Respondents Brief — Paul Anthony Riojas, Petitioner v. Department of the Army, et al.

Supreme Court briefApr 19, 2023

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No. 22-540

In the Supreme Court of the United States

PAUL ANTHONY RIOJAS, PETITIONER

DEPARTMENT OF THE ARMY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

KENNETH A. POLITE, JR.

Assistant Attorney General

J. BENTON HURST

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals correctly rejected petitioner’s non-custodial collateral attack on his courtmartial conviction for sexual abuse of a child and disobeying an order from a superior commissioned officer.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States Army Court of Criminal Appeals:

United States v. Riojas, No. 20170097 (Oct. 26, 2018)

Riojas v. United States, No. 20200078 (Feb. 24, 2020)

United States Court of Appeals for the Armed Forces:

United States v. Riojas, No. 19-96 (Feb. 4, 2019)

United States v. Riojas, No. 20-170 (Mar. 31, 2020)

United States Court of Appeals (5th Cir.):

Riojas v. Department of the Army, No. 22-50019

(July 21, 2022)

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 2

Argument....................................................................................... 4

Conclusion ................................................................................... 12

TABLE OF AUTHORITIES

Cases:

Allen v. United States Air Force,

603 F.3d 423 (8th Cir.), cert. denied,

562 U.S. 1113 (2010).......................................................... 6, 7

Armann v. McKean,

549 F.3d 279 (3d Cir. 2008), cert. denied,

558 U.S. 835 (2009)............................................................ 6, 7

Burns v. Wilson, 346 U.S. 137 (1953) ................................. 4-7

Chandler v. United States,

218 F.3d 1305 (11th Cir. 2000), cert. denied,

531 U.S. 1204 (2001).............................................................. 9

Fletcher v. Outlaw, 578 F.3d 274 (5th Cir. 2009) .............. 4, 7

Harrington v. Richter, 562 U.S. 86 (2011) ............................ 8

Hill v. Lockhart, 474 U.S. 52 (1985) ...................................... 9

Lee v. United States, 137 S. Ct. 1958 (2017) ................... 9, 11

Lips v. Commandant,

997 F.2d 808 (10th Cir. 1993), cert. denied,

510 U.S. 1091 (1994).............................................................. 7

Matias v. United States,

19 Cl. Ct. 635 (1990), aff ’d,

923 F.2d 821 (Fed. Cir. 1990) ............................................... 7

Sanford v. United States,

586 F.3d 28 (D.C. Cir. 2009) ................................................. 8

Schlesinger v. Councilman, 420 U.S. 738 (1975) .................. 6

(III)

Cases—Continued:

Page

Strickland v. Washington, 466 U.S. 668 (1984) .................... 9

Taylor v. McKeithen, 407 U.S. 191 (1972) ............................ 8

Thomas v. United States Disciplinary Barracks,

625 F.3d 667 (10th Cir. 2010), cert. denied,

562 U.S. 1300 (2011).............................................................. 7

United States ex rel. New v. Rumsfeld,

448 F.3d 403 (D.C. Cir. 2006), cert. denied,

550 U.S. 903 (2007)................................................................ 6

United States ex rel. Thompson v. Parker,

399 F.2d 774 (3d Cir. 1968), cert. denied,

393 U.S. 1059 (1969).............................................................. 7

Watson v. McCotter,

782 F.2d 143 (10th Cir.), cert. denied,

476 U.S. 1184 (1986).............................................................. 7

Constitution and statutes:

U.S. Const.:

Amend. V ........................................................................ 2, 4

Amend. VI ...................................................................... 2, 4

10 U.S.C. 890 (2012)................................................................. 2

10 U.S.C. 920b(c) ................................................................. 2, 3

10 U.S.C. 920b(d)(2) .......................................................... 3, 10

10 U.S.C. 920b(h)(5)(B) ..................................................... 3, 10

In the Supreme Court of the United States

No. 22-540

PAUL ANTHONY RIOJAS, PETITIONER

DEPARTMENT OF THE ARMY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 20-22)

is not published in the Federal Reporter but is available

at 2022 WL 2871204. 1 The orders of the district court

(Pet. App. 23-30, 31-43) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

July 21, 2022. A petition for rehearing was denied on

September 7, 2022 (Pet. App. 44-45). The petition for a

writ of certiorari was filed on December 6, 2022. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

This brief uses the page numbers printed in the petition appendix, which is paginated consecutively with the petition itself.

