Iru THE UTIrEO SrRrrS NRVY-lvlRRIruT CoRps

Counr oF CnlmtruRl APPrRls

UNITED STATES,
APPellee

Case No. :

Related Case No.: 20080001-90

v.
Review of Petition for Extraordinary
Edwin A. Eh1ers II in the nature of a Writ under the
Sergeant (E-5) All Writs Actr 28 U.S.C. Sl-65L (a)
U.S. Marine CorPs,
APPellant

TO THE HONORABLE, JUDGES OF THE UNITED STATES

NAVY-MARINE CORPS COURT OF CRIPIINAL APPEALS

Issurs PRrsrrutru

I. Fairness in our adversarial court system relies on defense

counsel to zealously test the government's case' Ehlers'
counsel dismissed hi; Daubert qualifiea child memory forensic
expert right af ter E-overnment rested; Ieaving the
goi"r.*unt'l unreliable dispositive witness's testimony
rinchallenged on the record. wai the dismissal, without a sound
or plausible basis, a reasonable exercise of the for
customary
skill and knowledge needed to ensure a fair trial Ehlers?

II. Tit1e10U.S.C.s854(Uc},lJ)requiresthataverbatimrecordof
the trial be maintained and made, available for all Post
verdict appellate processes. Eh1ers' record is missing fou5
pages of an acci:sing witness's testimony, and material
ititements by the invLstigating agent. Did the government
violate statute and the U.S. Constitution's Fifth Amendment by
providing a materialty incomplete record of Ehlers'
proceedings?

1-
 STRTruruT oF STRruroRy JuRISDIcTIoN
Ehlers brings this motion under 28 U.S.C. 51651(a), t.he A11 Writs
Act and 10 u.s.c. 5866(c), Ar'uicle 66 of the u.c.M.J. He is unsure,
based on the Iega1 resources available to him, what form or type of
'writ' this motion should take and posits his circumstances may be a
matter of first impression. Pvt. Ehlers leaves, to the wisdom of
this Court, the question of which specific writ to provide the relief
he is requesting.

Normally an extraordinary motion to collaterally attack a

military conviction or sentence would be brought under a writ of
Habeas Corpus when a person is still in custody and his case is not
finali or under a writ of coram nobis when said person is out of
custody. Both writs have a rich and thorough history in military
case lavr.

It is well settled in military case Iaw, a writ of habeas corpus

is available until an accused's case is final under UCMJ Article 77.
As shown below Pvt. Ehlers' case was finalized in tate zOL]-. The
final normal avenue available to military prisoners is to raise their
complaints in an Article III court. However, "federal courts will
not revi.ew claims that the pri.soner failed to raise in the military
court,. watson v l,tcCotter , 782 F.2d 143 r L45 ( 10th Cir. 1986 ) . In
other words, if an issue was not raised in the military courts, it is
procedurally barred and not open for review by the federal habeas
court." (Ehlers v wilson, No. 13-cv-2555, 20L5 U.S. Dist. LEXIS
L05928 (D. MN, 2015).) The confluence of Pvt. Ehlers' circumstances
and standing military law places this Petition squarely in a gap of
the post conviction remedies available to military prisoners.
-2
 As will be established in this petit,ion, Ehlers has a "clear and
indisputable right to the extraordinary reliei requested" because of
both the legal and factual errors in his case. See Cheney v US, 542
US 367. This Court, has jurisdiction under 28 U.S.C. 51651 and
Article 66 of the UCMJ. What is unclear is which specific writ fits
Ehlers' particular set of facts and circumstances-

A dispositive circumstance of Ehlers' case is that although this

Court, in its ruling, stated it relied upon the affidavits of the
defense and trial counsel, neither Ehlers nor his counsel ever salv
said affidavits and believe no such documents exist. Thus, Ehlers'
generic ineffect.ive assistance of counsel claims have never received
a fuII or a fair hearing on the facts and merits. For more detail
please see Procedural History, below.

The first question any court asks is does it have t,he

jurisdiction to hear the matter presented? Ehlersr Ets explained in
detail on the following pages, contends this Court most assuredly
does.

Because Ehlers' petition presents an atypical case complaining of

gross errors that amount to an abuse of power, this court has
jurisdiction under the AII Writs Act (28 U.S..C. 51651(a) and Article
66(c) of the u.C.M.J. (10 u.s.c. 5866) irrespective of what writ the
review is conducted under.

3-
 It is well settled that the All Writs Act does not expand this
Court's underlying jurisdiction, but its writs are "extraordinary
tool[s] to correct a lega1 or factual errorr dll application for the
writ' is properly viewed as a belated extension of the original
proceeding duri,ng which the error allegedly transpired." (See USV
Denedo, 556 U.S. 904, 9L3-L4 (2009) (hereinafter 'Denedo II' )
(discussing military courts jurisdiction to hear coram nobis under
the A11 Writs Act. )

Although the wrj.ts do not expand this Court's jurisdiction to

consj.der "the findings and sentence as approved by the convening
authorityr', it is the appropriate method to consider Ehlers' claims
and issue a writ if it is "necessary and appropriate in aid thereof."
UCI{J Art. 66(c); United States v Denedo, 66 M.J. LLA, LzO & l-23
(C.A.A.F. 2OO8)(hereinafter oenedo I); accord Denedo II at 9L4 & 917
(accord LRM v. Kastenberg, 72 M.J. 364 (Caar 20L3) (determining that
subject-matter jurisdiction over a writ petition is established when
the harm alleged must have had the potential to directly affect the
f indings and sentence.rr Kastenburg at 368. ) fnis is appli.cable to
Ehlers because the records relied upon by the original court-martial,
and the subsequent appellate courts reviews were flawed both by a due
process jurisdictional failure and an ineffective representation
deficient under the Sixth Amendment.

In the following pages Ehlers will show how, in his opinionr this
pet,ition could be reviewed as a writ under Habeas Corpus, Coram
Nobis t ot even possibly Audita Querela. Audita querela is not
discussed or raised in the military case law available to Eh1ers.
4-
His searches show zexo ( 0 ) hits for "audita querela" in the
computerized military case law available to him. Based on Ehlers'
research this appears to be a matter of first impression in the
military courts.

Rrvrrw uNorn HRerRs Conpus

Genera1Iy, review of a conviction and sentence under Habeas
Corpus is appropriate when there is a claim that a conviction is
"contrary to, or is an unreasonable application of, clearly
established Federal Law." See Loving v US, 64 M.J. 132, 1-45
(c.A.A.F. 2006) (hereinafter, Loving rr) (Quoting 28 u.s.c. 2254(d). )
This Court has recently addressed the question of its jurisdiction to
hear Habeas Corpus petitions under the A11 Writs Actr stating:
The United States Supreme Court instructs rthat
the essence of habeas corpus is an attack by a
person in custody upon the legality of that
custody, and that the traditional function of the
writ is to secure release from iIIegaI custody.'
Similarly, the C.A.A.F. has called the writ of
habeas corpus the 'traditional remedy for
unlawful imprisonment.' (Clark v Us, 74 M.J.
826 , 827 Nuce 2oL5 ) ci-[,lE-n-s a-na quotes
( (
omitted ).

The Supreme Court has held that "Ia]n alleged error in the
original judgment predicated on ineffective assistance of counsel
challenges the conviction's validity" (Denedo II at 9l-4-15). This
establishes that Pvt. Ehlers I Sixth Amendment claim falls within the
ambit of habeas corpus review because it shows that his conviction
was "contrary to" or "an unreasonable applicatj.on of" federal law.

5-
 Eh1ers, second ground, sounding in due process and jurisdictional
matters was acknowledged as received by the Judge Advocate General's
office in mid 2008. Yet, it was never addressed in any manner by any
court, despite rules and regulations requiring it to be reviewed.
Because it has not been given a hearing of any sort, and jurisdictj-on
can be questioned at any time, this ground definitely falls within
the reach of habeas review.

Because military justice review is predicated on Article I

authority and thus limited to what is specifically granted via a
statute, review under Habeas Corpus in Eh}ers' cage may not be the
appropriate avenue for his claims. The C.A.A.F. addressed where and
when military courts habeas authority ceases, stating:
Whilethecaseremainedpendingwithinthe
. military justice system, Ipetitioner] had a
number of options, including filing a habeas
petition in our court or awaiting action by the
presidentbeforeseekingjudicialreview.He
elected to file a petition for writ of habeas
corpus in our court. See Loving v US, 68 M'J' L'
(citing
a (c.A.A.F. 2oog) (hereina@)
Loving II at L34)(emphasis in the original)'
As explained below, Ehlers' case became finalr ds defined by UCMJ
Art. 71, in late 2OLL, see Procedural HiStOry, infra. Ehlers' case
has therefore ,slipped the bounds of military justice authority'
following the majority's logic in the above case's review under
habeas appears to be not available. However Lf, in the wisdom of
this Court, jurisdiction lies in a review of these claims under a
writ. of habeas corpus, Ehlers respectfully requests jurisdiction be
determined to lie therein.

