Here is a link to avid CAAF follower Mike Doyle’s post over at Suits and Sentences about the District Court opinion in the Luke case (opinion here).  Our prior coverage of the Luke case at CAAF is here and USACIL issues involving former USACIL analyst Phillip Mills is here.

One minor issue with the article.  The last paragraph:

In his decision issued late Thursday, Contreras said the military appeals court “carefully assessed” all the evidence presented, and he implicitly praised the “thoroughness” of the military court’s work, saying he would not “substitute (his) judgment” for that of the military courts.

The quote he is referencing is, using highly familiar language similar to APA cases, “The plaintiff is essentially asking that this Court reweigh the evidence and substitute its judgment for that of the military courts. This Court is not empowered or inclined to do so.”  As Judge Contreras notes, the standard of review for military cases in District Courts is “tangled.”  The opinion does its best to address the case from the varying standards of review to conclude no relief is warranted, but I don’t know if that concluding paragraph was really meant to praise the CAAF opinion.  Rather it is probably aimed at repeating the standard that District courts should not re-evalaute the case when the military courts have reviewed it fully and fairly (or whatever standard actually applies).  H/t PC

Here is a WSJ report on the Kansas Supreme Court’s decision to disbar former LCDR Matthew Diaz. The court ignored recommendations that would have allowed Diaz to resume the practice of law.  See our prior coverage here. Here is a link to the opinion.

Here is news from the AP (via ABA Journal) that former LCDR Matt Diaz is fighting to keep his Kansas law license.  The ABA Journal writes that:

The Kansas Supreme Court will hear arguments today on a recommended three-year suspension for Matthew Diaz, the Associated Press reports. The suspension would be retroactive to 2008, making Diaz eligible for reinstatement. Diaz’s lawyer, Jack Focht of Wichita, supports the recommendation.

We’ll see if he gets reinstatement.  At least he can tell the reinstatement panel that he has a Ridenhour Truth Telling Prize for the conduct that got him suspended for three years–so he’s got that going for him.

H/t MLM

Here is Stars and Stripes coverage of the Army Grade Determination Review Board’s decision after the court-martial of Col. James H. Johnson III resulted in a sentence of less than a dismissal.  You’ll recall (here) that now LTC Johnson  was charged in connection with a bigamous affair he had with an Iraqi woman that he married stateside before his divorce was final.  The former commander was also alleged to have submitted fraudulent travel invoices and awarded a cultural advisor contract to his mistress’ father in Iraq–who apparently has now disowned his daughter as a result of the relationship (that’s gratitude for ya’).

You will remember Padilla v. Kentucky, and you will remember United States v. Denedo, 66 M.J. 114 (C.A.A.F. 2008) – now you may have to remember Chaidez.  Along with United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006), the bottom line issue is what must a defense counsel tell an accused who intends to plea guilty at court-martial about collateral effects of the conviction.

To refresh.  In United States v. Denedo, (and forgive me this one time), the LEXIS case summary is:

Appellant servicemember filed a petition for extraordinary relief with the U.S. Navy-Marine Corps Court of Criminal Appeals (CCA), requesting collateral review of his court-martial for alleged ineffective assistance of counsel, and issuance of a writ of error coram nobis under the All Writs Act, 28 U.S.C.S. § 1651(a). The CCA denied the government’s motion to dismiss. It also denied the servicemember’s petition in summary fashion. He appealed.

The Government contended that the CCA erred by not dismissing the petition on jurisdictional grounds, while the servicemember contended that it erred by not granting relief. He challenged his court-martial conviction, asserting that his plea was not knowing or voluntary. He contended that he expressly requested guidance of counsel on the immigration impact of his plea, that the advice provided by his attorney was defective, and that he relied upon ineffective assistance of counsel to his detriment in pleading guilty. The question in the case was whether a court-martial conviction, imposed on a servicemember while in military status, was subject to collateral review under the All Writs Act by the court that approved the conviction. The court determined that the CCA did not err by reviewing the servicemember’s petition under the All Writs Act. It next considered next whether the petition met the criteria for issuance of a writ of error coram nobis. The writ petition met the threshold criteria for coram nobis review. However, until the government was required to respond on the merits, it would have been inappropriate for the court to render a judgment on the merits of his petition.

The court remanded the petition to the CCA for further proceedings, where the government would have the opportunity to obtain affidavits from defense counsel and submit such other matter as the CCA deemed pertinent. The CCA was then, inter alia, to determine whether the merits of the petition could be resolved on the basis of the written submissions, or whether a fact finding hearing was required under DuBay.