(1)

STATEMENT

Following a guilty plea before a general court-martial,

petitioner was convicted on one specification of sexually

abusing a child, in violation of 10 U.S.C. 920b(c), and one

specification of disobeying an order from a superior

commissioned officer, in violation of 10 U.S.C. 890 (2012).

Pet. App. 24; see C.A. ROA 167. The court-martial

sentenced petitioner to nine months of confinement, forfeiture of all pay and allowances, and dismissal from the

service. C.A. ROA 169. The Army Court of Criminal

Appeals (Army CCA) set aside a portion of his sentence

but affirmed the convictions, and the Court of Appeals

for the Armed Forces (CAAF) denied review. Pet. App.

24.

Petitioner subsequently sought extraordinary writs

of error coram nobis from the Army CCA and the

CAAF. Pet. App. 21; C.A. ROA 361-377, 378-395. The

Army CCA dismissed his petition and the CAAF, construing his petition as a writ-appeal, denied it. C.A.

ROA 314, 356. Petitioner thereafter filed a complaint

in the district court collaterally attacking his courtmartial conviction on Fifth and Sixth Amendment

grounds. Pet. App. 21. The district court dismissed his

complaint for failure to state a claim. Ibid. The court of

appeals affirmed. Id. at 20-22.

1. Petitioner, who was assigned to United States

Army forces in Germany, frequently took morning runs

in a park, usually finishing around the time that young

girls walked by the park on their way to school. 2018

WL 5619958, at *1. On one such occasion, petitioner’s

penis accidentally came out of the bottom of his “short

jogging shorts.” Ibid. Some girls saw this and giggled.

Ibid. Petitioner, excited by the event, then intentionally

exposed himself to teenage girls on three or four occasions. Ibid.

Petitioner eventually pleaded guilty to charges that

included a specification of sexual abuse of seven children, based on having exposed himself multiple times to

seven different girls who ranged in age from 12 to 14.

2018 WL 5619958, at *1-*2; see 10 U.S.C. 920b(c) and

(h)(5)(B). Although it would have been a defense if petitioner had reasonably believed that the victims were

16 or older at the time of the offense conduct, see 10

U.S.C. 920b(d)(2), petitioner admitted as part of the plea

colloquy that he “did not have an honest and reasonable

mistake of fact” as to the age of any of the victims and

that “at no time” had he “ma[d]e any effort” to determine the age of any of the victims. 2018 WL 5619958,

at *2.

Petitioner appealed his conviction, challenging the military judge’s acceptance of his plea. 2018 WL 5619958,

at *1-*2. The Army CCA concluded that the convening

authority failed to reduce petitioner’s sentence to six

months of confinement as required by the plea agreement and corrected his sentence to that extent, id. at *1

n.2, but otherwise affirmed, id. at *3. The CAAF denied

review. 78 M.J. 346.

Petitioner thereafter sought a writ of error coram

nobis from the Army CCA. Pet. App. 24; C.A. ROA 361377. Among other claims, petitioner challenged the effectiveness of his counsel. C.A. ROA 371-373. The

Army CCA denied relief in an order stating that “[o]n

consideration of the Petition for Extraordinary Relief in

the Nature of a Writ of Error Coram Nobis, the petition

is DISMISSED.” Id. at 356. Petitioner then sought a

writ of error coram nobis from the CAAF, raising, inter

alia, the same claims of ineffectiveness. Id. at 388-390.

Construing his petition as a writ-appeal, the CAAF denied it. Id. at 314.

2. Petitioner, who had by that point completed his period of confinement, subsequently filed a non-custodial

collateral attack in the United States District Court for

the Western District of Texas, challenging his courtmartial convictions under the Fifth and Sixth Amendments. See Pet. App. 25; id. at 35-38 & n.3. The district

court dismissed the complaint for failure to state a

claim. Id. at 28-30, 39-42. Petitioner then appealed the

dismissal of his Sixth Amendment claim, and the court

of appeals affirmed in an unpublished per curiam opinion. Id. at 20-22 & n.*.

