TRIAL STAGES: Writs and Interlocutary Appeals: Generally

2013 (September Term)

United States v. Wicks, 73 M.J. 93 (in an Article 62, UCMJ, interlocutory appeal, an appellate court reviews a military judge’s decision directly and reviews evidence in the light most favorable to the prevailing party at trial; in reviewing a military judge’s ruling on a motion to suppress, the court reviews factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard; the same standard is applied when reviewing evidentiary rulings; on mixed questions of law and fact, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect; the abuse of discretion standard calls for more than a mere difference of opinion; the challenged action must be arbitrary, clearly unreasonable, or clearly erroneous).    

2012 (September Term)

United States v. Salyer, 72 M.J. 415 (the normative method for challenging a military judge’s legal ruling is to seek an appeal of that ruling; this might be done on an interlocutory basis, and generally the appeal will be given precedence by an appellate court; the normative method for addressing a military judge’s substantive ruling is not to seek a military judge’s disqualification and get a new ruling from a replacement military judge; and, it is not to have the government communicate in an ex parte manner with the military judge’s judicial supervisor and express displeasure with the ruling). 

Hasan v. Gross, 71 M.J. 416 (to prevail on a writ of mandamus, appellant must show that: (1) there is no other adequate means to attain relief; (2) the right to issuance of the writ is clear and indisputable; and (3) the issuance of the writ is appropriate under the circumstances). 

2008 (September Term)

Loving v. United States, 68 M.J. 1 (under the standards of 28 USC 2254(d), a habeas review of a constitutional claim would normally employ a deferential review of the challenged decision). 

 

(to establish prejudice for an ineffective assistance of counsel claim with respect to sentencing in a capital case, the new evidence that a habeas petitioner presents must differ in a substantial way - in strength and subject matter - from the evidence actually presented at sentencing). 

 

2008 (Transition)

Denedo v. United States, 66 M.J. 114 (for a writ appeal, the CAAF considers the record developed at trial and on direct appeal; it also considers the materials filed by the parties in the course of the writ proceedings at the court of criminal appeals and the appeal to the CAAF; based on the foregoing, the CAAF considers whether a decision on the writ appeal can be reached on the record before it, or whether a more fully developed factual record is required prior to reaching a decision on the merits).  

 
(under the exhaustion of remedies doctrine, courts outside the military justice system normally refrain from collateral review of courts-martial until all available military remedies are exhausted).

 

(as a general matter, courts outside the military justice system will not entertain habeas petitions by military prisoners until all available military remedies have been exhausted; however, the exhaustion requirement is prudential rather than jurisdictional; the circumstances of a particular case might warrant consideration of a habeas petition by an Article III court prior to exhaustion). 

 

(even when remedies have been exhausted, the scope of collateral review outside the military justice system is constrained by the requirement to consider whether the military justice system has given full and fair consideration to the claims at issue; de novo review is appropriate only if the military justice system manifestly refused to consider those claims). 

 

(a writ of error coram nobis requests the court that imposed the judgment to consider exceptional circumstances, such as new facts or legal developments, that may change the result). 

 

(the decision of the court of criminal appeals on a writ petition is subject to appellate review). 

 

(coram nobis permits continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review, but only under very limited circumstances; although a petition may be filed at any time without limitation, a petitioner must meet stringent threshold requirements:  (1) the alleged error is of the most fundamental character; (2) no remedy other than coram nobis is available to rectify the consequences of the error; (3) valid reasons exist for not seeking relief earlier; (4) the new information presented in the petition could not have been discovered through the exercise of reasonable diligence prior to the original judgment; (5) the writ does not seek to reevaluate previously considered evidence or legal issues; and (6) the sentence has been served, but the consequences of the erroneous conviction persist). 


2002

United States v. Beck, 56 MJ 426 (issuance of an extraordinary writ staying court-martial proceedings requires the careful exercise of discretion).

(when a writ petition asks us to stay a court-martial in deference to proceedings in a court outside the military justice system, it would be inappropriate to issue a stay absent a persuasive ruling from such a court or similar prudential considerations).


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