Deadlines – particularly missed deadlines – were a big story in 2016.
In 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 LaBella’s petition for reconsideration that was filed after the time for filing a petition for review by CAAF had expired. Put simply, LaBella’s Air Force lawyer didn’t petition CAAF for review in his case, and a replacement lawyer tried to find a way around CAAF’s 60-day deadline to file a petition for review, but CAAF rejected the scheme.
While CAAF’s opinion in LaBella was published in 2015, a missed deadline from 2016 is particularly noteworthy. After CAAF issued its 2015 opinion, LaBella returned to the Air Force CCA with a petition for extraordinary relief that asserted that his military appellate defense counsel was ineffective for failing to submit a timely petition to CAAF. The Air Force CCA rejected that petition in July, triggering a 20-day period to petition CAAF for review – a deadline that I highlighted in this post published five days after the CCA’s order. But LaBella’s counsel waited a whopping 62 days to file a writ-appeal petition at CAAF, and the court subsequently rejected the case as untimely filed. For the second time.
The Government also suffered from a missed deadline in 2016.
In United States v. Williams, 75 M.J. 244 (C.A.A.F. May 3, 2016) (CAAFlog case page) – another Air Force case – CAAF held that the Air Force Appellate Government Division’s successive motions for reconsideration by the Air Force Court of Criminal Appeals did not toll the 60-day deadline in CAAF’s rules for the filing of a certificate for review.
Certified cases are those sent to CAAF for review by a Judge Advocate General – a plenary power granted to the JAGs by Congress in Article 67(a)(2). While Article 67 mandates that an individual appellant seek review by CAAF within 60 days of a CCA’s decision, there is no such statutory time limit imposed on certification by a JAG. Nevertheless, CAAF’s rules impose a 60-day time limit for certifications, and the court held that the rule-based time limit was exceeded in Williams.
That both of these cases involved the same service only strengthens the significance of these two missed deadlines in 2016, earning the issue this spot on our Top Ten list.