CAAF will hear oral argument in the Air Force case of United States v. LaBella, No.15-0413/AF (CAAFlog case page), on Wednesday, October 28, 2015, at 9:30 a.m. The court will consider a jurisdictional question that it specified after the Government moved to dismiss the appellant’s petition for review on jurisdictional grounds:
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).
In 2010, the appellant was tried by a general court-martial composed of officer members. He was convicted, contrary to his pleas of not guilty, of one specification of wrongful and knowing possession of visual depictions of minors engaging in sexually explicit conduct and one specification of wrongful and knowing possession of “what appear to be” minors engaging in sexually explicit conduct, in violation of Article 134. The members sentenced him confinement for six months, forfeiture $447.00 pay per month for 3 months, reduction to E-1, and a dishonorable discharge. The convening authority reduced the discharge to a bad-conduct discharge.
The Air Force Court of Criminal Appeals conducted two reviews in the case. In the first review, completed in 2013, the AFCCA rejected the appellant’s assertions that the military judge improperly admitted evidence of images that did not constitute child pornography, and the CCA affirmed the findings and sentence. CAAF then granted review and summarily remanded the case (discussed here) for consideration in light of United States v. Barberi, 71 M.J. 127 (C.A.A.F. May 15, 2012) (CAAFlog case page). The AFCCA then completed its second review of the case in July 2014, applying its own decision in United States v. Piolunek, 72 M.J. 830, (A.F. Ct. Crim. App. Oct 21, 2013), aff’d, United States v. Piolunek, 74 M.J. 107 (C.A.A.F. Mar. 26, 2015) (CAAFlog case page), to conclude that any error was harmless beyond a reasonable doubt.
However, after the AFCCA issued its July 2014 decision, the appellant’s detailed military appellate defense counsel did not appeal that decision to CAAF within the 60 day time period for doing so, nor did his counsel seek reconsideration from the CCA within the 30 day time period for seeking reconsideration (which would have reset the 60 day clock to petition CAAF). Instead, after some apparent changes in counsel, an out-of-time petition for reconsideration was submitted to the AFCCA in December 2014. A justification for the lateness of that petition was the appellant’s assertion that his detailed appellate defense counsel failed to petition CAAF “contrary to [his] clearly expressed wishes.” App. Br. at 5.
Servicemembers are assigned (detailed) defense counsel for trial and for appeal at no cost to them and without regard to indigence. See Articles 27 and 70, UCMJ. A servicemember also has the right to hire civilian defense counsel at his own expense. However, the appellant in Labella did not hire civilian counsel. Rather, he was represented by numerous Air Force attorneys. Specifically, the AFCCA’s 2013 decision in the appellant’s case states, in the caption:
Appellate Counsel for the Appellant: Colonel Eric N. Eklund; Lieutenant Colonel Gail E. Crawford; Major Michael S. Kerr; Major Daniel E. Schoeni; and Major Ja Rai A. Williams.
United States v. Labella, No. 37679, slip op. at 1 (A.F. Ct. Crim. App. Feb. 15, 2013) (link to slip op.). Further, the AFCCA’s 2014 decision states, in the caption:
Appellate Counsel for the Appellant: Colonel Eric N. Eklund; Lieutenant Colonel Gail E. Crawford; Major Michael S. Kerr; Major Zaven T. Saroyan; Major Daniel E. Schoeni; and Major Ja Rai A. Williams.
United States v. Labella, No. 37679 (rem), slip op. at 1 (A.F. Ct. Crim. App. Jul. 2, 2014) (link to slip op.). However, the appellant’s brief asserts that:
On 17 November 2014, Maj Ja Rai A. Williams was notified that the Judge Advocate General of the U.S. Air Force detailed her as appellate defense counsel for Appellant pursuant to Article 70(a) and (c), UCMJ, 10 U.S.C. § 870 (2015), due to a conflict of interest in the U.S. Air Force Appellate Defense Division. (J.A. at 24.) Maj Williams was previously assigned to AFLOA/JAJA and represented Appellant before this Court.
App. Br. at 3-4. Further, Major Williams is the only counsel who appears on the appellant’s brief to CAAF.
