CAAFlog » Collateral Review

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).

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Monday’s daily journal has this entry:

No. 18-0228/AR. United States, and ST, Appellees v. Colby Morris, Appellant. CCA 20180088. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.

The filing involves a petition for extraordinary relief in the nature of a writ of mandamus that was granted by the Army CCA last month, in United States and ST v. Lieutenant Colonel Shahan, Military Judge, and Morris, No. 20180088 (A. Ct. Crim. App. Apr. 18, 2018) (link to slip op. (on CAAFlog)).

Last year, in a case with a similar (but different in a significant way) procedural posture, CAAF ruled 3-2 that it lacks jurisdiction to consider a writ-appeal of a CCA’s action on an alleged victim’s Article 6b writ peition. See Randolph v. HV and United States, 76 M.J. 27 (C.A.A.F. Feb. 2, 2017) (CAAFlog case page).

But this writ-appeal is different because the petition was brought by both the prosecution and the alleged victim; “pursuant to the All Writs Act, 28 U.S.C. § 1651 and Article 6b, Uniform Code of Military Justice, 10 U.S.C. § 806b.” Slip op. at 1 (emphasis added). So it’s a hybrid petition, and jurisdiction may exist under Article 66 (for the CCA) and Article 67 (for CAAF), and not merely under Article 6b.

The case also raises an interesting question about Mil. R. Evid. 412, the military’s rape shield rule.

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On Friday CAAF denied two writ-appeal petitions:

No. 18-0167/NA. Charles M. Burleson, Appellant v. United States, Appellee. CCA 200700143. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is hereby denied.

No. 18-0180/MC. Luiji R. Pierre, Appellant v. United States, Appellee. CCA 201300257. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is denied.

I discussed the NMCCA’s decisions in these cases last month, in this post. Both decisions rejected retroactive application of CAAF’s blockbuster decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page).

CAAF previously rejected a writ-appeal petition raising the same issue in the Air Force case of  Lewis v. United States, 76 M.J. 829 (A.F. Ct. Crim. App. Sep. 20, 2017) (discussed here), pet. denied, 77 M.J. 106 (C.A.A.F. Nov. 13, 2017).

Earlier this year a three-judge panel of the Army CCA issued an unpublished decision denying a petition for extraordinary relief in Murray v. United States, No. 20180025 (A. Ct. Crim. App. Jan. 31, 2018) (link to slip op.).

The petition was based on allegations of prosecutorial misconduct and the CCA rejects it because the claimed misconduct was “known by appellant prior to the original court-martial judgment,” and because it finds “no valid reason for petitioner’s failure to raise this issue during his court-martial and seek relief earlier.” Slip op. at 1.

But the CCA doesn’t leave it there. Writing for the panel, Senior Judge Campanella details the substance of the allegations, explaining that:

Petitioner alleges that during his court-martial, the prosecutor, Lieutenant Colonel (LTC) Matthew McDonald, took CPT KB aside, and asked him a series of questions related to the rental arrangement between petitioner and CPT KB and asked CPT KB whether he reported the rental income on his income taxes. Petitioner asserts that during this conversation LTC McDonald threatened CPT KB with criminal prosecution, and reporting him to his chain of command and the Internal Revenue Service (IRS), if he testified for petitioner.

Slip op. at 2. If you think the name of that prosecutor is familiar, you’re right. CAAF also named him in United States v. Sewell, 76 M.J. 14 (C.A.A.F. 2017) (CAAFlog case page).

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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).

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In United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), CAAF held that charged offenses may not be used for propensity purposes under Mil. R. Evid. 413.

In Lewis v. United States, 76 M.J. 829, No. 2017-05 (A.F. Ct. Crim. App. Sep. 20, 2017) (link to slip op.) (discussed here), a three-judge panel of the Air Force CCA denied a petition for extraordinary relief in the nature of a writ of coram nobis that sought retroactive application of Hills to cases where the appeals are over and the conviction is final.

