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
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.