CAAFlog » Collateral Review

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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In a published decision in Chapman v. United States, 75 M.J. 598, No. 2014-16 (A.F. Ct. Crim. App. Feb. 18, 2016) (link to slip op.), a three-judge panel of the Air Force CCA finds that the court lacks jurisdiction to consider a petition for a writ of habeas corpus because the court-martial is final under Article 76. The decision is in harmony with a conclusion of the Army CCA in a capital case.

In 2002 the petitioner was sentenced to confinement for life with the possibility of parole for convictions of attempted premeditated murder, rape, sodomy, and burglary. The findings and sentence were affirmed and direct appellate review of the case is complete. United States v. Chapman, No. 35564 (A.F. Ct. Crim. App. 14 July 2006) (unpub. op)., aff’d, 65 M.J. 289 (C.A.A.F. 2007) (summary disp.), cert. denied, 552 U.S. 952 (2007).

Writing for the CCA, Senior Judge Fisher explains that:

We agree with our sister service court that military courts do not have jurisdiction over habeas corpus petitions when a court-martial has completed direct review under Article 71, UCMJ, and is final under Article 76, UCMJ. Gray v. Belcher, 70 M.J. 646, 647 (Army Ct. Crim. App. 2012); see also United States v. Denedo, 556 U.S. 904, 920 n.1 (2009) (Roberts, C.J., dissenting) (noting that the Supreme Court has never questioned that Article 76, UCMJ, limits the jurisdiction of military courts). *FN

We find additional support for this conclusion in the Supreme Court’s rationale when they concluded that military courts have jurisdiction over coram nobis petitions even after the proceedings are final under Article 76, UCMJ. Denedo, 556 U.S. at 916– 17. In doing so, they relied upon a coram nobis petition being an extension of the original proceeding. Denedo, at 912–13. Habeas corpus, conversely, is considered a separate civil case and record. See United States v. Morgan, 346 U.S. 502, 505 n.4 (1954). Consequently, a habeas corpus petition is not an extension of the direct appeal, and the rationale in Denedo does not apply to extend jurisdiction beyond the finality of Article 76, UCMJ.


*FN The Navy-Marine Corps Court of Criminal Appeals reached a different conclusion in Fisher v. Commander, 56 M.J. 691 (N-M. Ct. Crim. App. 2001). However, that court relied on Dew v. United States, 48 M.J. 639 (Army Ct. Crim. App. 1998), which was repudiated in United States v. Arness, 74 M.J. 441, 443 (C.A.A.F. 2015) [(CAAFlog case page)]. Because the underlying rationale has been rejected, we conclude Fisher is no longer persuasive authority on this issue.

Slip op. at 3.

CAAF will hear oral argument in the Air Force case of United States v. Arness, No. 14-8014/AF (CAAFlog case page), on Tuesday, February 10, 2015. The case initially went to CAAF as a writ-appeal of a decision of the Air Force CCA. Petitioner/Appellant (hereinafter “Appellant”) is a Lieutenant Colonel who was convicted of various offenses at a general court-martial and sentenced to confinement for 11 months and a reprimand. That sentence is below the jurisdictional threshold for automatic review by the Air Force CCA under Article 66(b), and so instead the court-martial was reviewed by the Judge Advocate General of the Air Force pursuant to Article 69.

Nevertheless, Appellant sought collateral review by the Air Force CCA in the form of a writ of error coram nobis under the All Writs Act, alleging 13 errors in the court-martial proceedings. The CCA concluded that it had jurisdiction to review the Appellant’s petition, but that he was not entitled to relief. Appellant then appealed to CAAF, raising the same 13 errors. See Gov’t Br. at 2. But CAAF specified a different issue for review:

Whether the United States Air Force Court of Criminal Appeals had jurisdiction to entertain a writ of error coram nobis where there was no statutory jurisdiction under Article 66(b)(1), UCMJ, on the underlying conviction and the case was not referred to the Court of Criminal Appeals by the Judge Advocate General under Article 69(d)(1), UCMJ, and where the Court of Criminal Appeals relied on potential jurisdiction under Article 69(d), UCMJ, as its basis for entertaining the writ (citing Dew v. United States, 48 M.J. 639 (Army Ct. Crim. App. 1998)).

