In the Air Force case of United States v. LaBella, 75 M.J. 52 (C.A.A.F. Dec. 11, 2015) (CAAFlog case page), a unanimous CAAF held 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.

The petition for reconsideration was filed after the appellant’s detailed Air Force appellate defense counsel failed to seek CAAF review before expiration of the 60-day deadline, and also failed to 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 a change in counsel, an out-of-time petition for reconsideration was submitted to the AFCCA in December 2014. The CCA allowed the petition but affirmed its prior decision that affirmed the findings and sentence. The appellant then petitioned CAAF, leading to the court’s December decision finding that the CCA did not have jurisdiction to allow the petition.

After CAAF’s decision, the appellant petitioned the AFCCA for a writ of error coram nobis asserting that his appellate counsel provided ineffective assistance of counsel by failing to timely petition CAAF. In an order issued last week and available here, the AFCCA denied the petition:

As Petitioner’s alleged deficient performance was the failure of counsel to file a timely appeal to the CAAF, to demonstrate prejudice, Petitioner must be able to demonstrate a reasonable probability that our superior court would have provided relief if the petition was submitted within the statutory window. For the reasons set forth in our prior opinion, we remain unpersuaded that Appellant is entitled to relief. See Labella, ACM 37679 (rem); see also United States v. Piolunek, 74 M.J. 107 (C.A.A.F. 2015) (affirming a general verdict of possessing and receipting child pornography when only 19 of the 22 images admitted by the government as evidence as to this offense constituted child pornography).

Petitioner, in his writ to this court, has not identified, and we have not found, any additional basis for relief as to the issues that he desired our superior court consider on further appeal.

Slip op. at 5. A footnote adds:

In so concluding, however, we understand that Petitioner may now appeal this writ to the United States Court of Appeals for the Armed Forces (CAAF). Compare Denedo, 556 U.S. 904, 915 (2009) (“Because the [service court] had jurisdiction over respondent’s petition for coram nobis, the CAAF had jurisdiction to entertain respondent’s appeal from the [service court]’s judgment.”) with Rittenhouse v. United States, 69 M.J. 174 (C.A.A.F. 2010) (declining a writ of error coram nobis submitted directly to the CAAF).

The deadline to file such an appeal is 20 days from the date of service of the CCA’s decision on the writ petition. C.A.A.F. R. 19(e) (2016).

Readers may recall that the last military case decided by the Supreme Court – United States v. Denedo, 556 U.S. 904 (2009) – ended when Denedo’s counsel missed this same 20-day deadline to file a writ-appeal (discussed here).

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