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:

  1. Trial;
  2. Convening authority’s action;
  3. Automatic review by a CCA;
  4. Discretionary review by CAAF;
  5. 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:

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).

With that background, let’s return to CAAF’s per curiam decision in Gray (link to slip op.) (previously discussed here).

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.

20 Responses to “A short introduction to petitions for extraordinary relief (and some more analysis of Gray)”

  1. stewie says:

    Ah, missed the with prejudice part. That is weird/concerning.

  2. Dew_Process says:

    A Judge in Kentucky once noted that writs of coram nobis are “the wild ass of the law which the courts cannot control.” Anderson v. Buchanan, 168 S.W.2d 48, 55 (Ky. 1943) (Sims, J., dissenting).
    Like Denedo’s procedural posture, i.e., the CCA denied coram nobis relief on the merits, the question of CAAF’s appellate jurisdiction here is certainly up for debate — yet, Gray may be wrong, something that may not be appealable via the certiorari process to SCOTUS at this point. And if you’re confused or befuddled on this, consider THIS article by a ConLaw Prof which asks this question, “Does the Supreme Court have jurisdiction to directly review decisions of the Court of Appeals for the Armed Forces at all?” Perhaps he hasn’t read Art. 67a, UCMJ.
    A more scholarly approach is by Prof. Steve Vladeck’s article, “MILITARY COURTS AND THE ALL WRITS ACT,” available HERE.  Yet, the cynic in me suggests that perhaps CAAF is simply fed up with Gray’s litigation approach and is punting the proverbial ball back to the USDC.  See also, MAJ Jeremy Stephens article, “Explaining the Extraordinary: Understanding the Writs Process,” available HERE.  But, as I’ve noted elsewhere here on another thread about Gray, the issue remains in a jurisprudential fog since SCOTUS has never clarified to what extent or how, the “exhaustion principle” applies in cases such as this where a federal district court told Gray to go back to the military and exhaust your military remedies, and the military slams the court-house door shut by claiming no jurisdiction.
    Perhaps Gray’s counsel will seek reconsideration or at least clarification from CAAF, because as Zach correctly notes, “it’s a major change in military jurisprudence.”

  3. Dew_Process says:

    Well, perhaps my fog is clearing.  SCOTUS has indeed spoken on the “exhaustion” issue in military cases in Gusik v. Schilder, 340 U.S. 128 (1950), see also, Noyd v. Bond, 395 U.S. 683 (1969). Both stand for the proposition that the exhaustion doctrine applies to the military.
    Perhaps there’s a more subtle reason for CAAF’s decision in Gray which they didn’t articulate. For anyone dealing with civilian PCR cases in federal courts, absent some very limited circumstances, one basically gets one bite at the PCR apple, i.e., successive petitions are generally precluded. Gray’s case has been before the CAAF numerous times, especially regarding his mental health issues. But, if CAAF is going to go down that road, they should articulate that.
    HERE’s another view on the topic.

  4. Zachary D Spilman says:

    The problem, Dew_Process, is that abstention (because a different remedy is available, or because the petition is successive, or for some other reason) is wholly different from the absence of jurisdiction.

    And CAAF found no jurisdiction. 

    Considering this is a capital case with a full (albeit per curiam) opinion, it’s hard not to take that finding seriously. 

  5. Dew_Process says:

    Yes, I agree, but if the ACCA had jurisdiction to address the coram nobis issues on the merits, albeit denying relief, then as to those issues, CAAF should have appellate jurisdiction. So we go full circle as to why don’t they have jurisdiction as they claim?  It appears, but is far from clear, that they are invoking the “finality” rule — but that’s been rejected repeatedly, to include most recently in Denedo.
    And speaking of Denedo, HERE’s an insightful amicus brief in that case focusing on this issue.

  6. Tami a/k/a Princess Leia says:

    Why prolong this case?  Why not just deny on the merits and be done with it?  Or is this an intentional decision to force SCOTUS to decide, or revisit Denedo?  Or is this another example of “death is different,” meaning since POTUS has approved the sentence, that really is final, final, final?  We really mean final.  The irony of a Texas POTUS taking 7 years to sign off on a death warrant, means no joke, this is final!
    Perhaps the case is saved from SCOTUS review because CAAF said “even if we did have jurisdiction, we would deny because he’s still in confinement, so coram nobis isn’t available anyway.”  No joke, this is final.  Stick a fork in military appellate courts, they are done with reviewing this case.

  7. Vulture says:

    The CAAF is raising a big middle finger to civilian control of the military.  They are saying “Hey Supreme Court, if you want it, take it.”  And like the butt plugged sock puppets they cohabitate with, ain’t nobody in charge of this circus.