6-
Rrv rw uNnrn CoRRtq Noe t s
r

If insteadr the Court determines that EhIers' finality moves

jurisdiction outside the scope of a review under habeas, Ehlers
requests the Court to consider a review under a writ of coram nobis.

Recently this Court's sister court, the Army Court of Criminal

Appeals, extrapolated a case that is procedurally similar to Ehlerst.
See Gray v US , 76 M.J. 579 (C.C.A. 2OL7l. Mr. Ronald Gray is
confined and awaiting imposition of a death sentence. Like Ehlers,
his case became final years after his court-martial and many
appellate proceedings. AIso similar is the fact that an Article III
court has reviewed the case. Albeit Ehlers' Article III review was
not on the fact specific claims raised now. The Gray court
determined the following prerequisites are required to be conducted
for review under coram nobi.s:
(f) tne alleged error i.s of the most fundamental
character; (21 no remedy other than coram nobis
is available to rect.ify the consequences of the
error; (3) valid reasons exist for not seeking
relief earlier; ( ) the new information presented
in the petition could not have been discovered
through the exercise of reasonable diligence
prior to the original judgment; (5) tne writ does
not seek to reevaluate previously considered
evidence or legal issues; and (6) the sentence
. has been served, but the consequences of the
erroneous convj-ction persist. See Gray v US, 76
M.J. 579, 587-88 (c.C.A. 20L7 ) relying on Denedo
T, 66 M.J. at L26 (citing Morgan, 346 U.s. at
5L2-I3; Loving r, 62 M.J. at 252-53) (remaining
citations omitted).
A discussion follows appfyin! each of these threshold criteria to
Ehlers' specific circumstances to help this Court determine his
eligibility for review under coram nobis.

7-
 Firstr the alleged errors --denial of the Sixth Amendment
guarantee to effective assistance of counsel, and lack of
jurisdiction because of a nonverbatim record violating due process
guarantees-- is of the most fundamental character. See Morgan, 346
U.S. at 5L2-L3 (coram nobis appropriate to remedy denial of Sixth
Amendment right of the assistance of counsel). As both of these
claims present a "'matter of law' 'with respect to the tguiltyl
findings . . . Ers approved by the [court-martial] and as affirmed . .
. by the [convening authority and] Court of Criminal Appeals.' The
C.A.A.F. had subject-matter jurisdicti-on to review the N.M.C.C.A.'s
denial of respondent's petition challenging the validity of his
original conviction.r' (Denedo It at 556 U.S. 9L5)(citations and
quotations omitted). As noted abov-e, jurisdiction can be challenged
at any time.

Second, there is no other adequate remedy available, outside of

one under the AIt writ,s Act, because Ehlers'claims have not received
"fu11 and fair" consideration within the military court system, and
no Article III court will consider the claims until such review has
been concluded by a first-Ievel standing court t,hat approved the
findings and sentence at issue. See generally Denedo I, 66 !1.J. at
L27. If this Court determines that Ehlers' circumstances preclude
review under any other writ then coram nobis is the only forum
available.

Thirdr valid reasons exist for not seeking relief earlier.

Ehlers' first claim is predicated upon a recent finding in the D.C.
Circuit Court where the appellate court concluded trial counsel's
8-
7.

failure to obtain and present expert mental health testimony was

constitutionally deficient. See US v Laureys, 866 F.3d 432 (D.C.
Cir, May 9, 20L71.

Additionally, Ehlers' second claim regarding his trial record

sounds in questions revolving around the jurisdiction of his court-
martial and the resulting appellate and post conviction process. See
uS v Davenport, 73 M.J. 373, 376 (C.A.A.F. 20L4 ) (tfre requirement for
a verbatim record is a "question of jurisdictional proportionu ).
This ground.relates back to a matter raj.sed in May of 2008 yet, never
litigated. It, ''is approprj-ate to challenge this jurisdictional
question now.

Fourth, Ehlers' first claim regarding ineffectiveness was not

ripe until the D.C. Court's ruling brought Ehlers particular fact
pattern to light. That pattern being that the deficient
representation which infected all stages of Ehlers' trial, appeal,
and post conviction was the failure to call a prequalified expert,
Dr. Esp1in. This is especially true since any allegations of
ineffective counsel raised previously was never refuted by defense
counsel. See Procedural History, infra.

courts have a continuing obrigation to ensure they had

jurisdiction and relief under the All Writs Act and Article 66(c) is
the only avenue available to Ehlers to test his second claim; his
second claim is timely under both the third and fourth criteria of
Denedo I and Loving I.

9-
 Ehlers' diligent pro se litigation of the numerous procedural,
constitutional, and factual errors in his case has kept any
procedural barriers at bay. This is especially true in light of his
conti.nual claims regarding innocence of the charge of sodomy. Please
see attached Exhibit 1 Statement of Angela M. Ehlers chronicling this
case's journey through the US Military and Civilian justice system.
This document provides, in detail, the numerous errors --statutox!t
ethical, and constitutional-- that have plagued Ehlers' case since
the first allegations surfaced.

fifthr ds noted above --and detailed below-- no court has

decidedr oll the merits, whether Ehlers' counsel was ineffective for
dismissS.ng --wit,hout testimony-- his Daubert approved expert witness
and its direct effects on ttre tria1, appeal, and post conviction
proceedings. Nor have any proceedings considered the jurisdictional
impact of the materially deficient record.

Ehlers' custody status on the surface fails the Sixth Denedo I

and Loving I criteri-a. For this reason review under another writ
authorized by the AI1 Writs Act may be appropriate. However, if this
Court determines that coram nobis is the correct forum to revi.ew his
claims he request,s such review. If not, then Ehlers asks the Court
consider any of the other writs available under the A11 Writs Act and
UCIvIJ Article 66.

L0
Rrvrrw uruorR AuotrR SueRrlR
Audita querela is an extraordinary writ that operates within the
equitable authority of the courts. To date it has had no appearance
in the military justice system that Ehlers can find. Audita querela
is an ancient writ that started as a cure for defects in a debtors
judgment aris j-ng subsequent to the rendi-tion of the judgment or
execution, it has since metamorphosed into an extraordinary writ
attacking a criminal judgment because of a legal defect discovered
during the ongoing execution of said judgment.

Since this appears to be a matter of first impression within the

Military CourtsT €r review of the Article III court's relevant
decisions is warranted'. A district court succinctly reviewed how and
where a writ of audita querela should be used in a criminal context.
Although the L946 amendments to Rule 60(b) of the
Federal Rules of Civil Procedure Abolished the
ancient common law writs of coram nobis and
audita querela, "federal courts sti1l have the
authority to grant writs of audita querela,
generally pursuant to the AIl Writs Actr 28
U.S.C. S1651." Eielonu v I.N.S. Dep't Homeland
Sec.r 355 E.3d 539, 545 (6th Cir. 2004)(citing
Morgan v United States, 346 U.S. 502t 506-510, 74
S. ct. 247, 98 L. Ed. 248 (1954))(holding that
courts stil1 have authority to issue writs of
coram nobis in collateral criminal proceedings),
"Audita querela is an equitable remedy reserved
for only the most extreme cases." Id. at 552.
Other circuits have explained that the purpose of
making the wri,t of audita querela available in
criminal cases is to fill in gaps in the system
of federal post-conviction remedies. See, e.g.
Massey v United States, 581 F.3d 172, L74 (3rd
at the writ of audita
querela "is available in criminal cases to the
extent that it fills gaps in the current system
of post-conviction relief" ); United States v
HoIt, 4L7 F.3d LL72, LL75 (1Ithm
. teaching of Morgan is that federal courts may
properly fill the interstices of the federal post

L1_
 conviction remedial framework through remedies
available at common law. " ) ; United States v
Valdez-Pacheco, 237 F.3d LO77,m
ffiommon 1aw writs survive only to the
ext,ent that they f il1 'gaps' in the current
systems of post-convictj.on relief. " ).
Many courts apply the same criteria to both writs of coram nobis
and audita quereta except for the cust.ody criterion. For coram nobis
a person must be out of custody; for audita querela in custody.

Ifreview by other writs is unavailing, Ehlers respectfully

request,s this Court to consider his petition under the audita querela
standard using the first five criteria denoted in his coram nobis
review request, supra because he meets the in-custody requirement of
audita querela.

JuR t so I ct t ott Cotitct-us I otrt

No matter what eligibility criteria is usedr this court has the

requj.site jurisdiction to hear Ehlers' petition under UCI,IJ Article 66
and the All Writs Act. Even if the court reviews this as a generic
'BilI of Review, ' aS long as Ehlers' alleged errors present
cogni.zable claims, defined as those having the "potential to directly
affect the finding and sentencerrr jurisdiction rests with this Court.

