in United States v. Miller?   From time to time I find it interesting to hear about cases after they graduate from Article 66/67 review.

As part of post-trial counseling to a client underway to the brig there are many points you have to discuss with him, some of which extend beyond the immediate necessity to prepare a clemency request to the convening authority.  What happens next are among the questions a client asks.  Appellate counsel get the same questions.  You can explain to clients the initial “isolation” time, what they can do to make themselves more eligible for clemency and parole consideration, etc., you can brief them from the MGI if headed to the USDB.  And at some point you have to tell them about the MSRP.

Here is a link to Miller v. A.F. Clemency & Parole Board, a case decided 20 September 2011.  The issue before the district court in Maryland was the mandatory supervised release program.  The case was initially filed in New York, but the case was transferred.  See, Miller v. Sangiacomo and A. F. Clemency & Parole Board, 10-CV-169A, 2010 U. S. Dist. Ct. LEXIS 98284 (DC W.D. NY, decided September 20, 2010).

Here are links to:

United States v. Miller, AFFCA, Article 66, UCMJ, review.  CAAF denied a petition for review on 4 February 2008.  Here are the claims made in federal district court.

Miller filed five writs before the military courts prior to his placement on MSR.

February 2, 2009, Miller petitioned for a Writ of Error Coram Nobis at the AFCCA in which he raised claims of ineffective assistance. He later withdrew that petition and substituted it with his first petition for writ of habeas corpus in which he again alleged counsel rendered ineffective assistance by failing to adequately investigate his case and failing to question potential witnesses. The AFFCA denied the petition on May 27, 2010.  [See United States v. Miller, Misc. Dkt. No. 2009-02, 2010 CCA LEXIS 286 (A. F. Ct. Crim. App. decided May 27, 2010).]

October 26, 2009, Miller filed a habeas petition challenging his MSR parole for 1) increasing his approved sentence; 2) abridging his good conduct time credits; 3) violating his due process rights; and 4) and subjecting him to certain MSR conditions that were arbitrary, vague, and overly restrictive.  The AFFCA denied the petition on May 27, 2010.

February 1, 2010. Before the AFCCA decided his two habeas petitions, Miller filed for a Writ of Mandamus at the CAAF. The CAAF denied mandamus relief on April 26, 2010.

June 23, 2010, Miller appealed the AFCCA’s dismissal of his first habeas petition (raising ineffective  assistance of counsel claims) to the CAAF. The CAAF denied the appeal on July 19, 2010.

A number of other military cases have rejected jurisdiction to review the MSRP in military court.  Basically, there is no requirement, statutorily or otherwise, that MSR must be part of an adjudged sentence and explicitly imposed by a court-martial to survive legal scrutiny, and the MSRP does not increase an adjudged punishment.  A number of federal courts have reviewed the MSRP.  For example, Huschak v. Commandant, 642 F. Supp. 2d 1268 (DC Kan. 2009); Moultrie v. Secretary of the Army, 723 F. Supp. 2d 1230 (DC C.D. Cal. 2010).

There is an interesting “treatment” of the MSRP in Banks v. United States & Commandant, No. 10-3014, 2011 U. S. App. LEXIS 15687 (10th Cir., decided July 27, 2011).

Suffice it to say, and as a bottom line, challenges to the MSRP are not faring well.

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