The Supremes granted a writ, and in a 5-4 decision, affirmed the CAAF. United States v. Denedo, 555 U.S. 1041 (2009).  Upon remand the Navy-Marine Corps Court of Criminal Appeals denied Denedo’s petition in an unpublished decision, United States v. Denedo, NMCCA 9900680, 2010 CCA LEXIS 27 (N-M Ct. Crim. App. March 18, 2010).  Denedo’s appellate counsel filed a petition with CAAF, but it was dismissed as untimely.  A motion for reconsideration of the denial was denied in a 3-2 decision, with Efron and Baker dissenting, United States v. Denedo, Misc. No. 10-8016/NA, 2010 CAAF LEXIS 795 (C.A.A.F. September 8, 2010).

At 0955 today on SCOTUSBlog live blog from the Supremes we see:

Tom:  The most likely grant today (by far) is the Stanford Clinic’s petition in the Chaidez case on the retroactivity of the S. Ct.’s holding in Padilla that effective assistance of counsel includes giving correct advice about the immigration consequences of a plea agreement. It is very likely because the Solicitor General has agreed cert should be granted.

At 0956 we see:

Kali: Here’s the Chaidez case page: http://www.scotusblog.com/case-files/chaidez-v-united-states/

And of course Chaidez is listed as a grant in the orders list.  Here is the link to Chaidez v. United States at SCOTUSBlog.

Issue: Whether the Court’s decision in Padilla v. Kentucky, holding that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation, applies to persons whose convictions became final before its announcement.

Here is how Lyle Denniston characterizes Chaidez at SCOTUSBlog:

The Supreme Court on Monday agreed to settle a dispute among lower courts on whether to give more immigrants the benefit of a ruling that requires their lawyers to advise them more clearly on what can happen if they plead guilty to a crime.  At issue in the new case of Chaidez v. United States (11-820) is the potential retroactivity of the Court’s 2010 ruling in Padilla v. Kentucky.   This was the only new case granted on Monday; it will be heard and decided in the new Term starting October 1.

In the Padilla decision, the Court ruled that the Sixth Amendment right to counsel includes a right for a non-citizen living in the U.S. to be advised by a lawyer of the consequences under immigration law of pleading guilty to a crime that could lead to deportation.  The majority noted that, under dramatic changes recently in immigration law, deportation is virtually automatic after one is convicted of an ”aggravated felony.”

Certainly we may get more guidance about the scope of an pre-plea advice.  That is still troublesome with Miller and other collateral effects issues.  See e.g., United States v. Blume, ACM 37385, 2012 CCA LEXIS 98 (A. F. Ct. Crim. App. March 23, 2012), United States v. Page, ACM 37612, 2011 CCA LEXIS 294 (A.F. Ct. Crim. App. August 25, 2011), United States v. Rose, 67 M.J. 630 (A.F. Ct. Crim. App. 2009).

Query, would a favorable retroactivity ruling in Chaidez also benefit former appellant’s who had a Miller issue, or is Chaidez limited to civilian cases of immigrants?  If there were a bunch of Denedo-like cases out there I’d of expected them to show up by now. 

From our friends at Marine Corps Times, here:

Navy Secretary Ray Mabus has ordered separation procedures to begin for two Marines who admitted to lying about the 2005 shooting deaths of two dozen Iraqi civilians in Hadithah, a Navy official said.

Mabus directed Commandant Gen. Jim Amos to start the administrative separation proceedings against Sgts. Sanick P. Dela Cruz and Humberto M. Mendoza, said Lt. Cmdr. Tamara Lawrence, a Navy Department spokeswoman at the Pentagon.

In an April 19 letter to Amos, Mabus said he recently completed a review of the so-called “Hadithah” incident, which involved a squad with Camp Pendleton’s 3rd Battalion, 1st Marines, and “reviewed troubling information about their conduct.”

Specifically, Mabus wrote, Dela Cruz, who was a corporal at the time, had made “false official statements” to Naval Criminal Investigative Service and command investigators regarding the deaths of five men who were in a car that approached the scene of a fatal roadside bomb blast on Nov. 19, 2005. Mendoza, a private first class at the time, lied to investigators and withheld information about his and other Marines’ actions on that day, the secretary also said.

“Such conduct is wholly inconsistent with the core values of the Department of the Navy,” Mabus wrote. “You are directed to immediately initiate administrative processing for [Dela Cruz and Mendoza] … for administrative separation is in the best interest of the service.”

More later on the convening authority for the adseps.  Both Marines are assigned to Camp Pendleton, but potentially in different units. 

H/t GF

Here’s a link to Judge Huff’s ruling denying the request for a preliminary injunction in Stein v. Dowling.

