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Armann v. McKean

November 28, 2008

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.

The opinion of the court was delivered by: Fisher, Circuit Judge

PRECEDENTIAL

Argued October 1, 2008

Before: FISHER, CHAGARES and HARDIMAN, Circuit Judges.

OPINION

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 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 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."

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.

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).*fn1 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, 12 M.J. 431 (C.M.A. 1982), which were attached to the principal brief as an appendix.*fn2 In his Grostefon filing, Armann first argued that he lacked "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).*fn3 On October 11, 2001, in support of the petition for 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."*fn4

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.*fn5 On October 19, 2001, the Government filed a letter with the CAAF clerk's office that addressed both the petition for review and the petition for new trial.*fn6 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 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 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, ...


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