UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-059
PETITIONS FOR GRANT OF
REVIEW FILED
No.
07-0186/AF.
No.
07-0187/AF.
No.
07-0188/AF.
No.
07-0189/AF.
No.
07-0190/AF.
No.
07-0191/AF.
No.
07-0192/AF.
No.
07-0193/AF.
No.
07-0194/AF.
No.
07-0195/AF.
INTERLOCUTORY ORDERS
No.
07-0130/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-058
PETITIONS
FOR GRANT OF REVIEW FILED
No.
07-0185/CG.
INTERLOCUTORY ORDERS
No.
06-0319/MC.
No.
07-0120/AR.
No.
07-0135/MC.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-057
PETITIONS FOR GRANT OF
REVIEW FILED
No.
07-0183/AR.
No.
07-0184/AR.
MISCELLANEOUS DOCKET - FILINGS
Misc.
No. 07-8007/AF.
Derek J. GRESKA, Petitioner. v. The Air Force Court of Criminal
Appeals,
Respondent. CCA
S30987. Notice is hereby given
that a petition for extraordinary relief in the nature of a writ of
prohibition
was filed under Rule 27(a) on this 27th day of December, 2006.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-056
PETITIONS FOR GRANT OF
REVIEW FILED
No.
07-0180/AR.
No.
07-0181/AR.
No.
07-0182/AR.
MISCELLANEOUS DOCKET - FILINGS
Misc.
No. 07-8006/AF.
Melvert WASHINGTON, Jr.,
Appellant/Petitioner v.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-055
PETITIONS FOR GRANT OF REVIEW FILED
No.
07-0178/AR.
No.
07-0179/MC.
INTERLOCUTORY ORDERS
No.
07-5001/MC.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-054
CERTIFICATES FOR
REVIEW FILED
No. 07-5002/AR.
WHETHER
THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT RULED
THAT THE
MILITARY JUDGE ERRED IN REFUSING TO INSTRUCT THE PANEL THAT A MUTUAL
COMBATANT
COULD REGAIN THE RIGHT TO SELF DEFENSE WHEN THE OPPOSING PARTY
ESCALATES THE
LEVEL OF CONFLICT, EVEN IF APPELLANT DOES NOT WITHDRAW IN GOOD FAITH,
AS
REQUIRED BY RULE FOR COURTS MARTIAL 916(e)(4).
APPEALS – SUMMARY DISPOSITIONS
No. 06-0745/AR.
On further review
of the above-entitled case, it is
noted that in its final brief, Appellee concedes that “the findings
should be
modified to reflect the lesser-included offenses of indecent acts with
another
and sodomy.” Final
Brief on Behalf of Appellee at 5.
In light of this concession and upon consideration of the record
and the
briefs, it is ordered that the decision of the United
States Army Court of Criminal Appeals is reversed as to the language “a
person
who had not attained the age of 16 years” in Specification 1 of Charge
I, “a
child under the age of 16 years” in the Specification of Charge II, and
“a
female under 16 years of age” in Specification 2 of Charge III and as
to the
sentence, but is affirmed in all other respects.
The findings of
guilty as to
the aforementioned language are set aside and those portions of the
specifications are dismissed. The record
of trial is returned to the Judge Advocate General of the Army for
remand to
the Court of Criminal Appeals. That
court may either reassess the
sentence based on the affirmed findings or order a rehearing. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867
(2000), shall apply. The Hearing Notice
of
PETITIONS FOR GRANT OF REVIEW FILED
No.
07-0177/AR.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-053
APPEALS - SUMMARY DISPOSITIONS
No. 06-0889/AR.
THE DILATORY
POST-TRIAL
PROCESSING OF APPELLANT'S CASE WARRANTS RELIEF BECAUSE: (1) OVER EIGHT
MONTHS
ELAPSED BETWEEN ADJUDGMENT OF THE SENTENCE AND PRODUCTION OF THE RECORD
OF
TRIAL; (2) OVER THREE MONTHS ELAPSED BETWEEN TRANSCRIPTION OF THE
RECORD OF
TRIAL AND AUTHENTICATION THEREOF; AND (3) TWENTY-TWO DAYS ELAPSED
BETWEEN
AUTHENTICATION OF THE RECORD OF TRIAL AND INITIAL ACTION, CUMULATIVELY
TOTALING
ALMOST ONE YEAR BETWEEN SENTENCING AND INITIAL ACTION REGARDING A
617-PAGE
RECORD OF TRIAL. (CITATIONS
TO ACCA OPINIONS OMITTED)
The decision of
the United
States Army Court of Criminal Appeals is affirmed.
[See also ORDERS GRANTING PETITION FOR REVIEW
this date.]
ORDERS GRANTING PETITION FOR REVIEW
No. 06-0860/AF.
WHETHER
THE MILITARY JUDGE ERRED IN ADMITTING EVIDENCE AT TRIAL THAT WAS
OBTAINED AS A
DIRECT RESULT OF AN ILLEGAL SEARCH OF APPELLANT'S PERSONAL COMPUTER.
Briefs will be
filed under
Rule 25.
No. 06-0889/AR.
No. 06-0943/NA.
I.
