Chief Justice Roberts wrote for the four dissenting justices. The dissent’s central argument is that coram nobis isn’t an extension of the original court’s jurisdiction even in an Article III context, much less an Article I context.

In the dissent’s view, Article 76 is the terminal point of the military appellate courts’ jurisdiction, subject only to the possibility of further proceedings under Article 73 if Article 76 finality attaches before two years have elapsed from the convening authority’s action.

Coram nobis, in the dissent’s view, is unavailable post-finality because military appellate courts no longer have any jurisdiction left to aid.

The dissent mocks the majority for basing its conclusion that coram nobis is an extension of the original court’s jurisdiction on a footnote, which the dissent calls “Morgan‘s hitherto obscure footnote.” The dissent argues that Morgan‘s footnote 4 doesn’t actually support the proposition for which the majority cites it. Then, reaching a crescendo, the dissent argues that even if Morgan could support an extension of jurisdiction for coram nobis purposes in an Article III context, no such conclusion is possible in the military justice system’s Article I context. “The military justice system,” argues the dissent, “is the last place courts should go about finding ‘extensions’ of jurisdiction beyond that conferred by statute.”

The dissent then argues that Articles 73 and 76 clearly forbid military appellate courts from exercising jurisdiction after the later of conclusion of direct appeals or the closing of the two-year petition for new trial window.

While the dissent recognizes that limiting a servicemember to these forms of relief may seem harsh, “‘You’re in the Army now’ is a sufficient answer to such concerns.” (I’ll just briefly mention that that retort seems out of place in this case based on a former Sailor’s petition for extraordinary relief.) Alluding to the history of the military justice system, which didn’t even have an appellate court until the 1950s, Chief Justice Roberts also observes that by comparison, the relief available under Article 73 seems “positively extravagant.” Concluding his analysis of Articles 73 and 76, Chief Justice Roberts writes, “To the extent the CCAs or the CAAF could be deemed to have some inherent continuing authority to issue writs of coram nobis, Articles 73 and 76 extinguish it.”

The dissent then takes up the government’s argument that as a practical matter, coram nobis relief is unavailable in the military justice system because the court-martial where the error allegedly occurred no longer exists. The dissent rejects the notion that CAAF and the CCAs can serve as substitute fora for coram nobis relief, reasoning that “those courts are not equipped to handle the kind of factfinding necessary to resolve claims that might be brought on coram nobis.” The dissent then takes a swipe at DuBay hearings, referring to “the procedures invented by United States v. DuBay.” The dissent then notes that even if concerns with the military justice system’s ability to actually provide coram nobis relief don’t go to jurisdiction, it may be that the system is incapable of ever actually granting such relief.

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