A cert petition has been filed in the case of Staff Sergeant John M. Diamond.  Here’s the QP:

Are statements to police investigating a crime per se nontestimonial for purposes of the Confrontation Clause if made by a person alleged to be a coconspirator of the accused?

Diamond also presents an interesting jurisdictional issue.  CAAF had previously granted Diamond’s petition for review and remanded the case to ACCA.  United States v. Diamond, 67 M.J. 247 (C.A.A.F. 2009) (summary disposition).  Upon remand, ACCA affirmed.  Then, on 19 October 2010, CAAF denied Diamond’s petitoin for review.  CAAF subsequently dismissed a petition to reconsider.  Do the Supremes have jurisdiction in such a case?

The cert petition in Mullins v. United States, No. 10-710, which is available here and which we discussed here, has been distributed for the 7 January conference.  The SG waived response.

We’ve now obtained a copy of the Mullins cert petition, No. 10-710, which we’ve posted here.  Here’s the QP:

Whether the analysis used by the United States Court of Appeals for the Armed Forces to test for due process violations arising from excessive appellate delay contradicts this Court’s decisions in Strickland v. Washington, Ake v. Oklahoma, and United States v. Bagley, and the tests used by a vast majority of the circuits, by testing for prejudice twice: first, in determining whether a due process violation exists; and second, in determining whether such violation was harmless beyond a reasonable doubt.

The Supreme Court has docketed a cert petition in Mullins v. United States, No. 10-710. I don’t know the QP yet.

The Golden CAAF II will keep grazing at the Kabul Klipper’s house for a while.  As the No Man noted, the Supremes denied the cert petition in Smith v. United States, No. 10-18, on Monday.

The Supremes haven’t granted plenary review of a servicemember’s cert petition under 28 U.S.C. § 1259 since 8 November 1996, when it granted the cert petition in Edmond v. United States, 519 U.S. 977 (1996).  (The Supremes did GVR one military cert petition since then — O’Connor, which was GVRed for further consideration in light of Ashcroft v. Free Speech Coalition.  O’Connor v. United States, 535 U.S. 1014 (2002).) 

Since granting review in Edmond, by my count, the Supremes have denied 238 servicemembers’ cert petitions.

The total number of military cert petitions filed under 28 U.S.C. § 1259 since the right was first established in 1983 has been, by my count, 979.  There have been 9 plenary grants, six upon petition by a servicemember (Solorio, Weiss, Davis, Ryder, Edmond, Loving) and the most recent three upon petition by the SG (Scheffer, Clinton v. Goldsmith, Denedo).  There have been 5 GVRs upon petition by an accused (Goodson v. United States, 471 U.S. 1063 (1985);  Jordan v. United States, 498 U.S. 1009 (1990);  Carpenter v. United States, 515 U.S. 1138 (1995); Clark v. United States, 515 U.S. 1138 (1995) (GVRing six CAAF decisions); and O’Connor) and one GVR upon petition by the SG.  United States v. Mobley, 523 U.S. 1056 (1998) (GVRing three CAAF decisions for further consideration in light of Scheffer).

It appears that in the entire history of SCOTUS review of CMA/CAAF decisions, only one servicemember has received an actual sentence reduction as the result of petitioning for cert:  Specialist Four Goodson, who got rid of his BCD (but not the other portions of his sentence) as the result of his GVR from SCOTUS for further consideration in light of Smith v. Illinois, 469 U.S. 91 (1984).

Here (subscription required) is an short piece from last week by Marcia Coyle at the National Law Journal about military cert. petitioners possible becoming second class petitioners–our fearless leader is quoted.  Here is one excerpt that is interesting/amusing on many levels:

The Supreme Court has not granted full review to a convicted service member’s petition for a writ of certiorari in 14 years. Have they become second-class petitioners?

Not necessarily, said retired Col. Dwight Sullivan, a judge advocate in the Marine Corps Reserve, who keeps a close watch on the data. But the numbers are curious.

