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Nixon v. Ledwith

United States Court of Appeals, Tenth Circuit

January 6, 2016

BARRY N. NIXON, Petitioner - Appellant,
COLONEL SIOBAN J. LEDWITH, Respondent - Appellee.

D.C. No. 5:14-CV-03007-RDR (D. Kan.)

Before GORSUCH, MATHESON, and MORITZ, Circuit Judges.



Barry N. Nixon appeals from the district court's denial of his 28 U.S.C. § 2241 habeas petition.[1] Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. Procedural Background

Mr. Nixon was an active duty Air Force Major when he was charged with two specifications (counts) of indecent acts with a minor, one specification of assault with intent to commit rape, one specification of simple assault, and one specification of rape. With the exception of the simple assault specification, which involved his wife, Mr. Nixon's youngest daughter was the alleged victim. He pled guilty to all of the specifications, except he pled not guilty to the rape, and he pled guilty by exceptions and substitutions to the assault with intent to commit rape. He was tried and convicted by a general court-martial for the rape charge and sentenced to eighteen years of confinement.

Before trial, Mr. Nixon filed a motion in limine to exclude victim testimony by his two older daughters regarding uncharged prior acts he allegedly committed against them.[2] After considering the evidence, briefs, and arguments from both sides, the military judge denied the motion and permitted the testimony under Military Rules of Evidence 414 to show Mr. Nixon's predisposition to commit the charged acts against his youngest daughter.

After he was convicted, Mr. Nixon appealed to the Air Force Court of Criminal Appeals (AFCCA), arguing, among other things, that the military judge abused her discretion in admitting the prior-acts evidence. He argued the evidence was not relevant to the rape charge because his two older daughters had never testified to any penetration. Mr. Nixon disputed that he had ever penetrated his youngest daughter, which was a necessary finding to prove the rape charge.

The AFCCA concluded the military judge had not abused her discretion in denying the motion in limine and admitting the prior-acts testimony. That court determined that the military judge had made the required threshold findings to admit the evidence under Mil. R. Evid. 414[3] and noted that "the testimony of [the older daughters] centered on acts of a similar nature." Id. at 219. The AFCCA further noted that "[o]ur superior court has stated that it has never required the exact same acts of sexual molestation for the admission of evidence under M.R.E. 414." Id. (internal quotation marks omitted).

In response to Mr. Nixon's argument that the military judge's balancing analysis under Mil. R. Evid. 403[4] was inadequate, the AFCCA found "that the military judge adequately considered the potential for undue prejudice that is inevitably present when dealing with propensity evidence." Id. at 220 (internal quotation marks omitted). The AFCCA "note[d] that the military judge did not specifically articulate that she balanced the probative value of the evidence against its unfair prejudicial value when finding the evidence admissible, " and therefore it would give her ruling less deference. Id. But it concluded that "her written ruling sufficiently shows that she conducted the balancing test and considered the Wright factors."[5] Id.

Mr. Nixon petitioned for review of the AFCCA's decision with the Court of Appeals for the Armed Forces (CAAF). In his petition for review, he again challenged the admission of the prior-acts testimony, in addition to three other issues. The CAAF denied review. Mr. Nixon then filed a motion asking the CAAF to reconsider its denial, arguing solely about the prior-acts-testimony issue. The CAAF denied the motion for reconsideration.

Mr. Nixon filed the underlying § 2241 petition after the CAAF denied review. He was represented by a military attorney and a civilian attorney throughout his military proceedings, but he filed his § 2241 petition pro se. The district court denied the petition, and Mr. Nixon now appeals from that decision. His civilian attorney from the military proceedings is representing him on appeal.

II. Federal Habeas Review of Military Proceedings

"[O]ur review of court-martial proceedings is very limited." Thomas v. U.S.Disciplinary Barracks, 625 F.3d 667, 670 (10th Cir. 2010). As the Supreme Court has explained, "[m]ilitary law, like state law, is a jurisprudence which exists separate from the law which governs in our federal judicial establishment, " and "Congress has taken great care both to define the rights of those subject to military law, and provide a complete system of review within ...

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