Government
appeals the District Court’s order. The issue before this Court
is whether the District Court erred in adopting the Magistrate
Judge’s decision to grant an evidentiary hearing after
determining that the military courts did not adjudicate Armann’s
mental incompetency claim “on the merits” under 28 U.S.C.
§ 2254(d). For the reasons set forth, we will reverse the District
Court’s order.

                      I. BACKGROUND

                  A. The military proceedings

   1. Armann’s conduct and the court-martial proceedings

       Kurtis Armann served as a private in the United States
Army and was stationed in Germany. In October 1998, he
attempted to kill Private Toni Bell by shooting her. Armann and
Bell had previously entered into an agreement in which Bell
would pay Armann to kill Bell’s in-laws. However, when Bell
backed out of the agreement and demonstrated reluctance to pay,
Armann planned to kill her. On the night of the shooting,
Armann, dressed in black clothing, waited with a makeshift rifle
near the gate at which Bell stood guard. When Bell arrived for
duty, Armann peered through the rifle scope, taking aim for her
head. He fired the rifle but the bullet struck Bell in her neck and
she survived.

      Armann was charged with attempted premeditated
murder with a firearm, conspiracy to commit premeditated

                                3
murder, violating a lawful general regulation by wrongfully
possessing a firearm with a silencer, and wrongfully using
marijuana, in violation of Articles 80, 81, 92, and 112a of the
Uniform Code of Military Justice (UCMJ), respectively. He
was held in pretrial custody at the Mannheim Confinement
Facility in Germany. The Military Judge held a pretrial hearing
where Master Sergeant Carlos Perez, Chief of Correctional
Supervision Branch, testified that since arriving at the
Mannheim facility, Armann was taking medication to treat
migraine headaches. The Judge ordered a Sanity Board to
evaluate Armann’s mental health. Armann’s trial counsel
objected, arguing that neither the medical officers at the
confinement center nor the other government authorities had
come forth with questions about Armann’s mental health.
Counsel stated that he had “no basis to question Private
Armann’s ability to assist in his defense or . . . appreciate the
ongoing proceedings.”

       On February 8, 1999, the Sanity Board released its
findings, stating that Armann was not suffering from any
“severe mental disease or defect” at the time of his criminal
conduct and that he had “sufficient mental capacity to
understand the nature of the proceedings and to conduct his own
defense, or cooperate intelligently in his own defense.” The
Board made such findings after reviewing Armann’s outpatient
records, other medical records, and the documents relating to the
charges. It also reported “negative findings of repeated medical
examinations and laboratory tests” regarding “the extent of any
organic brain damage.”



                               4
       At a court-martial proceeding held on March 19, 1999,
Armann pleaded guilty to all four counts. Prior to accepting
Armann’s plea, the Military Judge reviewed the allegations,
which Armann elaborated upon and accepted as true. The Judge
ensured that Armann was voluntarily pleading guilty and that by
doing so Armann was waiving certain rights. Armann’s attorney
also acknowledged that he had received a copy of the Sanity
Board determination. Following the plea, the Judge held a
sentencing hearing at which Armann’s expert testified that,
although Armann was taking medication for his migraine
headaches, he was sane at the time of the offense. The Judge
sentenced Armann to a dishonorable discharge and thirty-eight
years’ imprisonment, which was then reduced to thirty-five
years pursuant to a plea agreement.

       On the day of (and the day before) Armann’s plea and
sentencing, the Mannheim facility administered various
medications to him. The medical logs for the facility document
that on March 18 and 19, Mannheim officials administered
Seconal, Fironal, Fioricet, Compazine, Midrin, Phenergan, and
Elavil to Armann at various times throughout each day. In his
habeas petition, Armann provides various filings which indicate
that such drugs may produce sedative effects that may impair
one’s mental and/or physical abilities or impact one’s nervous
system. At the plea and sentencing proceeding, the Military
Judge did not inquire into whether Armann had taken any
medication that day nor did Armann or his attorney raise any
competency issues.




                              5
               2. Armann’s appeal to the ACCA

       On July 19, 2000, Armann appealed the court-martial
judgment to the Army Court of Criminal Appeals (ACCA).1
Armann’s principal brief presented three issues to the ACCA,
alleging that Armann’s conviction for possessing a firearm
should be set aside because the applicable military regulations
were not judicially noticed or accepted into evidence during the
court-martial proceedings; the Military Judge erroneously
attached a certain exhibit; and Armann’s sentence was
“substantially disproportionate” to his personal history.

        Aside from the principal brief’s assertions, Armann
personally raised two additional issues pursuant to the rule set
forth in United States v. Grostefon, 

(C.M.A. 1982),
which were attached to the principal brief as an appendix.2 In
his Grostefon filing, Armann first argued that he lacked


       1
        This court was formerly known as the Court of Military
Review as well as the Board of Review and is referred to as
such in certain case law. At times in this opinion, we reference
the current name where a court has referred to one of the
previous titles.
       2
         Under Grostefon, a member of the military has the right
to personally raise issues to the military appellate courts should
his or her attorney fail to do 

. Grostefon
also requires the intermediate appellate court to acknowledge
that it considered all of the defendant’s claims, including those
he personally raised. 

                                6
“complete mental responsibility” for the offenses. He stated that
an affirmative defense exists where, at the time the offense is
committed, a defendant is “unable to appreciate the nature and
quality or the wrongfulness of the acts.” As evidence of his lack
of mental responsibility, he referred to the various medications
that the Mannheim facility administered to him to treat his
mental issues as well as his childhood history of abuse. As for
his second argument, Armann asserted that the attempted
murder and conspiracy charges were “multiplicious” and the
Military Judge should not have sentenced him separately for
each.

        At no point in either Armann’s principal brief or his
Grostefon filing did he or his attorney raise the issue of whether
Armann was mentally competent on March 19, 1999, the day of
his plea and sentencing. On April 24, 2001, the ACCA affirmed
the court-martial’s judgment in a per curiam decision, stating
that it had taken into “consideration . . . the entire record,
including . . . the issues personally specified by” Armann.