. . . The justices have granted full review in nine cases, and granted, vacated and remanded in five others, he added.

“The best predictor by far of whether review will be granted is whether the solicitor general is seeking cert,” said Sullivan. “The solicitor general has sought cert only three times, and it was granted in all three.”

I guess CAAFlog will have to go back to predicting winners and losers in other beauty contests, today’s orders list (here) has Smith v. United States, No. 10-18 on the Denied side.  Nerad and Kerchner were also denied.  I guess it goes to show that even high powered legal teams can’t guarantee certiorari and that the Golden CAAF is best served when the US is on the left side of the “v.”

Smith v. United States, No. 10-18, is the first case listed on SCOTUSblog’s “Petitions to watch” list for tomorrow’s conference.  Appearing on the list means that the petition raises an issue that Tom Goldstein “has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.”  We’ll know a little past 1000 next Monday.

Here is a link to the docket denying cert. in US v. Clayton, 09-1532, the 4th A. case we’ve discussed below.  Guess I’ll have to go back to picking the winner of NFL football contests, like my SUPER-DUPER MONEY IN THE BANK lock of the week, the Giants at home vs. the Cowboys.

The Smith cert petition , No. 10-18 – which we’ve been following and have named cert petition most likely to be the next Golden CAAF award winner — has been distributed for the Supremes’ 23 November conference.

Only since 1983 has the Supreme Court had statutory cert jurisdiction over CMA/CAAF decisions.  And since then, the Supremes have granted plenary review in just nine cases.  The last three (Denedo, Clinton v. Goldsmith, and Scheffer) were all cases in which the SG sought cert.  (And those are the only three instances in which the SG has sought a writ of certiorari to CMA/CAAF.)  Not since 8 November 1996 — 14 years ago — has the Supreme Court granted plenary review upon a servicemember’s petition for a writ of certiorari to CAAF.  Edmond v.  United States, 519 U.S. 977 (1996).  (There have been some other instances in which the Supreme Court granted a military cert petition, vacated CMA’s/CAAF’s ruling, and remanded the case for further consideration  in light of a newly announced SCOTUS opinion.)

The case that stands the greatest chance of breaking that 14-year losing streak is Smith v. United States, No. 10-18 — a cert petition boosted by both a pronounced circuit split and an all-star roster of counsel.  Those all stars have now filed their reply to the Solicitor General’s brief in opposition.  The reply is available here.  We’ll let you know as soon as we learn which conference the petition is distributed for.  And the Kabul Klipper will be putting bubble wrap on his shopping list.

The cert petition in Nerad v. United States, No. 10-532, has been distributed for the 23 November conference — when it will be denied unless a Justice asks for a response from the SG before then.  [Insert familiar disclosure here.]

The Supremes today announced the denial of cert in Huntzinger, No. 10-158, Contreras, No. 10-413, and Ehlers, No. 10-390.

Here’s a link to the SG’s brief in opposition to the cert petition in Smith v. United States, No. 10-18.  Interestingly, the SG argues that there is “no conflict among the circuits that warrants further review of petitioner’s case.”  Smtih BIO at 10.  The SG continues, “This Court has recently denied certiorari on the question presented, Larson v. United States, 552 U.S. 1260 (2008), and should do so again here.”  Id.; see also id. at 14-18.

Here’s the QP from the cert petition:

When a trial judge’s restriction on the cross-examination of a prosecution witness is challenged on appeal as a violation of the Confrontation Clause, is the standard of review de novo, as five circuits have held, or abuse of discretion, as six other circuits (and the court of appeals here) have concluded?

And here’s the QP as presented by the SG:

Whether the United States Court of Appeals for the Armed Forces applied the correct standard of review to petitioner’s claim that the military judge’s limitation on the cross-examination of a government witness violated the Confrontation Clause of the Sixth Amendment.

The Supreme Court has docketed the cert petition in Nerad v. United States, No. 10-532.  A pdf of the cert petition as filed — which cleaned up some typos in the earlier posted version — is here.