  8. Peanut Gallery says:

    Zach, I must admit I have never been very impressed with your legal analysis.  Fairly certain the CAAF isn’t trying to “overrule the Supreme Court” in a per curiam.  This is about availability of habeas, defendant in confinement, and being done with Gray.

  9. stewie says:

    Zach and I often disagree but that’s a bit harsh Peanut. And in this case, the Supreme Court specifically held that CAAF has coram nobis jurisdiction, so CAAF coming after and saying, actually no we don’t is, if not “overruling” certainly “ignoring” superior court precedence…and not bothering to at least distinguish it.

  10. Tami a/k/A Princess Leia says:

    Maybe the difference maker is that Gray is still confined, whereas Denedo wasn’t?  And maybe the federal judge made a mistake in suggesting military still could exercise jurisdiction? Seems like slamming the door shut on military appeals court precludes federal court from punting to us again.

  11. Vulture says:

    Zach’s analysis?  Read the dissent in Denedo.  You don’t see anything that psychedelic outside of a Pink Floyd concert.  Or maybe its just a peanut allergy.

  12. Philip D. Cave says:

    And now for something different:

  13. stewie says:

    I like this one better:

  14. Zachary D Spilman says:

    Here’s a hypothetical.

    You get a call from a potential client.

    The potential client – let’s call him Jake – is a lawful permanent resident (green card holder) who joined the Navy. Ten years ago, while on active duty, Jake made some stupid decisions and got involved in a conspiracy to defraud a local business. He got caught. Jake told his lawyers he was most afraid of being deported. Don’t worry, said his lawyers (including civilian counsel who, it turns out, was an alcoholic who was not sober back then), the government will let you plead guilty at a special court-martial, which is a misdemeanor and so doesn’t trigger deportation. Jake took the deal, pleaded guilty, the CCA affirmed, Jake was discharged, and the conviction has been final for eight years.

    Of course Jake’s lawyers were wrong, and now the Government is trying to deport Jake. He’s a really nice guy, active in his community, and needs your help.

    Can you go to the NMCCA and ask for a writ of error coram nobis on the basis of ineffective assistance of counsel because Jake’s lawyer failed to advise him of the immigration consequences of his plea?

    If you do, do you think the Government will argue that the NMCCA lacks jurisdiction to provide extraordinary relief in a case that is final for all purposes under the UCMJ?

    And won’t the Government use CAAF’s opinion in Gray as support for its argument? 

  15. Dew_Process says:

    @ Tami – at first, I thought that too. But in practice, it has never been a bar at the CMA/CAAF. But, if that’s how they’re going to proceed in the future, that is imho, a significant and fundamental change, and contrary to long-standing practice and precedent.
    For those with a desire to see some of the legal history here, check out this 1951 law review article entitled, The Writs of Error Coram Nobis and Coram Vobis, available HERE.
    Then, from former CJ Everett, Collateral Attack on Court-Martial Convictions, (1969), available HERE.  Notably, he likewise asserts that military exhaustion must occur before an Article III court can intervene.

  16. Dew_Process says:

    Well, THIS  interesting article just slid into my inbox!

    Finally, we examine some of the important questions raised by the conclusion that state and federal prisoners have a constitutional right to collateral relief. Although the questions are complex, and not all of the answers are clear, the uncertainties surrounding some of the contours of the remedy recognized in Montgomery should not obscure the fact that this seemingly innocuous holding about the Supreme Court’s appellate jurisdiction actually upends a half-century’s worth of doctrinal and theoretical analyses of collateral post-conviction review, a result that should have a significant impact on both commentators’ and courts’ understanding of the relationship between collateral post-conviction remedies and the Constitution. [Emphasis added]

    I’ve just skimmed this article, but perhaps something’s in the judicial water in DC . . . .

  17. k fischer says:

    From Wikipedia:
    peanut gallery was, in the days of vaudeville, a nickname for the cheapest and ostensibly rowdiest seats in the theater, the occupants of which were often known to heckle the performers.

  18. Cashew Gallery says:

    Peanut gallery best watch hisself….

  19. Vulture says:

    Commentary to Maggs nomination is the following Q and A.
    Question:  In your view, are there any legislative changes needed regarding the role, responsibilities, or jurisdiction of the USCAAF?
    Answer: I am not aware of any legislative changes needed regarding the role, responsibilities, or jurisdiction of the USCAAF.
    Yeah buddy.  Tell me, does that party line come with unlimited minutes?

  20. Alfonso Decimo says:

    This article is very useful and I will save it in my trial binder, in case I ever return to court-martial practice (unlikely).