## Facts

- A general court-martial convicted Army Private Dwight J. Loving, contrary to his pleas, of premeditated murder, felony murder, attempted murder, and five robberies, in violation of Articles 118, 80, and 122, UCMJ.
- The members sentenced Loving to death, a dishonorable discharge, and total forfeitures.
- On direct review, the Army appellate court affirmed the findings and sentence; the United States Court of Appeals for the Armed Forces (CAAF) also affirmed (with modification on reconsideration), and the U.S. Supreme Court affirmed the military death-penalty framework as applied to Loving.
- In the capital sentencing proceedings, the members unanimously found multiple statutory aggravating factors beyond a reasonable doubt, including that a premeditated murder was committed during a robbery, that Loving was the actual perpetrator of the killing underlying the felony-murder conviction, and that Loving committed multiple murders.
- After Supreme Court affirmance, Loving filed a petition for extraordinary relief in the Army Court of Criminal Appeals seeking a writ of mandamus, arguing (for the first time in collateral proceedings) that his death sentence was unconstitutional under Enmund v. Florida and Tison v. Arizona because the members had not unanimously found that he intended to kill or acted with reckless indifference to human life with respect to felony murder.
- Loving’s effort to establish how the members reached their sentencing decision depended in part on inquiry into members’ internal deliberations and voting procedures.
- The Army Court of Criminal Appeals summarily denied the petition. Loving filed a writ-appeal petition to CAAF, which granted review and heard argument.

## Issues

1. Whether Loving was entitled to extraordinary relief (mandamus) on the claim that, under the Eighth Amendment as interpreted in Enmund and Tison, his death sentence was invalid because the court-martial members did not unanimously find intent to kill or reckless indifference to human life in connection with felony murder.
2. Whether Military Rule of Evidence 606(b) barred post-verdict inquiry into court-martial members’ internal deliberations and voting procedures offered to support Loving’s collateral challenge.

## Decision

- CAAF affirmed the Army Court of Criminal Appeals’ denial of extraordinary relief.
- CAAF held Loving did not establish a clear and indisputable right to mandamus relief, particularly given the posture of the case after complete direct review, including Supreme Court review.
- CAAF rejected Loving’s attempt to probe members’ deliberations and voting, holding that Military Rule of Evidence 606(b) barred that type of post-verdict inquiry absent an applicable exception (such as extraneous prejudicial information or outside influence).
- In light of the record, including Loving’s status as the actual killer for the felony-murder offense, his separate premeditated-murder conviction, and the remaining unanimously found aggravating factors, CAAF concluded the asserted Enmund/Tison-based defect did not warrant collateral relief.

## Legal Principles

- Extraordinary writs (including mandamus) are exceptional remedies; the petitioner must show a clear and indisputable right to relief and the absence of an adequate alternative remedy.
- Collateral extraordinary relief is strongly disfavored after a capital conviction and sentence have completed direct review through the military appellate courts and the U.S. Supreme Court.
- Military Rule of Evidence 606(b) generally prohibits using juror (member) testimony or statements to impeach a verdict or sentence by exposing internal deliberations or voting processes; only narrow exceptions permit such inquiry (e.g., outside influence or extraneous information).
- An Eighth Amendment Enmund/Tison claim does not automatically justify reopening a final military capital judgment where the record and unanimously found aggravating circumstances continue to support the sentence and the petitioner cannot rely on barred deliberation evidence to reframe the members’ findings.

## Conclusion

In Loving v. Hart, CAAF affirmed the denial of mandamus relief because Loving sought to reopen a final, Supreme Court-affirmed military death sentence based on an Enmund/Tison theory raised on collateral review, and because Military Rule of Evidence 606(b) barred the post-verdict inquiry into member deliberations he relied upon; given the record and the remaining valid, unanimously found aggravating factors (including that Loving was the actual killer and was also convicted of premeditated murder), CAAF found no basis for extraordinary relief.


Loving v. Hart, 47 M.J. 438 (1998)