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).

11 Responses to “LaBella missed the deadline… again!”

  1. Matt says:

    So, appellate defense is ineffective by filing late, and CAAF ensures that nobody can review the action because the ineffective counsel continues to file late…  At least the service member can sue their attorney for malpractice and get some compensation.  Oh yeah, that pesky Ferris doctrine. Sorry, looks like LaBella is French for “You’re screwed.”

  2. Alfonso Decimo says:

    Feres

  3. Dew_Process says:

    Down . . . but not necessarily out!  LaBella conceivably still has a faint glimmer of hope in  federal habeas relief. Quite frankly, under the totality of circumstances, the AF TJAG should have confessed error, although even that cannot confer jurisdiction.  This is a disgrace to both our profession and the AF JAGC.

  4. k fischer says:

    AD,
     
    No, Matt was referring to the Ferris Doctrine: How can I possibly be expected to handle a petition on a today like this?

  5. Charlie Gittins says:

    Speechless.

  6. Alfonso Decimo says:

    Fisher King – That is why the TJAG needs to get the ADC this time- To show these kids the example he sets is a first class ticket to nowhere!

  7. Matt says:

    K fischer nailed it.

  8. k fischer says:

    Oh, AD, you sounded like Dirty Harry just then.

  9. vulture says:

    Watching the administration of justice as the OTJAGS do it is like watching the Hell’s Angles pull security at a Rolling Stones concert.

  10. DCGoneGalt says:

    vulture:  Naw, the HellS Angels didn’t wait until after the concert to beat people to death.  Say what you will about the Angels, didn’t miss their deadline to administer beatings.

  11. Vulture says:

    Yes, but in a hundred years, some future Fred Borsch will be loring the minds of JAGs that it was the leadership of the OTJAGs’ righteously steering the ship from the start.