Name something rare. A diamond? Hardly. We see people wearing diamonds every day. A bald eagle? Not really. There are 7,000 bald eagles in CONUS and 100,00 in Alaska. But here is something that is rare: an extraordinary writ issued by a Court of Criminal Appeals. When’s the last time you saw one of those? Perhaps, like a modern 8-year-old Virginia O’Hanlon, you weren’t sure whether they actually exist. See But yes, Virginia, there is a CCA-issued writ.

In United States v. Orzechowski, __ M.J. ___, NMCCA No. 200300711, 2006 CCA LEXIS 307 (N-M. Ct. Crim. App. Nov. 15, 2006), the Navy-Marine Corps Court granted a writ of habeas corpus and ordered Lance Corporal Orzechowski’s immediate release from confinement.

As the Navy-Marine Corps Court helpfully summarized, the writ was based on “an ex post facto application of good conduct time credits, based on a Navy regulation enacted after his offenses and after his original trial that illegally increased his time in confinement.” Id. at *1. Orzechowski was originally sentenced to 15 years of confinement in 2001. In 2004, DOD adopted a less generous good conduct time (GCT) formula. Then, in 2005, NMCCA set aside his sentence and authorized a rehearing. (Yes, can you believe it? Orzechowski has won meaningful relief from NMCCA TWICE. He’s really going to bust the curve for all the other naval appellants.) He ended up with eight years of unsuspended confinement.

After Orzechowski was resentenced, the USDB calculated his GCT according to the less favorable rates in the 2004 DOD Instruction and a 2006 SECNAVINST. Under the old rates, he would have been released on 28 August 2006. But under the new rates, he wouldn’t be released for another two-and-a-half months.

Relying heavily on Weaver v. Graham, 450 U.S. 24 (1981), NMCCA held that “the application of the new, less generous GCT provisions to his post-rehearing confinement violates the Constitution’s prohibition against ex post facto laws. U.S. Const. art. I, § 9, cl. 3.” Id. at *5.

One interesting portion of the opinion concerns the government’s argument that “an ex post facto analysis is inappropriate because the mechanism for increasing the petitioner’s prison time was a regulation, not a statute.” Id. at *9. NMCCA decisively rejected this argument, reasoning that “a legislative body cannot escape the Constitutional constraints on its power by delegating its lawmaking function to an agency.” Id. at *9-*10.

NMCCA issued its writ directing Orzechowski’s immediate release on 21 September – 23 days after he should have been released but 51 days before he would have been released without the writ. In Noyd v. Bond, 395 U.S. 683 (1969), which expressly recognized CMA’s authority to issue writs, the Supreme Court wrote, “While it is true that Captain Noyd has only two days yet to serve on his sentence, he should not be required to surrender his freedom for even this short time unless it is found that the law so requires.” Id. at 699. Orzechowski seems like an appropriate, albeit rare, exercise of the CCAs’ extraordinary writ power as recognized by Dettinger v. United States, 7 M.J. 216, 219 (C.M.A. 1979).

–Dwight Sullivan

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