The opinion of the court was delivered by: McLAUGHLIN, Sean, J.
MEMORANDUM OPINION AND ORDER
Presently pending before the Court is the Respondent's Appeal of the Magistrate Judge's Order granting Petitioner's Motion for Evidentiary Hearing [Doc. No. 68].
On April 22, 2004, Petitioner filed a petition for writ of habeas corpus claiming that he had not been competent to stand trial as a result of various medications that he was taking at the time of his guilty plea. Petitioner thereafter filed a motion for an evidentiary hearing, which was initially granted by the Magistrate Judge on March 14, 2006. See Order [Doc. No. 44]. Respondent subsequently appealed that Order to this Court. See Notice of Appeal of Magistrate Judge's Order Granting Petitioner's Motion for Evidentiary Hearing [Doc. No. 46].
During the course of our consideration of the initial Appeal, it became apparent that documents from the military proceeding were not included in the record before the Magistrate Judge which we considered potentially relevant in determining whether the military tribunal fully and fairly considered the mental competency issue raised here. Accordingly, we held a telephonic status conference on June 2, 2006 and ordered that the record be supplemented with additional documents that were filed during the military court proceedings. See Status Conference Tr., June 2, 2006 [Doc. No. 63]. Both parties represented that following supplementation of the record with the additional documents, the record in this Court was complete for purposes of review. Id. at pp. 13-14.
In light of this additional evidence, we remanded the matter to the Magistrate Judge for reconsideration of her March 14, 2006 Order granting an evidentiary hearing following her review of this additional evidence in the first instance. See Memorandum Opinion and Order [Doc. No. 64].
On September 15, 2006, the Magistrate Judge again ordered an evidentiary hearing following her review of the additional evidence. See Order [Doc. No. 65]. It is from this Order that Respondent currently appeals. See Notice of Appeal of Magistrate Judge's Sept. 15, 2006 Order Granting Petitioner's Motion for Evidentiary Hearing [Doc. No. 68].
Subsequent to Respondent's Appeal, the Magistrate Judge issued an Opinion setting forth her reasons for ordering the hearing. See Magistrate Judge's Opinion [Doc. No. 71]. Petitioner has filed a Response to the Appeal, see Petitioner's Response to Respondent's Notice of Appeal of Magistrate Judge's Sept. 15, 2006 Order Granting Petitioner's Motion for Evidentiary Hearing [Doc. No. 72], and Respondent has filed a Reply, see Respondent's Reply in Support of Its Notice of Appeal of Magistrate Judge's Sept. 15, 2006 Order Granting Petitioner's Motion for Evidentiary Hearing [Doc. No. 75]. This matter is now ripe for our determination.
Petitioner, a former member of the United States Army, was charged in 1998 with, inter alia, attempted premeditated murder and conspiracy to commit premeditated murder after shooting a fellow soldier while stationed in Germany. A military court-ordered sanity board evaluated Petitioner, and on February 8, 1999, concluded that he was free of severe mental disease or defect at the time of the offense, 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. See Respondent's Exhibit E, Notice of Appeal [Doc. No. 68].
On March 19, 1999, Petitioner was convicted in a general court martial proceeding pursuant to his guilty pleas, and was sentenced to a dishonorable discharge, forfeiture of all pay, and confinement for 38 years. Pursuant to a pre-trial agreement, his sentence was modified not to exceed 35 years.
In July 2000, Petitioner filed an appeal with the Army Court of Criminal Appeals ("ACCA"). See Respondent's Exhibit F, Notice of Appeal. In his appeal, Petitioner submitted a separate Appendix A pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), which requires military appellate counsel to raise an accused's specified errors before the court, even if considered non-meritorious. Id. at 435-36. Petitioner's Grostefon submission alleged, inter alia, an absence of mental responsibility for the offenses, and cited to seven medications which had been prescribed to him after his arrival at the Disciplinary Barracks. See Respondent's Exhibit G, Notice of Appeal.
On April 24, 2001, the ACCA affirmed the trial court's decision, and stated in its decision that it had specifically considered the issues raised by Petitioner. See Respondent's Exhibit H, Notice of Appeal.
On May 22, 2001, Petitioner appealed to the Court of Appeals for the Armed Forces ("CAAF"), the highest military court, for review of his conviction. See Respondent's Exhibit G, Response to Petition [Doc. No. 10]. On October 11, 2001, Petitioner's counsel filed a supplement to the petition for grant of review with the CAAF. Respondent's Exhibit K, Part 1, Notice of Appeal. Petitioner, in a separate Grostefon submission labeled as Appendix B, asserted that he lacked sufficient mental capacity to stand trial because he had allegedly been administered toxic amounts of psychoactive substances from October 1998 through March 19, 1999, and requested the court consider newly discovered evidence regarding the possible effects of his treatment with the drug Accutane. Respondent's Exhibit K, Part 2, Notice of Appeal.
On October 19, 2001, the Government submitted correspondence to the CAAF stating that: (1) it would not be submitting a formal reply to the supplement to the petition; (2) it opposed the granting of a petition for review on the issues raised and relied on its briefs filed with the ACCA; (3) it opposed the court's consideration of the new matters raised in Petitioner's Appendix B absent a showing of good cause; and (4) it would respond to ...