This week at SCOTUS: A new petition for certiorari was filed in Richards v. Donovan, et al., No. 19-55. The petition is available here. The case (previously discussed here) involves an Air Force Lieutenant Colonel who was convicted of possession of child pornography and indecent acts with a child, and sentenced to confinement for 17 years, total forfeitures, and a dismissal. The Air Force CCA and CAAF affirmed the findings and sentence in United States v. Richards, No. ACM 38346, 2016 CCA LEXIS 285 (A.F. Ct. Crim. App. 2 May 2016) (unpub. op.), aff’d, 76 M.J. 365 (C.A.A.F. 2017), cert. denied, 138 S. Ct. 2707 (2018) (CAAFlog case page). Richards also filed numerous petitions for extraordinary relief with the military appellate courts, including petitions for habeas corpus that were denied on the basis of the Air Force Court’s holding that it lacks habeas jurisdiction in a case when direct review is over. Thereafter, CAAF dismissed a writ-appeal petition for lack of jurisdiction. Richards v. James, 78 M.J. 323 (C.A.A.F. 2019) (sum. disp.).

The case has a messy procedural history (with multiple petitions for extraordinary relief). In particular, there are three decisions (two orders and one opinion) on the Air Force CCA’s website addressing petitions for extraordinary relief. First, on October 19, 2018, the CCA denied a petition for a writ of mandamus in an unpublished decision. Richards v. James, No. 2017-04, 2018 CCA LEXIS 507 (A.F. Ct. Crim. App. Oct. 19, 2018) (available here). Then, on October 22, 2018, the CCA issued an order dismissing a habeas petition. Richards v. Wilson, No. 2018-07, 2018 CCA LEXIS 509 (A.F. Ct. Crim. App. Oct. 22, 2018) (available here). Finally, on December 7, 2018, the CCA issued an order dismissing a petition for a writ of mandamus (that seems to be based on the same underlying issue as the habeas petition). Richards v. Wilson, No. 2018-10, 2018 CCA LEXIS 562 (A.F. Ct. Crim. App. Dec. 7, 2018) (available here). As a result, there are three separate CCA docket numbers for petitions for extraordinary relief: 2017-04 (mandamus), 2018-07 (habeas), and 2018-10 (mandamus).

There are also multiple CAAF docket numbers. The only clear CAAF decision, however, is a summary disposition dismissing a writ-appeal petition for lack of jurisdiction. Richards v. James, No. 19-0093/AF, 78 M.J. 323 (C.A.A.F. 2019) (daily journal). According to CAAF’s daily journal, that writ-appeal was of the CCA’s action on the habeas petition (CCA No. 2018-07). I see no CAAF docket entries referencing the subsequent petition for mandamus (CCA No. 2018-10). It’s possible, however, that CAAF docket number 19-0166/AF – in which a motion for enlargement of time to file a writ-appeal was denied on February 6, 2019 – involves CCA No. 2018-10, even though CAAF’s daily journal associates that docket number with CCA No. 2018-07.

Richards’ cert. petition clearly references CAAF’s action on the habeas petition (78 M.J. 323, CAAF No. 19-0093/AF, CCA No. 2018-07), and it’s not clear that Richards filed a timely writ-appeal of the mandamus petition. Nevertheless, the body of the cert. petition challenges the CCA’s decision on the mandamus petition. The question presented is:

Can the Executive Branch divest an Article I military court of appeals of jurisdiction over an extraordinary writ brought under the All Writs Act, 28 U.S.C. § 1651(a), once jurisdiction has vested under the Uniform Code of Military Justice?

The Air Force CCA has held – seemingly in direct conflict with United States v. Denedo, 556 U.S. 904, 917 (2009) (rules of finality do not bar coram nobis jurisdiction) – that it lacks jurisdiction to grant extraordinary relief in a case that is final under Article 76. Sutton v. United States, 78 M.J. 537, 542 (A.F. Ct. Crim. App. 2018) (available here). Additionally, both the Air Force and the Army CCAs have held that they lack jurisdiction to grant habeas in a final case. See Chapman v. United States, 75 M.J. 598 (A.F. Ct. Crim. App. Feb. 18, 2016) (discussed here); Gray v. Belcher, 70 M.J. 646, 647 (Army Ct. Crim. App. 2012). CAAF seems to agree, as it held in United States v. Gray, 77 M.J. 5, 6 (C.A.A.F. 2017), that it does not have jurisdiction to entertain a request for coram nobis in a final case (discussed here and here). The Solicitor General later disagreed with CAAF’s finding of no jurisdiction (noted here).

In other news, the Solicitor General received a second extension of time to file a cert. petition in Collins.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: CAAF has completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on August 8, 2019.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

2 Responses to “This Week in Military Justice – July 14, 2019”

  1. Anonymous says:

    A possible reason why U.S. v. Richards has such a lengthy procedural history is Richards was a JAG when he was convicted. He sure is fighting tooth and nail to overcome his conviction and subsequent denial of VA benefits and sex offender registration.

  2. Cloudesley Shovell says:

    It sure is nice to see that the courts are coming around to the notion that Art. 76 means what it says.  I’ve heard rumors that some reservist was making this argument way back in 2007, but nobody paid attention because, well, the guy was just a reservist, and on top of that, doesn’t even practice law outside his one weekend a month.  What would he know?
    Kind regards,