Ashby cert petition
A cert petition was filed in Ashby on Christmas Eve. Ashby v. United States, No. 09-757. I’ve posted a copy here. The QPs are written in “deep issue” format. Here they are:
A right to speedy appellate processing, via the Due Process clause, has been recognized by nearly every federal circuit, without this Court’s comment. The test established by this Court regarding Speedy Trial violations has uniformly been adopted as the test to determine whether a Due Process violation has occurred for dilatory appellate processing. However, a number of federal circuits, in this adoption, have substantially veered from this Court’s Speedy Trial precedents, by either making particularized prejudice indispensible or deeming presumptive prejudice harmless. The Court of Appeals for the Armed Forces—the court that reviewed Captain Ashby’s case—is one such court.
Whether the Court of Appeals for the Armed Forces erred by deviating from this Court’s Speedy Trial jurisprudence, and whether this departure from precedent precluded Captain Ashby from receiving relief for a founded Due Process violation?
Regardless of the misapplication of this Court’s Speedy Trial jurisprudence, whether the Court of Appeals for the Armed Forces still erred by disregarding Appellant’s employment prejudice in determining whether the Government established that the Due Process violation was harmless beyond a reasonable doubt?
Failing to challenge the MCO’s travel restrictions while on appellate leave, is unfortunately probably a fatal defect.