United States v. Gutierrez, No. ARMY 20040596, is the yo-yo of military appellate cases. At his court-martial, PFC Gutierrez was accused of assault with the intent to commit rape. A members panel found him guilty of the LIO of assault consummated by a battery and sentenced him to a BCD and confinement for two months. Then, in a published decision, ACCA set aside the findings and sentence, holding that the military judge erred by failing to sua sponte instruct on the affirmative defense of mistake of fact as to consent regarding the lesser-included offense of assault consummated by a battery. United States v. Gutierrez, 63 M.J. 568 (A. Ct. Crim. App. 2006). CAAF reversed ACCA, holding that the instructional issue was waived. United States v. Gutierrez, 64 M.J. 374 (C.A.A.F. 2007). CAAF remanded the case for further consideration by ACCA.

ACCA then specified an issue asking whether the trial defense counsel was ineffective by failing to request a mistake of fact instruction regarding the assault consummated LIO. In an unpublished opinion issued on 31 October 2007, ACCA held that the failure to request the instruction was IAC and again set aside the findings and sentence. United States v. Gutierrez, No. ARMY 20040596 (A. Ct. Crim. App. Oct. 31, 2007).

On Thursday, CAAF docketed the following certified issue:

WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT THE TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HE WAIVED AN AFFIRMATIVE DEFENSE INSTRUCTION.

United States v. Gutierrez, __ M.J. ___, No. 08-5004/AR (C.A.A.F. Dec. 13, 2007). Did Army GAD file an unsuccessful petition for grant of review, thus explaining why the certificate for review appears to have been filed more than 30 days after ACCA’s decision?

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