Are the Dodson factors a violation of the Suspension Clause and therefore an unconstitutional bar to habeas for military prisoners?

QUESTION PRESENTED si This Court, in Burns v. Wilson,! stated that a federal civilian court may not consider a military habeas petitioner’s claim “when a military decision has dealt fully and fairly with an allegation raised in that application...” The D.C. Circuit Court “has recognized that the standard of review in non-custodial collateral attacks on courtmartial proceedings is ‘tangled.”2 The D.C. Circuit has therefore interpreted the Burns standard as one that “should not differ ‘from that currently imposed in habeas corpus review of state conviction,’ and held that ‘the test of fairness requires that military rulings on constitutional issues conform to Supreme Court standards, unless it is shown that conditions peculiar to military life require a différent rule.”? The Tenth Circuit Court, however, has applied a niuch more ‘restrictive standard. In Dodson v. Zelez,4 the court laid out the following factors that must be overcome by a military petitioner before a Tenth Circuit court could consider a-pétitioner’s habeas claims: . ee ce : ho Nera N p Pa te 1. The asserted error must be of substantial constitutional dimension. 2. The issue must be one of law rather than of disputed: fact.already . . ‘ determined by the military tribunals. . 3. Military considerations may warrant different,treatment of constitutional claims. . a 4. The military courts must give adequate consideration to, the issues ; involved and apply proper legal standards.5 aa ; Since the Dodson standard was laid out by thé'Teith' Citéuit in’ 1990, no military habeas petitioner within the Tenth Circuit’s jurisdiétion has overcome those 1346 US 137 (1953) a 2 Sanford v. United States, 586 F.3d 28 at 31 (D.C. Cir. 2009) © eh a TY 3 Id., at 31 citing Kauffman v. Secretary of the Air Force, 415 F.2d 991: (D.C: Cir..1969) 4917 F.2d 1250 at 1252-1253 (10% Cir. 1990) dept fee 5 Id., at 1252-1253 (10t Cir. 1990) (citations omitted). ' factors and had their habeas claims considered on the merits. In contrast, the Sanford court, cited above, had ato jague reaching the merits of that military habeas claim in ‘The question:presented to this Court is: . ~ Are the Dedsan factors a vislation of the Suspension Clause and therefore an unconstitutional, bar. 0, habeas ‘for military prisoners? Furthermore, does the application of the Dodson factors by the Tenth Circuit, which has failed to allow merits review for any military habeas petition, amount to a violation of the equal protections guaranteed by the Due Process Clause of the Fifth Amendment? Lastly, has this Court's Burns full and fait consideration standard been eclipsed by changes to societal and military law over the past 71 years, thereby rendering the standard inadequate tots intended task? : . : ) 1°. BRTITION FOR A WRIT OF CERTIORARI a Petitioner, Sean A, Gray, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Tenth Circuit in this case. oy wees) PRIOR PROCEEDINGS : Gray v. Payne, 2023 U.S. App. LEXIS 32150 (10t Cir. 2023), docket/case number 233079 (appealing district. court decision on habeas petition) (at Appx. A); Gray v. Payne, 2028 US. Dist. LEXIS 76604 (D. Kan. 2023), docket/case number 233006-JWL (habeas petition) (at Appx. B); : U.S. v. Sean A.Gray, 80 MJ _ 169, docket/case number 20-0085/AR (petition for grant of review) (at Appx. C); . ,