Judges: Per Curiam
Filed: Apr. 05, 2019
Latest Update: Mar. 03, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted April 3, 2019* Decided April 5, 2019 Before JOEL M. FLAUM, Circuit Judge DAVID F. HAMILTON, Circuit Judge AMY J. ST. EVE, Circuit Judge No. 18-2638 GLENN E. HURN, Appeal from the United States District Petitioner-Appellant, Court for the Central District of Illinois. v. No. 17-1403 STEVE KALLIS, Joe Billy McDade, Respondent-
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted April 3, 2019* Decided April 5, 2019 Before JOEL M. FLAUM, Circuit Judge DAVID F. HAMILTON, Circuit Judge AMY J. ST. EVE, Circuit Judge No. 18-2638 GLENN E. HURN, Appeal from the United States District Petitioner-Appellant, Court for the Central District of Illinois. v. No. 17-1403 STEVE KALLIS, Joe Billy McDade, Respondent-A..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 3, 2019*
Decided April 5, 2019
Before
JOEL M. FLAUM, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 18‐2638
GLENN E. HURN, Appeal from the United States District
Petitioner‐Appellant, Court for the Central District of Illinois.
v. No. 17‐1403
STEVE KALLIS, Joe Billy McDade,
Respondent‐Appellee. Judge.
O R D E R
A general court‐martial sentenced Glenn Hurn, a Marine reservist, to life in
prison for rape and for some related offenses. After his direct appeal failed in the
military courts, he unsuccessfully petitioned a district court in Kansas for a writ of
habeas corpus under 28 U.S.C. § 2241. Years later, he asked the Board of Corrections of
Naval Records (“the Board”) to void his enlistment contract retroactively and thus, he
hoped, also to void his conviction. When the Board said no, Hurn filed a second
habeas petition, this time in the Central District of Illinois, attacking both the validity of
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 18‐2638 Page 2
his enlistment contract and the constitutionality of the statute subjecting enlistees to
military discipline. The district court denied relief because Hurn had not raised these
claims on direct appeal in the military courts or in his first habeas petition. To the extent
that Hurn was petitioning for review of the Board’s decision, the court ruled that the
claims were meritless. We affirm.
Hurn enlisted with the United States Marine Corps Reserve in 1992. The
enlistment contract explained that, as a member of the armed forces, Hurn would be
“[s]ubject to the military justice system, which means, among other things, that [he]
may be tried by military courts‐martial.” Hurn certified that he carefully read the
document and that the recruiter answered his questions. Some years later, he
committed the crimes at issue here and a court‐martial convicted him and sentenced
him to life in prison.
Hurn then launched an extended effort to upend the judgment. He first appealed
to the United States Navy‐Marine Court of Criminal Appeals, to no avail. United States
v. Hurn, 52 M.J. 629 (US N‐M. Ct. Crim. App. 1999). Among other things, he contested
the constitutionality of 10 U.S.C. § 816, which classifies the various types of courts‐
martial. He turned next to the United States Court of Appeals for the Armed Forces,
which initially remanded the case on grounds not relevant here, 55 M.J. 446 (C.A.A.F.
2001), but later affirmed the conviction and sentence when remand yielded the same
result, 58 M.J. 199 (C.A.A.F. 2003).
Years later, Hurn filed a petition for a writ of habeas corpus in the District of
Kansas, claiming that he did not receive a speedy trial and that his counsel failed to
raise that issue. The district court denied the petition, and the Tenth Circuit affirmed.
Hurn v. McGuire, No. 04‐3008‐RDR, 2005 WL 1076100 (D. Kan. May 6, 2006), aff’d
No. 05‐3206, 2006 WL 367846 (10th Cir. Feb. 17, 2006).
Hurn next challenged the validity of his enlistment contract before the Board of
Corrections of Naval Records. (The Board may alter Marines’ records to “correct an
error or remove an injustice.” 10 U.S.C. § 1552(a)(1).) He asserted that his recruiter
intentionally concealed that enlisting would subject Hurn to court‐martial if he were
charged with committing a non‐military offense, like rape, and thus that he would not
enjoy the same suite of procedural protections as civilian defendants. But the Board
concluded that the contract was valid and it had apprised Hurn that he was susceptible
to military justice, even for civilian offenses.
No. 18‐2638 Page 3
Finally, in 2017, Hurn filed a second habeas petition—the basis of this appeal. He
again asserted that his enlistment contract was invalid because the recruiting officer
concealed that a court‐martial could try him for civilian offenses. He also argued that
10 U.S.C. § 802(c), which subjects constructive enlistees to the Uniform Code of Military
Justice, is unconstitutional because it deprives recruits of due process by causing them
to unknowingly give up civilian protections. Accordingly, he demanded “immediate
release from confinement.”
