Yesterday the Supremes denied cert in United States v. Green, 654 F.3d 637 (6th Cir. 2011), a MEJA case arising from the notorious Mahmoudiyah rapes and murders.

An unsurprising development. See prior coverage here.

To no one’s surprise, the SG has waived the United States’ right to respond to the military pro se IFP cert petition in White v. United States, No. 11-5041.  The cert petition seeks SCOTUS review of CAAF’s decision in United States v. White, 69 M.J. 236 (C.A.A.F. 2010).

The Supremes have docketed a pro se IFP cert petition in White v. United States, No. 11-5041.  It seeks review of this CAAF decision.  United States v. White, 69 M.J. 236 (C.A.A.F. 2010).  The SG’s response is due NLT 29 July, though he will almost certainly waive the United States’ right to respond long before the deadline.

As we noted yesterday, the brand new Solicitor General, Donald Verrilli, Jr., asked Chief Justice Roberts to extend the United States’ deadline for filing a cert petition in United States v. Prather until 15 July 2011.  Chief Justice Roberts has now granted an extension, but only until 29 June 2011.  United States v. Prather, No. 10A1237.

The SG yesterday asked the Chief Justice to extend the United States’ time in which to file a cert petition in Prather until 15 July 2011.  United States v. Prather, No. 10A-1237.  This doesn’t mean, however, that the SG will file a cert petition; the SG often asks for an extension of time and then decides not to file a cert petition.

As expected, today’s SCOTUS order list included the denial of certiorari in Luke v.  United States, No. 10-1294.

The cert petition in Luke v. United States, No. 10-1294, which we discussed here and here, has been distributed for the 19 May 2011 conference.

The SG has waived the United States’ response to the cert petition in Luke v.  United States, No. 10-1294, which we discussed here.  The cert petition is here.

A cert petition has been filed in the Luke case.  At the Supremes, the case is Luke v. United States, No. 10-1294.  David P. Sheldon, Esquire, is Luke’s counsel of record.  The SG’s response is due no later than 23 May 2011.

Here’s the QP:

Does the decision of the Court of Appeals for the Armed Forces (CAAF) violate this Court’s holding in Mesarosh v. United States by disregarding its governing principles that post-trial information can so discredit the credibility of a principal government witness that it undermines the integrity of the judicial process?

The full cert petition is here.

A filing submitted by the Air Force’s appellate government division today includes this interesting news:  “The undersigned counsel recently completed the Supreme Court petition in United States v. Prather for inter-service review.”  Of course, several steps remain before a decision is made whether the United States will actually seek certiorari.  By my calculations, as a result of the government’s reconsideration petition at CAAF, a cert petition would be due in the case by 15 June.  If the Solicitor General is seriously considering seeking cert, a request to extend that deadline would likely be filed with Chief Justice Roberts, who would grant such a request as a matter of course.  (While a cert petition probably won’t be filed without such a request, the filing of such a request doesn’t necessarily mean that a cert petition will be filed.  It’s not uncommon for the SG to request additional time to decide whether to file a cert petition and then opt not to.)

[Disclosure:  I'm one of Airman Prather's appellate defense counsel, though my work on the case has consisted largely of carrying Maj Dave Bennett's briefcase into the oral argument at CAAF.]

As expected, today’s SCOTUS order list included the denial of cert in Diamond v. United States, No. 10-922.  NIMJ’s blog notes an interesting jurisdictional issue in the case.

This week the National Institute of Military Justice filed an amicus brief on behalf of Staff Sergeant John Diamond, who has a petition for certiorari pending with the Supreme Court.  The question presented by the petitioner has to do with whether statements by co-conspirators to police are per se admissable over a confrontation clause objection.  The Army Court of Criminal Appeals held that they were.  CAAF granted review of the case, summarily remanding to ACCA to resolve a conflict of interest issue pertaining to civilian counsel.  CAAF denied further review.  NIMJ doesn’t express a view on the confrontation issue, instead focusing on the  unsettled question of whether SCOTUS has jurisdiction over cases in this procedural posture.

The amicus brief is good.  You should read it.  It starts with a straightforward statutory construction argument that SCOTUS has jurisdiction over cases in which CAAF has granted review–not issues.  We gave some treatment to this issue here.  Beyond the straight-stick construction argument, though, are some interesting subplots. 

It doesn’t make sense from a judicial economy perspective, NIMJ argues, for appellants who win a remand at CAAF to face the possibility that they’ll lose the opportunity to seek certiorari after the remand.  That incentivizes the practice of seeking certiorari immediately after an appellant wins a remand; hardly a good use of anyone’s time.   

Also, NIMJ again takes up the 2010 change in  CAAF Rule 21(b)(5), in which CAAF began requiring petitioners in previously granted and remanded cases to specify to CAAF what issues the petitioner would seek certiorari on at the Supreme Court.  That’s right–you now have to tell CAAF what you’re going to appeal to the Supreme Court when you ask CAAF to once again grant review.  And under the Solicitor General’s (and, apparently, CAAF’s) view of Supreme Court jurisdiction, CAAF can pre-screen your issues to see if you should be allowed to trouble its superior court with them.

NIMJ’s colorful brief calls CAAF’s “boardinghouse reach” (Google it–it’s quite evocative) into the Supreme Court’s jurisdiction nonsense, and goads the justices (or at least some sleepy clerk in the cert pool) with the specter of a lower court fashioning its own rules with a view towards narrowing the statutory jurisdiction of the Supreme Court.  In case a reader unfamiliar with military appellate practice might suspect that CAAF is doing them a favor by sparing them from a flood of military petitions, NIMJ helpfully–perhaps wryly–points out that CAAF is producing about one opinion per judge per month.  Nothing to get too worried over.

The Solicitor General has already waived his right to respond.  We’ll see if the Supreme Court’s interest is piqued enough for them to order a response.

The Supremes have docketed the Diamond cert petition as case number 10-922.  We previously posted the cert petition here.

We’ve posted the complete cert petition in Diamond here.