               3. Armann’s appeal to the CAAF

      On May 22, 2001, Armann filed a petition for review in
the United States Court of Appeals for the Armed Forces
(CAAF).3 On October 11, 2001, in support of the petition for


       3
       This court was formerly known as the Court of Military
Appeals and is referred to as such in certain case law. Like our
treatment of the ACCA’s past titles, we will reference the
CAAF when appropriate.

                                7
review, he filed a supplement in which he asserted the same
three arguments previously raised in his principal brief to the
ACCA. As with the ACCA proceedings, Armann once more
exercised his Grostefon rights, personally raising issues apart
from the principal brief’s arguments, which again were attached
as an appendix. However, among other issues raised, Armann
for the first time asserted that he was mentally incompetent at
the time of plea and sentencing due to the medications he had
taken that day and that “the Military Judge improperly accepted
the guilty plea . . . without first inquiring into the medication
that was prescribed to him.” 4

       In addition to his petition for review, Armann filed a
petition for new trial in which he asserted there was newly
discovered evidence about Accutane, a drug he had taken in the
past.5 On October 19, 2001, the Government filed a letter with


       4
        The military process allows a defendant to raise
questions about competency on appeal that were not previously
asserted at trial. See United States v. Massey, 

, 373-
74 (C.M.A. 1989). Where a military appellate court finds it
cannot issue a ruling on the defendant’s competency claim based
on insufficient factual development, it may remand for a
hearing. See United States v. DuBay, 

, 413
(C.M.A. 1967). Thus, there is no procedural default issue
regarding Armann raising this argument for the first time to the
CAAF.
       5
      Armann filed his petition for new trial with the ACCA
on August 9, 2001, which referred it to the CAAF; the CAAF

                               8
the CAAF clerk’s office that addressed both the petition for
review and the petition for new trial.6 First, addressing
Armann’s petition for review, the Government indicated it
would not be submitting a formal reply to Armann’s supplement
to the petition. Rather, the letter stated, the Government
opposed the CAAF’s granting the petition for review and would
rely on the same briefs it filed with the ACCA, which the
Government attached to the letter.          The Government
acknowledged Armann’s new Grostefon submission, which
raised the mental competency issues. It stated, though, that it
opposed the CAAF reviewing these issues, absent “good cause”
suggesting why the claims were being raised at this juncture.
Second, the Government addressed Armann’s petition for new
trial by noting that it would respond to the newly discovered
evidence issue at a later time.

       On November 15, 2001, Armann filed a brief in support
of his petition for new trial, in which he argued that there was
“good cause” for a new trial based on newly discovered



accepted it on October 16, 2001.
       6
        The CAAF procedural rules allow this: “[A]n appellee
may file with the Clerk of the Court a short letter . . . setting
forth” either “(i) that the United States submits a general
opposition to the assigned error(s) of law and relies on its brief
filed with the Court of Criminal Appeals; or (ii) that the United
States does not oppose the granting of the petition (for some
specific reason, such as an error involving an unsettled area of
the law).” Ct. App. Armed Forces R. 21(c)(2).

                                9
psychotic effects of Accutane. Specifically, Armann argued that
this newly discovered evidence called into question whether he
was competent to stand trial and whether he was able to
“appreciat[e] the wrongfulness of his actions at the time he
committed the offenses.” Armann filed a motion to attach
eighteen exhibits, which included documents in support of
Accutane’s adverse effects. One of the exhibits was Armann’s
“Statement and Verification Signed by Kurtis E. Armann
(November 8, 2001),” a document in which he argued that the
newly discovered effects of Accutane called into question
whether he “appreciated the wrongfulness of his conduct, and
more importantly whether or not he was competent to stand
trial.” He also drew attention to the combination of drugs he
had taken on March 19, 1999, the day of his plea and
sentencing, listing the various effects such drugs could cause
and stating the combination “could have easily put [him] into the
range of toxic exposure.” (App. 1085 (emphasis omitted)).

        The Government opposed Armann’s motion to attach
portions of his Statement and Verification as well as
miscellaneous medical records. In particular, it asserted that
Armann’s argument that he was “involuntary intoxicated during
his guilty plea trial” due to the medications he had taken was
“not the issue before” the CAAF in Armann’s new trial petition.
Also, in a footnote, the Government noted that it had reviewed
his Grostefon claim in the new trial petition and concluded that
the claim “lacks merit.” On December 17, 2001, as promised by
its prior letter to the CAAF, the Government filed a brief in
response to Armann’s petition for new trial. It argued that
Accutane’s effects were “known at the time of trial” and were
discoverable with “due diligence.” Also, the Government noted

                               10
again, as it had before in its letter, its conclusion that Armann’s
Grostefon claims “all lack merit.” It added, though, that if the
CAAF “determine[d] that the issues raised by [Armann] ha[d]
possible merit, the Government request[ed] an opportunity to
submit further pleadings thereon.”

       On January 7, 2002, the CAAF ruled on Armann’s
motion to attach exhibits to his petition for new trial. It granted
his motion to attach his Statement and Verification, which
included his competency arguments, but denied his motion for
the other exhibits, one of which included the medical logs from
the Mannheim facility.

       On July 24, 2002, the CAAF ruled on both of Armann’s
petitions, summarily granting his petition for review, affirming
the ACCA’s decision, and denying his petition for new trial.
The CAAF did not issue an opinion stating its reasoning for
affirming the ACCA or denying Armann’s petition for new trial.
Rather, the order contained one sentence:

       “On consideration of the petition for grant of
       review of the decision of the United States Army
       Court of Criminal Appeals, and the petition for
       new trial, it is, by the Court, this 24th day of July,
       2002,

              ORDERED:

              That said petition is hereby granted;



                                11
               That the decision of the United States
               Army Court of Criminal Appeals is
               affirmed; and,

               That the petition for new trial is denied.”

(App. 1120).

               B. The federal habeas proceedings

       On April 22, 2004, Armann filed a pro se petition for a
writ of habeas corpus, pursuant to 28 U.S.C. § 2241, in the
United States District Court for the Western District of
Pennsylvania. He raised several grounds in support of his
petition, most of which stemmed from his receiving medication
during the court-martial proceedings. Among these claims, he
again raised that he was not competent on the day of his plea
and sentencing, just as he had in his Grostefon submission in his
petition for review to the CAAF.

