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.”

53 Responses to “Denedo case ends not with a bang, but with a 3-2 CAAF split denying leave to file a writ appeal out of time”

  1. Phil Cave says:

    I expect the phone call to Denedo must have been rather . . . . .

  2. Mike "No Man" Navarre says:

    Does Denedo file a writ of error coram nobis for appellate IAC?

  3. who's your daddy says:

    Finally.
    Ironically, as our military justice practice is becoming more and more defective due to a lack of cases (no difference in counsel), the expectations are rising. Not to mention more serious cases and a more interested press. Good thing military justice remains a dead end career track (except in the Navy for the short term).

  4. Disgusted says:

    These people believe this serves justice?, a case that began with IAC in the first place is denied filing based on IAC?
    and the majority believes this serves the military justice system’s image?.

    What an asinine group of pompous people who need not be in such positions of importance to continue to promote their own self importance. No wonder Denedo is alleging IAC!

  5. Say What? says:

    Who the heck was this guy’s counsel? Lionel Hutz? Even I know about the 20-day rule and I am not a lawyer.

    Nobody reminded Denedo’s counsel, “Hey man, don’t forget you have 20 days to file or the geezers are likely to throw the petition out”.

    I know in the AF you have to “prove” yourself as a TC before you move to DC or appeals.

    Do the other branches have JAGs going straight into appellate practice?

    @Disgusted – Welcome to catch-22. This is how the military does things, “Traditionally, military justice has been a rough form of justice emphasizing summary procedures, speedy convictions and stern penalties with a view to maintaining obedience and fighting fitness in the ranks.” Reid v. Covert, 354 U. S. 1, 35–36 (1957).

  6. John O'Connor says:

    All of these machinations could have been avoided if the rules had allowed the parties to include an appellate review waiver in Denedo’s PTA . . . .

  7. Presley O'Bannon says:

    So what exactly makes someone a rule formalist? Is it a charmed life of always being on the right side of the rules, and no conception that the “rules” do not always equal justice?

    Not to mention that the Government’s conduct in this case is despicable: filing a late pleading in order to oppose a late pleading from the defense? Beautiful.

    Assuming there really is a renewed concern from up top on military justice competence, the JAG should certify. If we are going to be rule formalists, there is no statutory time limit to Article 67.

  8. Anonymous says:

    You may not be a lawyer, but you’re most certainly a liar. How exactly do you know about CAAF’s 20-day writ rule? It basically never comes up, one could be an appellate counsel for years without ever having a writ appeal. But you knew about it? Sure you did.

  9. Dwight Sullivan says:

    Harsh, Anon 2320. There’s a scenario under which what “Say What” wrote would be quite plausible — “Say What” could be a former accused in the military justice system who either had a writ appeal filed on his behalf or who filed one himself/herself pro se.

  10. Dunbar says:

    What a charade! if Denedo was at Guantanamo, his petition would have been accepted. Of course, he would be an alleged Terrorist then and as such worthy of access to the highest court civilian and military.

  11. Christopher Mathews says:

    I’ve heard that song before. But it has a nice tune and you can dance to it.

  12. Anonymous says:

    While I understand CAAF reluctance to grant a discretionary motion to file out of time, the disturbing thing to me is the Navy government counsel’s ridiculous position of first requesting leave to file a response out of time due to an “adminstrative error” and then turning around, withdrawing their motion and opposing defense counsel’s motion to file leave. Shame on all counsel who signed off on that pleading.

  13. Anonymous says:

    Or “Say What” could be a paralegal who works/worked in an appellate shop (USAF, apparently).

  14. Anonymous says:

    Not sure how someone could confuse the time limits here. Under CAAF RULE 19, which is entitled TIME LIMITS, one of the subparagraphs in BOLD is Writ-appeal petition. First sentence under that subparagraph indicates the 20 day limit. Doesn’t take a Harvard lawyer to figure it out. “I can’t read plain English” is NOT good cause. The fact that the case might have some interesting issues is NOT relevant to good cause for late filing. Bye-bye, paternalism. CAAF is finally maturing into a real court.

  15. Anon says:

    Since when is a “successful career” defined by retirement as TJAG? There are a whole lot of retired O-6s and O-5s whose “career track” was military justice and I would certainly define their careers as successful. The problem with the “military justice” community is that you want to define a “military justice career track” as exclusively litigation, either at the trial or appellate level. “Military Justice” includes tours as SJA to a GCM Convening Authority, instructor billets, policy assignments. In other words, want to be a better litigator? Get out of the courtroom and broaden your experience. Then you will have greater opportunity at a successful military justice career track.

