In the Air Force case of United States v. LaBella, 75 M.J. 52 (C.A.A.F. Dec. 11, 2015) (CAAFlog case page), LaBella’s detailed military defense counsel failed to petition CAAF within the 60-day jurisdictional time limit for doing so. The Air Force CCA subsequently granted a motion to reconsider, ostensibly resetting the 60-day clock. CAAF, however, unanimously held that the CCA lacked jurisdiction to grant the motion to reconsider after the 60-day CAAF deadline expired. Accordingly, because the 60-day time limit had expired, CAAF lacked jurisdiction to review the case and it dismissed LaBella’s petition as untimely filed.
LaBella subsequently sought extraordinary relief from the Air Force CCA, asserting ineffective assistance of counsel (for his detailed military defense counsel’s failure to file a timely petition at CAAF). The CCA denied the petition on July 7, 2016, in a decision that I discussed here.
LaBella then filed a writ-appeal petition at CAAF. However, as discussed here, that petition looked to be untimely. It was filed on September 7 (62 days after July 7), while the deadline to file a writ-appeal petition at CAAF is 20 days from the date of service of the CCA’s decision. See C.A.A.F. R. 19(e) (2016).
Now we know that it was untimely.
Two days ago, CAAF dismissed the petition (in response to a Government motion):
No. 16-0728/AF. Sebastian P. LaBella, Appellant v. United States, and United States Air Force Court of Appeals, Appellees. CCA 37679. On consideration of Appellee’s motion to dismiss writ-appeal petition as untimely filed under Rule 19(e), and Appellant’s motion for leave to withdraw the writ-appeal petition, it is ordered that Appellee’s motion to dismiss the writ-appeal petition is hereby granted, and Appellant’s motion for leave to withdraw the writ-appeal petition is hereby denied as moot.
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).