In Denedo II the U.S. Supreme Court settled how, where, and when
the military courts of appeal could extend their jurisdiction under
the A11 Writs Act. The majorit,y concluded its ground breaking
opinion with this paragraph:
The result we reach today is of central

L2
 importance for military courts. The military
justice system relies upon courts that must t.ake
aII appropriate means, consist,ent with their
statutory jurisdiction, to ensure the neutrality
and int,egrity of their judgments. Under the
premises and statutes we have relied uPon here,
the jurisdiction and the responsibility of
military courts to reexamine judgments in rare
cases where a fundamental flaw is alleged and
other judicial processes for correction are
unavailable are consistent with the powers
Congress has granted those courts under Article I
and with the system Congress has designed.
Denedo II 556 U.S. at 9L7.
In testing for the jurisdiction to hear a matter, the threshold
criteria establishes eligibility for review, not the propriety of the
merits of the requested writ. As shown above, this Court most
assuredly has jurisdiction to hear Ehlers' claims of factual and/or
lega1 errors that permeate his entire criminal Process.

Ehlers is open and willing for this Court to construe this

petition under any tool it has in its'jurisdictional tool kit'as
long as that tool allows a'full and fair'merits review of his lega1
and factual errors that could result in the relief he seeks.

with the above in mind, this court has the jurisdictj.on to hear
the pet,ition and conduct a merits review of the claims therein.

L3
 SrRremenr oF THE CRsr

. Ehlers was convicted, contrary to his pleas, by a military judge,

sitting as a general court-martial , of violating Articles L25 t L28
and 134 of the UCMJ on August 2L, 2007. He was sentenced to 25 years
of confinement, reduced to 19 years by the convening authority, and
forfeiture of all pay and allowances with a reduction to E-L.

In late May of 2008, Angela Ehlers, the petitioner's wife mailed

to the Judge Advocate General a letter on behalf of her husband in
which, amongst other issues, she specifically raised the nonverbatim
record of trial, showing where and how it was substant,ially
deficient. See Attached Exhibit 2, at page 1. This letter was
acknowledged by the Navy and referred to the Navy-Marine Corps
Appellate Group on June 9th, 2008. See /Id aX 7.

In ,fune of 2009, a divided panel of this Court affirmed the

findings and sentence after revS.ewing five assignments of error
includi-ng a generic ineffective assistance of counsel. From the
record it appears the Court relied upon "the affidavits of the trial
and detailed defense counsel which are attached to the record." See
United St.ates V Ehlers, No. 2008001-90, 20LL CCA LEXIS 554, slip at 2,
unpublished. In April of 20L0, the Court of Appeals for the Armed
Forces denied Ehlers' petition for a grant of review. See US v
Ehlgfg, 69 M.J. 89 (C.A.A.F. 2010). The Supreme Court denied a writ
of certiorari. See Ehlers v US, 131 S. Ct. ,536 (2010).

L4
 of procedural import are two relevant facts: (a) xeither Ehlers
nor his counsel ever received the alleged affidavits of trial and
defense counsel and, based on belief and information, posits they do
not exist. See Attached Exhibit 3, Affidavit of Edwin A. Ehlers II.
Because the affidavits the Court relied upon eit,her do not exist
(factual error), or were never provided the defense (Iegal error),
this Court's June 30, 2009 ruling was neither fuII nor was it fair;
(b) Despite being brought to the government's attention, there has
never been any investigation, ]et alone court ruling, regardj-ng the
nonverbatim record of trial.

On September 13, 20L1 the Commander of the U.S. Navy, pursuant to

Article 7 L(c ) of the UCMJ exe'cuted the remaining part of Ehlers'
sentence and finalizing the case under military law. See Attached
Exhibit 4, General Court-Martial Supplemental Order No. VLL'0299.

Post conviction or extraordinary relief in the form of habeas

corpus was denied in December 20LL. In this pro se filing, Eh1ers
raised seven claims: (l-) a Fossler claim for failure to state an
offense i (2 ) violation of Eh1ers' Speedy Trial rights, ( 3 ) abuse of
discretion by the military judge for not dismissing the charges for
interrogation errors by the special agent, (4) a Brady error; (5) tne
military judge's findings were ambiguous; (6) N.c.I.S. failed to
follow required reporting regulations; and (7 I the N.C. I. S.
investigating agent tampered with the evidence. See E_rt!_g_EE_J_gq7 No.
200800190 (NUcca 201.L).

15
 Civilian court review commenced with the pro se filing of a 28
U.S.C. 52255 motion in the Southern District of California on April
27, 20LL. This was denied without prejudice because that court did
not, have jurisdict.j.on to hear the case and referred Ehlers to file a
motion under 28 U.S.C. 52241- to his Iocal district court. (See
Ehlers v US, 20LL U. S. Dist. Lexis LL52428, wL 4626L63, #1-l--cv-882
(so cA 10-6-2011). )

After a transfer to Sandstone, Minnesota, Ehlers, following the

Southern Districtrs instructions, filed a motion under 28 U.S.C.
5224L in the U.S. Distrj-ct Court of Minnesota raising Brady
violations, Sixth Amendment violations, actual innocence, and
inconsistent testimony claims. These were all denied by the adopted
report and recommendation in August of 20L5. The civilian court,s
reasoning was based on either the claim having already been heard in
the military justice system --incorrectly deeming the review to be
'fulL and fair'-- or that the district court could not hear them
because the claims had not yet been raised in the military courts and
must be first reviewed by them. (Ehlers v Wilson, 2OL5 U.S. District
Lexis 105928, 13-cv-2555 (D. MN.r 2015).

Ehlers is currently confined in the Federal Bureau of prisons

facility located in Sandstone, Mj-nnesota (FCI Sandstone). He is
awaiting mandatory supervised release via good time and work
abatement on October 26,2018 at which time he will transfer to U.S.
Parole Commission custody until August 20, 2026.

16
 BnIrrs RUN ASSIGNMENTS Or ERROR

This petition is premised on two grounds of extraordinary

constitutional errors sounding in ineffective assistance of
counsel (Sixth Amendment) and due Process (Fift,h Amendment).

I. Ehlers' Defense Counsel Failed in Eis Duty To Test the

Government's Case, Prejudicing Ehlers By Leaving Unreliable
Dispositive Testimony Unchallenged On the Record lVhich Caused
Ehlers harm at the Tria1 and Post verdict Stages of His Case.
This ground establishes how the detailed defense counsel, Lt.
Melocowskyr failed in his duty to his clientr the court-martial,
and the appellate processes when he decided, without a plausible
reason, to send his forensic expert witness home right after the
government rested t,heir case, but before the defense case was
presented.

With detailed counsel resting his case-in-chief without

testimony or evidence being presented there was nothing for the
appellate panel to test the government's case against because
appellate review is constrained only to that which is within the
'four corners' of the case(s)-in-chief presented at trial. (US v

Eh1ers, 20LL CcA LEXIS 554, slip at 4 & 10)(quoting US v Beatty,

64 M.J. 456, 458 (C.A.A.F. 2007).1 This rconstitutional error' by
detailed defense counsel left the record barren of any evidence to
contradict or counter point the government's version of the case.
This error consLrained Ehlers' ability so that "he did not have
the opportunity to make [a record of trial] because of the absence
of the guiding hand of counsel.rr US q Boone, 49 M.J. L87r 198-99
(c.A.A.F. .1998).
L7
RrlrvRrut FRcrs
What psychology today teaches regarding children's recaIl of
traumatic memories is counter intuitive to what most adults
experience in their memory recall. Ehlers detailed defense
counsel requested, and received, permi.ssion to: A) employ for
pretrial perpetration a 'forensic' psychologist with extensive
knowledge and experience in the field of childhood memories; and
B) prequalified this expert, under Daubert, to aid the jury
members in understanding the subtleties of forensic psychology
assisting them to put the government's dispositive wj.tnesses
testimony into a clj-nical context. (detailed below)

It should be noted that although Ehlers has raised charges of

general ineffective counsel in his pri-or filings, to the best of
his knowledge, neither trial counsel nor detailed defense counsel
rebutted, under oathr dDy allegations of ineffectiveness on the
part of defense counsel. (Exhibit 3, Affidavit of Edwin Ehlers.)