  16. Anon says:

    If you think the age of “paternalism” is over then think again and check any local docket. MJ’s bend over backwards everytime for an accused so there isn’t something in the record.

    Are you guilty? Are you sure you are guilty? Anyone force you to plead guilty? Are you sure you still want to plead guilty? Do you understand your pleas of guilty? Double triple sure you want to plead guilty?

    CAAF denying a filing hardly means the days of paternalism are over.

  17. funny says:

    SCOTUS should remand for the majority to apply the law and act like adults. Jesus.

  18. Anonymous says:

    Yeah, it’s so obvious. It’s take-the-Lord’s-name-in-vain obvious.

    I’m sure this doesn’t matter to you, but what’s your jurisdictional hook? 1259 gets you nowhere. This case is over my friend.

  19. John O'Connor says:

    But it’s a catchy song.

  20. Cheap Seats says:

    May I now cite this case at the trial level as binding on following filing dealines? As a Defense Counsel I am tired of trial judges allowing the Government to answer discovery late, respond to motions late, provide witness lists late, etc. If paternalism is over, then what is good for the goose is good for the gander. The Government should now be held to the same standard of following the rules. Trial Counsel, what say you?

  21. Trial Counsel says:

    “What say you?”

    Dur, duh, der-her, (drool), doh, der, duh…..

  22. Cheap Seats says:

    :) Humor is good!

  23. John O'Connor says:

    As opposed to my earlier tongue-in-cheek post, I have a few random thoughts about this case:

    1. In all of this, has anyone suggested Denedo might not be guilty of these larcenies to which he pleaded? (before the defense bar calls me a Nazi for asking the question, keep reading). It doesn’t appear from what I’ve seen that Denedo claims he is in fact innocent, but only that he would have pleaded not guilty and held the government to its proof. In fact, Denedo admitted, under oath, that he was in fact guilty of these larcenies.

    2. Does the NMCCA opinion on remand fairly describe the evidence of guilt? In particular, is it true that the Government had in its possession 38 checks backed by the college totaling $70,000 that were fraudulently endorsed to Denedo, and that many of those were deposited into Denedo’s personal bank account(s)? If so, the evidence of guilt appears to have been overwhelming.

    3. Would it be proper for CAAF to consider, assuming my understanding is correct, that Denedo doesn’t deny his actual guilt, and that the evidence of guilt is overwhelming, in deciding whether to allow the late writ-appeal? My instinct is that the answer to this question is “yes,” that a court can consider almost anything in deciding an issue that is entirely a matter of discretion.

    4. Where would this case lead at the end of the day? Let’s assume that Denedo told his civilian counsel that his main concern was not to be deported (which appears to be disputed), and let’s assume that civilian counsel told Denedo that he was surely going to be deported if convicted (which is what Denedo says is constitutionally required). If NMCCA is fairly describing the evidence the Government had, it does seem likely that Denedo would have taken the deal because the other option was to go to a GCM where there was mountain of evidence against him. It’s not like there was a third option not to go to a court-martial so he wouldn’t be deported.

    5. If Denedo got his writ granted, I assume that the courts would find that he has waived any jurisdictional objection to a retrial (though I’m not sure I agree that this is waivable). In such a case, wouldn’t he be convicted, and subject to the same deportation proceedings, assuming (again) that NMCCA is fairly describing the weight of the evidence? These procedural matters are interesting, but is there substantive relief at the end of the day on the question of deportation?

    6. I’m personally glad that we never reached the point where a court has to decide whether a court-martial would have jurisdiction over Denedo, who by now is a full-fledged civilian. The equities on the jurisdictional issue are very bad for Denedo, and that could have created case law opening court-martial doors to the trial of civilians (albeit in an unusual case). If you, like me, think the exercise of court-martial jurisdiction over civilians is either never or almost never constitutional, any exceptions made that are based on equitable considerations are a bad thing.

    7. One of the things I don’t like about rules-based deadlines that can be waived for good cause shown is that, unless and until a body of case law develops to explain when that discretion would be exercised, case-by-case decisions always come across as arbitrary. I mean, right now, what’s the CAAF standard for deciding whether to exercise the discretion to allow a late writ-appeal? I doubt anyone can say. Is there any reason the court wouldn’t (or couldn’t) grant some other writ-appellant leave tio file late next week, based on the same asserted misapprehension of the rules?

  24. Anonymous says:

    Exactly! You have hit upon the unwritten CAAF grant rule. Anything that is high profile, press worthy, or in the Washington Post will be granted.