The court of appeals explained that under this

Court’s decision in Burns v. Wilson, 346 U.S. 137 (1953),

“[w]hen a petition collaterally attacks a decision by the

military court, ‘it is the limited function of the civil

courts to determine whether the military has given fair

consideration’ to the claims raised in that collateral attack.” Pet. App. 22 (quoting Burns, 346 U.S. at 144 (plurality opinion)). Applying that standard to petitioner’s

collateral attack, the court of appeals determined that

the Army CCA’s denial of petitioner’s coram nobis petition reflected “full and fair consideration” of his

ineffective-assistance claim. Ibid. (quoting Fletcher v.

Outlaw, 578 F.3d 274, 278 (5th Cir. 2009)). The court

found that petitioner had “ ‘fully briefed and argued the

claims before’ ” the Army CCA and that the Army

CCA’s summary disposition indicated that it had “considered the petition, but denied it.” Ibid. (citation omitted)

ARGUMENT

Petitioner contends (Pet. 16-18) that the court of appeals erred in affirming the denial of collateral relief

under Burns v. Wilson, 346 U.S. 137 (1953), based on

its determination that the military courts had given

“full and fair consideration” to petitioner’s ineffectiveassistance claims. The court of appeals correctly determined that petitioner is not entitled to relief under the

standard articulated in Burns, and petitioner identifies

no circuit in which he would have succeeded on his noncustodial collateral challenge to the military courts’ resolution of his claims. Further review is therefore unwarranted.

1. In Burns, this Court affirmed the dismissal of habeas claims filed by two soldiers convicted by courtsmartial of rape and murder. In a plurality opinion, four

Members of the Court concluded that, on habeas review

of military judgments, the appropriate inquiry was

“whether the military have given fair consideration to

each of [petitioners’] claims.” Burns, 346 U.S. at 144.

The plurality explained that if the military has done so,

civil courts should not “repeat that process * * * [by]

reexamin[ing] and reweigh[ing] each item of evidence.”

Ibid. And because the military courts in Burns had

“heard petitioners out on every significant allegation

which they now urge,” the plurality concluded that no

further review of those allegations was available in civilian courts. Ibid.

The plurality would, however, allow a district court

to review claims de novo where the underlying allegations were “sufficient to depict fundamental unfairness”

and “the military courts [had] manifestly refused to consider those claims.” Burns, 346 U.S. at 142. Justice Minton, concurring in the judgment, took the even more restrictive view that the sole function of a habeas court

was to determine “that the military court ha[d] jurisdiction, not whether it ha[d] committed error in the exercise

of that jurisdiction.” Id. at 147; see id. at 146 (noting

that Justice Jackson concurred in the result without

opinion).

Two decades later, in Schlesinger v. Councilman,

420 U.S. 738 (1975), this Court acknowledged that noncustodial plaintiffs, like petitioner, may in appropriate

circumstances mount collateral challenges to military

court proceedings. See id. at 748-753. The Court emphasized, however, that collateral relief would be warranted only if the judgment of the military court is

“void,” id. at 748, and that “grounds of impeachment

cognizable in habeas proceedings may not be sufficient

to warrant other forms of collateral relief,” id. at 753.

Accordingly, lower courts have recognized that the

standards applicable to a non-custodial plaintiff are at

least as restrictive as in Burns, and that such a plaintiff

is not entitled to relief if he cannot satisfy even the

Burns standard. See Allen v. United States Air Force,

603 F.3d 423, 430-431 (8th Cir.), cert. denied, 562 U.S.

1113 (2010); United States ex rel. New v. Rumsfeld, 448

F.3d 403, 408 (D.C. Cir. 2006), cert. denied, 550 U.S. 903

(2007).

2. The court of appeals in this case correctly determined (Pet. App. 22) that petitioner cannot satisfy the

Burns standard, and that determination does not warrant further review. Although the precise scope of

Burns has been subject to some uncertainty in the

courts of appeals, see Armann v. McKean, 549 F.3d 279,

289 n.10 (3d Cir. 2008), cert. denied, 558 U.S. 835 (2009),

this case is not a proper vehicle to clarify the complete

contours of Burns’s “full and fair consideration” test,

because petitioner would lose under any plausible application of that test.