Major Williams was the one who submitted the out-of-time petition for reconsideration to the AFCCA. The CCA granted that petition and reconsidered the case, however it denied the appellant any relief. The appellant then petitioned CAAF for review, but the Government opposed the petition on jurisdictional grounds. CAAF then granted review of the jurisdictional question.
This procedural history presents CAAF with the rather straightforward question of whether a CCA can reconsider its own petition at any time, thereby resetting the 60 day time limit to petition CAAF. However, while the question is straightforward, the issue is not simple.
Article 67(b) states that “the accused may petition the Court of Appeals for the Armed Forces for review of a decision of a Court of Criminal Appeals within 60 days. . .” In United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009), a sharply 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.
The following year, in United States v. Smith, 68 M.J. 445 (C.A.A.F. 2010), CAAF unanimously held that when an appellant files a 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. Notably, in Smith, the appellant filed a timely petition for reconsideration with the CCA.
LaBella – with its out-of-time petition for reconsideration – presents what might be the only daylight between Smith and Rodriguez.
There is no statutory time limit for a petition for reconsideration by a court of criminal appeals. However, Rule 19(d) of the Air Force CCA’s Rules of Practice and Procedure state that the time limit for a petition for reconsideration “shall not be extended . . . beyond the expiration of the time for filing a petition for review or writ appeal with the United States Court of Appeals for the Armed Forces.” That Rule appears to prohibit the out-of-time petition for reconsideration that was entertained in Labella, and the Government’s brief to CAAF asserts that:
Under its own rules, the Air Force Court had no discretion to extend the deadline for Appellant to file a reconsideration motion beyond his deadline to file a petition for review with this Court.
Gov’t Br. at 7. The appellant’s brief doesn’t directly address this contention, however it does expressly call for CAAF to reverse its decision in Rodriguez:
There is nothing in the language of Article 67, UCMJ, which would indicate that Congress intended the sixty-day time frame for a petition for review to be jurisdictional. Rodriguez must be reversed.
App. Br. at 15.
Notably, the Government’s brief does not assert that the appellant is without any remedy for his counsel’s failure to petition CAAF for review of the Air Force CCA’s 2014 decision in his case. Rather, the Government’s brief points to the availability of a post-conviction attack in the form of a petition for extraordinary relief:
Appellant’s chief justification for overruling Rodriguez is his understandable but irrelevant and equitable reliance upon the right to counsel during the appellate process. The United States certainly does not dispute Appellant’s right to counsel under Article 70. But his dispute with his former appellate counsel does not amend, enhance, or enlarge this Court’s statutory authority to consider an untimely petition. As in Thomas, Appellant is permitted to file a petition for extraordinary relief to address his concerns; he is not permitted to file a statutorily-barred petition for review.
Gov’t Br. at 14. The ability of the military appellate courts to consider such petitions is well-settled, as it was the subject of the last Supreme Court decision in a military justice case. Denedo v. United States, 66 M.J. 114, 125 (C.A.A.F. 2008), aff’d, 556 U.S. 904 (2009). In Denedo, CAAF concluded that a “Court of Criminal Appeals is an appropriate forum to receive and consider a writ of coram nobis that involves a collateral challenge to the court’s approval of the findings and sentence.” 66 M.J. at 125. The Supreme Court agreed, explaining that “because coram nobis is but an extraordinary tool to correct a legal or factual error, an application for the writ is properly viewed as a belated extension of the original proceeding during which the error allegedly transpired.” 556 U.S. at 912-913.
But – most significantly I think – a petition for extraordinary relief depends on the unavailability of any other remedy to address the error. See Denedo, 66 M.J. at 126 (requiring that “no remedy other than coram nobis is available to rectify the consequences of the error”). If an appellant can petition a court of criminal appeals for reconsideration out-of-time (perhaps days, weeks, years, or even decades out-of-time), then such a petition would seemingly be a necessary prerequisite to any post-conviction challenge of the court-martial conviction.
That strikes me as an absurd result.
• AFCCA opinion
• Blog post: CAAF remands AFCAA case for consideration in light of Barberi
• AFCCA opinion after remand
• Appellant’s brief
• Appellee’s (Government) brief
• Blog post: Argument preview