CAAF issued its first decision of the term, in the Air Force case of United States v. LaBella, 75 M.J. 52, No.15-0413/AF (CAAFlog case page) (link to slip op.), on Friday, December 11, 2015. In a short opinion the court holds that the Air Force Court of Criminal Appeals lacked jurisdiction to grant the appellant’s petition for reconsideration that was filed after the time for filing a petition for review by CAAF had expired.

Judge Stucky writes for a unanimous court.

CAAF reviewed the following specified issue in this case:

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’dUnited 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.

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 specified the jurisdictional question for review.

In today’s decision, Judge Stucky concludes that the AFCCA did not have jurisdiction to grant the out-of-time petition for reconsideration. It is the second time in four months that Judge Stucky has authored a decision of the court that finds that the AFCCA acted outside its jurisdiction (the other being United States v. Arness, 74 M.J. 441 (C.A.A.F. Aug. 19, 2015) (CAAFlog case page)).

Judge Stucky’s opinion is short, and he resolves the jurisdictional issue in just three paragraphs:

“‘Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute….’” United States v. Daly, 69 M.J. 485, 486 (C.A.A.F. 2011) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). “[E]very federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause un-der review.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (internal quotation marks and citations omitted). The burden to establish jurisdiction rests with the party invoking the court’s jurisdiction. Kokkonen, 511 U.S. at 377.

An appellant must file his petition for review at this Court within sixty days from the date he is notified of the decision of the CCA, or the date on which a copy of that decision, “after being served on appellate counsel of record for the accused (if any), is deposited in the United States mails for delivery by first class certified mail to the accused,” whichever is earlier. Article 67(b)(2), UCMJ, 10 U.S.C. § 867(b)(2) (2012); United States v. Rodriguez, 67 M.J. 110, 116 (C.A.A.F. 2009) (holding that the sixty-day statutory limitation is jurisdictional and mandatory). If during that sixty-day period, an appellant files a motion for reconsideration at the CCA, there is “no CCA decision for this Court to review.” United States v. Smith, 68 M.J. 445, 446–47 (C.A.A.F. 2010). In such a case, the sixty-day statutory filing period at this Court begins to run anew, following the CCA’s disposition of the motion. See id.

Appellant failed to file either a petition for review at this Court or a petition for reconsideration at the CCA within the statutory filing period, which expired on September 5, 2014. As a result, his conviction became final as to the legality of the proceedings on that date. See Articles 71(c)(1)(A), 76, UCMJ, 10 U.S.C. §§ 871(c)(1)(A), 876 (2012); Clinton v. Goldsmith, 526 U.S. 529, 532 (1999); Loving v. United States, 64 M.J. 132, 137 (C.A.A.F. 2006). Therefore, the CCA lacked jurisdiction to grant Appellant’s petition for reconsideration out of time and, consequently, this Court lacks jurisdiction to consider Appellant’s petition for review.

Slip op. at 4-5.

This conclusion seems unremarkable, especially considering that if CAAF had concluded otherwise, then an appellant could petition a court of criminal appeals for reconsideration years or even decades after a case was considered to be final.

CAAF’s opinion doesn’t leave the appellant without recourse for his counsel’s apparent failure to seek CAAF review in accordance with his wishes – he can still mount a post-conviction attack in the form of a petition for extraordinary relief (a possibility that was explicitly acknowledged by the Government’s brief). 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.

Case Links:
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
Blog post: The amicus brief of the Air Force Appellate Defense Division in LaBella (and the Government’s response)
• Oral argument audio
CAAF opinion
Blog post: Opinion analysis

4 Responses to “Opinion Analysis: CAAF finds no jurisdiction for tardy reconsideration by a CCA in United States v. LaBella, No.15-0413/AF”

  1. Anonymous former appellate defense counsel says:

    Wow.  As if there wasn’t already enough reason for the public to have low confidence in military lawyers.  This is one guy who can legitimately say his lawyer screwed him.  But worse I think… The government gives him the right to a lawyer, but then that same government either (1) gives him a lawyer who can’t track deadlines; or (2) makes the lawyer so overworked that he/she misses deadlines.  This seems bad for the accused, bad for the Air Force, bad for the defense lawyer, bad for the system, bad for society…

  2. Nobleblath says:

    Short and sweet.  Nice opinion.  I also really like the new format, it looks a lot more professional.  Great improvement over the previous iteration.  Can’t believe CAAFLOG didn’t mention it.  

  3. Dew_Process says:

    So, CAAF has switched to its new “font” already — that’s good.
    There could be a trip to SCOTUS in LaBella’s future as Rodriguez (and now LaBella) fly in the face of SCOTUS’s “claim-processing rules” decisions, e.g., U.S. v. Wong, 135 S.Ct. 1625 (2015), and Henderson ex rel. Henderson v. Shinseki, 131 S.Ct. 1197 (2011).  While CAAF concluded that these were “jurisdictional” in LaBella, and thus, implicitly not subject to equitable tolling, it’s hard to justify the validity of Rodriguez in light of the statutory scheme in Henderson where the Court held that missing a filing deadline in the VA’s appellate scheme – procedurally, very similar to the UCMJs – was not jurisdictional.

  4. anon says:

    DP, I think you already identified the distinction between Wong/Henderson and LaBella in that FTCA/Title 38 functionally begin life as administrative claims. Although related to habeas petitions, Supreme Court has extended equittable tolling in cases of oversight of filing dates on the part of counsel in Holland v. Florida, 560 U. S. 631 (2010). There was a more recent decision post-Holland, however, I cannot recall decision name.