Now, rejecting a pair of petitions for extraordinary relief, a three-judge panel of the Navy-Marine Corps CCA follows suit and concludes that CAAF’s decision in Hills does not apply retroactively.

First, in Burleson v. United States, __ M.J. __, No. 200700143 (N.M. Ct. Crim. App. Feb. 26, 2018) (link to slip op.), the panel concludes that Hills is non-retroactive and that the petition seeks to reevaluate issues raised (but rejected) during the ordinary appeal. Next, in Pierre v. United, No. 201300257 (N.M. Ct. Crim. App. Mar. 8, 2018) (link to slip op.), the panel applies Burleson while noting that the petitioner was confined (and so should have filed a petition for a writ of habeas corpus).

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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.

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Today CAAF issued a per curiam decision in United States v. Gray, 77 M.J. 5, No. 17-0525 (link to slip op.).

The opinion addresses a writ-appeal petition filed by Ronald Gray, who is one of only four prisoners on military death row (our #2 Military Justice Story of 2016). Finding no jurisdiction, CAAF dismisses the writ-appeal petition with prejudice. Judge Ohlson is recused and took no part in the decision.

In this post from September I discussed recent developments in the case, including the writ-appeal petition. The petition before CAAF challenges the Army CCA’s denial of a writ of error coram nobis earlier this year. 76 M.J. 579 (link to slip op.).

Coram nobis is “a belated extension of the original proceeding during which the error allegedly transpired.” United States v. Denedo, 556 U.S. 904, 912-913 (2009). In Denedo, the Supreme Court concluded that a CCA “has jurisdiction to entertain [a] request for a writ of coram nobis” in a court-martial where direct review was over and the conviction was final. 556 U.S. at 914 (emphasis added). This is because: 

respondent’s request for coram nobis is simply a further step in his criminal appeal, [and so] the NMCCA’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). Furthermore:

Because the NMCCA had jurisdiction over respondent’s petition for coram nobis, the CAAF had jurisdiction to entertain respondent’s appeal from the NMCCA’s judgment.

556 U.S. at 915 (emphasis added).

But CAAF reaches a different conclusion in Gray:

The threshold question is whether this Court has jurisdiction to entertain a request for coram nobis in a case that is final in all respects under the UCMJ. We hold that we do not.

Slip op. at 2.

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Earlier today I noted that BGen Baker filed a petition for a writ of habeas corpus seeking release from confinement to quarters after being found in contempt by military commission judge Colonel Spath in connection with a dispute over the release of civilian attorneys representing Abd al Rahim al Nashiri, who is accused of orchestrating the 2000 bombing of USS Cole.

As I wrote in this post, BGen Baker’s actions do not meet the statutory definition of contempt applicable to military commissions.

Since then I’ve had a chance to read the brief filed on Baker’s behalf in support of the habeas petition and – while I still believe that Baker’s conduct is not contempt – I think the petition is a loser.

Here’s why.

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Last year, in EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. Jun. 21, 2016) (CAAFlog case page), a unanimous CAAF found no jurisdiction under Article 6b to entertain a writ-appeal by an alleged victim who sought to reverse a military judge’s order for disclosure of portions of her mental health records. The NMCCA had denied the writ petition summarily (order available here).

I just discovered that the alleged victim then sought collateral review in U.S. District Court, asking for a writ of mandamus to reverse the military judge’s order. On October 5, 2016, in an order available here, Judge John A. Mendez dismissed the case on the basis that “the United States has not waived its sovereign immunity.” Order at 3.

EV appealed that order to the Ninth Circuit, where the case is still pending (docket number 16-16975).

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Congress created Article 6b in the National Defense Authorization Act for Fiscal Year 2014. As originally enacted, the statute had four sections (paragraphs (a-d)), the first of which outlined eight rights of a victim. The next year, in the National Defense Authorization Act for Fiscal Year 2015, Congress made some technical changes and added a fifth section – paragraph (e) – providing an enforcement mechanism. The following year, in the National Defense Authorization Act for Fiscal Year 2016, Congress expanded that enforcement mechanism, so that it now reads:

(e) Enforcement by Court of Criminal Appeals.

