# Petition for Writ of Certiorari — Seawell v. United States (No. 08-588)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2009

## Text

\\P | Suprome Court, U.S.

FILED
D 08-58 8 Nov 3-208

n° OFFICE OF THE CLERK
Witlam K. Suter, Cierk

In the Supreme Court of the United States

CADET DONCOSTA E. SEAWELL,
Petitioner
v.
UNITED STATES OF AMERICA,
Respondent

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

Jennifer J. Raab Shannon A. Bennett
Captain, U.S. Air Force Major, U.S. Air Force
Counsel of Record
Air Force Appellate
Defense Division
112 Luke Ave, Ste 343
Bolling AFB, DC 20032
(202) 767-1562

i
QUESTION PRESENTED

Does a mandatory supervised release program
violate the Fifth and Eighth Amendments, where
the program allows the Government to revoke
earned credit against an adjudged sentence
without due process thereby resulting in an
increase in punishment?

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TABLE OF CONTENTS

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CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ..................cceeseeeees 1
STATEMENT OF THE CASE. ....000000. eee 2
REASONS FOR GRANTING THE WRIT......... 6

I. The United States Court of Appeals for
the Armed Forces’ decision conflicts with
other federal courts of appeal. ...................... 7

If. Petitioner was confined longer than
authorized under his approved sentence.... 14

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TABLE OF AUTHORITIES
Constitutional Provisions

CEE, MI Wicca ccccvccceccescsssosss 1,14,17
U.S. CONST. amend. VIILI..........cccccccccee 2,16,17

Supreme Court of the United States Cases

Estelle v. Gamble, 429 U.S. 97 (1976) ............ 16
Haines v. Kerner, 404 U.S. 519 (1972)............. 9
Morrissey v. Brewer, 408 U.S. 478 (1972) ...... 8,9
Screws v. United States, 325 U.S. 91 (1945) ..... fe)
Wilwording v. Swenson, 404 U.S. 539 (1974).....9
Wolff v. McDonnell, 418 U.S. 539 (1974).............

SduRieeddd Gdatsbesanaginbieneuevesevenceesenendee 9,10,11,13,14
United States Court of Appeals Cases

United States v. Pena,

RE | a re 15
Courts of Criminal Appeals
United States v. Hilt, 18 M.J. 604 (A.F.C.M.R.
TT ctniniinatdt einathiesersahbaubabadaviebiateescecse 16
United States v. Mansfield, 33 M.J. 972
I a eemeusie 16
United States v. Weber, 56 M.J. 736 (C.G.
IE, ES I i divccndcctabinveucarenscusenvncs 16

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;

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Federal Circuit Courts
Block v. Potter, 631 F.2d 233 (3d Cir. 1980) ...... 11
United States v. Copley, 978 F.2d 829 (4th Cir.
MIs so wu inci usar deeicheaiinaaeninpcnmnaidesiaaliegebeesbiimaaial 6,7,8
United States v. Stephenson, 928 F.2d 728 (6th
a Se isivrnhddadansbtibenasinbueiuhuansbeseionceamell 9,10
Federal Statutes
REE EUS Ete Line Ce: 2,15
LTTE 1
4k, EE ee See NT 1
Miscellaneous
Air Force Instruction 31-2085 ..........................- 11,12
Department of Defense Instruction 1325.7 .........

canneigeangnnn spasnibensiaesberenousepensscousneevnceensoanesnnese 7,8,12,14

The Petitioner, Cadet Doncosta E. Seawell,
respectfully prays that a writ of certiorari issue to
review the order and judgment of the United States
Court of Appeals for the Armed Forces entered in
his case on August 5, 2008.

OPINIONS BELOW

The order and judgment of the United States
Court of Appeals for the Armed Forces, United
States v. Seawell, 2008 CAAF Lexis (C.A.A.F. 2008)
is located at Appendix (App.) la. The order and
judgment of the United States Air Force Court of
Criminal Appeals, United States v. Seawell, ACM
35331 (f rev), 2007 CCA Lexis 571, (A.F. Ct. Crim.
App. 2007) is located at App. 2a.

JURISDICTION

The judgment of the United States Court of
Appeals for the Armed Forces (C.A.A.F.) was entered
on August 5, 2008. The jurisdiction of this Court is
invoked under 28 U.S.C. § 1259(3) (2000) and 10
U.S.C. § 867a(a) (2000).

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

The Fifth Amendment of the United States
Constitution states in relevant part:

No person shall be...deprived of life, liberty, or
property, without due process of law.

2

The Eighth Amendment of the United States
Constitution states:

Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishment
inflicted.

Article 55, Uniform Code of Miuilitary Justice
(UCMJ), Section 855 of Title 10, United States Code
[herinafter Article 55], provides:

Punishment by flogging, or by branding, marking,
or tattooing on the body, or any other cruel or
unusual punishment, may not be adjudged by a
court-martial or inflicted upon any person subject
to this chapter. The use of irons, single or double,
except for the purpose of safe custody, is
prohibited.

STATEMENT OF THE CASE

This case presents the question of whether the
imposition of an additional 35 days of confinement as
a result of mandatory supervised release (MSR)
being revoked increased Petitioner’s sentence in
violation of the Eighth and Fifth Amendment.

On August 12-13, 2002 and October 15-16, 2002,
a military judge tried Petitioner at a general court-
martial at Los Angeles Air Force Base, California for
offenses which occurred after August 16, 2001.
Petitioner entered a plea of guilty pursuant to a pre-
trial agreement to the charge of forcible sodomy.
Petitioner was sentenced to a dismissal, confinement

3

for two years, and forfeiture of all pay and
allowances. The confinement was later reduced to
eighteen months.

The Petitioner entered confinement on October
16, 2002 for a period of eighteen months. After
computation of good-time credit, Petitioner’s
minimum release date was December 29, 2003 and
his maximum release date was April 15, 2004.

After serving several months’ confinement,
Petitioner applied for parole. On June 25, 2003, the
Parole Board denied Petitioner’s request for parole.
Petitioner appealed the parole denial which was
denied on September 8, 2003.

