Update: As discussed in this post, AF appellate defense did not miss the deadline to petition CAAF in this case.

Last Thursday, October 20th, CAAF dismissed a petition for grant of review in an Air Force case:

No. 16-0501/AF. U.S. v. Richard A. Rivera. CCA 38649. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby dismissed for lack of jurisdiction.

The petition was filed on May 2nd:

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Monday, May 2, 2016

Petitions for Grant of Review Filed
No. 16-0501/AF. U.S. v. Richard A. Rivera. CCA 38649.

And the AFCCA’s decision is dated February 18th: United States v. Rivera, No. 38649 (A.F. Ct. Crim. App. Feb. 18, 2016). I covered the CCA’s opinion in this post.

May 2 was the 74th day after February 18.

Article 67 provides a 60-day time period for a service member to petition CAAF for review. That time period is jurisdictional, United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009), but may be extended by a timely reconsideration by a CCA, United States v. Smith, 68 M.J. 445 (C.A.A.F. 2010). Once the 60 days passes, however, a CCA can’t restore it with untimely reconsideration. United States v. LaBella, 75 M.J. 52 (C.A.A.F. Dec. 11, 2015) (CAAFlog case page).

In LaBella the appellant and his detailed Air Force appellate defense counsel didn’t file a CAAF petition and CAAF rejected an attempted rescue-mission by the AFCCA. That ended LaBella’s direct appeal but he and his (replacement) military counsel sought extraordinary relief from the AFCCA, were denied, and then missed the deadline to file at CAAF.

Rivera looks like another Air Force case of a missed deadline.

8 Responses to “Did Air Force appellate defense miss the deadline in another case?”

  1. Zeke Kennen says:

    Disclosure: I represented Rivera.  The government moved for reconsideration at AFCCA, which was denied on 28 Mar 16. Airman Rivera’s CAAF petition and supplement was filed only 35 days later, on 2 May 16. 
     
    After the government’s reconsideration motion was denied by AFCCA on 28 Mar 16, Rivera stated to the government’s appellate records branch that he was not intending to pursue further review and wanted expedited final action and restoration in accordance with AFCCA’s decision.  Rather than providing that final action and restoration, the convening authority instead provided Rivera a letter stating that he would rather grant clemency under Article 60.  Rivera used that letter from the convening authority to promptly pursue appeal at CAAF. 
     
    The government argued to CAAF that Rivera’s statement to the appellate records branch constituted a waiver of CAAF’s jurisdiction.  Rivera responded that he didn’t have a cause to pursue until the convening authority provided a letter stating he wished to have another shot at clemency. CAAF appears to have agreed with the government’s waiver argument.  But, the petition was timely filed.

  2. JustAnotherADC says:

    hmmm, seems like CAAFLog was on the bleeding edge of journalism here. Perhaps it forgot rule number one for government appeals… “if you lose, always seek reconsideration.” See Williams.

  3. A Random JAG says:

    Thanks, Zeke, for the interesting look.  What clemency, exactly, is the CA approving?  And why?  Seems like an odd result.

  4. Zeke Kennen says:

    A Random JAG: The convening authority’s letter didn’t commit the command to any particular grant of clemency.  His letter stated that the procedural posture of the case before him for final action did not permit him to reconsider the clemency decision which had been made under Art 60 before appellate review occurred, that he would like to have the case returned to him in a procedural posture that would allow for such reconsideration, that he hoped the letter he provided would be of aid in changing that procedural posture, and that he thought a general court-martial was an inappropriate forum for disposing of the case given the fact that the only remaining offense was a single dereliction of duty specification.  
     
    I was, honestly, a little surprised that government counsel fought against giving the convening authority what he wanted in this case.  I would have though they’d have been interested in achieving commander’s intent given that this is a commander-driven system of justice. 

  5. DCGoneGalt says:

    Zeke:  You have existed in the Through the Looking Glass world of military justice for quite a while and you were surprised?  

  6. Passing By says:

    If military justice blogs are truly to blogs as military music is to music, then I would say this entry is the equivalent of the Air Force Band playing “Ice, Ice, Baby” by Vanilla Ice.  It starts out seeming like something of substance (Queen’s “Under Pressure”), but then…not so much.  Word to your mother.

  7. stewie says:

    No, no, no…Ice Ice Baby is completely different from Under Pressure…wait, here let Mr. Ice explain it:
     

  8. K fischer says:

    As a former military bandsman, 02N, I can attest that Mr. Ice is correct in the difference in that bass line.  That extra eighth note between the fourth and first beat really adds some panache to his rhyme…..Yo…..