(1) If the victim of an offense under this chapter believes that a preliminary hearing ruling under section 832 of this title (article 32) [10 USCS § 832] or a court-martial ruling violates the rights of the victim afforded by a section (article) or rule specified in paragraph (4), the victim may petition the Court of Criminal Appeals for a writ of mandamus to require the preliminary hearing officer or the court-martial to comply with the section (article) or rule.

(2) If the victim of an offense under this chapter is subject to an order to submit to a deposition, notwithstanding the availability of the victim to testify at the court-martial trying the accused for the offense, the victim may petition the Court of Criminal Appeals for a writ of mandamus to quash such order.

(3) A petition for a writ of mandamus described in this subsection shall be forwarded directly to the Court of Criminal Appeals, by such means as may be prescribed by the President, and, to the extent practicable, shall have priority over all other proceedings before the court.

(4) Paragraph (1) applies with respect to the protections afforded by the following:

(A) This section (article).

(B) Section 832 (article 32) of this title [10 USCS § 832].

(C) Military Rule of Evidence 412, relating to the admission of evidence regarding a victim’s sexual background.

(D) Military Rule of Evidence 513, relating to the psychotherapist-patient privilege.

(E) Military Rule of Evidence 514, relating to the victim advocate-victim privilege.

(F) Military Rule of Evidence 615, relating to the exclusion of witnesses.

10 U.S.C. 806b(e).

This is a limited grant of authority that gives only a CCA – and not CAAF – jurisdiction over victim petitions. See Randolph v. HV and United States, 76 M.J. 27 (C.A.A.F. Feb. 2, 2017) (CAAFlog case page).

A three-judge panel of the Army CCA recently rejected a petition that went way beyond the limits of Article 6b(e).

In AG v. Hargis, Military Judge, 77 M.J. 501, No. 20170417 (A. Ct. Crim. App. Aug. 16, 2017) (link to slip op.), Judge Fleming writes for the panel and holds that:

petitioner, an alleged sexual assault victim, fails to establish that a referred court-martial, or even preferred charges, existed at the time of the military judge’s decision to take no action on a special victim counsel’s [hereinafter SVC] discovery and production request. We further hold the military judge did not err by advising the military magistrate to deny the SVC’s discovery request or by not acting on the SVC request, which created a de facto ruling denying the SVC’s discovery and production request. We, therefore, dismiss the petition for lack of jurisdiction.

Slip op. at 1 (marks in original).

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In Lewis v. United States, 76 M.J. 829, No. 2017-05 (A.F. Ct. Crim. App. Sep. 20, 2017) (link to slip op.), Senior Judge Johnson writes for a three-judge panel of the Air Force CCA and denies a petition for extraordinary relief in the nature of a writ of coram nobis.

The petition is based on CAAF’s decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), holding that charged offenses may not be used for propensity purposes under Mil. R. Evid. 413. The petitioner was convicted of numerous sexual offenses at a general court-martial during which the military judge allowed charged offenses to be used for propensity purposes, and the Air Force CCA affirmed the convictions in 2014. United States v. Lewis, No. 38321 (A.F. Ct. Crim. App. 9 Oct. 2014) (link to slip op.), pet. denied, 74 M.J. 263 (C.A.A.F. 2015). The extraordinary relief petition seeks retroactive application of Hills to the case.

The approved sentence, however, included confinement for nine years and the petitioner is still confined, creating a significant hurdle to coram nobis relief. There are six threshold requirements for a coram nobis petition:

(1) the alleged error is of the most fundamental character;

(2) no remedy other than coram nobis is available to rectify the consequences of the error;

(3) valid reasons exist for not seeking relief earlier;

(4) the new information presented in the petition could not have been discovered through the exercise of reasonable diligence prior to the original judgment;

(5) the writ does not seek to reevaluate previously considered evidence or legal issues; and

(6) the sentence has been served, but the consequences of the erroneous conviction persist.

