CAAFlog » October 2017 Term » United States v. Gray

This week at SCOTUS: In the wake of its opinion in Ortiz v. United States, 585 U.S. __, No. 16-1423 (June 22, 2018) (analyzed here), the Supreme Court denied the petitions in Alexander, Abdirahman, Cash, and Richards (all of which involved Ortiz trailer issues). The Court also denied the petitions in Bales (denial noted here) and Gray (analysis of CAAF’s opinion is here and here).

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

This week at CAAF: CAAF completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on July 10, 2018.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Collins on Thursday, June 28, 2018, at 10 a.m. No additional information is available on the CCA’s website.

This week at the CGCCA: The next scheduled oral argument at the Coast Guard CCA is on August 9, 2018. The argument will occur at the NMCCA’s courtroom in the Washington Navy Yard.

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

This week at SCOTUS: A new cert. petition with filed in Gray v. United States, No. 17-7769 (CAAFlog case page). Ronald Gray is one of only four prisoners on military death row (our #2 Military Justice Story of 2016). Back on November 8, in a per curiam decision I analyzed here, CAAF dismissed a writ-appeal petition with prejudice. The decision was so remarkable that the next day I wrote a second, deeper analysis (available here). Gray’s cert. petition questions CAAF’s dismissal. The petition is available here. The questions presented are:

1. Which court system, Article I military or Article III civil, appropriately exercises jurisdiction in final military cases to conduct initial review of constitutional claims that arise after or in conjunction with direct appeal?

2. Does 28 U.S.C. § 1259(1) confer certiorari jurisdiction over a decision of the Court of Appeals for the Armed Forces dismissing a coram nobis petition in a military death penalty case?

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

This week at CAAF: The next scheduled oral arguments at CAAF are on February 27, 2018.

This week at the ACCA: The Army CCA’s website is still inaccessible from the public internet (discussed here).

Update: A reader informs me that the Army CCA will hear oral argument in one case this week, on Thursday, February 22, 2018, at 10 a.m. The CCA will hear argument on both an appeal and a petition for a new trial:

United States v. Kohlbek, No. 20160427

Issue:
I. Whether the military judge erred by prohibiting the appellant from presenting evidence relevant to the appellant’s post-polygraph statement.

Petition for new trial:
Whether this court should grant appellant’s petition for new trial based on newly discovered evidence.
I. Whether the military judge abused his discretion by failing to suppress the appellant’s post-polygraph statement.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 6, 2018 (at Penn State Law).

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

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Wednesday, February 21, 2018, at the George Washington University Law School, 2000 H Street NW, Washington, DC 20052, at 12:05 p.m.:

United States v. Hoffmann, NMCCA No. 201400067

Case Summary: In 2013, a general court-martial comprised of officer and enlisted members convicted the appellant of multiple charges involving a child, and for possessing child pornography. We affirmed the conviction the following year. In 2016, the Court of Appeals for the Armed Forces (CAAF) set aside the findings and sentence, dismissing the child pornography charges with prejudice and authorized a rehearing on the remaining charges. [(CAAFlog case page)]

At his rehearing, a general court-martial comprised of officer members convicted the appellant, contrary to his pleas, of two charges involving a child. The appellant was sentenced to reduction to pay grade E-1, 10 years’ confinement, forfeiture of all pay and allowances, and a dishonorable discharge. The convening authority approved the adjudged sentence and, except for the punitive discharge, ordered it executed.

Issues:
I. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE ADMITTED PROPENSITY EVIDENCE UNDER MILITARY RULE OF EVIDENCE 414 AND FAILED TO CONDUCT A PROPER MILITARY RULE OF EVIDENCE 403 BALANCING TEST.

II. WHETHER THE MILITARY JUDGE ERRED WHEN HE DID NOT EXTEND HIS RULING THAT COLONEL WOODARD WAS DISQUALIFIED FROM PROVIDING INPUT ON THE ARTICLE 34, UCMJ, LETTER AS STAFF JUDGE ADVOCATE TO INCLUDE OTHER AREAS OF PRETRIAL ADVICE.

III. WHETHER THE MILITARY JUDGE SHOULD HAVE RECUSED HIMSELF AS HE HAD BEEN THE REPORTING SENIOR TO THE MILITARY JUSTICE OFFICER DURING THE INITIAL INVESTIGATION AND WAS INFORMED BY NCIS ON MATTERS RELATED TO THE APPELLANT’S CASE.

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.

Read more »

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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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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