Opinion Analysis: CAAF puts Denedo in doubt by finding no jurisdiction to consider a writ of error coram nobis in United States v. Gray, No. 17-0525
Today CAAF issued a per curiam decision in United States v. Gray, __ M.J. __, No. 17-0525 (link to slip op.).
The opinion addresses a writ-appeal petition filed by Ronald Gray, who is one of only four prisoners on military death row (our #2 Military Justice Story of 2016). Finding no jurisdiction, CAAF dismisses the writ-appeal petition with prejudice. Judge Ohlson is recused and took no part in the decision.
In this post from September I discussed recent developments in the case, including the writ-appeal petition. The petition before CAAF challenges the Army CCA’s denial of a writ of error coram nobis earlier this year. 76 M.J. 579 (link to slip op.).
Coram nobis is “a belated extension of the original proceeding during which the error allegedly transpired.” United States v. Denedo, 556 U.S. 904, 912-913 (2009). In Denedo, the Supreme Court concluded that a CCA “has jurisdiction to entertain [a] request for a writ of coram nobis” in a court-martial where direct review was over and the conviction was final. 556 U.S. at 914 (emphasis added). This is because:
respondent’s request for coram nobis is simply a further step in his criminal appeal, [and so] the NMCCA’s jurisdiction to issue the writ derives from the earlier jurisdiction it exercised to hear and determine the validity of the conviction on direct review.
556 U.S. at 914 (marks and internal citation omitted). Furthermore:
Because the NMCCA had jurisdiction over respondent’s petition for coram nobis, the CAAF had jurisdiction to entertain respondent’s appeal from the NMCCA’s judgment.
556 U.S. at 915 (emphasis added).
But CAAF reaches a different conclusion in Gray:
The threshold question is whether this Court has jurisdiction to entertain a request for coram nobis in a case that is final in all respects under the UCMJ. We hold that we do not.
Slip op. at 2.
CAAF’s analysis is short:
Direct review of this capital case is done. The Army court has completed its review under Article 66, UCMJ, 10 U.S.C. § 866, and this Court has completed its review under Article 67, UCMJ, 10 U.S.C. § 867. Under Article 67a, UCMJ, the U.S. Supreme Court has denied certiorari. The President has approved the sentence and an execution date was set. Therefore, there is a final judgment as to the legality of the proceedings under Article 71(c)(1), UCMJ, and the case is final under Article 76, UCMJ, 10 U.S.C. § 876. Appellant has exhausted all of his remedies in the military justice system. In the absence of any statutory authority to provide extraordinary relief for a capital case that is final for all purposes under the UCMJ, we lack jurisdiction to hear Appellant’s writ-appeal petition for coram nobis.
Even assuming that this Court has jurisdiction to issue the requested writ, Appellant fails to show that he is entitled to extraordinary relief. He has a remedy other than coram nobis to rectify the consequences of the alleged errors, namely a writ of habeas corpus in the Article III courts: “an extraordinary remedy [such as coram nobis] may not issue when alternative remedies, such as habeas corpus, are available.” United States v. Denedo, 556 U.S. 904, 911 (2009). Moreover, where Appellant is still in confinement, coram nobis relief is unavailable. Loving v. United States, 62 M.J. 235, 254 (C.A.A.F. 2005).
Slip op. at 2-3.
It’s possible to read the first paragraph of this opinion as limiting itself to only capital cases, but it’s hard to understand why CAAF would make such a distinction.
There are, however, three other writ-appeal petitions in otherwise-final cases pending before CAAF right now (by my count). They include:
- United States v. Lewis, No. 18-0004/AF, which seeks retroactive application of Hills. I discussed the CCA’s opinion denying the writ petition in this post.
- United States v. Ward, No. 18-0006/AF, filed at CAAF on October 4, 2017. Only the opinion on direct review is available on the AFCCA’s website (link). Based on the facts, the case might raise the same issue as in Lewis.
- United States v. Jeter, No. 18-0012/AF, filed at CAAF on October 11, 2017. Only the opinion on direct review is available on the AFCCA’s website (I discussed it in this post). Based on the facts, the case also might raise the same issue as in Lewis.
If this per curiam opinion in Gray means that CAAF rejects extraordinary relief jurisdiction over all cases final on direct review, then it should similarly dismiss each of these three petitions with prejudice.
One wrinkle, however, is that it appears that the petitioners in Lewis, Ward, and Jeter are all still serving post-trial confinement, so their petitions might fail because of the availability of habeas. We may have to wait for a petition from someone not in confinement to find out what this per curiam opinion really says about CAAF’s jurisdiction.
The writ-appeals in Lewis, Ward, and Jeter were denied on the same day CAAF issued the opinion in Gray, but they were merely denied (and not dismissed):
No. 18-0004/AF. James R. Lewis, Appellant v. United States, Appellee. CCA 2017-05. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is denied.
No. 18-0006/AF. Joseph M. Ward III, Appellant v. United States, Appellee. CCA 2017-06. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is denied.
No. 18-0012/AF. Floyd M. Jeter, Appellant v. United States, Appellee. CCA 2017-07. On consideration of the writ-appeal petition, it is ordered that said writ-appeal petition is denied.
Unfortunately, I don’t think we can read much into this either way.