On December 29, 2003, Petitioner was placed in
the MSR program. He was required to comply with
the requirements of the MSR program to include the
following: immediately go to his designated residence,
report in person to the probation officer, remain
within certain prescribed limits, “work diligently at a
lawful occupation,” and receive permission from his
probation officer prior to changing his residence or
place of employment. Among other “standard”
conditions, Petitioner was required to “promptly and
truthfully answer all inquiries” from the Air Force, his
commander, or other officials. He was required not to
associate with “persons of a bad or questionable
reputation” or frequent certain locations. The
standard MSR conditions also prohibited Petitioner
from possessing firearms, required him to participate
and make progress in a community-based sex offender
treatment program, have no contact with the victim,

4

abstain from the use and possession of pornographic
or sexually stimulating materials, not frequent adult
bookstores, sex shops, topless bars, or other locations
that act as a sexual stimulus and register as a sex
offender.

On February 2, 2004, the Air Force Clemency and
Parole Board (the Board) suspended Petitioner’s
MSR release based on reported violations of the
imposed MSR conditions, contained in the Request
for Warrant letter, dated February 2, 2004. Asa
result of the warrant letter, Petitioner was
apprehended on or about February 2, 2004 and
returned to the Naval Consolidated Brig, Miramar,
CA, pending a formal decision from the Board
regarding his MSR and confinement status. On May
1, 2004, a preliminary interview was conducted and a
summary report was generated stating there was
probable cause to believe the offenses occurred,
again, based on information contained in the Request
for Warrant letter, dated February 2, 2004.

On March 24, 2004, an MSR Hearing was
conducted and a report was generated. Petitioner was
afforded the opportunity to present evidence in his
defense. Notably, the report contained a list of the
alleged violations (2) and the specific conduct
constituting the violations. The conduct identified
appears to be based on the only evidence presented by
the Government: a United States Parole Officer letter
with an internet conversation log from an anonymous
individual from Perverted Justice which was the same
letter which served as a basis for the arrest warrant
and subsequent investigation. The findings of facts

5

are based on this request for warrant letter and the
fact that no solid evidence was presented at the
violation hearing. In each case of alleged violations
the fact that no solid evidence was produced to prove
otherwise was dispositive. Petitioner denied both
allegations and submitted evidence of not having
access to a computer during the time period. No other
witnesses testified and no other evidence was
considered. The hearing summary included the
allegations and how Petitioner responded. There was
no transcript or audio recording of the hearing; only
the MSR Hearing Report consisting of three pages.

On April 15, 2004, the Board formally revoked
Petitioner's MSR release stating that violations had
occurred. Further, the Board determined that his
“street time,” the time that Petitioner was released
from confinement under MSR conditions, would not
be credited toward his eighteen-month sentence to
confinement. Even though the first reported MSR
violation did not occur until January i1, 2004, the
board declared that Petitioner’s entire time under
the MSR program—December 29, 2003 until
February 2, 2004—would not be credited to his
confinement term. Likewise, Petitioner was not
awarded with his prior good time credit while in
confinement.

On April 16, 2004, Petitioner petitioned the Court
of Appeals for the Armed Forces (C.A.A.F.) in the
nature of a writ of habeas corpus, seeking release
from confinement. The court denied the petition on
June 1, 2004. See United States v. Seawell, 60 M.J.
114 (C_A.A.F. 2004). Petitioner was released from

6

confinement 35 days after the original maximum
release date of April 15, 2004.

On November 17, 2005, the Air Force Court of
Criminal Appeals (A.F.C.C.A.) affirmed the findings
and sentence as adjudged. App. lla. On 16
November 2006, the C.A.A.F. granted review on three
issues in Petitioner’s case. On 16 July 2007, the
C.A.A.F. certified an issue and remanded the case to
A.F.C.C.A. App. 7a. On December 28, 2007, the
A.F.C.C.A. affirmed the sentence. App. 2a. On
August 5, 2008, the C.A.A.F. again granted review
and summarily disposed of the case. App. la.

REASONS FOR GRANTING THE WRIT

This Court should grant this petition because
Petitioner was denied procedural due _ process
protections at his MSR revocation hearing that he
would have otherwise enjoyed at a parole revocation
proceeding. The lower court’s ruling in this case
thus creates a split of authority among the federal
circuits. Compare Seawell, 60 M.J. 114 with United
States v. Copley, 978 F.2d 829, 835 (4th Cir. 1992)
(indicating a convicted accused on supervised release
should have the same due process protections before
his release may be revoked as one on probation).
Additionally, this Court should grant this petition
because Petitioner was imprisoned longer than his
approved sentence to confinement in violation of the
Fighth Amendment.

7

I. The United States Court of Appeals for
the Armed Forces’ decision conflicts with
other federal courts of appeal.

Servicemembers may obtain early release from
their approved sentences to confinement in one of
two ways: parole or through the Mandatory
Supervised Release program (MSR). While inmates
apply for parole, they do not for MSR. Rather, a
parole and clemency board orders the inmate into
the program. Joint MSR Policy. Thus, an inmate
can avoid being paroled simply by not applying, but
must enter the MSR under threat of criminal or
administrative sanction. /d., 4] E-5.

When the Government seeks to revoke a
servicemember’s parole, it is required to conduct a
violation hearing to determine whether the parolee
has violated any conditions of parole and whether
parole should be revoked. See Department of
Defense Instruction (DoDI) 1325.7, Administration
of Military Correctional facilities and Clemency and
Parole Authority, 4 6.17.10 (July 17, 2001). App.
15a,16a. The Government is required to provide the
parolee evidence on which a finding of the violation
may be based. Jd. at 4 6.17.10.10. The scope of the
hearing may include examination of the evidence,
relevant questioning of witnesses, pertinent
statements as to the alleged violation and whether
parole should be revoked. /d. at 4 6.17.10.11. The
parolee is permitted to present witnesses and may
cross-examine adverse witnesses. Id. at ¥Y
6.17.10.12. However, a servicemember facing a MSR

8

revocation hearing does not enjoy the full due
process protections of a parole violation hearing.