  25. Anon. says:

    A ruling so heavy on the “military” and so light on the “justice” does little to instill confidence in our fine system. Should any court aspire to operate with the fairness and wisdom of a DMV office?

  26. TC 2 says:

    Good grief, if MJ’s held the defense to deadlines it would be over. With the out of time motions, last minute witness request, in trial request for items, people, experts.

    Most late stuff can be worked out between DC and TC but paternalism aint’ over. Period.

  27. Christopher Mathews says:

    Can’t seem to get it out of my head, it’s true.

  28. Cheap Seats says:

    TC2 – Exactly! My tongue in cheek is that people miss deadlines all the time. I love how CAAF puts its foot down here. Completely agree with you.

  29. Christopher Mathews says:

    Cheap, you might also point to decisions bouncing Article 62 appeals for failure to meet the applicable deadlines. See, e.g., United States v. Combs, 38 M.J. 741 (AFCMR 1993); see also United States v. Harding, Misc. Dkt. No. 2005-02 (AFCCA 2007).

    Arguably these are harsh results, but if you accept the authority of the appellate courts to impose time deadlines, you also have to accept their ability to enforce them.

  30. John Harwood says:

    Two words: Rules Matter.

  31. Anonymous says:

    As some commentators have pointed out, CAAF can suspend the 20-day time limit for good cause shown. Rule 33. Is good cause, I didn’t read the rules carefully. If that is good cause, then what is the purpose of the rule. While I deplore the results, the fact that there may be great interest in reviewing the assigned issue is not good cause for why counsel filed late.
    I also agree with those who say CAAF has not been consistent in applying this rule. But I think things have been changing. Judges Erdmann, Stucky, and Ryan seem to be trying to force the CAAF to be a real court with expectations that the rules will be followed.
    I am interested in what happens next. Will Appellant find a lawyer to file a petition for writ of error coram nobis on ineffective assistance of appellate counsel because his original counsel did not file an appeal of the NMCCA’s denial of his petition for writ of error coram nobis on ineffective assistance of trial counsel. Won’t that be interesting.

  32. Phil Cave says:

    Both sides benefit at times at trial from judges who are not rigid enforcers of timelines and deadlines. To me that’s a good thing. As a defense counsel I’ve certainly made issues of prosecution failures. But I’ve also been sensitive to prosecutors who miss deadlines, who talk to me about it, and who are reasonable with me back. That’s the give and take of trial practice. The prosecutors who are jerks, well they are jerks.
    Appellate work is little different from trial work. The “facts” and the “record” pretty much exist. There’s usually very little (except the client’s Grostefon submission) that needs doing in the appellate process other than reading the ROT, doing some research, and writing. So from that perspective I see it as being not unreasonable to enforce the rules. That said, they need to be enforced equally. It has to be clear that the appellee’s feet are held to the fire also.
    I have to say I’m something of a believer in this “maxim:”
    [W]e do not wish to make [an] appellant suffer for the omissions of the lawyer. United States v. Ortiz, 24 M.J. 323, 324 (C.M.A. 1987).

  33. Bridget says:

    In that once in a blue moon case that is heard at SCOTUS and the highest military court can’t be bothered to waive the 20 days to at least look at it? Really?

  34. Phil Cave says:

    Or you can look at it as a very hi-vis way to get people’s attention that a deadline is a deadline.

  35. Anonymous says:

    In a system that requires due process of law, it is untenable that an Appellant would be punished for the misstep of his counsel regarding a discretionary rule. If the denying three wanted to send a hi-vis message, there are many other ways they could have done so–the Appellate shops certainly listen when CAAF speaks. Plus, the three’s opinion fails to take into account the very nature of military lawyers–before they ever master any area of law they are moved to another billet, and often times a non-legal one. They thus become a “master of none.” This fact is apparently lost on the three, but shouldn’t be. As the highest military court, they should understand the special circumstances military lawyers find themselves in and act accordingly. They blew it here.

  36. Brian le chien says:

    That’s a little too close to LTC Lakin’s oft repeated phrase: “The truth matters.”

    Nonetheless I agree with the result, and spirit, of your brief post. Lets start having court decisions and timelines mean something, for all parties.

  37. Brian le chien says:

    I respectfully disagree. You state that an accused should never “punished for the missteps of his counsel regarding a discretionary rule.”

    If this were true, it would cease to be a discretionary rule. The court would be required to always rule in favor of the accused, When a lawyer erred (or there is a claim that he erred), you would require that the court overlook the error (or claimed error). Not much discretion there -if the court would be required to rule in favor of the accused.

