In 1988 Specialist Ronald Gray, U.S. Army, was convicted of the premeditated murder of two women, the attempted premeditated murder of a third woman, three specifications of rape, two specifications of robbery, two specifications of forcible sodomy, and also of burglary and larceny, contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation.
The members sentenced Gray to death, a dishonorable discharge, total forfeitures, and reduction to E-1. He is one of only four prisoners on military death row, our #2 Military Justice Story of 2016 (the others are Hennis, Akbar, and Hasan; Witt is pending a sentence rehearing that could return him to death row; Loving’s capital sentence was commuted).
Prior to Gray’s court-martial, in a wholly separate North Carolina proceeding, Gray pleaded guilty to the murder and rape of two additional women, and other offenses, for which he received three consecutive life sentences and five concurrent life sentences.
CAAF affirmed the findings and sentence in 1999 after hearing oral argument twice (that year and the year before). 51 M.J. 1. CAAF’s decision involved consideration of a great many issues. See 51 M.J. at 6-9 (index of issues). The Supreme Court denied certiorari in 2001. 532 U.S. 919. President Bush approved the death sentence in 2008.
Then came the habeas challenge. With a pro bono defense team, Gray raised 21 errors on collateral attack, many of which had been considered by the military appellate courts on direct review (and “when a military decision has dealt fully and fairly with an allegation raised in that application, it is not open to a federal civil court to grant [habeas] simply to re-evaluate the evidence. Burns v. Wilson, 346 U.S. 137, 142 (1953)). Gray also sought a writ of error coram nobis from the Army CCA, which is “a belated extension of the original proceeding.” United States v. Denedo, 556 U.S. 904, 912-913 (2009). Consideration of the habeas petition was then postponed pending resolution of the coram nobis petition.
But there’s a twist. When the Army court denied the coram nobis petition, it did so on the basis that:
[Gray] cannot traverse these threshold requirements [for coram nobis relief] because there is, as a matter of law, a remedy other than coram nobis available to him. Although in our view petitioner’s right to habeas corpus in the military justice system has ended, this is not so for Article III courts. In fact, petitioner has filed a writ of habeas corpus in federal district court and the government does not dispute the jurisdictional basis for doing so. The merits of petitioner’s claims are now for the federal district court, rather than this court, to decide.
70 M.J. at 647-648. Put differently, the Army court denied coram nobis because of the availability of habeas.
The habeas petition resumed and, on September 29, 2015, U.S. District Judge J. Thomas Marten issued a hybrid dismissal of Gray’s habeas petition. Most of Gray’s claims were denied on the basis that they received full and fair consideration in the military courts, however the issues raised in the coram nobis petition were dismissed without prejudice because the military courts had never actually considered them.
The 10th Circuit reversed the hybrid dismissal, 645 Fed. Appx. 624, in 2016, finding that hybrid dismissal was an impermissible way to resolve the situation, and remanded with instructions. Pursuant to those instructions Judge Marten dismissed Gray’s entire habeas petition without prejudice on October 26, 2016. On December 20, 2016, Judge Marten lifted the stay of execution and denied Gray’s request for a new stay.
Gray then filed a second petition for a writ of error coram nobis in the Army court. The Army CCA denied the petition earlier this year in a published, en banc decision. 76 M.J. 579 (link to slip op.).
Gray then filed a writ-appeal at CAAF, and CAAF’s daily journal shows the following entry for September 6, 2017:
No. 17-0525/AR. No. 17-0502/AR. Ronald Gray, Appellant v. United States, Appellee. CCA 20160775. On consideration of Appellee’s motion to consolidate Docket No. 17-0502/AR with Docket No. 17-0525/AR, to construe the overlength petition for extraordinary relief in coram nobis in Docket No. 17-0502/AR as a writ-appeal petition, and to extend time to file an answer to the consolidated petitions in Docket Nos. 17-0502/AR and 17-0525/AR, of Appellant’s writ-appeal petition in Docket No. 17-0525/AR and Appellee’s answer to said writ-appeal petition, and of Appellant’s motion for leave to file an overlength petition in Docket No. 17-0502/AR, it is ordered that the motion to consolidate Docket No. 17-0502/AR and Docket No. 17-0525/AR is hereby granted. Docket No. 17-0502/AR is removed from this case and will not be used on any other case. Henceforth, Docket No. 17-0525/AR will be used on all future documents filed in this case.
The motion to construe the overlength petition for extraordinary relief in coram nobis in Docket No. 17-0502/AR as a writ-appeal petition, having now been consolidated with the writ-appeal in Docket No. 17-0525/AR, is hereby granted.
That the Court will not consider the current writ-appeal filed in Docket No. 17-0525/AR.
That the motion to file an overlength petition in Docket No. 17-0502/AR is hereby denied and the Court will not consider that pleading. This denial is limited to the length, not the merits of the overlength pleading and is therefore without prejudice to Appellant refiling a single, consolidated writ-appeal petition in Docket No. 17-0525/AR that complies with Rule 24(b) of the Court’s Rule of Practice and Procedure.
The motion for an extension of time to file an answer is hereby denied as moot.
Appellant shall file a consolidated writ-appeal petition not later than 10 days from the date of this order. Appellee may file an answer within 10 days after the filing of the writ-appeal petition. Appellant may file a reply within 5 days after the filing of Appellee’s answer.
* Judge Ohlson is recused and did not participate in this case.
A new writ-appeal petition was docketed on Monday the 18th (timely because the court was closed on Saturday and Sunday, the 16th and 17th).