The defense settled on challenging the government's case based

on the veracity of the victims testimony being an accurate
rendition of what happened to her -verses- if she was reciting
what she had been taught to say through memory contamination by
the influence of care givers and'professionals'in the course of
the investigation. Over a sPan of approximately four years the
accuser's story was a moving target that was a jumble of people,
places, and actions. It was never the same twice. (Hearing
transcript at 181-184.)
18
 Lt. Melocowsky located Dr. Esp1in to assist with this complex
case via the National Child Abuse Defense and Resource Center.
(Appellat,e Exhibit xxII at page 8. ) Dr. Esp1in was a highly
regarded expert forensic psychologist in child witnesses who had
decades of experience and hundreds of professional publications,
articles, books, and appearances to his credj-t. (Vita Appellate
Exhibit xxlv at l-5-30.) The defense requested Esp1in's expertise
to help with rrmatters of child development and maturity, sex crime
investigation, and traumatic childhood memoriesr" because the
accuser's story was constantly evolving and the defense wanted to
ensure cross examination of the child witnesses was with "due
care." Lt. Melocowsky wanted Esplin to 'rconduct a comprehensive
evaluatlon of the child" and the "underlying psychological issues"
of child sexual abuse. (Appellate Exhibit xxII at 5. ) The
knowledge and expertise of Dr. Esplin was not challenged by the
government, only the need for additional preparation time. They
specifically did not want the approval to include time for him to
testify, only to rassist with trial.' (appellate Exhibit xxlII. )

The request for additional preparation time was argued June

2L, 2007 and later approved by the military judge. Dr. Esp1in
reviewed the case, the investigative materials, the investigatorts
forensic interview, and then he conducted an interview of the
accuser. Based on Esplinrs information and recommendations Lt.
Melocowsky filed a Motion to tender Dr. Esprin as an expert
witness to testify during the defenses case in chief. Counsel
indicated that Dr. Esplin:
19
 will assist the trier of fact in understanding
forensic psychology as it relates to children.
Specificatlyl Df,. Esplin's testimony will
touch on three major areas: autobiographical
memory, sources of external influence that can
lead to genuine but mistaken beliefs, and post
event memory contamination. (App. Exhibit
XXIV at 11. )
Iater counsel indicated that Dr. Esp1in's testimony would be
logically relevant I I to explain to members
how a child reacts to questions from adults
about a sensitive subject as time Passes.
Behavior in these situations varies and may be
counter intuitive and Dr. Esplin's testimony
will help to put such behavior in perspective.
(/rd aE 11 a 12.)
Esplin's testimony would be proffered to support of the defense's
case in chief, that being that the victim's:
memory [was not reliable due to],
suggestibility, and post event memory
contamination[. This would be established] at
trial. As such, Dr. Esplin's testimony will
be necessary to explain those concepts to the
members who cannot be expected to underst,and
the subtleties of forensic psychology. (/Td
at 13 a 14.)
The court approved Dr. Esplin under the Daubert v l,ierrell Dow
Pharm., Inc., 509 U.S. 579 (1993) criteria to testify as an expert
in Child assault interviews and behavior on the part of the
alleged victim. (App. Exh. XXIV at 4 and Trans. l-81-l-88. )

Trial commenced August 20, 2007 with the government calling

supporting and merits witnesses culminating with Pvt. Ehlers
accuser, I'[s. Hannah Skovranko being placed on the stand. Duringt
her approximate hour of testimony there was 34 minutes of breaks
interspersed with Hannahr s testimony contradicting itself
regarding place, frequeflclr and witnesses present. The testimony
was not corroborated by any other witness, and was in fact
20
directly contradicted by a few. A11 the various versions of
Hannah's testimony on the stand was a mish-mash of the statements
she gave officials and her parents. These stories never matched,
in a coherent manner, her prior statements or testimony.

from the first outcry until the sitting on

Up until the trial
the stand Hannah alleged Ehlers had intercourse with her and
digitally penetrated her. (triat Appellate Exhibit vII at 9-L6;
and Testimony of Interview hearing transcript at 24.) A11 of a
suddenr 1l€df,s later, her story changes to one of only Ehlers
masturbating himself and oral sex. (Hanna's Testimony transcript
at 347/48 and 354.) on the stand Hannah did not mention any other
form of sex even when asked open ended questions like "TeII us
what lvlr. Eddie did." (Trans. at 347.) Hannah was never sure how
often the abuse occurred, from telling some people it happened
many times, to telling Dr. Esp1in it was a "single incident that
happened the.last time she saw Mr. Eddie." ( Daubert Heari.ng at
151_. )

Throughout the years Hannah's story was some what consistent

in three areas: (a) it happened 'upstairs, I (b) in either the
bedroom or bathroom, and (c) with other people present.

Her first consistent area was that the abuse happened

'upstairs at, llls. Gloria and Mr. Eddie' s house' ( Trans. at 348 ,
350, 351 and in the initial video interview, see Hearing
Transcript at 104-105. ) Hannah changed the location back and
forth between the bedroom, bathroom t ot maybe both but it was
always upstairs. (Compare Trans. 350/51 to 354. ) yet, the
2I
accuracy of her beliefs were belied
witness's testimony who statedr oD the
the abuse allegedIy occurred was a
Ehlers' ex-wife's testimony (Trans. at
testimony (Trans. at 326/271.
by the governmentr s own
stand, that the home where
single story home. (See
260) and Hannah's I,lother I s

second, was which room the abuse occurred in varried. rt

wavered between two locatj.ons upstairs either in the Ehlers I
bedroom (App. Exhibi.t x at 72 and trans. at 35L); or in their
bathroom 1/Ld); or maybe in both the bedroom and the bathroom
(trans. at 354). When the judge realized the story was different
from what she had just testified to he asked her ,,Hannah, do you
remember Ithe sexuar abuse in the bedroom]?" she responded ',Not
rea11y." (Trans. at 354.) Yet, a few minutes later when asked by
the judge was she sure about the oral abuse she respond ,,yes,
sir. " when asked why she was sure her response was "Because when
I was little I knew that he did it because I saw him', (Trans.
357 ).

Third, Hannah consistently said other people witnessed the

abuse ( Mrs. Ehlers walked in on ' it, ' Meri.ts Trans . at 351 ,
Hearing Trans. at 9L; or 'Jamesr --a ten year otd boy-- was
present. (/Id at l-04.) Once again Hannah's recollection and
beliefs were either changed by her or denied outright by the
government I s own witness' s. ( See former lv1rs. Ehlers categorically
denying being present, Merits Trans. at 269/70; and her prior
interview by Ncrs Agent Muelenburgr App. Exbibit xxvrr. )

22
 Hannahrs performance on the stand could charitably be
classified as inconsistent, at worst untruthful. Because of the
Iack of consistency in Hannah's story it was essential for someone
to help the trial and appellate judges place it in context.
Everyone wants to believe a small childr 1ret the defense was

correct to question the accuracy of her beliefs and memories and

with the many uncorroborated, and/or changing facets of Hannah's

story the fact remained that someone had to explain how and why
her memories and beliefs may not reflect what actually happened.

The current Mrs. Ehlers (Angela M. Ehlers) was present

throughout the governmentrs presentation of its case in chief on
August 20th , 2007. She spoke with both Lt. Melocowsky and Dr.
Esplin, both assured her Dr. Esplin was going to testify the next
day during the defense's case-in-chief. She witnessed Dr. Esplin
become excited during Hannah's testimony and spoke to the defense
counsel as soon as the testimony was over. The next day, August
21st, Dr. Esplin was not present, when Mrs. Ehlers asked counsel
where the doctor was she was told --without explanation as to
why-- he got on a plane the night before and would not be
returning to testify on Pvt. Ehlers behalf. (See attached Exhibit
5, Affidavit of Angela Ehlers.)

RrlrvRrur Lnw

It is weII established that military defendants are entitled

to the effective assistance of counsel during the pretrial stages,
trial proceeditrgs, and post-trial processing of the court-martial.
23
In testing for effective assistance the military courts have
generally relied upon both the Sixth Amendment and Article 27 (a) ,
U.C.M.J. rights to cOunsel. In US v Rivas, 3 M.J. 282 (C.M.A.
1,977 ) tne court stated that under Article 27 (a ) tfre accused is

entitled to a reasonably competent, counsel, that is one who

exercises the 'customary ski1l and knowledge' that normally
prevails wit,hin the 'range of competence' demanded of criminal
defense counsel. Counsel is presumed to have exercised reasonable
professional judgment and rendered adequate assistance. (US v
Scott, 24 !1.J. 186 (C.M.A. 1987).) fne burden rests upon the
accused to demonstrate that his counsel did not meet this standard
and that he was thus denied effective assistance of counsel. (US v
Gutierrez, 66 Ivl.J. 329 (C.A.A.F. 2008).)

The accompanying Sixth Amendment test for effective counsel

was set out by the Supreme Court in Strickland v Washington, 466
US 668 (1984). First, the defendant must establish that his
counsel performance was deficient --that the performance fel1
below an 'objective 1evel of reasonableness'-- and therefore
counsel was not acting as counsel within the meaning of the Sixth
Amendment. (us v rgrry, 61 I{.J. 72L (nuce 2005). ) Second, the
defendant must establish prejudice: but for counsel's
incompetence, there is a reasonable probability that the results
of the trial would have been different. Strickland, at 689.
Whether counsel's actions prejudiced the accused is a mixed
question of law and fact. (US v Mahler, 49 !1.J. 558 (NMCA L998).)