DoDI 1325.7, 4 6.20.6 states that a violation of
MSR will be considered equivalent to a violation of
the terms of parole and will be processed in
accordance with DoDI 1325.7, § 6.17.10 and 4
6.17.11. See DoDI 1325.7, 4 6.20.7. Paragraph
6.17.10 specifically lists the procedure and scope of a
revocation hearing. App. 16a. If parole is revoked,
paragraph 6.17.11 provides generally that credit
shall be awarded with some delineated exceptions.
App. 21a.

“(T]he due process clause of the fourteenth
amendment imposes. procedural...limits on the
revocation of the conditional liberty created by
probation.” United States v. Copley, 978 F.2d 829,
835 (4th Cir. 1992), quoting Black v. Romano, 471
U.S. 606, 610 (1985) (citing Gagnon v. Scarpelli, 411
U.S. 778, (1973); Morrissey v. Brewer, 408 U.S. 471,
(1972)). The court further held that logic would
extend this protection to revoke supervised release
where the only difference between supervised
release and probation is that the former follows a
prison term and the latter is in lieu of a prison term.
Id. The lower court in this case did not follow this
logic.

A revocation hearing “must be the basis for more
than determining probable cause; it must lead to a
final evaluation of any contested relevant facts and
consideration of whether the facts as determined
warrant revocation.” United States v. Stephenson,

9

928 F.2d 728, 732 (6th Cir. 1991), citing Morrissey v.
Brewer, 408 U.S. 471 (1972). A minimal procedural
requirement includes “a written statement by the
factfinders as to the evidence relied on and reasons
for revoking parole.” Jd.

Where the appellant was on supervised release
and based on allegations from probation officer faced
a revocation hearing to determine whether appellant
violatea conditions, the court held “the record is
scant on proof to support the findings of violations.”
Id. at 731. In Stephenson, there was testimony from
the probation officer, the appellant’s mother and the
appellant and the court concluded, “[blecause of the
lack of reliable evidence establishing Stephenson
had either engaged in criminal conduct or used
alcohol to excess and because the district court made
no written statement explaining the evidence relied
on or the reasons for revoking release, we find the
district court abused its discretion.” Jd. at 733.

Lawful imprisonment necessarily makes
unavailable many rights and privileges of the
ordinary citizen, a “retraction justified by the

considerations underlying our penal system.” Wolff

v. McDonnell, 418 U.S. 539, 555-56 (1974) (quoting
Price v. Johnston, 334 U.S. 266, 285 (1948)).
However, prisoners may claim the protections of the
Due Process Clause. /d. at 556. “They may not be
deprived of life, liberty, or property without due
process of law.” /d. Haines v. Kerner, 404 U.S. 519
(1972); Wilwording v. Swenson, 404 U.S. 249 (1971);
Screws v. United States, 325 U.S. 91 (1945).

10

In Wolff the petitioner challenged practices of
disciplinary proceedings at the Nebraska Penal and
Correctional Complex as being adverse to the Due
Process clause of the Fourteenth Amendment. Part
of the challenged practices occurred in cases of
flagrant or serious misconduct, where the chief
executive officer may order that a person’s reduction
of a person’s good-time credit be forfeited or
withheld. Jd. at 546. Petitioner sought (1)
restoration of good time; (2) submission of a plan by
the prison authorities for a hearing procedure in
connection with withholding and forfeiture of good
time which complied with the requirements of due
process; and (3) damages for the deprivation of civil
rights resulting from the use of the allegedly
unconstitutional procedures. /d. at 553.

As a starting point, this Honorable Court quickly
dismissed the petitioner's assertion that the
procedures for disciplining prison inmates for serious
misconduct was a matter of policy, which raised no
constitutional issue. Jd. at 555. While noting that
the Constitution does not guarantee good time
credit, the Court determined that the State created a
liberty interest embraced by the Fourteenth
Amendment. /d. at 557. The Court held this liberty
interest in good time credit entitled a prisoner to
“minimum procedures appropriate under’ the
circumstances and required by the Due Process
Clause to insure that the state-created right is not
arbitrarily abrogated.” Jd. The Court opined that a
“person's liberty is equally protected, even when the
liberty itself is a statutory creation of the State.” Jd.
at 558.

1l

“The presence of a large measure of discretion in
a parole system...does not alter the fundamental due
process limitation against capricious
decisionmaking...A legislative grant of discretion
does not amount to a license for arbitrary behavior.”
Block v. Potter, 631 F.2d 233 (3d Cir. 1980) (citing
Kent v. United States, 383 U.S. 541, 553 (1966)). In
Block, the appellant’s application for parole was
denied because “a person like Block who had enjoyed
the social advantages of financial security, a college
and post-graduate education, and professional
employment, should be treated more harshly than
the ‘typical...parole applicant.” Jd. at 236. In
determining the issues, the Third Circuit Court of
Appeals explained that “weighing individual
characteristics and propensities to make individual
judgments about relative culpability is a sentencing
function, within the sole province of the judiciary.”
Id. at 239. In that case, when the Board singled out
Block for harsher treatment solely because of his
individual background, it was in effect, passing
sentence upon him for the second time. The Third
Circuit determined that the Board applied standards
that were divorced from the policy and purpose of
parole, abusing its discretion and violating Block's
right to due process of law. /d. at 240.

In the present, the Air Force Parole and
Clemency Board has no procedures or protections for
the revocation of Petitioner’s street time for failure
to comply with MSR. In fact, Air Force Instruction
31-205, The Air Force Corrections System, dated
April 7, 2004, provides:

12

AFC&PB proceedings are not open to the
public and the Board does not permit personal
appearances by or on behalf of the inmate,
victims, or other interested individuals. The
Board considers any written, audio, or video
material sent by or on behalf of the inmate,
victims, witnesses and other interested
individuals.

