CAAFlog » Collateral Review

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.

Here is a link to the Complaint filed by Susan Burke on behalf of the victim in the Naval Academy sexual assault Art. 32 hearing held last week.  Thanks to many for forwarding it.

So Susan Burke has gone from witness in the Art. 32 hearing to advocate asking the Superintendent to disqualify himself, AP (via ABC News) report here:

A midshipman accusing three former U.S. Naval Academy football players of sexually assaulting her at an off-campus toga party has asked in a federal lawsuit for the school’s superintendent to remove himself from deciding whether the men will be court-martialed, her attorney said Thursday.

The suit filed in Maryland seeks a court order directing Vice Adm. Michael Miller to recuse himself, Attorney Susan Burke said. It says that as the head of the school, Miller is likely to be biased and that he did nothing to prevent lengthy and abusive testimony during a military court hearing on the accusations.

Ms. Burke has interesting notions of standing so this should be . . . interesting, see Cioca v. Rumsfeld here and here.  H/t LB

Here is a link to the cover story of this week’s Marine Corps Times.  The article, titled, “Whistle-blower alleges reprisal by Marine brass, says he won’t back down,” tells the tale of USMC judge advocate (and CAAFlog commenter) Major James Weirick.  It details his run in with other USMC judge advocates relating to alleged UCI in the Marine Corps’ prosecution of the corpse desecration cases in Afghanistan and his DOD IG complaint.  H/T Babu

CAAF today issued a 3-2 decision in LRM v. Kastenberg concluding that the trial judge erred by denying A1C LRM, the alleged victim of a sexual assault, the right to be heard through counsel at the accused’s court-martial, and that the Air Force CCA erred in concluding it lacked jurisdiction to hear A1C LRM’s appeal.  Chief Judge Baker delivered the decision of the court, with Judge Ryan dissenting and Judge Stucky concurring in part and dissenting in part and in the result.

CAAF did not issue the requested mandamus, but instead “returned [the record] to the Judge Advocate General of the Air Force for remand to the military judge for action not inconsistent” with CAAF’s opinion.

Lots of analysis to follow.

CAAF now has only one case left from this term:  United States v. Salyer. 

Here is the SCOTUS decision in US v. Kebodeaux, No. 12-418:

The upshot is that here Congress did not apply SORNA to an individual who had, prior to SORNA’s enactment,been “unconditionally released,” i.e., a person who was not in “any . . . special relationship with the federal government,” but rather to an individual already subject to federal registration requirements that were themselves a valid exercise of federal power under the Military Regulation and Necessary and Proper Clauses. But cf. post, at 1 (SCALIA, J., dissenting). . . .

We conclude that the SORNA changes as applied toKebodeaux fall within the scope Congress’ authority underthe Military Regulation and Necessary and Proper Clauses. The Fifth Circuit’s judgment to the contrary is reversed,and the case is remanded for further proceedings consistentwith this opinion.

Justices Scalia and Thomas dissented.

Here is US District Judge Ellen Lipton Hollander’s opinion in the CCR case.  From the “Conclusion” section of the opinion denying CCR’s request for a preliminary injunction:

In sum, as to certain aspects of plaintiffs’ claims, I do not find that there is a substantial likelihood of success on the merits. And, in light of the actions taken by defendants after this case was filed—to release documents, to commit to expedited release of documents going forward, and to permit unofficial transcription of proceedings by privately retained stenographers—I do not see a substantial likelihood of irreparable harm in the absence of a preliminary injunction. Under these circumstances, the balance of the equities and the public interest do not favor granting a preliminary injunction.

In considering the equities of the case and the public interest, I am mindful of the keen public interest in the court-martial, the right of public access to such proceedings, as well as the extraordinary nature of the relief plaintiffs seek. They ask this Court to intervene collaterally in an ongoing court-martial and issue dictates to the military judge conducting the proceedings, in regard to the management of public disclosures. In light of the measures that defendants have taken to provide the press and the public with access to the ongoing court-martial proceedings, such preliminary, equitable relief is not warranted here. Therefore, plaintiffs’ motion for preliminary injunction is denied by the Order that accompanies this Memorandum.

CCR v. Lind, No. 1:13-cv-01504-ELH, slip op. at 41-42 (D.Md. Jun. 19, 2013). H/t EF

The Washington Post reports in this AP story that the petitioners who sought access to the PFC Manning court-martial, and whose petition was rejected by the ACCA and CAAF on jurisdictional grounds, have refiled in U.S. District Court in Baltimore.

CAAF decided The Center for Constitutional Rights, Glenn Greenwald, Jeremy Sachill, The Nation, Amy Goodman, Democracy Now!, Chase Madar, Kevin Gosztola, Julian Assange, and Wiki[shhh] v. The United States of America and Chief Judge Colonel Denise Lind, No. 12-8027/AR, (opinion) (CAAFlog case page) on April 16, 2013, finding that the Appellants failed to establish that CAAF or the CCA has jurisdiction to grant the relief requested.

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.


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:

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.