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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