In the absence of any specific evidence that the military courts “manifestly refused to consider” a soldier’s

claims, Burns, 346 U.S. at 142 (plurality opinion), the

courts of appeals have consistently found that military

courts gave “full and fair consideration” to a soldier’s

claim on appeal even when the military courts did not

explicitly address the claim in their opinions. 2 And

See Thomas v. United States Disciplinary Barracks, 625 F.3d

667, 671-672 (10th Cir. 2010) (Army CCA had summarily denied coram nobis petition raising ineffective-assistance claims), cert. denied, 562 U.S. 1300 (2011); Fletcher v. Outlaw, 578 F.3d 274, 275 (5th

Cir. 2009) (Army CCA had summarily stated that it had considered

the record, briefs, and oral argument and “f [ound] no merit in either

the errors asserted by counsel for appellant or those raised personally by the appellant”); Armann, 549 F.3d at 292-294 (CAAF had

summarily affirmed conviction after receiving plaintiff ’s briefing on

competency challenge); Lips v. Commandant, 997 F.2d 808, 812 n.2

(10th Cir. 1993) (military court had summarily stated that it had examined and resolved the defendant’s claim), cert. denied, 510 U.S.

1091 (1994); United States ex rel. Thompson v. Parker, 399 F.2d 774,

776 (3d Cir. 1968) (Army CCA had stated that it found “no merit in

any of the 16 assignments of error urged upon us by appellate * * *

counsel”), cert. denied, 393 U.S. 1059 (1969); Matias v. United

States, 19 Cl. Ct. 635, 646 (1990) (“When an issue has been briefed

and argued before a military court, it has received full and fair consideration, even if that court disposes of the claim summarily with a

statement that it did not consider the issue meritorious or requiring

discussion”), aff ’d, 923 F.2d 821 (Fed. Cir. 1990); see also Watson v.

McCotter, 782 F.2d 143, 145 (10th Cir.) (explaining that “[w]hen an

issue is briefed and argued before a military board of review, we

have held that the military tribunal has given the claim fair consideration, even though its opinion summarily disposed of the issue

with the mere statement that it did not consider the issue meritorious or requiring discussion”), cert. denied, 476 U.S. 1184 (1986); cf.

Allen, 603 F.3d at 432 (noting that “even a summary disposal of the

issues is sufficient to demonstrate that the issue was fully and fairly

considered when it was adequately briefed and argued before the

military courts,” and finding military trial court would have fully

petitioner has cited no contrary authority. The courts

of appeals’ consistent practice reflects that it is both ordinary and appropriate for a court, including a military

court, to summarily dispose of any or all claims raised

in an appeal. Military courts, no less than other appellate courts, have wide discretion to write an opinion or

to summarily affirm the judgment of a lower court. See

Harrington v. Richter, 562 U.S. 86, 99 (2011) (“The issuance of summary dispositions in many collateral attack cases can enable a state judiciary to concentrate its

resources on the cases where opinions are most

needed.”); Taylor v. McKeithen, 407 U.S. 191, 194 n.4

(1972) (per curiam) (“We * * * agree that the courts of

appeals should have wide latitude in their decisions of

whether or how to write opinions. That is especially

true with respect to summary affirmances.”).

Applying that principle here, the decision below correctly recognized that petitioner had failed to identify

any reason to believe that either the Army CCA or the

CAAF had denied “full and fair consideration” to his

ineffective-assistance claim when they summarily disposed of it. Petitioner fully briefed his claim to both the

Army CCA, C.A. ROA 371-373, and the CAAF, id. at

388-390. The Army CCA, “[o]n consideration of the Petition for Extraordinary Relief in the Nature of a Writ

of Error Coram Nobis,” dismissed the claim, id. at 356,

and the CAAF, construing petitioner’s claim as a writappeal, denied it, id. at 314. Petitioner has not identified any court of appeals that would find that a plaintiff

and fairly considered issue even if it had not explained why it

reached the conclusion it did); Sanford v. United States, 586 F.3d

28, 33-34 (D.C. Cir. 2009) (finding military court gave “full and fair

consideration” to claim foreclosed by precedent by “simply citing”

precedent in a footnote).

has satisfied the Burns test in those circumstances and

proceed to the merits of the underlying claim.

3. In any event, the Army CCA and CAAF correctly

rejected petitioner’s ineffective-assistance claims because those claims are legally and factually insubstantial.

Before the military courts, petitioner primarily challenged his counsel’s professional estimation of uncertain probabilities, C.A. ROA 371, 388, but those claims

did not merit discussion from the Army CCA or CAAF

and do not warrant this Court’s review.