Slip op. at 4-5 (citing United States v. Denedo, 66 M.J. at 113, 126 (C.A.A.F. 2008), aff’d, 556 U.S. 904 (2009)) (paragraphing added). Senior Judge Johnson explains that the second and sixth requirements aren’t satisfied in this case:

Petitioner remains in confinement; therefore, coram nobis is not the sole remedy available to him because he is eligible to seek a writ of habeas corpus from a federal district court. Similarly, Petitioner has failed to demonstrate his sentence to nine years of confinement has been served.

Slip op. at 5.

But Senior Judge Johnson also considers the underlying error, concluding that the “petition would fail on the issue of retroactive application of Hills.” Slip op. at 6.

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In 1988 Specialist Ronald Gray, U.S. Army, was convicted of the premeditated murder of two women, the attempted premeditated murder of a third woman, three specifications of rape, two specifications of robbery, two specifications of forcible sodomy, and also of burglary and larceny, contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation.

The members sentenced Gray to death, a dishonorable discharge, total forfeitures, and reduction to E-1. He is one of only four prisoners on military death row, our #2 Military Justice Story of 2016 (the others are Hennis, Akbar, and Hasan; Witt is pending a sentence rehearing that could return him to death row; Loving’s capital sentence was commuted).

Prior to Gray’s court-martial, in a wholly separate North Carolina proceeding, Gray pleaded guilty to the murder and rape of two additional women, and other offenses, for which he received three consecutive life sentences and five concurrent life sentences.

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On June 26, 2017, a petition for a writ of habeas corpus under 28 U.S.C. § 2241 was filed in Rich v. Stackley, Secretary of the Navy, No. 3:17-cv-01298-GPC-JMA. A copy of the petition is available here.

The petitioner was a petty officer in the Navy who, in 2014, was convicted of multiple child sexual offenses and sentenced to confinement for seven years and a dishonorable discharge. The NMCCA affirmed the findings and sentence in 2015 (link to slip op.). CAAF denied review in 2016.

The habeas petition makes three claims. First, it asserts that a court-martial member was dishonest during voir dire, depriving the petitioner of a fair and impartial panel. Second, it asserts that a statement was improperly admitted into evidence under hearsay exceptions. Finally, it asserts that the convictions are factually and legally insufficient. The NMCCA analyzed and disagreed with each of these assertions of error.

Last week the district court ordered a response to the petition. A copy of the order is here. A news headline (here) claims that this order “Overrules Military Court, Reopens Molestation Case,” but that’s totally false. The order is a routine scheduling order under Fed. R. App. P. 21(b)(1). The order also mixes up the parties, naming Stackley as the petitioner.

The petition faces incredibly long odds because the three claims were already considered by the CCA. In Burns v. Wilson the Supreme Court explained that:

The military courts, like the state courts, have the same responsibilities as do the federal courts to protect a person from a violation of his constitutional rights. In military habeas corpus cases, even more than in state habeas corpus cases, it would be in disregard of the statutory scheme if the federal civil courts failed to take account of the prior proceedings — of the fair determinations of the military tribunals after all military remedies have been exhausted. . . . these provisions do mean that, when a military decision has dealt fully and fairly with an allegation raised in that application, it is not open to a federal civil court to grant the writ simply to reevaluate the evidence.

346 U.S. 137, 142 (1953). Put differently, “had the military courts manifestly refused to consider [the] claims, the District Court was empowered to review them de novo.” Id. But “it is the limited function of the civil courts to determine whether the military have given fair consideration to each of these claims.” Id. at 144.

The petition in Rich does not explain why the CCA’s consideration of the issues was either a manifest refusal to consider the claims or not a fair consideration of the claims.

In an order available here, and discussed in a Marine Corps Times article here, United States District Judge Joseph Bianco vacates the Board of Inquiry that ordered the honorable discharge of Marine Major Jason Brezler for misconduct related to mishandling classified information.

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