CAAF granted review in two cases on Thursday, May 14, 2015. The first involves an issue of disparate punishment:
No. 15-0390/AR. U.S. v. Kye C. Womack. CCA 20140345. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:
WHETHER APPELLANT’S PUNISHMENT WAS “HIGHLY DISPARATE” WHEN COMPARED TO THE CO-ACCUSED.
Briefs will be filed under Rule 25.
I can’t find an opinion on the Army CCA’s website.
The second involves a specified issue that question’s the court’s jurisdiction to consider the case:
No. 15-0413/AF. U.S. v. Sebastian P. LaBella. CCA 37679. On consideration of Appellee’s motion to dismiss the petition for grant of review for lack of jurisdiction, it is ordered that the parties submit briefs on the following issue:
WHETHER APPELLANT’S PETITION FOR GRANT OF REVIEW SHOULD BE DISMISSED FOR LACK OF JURISDICTION WHEN THE COURT OF CRIMINAL APPEALS ENTERTAINED AN UNTIMELY FILED MOTION FOR RECONSIDERATION FOR “GOOD CAUSE,” BUT DENIED THE MOTION ON OTHER GROUNDS, AND APPELLANT FILED A PETITION FOR GRANT OF REVIEW WITH THIS COURT UNDER ARTICLE 67, UCMJ, MORE THAN 60 DAYS AFTER THE ORIGINAL DECISION OF THE COURT OF CRIMINAL APPEALS, BUT WITHIN 60 DAYS OF THE FINAL DECISION ON THE MOTION FOR RECONSIDERATION. SEE, UNITED STATES v. RODRIGUEZ, 67 M.J. 110 (C.A.A.F. 2009); UNITED STATES v. SMITH, 68 M.J. 445 (C.A.A.F. 2010).
Appellant will file a brief under Rule 24 within 30 days of the date of this Order. Appellee will file a brief within 30 days of the filing of Appellant’s brief. Appellant may file a reply within 10 days of the filing of Appellee’s brief.
In United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009), a deeply divided CAAF held that the court lacks jurisdiction to consider a petition for grant of review filed by an appellant beyond the 60-day period during which Article 67(b) states that an appellant “may” file such a petition. Judge Erdmann wrote for the court in Rodriguez, joined by Judges Stucky and Ryan. Then-Chief Judge Effron and then-Judge Baker both dissented. You can read some analysis of the case in posts here and here.
In United States v. Smith, 68 M.J. 445 (C.A.A.F. 2010), CAAF unanimously held that when an appellant files a timely petition for reconsideration at a CCA, the 60-day time period to petition CAAF for review begins after the CCA completes its action on the petition for reconsideration.
LaBella finds what might be the only daylight between Smith and Rodriguez, and CAAF’s order for expedited briefings is particularly noteworthy in light of the fact that Chief Judge Baker’s 15-year term on the court will end in September.
Readers may also recall that after it was reviewed by the Supreme Court, the Denedo case ended with a missed deadline.