Barry N. Nixon, Sr. v. DAWN HILTON, Colonel, Commandant USDB-Leavenworth

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
BARRY N. NIXON, SR.,
Petitioner - Appellant,
v.
DAWN HILTON, Colonel,
Commandant USDB-Leavenworth,
Respondent - Appellee.
No. 19-3002
(D.C. No. 5:18-CV-03139-JWL)
(D. Kan.)
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HOLMES, KELLY, and BACHARACH, Circuit Judges.
_________________________________
This appeal involves timeliness of a criminal charge against a
servicemember, Mr. Barry N. Nixon, Sr. Mr. Nixon was tried in a general
court-martial and found guilty of rape. He sought habeas relief, arguing
that the charge was untimely.
* We conclude that oral argument would not materially help us to
decide the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
So we have decided the appeal based on the record and the parties’ briefs.
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate under Fed. R. App. P. 32.1(a) and 10th Cir. R.
32.1(A).
FILED
United States Court of Appeals
Tenth Circuit
January 12, 2021
Christopher M. Wolpert
Clerk of Court
Appellate Case: 19-3002 Document: 010110463539 Date Filed: 01/12/2021 Page: 1

-- 1 of 3 --

2
To decide this claim, we must decide what the limitations period is:
Mr. Nixon contends that the limitations period is five years; and the
government contends that there is no limitations period, allowing the
government to bring the charge at any time.
The charge was brought roughly five years and nine months after the
last alleged rape. At the time of the rapes, the pertinent statute provided
that for any crime punishable by death, no limitations period existed. 10
U.S.C. § 843(a) (1986). For all other crimes, the limitations period was
five years. 10 U.S.C. § 843(b)(1) (1986). So was rape punishable by death?
If it was, no limitations period existed. 1
By statute, rape was punishable by death. 10 U.S.C. § 920(a) (1996).
But the Supreme Court had held that the Constitution prohibited the death
penalty for a rape that doesn’t result in death. Coker v. Georgia, 433 U.S.
584, 598 (1977). Based on this constitutional prohibition, the Court of
Appeals for the Armed Forces held in United States v. Mangahas that the
limitations period for rape was five years. 77 M.J. 220, 222 (C.A.A.F.
2018).
But Mangahas was decided on direct appeal, and Mr. Nixon is
collaterally challenging his conviction through a habeas petition. So the
1 After the alleged rapes, Congress changed the law, clarifying that no
limitations period existed for rape or any other offense punishable by
death. 10 U.S.C. § 843(a), (b)(1) (2006).
Appellate Case: 19-3002 Document: 010110463539 Date Filed: 01/12/2021 Page: 2

-- 2 of 3 --

3
district court (naturally) considered whether Mangahas applied
retroactively to cases on collateral review. On that question, the district
court answered “no,” concluding that no limitations period existed for the
criminal charge.
But the law changed during the pendency of the appeal, with the
Supreme Court abrogating Mangahas. In abrogating Mangahas, the
Supreme Court reasoned that the military limitations period bases the
possibility of the death penalty on the statutory penalty rather than case
law addressing the constitutionality of a death sentence. United States v.
Briggs, 19–108, 2020 WL 7250099, at *2 (U.S. Dec. 10, 2020). 2 Because
the statute authorizes the death penalty for rape, no limitations period
existed. United States v. Briggs, 19–108, 2020 WL 7250099, at *2 (U.S.
Dec. 10, 2020).
Given the absence of a limitations period, the government could
charge Mr. Nixon at any time for the rapes. We thus affirm the denial of
habeas relief.
Entered for the Court
Robert E. Bacharach
Circuit Judge
2 We had abated the appeal during the pendency of United States v.
Briggs. Because the opinion has now issued, we lift the abatement.
Appellate Case: 19-3002 Document: 010110463539 Date Filed: 01/12/2021 Page: 3

-- 3 of 3 --