Judge Baker Not Quite Ready to Fully Embrace Stare Decisis in Rodriguez
I found Judge Baker’s concurring (in the result) opinion from the denial of a writ-appeal in Bolanos-Mendoza v. United States, Misc. No. 10-8004/AR (C.A.A.F. Dec. 15, 2009), to be an amusing parting shot in the whole jurisdictional battle last term. See Daily Journal for Dec. 15th here. After filing a 17 page dissent in United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009), Judge Baker is “apparently” not ready yet to bury the hatchet with his colleagues for “clos[ing] the [CAAF] courtroom door to military appellants” that fail to file a petition for review within sixty days. He writes:
I concur in the denial of the writ appeal, but I write separately to express my view that, consistent with my position in United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009), I would have granted Appellant’s original petition for review. However, this Court now apparently lacks jurisdiction over the petition for grant of review. Therefore, since Appellant has exhausted his remedies in the military justice system, he is free to appropriately seek a remedy in an Article III court.
I wonder how long we’ll see these little exchanges? Judge Effron also wrote to concur in the result citing United States v. Mendoza, 68 M.J. 83 (C.A.A.F. 2009) (Effron, C.J., concurring in the result with respect to jurisdiction on direct appeal) (see Daily Journal entry for May 20, 2009).
Still don’t understand how you square saying you can’t violate the 60 day provision, with saying you can do it if the 60th day falls on a weekend or holiday.
I presume the 60 day deadline can be extended for snow days, as well.
Well you can file online, so I’d guess no. Then again that’s the same reason why you’d think weekends and holidays wouldn’t count either.