Today CAAF issued a per curiam decision in United States v. Gray, 77 M.J. 5, 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:

  1. 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.
  2. 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.
  3. 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.

8 Responses to “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”

  1. No Man says:

    Re-reading this, I think it’s the alternative remedies available.  Because Gray has habeas remedies in the US District Courts he doesn’t get coram nobis in the military courts.  Once those District Court habeas options are exhausted (ala Loving), coram nobis jurisdiction would exist at CCA/CAAF again. See Denedo, 556 U.S. at 911.

  2. Zachary D Spilman says:

    But CAAF identifies the availability of habeas as an alternative reason to deny the writ-appeal “assuming that this Court has jurisdiction. . .”

    Also, the District Court dismissed the habeas petition because of the availability of coram nobis (for issues not previously raised) (discussed here).

    I’m genuinely confused by this opinion. And it’s not the first time I’ve been confused by dismissal of a writ-appeal (link). 

  3. Former DC says:

    This is a real keystone cops routine.  CAAF says it has no jurisdiction via corim nobis, go to Article III on habeas.  The District Court says no jurisdiction via habeas, go to CAAF on corim nobis.
    WAIT A MINUTE! Somebody has to eat this case. Both cannot be correct.
    My immediate reaction: go up on Art 67a and ask SCOTUS for a GVR telling SOMEBODY to take the case.
    My more thoughtful reaction: another reason the military courts need to be folded into Article III, but that’s an argument for another day.

  4. DCGoneGalt says:

    This is too complicated for me. 
    I prefer tales of things I can understand like sex, drugs, violence, and deceit.

  5. Dew_Process says:

    [DISCLAIMER: I worked on various issues in Gray between 2000 (his cert. petition on direct appeal), and on a specific issue in his original federal habeas action].
    As CAAF’s opinion demonstrates here, this area of the law is hopelessly confused and lacking in guidance from SCOTUS.  But, I think CAAF got off the track here. This case involved Gray seeking coram nobis relied as well as alternatively habeas relief.  ACCA (based on the extensive Loving litigation), concluded that it lacked jurisdiction over the alternative habeas relief, but proceeded to consider (and deny relief) on the coram nobis issues. And as Zach has noted, CAAF’s decision flies in the face of Denedo. Under Article 67(a)(3), UCMJ, had appellate jurisdiction over the coram nobis issues.
    CAAF, held in Loving v. United States, 62 M.J. 235 (2005)(coram nobis case):

    Reflecting its original purpose, a writ of error coram nobis remains appropriate when no other remedy is available. A distinctive feature of this writ is that it alleges no error by the original court or its findings, but invites the original court’s attention to new facts or law that were not known to the court at the time and that may change the result. … Id., 252 (footnotes omitted).

    In the context of State court proceedings, it is clear that SCOTUS strictly applies the “exhaustion” doctrine and it is clear that the USDC Judge ultimately concluded that Gray needed to do that within the military justice system, and so dismissed the federal habeas action without prejudice so that could be accomplished.  But, SCOTUS has never expressly addressed the exhaustion doctrine vis-à-vis military post-conviction proceedings, even though most federal courts have adopted that posture. The seminal article on that is Prof. Weckstein’s FEDERAL COURT REVIEW OF COURTS-MARTIAL PROCEEDINGS: A DELICATE BALANCE OF INDIVIDUAL RIGHTS AND MILITARY RESPONSIBILITIES, 54 Mil. L. Rev. 1 (1971) [collecting cases].
    The seminal article on “exhaustion” is Prof. Yackle’s The Exhaustion Doctrine in Federal Habeas Corpus: An Argument for a Return to First Principles [available HERE ] where he notes:

        The exhaustion doctrine in federal habeas corpus contemplates not the relinquishment of federal jurisdiction to determine the merits of federal claims arising in state criminal prosecutions, but the appropriate timing of an undoubted federal power to adjudicate in due course. Simply stated, the doctrine postpones federal review until petitioners have exhausted state judicial remedies still available for the treatment of their federal claims at the time they wish to apply for federal relief. [footnotes omitted].

    Does anyone know if the jurisdictional issue was briefed separately at CAAF?  And, if so, are they available?  Am curious to see how they framed this issue, if at all.

  6. stewie says:

    Even if wrong, this decision provides clarity for Gray does it not? He has no further avenues in military court, and thus habeas must now be available to him. And once his habeas is done, he would have a coram nobis avenue with CAAF.

  7. stewie says:

    Never mind, missed the with prejudice part.

  8. Dew_Process says:

    The answer appears to be this:

    This Court may issue a writ of habeas corpus under the All Writs Act in this death penalty case; therefore a coram nobis writ is not appropriate.

    Loving v. U.S., 62 MJ 235, 255 (CAAF 2005).