To establish ineffective assistance of counsel, petitioner would have to prove both deficient performance

and prejudice from it. See Strickland v. Washington,

466 U.S. 668, 687 (1984). To show deficient performance,

petitioner would need to establish that defense counsel’s conduct fell below an “objective standard of reasonableness” and overcome the “strong presumption”

that counsel’s strategy and tactics fell “within the wide

range of reasonable professional assistance.” Id. at 688689. And to show prejudice, petitioner would need to

establish a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would

have insisted on going to trial.” Lee v. United States,

137 S. Ct. 1958, 1965 (2017) (quoting Hill v. Lockhart,

474 U.S. 52, 59 (1985)). Petitioner did not make a substantial showing of either here. See, e.g., Chandler v.

United States, 218 F.3d 1305, 1314 n.15 (11th Cir. 2000)

(“[W]here the record is incomplete or unclear about

counsel’s actions, we will presume that he did what he

should have done, and that he exercised reasonable professional judgment.”) (brackets and citation omitted),

cert. denied, 531 U.S. 1204 (2001).

As to deficient performance, petitioner primarily

criticized his counsel’s estimation of the likelihood that

he would have been acquitted had he gone to trial and

testified to a belief that his victims—who were 12, 13,

and 14—were in fact 16. C.A. ROA 371, 388; see 10

U.S.C. 920b(d)(2) (reasonable mistake of fact as to age

can be an affirmative defense). Those claims did not necessitate discussion from the Army CCA or CAAF and

do not warrant this Court’s review. Petitioner’s guilty

plea included a stipulation that he had no “honest and

reasonable mistake of fact” as to the age of any of his

victims, C.A. ROA 237-240, and he identifies no reason

to conclude that his counsel’s estimation that he could

not have proved such a mistake at trial was deficient.

Petitioner’s submissions to the Army CCA and

CAAF also included a pre-plea e-mail from petitioner to

trial defense counsel asserting that he lacked the specific intent to gratify any sexual desire or embarrass,

humiliate, or degrade anyone, and suggesting that that

might preclude a finding that he engaged in a “lewd

act” within the meaning of the statute. 10 U.S.C.

920b(h)(5)(B); see C.A. ROA 375-376, 393-394. But

counsel would not have erred in advising petitioner that

a jury could infer his intent from his repeated exposure

of his penis to school-age girls. Cf. C.A. ROA 107 (“One

time, I was stretching and my penis accidentally came

out of the bottom of my shorts. I noticed the girls were

giggling and * * * it excited me. After that, when I saw

teenage girls walk by me while I was stretching, I would

intentionally make it so my penis would be exposed outside of my shorts. * * * I did this to gratify my own

sexual desire in that it was thrilling to have them notice

me.”).

As to prejudice, petitioner has failed to meet his burden to show that he would have insisted on trial but

for trial defense counsel’s purportedly deficient advice.

The “strong societal interest in finality has special force

with respect to convictions based on guilty pleas.” Lee,

137 S. Ct. at 1967 (citation and internal quotation marks

omitted). For that reason, “[c]ourts should not upset a

plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney’s deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant’s

expressed preferences.” Ibid. And here, the contemporaneous evidence shows that, although petitioner expressed some concerns with the draft stipulation to his

counsel, C.A. ROA 375-376, 393-394, he nonetheless

chose to sign the stipulation, id. at 237-244, and pleaded

guilty following a lengthy colloquy with a military judge

wherein he expressed satisfaction with his defense

counsel, id. at 107, 125-126, 129-130.

Before accepting petitioner’s plea, the judge gave

petitioner additional time to consult with his counsel.

C.A. ROA 128. At no point did petitioner disavow the

stipulation or express other concerns to the military

judge. Instead, after pleading guilty, petitioner told the

military judge, “I take full responsibility for my actions

and accept any and all of the consequences. I am truly

sorry for the pain and suffering that I caused to those

young women and their families.” Id. at 151. And petitioner benefitted from his plea agreement, as it ultimately led to a sentence shorter than the military judge

would otherwise have imposed: the Army CCA shortened his sentence on direct review precisely because

he had erroneously received a sentence that exceeded

the maximum allowed under that agreement. 2018 WL

5619958, at *1 n.2. No further review of his unsubstantiated claim that he would have rejected it is warranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.