        On December 29, 2005, Armann filed a motion
requesting an evidentiary hearing, concentrating solely on his
“claim that he was not competent at his plea and sentencing due
to the drugs that were given to him by the Army on the day of
his plea and sentencing.” The Government opposed the motion.
On March 14, 2006, the Magistrate Judge to whom the District
Court had assigned the case granted Armann’s motion and
ordered an evidentiary hearing. The District Court, having
determined that not all of the CAAF documents had been
included in the record, remanded the case to the Magistrate
Judge in order to reconsider the evidentiary hearing motion in

                               12
light of the complete record. On remand, the Magistrate Judge
again granted the motion for an evidentiary hearing.

        The District Court adopted the Magistrate Judge’s
decision on May 31, 2007, and in a separate opinion, articulated
its reasoning for doing so. See Armann v. Warden, No. 04-118,

(W.D. Pa. May 31, 2007). The District
Court acknowledged that Burns v. Wilson, 

(1953)
(plurality opinion), instructed that a federal court may not grant
a military prisoner’s habeas corpus writ “to re-evaluate
evidence” so long as “a military decision has dealt fully and
fairly with” the claim being asserted on habeas review. Armann,

, at *4 (internal quotation marks omitted).
The District Court reviewed the confusion among the federal
courts, left in the wake of Burns, as to the interpretation of the
full and fair consideration test. 

Focusing on Brosius
v. Warden, 

(3d Cir. 2002), it highlighted that this
Court assumed for the sake of argument that 28 U.S.C. § 2254
of the Antiterrorism and Effective Death Penalty Act (AEDPA),
the statutory provision applicable to state prisoners, applied to
a military prisoner’s habeas claims. Armann, 

, at *6. Consequently, the District Court agreed with
the Magistrate Judge that § 2254(d) set forth the appropriate
scope of review for Armann’s claims. 

It then
confirmed that pre-AEDPA standards applied because the
military courts did not consider Armann’s competency claims
and “§ 2254(d) only applies to claims that were ‘adjudicated on
the merits.’” 

2254(d)). Therefore, it agreed with
the Magistrate Judge’s “pre-AEDPA independent judgment”
that an evidentiary hearing was justified based on a lack of


                               13
factual findings by the military courts pertaining to Armann’s
competency claim. 

                     II. JURISDICTION

       The District Court had jurisdiction pursuant to 28 U.S.C.
§ 2241. Following its order adopting the Magistrate Judge’s
decision to grant an evidentiary hearing, the District Court
granted the Government’s Motion for Certification of Order for
Interlocutory Appeal. In doing so, the District Court stated that
under 28 U.S.C. § 1292(b), the order granting Armann’s motion
for an evidentiary hearing “‘involves a controlling question of
law as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the litigation.’”
(App. 14 (quoting § 1292(b))). We granted the Government’s
Petition for Permission to Appeal and exercise our discretionary
appellate jurisdiction pursuant to § 1292(b).7




       7
        An order granting an evidentiary hearing is reviewed for
abuse of discretion, Schriro v. Landrigan, 

,
1940, 1944 (2007), which occurs upon committing an error at
law, Koon v. United States, 

, 100 (1996). We apply
de novo review to the legal determinations made by the District
Court and review its factual findings for clear error. Chadwick
v. Janecka, 

, 605 n.6 (3d Cir. 2002); see also
United States v. Lilly, 

, 195 (3d Cir. 2008)
(discussing review standards).

                               14
                      III. DISCUSSION

       On appeal, the Government raises the sole issue of
whether the District Court erred in adopting the Magistrate
Judge’s decision to order an evidentiary hearing, asserting that
the military courts provided “fair consideration” to Armann’s
claims. It contends that Burns v. Wilson provides the governing
standard that district courts must apply when analyzing a
military prisoner’s habeas petition and argues that the District
Court misinterpreted this Court’s decision in Brosius v. Warden
when it applied the state-prisoner habeas standard, § 2254, to
Armann’s claims. The Government concludes that even if the
District Court correctly determined that § 2254 applies to
Armann’s claims, he is not entitled to habeas relief because the
District Court erroneously determined that pre-AEDPA
standards apply to this case and § 2254(e)(2), the standard for
evidentiary hearings under AEDPA, bars relief.

       Armann, on the other hand, argues that the military courts
did not consider his competency claim. As a result, he
maintains, this Court need not decide whether the District Court
correctly adopted § 2254 rather than Burns because where a
military or state court did not consider a habeas petitioner’s
claim, the District Court may review the claim de novo.
Armann asserts that should this Court choose to rule on the
correct standard of review, AEDPA strikes the proper balance
between affording deference to military proceedings and
safeguarding individual rights. He requests that we uphold the
District Court’s determination to not apply the § 2254 standard
because the military courts did not rule “on the merits” of
Armann’s claim. Even assuming § 2254(e)(2) applies in this

                               15
case, Armann concludes that he is entitled to relief because he
raised his competency claims with the CAAF and attempted to
factually develop his claims.

       As an initial matter, we are not convinced by Armann’s
argument that we need not decide whether Burns or § 2254
applies to this case. Burns and § 2254 involve facially different
standards as to whether the military or state courts considered a
petitioner’s claims thereby triggering de novo review in federal
court. In Burns, a plurality of the Supreme Court stated that
where military courts “manifestly refused to consider” a
petitioner’s claims, a district court may review the claims de

. Under § 2254(d), a district court applies
a de novo standard of review – and is not bound by the AEDPA
scope of review – where the state courts failed to adjudicate the
claim “on the merits.” Therefore, contrary to Armann’s
argument, we find it necessary to first reach the threshold issue
of whether Burns or § 2254 governs the District Court’s review
of the military-court proceedings.