Additionally, Petitioner's good time was also
revoked. According to DoDI 1325.7:

E£26.1.1. Good conduct time shall be accorded
each prisoner serving a sentence(s) imposed
by a court-martial or other military tribunal
for a definite term or terms of confinement. It
shall not be given to prisoners who have a life
sentence. Good conduct time shall be credited
monthly with a deduction from the term of
sentence(s) beginning with the day that the
sentence begins. Good conduct time shall be
credited at the rates described below:

E26.1.3. A parole or probation violator, on
return to confinement, shall earn good conduct
time at the rate applicable to the sentence in
effect at the time of violation of parole or
probation.

In this case, Petitioner’s MSR was revoked, his
street time credit taken away, his good time credit
taken away, and his maximum release date
extended. There is no record to even establish that
the Board’s decision was warranted or based upon

13

any evidentiary standard. Certainly, there is no
assurance that its decision was not arbitrary,
capricious, or erroneous. And, there is nothing in
the record to indicate that any procedure was
enacted to ensure fair consideration of Petitioner's
earned good time. Although the revocation letter
contains the requisite language, it lacks any
substance as required.

Indeed, this Court has described the revocation of
parole alone as “inflictling] a ‘grievous loss’ on the
parolee and often on others.” Wo/ff 418 U.S. at 560
(quoting Morrissey v. Brewer, 408 U.S. 471, 481
(1972)). This case involves the revocation of MSR
and, as such, is entitled at least to minimum due
process protections. While Petitioner was provided
with certain procedural niceties for his MSR
Revocation hearing, no procedural due process was
afforded to Petitioner in regards to his revocation of
good time, as in Wo/ff or his street time credit. The
Board merely considered second hand information in
the form of the original letter used to issue an arrest
warrant, subject to the probable cause standard.
The final finding of fact was made without reference
to any other evidence; except to say the conduct had
occurred. The conclusory statements as a result of
repeating the allegations are absent of any
underlying facts or evidence in support. This is
inconsistent with the holding that supervised release
revocation requires more than a probable cause
determination and requires reliable evidence and a
written statement explaining the evidence relied
upon and the reasons for revocation.

14

In this case, hke Wo/ff no procedural due process
was afforded to Petitioner in regards to his
revocation of credit. Generally, a prisoner whose
parole is revoked shall receive credit for time spent
on parole unless (1) the parolee commits and pleads
guilty to or is convicted of a new offense punishable
by a term of imprisonment or (2) if the Board finds
that the parolee was not in material compliance with
the conditions of parole. DoDI 1325.7, 4 6.17.11.
App. 2la. It appears the Board elected the second
exception for the revocation of good time credit but
the due process requirements to determine the
violation in fact occurred are lacking. The reasoning
for finding Petitioner was not in material compliance
was that the conduct occurred without affording any
due process considerations, including witnesses,
evidence and/or statements, except the original
arrest warrant.

As such, servicemembers have less protections
than other inmates sentenced to supervised release:
an outcome which is in contravention with other
lower federal courts. By being able to revoke earned
credit against an adjudged sentence, the armed
forces’ supervised release program results in a
servicemember serving a longer sentence than that
adjudged. The Board’s action violated the Fifth
Amendment.

IT. Petitioner was confined longer than
authorized under his approved sentence.

15

In United States v. Pena, 64 M.J. 259 (C.A.A.F.
2007), the appellant challenged the authority of the
DoD to establish the MSR program in the absence of
express statutory authority. The C.A A.F. noted that
the scope of its review did not extend to supervision
of all aspects of the confinement and release process.
Id. at 264. Rather, its review was limited to the
impact of such conditions on the findings and the
sentence. /d.

The C.A.A.F. specifically addressed MSR’s effect
upon the adjudged sentence, noting the conditions of
mandatory release did have some impact upon the
appellant. Jd. at 266. However, the court ruled that
the participation in MSR program itself did not
increase the punishment adjudged by the court-
martial. In particular, the court stated “we do not
disregard the possibility that the Mandatory
Supervised Release program could be imposed in a
manner that increases the punishment above the
punishment adjudged by the court-martial.” Jd.

“Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual
punishment inflicted.” U.S. Const. amend. VIII; see
also Article 55, UCMJ, 10 U.S.C. § 855 (2000). This
Honorable Court has stated that punishments violate
the Eighth Amendment when they “are incompatible
with the evolving standards of decency that mark the
progress of a maturing society, or which involve the
unnecessary and wanton infliction of pain.” Estelle
v. Gamble, 429 U.S. 97, 102-03 (1976) (Gnternal
quotation marks and citations omitted).

16

“Since any confinementis the deprivation of
personal freedom for a_ specified period, it is
axiomatic that a confined person should be released
once the confinement has been served.” United
States v. Mansfield, 33 M.J. 972, 995 (A.F.C.M.R.
1991) (citing United States v. Hilt, 18 M.J. 604
(A.F.C.M.R. 1984). If an accused is held in
confinement beyond his required release date, an
accused merits “meaningful relief’ with respect to
the remainder of the sentence. A7/t, 18 M.J. at 604
(citing United States v. Suzuki, 14 M.J. 491 (C.M.A.
1983)). See United States v. Weber, 56 M.J. 736, 738
(C.G. Ct. Crim. App. 2002) (citing United States v.
Keith, 36 M.J. 518, 519 (A.C.M.R. 1992)).

In Petitioner's case, based on allegations of
noncompliance with his conditions for MSR,
Petitioner was placed back in confinement and was
held 35 days beyond his maximum release date,
increasing his sentence in violation of the Eighth
Amendment.

CONCLUSION

The Board unlawfully modified and increased the
severity of the Petitioner’s approved sentence by
imposing the MSR conditions upon him, revoking his
previously earned good time and street time without
any meaningful due process considerations and
keeping him beyond his maximum release date,
subjecting him to a longer sentence than what was
adjudged. The Board’s actions violated the Fifth and
Eighth Amendment. For the foregoing reasons,

17

Petitioner respectfully requests that this Honorable
Court grant his petition for a writ of certiorari.

