Yesterday CAAF issued what appears to be a game-changing per curiam decision dismissing a writ-appeal on jurisdictional grounds in United States v. Gray, 77 M.J. 5, No. 17-0525 (discussed here).
I’ve had a few discussions with some folks and get the sense that there’s a lot of confusion about the underlying legal issue, so this post is a short introduction to extraordinary relief, followed by some more discussion of why the Gray decision appears to be a big deal.
The typical progress of a court-martial conviction is:
- Convening authority’s action;
- Automatic review by a CCA;
- Discretionary review by CAAF;
- Discretionary review by SCOTUS.
There are other routes (see Hathorne), but this is the most-common.
This process is called direct review. Once direct review is complete a conviction is final.
A separate process is called collateral review (or a collateral attack), and involves a petition for extraordinary relief. Collateral review is collateral because it exists in addition to the direct review.
Collateral review can occur pre-conviction or post-conviction. Some recent examples of collateral review are:
- This post-conviction challenge by an Air Force accused, seeking retroactive application of Hills;
- This post-conviction challenge by MSGT Hennis, whose capital case is still pending direct review;
- The post-trial, pre-convening authority’s action, Government petition in Howell v. United States, 75 M.J. 386 (C.A.A.F. 2016) (CAAFlog case page);
- The pre-conviction challenge of the military judge in Hasan v. Gross, 71 M.J. 416 (C.A.A.F. Dec. 3, 2012) (CAAFlog case page);
- The pre-conviction petitions by a Coast Guard convening authority, contesting a venue choice by a military judge;
- Mandamus petitions filed by alleged victims under Article 6b; and
- The recent developments in the Gray case.
There’s also an interlocutory appeal. The UCMJ authorizes only one kind of interlocutory appeal: a prosecution appeal under Article 62. An argument could be made that a 6b petition is interlocutory and not collateral, but I think Article 6b is more properly seen as a limited grant of standing and jurisdiction for a collateral attack by a non-party.
Collateral review is not a substitute for direct review. A prerequisite for any successful collateral attack is that there must be “no other adequate means to attain relief” other than by collateral review. Hasan v. Gross, 71 M.J. 416, 418 (C.A.A.F. 2012). This is “a condition designed to ensure that the writ will not be used as a substitute for the regular appeals process.” Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 380-81 (2004). An additional prerequisite for a successful post-conviction collateral attack is that “sound reasons exist for failure to seek appropriate earlier relief.” United States v. Morgan, 346 U.S. 502, 512 (1954).
An added layer of complexity for us is that a collateral attack on a court-martial can occur in the federal civil courts and in the military appellate courts. We’ve generally referred to attacks in the civil courts as collateral on this blog – and to attacks within the military justice system as merely petitions for extraordinary relief – but fundamentally both are collateral attacks on a court-martial (just in different forums).
A collateral attack begins with a petition for extraordinary relief in the form of a writ. A federal court’s authority to issue a writ comes from a federal statute called the All Writs Act, that says:
The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
28 U.S.C. § 1651(a).
The commonly-requested writs are the writs of habeas corpus (get out of jail), error coram nobis (habeas without the jail), mandamus (make someone do something), and prohibition (make someone stop doing something). The truly-desperate sometimes get more creative with their writ petitions, but the vast majority of collateral reviews of courts-martial involve a request for one of these four writs.
The writ petition is typically filed at a CCA, and then a writ-appeal is filed at CAAF. CAAF’s rules, however, permit an original writ petition to be filed at CAAF (but require good cause for skipping the CCA).
The All Writs Act makes collateral review function (by authorizing the writ), but it does not create or expand the jurisdiction of a court in any particular case. That is because the All Writs Act requires the writ be “in aid of” the court’s existing jurisdiction. For the military courts, jurisdiction comes from Articles 6b, 66, and 67. For a post-conviction collateral attack, jurisdiction is based on the sentence. See United States v. Arness, 74 M.J. 441 (C.A.A.F. Aug. 19, 2015) (CAAFlog case page). For a pre-conviction collateral attack, the military courts:
have authority to act in aid of [their] existing jurisdiction when the harm alleged has the potential to directly affect the findings and sentence.
Randolph v. HV, 76 M.J. 27, 31 (C.A.A.F. 2017) (CAAFlog case page) (marks and internal citation omitted) (quoting Ctr. for Constitutional Rights v. United States, 72 M.J. 126, 129 (C.A.A.F. 2013) (CAAFlog case page) (citing Hasan v. Gross, 71 M.J. 416 (C.A.A.F. 2012) (CAAFlog case page))).
So, when considering extraordinary relief, the big questions are whether there is jurisdiction, and whether the writ is necessary and appropriate (and not being used as a substitute for direct review) (this is a simplification in the interest of keeping this post to a manageable length).
A general court-martial sentenced Gray to death in 1988. That triggered the CCA’s jurisdiction under Article 66(b)(1). The Army CCA affirmed the death sentence in 1993 (it was called the Court of Military Review at the time). That triggered CAAF’s jurisdiction under 67(a)(1), and the Supreme Court’s jurisdiction under 28 U.S.C. § 1259(1). CAAF affirmed the findings and sentence in Gray in 1999. The Supreme Court denied certiorari in 2001.