       For the reasons that follow, we conclude that when a
federal civilian court reviews a habeas corpus petition of a
servicemember convicted in the military courts, Burns v. Wilson
requires the federal habeas court to deny relief where the
military courts provided full and fair consideration to the claim
or claims asserted in the habeas petition. Brosius v. Warden did
not signal an official analytical departure from our prior Burns
jurisprudence and the District Court erred in treating § 2254(d)
as the dispositive standard. Here, the record indicates that the
military courts did provide full and fair consideration of


                               16
Armann’s claim that he was mentally incompetent on the day of
plea and sentencing.

            A. The scope of federal habeas review

                      1. Burns v. Wilson

       In Burns v. Wilson, the Supreme Court directly
confronted the scope of review a federal district court must
apply when it analyzes a servicemember’s habeas corpus
petition contesting military court proceedings. The petitioners
in Burns had been found guilty of murder and rape and were
sentenced to death by an Air Force 

. After exhausting all military remedies, they petitioned for
habeas corpus relief in federal district court. 

court dismissed the petitions, basing the dismissal on its finding
that the military courts had jurisdiction. Id.8 The Court of
Appeals affirmed the dismissal, but gave the petitions “full
consideration on their merits,” a broader scope of review than
previously afforded. 

.

       The Supreme Court affirmed the dismissal, but issued a
splintered decision as to its reasoning. The plurality opinion,
carrying four Justices, articulated a “concern . . . with the
manner in which the [federal district court] should proceed to
exercise its power.” 

recognized that the same


       8
        At one time, review for proper military-court jurisdiction
was the only concern for a federal habeas court. See, e.g., Hiatt
v. Brown, 

, 111 (1950).

                               17
federal statute, 28 U.S.C. § 2241, vests jurisdiction in the federal
courts to hear both civilian and military habeas petitions, but
hastened to add that “in military habeas corpus the inquiry, the
scope of matters open for review, has always been more narrow
than in civil cases.” 

regarding federal-court review
of military habeas petitions “cannot simply be assimilated to the
law” applicable to other areas due to “the peculiar relationship
between the civil and military law.” 

The plurality
highlighted that “[i]n military habeas corpus cases, even more
than in state habeas corpus cases, it would be in disregard of the
statutory scheme if the federal civil courts failed to take account
of the prior proceedings – of the fair determinations of the
military tribunals after all military remedies have been
exhausted.” 

        Thus, “when a military decision has dealt fully and fairly
with an allegation raised in [a habeas corpus petition], it is not
open to a federal civil court to grant the writ simply to re-
evaluate the evidence.” 

cautioned, however,
that where “the military courts manifestly refused to consider
[the habeas] claims, the District Court [is] empowered to review
them de novo.” 

“the military courts have heard
[a petitioner] out on every significant allegation . . . it is not the
duty of the civil courts simply to repeat that process – to
reexamine and reweigh each item of evidence of the occurrence
of events which tend to prove or disprove one of the allegations
in the application[] for habeas corpus.” 

Instead,“[i]t
is the limited function of the civil courts to determine whether




                                 18
the military have given fair consideration to each of these
claims.” Id.9

                     2. AEDPA and § 2254

       In 1996, Congress passed AEDPA which implemented
substantial changes into federal habeas corpus law. The focal
point of the Act is 28 U.S.C. § 2254(d), a provision that
establishes a deferential standard that federal courts sitting in
habeas are to afford state-court decisions. See Taylor v. Horn,

, 428-29 (3d Cir. 2007) (discussing review under
AEDPA). Section 2254(d) provides:

       “An application for a writ of habeas corpus on
       behalf of a person in custody pursuant to the
       judgment of a State court shall not be granted
       with respect to any claim that was adjudicated on



       9
         Although the Burns “full and fair consideration” test
came from a plurality decision, the test likely held water with at
least five, perhaps six, Justices, thereby carrying a majority of
the Court. See 

(interpreting Burns).
Justice Minton concurred in affirming the judgment, but wrote
separately to express his view that the “one function” entrusted
to federal courts reviewing military habeas petitions is to ensure
“that the military court has jurisdiction,” a view calling for even
greater deference to the military proceedings than the plurality
yielded. 

(Minton, J., concurring).
Justice Jackson concurred without opinion.

                                19
       the merits in State court proceedings unless the
       adjudication of the claim –

              “(1) resulted in a decision that was
              contrary to, or involved an unreasonable
              application of, clearly established Federal
              law, as determined by the Supreme Court
              of the United States; or

              “(2) resulted in a decision that was based
              on an unreasonable determination of the
              facts in light of the evidence presented in
              the State court proceeding.”

See also Williams v. Taylor, 

, 402-13 (2000)
(clarifying § 2254(d)(1)).

       The § 2254(d) standard is only applicable “to claims
already ‘adjudicated on the merits in State court proceedings.’”
Appel v. Horn, 

, 210 (3d Cir. 2001) (quoting
§ 2254(d)). If the state court did not decide the merits of a claim
being presented in an applicant’s federal habeas petition, the
§ 2254(d) standard does not apply and a federal court will
review pure legal issues and mixed questions of law and fact de
novo. 

present case, the District Court adopted the
Magistrate Judge’s findings that since the military courts did not
consider Armann’s competency claims, § 2254(d) did not apply
and pre-AEDPA habeas standards governed whether to grant an
evidentiary hearing.



                                20
       Regardless of whether the state courts adjudicated the
claim on the merits, 28 U.S.C. § 2254(e)(1) states that “a
determination of a factual issue made by a State court shall be
presumed to be correct,” unless the petitioner rebuts it “by clear
and convincing evidence.” See also 

(explaining § 2254(e)(1)). Additionally, 28 U.S.C. § 2254(e)(2)
addresses the required AEDPA standard a district court must
apply in order to hold an evidentiary hearing. The District Court
did not apply these standards, however, since it determined
§ 2254(d) directed it to apply pre-AEDPA standards.