Respectfully submitted,

JENNIFER J. RAAB
Captain, U.S. Air Force
Counsel of Record

SHANNON A. BENNETT
Major, U.S. Air Force

AF Legal Operations Agency
Appellate Defense Division
112 Luke Ave, Ste 343
Bolling AFB, DC 20332-8000
(202) 767-1562

Counsel for Petitioner

la

UNITED STATES, Appellee

Vv.

Doncosta E. SEAWELL, Cadet

U.S. Air Force, Appellant

UNITED STATES
COURT OF APPEALS FOR
THE ARMED FORCES

2008 CAAF Lexis 921

August 5, 2008, Decided

NOTICE: DECISION WITHOUT PUBLISHED
OPINION

OPINION:

On consideration of the petition for grant of
review of the decision of the United States Air Force
Court of Criminal Appeals, said petition is hereby
granted, and the decision of the United States Air
Force Court of Criminal Appeals is affirmed.

2a

UNITED STATES AIR FORCE COURT OF
CRIMINAL APPEALS
UNITED STATES

Vv.

Cadet DONCOSTA E. SEAWELL
United States Air Force
ACM 35531 ¢ rev)

December 28, 2007, Decided

COUNSEL: For Appellant: Colonel Beverly B.
Knott, Colonel Cai.os L McDade, Major Terry L.
McElyea, Capt James M. Winner, Captain Anthony
D. Ortiz, and Frank ~4J. ~ Spinner, _ Esq.

For the United States: Colonel Gerald R. Bruce,
Colonel LeEllen Coacher, Lieutenant Colonel Robert

V. Combs , Lieutenant Colonel Gary F. Spencer,
Major Matthew S. Ward, Major John C. Johnson,
and Major Brendon K. Tukey.

JUDGES: Before FRANCIS, SOYBEL and BRAND,
Appellate Military Judges.

OPINION BY: Per Curiam
OPINION

OPINION OF THE COURT

3a

Consistent with his pleas, the appellant was
convicted of forcible sodomy, in violation of Article
125, UCMJ, 10 U.S.C. § 925. His approved sentence
consists of a dismissal, confinement for 18 months,
and total forfeitures.

This case is before our Court for the second time.
In Unit tes v wi 3. M.J. 26 FF. Ct.
Crim. App. 2005) (unpub. op.), we affirmed the
findings and sentence. On appeal, our superior court
affirmed the findings, but set aside the sentence and
returned the record to the Judge Advocate General
of the Air Force for remand to our Court.

The issue specified for consideration with respect
to the sentence is: WHETHER THE DECISION TO
DISAPPROVE TIME SERVED ON MANDATORY
SUPERVISED RELEASE AND IMPRISON
APPELLANT BEYOND HIS MAXIMUM RELEASE
DATE INCREASED APPELLANT'S PUNISHMENT
ABOVE THE SENTENCE APPROVED BY THE
CONVENING AUTHORITY. SEE UNITED STATES

V. PENA, 64 M.J. 259 (C.A.A.F. 2007). }

Background

The appellant was sentenced, on 16 October
2002, to a dismissal, confinement for 2 years, and
total forfeitures. The convening authority, in
accordance with the pretrial agreement, reduced the
approved confinement to 18 months. On 25 June

' Although through his brief, the appellant has raised three

additional issues, we will limit our decision to the issue
specified. See Article 67(e), UCMJ, 10 U.S.C. § 867(e).

4a

2003, the appellant was denied parole. He was
advised, on 3 September 2003, that he would be
placed in the Mandatory Supervised Release (MSR)
program on his minimum release date, 29 December
2003. On 29 December 2003, the appellant was
released on MSR until his maximum release date of
15 April 2004.

On 2 February 2004, authorities were notified of
alleged parole (MSR)? violations occurring on 11 and
14 January 2004. The appellant's supervised release
was suspended as of that date. On 14 April 2004,
after substantial compliance with governing
regulations,3 the Air Force Clemency and Parole
Board (AFC&PB); revoked the appellant's parole and
denied him administrative credit for his "street
time." The issue of whether the appellant would
receive credit for his "street time"4 was specifically
addressed by the AFC&PB. The board determined
that because the appellant violated the conditions of
the MSR program within two weeks of release, the
appellant was never "in material compliance with
the conditions" of MSR during the entire period of
his time on supervision. See DODI 1325.7, PP 6.20.6,
6.17.11.2. The appellant's maximum release date
was adjusted by 35 days. ®

2 In execution, MSR is virtually identical to parole. United
States v. Pena, 61 M.J. 776, 780 (A.F. Ct. Crim. App. 2005),
aff'd, 64 M.J. 259 (C.A.A.F. 2007)

3 DODI 1325.7, Administration of Military Correctional
Facilities and Clemency and Parole Authority (21 Jul 2001);
AFI 31-205, The Air Force Corrections System (9 Apr 2001); see
also Pena, 61 M.J. 776.

4 29 Dec 03 - 2 Feb 04.

5 The time he spent on MSR.

;

5a

Discussion

The issue whether the appellant's sentence has
been unlawfully increased is an issue we review de

novo. United States v. Pena, 64 MJ. 259, 265
(C.A.A.F. 2007). Generally, the administrative

consequences of a sentence, such as early release
programs, do not constitute punishment. Jd. There is
a possibility "that the MSR program could be
imposed in a manner that increases the punishment
above the punishment adjudged by a court-martial.
The burden, however, is on the party challenging the
conditions to demonstrate there has been an
increase above the punishment of confinement

imposed at trial." Jd. at 266.

In Pena, the appellant was predominantly
complaining about the conditions® of his parole
(MSR) whereas in the case sub judice, the appellant
complains that the decision to not award credit for
“street time" and to re-imprison the appellant, thus
creating an adjustment in his maximum release
date, unlawfully increased his punishment. The
appellant has failed, even minimally, to demonstrate
how being released from confinement on parole; and
then, after an administrative hearing, being re-
confined upon findings of violations of that parole:
and being required to serve his approved sentence
equates to an unlawful increase in his sentence.