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The decision in Klay et al. v. Panetta et al., No. 13-5081, slip op. (D.C. Cir. Jul 18, 2014), released today affirms the DC District Courts dismissal of Bivens claims against the military chain of command by a group of servicemembers that “allege that they were raped, sexually assaulted, or sexually harassed by their fellow Sailors and Marines, only to suffer retaliation from their superiors for reporting their plight.” The COurt affirms on grounds we’ve previously discussed from Chappell v. Wallace, 462 U.S. 296 (1983), here and here.

McClatchy report here.  Our prior coverage here (DDC dismissal) and here (use of Klay case in the Invisible War). Judges Rogers, Griffith, and Srinivasan file dthe opinion, with Judge Griffith filing a concurring opinion.  His concurrence takes a shot at counsel for the petitioners for raising a claim that SecDef Rumsfeld failed to follow an Act of Congress without a factual basis for it.


A service member convicted by a court-martial and serving a sentence to confinement in a military brig can earn various confinement credits including earned time (ET), good conduct time (GCT), and special acts abatement (SAA). GCT is the most common, and is earned automatically at the rate of 5 days of GCT credit for each month served, pursuant to Department of Defense Instruction (DoDI) 1325.07. The credits are applied against the time to serve, and the prisoner is normally informed of a computed “minimum release date” that can be significantly ahead of the end of the full term of confinement.

For example, an accused sentenced in 2003 to an unsuspended term of confinement of ten years might reach his minimum release date just six years later, in 2009, and then be released from confinement. Such was the case for one Mr. James Banks, who “served nearly twenty years in the Air Force before authorities learned that he had sexually abused his young daughter. When they did, the authorities initiated a court martial proceeding. The court ultimately found Mr. Banks guilty of various sex crimes, sentenced him to ten years in confinement, and he was dishonorably discharged. Following his court martial, Mr. Banks waived his right to appeal through the military court system and began to serve his sentence at Fort Leavenworth.” Banks v. United States, 431 F.App. 755, 756 (10th Cir. 2011) (slip op. avail. here).

The 10th Circuit considered Mr. Banks’ case because when he reached his minimum release date in 2009, he was released from Fort Leavenworth under the mandatory supervised release (MSR) program. MSR is an involuntary parole under the supervision of a U.S. Probation Officer. Military prisoners selected for MSR who refuse to participate in the program may forfeit all earned confinement credits, and could even face additional punitive action. Conversely, participation in the program constitutes acceptance of its terms and a waiver of all earned confinement credits. See DoDI 1325.07, para. 20.b.(4) and (5).

In other words, the prisoner who expects release at the “minimum release date” may instead be surprised by the choice of either more confinement or a close working relationship with a federal probation officer.

Mr. Banks wasn’t exactly thrilled with these options.

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Here is WaPo coverage of the latest turn in the Marine Corps’ bad publicity machine that.  Maj. James Weirick has filed a complaint with the Information Security Oversight Office, which oversees classification procedures across the federal government.

The former head of that office, J. William Leonard, endorsed his complaint.

“I am extremely concerned that the integrity of the classification system continues to be severely undermined by the complete absence of accountability in instances such as this clear abuse of classification authority,” he wrote in a letter to the agency’s directory, John P. Fitzpatrick.

And the drama continues.

Here is a letter on behalf of Capt. James Clement sent to the DoD IG asking him to address UCI by the Commandant in the handling of the corpse desecration cases in Afghanistan.  Pro bono counsel for Capt. Clement are the co-leader of Akin Gump’s white-collar practice, John Dowd, and a Senior Counsel from the firm, James Osborne.  Mr. Dowd is himself a former Marine Corps’ JA.  He’s previously represented Sen. McCain in the Keating 5 investigation and wrote the “Dowd Report” on Pete Rose for MLB Baseball.