We previously looked at the United States’ successful Article 62 appeal in United States v. Lopez de Victoria, __ M.J. ___, No. ARMY MISC 20061248 (A. Ct. Crim. App. May 7, 2007). Lopez de Victoria’s counsel wasted no time in seeking further review. CAAF’s daily journal for 8 May includes the docketing notice for the petition for grant of review in United States v. Lopez de Victoria, No. 07-6004/AR. Here’s my question: what statute gives CAAF appellate jurisdiction over the CCA’s granting of an Article 62 appeal? That’s not a rhetorical question; can anyone find a statutory grant of such jurisdiction?
If it isn’t clear that such statutory authorization exists, then I would strongly recommend that counsel seeking review in that situation file a petition for extraordinary relief in the alternative to the petition for grant of review. The case would fall within CAAF’s potential appellate jurisdiction, which gives CAAF the authority to issue a writ. See, e.g., In re Richards, 213 F.3d 773, 779 (3d Cir. 2000) (“jurisdiction to issue writs of mandamus under 28 U.S.C. § 1651 lies in cases in which potential appellate jurisdiction exists”). And the absence of any other legal right to seek relief from the CCA’s ruling would make a writ an appropriate vehicle for seeking further review. See, e.g., Clinton v. Goldsmith, 526 U.S. 529, 537 (1999) (“[A] writ may not be used . . . when another method of review will suffice”) (quoting 19 Moore’s Federal Practice § 201.40).
If all of Lopez de Victoria’s eggs are currently in the petition for grant of review basket, I recommend a partial ovum redistribution into a petition for extraordinary relief basket. Thoughts?