24
 The Strickland Court focused the prejudice test on whether the
accused received a "fair trial," definded dsr "a trial whose
result is reliable." (/Id.) More recently the Court of Appeals
for the Armed Forces has shifted to the language in Lockhart v
FretwelI, 506 U.S. 364 (1993) which seems to indj-cate that the
real focus may not be on the question regarding the outcome, but
instead did the accused receive a trial that was fundamentally
fair? In LocEher!, the Supreme Court opined that:
IE]ocusing solely on the mere outcome
determination, without attention to whether
the results of the proceeding was
fundamentally unfair or unreliable, is
defective. To set aside a conviction or
sentence so1e1y because of the outcome would
have been different but for counsel's error
may grant the defendant a windfall to which
the law does not entitle. Lockhart at 369.
rn us v Polk, 32 Il[.J. 150 (C.[,I.A. 1991) tne court noted that
there is three questions to be answered: (1) First, are the
accused's allegations true, and if they are, is there a reasonable
explanation for counsel's actions in the case? /Id at l-53; (21 If
the allegations are true, did the leve1 of advocacy fall
measurably below the performance IeveI ordinarily expected of
fallible lawyers? /Idi and ( 3 ) If the ineffectiveness of counsel
is found to exist, is there a reasonable probability that absent
the errors, the fact finders would have had a reasonable doubt?
/rd.

It is well accepted that an effective attorney acts as a

diligent and conscientious advocate on behalf of his cli-ent.
Counsel is neither diligent nor conscientious if he, without a
plausible reason, fails to call a critical witness. A military
25
 s Constitutional and codal right to effectj,ve assistance
accused'
of counsel is "probably the Paramount right in ensuring that the
adversarial system functions Properly. " (US v Mazza, 66 Ivl.J. 470,
474 (C.A.A.F. 2OO9).) To 'function properly' the strategic and
tactical decisions of the detailed defense counsel must have a
sound and plausible basis. See Rivas 3 ['lJ at 282. If however,
"defense counsel's tactic lacks a ptausible basis, counsel will
not have exercised the skill, knowledge, t I diligent, and
conscious advocacy demanded of a competent criminal defense
attorney. " US v Ennis , L990 CMR LEXIS 1463 (relying on
Rivas)(accord us v Kelly, 32 I\'1.J. 813, 824 (N.IVI.c.c. 1991).)

Without a proper testing of the government's case --within the

crucible of our adversarj-al system-- an accused cannot be said to
have received a fair or reliable trial. Simplyr if the
adversarial testing breaks down then any notions of fundamental
fairness or reliability flies out the window. Fairness is tested
at each stage of an accused military criminal process. The Army
Court of Criminal Appeals analyzed the effects of a defense
counsel's failuie to create a record of mitigation at sentence
declaring it a violation of the servi-ce member's rights because
his counsel "rested without presenting a sentencing CdS€.rr US v
Aguigui , 2OL6 CCA 669, HeId (CCa 20L61. Although the case is not
binding here and it is regarding a failure at sentencingr its
reasoning and anatysis exemplifies Ehlers cause at bar:
Ineffective assistance of counsel at the
sentencing process can occur when counsel
fails to introduce evidence that would be of
value to the accused in present,ing a case in

25
 extenuation and mitigation. Boone, 49 M.J. at
!96. Counsel's failure to present matters in
extenuation and mitigation during the
sentencing phase of trial "raises concerns
about a bieakdown in the adversarial proc€ss.'l
US v Weathersby, 48 tI.J. 668, 67L (Army Ct'
m). rn these situations the
record of trial will likely not include the
evidence that counsel should have presented,
but did not. Boone, 49 M.J. at L97. when
this happens, thEre is no record f rom which we
can detJrmine the sentence the court-martial
would have imposed absent the error. /rd. at
198-99' see also US*7 v Sickels, ARI4Y 20110110,
2OL3 CCA LEXIS 563, (Army Ct. Crim. ApP' 23
Jul 2OL3) (mem. op. ) "where defense counsel
(
fail to make adequate investigation of
possible evidence in extenuation and
iritigation and fail to present any evidence in
sent,encing at trial, the sentence may be
unreliable and may require a rehearing on
sentence as a result. " ) where "the record
does not contain the evidence omitted by the
constitutional errorrr an appellant "must have
the opportunity to make the record that he did
not have the opportunity to make because of
the absence of the guiding hand of counsel. "
Boone, 49 IvI.J. at 198-99.
As wil] be shown below Lt. Melocowsky's unsupPortable decision
to not call his Daubert qualified forensic psychologist, Dr.
Esplin, created a breakdown in the adversarial testing Process
that left, a record of trial void of critical, dispositive evidence
and testimony rendering Ehlers trial fundamentally unfair and
would have resulted in a different outcome at either the merits or
appellate stage.

ANRr-vsts Applvlrue Lnw Rno FRcrs

As applied here, without a plausibte basis and sound reason
for not calling Dr. Esplin, detailed defense counsel failed in the
bxercise of the ski}l, knowledge, and conscious advocacy required

27
to provide pvt. Ehlers with a fundamentally fair Process at each

critical stage in his criminal proceeding'

Polk criteria 1(a) Ehlers, Allegations Are True Because They Are
Based Predominately on The Record of Trial.
The majority of Pvt. Ehlers allegations are culled from the
Record already before the court, Pretrial hearing, st^'orn
testimonyr and the rulings in his case, l{ilitary records, and two
fully supportable affidavit,s. Any expansion of the record can'
and should, be performed via a Dubay hearing in which testimony
and evidence can be provided to substantiate his allegations.
This hj.gh reliance on the record with readily provable additional
evidence establj.shes that Ehlers' unrebutted allegations are
truthful.

PolkCriterial(b}NoPlausibleBasisorExplanationExistsfor
Lt. Melocowsky's Actions-
At the time of Dr. Esplin's departure Lt. Ylelocowsky only
comment was that "Dr. Esplin had got on a plane the night before
and would not be returning to testify on Edwin's behalf"'The
Lieutenant never mentioned anything else regarding Dr. Esplin'
see attached Affidavit of Angela M. Ehlers, Exhibit 5.

The record is void of any reasons or justification Pt€r

during t ot post the merits phase of the trial as to why detailed
defense counsel dismissed Dr. Esp1in and rested the defense
without generating any evidence or .testimony on the record'
Additionally, to the best of Ehlers knowledge and belief, there is
no record that indicates or proves Lt. Melocowsky had any basis'
28
yet a plausible or reasonable one, to dismiss Dr. Esplin wit,h no
testimony allowing Hannah's unreliable, dispositive, test,imony to
go without a forensic perspective explaining the psychological and
contextual basis of why it might be a genuine belief but not an
accurate or factually based one.

Polk Criteria 2 Melocowsky's Advocacy FeII Well Below the

Customary Skil1 and Knowledge Standard When He
Failed to place Dr. Esplin's Expert Testimony On
The Record to HeIp the Trial and Appellate Judges
Place Hannahr s testimony In Proper CIinical
Context. Thus, creating a failure in the
Adversarial Testing process.
Hannah's TestS-mony was dispositive to the government's cds€r
without it, they had no case and the Sodomy Charge would have been
dismissed. See llearing Trans. at 253.

Dr. Esplin was already qualified to testify as an expert under

Daubert to help the fact finder: (a) understand the intricacies of
forensic psychology as it relates to autobiographical memory in
children; (b) tnat genuine belief does not equate to accurate
testimony; and (c) how the influence of high status adults could
contaminate a childs memory over a period of time. This
testimonyr if provided, would have put Hannahrs statements into
proper context allowing both the fact finder and the reviewing
authorities to place appropriate weight on them instead of relying
upon the misconceptions regarding memory present in society.

Faj-lure to call a witness, without a reasonable basis to do so

is a tactical error that does not comport with notions of

effective assistance of counsel or the adversarial testing process
29
 I

as mandated in the Sixth Amendment. This Court very recently

parsed the relevant case law regarding the calling of witnesses
and" tactical decisions by defense counsel, concluding that:

'A trial defense counsel's decision on whether

to call a witness is a tacti.cal.r US v Akbar,
74 M.J. 364, 390 (c.A.A.F. 2orsJTEfGlEfon-s
omitted). Strategic or tactical decisions made
by counsel will not be second-guessed on
appeal unless the appellant shows specific
defects in performance t,hat urere unreasonable
under prevailing- professional norms. US v
rqazza, 67 M. J. al o , 475 ( c.A.A. F. 26T-9T;
ffiEI6fore, in order to prevail, the appellant
has the heavy burden of establishing that his
TDC's tactical decision to forego calling
witnesses was unreasonable. See US v Datavs,
7L M.J. 420, 424 (C.A.A.F. zoizt-Ey
Gardiner t 20L7 CCA( 77 4 N.IvI. C. C.A. L2-28-
Z6Tffiphasis added ) .
A tactical decision is unreasonable "when it occurs at a
critical point where action is compiled by the situation --[here,
when attorney lvlelocowsky did not call Dr. Esplin, a critical
dispositive witness asl there is no realistic strategic or
tactical decision to make but [to call said witness]-- then the
accused has been denied 'the exercise of the customary skill and
knowledge that prevails...' within the range of competence
demanded of attorneys in criminal cases . t " Rivas , 3 l1[. J. at 289
( quoting US v Walker , 2L C.M.A. 376, 45 C.M.R. 150, L52 (L972) ) .