LA Times article here.  And here’s a more detailed report from KTAR.com.  Here’s the minute entry from PACER:

Minute Entry for proceedings held before Judge Marilyn L. Huff: Motion Hearing held on 4/13/2012. The Court denies the 21 MOTION for Preliminary Injunction. The Court will issue a written order. (ECR Lynnette Lawrence). (Plaintiff Attorney Gary G. Kreep; David Loy; Daniel Oleson). (Defendant Attorney Thomas C. Stahl). (smy) (Entered: 04/13/2012)

Here’s a link to the motion for preliminary injunction filed on behalf of USMC Sgt Gary Stein today.  Sgt Stein is pursuing relief in the United States District Court for the Southern District of California to stop the Marine Corps from separating him with an OTH as a result of certain social media posts he made.  The motion for preliminary injunction includes statements by Brigadier General David M. Brahams, USMC (Ret.), the former SJA to the Commandant of the Marine Corps, and Professor Jeffrey F. Addicott of St. Mary’s University School of Law, a retired Army judge advocate.

Here’s a link to DOJ’s opposition.  The exhibits filed by DOJ are voluminous and I don’t have time to upload them all.  Here’s a link to the admin discharge board transcript, which is probably the most interesting exhibit.   Here’s a link to the first batch of exhibits.  And here’s a link to the second batch.  I’m not sure if I’ll have time to post any of the additional exhibits tonight.

Here’s an order entered by the United States District Court for the Southern District of California setting a hearing this Friday on Marine Corps Sgt Gary Stein’s request for a preliminary injunction to prevent the Marine Corps from discharing him in the wake of last week’s admin discharge proceeding.  Further briefs may be filed NLT 0900 PDT tomorrow.  Tomorrow night, I’ll try to post anything that’s filed tomorrow.

The San Diego Union-Tribune reports, here, that lawyers from the ACLU and others representing Marine Sergeant Gary Stein were unsuccessful in obtaining an injunction against the Marine Corps in his administrative separation proceedings.  Stein is the Armed Forces Tea Party Facebook page creator who said he will not follow the orders of the CINC.  The reports says that:

U.S. District Court Judge Marilyn L. Huff urged the government to allow for a 24-hour delay in the proceedings so Stein’s legal team could appeal to the 9th U.S. Circuit Court of Appeals. But after conferring with military officials, U.S. Attorney Tom Stahl finished the three-hour 40-minute hearing by declining Huff’s request.

Here is the order from Judge Huff, see Stein v. Dowling et al., No. 12-cv-00816 (BGS) (S.D. Calif. Apr. 4, 2012).  The order ends sort of akwardly with this entreaty (but not an order) from the judge to the government:

The Court notes, however, that this may be a case capable of repetition, yet evading review. United States Parole Comm’n v. Geraghty, 445 U.S. 388, 398 (1980). If, for example, the government is attempting to squelch Plaintiff, and other military personnel, from speaking out on matters of public concern, this would violate the First Amendment. If the basis for Plaintiff’s separation is his protected speech, or if the military persists in violating other service members’ free speech rights, this case may proceed. If, at the conclusion of the Plaintiff’s administrative separation proceeding, Plaintiff was not permitted to present his defense, Plaintiff may renew his Due Process arguments and again request the Court to enjoin Plaintiff’s discharge or reinstate Plaintiff. See, e.g., Cammermeyer v. Perry, 97 F.3d 1235 (9th Cir. 1996). As a result, the Court denies Plaintiff’s current request for a temporary restraining order without prejudice.

Moreover, Plaintiff may renew his request for continuance to the administrative separation board. The Court questions the government’s insistence on proceeding so expeditiously after Plaintiff’s nearly nine years of service. At a minimum, the Court strongly recommends that the military voluntarily provide Plaintiff’s counsel a continuance of twenty-four hours or more to permit review of this Court’s order. Given the fact that the Court was presented with this matter late yesterday and has been in a trial today, the Court only had a limited time to review the matter. As a result, the Court believes that Plaintiff should be provided the opportunity to have the Ninth Circuit review this Court’s order. Based on the current record, however, the Court denies Plaintiff’s application for temporary restraining order without prejudice.

We’ll see what happens with appeal today.  No notice of appeal has been docketed, though that is usually filed by hand.

MarCorps Times reports, here, that Pvt. Frank Wuterich was discharged today with a General (Under Honorable Conditions) discharge.   The story states:

The Marine Corps has discharged the lone Marine convicted in the 2005 killings of unarmed Iraqi civilians in the town of Haditha, a spokesman said Tuesday.

Pvt. Frank Wuterich ended his service Friday, Marine Corps spokesman Lt. Col. Joseph Kloppel said.

Wuterich’s attorney, Neal Puckett, said in an email to The Associated Press on Tuesday that the Corps gave him a general discharge under honorable conditions.

So ends the long and tragic story that was Haditha–and our speculation (here) about what the Marine Corps would do with a 10+ year veteran Private.