         While the Supreme Court has not revisited the Burns
scope of review in recent years, this Court has recognized that
the full and fair consideration test is intact even following
AEDPA’s alterations to habeas law. See 

(stating that close to fifty years after the decision, Burns
“is still the leading authority”). Additionally, members of the
Supreme Court have cited to Burns with approval since
AEDPA’s passage. See Boumediene v. Bush, 

,
2286 (2008) (Roberts, C.J., dissenting) (“The scope of federal
habeas review is traditionally more limited in some contexts
than in others, depending on the status of the detainee and the
rights he may assert.” (citing Burns)); Clinton v. Goldsmith, 

, 537 n.11 (1999) (A servicemember “is entitled to
bring a habeas corpus petition claiming that his conviction is
affected by a fundamental defect that requires that it be set
aside” (internal citation omitted) (citing Burns)). Despite our
recognition of Burns’s vitality in light of AEDPA, our Brosius
decision has seemingly spawned uncertainty as to whether this
Court has equated the full and fair consideration test with the


                                21
scope of review embedded in the § 2254(d) state-court standard.
We take this opportunity to clarify our analysis in Brosius.

              3. This Court’s treatment of Burns

         We acknowledge from the outset that the Burns decision
is far from clear. See Levy v. Parker, 

, 781 n.9 (3d
Cir. 1973) (noting that the Burns standard is “easy to state, but
difficult to define and to apply”) (internal quotation marks and
citation omitted).10 This Court’s approach to analyzing military
habeas petitions is not free of ambiguity, nor has there been
much coverage of the issue. See 

(“Our
court’s treatment of Burns has also been far from seamless.”).

      In one of our early Burns interpretations, we addressed
whether a military petitioner’s due process rights were violated


       10
          The case law interpreting the full and fair consideration
test lacks uniformity. See, e.g., United States ex rel. New v.
Rumsfeld, 

, 408 (D.C. Cir. 2006) (stating a court-
martial judgment is void if the error is “fundamental”); Witham
v. United States, 

, 505 (6th Cir. 2004) (stating that
“[w]here there is no colorable jurisdictional question, a finding
of full and fair consideration ends our habeas corpus inquiry”);
Roberts v. Callahan, 

, 996 (10th Cir. 2003)
(reviewing four-part test applied in both the Fifth and Tenth
Circuits to determine full and fair consideration); Allen v.
VanCantfort, 

, 629-30 (1st Cir. 1971) (noting
Burns’s applicability, and its generated criticism, before
“review[ing] briefly [the] petitioner’s claims on the merits”).

                                22
when at trial certain crime definitions were not included in the
instructions to the members of the court-martial. White v.
Humphrey, 

, 504 (3d Cir. 1954). Citing Burns, we
stated in White that had the court-martial “manifestly not
considered” the issues and “fixed guilt by dispensing with
rudimentary fairness,” a federal court could grant the
petitioner’s habeas writ. 

(internal quotation marks
omitted). We found, however, no such indication of manifest
refusal in the record. 

States ex rel. Thompson v.
Parker, we provided a fuller enunciation of Burns’s
implications, acknowledging Burns as “the law of the land” and
finding that the full and fair consideration test was applicable to
instances where the military habeas petition called for a re-
evaluation of facts leading to the alleged constitutional
violation. 

, 776-77 (3d Cir. 1968) (internal
quotation marks omitted).

       Several years later, in Levy v. Parker we focused largely
on Burns’s language which recognized the need to protect
individual rights, reading the case to allow review of the
petitioner’s claim that a military regulation was void for
vagueness. 

, 776, 783 (3d Cir. 1973), rev’d on
other grounds, 

(1974). We appeared to draw a
law and fact dichotomy, implying that Burns’s full and fair
consideration test might only apply to constitutional claims
which are mixed with, or based solely upon, factual
determinations made by the military courts. 

We
noted that “where it is unnecessary to ‘reevaluate the evidence’
adduced at the court-martial because the alleged infirmity is the
facial unconstitutionality of the statute under which appellant
was charged, a federal court has jurisdiction to inquire whether

                                23
there existed an infirmity of constitutional dimension in the
court-martial proceeding.” 

major pronouncement pertaining to Burns came
years later in Brosius v. Warden. 

(discussing Burns). In Brosius, the petitioner was convicted of
unpremeditated murder by a general court-martial. 

Both the Army Court of Military Review (i.e., the ACCA) and
the Court of Military Appeals (i.e., the CAAF) affirmed the
conviction, with the Court of Military Appeals issuing a
summary affirmance. 

habeas review, the
petitioner argued that Army officials violated his Miranda rights
and his rights under UCMJ Article 31(b) (which also deals with
required warnings). 

The district court, in denying the
habeas petition, recognized that Burns applied to the petitioner’s
claims, but noted the difficulty of the full and fair consideration
determination. Brosius v. Warden, 

, 689,
695 (M.D. Pa. 2000). The district court’s analysis ultimately
traced the four-factor test enunciated by the Fifth and later the
Tenth Circuits, expressing that it would “use this test in
disposing of the instant petition.” 

(citing Dodson v.
Zelez, 

(10th Cir. 1990) and Calley v. Callaway,

(5th Cir. 1975) (en banc)).

         On appeal, we affirmed the district court’s order denying
habeas relief, 

, but based our reasoning
on different grounds. We began by addressing the correct
standard that a federal court must apply to a servicemember’s
habeas claims, acknowledging that “[n]early 50 years after it
was decided, the Supreme Court’s decision in Burns v. Wilson
is still the leading authority.” 

(internal citation

                                24
omitted). We interpreted Burns as holding “that in considering
a constitutional claim involving a pure question of law or a
mixed question of law and fact, a habeas court may not exercise
de novo review and may not go beyond considering whether the
military courts ‘dealt fully and fairly’ with the claim.” 

Additionally, we stated that the Burns plurality appeared
to indicate “that full and fair consideration was intended to mean
no more than ‘hearing’ the petitioners ‘out.’” 

-44 (quoting 

).

       We then reviewed the difficulty that not only this Court
has had in applying the Burns test, but the problems other Courts
of Appeals have encountered. 

