Last year, in United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page), a unanimous court found no requirement to show prejudice in the case of an objected-to major change (functionally rendering it a structural error), and reversed a conviction of sexual abuse of a child. CAAF also explained that a novel Article 134 specification must allege an act or omission that is not already an enumerated Article 134 offense, and reversed a conviction of a novel violation of Article 134 that was intended to charge obstruction of justice but omitted elements of that enumerated offense.
CAAF’s decision left Reese convicted of making false official statements and marijuana offenses, and CAAF remanded the case to the Coast Guard court to reconsider the adjudged sentence. Reese had pleaded guilty to all of those offenses except for one specification of making a false official statement (he had contested the charges that CAAF reversed), and he was originally sentenced by a general court-martial composed of a military judge alone to confinement for five years, reduction to E-1, and a dishonorable discharge. On remand, the Coast Guard CCA reassessed the sentence and granted a huge reduction, affirming only confinement for three months, reduction to E-1, and a bad-conduct discharge (discussed here).
At that point, Reese could have petitioned CAAF for a second review, but he didn’t. Apparently, however, he wanted to, and his appellate defense counsel failed to act. On May 4th, the Coast Guard CCA issued this order denying Reese a writ of error coram nobis filed because:
Reese III [the sentence reassessment opinion] became final when, on 18 September 2017, Petitioner’s opportunity to file a petition for review by the CAAF expired without a petition being filed. Articles 67(b) and 76, UCMJ. On 23 February 2018, Petitioner, through new appellate counsel, filed a motion for this court to reconsider our decision in Reese III, which we denied. Petitioner then filed a motion for en banc reconsideration, which we again denied.
Petitioner now asks that we issue a writ of error coram nobis to set aside his reassessed sentence and remand for a sentence rehearing or, in the alternative, set aside the bad-conduct discharge. He bases this on alleged ineffective assistance of appellate counsel when, contrary to his stated desires, they failed to file a timely petition for review with the CAAF. He also requests oral argument.
Reese v. United States, No. 001-18 (C.G. Ct. Crim. App. May 4, 2018) (link to order).
The CCA denies the writ, concluding that Reese needs to seek relief from CAAF for the failure to petition CAAF, and that his petition provides no basis for the CCA to change its underlying opinion:
The alleged error—failure to file a timely petition for review contrary to Petitioner’s express instructions—is of a fundamental character. See Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (“We have long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.”). But that error occurred after our action on the case was complete, did not impact our decision, and is not one we can correct. The New York Court of Appeals has expressed “that the natural venue for coram nobis review of ineffective assistance of appellate counsel claims is in the appellate tribunal where the allegedly deficient representation occurred.” People v. Bachert, 69 N.Y.2d 593, 599 (1987), superseded by statute, N.Y. Crim. Proc. Law § 460.30 (McKinney). We agree and note that Petitioner does not allege any deficient representation before this court, instead averring he was left “wholly unrepresented before the CAAF when his appellate counsel failed to file a petition with the CAAF . . . .” (Petitioner’s Brief at 9 (emphasis added).)
Vis á vis this court, Petitioner fails to meet the fifth threshold requirement for coram nobis: he presents no new information that would change our analysis regarding sentence reassessment and instead asks us to reevaluate evidence and legal issues already considered. We adhere to our decision in Reese III and deny relief.
Order at 3 (marks and emphasis in original).
Deadlines were the #5 Military Justice Story of 2016, because the defense missed the deadline to petition CAAF in United States v. LaBella, 75 M.J. 52 (C.A.A.F. Dec. 11, 2015) (CAAFlog case page), and the Air Force Appellate Government Division’s successive motions for reconsideration by the CCA did not toll the 60-day deadline for a certificate for review in United States v. Williams, 75 M.J. 244 (C.A.A.F. May 3, 2016) (CAAFlog case page).
The issue is Reese isn’t so much a missed deadline as it is a deliberate act, but CAAF’s 2015 decision in LaBella established that the Coast Guard CCA lacked jurisdiction to grant the reconsideration that Reese requested in February.
Now – depending on how the case is characterized – Reese faces either a 20-day deadline to file a writ-appeal petition with CAAF (CAAF R. 19(e)), or no specific deadline to file an original petition for a writ of error coram nobis (CAAF R. 19(d)), though the smart move would be to file an original writ petition within 20 days.