Denedo case ends not with a bang, but with a 3-2 CAAF split denying leave to file a writ appeal out of time
Paternalism has a controvesial past in the military justice system. Some advocated it; others deplored it. But love it or hate it, today we saw more confirmation that the military justice system’s age of paternalism is over.
We’ve seen this Erdmann-Stucky-Ryan vs. Effron-Baker split in decisions dealing with untimely filings many times since United States v. Rodriguez, 67 M.J. 110 (C.A.A.F.2009). But yesterday’s split decision, which appeared in today’s Daily Journal update, involved one of the most prominent military justice cases of the 21st Century: United States v. Denedo.
We previously noted that on 18 March, NMCCA denied Denedo’s petition for extraordinary relief following remand from the Supreme Court and CAAF. See United States v. Denedo, 129 S.Ct. 2213 (2009). (The NMCCA opinion is available here.) It turns out that Denedo’s counsel then blew the CAAF filing deadline. The counsel erroneously thought that the 60-day petition deadline applied when, in reality, Rule 19(e) provided them with only 20 days to file a writ appeal. So their writ appeal was due on 7 April, but they filed it 27 days late on 4 May. Denedo’s counsel asked CAAF to allow a late filing.
The writ appeal filing deadline is a rule-based non-statutory deadline. So under Bowles v. Russell, 551 U.S. 205 (2007), CAAF had the discretion to allow the late filing. Yesterday, by a 3-2 vote, CAAF opted not to do so. United States v. Denedo, __ M.J. ___, No. 10-8016/NA (C.A.A.F. Sept. 8, 2010) (summary disposition). By order of the court, not identified with any judge, the Erdmann-Stucky-Ryan majority posed the sole issue as “whether Denedo has shown good cause for the late filing of his writ-appeal petition.” No, held the majority.
The majority concluded that “Counsel’s claim that he erroneously believed that this court imposed a sixty day deadline for the appeal of writ-appeal petitions does not provide us with the requisite good cause for suspending the deadline for filing a writ-appeal.” In a footnote, the majority added: “Although we have on occasion excused late filings based on administrative or attorney error, this court has cautioned counsel that failure to comply with the basic rules of this court risks compromising their client’s rights and protections. United States v. Brunson, 59 M.J. 41, 43 (C.A.A.F. 2003). Further, this court has warned counsel that ‘[w]e shall not continue to tolerate untimeliness which violates this Court’s Rules and demeans the military-justice system.’ United States v. Ortiz, 24 M.J. 323, 325 (C.M.A. 1987).”
Chief Judge Effron and Judge Baker each dissented separately. Chief Judge Effron wrote: “In view of the brief period of delay, the absence of any prejudice to the Government, and the important issues raised by this case, I agree with Judge Baker that the Court should waive the rule and permit Appellant to file.” Chief Judge Effron noted that less than two weeks after NMCCA denied Denedo’s petition, the Supreme Court issued its opinion in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), which may undercut NMCCA’s stated rationale. While Chief Judge Effron noted that it isn’t necessary at this point to decide how Denedo should be resolved in light of Padilla, he suggested that Padilla supports the importance of ruling on the merits of Denedo’s IAC claim.
Chief Judge Effron concluded that this is an appropriate case for CAAF to exercise its discretion to allow an untimely filing. He offered this characterization of the defense counsel’s untimely filing: “This is not a case in which counsel has demonstrated an absence of attention to filing deadlines. He looked at a rule which, on its face, appears to apply to all appeals, and he filed within that time. He overlooked a separate provision that applies a shorter time period for writ appeals.” And he noted the absence of any claim of prejudice to the Government. Indeed, he highlighted that the Government itself blew filing deadlines in the case and cited administrative error as its reason for doing so. Chief Judge Effron concluded:
We have before us a case involving extensive consideration at the highest levels of our legal system; a problematic lower court decision; significant constitutional issues; a recent Supreme Court decision bearing on the substantive issues before us; a filing that, while late, is well within the normal filing time for appeals to our Court; and an absence of prejudice to the Government. Under these circumstances, Appellant has established good cause for waiver of the twenty-day filing provision. Along with Judge Baker, I would grant the waiver, permit the filing, and permit the Government to file its untimely response.
Judge Baker presented the two decisional issues in the case as: (1) “should Appellant be penalized for his military appellate counsel’s failure to follow the rules of this Court?”; and (2) “is it relevant to this Court’s exercise of its discretion that this case comes to us following Supreme Court review of Appellant’s jurisdictional right to seek a writ of error coram nobis.”
Judge Baker answered the first question in the negative and the second in the affirmative. Regarding the first, he explained:
[F]our related distinctions take this case out of the mainstream of late filings. First, Appellant alleges that his original trial defense counsel was ineffective when he advised Appellant to plead guilty at a special court-martial rather than contest his case at a general court-martial in order to protect himself against deportation. Thus, the ultimate response to Appellant’s claim of ineffective assistance of counsel before this court is, apparently, ineffective assistance of counsel. Second, the Supreme Court and this Court have determined that Appellant was entitled to have his claim heard pursuant to a writ of error coram nobis. Third, the military defense lawyer missed the filing deadline for appealing to this Court the lower court’s subsequent decision on remand. Fourth, assuming that this delinquent filing constitutes ineffective assistance of counsel, Appellant is without apparent recourse.
Judge Baker also cited CAAF’s current light case load as a factor favoring accepting the late writ appeal: “having heard oral argument and rendered opinions in forty-three cases during the 2009-2010 term, it is fair to say this Court has the time to err on the side of keeping the courthouse door open in the interest of justice rather than shutting it to make a point about following the rules.”
Regarding the second decisional issue, Judge Baker explained: “I do not believe rote application of a discretionary filing rule is appropriate where the Supreme Court remanded the case specifically inviting the Court of Criminal Appeals to explore on remand ‘[t]he relative strength of respondent’s ineffective-assistance claim, his delay in lodging his petition, when he learned or should have learned of his counsel’s alleged deficiencies, and the effect of the rule of judgment finality expressed in Article 76 . . . .’ United States v. Denedo, 129 S. Ct. 2213, 2224 (2009).” He suggested that NMCCA didn’t fully explore those issues as directed, relying instead on Strickland‘s prejudice prong. Like Chief Judge Effron, Judge Baker observed that Padilla was decided two weeks after NMCCA’s Denedo decision and maintained that the facts of the Denedo case should be evaluated under the law provided by Padilla. He reasoned that “we do not know whether the Court of Criminal Appeals would have decided the issue in the same manner with the benefit of the Padilla decision, which is directly on point.”
Judge Baker concluded: “In short, this Court’s response to Appellant and to the Supreme Court in a matter within its discretion seems curt — rules are rules. It is also unfair to Appellant. Because I think that in the context of this case Appellant should get his full day in court before a military appellate court informed by a correct view of the law and before this civilian court, like the Chief Judge, I respectfully dissent.”