On Wednesday CAAF issued a short, per curiam opinion in the Air Force case of United States v. McGriff, 78 M.J. 487, No. 19-0206 (CAAFlog case page) (link to slip op.). The opinion is puzzling. CAAF did not grant review in McGriff, and the opinion merely explains that the denial of the review “carries no support whatsoever for concluding that the lower court either correctly or incorrectly interpreted the [law].” Slip op. at 1-2. In other words, CAAF has no opinion about the case.

The Air Force CCA’s decision in the case is available here. McGriff was an Air Force Staff Sergeant (E-5) who pleaded guilty in 2017 to sexual abuse of a child and was sentenced to confinement for 12 years, reduction to E-1, and a dishonorable discharge. McGriff was then confined at the United States Disciplinary Barracks (USDB) at Fort Leavenworth, Kansas. While confined, McGriff participated in numerous sexual acts with a member of the USDB staff, an Army Staff Sergeant (E-6) identified by the CCA as SSG TH. Sexual acts between USDB staff members and prisoners are, of course, strictly prohibited. After the sexual acts, McGriff tested positive for gonorrhea, a disease that SSG TH later admitted to criminal investigators he had in the past. SSG TH was also HIV-positive, a fact he did not disclose to McGriff.

On appeal, McGriff asserted that he was subjected to cruel and unusual punishment in violation of the Eighth Amendment and Article 55 of the UCMJ, or that the sexual acts with the USDB staff member otherwise justify reduction of his sentence as a matter of sentence appropriateness under Article 66 (an option affirmed by CAAF in United States v. Gay, 75 M.J. 264 (C.A.A.F. May 11, 2016) (CAAFlog case page)). A three-judge panel of the Air Force CCA agreed, finding a violation of both the Eighth Amendment and Article 55, and also finding that relief is warranted under Article 66, and it reduced McGriff’s sentence by one year. McGriff then petitioned CAAF for review of a single issue:

Whether the Court of Criminal Appeals improperly conducted a review of the prejudice resulting from Appellant being subjected to cruel and unusual punishment during his post-trial confinement.

The wording of the issue is a little puzzling because the CCA didn’t actually conduct a review of prejudice from the cruel and unusual punishment. The only use of the term prejudice in the CCA’s opinion involves a separate issue (post-trial delay), and the CCA granted relief for the punishment after applying a three-part test articulated by CAAF in United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006), and based on Farmer v. Brennan, 511 U.S. 825 (1994), that does not require a showing of prejudice. Furthermore, a quick review of the law suggests that the Eighth Amendment violation might be inherently prejudicial. See In re Hernandez-Miranda, No. 16-12893-J, 2016 U.S. App. LEXIS 13205, at *14 (11th Cir. June 28, 2016) (available here) (Martin, J., dissenting). But it’s likely that what McGriff wanted was for CAAF to grant review and either give him more relief (a greater reduction of his sentence) or order the CCA to apply some set of factors that would lead to more relief.

CAAF, however, denies review and issues the per curiam opinion that states, in its entirety:

On consideration of Appellant’s petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, we deny the petition. However, we note that denial of a petition, although it allows the decision below to stand, does not suggest that we either agree or disagree with the merits of a lower court’s resolution of the case. Cf. Teague v. Lane, 489 U.S. 288, 296 (1989) (recognizing that denial of certiorari by the Supreme Court carries no precedential value as it is not an expression of the Supreme Court’s opinion upon the merits of the case).

Thus, denial of this petition carries no support whatsoever for concluding that the lower court either correctly or incorrectly interpreted the scope and application of Farmer v. Brennan, 511 U.S. 825, 832−34 (1994), United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006), or United States v. Brennan, 58 M.J. 351, 355 (CA.A.F. 2003). Cf. Maryland v. Baltimore Radio Show, 338 U.S. 912, 919 (1950) (emphasizing that denial of certiorari reflects no judgment on the opinion below); United States v. Mahan, 1 M.J. 303, 307 n.9 (C.M.A. 1976) (reiterating that the denial of a petition is of no precedential value).

(paragraphing added) (footnote omitted).

It’s hard to understand why CAAF writes that now, in this case, and this way (and I’ve spent some time enlarging the forehead-shaped dent in my desk trying to figure it out). CAAF has periodically reminded counsel during oral arguments that a denial of review is not an endorsement of the opinion below. One recent and notable example was in the oral argument of United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) (the #3 Military Justice Story of 2016), and the court’s subsequent decision in Hills (an Army case) was a reversal of the Army CCA’s decision in United States v. Barnes, 74 M.J. 692 (A. Ct. Crim. App. May 8, 2015) (discussed here), pet. denied, 75 M.J. 27 (C.A.A.F. July 28, 2015). Similarly, CAAF’s recent decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page) (the #3 Military Justice Story of 2018), shows that court will reverse even oft-applied, decades-old precedent when the circumstances are right.

But McGriff doesn’t present any obvious challenge to any precedent, and even if the CCA’s finding of cruel and unusual punishment is wrong, Gay makes it clear that the court has plenary authority to reduce the sentence under Article 66 anyway. Accordingly, all CAAF’s denial of review really does is deprive the Supreme Court of jurisdiction to consider a petition for certiorari. See 28 U.S.C. § 1259.

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