6 Conditions that were far more onerous than those imposed
upon Cadet Seawell.

6a

The appellant was required to serve his sentence
without receiving credit, as determined by the
AFC&PB, in accordance with procedures, for the
time he spent on the "street" on MSR. Requiring the
appellant to serve out his sentence merely resulted
in an adjusted maximum release date, not an
increase in punishment. He spent no more time in
jail than the total of his approved sentence.

Conclusion

The previously approved and affirmed findings,
and the sentence are correct in law and fact, and no
error prejudicial to the substantial rights of the
appellant occurred. Article 66(c), UCMJ, 10 U.S.C. §

866(c); United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000). Accordingly, the findings and

sentence are

AFFIRMED.

7a

UNITED STATES, Appellee

Vv.

Doncosta E. SEAWELL, Cadet

U.S. Air Force, Appellant

UNITED STATES
COURT OF APPEALS FOR
THE ARMED FORCES

65 M.S. 302

July 16, 2007, Decided

NOTICE: DECISION WITHOUT PUBLISHED
OPINION

JUDGES: RYAN, Judge (concurring in the result)
OPINION

On further consideration of the granted issues, 64
M.J. 317 (C.A.A.F. 2006), it is ordered that the
decision of the United States Air Force Court of
Criminal Appeals is hereby affirmed as to the
findings, but set aside as to the sentence. The record
is returned to the Judge Advocate General of the Air
Force for remand to the Court of Criminal Appeals
for consideration of the following issue with respect
to the sentence:

WHETHER THE DECISION TO DISAPPROVE
TIME SERVED ON MANDATORY SUPERVISED

8a

RELEASE AND IMPRISON APPELLANT BEYOND
HIS MAXIMUM RELEASE DATE INCREASED
APPELLANT'S PUNISHMENT ABOVE THE
SENTENCE APPROVED BY THE CONVENING
AUTHORITY. SEE UNITED STATES v. PENA, 64

M.J. 259 (C.A.A.F. 2007).

Thereafter, Article 67(b), Uniform Code of Military
Justice, 10 U.S.C. § 867(b)(2000), shall apply.

CONCUR BY: RYAN

RYAN, Judge (concurring in the _ result):

The remand in this case is based on United States
v. Pena, 64 M.J. 259 (C.A.A.F. 2007), a case in which
I did not participate. There is a potential reading of
the Pena decision that gives me pause with respect
to the threshold question of jurisdiction.

Not so long ago the Supreme Court reaffirmed a
fundamental principle of law: this Court's
jurisdiction is "strictly circumscribed" to "act only
with respect to the findings and sentence as
approved by the convening authority and as affirmed
or set aside as incorrect in law by the Court of
Criminal Appeals." C/z v. Goldsmith 6
529, 531, 534, 119 S. Ct. 15 143 L. Ed. i)

(1999) (citing Article 67(c), Uniform Code of Military
Justice (UCMJ), 10 U.S.C. 7(c) (2000)). In

addressing the limits of this Court's jurisdiction, the
Supreme Court further recognized the power of this
Court "to compel adherence to its own judgment"
when a "military authority attempted to alter a
judgment by revising a court-martial finding or

9a

sentence to increase the punishment, contrary to the
specific provisions of the UCMJ." Goldsmith, 526

U.S. at 536.

In light of this precedent, it is unclear to me
whether and how this Court has jurisdiction under
Article 67(c), UCMJ, to take action with regard to
something that is not itself part of the findings or
adjudged sentence or an alteration of the judgment.

Goldsmith, 526 U.S. at 536. On the one hand, Pena
appears to recognize this limitation. 64 M.J. at 266
(focusing on whether there is "an increase in the

punishment of confinement adjudged by the court-
martial"). On the other hand, Pena also suggests
that this Court has jurisdiction to review "post-trial
confinement and release conditions on _ direct
appeall,] . . . limited to the impact of such conditions
on the findings and the sentence." 64 M.J. at 264. I
am concerned that this latter statement may be read
to sweep more broadly than our legislative mandate.

A brief review of the Mandatory Supervised
Release Program (MSRP) that Pena complained of
heightens the reservation I have about the breadth
of this statement. Pena complained that:

he was unable to stop in Colorado to ship his
household goods to Illinois, that he incurred a ten
dollar per week expenditure for transportation to
the sex offender treatment program, that he was
required to attend Alcoholic Anonymous classes
three times a week at night and sex offender
treatment classes once a week during the day,
that he had various other appointments and a
requirement to give a urine sample on short

10a

notice every two weeks, and that the conditions of
mandatory supervision left him unable to find
work to support his family.

Id.

I do not see how these complaints involve an
alteration of the adjudged sentence. This Court held |
that Pena failed to show that his “burdens [were]
such that they resulted in an increase in the
punishment of confinement adjudged by the court-
martial." Jd at 266. But that statement by this :
Court could be read as support for the proposition
that determining whether the MSRP results in an
increase in the punishment of confinement is not
limited to an actual alteration of the adjudged
sentence, but includes assessments “about the
personal, psychological, economic, and family
impact" of a MSRP on the party “appealing the ;
sentence." /d. It is unclear to me how social, family, ;
and psychological issues constitute an alteration of
an adjudged sentence. It is also unclear to me how
we have the power to review collateral consequences
of the MSRP, a program administered by executive
branch officials on the Clemency and Parole Board.

See Goldsmith, 526 U.S. at 536.

It remains to be seen whether my reservation is
warranted. Regardless, a summary remand with no
briefing on the jurisdictional issue is not the proper
vehicle to address the issue. Consequently, I join the
Court's disposition here today. But I am open to
revisiting the issue, as necessary, in an appropriate
case.

~
all

lla

UNITED STATES AIR FORCE COURT OF
CRIMINAL APPEALS
UNITED STATES

Vv.