See also Mcllann v Richardson, 379 U. s. 759, 770'7L (1"97 0 ) . " See
US v Weathersby, 48 M.J. 668, 67L n.4 (aCCa, 1998).

Counsel's failure was "the sort of serious blunder that will

single-handedly support a Strickland c1aim. rt rr I T ] here was some
indication that trial counsel failed altogether to appreciate the
.benefits of the relevant and appropriate mental health testimony"

30
that would have put Hannah's testimony into forensic context.
Laureys 866 F.3d 432, slip at L4 (quotation marks and citations
omitted. )

During trial preparation Lt. Melocowsky understood the

critical impact Dr. Esp1in's testimony would have on Ehlers case,
he worked hard to get Esp1in approved as an advisor and a Daubert
expert. Because of this we have a window into some of what, Dr.
Esplin would say if put on stand at the merits phase.

Failing to call Dr. Esplin was a tactical error without a

sound or reasonable basis. Because, if Lt. Melocowsky had call
Dr. Esplin the record would contain the following, if not more, to
place Hannahrs testj.mony in proper context:

Dr. Esp1in would have explained how Hannah's testimony was

riddled with'confabulations' such as "when I was Iittle I knew
that he did rt because I saw him" (Trans. at 357. ) The
'confabulationsr were created by the circumstances and actions of
Hannah's parents, the investigators, the length of time, and the
number of interviews she was subjected too. Dr. Espline would
have related these circumstances to st,udies and proven methods
showing that Hannah was quite susceptible to having her memory
altered. (Confabulation is a term defined by Dr. Esplin "where
you may ask a child a question and they don't have an independent
memoryr so they try to answer the question and they may fill in
with their best estimate." (Daubert Hearing Transcript at L47-48.)

31
 According to Dr. Esplin , 36 months to first grade, Hannah's
age group, is "the most vulnerable age group, suscePtible to
"memory alterat,ions or genuine but mistaken belief. " (Hearing at'
146. ) He would have dj.scussed how the circumstances present in
this case --Hannah's age and the "repeated questioning by people
that may not be an exPert on how they question a child, bias
interviewerS, and emotionally toned interviewsrr-- make any
resulting memories highly susceptible alterations making genuine
memories mistaken beliefs without accuracy. (/Id aL L47.)

Dr. Esplin would have discussed the difference between 'ground

truthr -- the actual, factual, provable truth and how
confidence in the'shape of a memory'would be lessened by'a high
status biased interviewer --such aS a parent-- because these
influences "make[] it more difficult, to sort out l^,hy it is that
she may believe something to be accurate or not accurate.rr (/Td aL
L52, 157. )

By explaining how a three to six year olds memory is 'more

fragile, meaning that they're not encoded with as much information
as with an older child." and "Consequently, the decay of the
memory j-s more rapid and less distinct, the more Iit is]
susceptible to ... pick up information from external sources .. -
alt,ering their belief to correspond to what they think may be
older people or adults beliefs." (/rd aE 148.)

If Melocowsky's representation was adequate he would have put

Esplin on the stand to address questions such as "If what
32
triggered the initial outcry was Hannah digging at crotch (Trans.
at 305) then why was there no form of vaginial penetration alleged
by Hannah in her testimony?" Dr. Esplin would have shown that
more like}y than not the majority of, if not all of, Hannah's
beliefs had no basis in 'ground truthr and in fact had been
planted or otherwise altered from what ten year old James did to
her confabulated with what she perceived her parents wanted her to
say.

,'In sum, trial counsel's error led to the complete failure to

provide expert mental health testimony that trial counseJ. himself
recognized was necessary, thereby depriving IEhlers] of an
adequate defense. " Laureys Slip at l-5. Thus, Melocowsky's
performance fel1 far below the 'ordinary level expected of a
diligent and knowledgeable counselor.

PoIk Criteria 3 Ehlers Was Prejudiced and Harmed By Melocowsky's

Performance Failures Which Created a Complete
BreakdownIn The Adversarial Testing Process.
Private EhLers case occurred within the caldron of sexual
abuse hysteria that was boiling in the U.S. Military as they were
repeatedly rocked by a series of graphic, and high profile sexual
abuse scandals causing Congress to order investigations and the
military upper echelon to hunt for people to take the blame. The
consequence was that the lower ranks hlere ordered to swiftly find
and stakeout scapegoats any place they could.

33
 Any presumption of reasonable representation is overcome
because Lt. Ivlelocowsky abandoned his oath and his client when he
rested EhIers case-in-chief without comment or evidence even
though prior to trial he'secured prior approval and funding'for
Esplin. (Laureys, slip at L4. ) This abandonment caused
irreparable harm to Ehlers defense because without Esplin's
testimony on the record neither the fact finder, nor the reviewing
bodies could Put Hannah's testimony into the ProPer forensic
perspective. This failure was instrumental in the decision to
affirm by a divided panel of this Court. Judge Ivlaksym disagreed
with his tlearned brethren' based on some of the very grounds Dr.
Esplin's testimony would have placed on the record. l4eeting four-
square the Boone criteria for ineffective assistance of counsel.

The triat judge and fact finder had made it abundantlf clear
that he would, could, and did compartmentalize his thinking and
decision processes to only what was on the record. This, couPled
with there being nothing on the record to contradict or
contextuaLLze Hannahrs test,imony for the reviewing authorities due
to l,Ielocowsky' s "constitutional error" (E99!9, 449 M. J. at 98-9 9 )
1-

made Ehlers criminal process unfair at a very fundamental level.

In his descent, Judge Ivlaksym, expressly challenged the

reasonableness and validity of Eh1ers sodomy conviction because of
the "significant delay opaquely portrayed in the record of
nearly three years ... these delays shroud the entire proceedings
with the specter of reasonable doubt." (US v nhlers, 20LL CCA
LEXIS 554, slip at 9.) Judge Maksym goes on to cite concerns over
34
',numerous conversationsthat took place over the long span of more
than three years between this child and her parents as well as
investigative and prosecutorial personnel in reaching the
conclusj.on her testimony is not fu1ly reliable." The judge could
not reconcile the "numerous recantations" with initial allegations
of ,,acts of penile penetration" but at trial Hannah advanced
"incredibly unformulated and non-detail seeking direct
examination, an allegation of a single act of oral sodomy. " Stip
at 10.

Maksym continues with, similarly rePresentative of the

"

child's confusion is the numerous inconsistences on issues as

significant as the location and date of the act, those present at
the*time of the act, the date of the child's family learned of the
act, and a later instance of alleged sexual contact between the
victim and another chiId. " /Td. I,laksym opj.ned "consider the
child's vocabulary" it was "unguestionably mature beyond her
tender years as indicative of outside influence benign or not. "
/Td at 10. He ended his dissent with the case was "not well
tried" leaving Maksym "with significant doubt. " /Id.

Tf Lt. Melocowsky had, at a minimumr put his ready, able and

willing Daubert qualified witness, Dt. Esplinr orl the stand many
of the Judge I'{aksym' s concerns would have been proven as f act ;
allowing his 'learned brethren' to join with Judge Maksym
overturning the conviction because the evidence and proof would
have been within "the four corners" of the defenses case-in-chief.
Beattyr 64 PI.J. at 458.
35
 Esplin's missing testimony would have shown how the
'significant delay' and the 'numerous conversations' "could create
inaccurate information" with "external influences" creating
"genuine but mistaken belief ... Iand] lessening the confidence" in
the outcome of the trial. (Daulbert hearing at 151-52. )
Supporting Judge Ivlaksym's concerns over the reliability of the
trial. Esplin coutd have supported and bolstered the judge's
concerns over the 'numerous recantations' and the 'numerous
iriconsistancIies]' by explaining how and why Hannahrs statements
"varied in some significant elements from the prJ-or statements."
Dr. Esptin would have charted out each and every statementr its
differenc€sr and given explanations of where or how they could be
contaminated memories that were genuine but not accurate to the
'ground truth.' (Hearing at 150-52.)