    The sun may be setting on the age of paternalism, but it is still pretty bright out. Many of the CAAF’s paternalistic rulings have been converted into RCMs (such as, as was discused above, outlawing the waiver of appeal in a PTA). It will be twilight for years to come.

  38. souless says:

    typical govt trying to win above all else

  39. the moral is says:

    One word: Sometimes

  40. Anonymous says:

    I agree. I would have the rule changed. A better rule would be to hold counsel accountable–e.g., strike one and you are on probation, strike two you are suspended from practicing before the ct. for a certain period of time, etc. The ct. would still get to exercise discretion though–whether missing the deadline would count as a strike against the counsel or not–i.e was there good cause. As is stands, a diligent counsel that doesn’t know the rule, for whatever reason, is marred for a first deadline offense and his client loses his shot at the ct. reviewing his issue.

  41. Anon says:

    Can’t the JAG certify this?

  42. Dwight Sullivan says:

    It’s WAY past the 30-day certification deadline, so CAAF would have to exercise its discretion to allow a certification out of time.

  43. Anon says:

    UCMJ does not contemplate a time restriction for JAG certification though

  44. Dwight Sullivan says:

    It’s not that the UCMJ didn’t contemplate it, but that the UCMJ assigns the deadline to CAAF’s rule-making function. That’s why CAAF can choose to extend that deadline, unlike the petition deadline, which is prescribed by statute and therefore can’t be extended.

  45. Anonymous says:

    What a typical defense rant. Appellate defense counsel alone drops the ball, and you are disturbed that government counsel don’t object sooner? Thank goodness paternalism is a fading concept.

  46. Anonymous says:

    I think that is old-school bias talking.

    Want to be a better judge advocate? Sure, be an SJA or other non-military justice jobs.

    Want to be a better litigator in the military justice arena, then I’d argue being a military justice guru is going to do more for you then being in policy assignments or being an SJA.

    There is room for specialization. We have 1800 judge advocates in the Army for example, all of them are not going to end up SJAs. Not every O-5 and O-6 is going to end up being an SJA.

  47. Anonymous says:

    The real problem IMO is not that the rule is there and is interpreted strictly, but it is when the rule is there and interpreted loosely for so long that the new norm becomes the loose interpretation, and then a group of judges get on board, flip the script (which by itself is fine) but then give no quarter to those in that gap period who were operating under the prior group.

    Would it have been hard to have simply warned, oh I don’t know, at one of the annual CAAF conferences, that time limits would no longer be interpreted loosely and instead would be strictly enforced in the future?

  48. Anonymous says:

    then again, they often bend over backwards to aid trial counsel at trial too, so paternalism ain’t just a river in Defense Land.

  49. Anonymous says:

    sure it would remain discretionary.

    IAC requires two things, deficient performance and prejudice. You could simply examine it for prejudice and if none existed, you’d have discretion to allow or deny it.

    CAAF could easily deny many of these cases with that type of review (or at least maintain its discretion).

  50. Cloudesley Shovell says:

    JO’C–yes, those facts sure are pesky things, aren’t they? They seem to get in the way of all sorts of righteous indignation.

    With all this talk about failures of attorneys, I cannot help but wonder what happened to the fine counsel who represented Denedo up through the Supreme Court, though I’m pretty sure what the answer is. Can’t work for free forever.

  51. Cloudesley Shovell says:

    Good Sir CAAFlog–I cannot help but wonder, if CAAF can limit the JAG’s power under Art. 67(a)(2) with a procedural time limit, could CAAF also place such a time limit upon Art. 67(a)(1) cases?

    I think I already know your answer, and I am sure I agree with the ultimate answer, if not the argument that gets there, even though we may continue to disagree over CAAF’s limitation on JAG certification.

  52. Dwight Sullivan says:

    My Dear Admiral,

    Yes, I believe CAAF can. Note that CAAF’s Rules specifically address appeals in capital cases, though without prescribing a specific deadline. See C.A.A.F. R. 18(a)(3).

  53. Cloudesley Shovell says:

    I was wrong again. Too much to discuss in a simple blog comment. Plus it’s lunchtime and the ocean is quite beautiful down here in the southern hemisphere (we dead admirals get around). Perhaps a discussion over a good beer sometime.

    I am a bit disappointed that CAAF did not hear Denedo on the merits, but I suspect the ultimate outcome would have been the same. That case made for a very interesting three-plus years all by itself.

    Yrs humbly,
    CS