We explained that


       11
         The Burns plurality did not create a distinction between
pure questions of law, questions of fact, and mixed questions of
law and fact. Our categorizing dicta in Brosius was important
for our analysis, which utilized § 2254(d), a standard that calls
for such characterization. See 

, 246
(comparing § 2254(d) and (e)). While we have treated a court’s
mental competency determination as a factual finding, see
McFadden v. United States, 

, 146 (3d Cir. 1987),
we do not read Burns as mandating a federal habeas court to
disregard per se a petitioner’s constitutional claim due to its
factual nature. Rather, Burns stated in a generalized fashion that
where the military courts have “dealt fully and fairly with” a
habeas claim, a federal court must not “simply re-evaluate the
evidence” and that the “limited function of the civil courts” was
to analyze “whether the military have given fair consideration
to” a habeas 

, 144.

                               25
Levy’s “suggest[ion] that a habeas court may examine de novo
those constitutional claims ‘not dependent upon any evidentiary
or factual construction’” should be narrowly read; any
implication that a federal court may apply de novo review to
questions of law would contradict Burns, “in which a majority
of the Court (the plurality plus Justice Minton) applied a
deferential standard of review to the claims that, on the
undisputed facts, the habeas petitioners’ constitutional rights
were violated.” 

(quoting 

).

       Confronted with Burns’s ambiguity, we deemed “it
unnecessary to attempt any further explication.” 

Rather, we determined that “absent a challenge to the
constitutionality of the statute under which the defendant was
convicted,” a federal court’s review of “a military habeas case
may not go further than our inquiry in a state habeas case.” 

stated:

       “[W]e will assume – but solely for the sake of
       argument – that we may review determinations
       made by the military courts in this case as if they
       were determinations made by state courts.
       Accordingly, we will assume that 28 U.S.C.
       § 2254(e)(1) applies to findings of historical fact
       made by the military courts. . . . In considering
       other determinations made by military courts, we
       will assume that 28 U.S.C. § 2254(d) applies.”

original). Applying the state standards to the
petitioner’s Miranda claim, we upheld the military
determination pursuant to § 2254(d)(1). 

We also

                               26
rejected the petitioner’s UCMJ claim, finding any alleged error
to be harmless, as well as his argument that Edwards v. Arizona,

(1981), warranted 

-
49.

        Although in Brosius we questioned the feasibility of the
Burns standard, we have not questioned its applicability. In
Thompson, we refuted the petitioner’s argument that the district
court erroneously applied the Burns standard, referring to Burns
as “the law of the land” and stating that “both this court and the
district court must abide by its 

(internal quotation marks and citation omitted). In Brosius, we
again recognized that Burns was still binding law, but admitted
the conceptual difficulty in applying the full and fair
consideration 

.

        Armann seeks to capitalize on our reaction to the test’s
difficulty, arguing that § 2254 would provide a more functional
approach for federal courts. He points to the fact that the CAAF
applies AEDPA when it sits in habeas review and notes that it
cited our Brosius decision for its rationale. See Loving v. United
States, 

, 144-45 (C.A.A.F. 2006). Indeed, the CAAF
has stated that AEDPA accords an appropriate balance between
“protect[ing] the liberty and interests of individual
servicemembers and . . . bolster[ing] deference to military legal
determinations.” 

This argument has some merit
because the Justices in Burns sought to attain the proper balance
between individual rights and deference to military court
determinations; thus, where the military itself finds AEDPA best
serves these goals, it is tempting to afford that determination
great weight. See 

(Frankfurter, J.) (“On

                               27
the one hand is proper regard for habeas corpus, ‘the great writ
of liberty’; on the other hand the duty of civil courts to abstain
from intervening in matters constitutionally committed to
military justice.”).

       In the final analysis, we find Armann’s argument
unpersuasive, for it is solely the prerogative of the Supreme
Court to depart from its precedents. See State Oil Co. v. Khan,

, 20 (1997) (“The Court of Appeals was correct in
applying that principle despite disagreement . . . for it is this
Court’s prerogative alone to overrule one of its precedents.”).
Regardless of the rationale in favor of applying AEDPA, the
Supreme Court has not abandoned Burns since its issuance.
Moreover, in adopting § 2254(d), the CAAF noted that it was
deciding the appropriate standard “for collateral review within
the military justice system,” as opposed to the “task before
Article III courts” of deciding “what standard comports with the
full and fair requirement in Burns v. Wilson.” 

. Therefore, a federal court’s “limited function” in
reviewing a servicemember’s habeas petition is to determine
whether the military courts have “dealt fully and fairly with an
allegation raised in that application.” 

,
144.

       In Brosius, we applied the § 2254 standard to a military
habeas petition, but explicitly did so simply for argument’s sake
in order to avoid the difficulty we must address in this 

. We were mindful that Burns called for a federal
habeas court to afford more deference to military-court
proceedings than state-court proceedings. 

(“‘In
military habeas corpus cases, even more than in state habeas

                               28
corpus cases, it would be in disregard of the statutory scheme if
the federal civil courts failed to take account of the prior
proceedings.’” (quoting 

) (emphasis in
original)). Building from this rationale, we reasoned that Burns,
regardless of its precise implications, would certainly call for a
denial of relief should a federal court determine that a petitioner
is not entitled to relief under § 2254. 

words, we
were not required to fine-tune the Burns standard because the
petitioner in Brosius failed to establish entitlement to relief
under the less deferential state standard. See 

(upholding military decision under § 2254(d)(1)).

        We did not hold in Brosius that if a military prisoner
meets § 2254 he satisfies Burns. Indeed, such a principle would
contradict Burns’s effort to distinguish military courts from state
courts and afford greater deference to the former. See 

(“[I]n military habeas corpus the inquiry, the
scope of matters open for review, has always been more narrow
than in civil cases.”). Nor did we hold that where a district court
determines that the military courts did not adjudicate a
servicemember’s claim “on the merits,” it should review that
claim de novo. Rather, Brosius proposes that while it is
permissible for a court to analyze a military prisoner’s habeas
petition under § 2254, only a determination that § 2254 bars
relief will be dispositive of the case. Thus, a finding that § 2254
warrants relief will not necessarily equate with a finding that the
petitioner is entitled to relief under Burns’s full and fair
consideration test. A separate analysis is required to determine
whether “the military courts have heard [a petitioner] out on
every significant allegation” raised in his or her habeas petition.