H/t GGH

From Courthouse News Service, here:

A former West Point cadet booted . . . after testing positive for cocaine cannot upgrade his discharge status and still owes more than $143,000 in education costs, a federal judge ruled. . . . [Troy] Wilson, a stand-out cadet who tested positive for cocaine in 2007, opted to resign from West Point after being threatened with court-martial. Later, the Army Board for Correction of Military Records (ABCMR) denied his appeal to be commissioned as an officer, receive back pay and have his discharge upgraded from “other than honorable.” . . .

“The court finds that because he voluntarily resigned instead of contesting the charge leveled against him in a court-martial, Wilson cannot challenge the underlying evidence in this forum,” U.S. District Judge James Boasberg wrote.

For those that do Correction Board work this is an all too familiar result.  The District Court’s decision is available here.

Here and here are results of former LTC Terrence Lakin’s application for a Kansas medical license.  The KS Board in denying his medical license stated:

Applicant’s refusal to deploy to Afghanistan to provide medical services in support of Operation Enduring Freedom due to his own personal beliefs represents a disregard for his professional duties and undermines the integrity of the medical profession. Of even more significance, Applicant’s actions potentially jeopardized the health, safety and welfare of the military troops for which Applicant was employed to provide medical care. . . . .

After seeking modification based on misstatements about the nature of the conviction, the Board denied reconsideration, stating.

The Board also found that Petitioner’s actions and conduct underlying his court-martial convictions constituted dishonorable conduct and that denial of his application for licensure was warranted due to the egregiousness of his conduct. . . .

Comments surely to follow. H/t RC (via DHS)

Ehlers continues.  In Ehlers v. United States, NMCCA  20080019 (N. M. Ct. Crim. App. 27 Dec 2011)(unpublished op.).   The petition was filed pro se.  Under CAAF rules he has 20 days from the date of service on him to submit a writ appeal petition to CAAF.  See CAAF Rule  27(b).

The NMCCA summarizes the history of the case as follows.

In June 2009, this court affirmed the findings and sentence.  United States v. Ehlers, No. 200800190, 2009 CCA LEXIS 229, unpublished op. (N.M.Ct.Crim.App. 30 Jun 2009).  In April 2010, the Court of Appeals for the Armed Forces denied the petitioner’s petition for grant of review.  United States v. Ehlers, 69 M.J. 89 (C.A.A.F. 2010).  The Supreme Court denied a writ of certiorari.  Ehlers v. United States, 131 S. Ct. 536 (2010).  Direct appellate review is complete.

The petitioner now seeks extraordinary relief from this court in the form of a writ of habeas corpus[.]

NMCCA denied the present writ.

On his first appeal Petitioner asserted:

The appellant alleges five assignments of error:  (1) that the evidence is legally and factually insufficient to support the findings of guilty to sodomy and indecent liberties with a child; (2) that the appellant “was
prejudiced before and during the trial by the military’s misconduct” in the form of ineffective assistance of counsel, prosecutorial misconduct, and unlawful command influence; (3) that the offenses alleged constitute an unreasonable multiplication of charges; (4) that the sodomy, assault, and indecent liberties charges are multiplicious; and (5) that the appellant’s adjudged sentence of confinement for 25 years is “unduly disproportionate.”

The family blog indicates that:In April, Edwin filed for Habeas Corpus in the Federal District Court of Southern California.  (And also this rather provocative post, “Today is the last day the Government has to respond to my 40 million dollar lawsuit for Edwin’s wrongful conviction.”)

To go back to the current case — The petitioner now seeks extraordinary relief from this court in the form of a writ of habeas corpus claiming:

(1) the charges and specifications under Article 134 failed to state an offense in light of United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011); (2) the petitioner’s Sixth Amendment speedy trial rights were violated by the delay between the first allegations of misconduct and the trial; (3) the military judge abused his authority by failing to dismiss the charges because the petitioner’s right against self-incrimination was violated by a special agent interrogating the petitioner; (4) the prosecution withheld exculpatory evidence at trial; (5) the military judge’s findings were ambiguous; (6) the Naval Criminal
Investigative Service (NCIS) failed to follow established directives by failing to report the allegations at issue to the Family Advocacy Program (FAP); and (7) an NCIS special agent tampered with evidence.

See prior CAAFLog posting here; in particular Dwight “My Liege” Sullivan’s post that there was no SCOTUS jurisdiction over the cert petition, and the rather interesting comments to the post.  There has been an ethics concern over the years about lawyers ghostwriting pro se petitions and filings.  See e.g., this ABA Journal item.   Some jurisdictions seem to require a note that an attorney assisted prepare the brief.  See e.g., this ABA Journal item.

Here is a link to “Military Injustice” about this case.  A post dated 19 September 2011 indicates that White light Productions has agreed to do a story on Edwin and his wrongful conviction by the Marine Corps.  Filming will begin in October.  According to the blog, “The trailer for Edwin’s story is at: http://ireport.cnn.com/docs/DOC-676027.”