Collateral review of (or a collateral attack on) a court-martial conviction involves a petition for extraordinary relief filed in the military or civilian courts. Collateral review is collateral because it exists in addition to the direct appellate review of a court-martial (under Articles 64, 66, 67, 67a, or 69; see Hathorne). I provided a more detailed outline of collateral review last fall, in this post.
Collateral review is one way to revisit an old case, possibly reversing a conviction that is otherwise deemed final. But a three-judge panel of the Army CCA issued a published opinion earlier this year drawing a line on when it will conduct such a review.
In Roberts v. United States, 77 M.J. 615, No. 20180005 (A. Ct. Crim. App. Jan. 30, 2018) (link to slip op.), Judge Wolfe writes for a unanimous panel and concludes that because the petition for extraordinary relief (filed pro se) is based on evidence discovered after trial, the two-year time limit in Article 73 for a petition for a new trial deprives the CCA of jurisdiction to conduct collateral review now:
Article 73, UCMJ, provides the statutory authority for this Article I court to provide relief based on evidence discovered after trial. However, Article 73, UCMJ, establishes a fixed two-year period to file petitions for a new trial. We have found no authority for this Article I court to allow for equitable tolling of the two-year limitation. Additionally, as the All Writs Act does not expand our jurisdiction, we cannot apply the All Writs Act in a manner that avoids the statutory limitation set out by Congress. See, e.g., United States v. LaBella, 75 M.J. 52, 54-55 (C.A.A.F. 2015) (holding the Court of Criminal Appeals erred in allowing for equitable tolling of jurisdictional filing deadline).
Slip op. at 3. A footnote observes that § 5336 of the Military Justice Act of 2016 increases the time limit to three years (effective on January 1, 2019).
Roberts’ petition was based on an assertion that:
he has Gulf War Illness from exposure to nerve agents during service, service-related post-traumatic stress disorder, anxiety, and depression. Petitioner asserts he became aware of his conditions only after being released from confinement. . . .
Broadly, petitioner bases his plea for relief on new evidence that he was unaware of at trial. Petitioner claims that had the court-martial had this evidence, the findings and sentence would have been directly affected or that the case would not have been referred to trial.
Slip op. at 2. Besides the fact that I think it incredibly unlikely that these conditions alone would have changed the result in Roberts’ case (that involved sexual offenses committed against his stepdaughter, a minor), these are facts that existed at trial and that distinguishes this case from, for example, United States v. Denedo, 556 U.S. 904 (2009), where the petition was based on bad advice given at trial but facts that developed long after.
Roberts petitioned CAAF for review on March 28, 2018 (docket no. 18-0177/AR).