. Accordingly, the District Court erred in

                                29
adopting the Magistrate Judge’s decision to grant Armann’s
motion for an evidentiary hearing after utilizing only the
§ 2254(d) scope of review, which led it to apply pre-AEDPA
state-prisoner habeas standards.

                 B. Full and fair consideration

        In approaching our full and fair consideration analysis,
we do not attempt to establish a detailed standard that will
encapsulate the relevant inquiries in all military habeas cases.
Instead, as Burns demonstrated, a federal court must review
what occurred procedurally in the military courts to determine
if a petitioner was afforded full and fair consideration to each of
his or her claims. 

. We believe that the
military courts gave full and fair consideration to Armann’s
claim that he was mentally incompetent on the day of his plea
and sentencing.

       Contrary to Armann’s assertions, the fact that the CAAF
issued a summary order disposing of his case without noting his
Grostefon submission does not equate with a finding that it did
not fully and fairly consider his mental competency claim.
Armann’s case is largely controlled by our decision in United
States ex rel. Thompson v. Parker, in which we found the
military courts provided full and fair consideration even where
the Court of Military Appeals (i.e., the CAAF) summarily
denied the appellant’s petition for grant of 

. In Thompson, we addressed whether the military courts
provided full and fair consideration to a military petitioner’s
Fifth Amendment and UCMJ Article 31 claims. 

We initially discussed that at the court-martial, the petitioner’s

                                30
attorneys objected to the admissibility of the statements at issue
and the petitioner was given the opportunity to testify as to the
involuntary nature of the statements but refused. 

We
next stated that the Law Officer at the court-martial instructed
the jury regarding the alleged involuntary statement. 

took notice of the fact that the petitioner argued on military
appeal “in great detail” that his constitutional and UCMJ rights
were violated. 

the Board of Review (i.e., the ACCA)
nor the Court of Military Appeals (i.e., the CAAF) expressly
discussed the petitioner’s involuntariness claim. 

petitioner took contention with this, we found there to be “no
requirement that appellate courts, military or otherwise, must
discuss in detail each and every contention – no matter how
specious – of every appellant.” 

We found it
permissible that the Board of Review discussed only the
“colorably creditable” claims (though it did state it found “no
merit in any of the” issues raised by appellant), and that the
Court of Military Appeals denied, in a single-sentence order, the
petition for grant of review of the Board’s decision. 

We reasoned that “since both these appellate military courts had
the benefit of the extensive discussion appearing in appellant’s
briefs . . . we can only conclude, as did the district court, that
appellant received full and fair consideration of his claims in the
military courts.” 

can be drawn between our Thompson
decision and Armann’s case. First, Armann had sufficient
opportunity to raise his competency claim during the court-
martial.   The Military Judge ordered a Sanity Board

                                31
determination, probing specifically whether Armann was
competent to stand trial and did so even in light of Armann’s
defense counsel’s objections. Granted, the Sanity Board
determination occurred over a month before the day of his plea
and sentencing. Still, the Military Judge, by ordering the
determination, demonstrated concern about Armann’s
competency to stand trial and also asked Armann’s counsel on
the day of plea and sentencing whether there were any motions
he wished to put forth. As in Thompson, both courts afforded
the petitioner a chance to further elaborate during the court-
martial upon the issues which the defendants asserted on appeal.

        Next, like the Thompson petitioner, Armann argued “in
great 

, to the CAAF that his
constitutional rights were violated because he was not
competent to stand trial on the day of his plea and sentencing.
Armann first asserted the claim to the CAAF in his Grostefon
filing attached to his petition for review, and by granting
Armann’s petition, the CAAF placed those arguments before it.
Armann again raised the plea and sentencing date in his
Statement and Verification associated with his petition for new
trial, in which he highlighted the combination of drugs
administered on March 19 and the various potential effects of
such a mixture. He then cited various passages from case law
which spoke of mental competency. The CAAF granted his
motion to attach that statement in full, again bringing the
competency issue before that court.

       Armann argues that Thompson is distinguishable from
this case because here the competency issue was “not fully
briefed,” alleging that the Government failed to adequately

                              32
address the issue in its filings before the CAAF. Likewise, the
District Court refused to give weight to the Government’s
reliance on Watson v. McCotter, 

, 145 (10th Cir.
1986), for the principle that a military court’s summary denial
can qualify as full and fair consideration. Armann, 

, at *7 n.2. The District Court emphasized the Watson
language indicating that the full and fair consideration test is
met “‘[w]hen an issue is briefed and argued before a military
board of review’” before noting that the § 2254(d)(1) standard
was applicable to Armann’s claim. Armann, 

,
at *7 n.2 (quoting 

).

        We are not convinced that the Government’s failure to
file a brief in response to Armann’s competency claim means
that the military courts failed to adequately consider the claim.
In Watson, the Court of Appeals for the Tenth Circuit stated that
where “an issue is briefed and argued before a military board of
review,” there is sufficient consideration, even though the
military court “summarily disposed of the issue with the mere
statement that it did not consider the issue meritorious or
requiring 

. As the Government
indicates, Watson did not establish full briefing by both sides as
a prerequisite to satisfying Burns. Rather, the Court of Appeals
held that the military courts provided full and fair consideration
to a petitioner’s ineffective assistance of counsel claim where
the Court of Military Review (i.e., the ACCA) afforded the
petitioner a hearing and displayed that it analyzed the trial
record of the court-martial. 

do not find Watson
directly applicable to the case before us because, as the
Government aptly notes, unlike Armann the petitioner in Watson
raised his claims to the intermediate military appellate court

                               33
rather than asserting them for the first time before the CAAF.
See 

failure to fully brief the competency issue, the
Government did not ignore it. In its October 19, 2001 letter to
the CAAF, it indicated that it would rely on the briefs it filed in
the ACCA but expressly addressed Armann’s new Grostefon
filing, stating it opposed the CAAF reviewing these issues. In
its opposition to Armann’s motion to attach exhibits, the
Government observed that Armann asserted in his Statement and
Verification “that the types, amounts, and combination of
medications that he was made to take while incarcerated resulted
in him being involuntary intoxicated during his guilty plea trial,”
and argued that this was not relevant to his new trial petition.
Further, in its brief in response to Armann’s petition for a new
trial, it called “attention to those errors personally raised by”
Armann, arguing that these claims lacked merit; however, it
continued, if the CAAF determined they were meritorious, it
“request[ed] an opportunity to submit further pleadings
thereon.” Paired with the fact that the CAAF had Armann’s
Grostefon filings before it upon granting both his petition for
review and his motion to attach his Statement and Verification,
the Government’s failure to fully brief the competency issue
does not preclude a finding that the CAAF fully considered
Armann’s detailed arguments.