A11 legal professionals are aware of the debacle that was the
"day care scare in the 80's" and how every conviction has now been
overturned. Drawing on Dr. Esplin's knowledge defense counsel
would put Ehlers case in a similar light and context, showing the
similarities making it easier for Judge Maksym's colleagues to
relate to what was happening in the case at bar. (Hearing at 155,
181-188.) Esplin would have put into a forensic psychological
context what the numerous one or two word answers Hannah gave.
Indicating a route or passive answer instead of a factual one.
(uerits Tria1 Transcript at 82-82.1 Which in turn would have
substantiated Judge Maksym's concerns and given him a platform in
which to convince the other judges.
36
 Defense counsel is obligated to do "everything legalIy and
ethically required of hi.m" Polk at 153. Putting his expert's
t,estimony on the record was ethically and legaIly required to
properly test government's case against EhLers, when Melocowsky
failed to do sor he failed to provide adequate, effective,
representation.

The presumption of reasonableness afforded Ehlers counsel is

surmounted because Lt. Melocowsky's failure to call a Dalbert
authorized forensic expert was const,itutionally deficient
representation causing Ehlers harm by leaving the government's
dispositive witness's testimony unchallenged on the record.

Because, dt the tj.me, forensic psychology was counter

intuitive to even legal professionals; the hysteria surrounding
sex offenses in the military; and the prevailing human desire to
protect and believe small children, Melocowsky's failure to call a
ready, wi}ling, and qualified expert to show the fact finder and
reviewing authorities that Hannah's testimony was contaminated by
outside influences and her believability was seriously suspect.
Melocowsky's deficient representation rose to a failure in the
adversarial testing of the government's case, resulting in a trial
and review process that was unreliable and fundamentally unfair
because Lt. Melocowsky deficient representation Ehlers trial or
appeal would have been different, thus meeting Strickland's 'but
f,or' requirement.

37
II. The Record of The Trial Does not meet The Standards of L0
U.S.C. S854 and IVICM Rule 1103, Violating Ehlers Due Process
Rights and Rendering his Trial and Post Verdict Proceedings
ConstitutionallY Infirm.

Because the Record of Trial is used throughout the mandatory

review and clemency process by the court of criminal appeals, the
convening authority, and the command authority it is critical the
record be substantially accurate. Ehlers record of trj-a1 is
missing two sections of material testimony: 1) four pages of
direct and cross examination testimony of the only government
witness to certain charges and specifications; and 2l the
investigative NCIS agent statements regarding the timing of, and
questions subsequent to, Ehters' invocation of his right to an
Attorney and to remain silent. As detailed beIow, Both of these
omissions affected Eh1ers' criminal process in profound ways.

RrlrvRrur FRcrs
The government called Samue1 Hestor to the stand right after
Hannah's mother's testimony ended. According to the Record of
Tria1 Tab}e of Contents this occurred on page 332 of the merits
transcript. (See Appendix 6, Eh1ers Record of Trial Tab1e of
Contents at 3.) According to the table, ME. Hestor's Direct
Examination started on page 332 and his Cross-Examinations on page
335 with Examination by the Court starting on page 338. (/Id.l

N. C. S. Agent E. I,leulenberg was the only law enf orcement

I .

of f icer to interview then Sgt. Ehl-ers regarding the allegat,ions

against him. The Agent's testimony appears between pages 279 and
299 of the Record of Trial.
3B
 On August 20, 2007, during Agent Muelenberg's testimony Angela
Ehlers, Elizabeth Ehlers, Edwin Elhers I, and John Robbins were
present. Those present remember the Agent continuing to testify,
after indicating Ehlers' wanted his attorney, regarding EhIers
alleged 'full confession' discussing the confession and related
detailed until the duty driver of the 1st Marines came to pick up
the Sgt. Ehlers. The was no recording of the interview, despite
equipment be readily available, because Agent Muelenberg felt his
word was credible enough. (Merits trans. 293.)

The only evidence of the alleged confession was a written

statement by Agent Muelenburg were he alleges then Sgt. Eh1ers
provided a full confession about the acts with Hannah. See APp.
Exhibit XKIX. However, what Muelenberg alleged Ehlers confessed
to does not match what Hannah testified to as supposedly
occurring. (Compare Exhibit XXIX at 1-3 to ltlerits Transcript
343 - 349.1 Based on information and belief Lt. Melocowsky, the
Detailed Defense Counselr stated there was no confession, and the
government looked ridiculous trying to say that there wds.

The Military Judge, just before announcing the verdict, stated

he did not consider statements made after the "testimony of
Special Agent Muelenberg with regard to Sergeant Ehlers electing
t.o terminate the interview and ask for a lawyer during the
interrogation on 25 May 2005." (Merits Trans. at 378.) This
statement was indicative of Muelenberg's testimony containing a

39
significant amount over what is reflect,ed in the trial transcript,
(Trans. at 289 a 298.)

After several requests civilian appellate counsel I'1. Eisenbert

finally received the R.O.T. on CD. The record provided was
missing pages 333, 334, 335, and 336 containing S. Hestorrs direct
testimony and most of his cross-examination. Vari.ous attempts
have been made to get those pages but to no avail. Based on
information and belief, Ehlers posits that the appellate review
process R.O.T. had the same missing pages.

A careful review of pages 279 to 299 of the Record of Trial

provided appellate defense counsel shows only that then Sgt'
Ehlers invoked his right to counsel and the agent allegedIy
t,erminated the interrogation. It was plain to those who witnessed
the testimony that the transcript provided was misleading when it
stated ,,so I IMuelenberg] terminated the interview at that time."
(I{erits Trans. at 28g.) there is no mention on the Record of
testimony by Agent Meulenberg regardj-ng the particulars of when,
how, and to what extent the Ehlers' invocation occurred.

In late May of 2008 Angela Ehlersr oD behalf of her husband

pvt. Eh1ers, sent a letter to the Judge Advocate General's office
regarding many constitutionalr ptoc€duraI, and unethical issues
with her husband's trial at Camp Pendleton. (See Attached Exhibit
2.) It was received by the J.A.G on 3-Jun-2008. (/Td aX 8. ) This
letter specifically raised concerns regarding an incomplete,
nonverbatim Record of Trial. (/Td at l-. )
40
 This Court's appellate panel upheld Pvt. Ehlers' convictions
based "in large part, by the appellantrs own admission to NcIs."
(us v Ehlers, 20LL CC LExrs 554 slip at 3. ) fhe majority decision
went on to rely heavily to the alleged confession throughout the
decision. Even the dissent relied on said confession in upholding
all but the sodomy charge. (/Id slip at 9.)

RrlrvRrur LRw

In US v Davenport, the Court of Appeals for the Armed Forces

reiterated "[t]he requirement that a record of trial be complete
and substantially verbatim in order to uphold the validity of a
verbatim record sentence is one of jurisdictional proportion that
cannot be waived." See Davenport, 73 M.J. at 376 (Re1ying on U.S.
v Henry, 53 M.J. 108, 110 (C.a.A.F. 2000)(emphasis added.) Both
Article 54 and R.C.M. Ll-03 apply to Eh1ers proceeding because his
incarceration was over six months and he received a bad-conduct
discharge. See Henryr at lL0 citing R.C.M. 1I-03 (b) ( 2 ) (ii).

A record is not expected to be "word for word" what was said

when, but must be "substantially verbatim." Davenport at 377,
quoting U.S. v Lashley, L4 M.J. 7r 8 (c.M.A. L982). However, a
record of trial must be both qualitatively and quantitatively
substantial otherwise it is a nonverbatim record and the remedies
in R.C.M 1103 apply. Pggrrpgl! at 37'7.

. Determining whether a record is verbatim or not is a two step

process. The first is the threshold question of "was the record
4L
substantially accurate?" There is a presumption it is such and
the burden is on the accused to show that the record is either
missing entire sections of testimony (quantitatively nonverbatim)
or missing critical dispositive testimony or evidence
( qualitatively nonverbatim) or is both. (Davenport at 376-76i
Lash1ey, at 9i u. s. v Gaskins 72 M.J. 225, 229 (C.A.A.F. 20L3 ) .

The second step shifts the burden to the government to show

how the accused was not prejudiced by the nonverbatim record. "A
substantial omission renders a record of trial incomplete and
raises a presumption of prejudice that the Government must rebut."
See Henry at lL1 (collecting cases) (citations and quotations
omitted ) .

AuRlvs t s Applv I rue LRw Rrun Fncrs

No wavier appties to this ground --procedural or otherwise--
because a nonverbatim record is of 'jurisdictional proportionr and

questions of jurisdiction can, and should be challenged when they

are discovered. Since the concept of procedural bars are based
upon wavier by failing to act in a timely fashion, to say that
prodcedural bars exists fox a non-waivible matter would be
specious. As the attached Exhibit 2 shows, this matter was
raised by Ehlers pre the appellate decision, but not mentioned,
nor ruled upon, by the panel of this Court.