The district court denied Hurn’s petition. It accepted two of the government’s
defenses: that Hurn defaulted his claims about the enlistment contract’s validity and
§ 802’s constitutionality because he failed to raise them on direct appeal in the military
courts, and that the abuse‐of‐the‐writ doctrine also barred the claims because Hurn
omitted them from his first habeas petition. Alternatively, to the extent that the petition
could be understood as a request for judicial review of the Board’s administrative
decision not to correct his record, see 10 U.S.C. §§ 1552, 1558, as the government
suggested it might, the district court denied relief on the merits.
On appeal, Hurn renews his contentions that his enlistment contract is invalid
and that § 802(c) is unconstitutional. He asserts that he could not have pressed these
theories on direct appeal or in his first habeas petition because the government
concealed them from him. And the Board’s decision upholding the contract, he insists,
was not supported by substantial evidence.
At the outset, we note that a habeas petition under § 2241 is widely understood
to be the conventional means for collaterally reviewing a military tribunal’s conviction
and sentence. See Clinton v. Goldsmith, 526 U.S. 529, 537 n.11 (1999); United States v.
Augenblick, 393 U.S. 348, 350 n.3 (1969); Burns v. Wilson, 346 U.S. 137, 139 & n.1 (1953).
(Because courts‐martial dissolve after sentencing, a motion asking the sentencing court
to vacate the judgment under § 2255 is unavailable. Prost v. Anderson, 636 F.3d 578, 588
(10th Cir. 2011) (Gorsuch, J.); Witham v. United States, 355 F.3d 501, 505 (6th Cir. 2004).)
We therefore start with the district court’s ruling that the habeas claims were
barred by procedural default and the abuse‐of‐the‐writ doctrine. First, a military
petitioner’s unjustified failure to raise a claim on direct appeal bars the claim in any
future collateral attack—a doctrine that the caselaw variously calls procedural default,
waiver, and failure to exhaust remedies. See Goldsmith, 526 U.S. at 537 n.11; Martinez v.
United States, 914 F.2d 1486, 1488–89 (Fed. Cir. 1990). Second, the abuse‐of‐the‐writ
doctrine bars a petitioner who previously sought habeas relief from raising new claims
in a later petition if there was no good cause for omitting them from the first one.
No. 18‐2638 Page 4
McCleskey v. Zant, 499 U.S. 467, 494–95 (1991); see also Esposito v. Ashcroft, 392 F.3d 549,
550 (2d Cir. 2004) (applying abuse‐of‐the‐writ doctrine to § 2241 petition); Zayas v.
I.N.S., 311 F.3d 247, 257 (3d Cir. 2002) (same). Here, Hurn did not challenge his
enlistment contract or the constitutionality of § 802 on direct appeal in the military
courts or in his first habeas petition. And although he broadly asserts that the
government concealed these arguments from him, he does not say how it did so, nor do
we see how it could have. On this record, his failure to discover these arguments earlier
amounts to neglect, which does not excuse his default or overcome the abuse‐of‐the‐
writ doctrine. See McCleskey, 499 U.S. at 498.
Finally, if Hurn’s petition were construed as an administrative‐law challenge to
the Board’s decision not to “correct” his military record, our bottom‐line result would
be the same. We assume, for argument’s sake, that Hurn’s petition can be so construed.
And we sidestep the question whether the Board could validly order Hurn’s release on
these claims, given that 10 U.S.C. § 1552(f) limits the Board’s authority over judgments
of a court‐martial to “correct[ing] a record to reflect actions taken by reviewing
authorities” or modifying a sentence “for purposes of clemency.” See Bolton v. Depʹt of
the Navy Bd. for Corr. of Naval Records, 914 F.3d 401, 408 (6th Cir. 2019). All of that aside,
we would upset the Board’s decision only if it were arbitrary or capricious, contrary to
law, a result of material factual or administrative error, or not based on substantial
evidence. 10 U.S.C. § 1558(f).
Hurn has not met that standard. The Board recognized that his enlistment
contract informed him he could be subject to courts‐martial, and he certified at that time
that he understood the agreement and that the recruiter answered his questions.
Crediting Hurn’s averments in the body of the contract itself, rather than his attempt to
disavow them decades later, was not an error under any standard. Moreover, the
Supreme Court held, before Hurn enlisted, that service members may be tried by
court‐martial for civilian offenses. See Solorio v. United States, 483 U.S. 435, 450–51 (1987).
Given our resolution of these issues, we need not address the parties’ arguments about
the constructive‐enlistment statute, 10 U.S.C. § 802(c).
AFFIRMED