         Lastly, in Thompson we realized that a military appellate
court was not required to discuss a claim it found lacking in
merit, determining that where the Court of Military Appeals
(i.e., the CAAF) issued a one-sentence denial of a petition for
review, teamed with “the extensive discussion appearing in

                                 34
appellant’s briefs concerning the alleged” constitutional
violation, this amounted to full and fair 

. Armann did repeatedly brief the mental competency
issue, both in his Grostefon filing to the petition for review, as
well as in his Statement and Verification in support of his
petition for new trial, and the CAAF had both of these filings
before it prior to summarily affirming his conviction. Thus,
Thompson supports our finding that the military courts provided
adequate consideration under such circumstances.

         Despite Thompson’s guidance, Armann asks this Court
to hold the CAAF to its own decision in Grostefon, asserting
that the CAAF should have issued a statement acknowledging
it considered all the issues personally raised by the petitioner.
While we recognize that the CAAF is not the last line of review
in a military defendant’s case – the Supreme Court may directly
review the case and the federal courts have collateral review
power – Armann’s argument finds little concrete support. The
Government aptly points out that the Court of Military Appeals
(i.e., the CAAF) in Grostefon interpreted UCMJ Articles 66 and
70, neither of which bind the CAAF to the rule it issued
pertaining to the intermediate military appellate courts.

n.3. Even if we were to find it
preferable that the CAAF issue a statement that it considered all
claims including those personally raised by the defendant, we
seriously doubt that the federal civilian courts have power to
impose such a requirement on the highest military court.
“Military law, like state law, is a jurisprudence which exists
separate and apart from the law which governs in our federal
judicial establishment.” 

; see also United
States v. Lumpkin, 

, 988 (6th Cir. 1998) (stating

                               35
that the Grostefon “procedure was specifically tailored and
prescribed for use within the military justice system”). As the
Burns plurality observed, “[t]his Court has played no role in
[military law] development; we have exerted no supervisory
power over the courts which enforce 

.

         Armann correctly points out that the CAAF’s summary
affirmance of the ACCA could not have encompassed his
competency claim because he did not raise the issue with the
ACCA, even in his Grostefon filing before that intermediate
appellate court. His principal brief filed with the ACCA raised
only three issues, none of which encompassed any mental
competency claims. In his Grostefon filing, he argued that he
lacked “complete mental responsibility” for the offenses, which
pertains to his mental state during the commission of the crimes,
not his mental competency at the time of plea and sentencing.
Therefore, the CAAF’s affirmance of the ACCA’s decision, by
itself, does not amount to adequate consideration.

        However, as we explained previously, the ACCA’s
decision was not the only determination before the CAAF.
Armann filed a petition for review and a brief in support of that
petition. Attached to the brief was Armann’s second Grostefon
filing which placed at issue before the CAAF the question of his
mental competence at the time of plea and sentencing. As the
Government indicates, the CAAF granted Armann’s petition for
review in its discretion, which encompassed his attached
Grostefon filing. It also granted his motion to attach his
Statement and Verification, which again called attention to his
competency on March 19. Although the record does not
explicitly indicate the CAAF reviewed Armann’s assertion when

                               36
making its final disposition, this Court will not presume that the
highest military court refused to consider the full record before
it prior to making its decision. The CAAF, like the civilian
courts, must diligently review all arguments presented by the
parties, which included the competency issue now before us.
See 

(“The military courts, like the state
courts, have the same responsibilities as do the federal courts to
protect a person from a violation of his constitutional rights.”).
In sum, the military courts sufficiently attended to Armann’s
claim to satisfy the full and fair consideration test.
Consequently, Burns instructs that we must not “grant the writ
simply to re-evaluate the evidence.” 

find that the military courts provided full and
fair consideration to Armann’s claim, it follows that his
argument that this Court should apply a de novo standard under
Burns fails. Moreover, in Burns, the plurality stated that de
novo review is only warranted where “the military courts
manifestly refused to consider” a petitioner’s claims. 

see also 

. Elaborating, the plurality
explained that due process safeguards servicemembers “from the
crude injustices of a trial so conducted that it becomes bent on
fixing guilt by dispensing with rudimentary fairness rather than
finding truth through adherence to those basic guarantees which
have long been recognized and honored by the military courts as
well as the civil 

.

        Here, the military courts demonstrated no prejudicial
animosity toward Armann and were certainly not “bent on fixing
guilt” thereby ignoring “rudimentary fairness.” At the trial
level, the Military Judge ordered the Sanity Board to specifically

                               37
inquire into Armann’s mental capacity, despite his own attorney
objecting to such review. Although the Military Judge did not
specifically inquire into whether Armann was taking
medications on the day of his plea and sentencing, neither
Armann nor his attorney raised the issue. Nor did he raise the
issue with the ACCA. Only on appeal to the CAAF did
Armann, for the first time, raise the mental competency issue.
The CAAF had discretion whether to grant or deny Armann’s
petition for review, see 10 U.S.C. § 867, but chose to grant it
nevertheless. As the Government indicates, the CAAF also had
the authority to refuse to decide the merits of Armann’s
competency claim because he did not raise the assertion at trial
or with the ACCA, yet it granted review of his petition in full.
See United States v. Bunkley, 

, 242 (C.M.A. 1982).
Therefore, the military courts did not “manifestly refuse[] to
consider” Armann’s competency claim and the District Court
should not have endorsed the Magistrate Judge’s de novo review
prior to determining whether there was full and fair
consideration in the military court proceedings.

                     IV. CONCLUSION

       For the aforementioned reasons, we will reverse the
District Court’s order.




                              38