As discussed below Eh1ers record of trial fails both the

quantj.tative and qualitative test establishing his Record of Trial
is nonverbatim.
42
 Ehlers record of trial is quantitatively nonverbatim because
Samuel Hestor's was neither "unimportant" or "uninfluentiaI." His
testimony had an impact on the overal aspect of the charges and
Ied a fact finder to believe that Ehlers was inured to the effects
of his masterbating in front of minors. Additionally, the missing
testimony of NCIS Agent trIuelenberg regarding the dispositive
questj.on of when and where the alleged confession occured was in
no way "approach[ing] nothingness." See Davenport at 377.

Ehlers' record fails qualitatively as well because the missing

sections, and the Agentrs, were "related directly to the
sufficiency of the government's evidence on the merits. "
(Davenport at 378.) Hestorrs testimony was directly related to
certain charges,/specifications, and was influenctial on the other
charges. Whether appellant confessed or notr and questions
surrounding the confession were unquestionably on point to guilt
as evidenced by the appellate panel's reliance on the
'admissions.'

The issues surrounding the alleged confession start with "Did

the confession even occur?" The existence of a confession is in
doubt because during a pretrial hearing the court-martial "ha[d]
no evidence as to the alleged confession by Sgt. Eh1hers."
(Hearing Trans. at 228.) The issues encompass questions like: At
what point did confession occur?; Did the confession occur pre or
post the invocation of counsel?; What actions was confessed to?;
and What exact words were used? The record is void regarding any

43
of the details, despite Agent Ivluelenberg testimony regarding
such details. These concerns rise further in tight, of the fact
that the only written version of this so called confession does
not match in form or manner what Hannah stated on the stand. Any
reasonable person would question the fairnessr or reliablity of
Ehlers' review process with these questions in hand.

This missing testimony makes the record of trial both

quantitatively and qualitatively nonverbatim because the issues
surrounding confession --timing and specifics-- i.mpact every
aspect of Ehlers' criminal proceeding: merj.ts phase; review by the
chaj-n of command, and the appellate review.

Further, if the appellate reviewing panel had a verbatim

record but defense counsel did not, t,hen precepts of due Process
and effective assistance of counsel are offended because the
government's agents interfered with counsels ability to represent
Ehlers zealously and to the best of his ability. Thj.s

interference is unacceptable in a system that prides its self on a

fair and level playing fieId.

Because the record is nonverbatim the only recourse is to

attempt to rebuild the record via a Dubay hearingr or vacate and
overturn EhIers' convictions and sentence. Eh1ers repsectfully
requests this court do either one.

44
 li

Coruclus tott
No matter whether this Court determines it has jurisdiction
under Habeas Corpusr Cotram Nobis, Audita Querelar or some other
writ tshis Court most assuredly has jurisdiction under the A11
Writs Act, 28 U.S.C. 1651-. As the U.S. Supreme Court stated, the
military justice system must "take all appropriate means" wi-thin
their authority to "ensure the neutrality and integrity of their
judgements" (Denedo II 556 U.S. at 9L7). Eh1ers grounds challenge
both the integrity and the neutrality of his criminal process.
Thus, it is unquestionable tshis Court has jurisdiction to hear
this petition. The only question is a matter of first impression
being what, form that review should take.

Our criminal justice system is designed as a crucible where

two parties vie to find the truth and see justice done. This
system of 'adversarial testing' has, dt its core, the undeniable
requirement t,hat both parties act eithically and with the
"customary skill and knoweldge" to ensure an "objective level of
reasonableness" has been maintained throughout the process.
(Terry, accord Strickland. ) When detailed defense counsel does
not exercise'sound reason' or have a'plausible basisrfor their
tactical decisions affecting their case-in-cheif the system falls
apart. Without the governmentrs case being subjected to proper
adversarial testing any resulting conviction and sentence can be
neither 'fundmentally fair I nor consider 'reasonablet by the
courts. Lt. Melocowsky's failure to call Dr. Esplin was a serious
blunder that 'single-handily' supports a Strickland claim becuase
it was a "complete failure to provide expert mental health
45
testimony that trial counsel himself recognized was necessary,
thereby depriving IEhlers] of an adequate defense." See Laureys
Slip at 15.

The Record of trial provided Eh1ers is nonverbatim because it

is missing substantial testimony regarding dispositive matters
before the court. Thus, Ehlers Record of Trial fails the
statutory requirements in Tit1e 10 U.S.C. 5854 which enshrine the
const.itutional not,ions of f airness and due process. Becuase
Ehlers record is nonverbatim this Courtrs rules require either a
Dubay hearing to reconstruct the missing testimony or a complete
dismissal of the case. and full restoration of Ehlers rights.

Rrl r rr Rrouesrro
For the reasons outlined in the above petition, Pvt. Ehlers
requests the following primary relief:
L. Vacate and set aside Ehlers August 2L, 2007 convictions
and sentence; order his immediate release; and restore
his: rights, pay, back pay, benefits, and pay grade(s)
with promotions;
OR

2. Conduct a hearing pursuant to US v Dubay, L7 U.S.C.M.A.

L47 , 37 c.M.R. ALL ( c.t{.a. 196mEif icalry expand
the record to: (a) Place on the record Dr. EspIin's
missing testimony; Reconstructr if possible, the missing
record; and return the matter to this Court for relief
under this petition;

Upon finding this petition in his favor Eh1ers requests the

following additional relief:
3. Declare Lt. Melocowsky's representation deficient and but
for such deficient representation Ehlers trial was
fundamentally unfair violating his rights under the Sixth
Amendment to the U.S. Constitution;

46
 ,
4. Order the expungement of this matter on his service record
and all other records of any Court or Agency where his
case was heard, including aII executive agencies who had
any contact with his case, sentence, or the execution
thereof;
5. Any other relief the law requires t ot this Court considers
just and reasonable. .

RESPECTFULLY SUBIIITTED this q day of February, 20L8.

win A. Ehlers, lI,

Private pro se
FCI Sandstone 2L819-045
PO Box 1000 C Unit
Sandstone, MN 55072
SPECIAI llAlt: Open in Presence of Inmate Only!

47
 CERTIFICATE OF SERVICE
I hereby certify that on this 7 day of February , 2OLB I
placed with - the Coriections Of f icer -Fnducting AM LEGAL MAIL at
FCI Sandstone my addressed First Class postage affixed envelopes
containing four complete orginals of the included Petition for
Relief under 28 U.S.C. S1651 and any supporting documents and
attachments noted t,herein. The envelopes were addressed as
follows:

Department of the Navy

U.S. Navy-Marine Corps. Court of Criminal Appeals
Office of the Judge Advocate General
L254 Charles Itlorris Street S.E.
Suite 320, CODE 51
Washington Navy Yard
Washington, D. C. 2037 4-51.24

I request the court cferk FILE the included Motions and

documents under the "Prisoner Mail Box RuIe" on the DATE noted
above. AI,[ LEGAL mail call is the designated legal mail system at
this institution.
Sworn as true and correct under pains and penalties of perjury.
Executed on the above noted date under 28 U.S.C. 51746.
 ATTTDAVIT OF
Eowttl ARrHun EHrcRs I I
(Affidavit in Support of S1651 Petition)

St,ate of Minnesota )
) ss.
County of Pine )

I, Edwin Aruther Ehlers the Second, hereby declare, testify, and

aver under Pains and penalities of perjury the following
personally known six ( 6 ) facts.

1. I am over 18 and competent to testify to these personally

known facts; I am domiciled at FcI sandstone a Federal Prison; and
the accused in the Navy-Marine Corps Court of Criminal Appeals
Case 2008000190.

2. I have never seen any affidavits or statements under oath

by either my Trial (prosecution) or Detailed Counsel (defense)
regarding the representation I received from my detailed defense
counsel. I certainty have never seen the affidavits referred to
in the majorities opinion of my direct appeal and habeas review
conducted by a panel of the Navy-Marine court of criminal Appeal
in June of 2OOg. (US y Eh1ers,2O]L CCA LEXIS 554, slip at 2'l

3. Based on belief and information my appellate counsel never

received said affidavits of military counsel and when asked he
indicated I had received a copy of everything he had ever got' I
do not believe said affidavits exist and request they be provided
post haste if theY exist.

4. My current wife, Angela Ehlersr my mother Elizabeth Ehlers,

my father Edwin Ehlers, and a good friend John Robbins were
'present during N.C.I. S. Agent Muelenbergs testimony at my August
20 , 2007 court-martj-al.
 s

5. We heard agent Muelenberg give mor_g testimony after he said

I wanted my attorney. This recounting cf the questions asked
dicussed many of the issues surrounding my alleged confession.
What the agent discussed on the stand was not in the trancripts
provided to the defense.

6. I, my wife, and my attorney has made many attempts to get

the missing pages from the government, all to no avail. .

TURTHERMORE AFFIANT SAITH NAUGHT

I declare under the pains 'and penalties of perjury the

forgoing six (6) paragraphs are true and correct. Executed this
4 oay ot February, 20L8.

Edwin Arthur Ehlers, II Affiant