At that point direct review was over and the death sentence could be executed (once approved by the President). See Article 71(c)(1). President Bush approved the capital sentence in 2008. The conviction was then final. See Article 76. See also Loving v. United States, 62 M.J. 235, 240-244 (C.A.A.F. 2005) (Loving I) (discussing difference between finality under Articles 71(c)(1) and 76 in a capital case).
Then came collateral review.
Gray filed a petition for a writ of habeas corpus in district court, and a petition for a writ of error coram nobis it the Army CCA. There were a few reasons for these dual petitions, including that 28 U.S.C. § 2244(b) (AEDPA) requires dismissal of a second or successive habeas corpus application and the military courts had already denied Gray relief on direct review (so denial of habeas was likely if he sought it there). But CAAF had also expressed skepticism (in Loving I) about whether the military courts had jurisdiction to grant habeas in a case that is final under Article 76. So Gray went to District Court for habeas, and to the CCA for coram nobis.
Reviewing Gray’s coram nobis petition, the Army CCA held – probably as dicta – that it does not have jurisdiction to grant habeas in such a case. Gray v. Belcher, 70 M.J. 646, 647 (Army Ct. Crim. App. 2012). The Air Force CCA reached the same conclusion last year – definitely not as dicta – in Chapman v. United States, 75 M.J. 598 (A.F. Ct. Crim. App. Feb. 18, 2016) (discussed here).
But the Army CCA expressly held that it had jurisdiction to consider Gray’s petition for a writ of error coram nobis:
Although a case is final pursuant to Article 76, UCMJ, a service court may nonetheless entertain a writ of coram nobis “in aid of” its jurisdiction. Denedo II, 556 U.S. at 915-17, 129 S. Ct. at 2223-24; Denedo I, 66 M.J. at 120-21, 125; 28 U.S.C. § 1651(a) (2010).
Gray v. Belcher, 70 M.J. 646, 647 (A. Ct. Crim. App. 2012). The CCA then denied the petition on the basis that the alternative of habeas was available. 70 M.J. at 647-648.
Gray file a writ-appeal at CAAF that was denied without prejudice:
On consideration of the writ-appeal petition, it is ordered that said writ-appeal petition is hereby denied without prejudice to raising the issue asserted after the U.S. District Court for the District of Kansas rules on the pending habeas petition.
Gray v. Belcher, 71 M.J. 300 (C.A.A.F. 2012) (summ. disp.).
But then U.S. District Judge J. Thomas Marten dismissed Gray’s entire habeas petition without prejudice, on October 26, 2016, because the military courts hadn’t considered the claims raised (for the first time) in the coram nobis petition.
Gray then returned to the Army CCA with a new coram nobis petition that the CCA considered and denied.
Gray then filed another writ-appeal at CAAF, leading to yesterday’s two-part, per curiam opinion, in which CAAF first held:
we lack jurisdiction to hear Appellant’s writ-appeal petition for coram nobis.
Slip op. at 3. Then CAAF held:
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. . .
Slip op. at 3. See the problems?
The first of CAAF’s holdings – that it has no jurisdiction – is a dramatic reversal of numerous precedents, including the recent and very on-point decision of the Supreme Court in United States v. Denedo, 556 U.S. 904, 912-913 (2009), in which the Court affirmed CAAF’s holding that it (and a CCA) have jurisdiction to consider coram nobis relief in a case where the conviction is final under Article 76 (and rejected the Government’s argument that CAAF lacks jurisdiction).
In particular, in Denedo the Supreme Court held that:
[Denedo’s] request for coram nobis is simply a further step in his criminal appeal, [and so] the [CCA]’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). It also held that:
Because the [CCA] had jurisdiction over [Denedo’s] petition for coram nobis, the CAAF had jurisdiction to entertain [Denedo’s] appeal from the [CCA]’s judgment.
556 U.S. at 915.
This makes perfect sense, considering how collateral review works. Because there was direct review jurisdiction, there is coram nobis jurisdiction. But yesterday’s decision in Gray reaches the exact opposite conclusion.
The second of CAAF’s holdings is somewhat paradoxical since Gray’s habeas petition was dismissed by the District Court for the purpose of enabling coram nobis review in the military courts. But I think CAAF is really just saying that it won’t entertain a coram nobis petition until (and unless) a habeas petition is rejected. Put differently, where habeas is available, habeas is preferred.
The problem, however, is that CAAF dismisses Gray’s writ-appeal with prejudice:
Accordingly, in light of the lack of jurisdiction, the writ-appeal is dismissed with prejudice.
Slip op. at 3 (emphasis added). In other words, Gray may not return to CAAF (or, presumably, the CCA) after habeas. So habeas isn’t just preferred in Gray’s case; it’s exclusive.
If that’s correct, it’s a major change in military jurisprudence.