WHETHER THE
II. WHETHER THE
EVIDENCE IS LEGALLY INSUFFICIENT TO PROVE THAT APPELLANT CONSPIRED WITH
JOHN
DOE TO OBSTRUCT JUSTICE WHERE THERE IS NO EVIDENCE IN THE RECORD THAT
JOHN DOE
EVER EXISTED.
III. WHETHER
APPELLANT WAS DENIED DUE PROCESS OF LAW WHERE THE
Briefs will be
filed under
Rule 25.
PETITIONS FOR GRANT OF REVIEW FILED
No. 07-0174/AR.
No. 07-0175/AR.
No. 07-0176/AR.
INTERLOCUTORY ORDERS
No. 06-0403/MC.
No. 06-0714/AF.
No. 07-0028/MC.
No. 07-0029/MC.
No. 07-0101/NA.
No. 07-0103/AR.
No. 07-0108/AR.
No. 07-0114/AR.
No. 07-0118/AR.
MANDATES ISSUED
No. 05-0563/MC.
No. 06-0116/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-052
PETITIONS FOR GRANT OF
REVIEW FILED
No.
07-0162/AF.
No.
07-0163/AF.
No.
07-0164/AF.
No.
07-0165/AF.
No.
07-0166/AF.
No.
07-0167/AF.
No.
07-0168/AF.
No.
07-0169/AF.
No.
07-0170/AF.
No.
07-0171/MC.
No.
07-0172/AR.
No.
07-0173/AR.
INTERLOCUTORY ORDERS
No.
06-8006/AR.
MANDATES ISSUED
No.
06-8006/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-051
PETITIONS FOR GRANT OF
REVIEW DENIED
No.
06-0628/AR.
No.
06-0655/AF.
No.
06-0887/NA.
No.
07-0052/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0555/AF.
No.
07-0159/NA.
No.
07-0160/AF.
No.
07-0161/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-050
PETITIONS FOR GRANT OF
REVIEW FILED
No.
07-0158/AR.
MISCELLANEOUS DOCKET – SUMMARY DISPOSITIONS
Nos.
05-0405 & 07-8004/NA.
On
On
On December 4,
after our Court issued the Dearing
mandate, Respondent filed a motion to stay the mandate.
In a separate filing on the same day,
Respondent urged our Court to deny Petitioner’s request for
extraordinary
relief while the Government considered whether to seek review of the Dearing
decision in the Supreme Court. We note
that the Dearing mandate was issued in accordance with our
rules seven
days after we completed action on the petition for reconsideration. See C.A.A.F. R. 43A(a). Respondent did not file the request for a
stay until after the mandate was issued.
Respondent has provided no explanation or basis for its untimely
filing. Accordingly, the motion to stay
the mandate is denied.
Even
if we
were to treat Respondent’s filing as a motion to recall the mandate,
relief
would not be warranted. The Supreme
Court has
cautioned that, “[i]n light of the profound interests
in repose attaching to the mandate of a court of appeals,” a court’s
authority
to recall a mandate should be “exercised only in extraordinary
circumstances”
for the power “is one of last resort, to be held in reserve against
grave,
unforeseen contingencies.” Calderon v. Thompson, 523
Respondent has
not identified any extraordinary
circumstance warranting recall.
Respondent simply cited the internal consideration within the
executive
branch on whether to seek discretionary Supreme Court review of our
decision in
Dearing. Such internal review is
a standard feature of government litigation, not the type of “grave,
unforeseen
contingenc[y]” described in Calderon, 523
With
respect
to Petitioner’s request for a writ of mandamus, we note that the
following
matters asserted by Petitioner have not been disputed by Respondent: (1) the maximum sentence of confinement for
obstruction of justice is five years, Manual for Courts-Martial,
Respondent has
two options in this
circumstance: (1) release Petitioner
from confinement, or (2) take the appropriate steps to determine
whether to
place him in pretrial confinement pending a rehearing.
See
Respondent
suggests that the present case is
governed by United States v. Miller, 47 M.J. 352 (C.A.A.F.
1997), rather
than
Respondent also
contends that Petitioner must pursue
other means of obtaining relief -- by filing a complaint under Article
138,
UCMJ, 10 U.S.C. § 938 (2000), or requesting the Judge Advocate General
to order
his release -- before he would be entitled to relief from this Court. Our precedents do not require a petitioner to
take such action in order to achieve the performance of the
nondiscretionary
duty of releasing him from confinement once he has served the maximum
period
for the offenses of which he has been convicted.
Accordingly,
the Motion to Stay Mandate is denied. The
Petition for Extraordinary Relief in the Nature of a Writ of Mandamus
is
granted to the extent that Respondent is ordered either to release
Petitioner
from confinement or promptly determine whether he should be held in
pretrial
confinement pending a rehearing.
INTERLOCUTORY
No.
07-0019/AR.
No. 07-0086/NA.
No.
07-0097/AF.
No.
07-0102/AR.
No.
07-0106/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-049
APPEALS - SUMMARY
DISPOSITIONS
ORDERS GRANTING PETITION FOR REVIEW
No. 06-0774/AF.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
06-0899/AR.
No.
06-0951/AR.
No.
07-0011/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
07-0156/AR.
No.
07-0157/MC.
INTERLOCUTORY ORDERS
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL