Hennis v. Hemlick, No. 10-6400

Decided: January 17, 2012

Timothy Hennis, an enlisted Army soldier, was tried and convicted in civilian court for rape and triple murder in 1986 and was sentenced to death. His conviction was later reversed by the state Supreme Court and, on remand, Hennis was acquitted of all charges. Now free, Hennis sought to continue his Army career; on June 12, 1989 he received a discharge from the service and reenlisted one day later on June 13. In 2004, he retired.

A 2006 cold case review of the murders found Hennis’ DNA inside one of the victims and the Army recalled Hennis to active duty to stand trial via court-martial. Hennis filed for dismissal, arguing that the military did not have jurisdiction pursuant to the Hirshberg Rule that states a soldier could not be tried by court-martial for an offense that occurred in a previous enlistment, even if the person thereafter reenlisted. Hirshberg v. Cooke, 336 U.S. 210 (1949). The Army, however, argued that the Clardy Exception, whereby the military retains jurisdiction of offenses from an earlier enlistment if the soldier’s discharge occurred prior to the expiration of his service contract and for the specific purpose of immediate reenlistment. United States v. Clardy, 13 M.J. 308 (C.M.A. 1982). The district court dismissed Hennis’ habeas petition without prejudice, choosing to abstain from deciding the issue while the court-martial was in progress: so-called Councilman Abstention.

The Fourth Circuit affirmed the district court’s abstention. Without deciding whether the abstention is mandatory or discretionary, the court noted that the district judge weighed balancing factors about whether to apply the doctrine and would not overturn that judge’s discretion to abstain prior to an exhaustion of remedies through military channels. Councilman Abstention is, at its core, based on principles of comity and, finding that Hennis had not exhausted his other remedies, the Fourth Circuit affirmed the district’s habeas dismissal.

Full Opinion

-C. Alexander Cable

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