Cadet DONCOSTA E. SEAWELL
United States Air Force
ACM 35531

November 17, 2005, Decided

COUNSEL: For Appellant: Colonel Beverly B.
Knott, Colonel Carlos L McDade, Major Terry L.
McElyea, Capt James M. Winner and Frank J.
Spinner, Esq.

For the United States: Colonel LeEllen Coacher,
Lieutenant Colonel Gary F. Spencer, Lieutenant
Colonel Robert V. Combs and Major John C.

Johnson.

JUDGES: Before STONE, MATHEWS, and
JACOBSON, Appellate Military Judges.

OPINION BY: MATTHEWS
OPINION
OPINION OF THE COURT

MATHEWS, Judge:

12a

The appellant was convicted, in accordance with
his pleas, of forcible sodomy, in violation of Article 3
125, UCMJ, 10 U.S.C. § 925. He was sentenced by a
military judge sitting as a general court-martial to
dismissal from the service, confinement for 2 years,
and forfeiture of all pay and allowances. Pursuant to
a pretrial plea agreement, the convening authority ‘
reduced the appellant's term of confinement to 18 :
months, but otherwise approved the sentence as
adjudged.

The facts relevant to the disposition of this appeal
are as follows: On 28 December 2001, while visiting
Los Angeles, California, the appellant went to the
home of EH, a former high-school classmate. EH is
confined to a wheelchair, suffering from a severe
form of cerebral palsy. When EH opened the door,
the appellant went into her home, refusing her
entreaties to leave. He then proceeded to pull her |
from her wheelchair and, ignoring her repeated ;
pleas to stop, pinned her down and repeatedly anally _
sodomized her. The force of his assault was sufficient
to cause persistent, visible bleeding, and left EH in
pain and in shock. When he finished, the appellant
patted EH on the head, saying "Sorry it had to be
like this." He put her back in her wheelchair, with
her pants still pulled down around her ankles, and
left.

oe

we eee

On appeal, he urges us to find that the convening
authority in his case, the Superintendent of the
United States Air Force Academy (USAFA), was
"disqualified . . . because he was under intense
scrutiny” regarding sexual assault allegations

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involving USAFA cadets. We _ review claims
concerning disqualificationof the convening

authority de novo. United States v. Taylor, 60 M.J.
190, 194 (C.A.A.F. 2004). The appellant bears the
burden of making a prima facie case for
disqualification. /d. (citing United States v. Wansley,
46 M.J. 335, 337 (C.A.A.F. 1997)).

We conclude that the appellant has failed to meet
his burden. The documents provided by the
appellant's counsel show that the convening
authority "was scheduled to retire" and that his
pending retirement was a matter of public record
prior to taking action on the appellant's case. Thus,
we find that - contrary to the appellant's claims - the
convening authority did not permit concerns about
his career to influence his action. Article 66(c),
UCMJ, 10 U.S.C. § 866(c). Further, we find that the
appellant waived any error related to the "immense,"

"national" scrutiny of the Academy by failing to raise
it prior to the age acne authority's action. See
ter, M.J. 447 -.M.A

1992).

Appellant also points to an e-mail sent by the
convening authority, in his capacity as the USAFA
Superintendent, suggesting that the Air Force. and
the USAFA have "zero tolerance for sexual assault."
As noted by our superior appellate court, the phrase

"zero tolerance" may be interpreted in many ways,

ranging from benign to prejudicial. United Stat os
Simpson, 58 MJ. 368, 375 (C.AA.F. 2003).

reminder that the service will not overlook some
forms of misconduct is in itself innocuous. Jd. We

l4a

conclude that the convening authority's e-mail was
such a reminder and not an endorsement of any
particular result.

Viewed in context with its caution that news
reports “typically don't reflect all the factors that
must be considered in judging whether these cases
have been handled fairly," as well as references to
the need for justice, “appropriate” discipline, and the
importance of fairness to both parties, the e-mail
falls clearly on the benign side of the spectrum.
Moreover, we note that the convening authority the
appellant now complains was biased, is the same one
who signed the appellant's pretrial plea agreement.
It is difficult to envision how the appellant - who
faced the possibility of confinement for life, without
parole - could realistically have expected a more
lenient deal.

We have considered the appellant's remaining
assignments of error and resolve them adversely.

See United States v. Pena, 61 M.J. 776, (A.F. Ct.
Crim. App. 15 September 2005). The findings and

sentence are correct in law and fact, and no error
prejudicial to the substantial rights of the appellant

occurred._Article 66(c), UCMJ: United States v.
Reed, 54 M.J. 37, 41 (C.AA.F. 2000). Accatdinae

the approved findings and sentence are

AFFIRMED.

-
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:
;
:

15a

Department of Defense Instruction

NUMBER 1325.7
July 17, 2001

Incorporating Change 1, June 10,
2003

USD(P&R)

SUBJECT: Administration of Military Correctional Facilities
and Clemency and Parole Authority

References:

(a) DoD Instruction 1325.7, “Administration of
Military Correctional Facilities and Clemency and
Parole Authority,” December 17, 1999(hereby
canceled)

(b) DoD Directive 1325.4, "Confinement of Military
Prisoners and Administration of Military Correctional
Programs and Facilities," September 28, 1999

(c) DoD Directive 1300.17, "Accommodation of
Religious Practices Within the Military Services,"
February 3, 1988

(d) Title 10, United States Code

(e) through (k), see enclosure |

16a

Department of Defense Instruction 1325.7,

Administration of Military Correctional facilities and
Clemency and Parole Authority, 4 6.17.10 (July 17,

2001):

6.17.10.1. When a prisoner's parole has
been suspended, a preliminary
interview shall be held to determine
whether probable cause exists. to
establish that a parolee violated a
condition of parole. If, however, the
parolee absconds parole or pleads guilty
to or is convicted of an offense that is
punishable by imprisonment, _ the
parolee's absconding, the guilty plea or
conviction shall suffice as probable
cause and a preliminary interview may
be waived by the Clemency and Parole
Board of the prisoner's Service

6.17.10.2. The preliminary interview
shall normally be conducted by a
neutral and detached officer at or near
the place of the alleged parole violation.

6.17.10.3. The parolee shall be provided
written notice of the preliminary
interview, including the purpose of that
interview.

6.17.10.4. The parolee shall be given an
opportunity to inspect the evidence on
which the revocation is based and an

17a

opportunity to be heard and to present
relevant matters. Witnesses called by
the parolee shall be at no expense to the
Government.

6.17.10.5. The parolee may be
represented at the _ preliminary
interview by an attorney at no expense
to the Government. The role of an
attorney at a preliminary interview
shall be limited in accordance with
subparagraph 6.17.10.13., below.

6.17.10.6. When the officer conducting
the preliminary interview finds
probable cause to believe that the
parolee violated any condition of parole,
the Board may order a parole violation
hearing. The violation hearing shall be
conducted before a prisoner's parole is
revoked. The purpose of the violation
hearing is to determine whether the
parolee has violated any condition of

parole and, if so, whether the parole
should be revoked.

6.17.10.7. The parole violation hearing
shall normally be held at or near the
place of the alleged violation. When the
parolee has been returned to a military
confinement facility or is confined by
civil authorities, the parole violation
hearing may be held at the place of
confinement.

18a

6.17.10.8. A Clemency and Parole Board
of the inmate's Military Department
shall appoint a hearing officer or panel
to conduct a parole violation hearing.
The hearing officer or panel shall be
neutral and need not be, or include, a
judicial officer or attorney.

6.17.10.9. The parolee and all victims
indicating a desire to be notified shall
be given written notice of the violation
hearing. The notice to the parolee shall
inform the parolee of the alleged
violation, the purpose of the parole
violation hearing, the evidence on
which the parole violation hearing is
based, the parolee's rights at the parole
violation hearing, and the options

available to the Clemency and Parole
Board.

6.17.10.10. Evidence on which a finding
of violation may be based shall be
disclosed to the parolee at least 10 days
before the parole violation hearing. If
evidence supporting a parole violation
is discovered subsequent to the hearing,
the parolee will be given 10 days to
respond in writing to the new evidence.

6.17.10.11. The scope of a _ parole
violation hearing shall be limited to the

examination of evidence of an alleged
parole violation, relevant questioning of

19a

witnesses, pertinent statements as to
an alleged parole’ violation, and
whether the parole should be revoked.

6.17.10.12. The parolee may present
witnesses and documentary evidence, at
no expense to the Government, on his
or her behalf and may cross-examine
adverse witnesses subject to limitations
imposed by the hearing officer or panel
for good cause. The hearing officer or
panel may limit or exclude any
irrelevant or _ repetitious witness,
statement, question, or documentary
evidence.

6.17.10.13. The parolee may be
represented at a _ parole violation
hearing by an attorney or
representative of his or her choice at no
cost to the Government. When

requested by the parolee, a military
attorney shall be provided; however, the
parolee has no right to a military
attorney of his or her choice. The role of
any representative or attorney shall be
limited to the examination of witnesses,
presentation of evidence, and _ the
offering of a statement on the parolee's
behalf as to whether parole should be
revoked. Challenges to the parole
violation hearing proceedings shall not
be permitted. The hearing officer or
panel may deny, for good cause, a

20a

parolee's choice of a _ nonattorney
representative.

6.17.10.14. Parole may be revoked
based on a finding that a parolee has
violated a condition of parole by failure
to pay a fine or make restitution only if
the parolee refused to pay the fine or
make restitution when the parolee had
sufficient resources; or the parolee
failed to make sufficient bona fide
efforts to obtain employment, borrow
money, or legally acquire funds with
which to pay the fine or make
restitution. If he parolee could not pay
the fine or make restitution, despite
sufficient bona fide efforts to acquire
the resources to do so, parole may be
revoked only if no _ alternative
disposition exists that will adequately
serve the need for good order and
discipline within the Armed Services
and the correctional treatment of the
parolee.

6.17.10.15. A Clemency and Parole
Board shall take final action on the
findings and recommendations of the
officer or panel conducting a parole
violation hearing.

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*

2la

Department of Defense Instruction 1325.7,

Administration of Military Correctional facilities and
Clemency and Parole Authority, § 6.17.11 (July 17,

2001):

6.17.11. A prisoner whose parole is
revoked shall receive credit for time
spent on parole except as follows:

6.17.11.1. If, after being released on
parole, the parolee commits and pleads
guilty to or is convicted of a new offense
that is punishable by a term of
imprisonment, forfeiture of the time
from the date of release to the date of
suspension or revocation of that parole
as a result of that new offense may be
ordered by the Clemency and Parole
Board and such forfeited time shall not
be credited to service of the sentence.
An actual term of confinement need not
have been imposed for such conviction if
the statute under which the parolee was
convicted permits the trial court to
impose any term of confinement. If such
conviction occurs subsequent to a parole
violation hearing, a Clemency and
Parole Board may _ reconsider’ the
forfeiture of time served on parole or
other disposition, as appropriate.

6.17.11.2. If the Clemency and Parole
Board finds that a parolee refused or
failed to respond to any reasonable

22a

request, order, or summons of a
Clemency and Parole Board or any agent
thereof, including the assigned probation
officer, or if a Clemency and Parole
Board finds that the parolee was not in
material comphance with the conditions
of parole, a Clemency and Parole Board
may order the forfeiture of time from
date of the refusal, failure or violation to
the date of revocation or return to
custody to serve the military sentence.
The length of time between release on
parole and the refusal, failure or
violation, and the nature’ and
seriousness of the misconduct shall be
considered in determining whether a
parolee was ever in material compliance
with the parole conditions.

6.17.11.3. Computation of any sentence
to be served shall be done in accordance
with applicable Service regulations.
Prisoners who have been transferred to
the FBOP, however, shall have their
remaining sentences and related issues
computed according to the FBOP
regulations when parole is suspended or
revoked.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0368%3A1. Public record. Not legal advice.