TRIAL STAGES: Writs and Interlocutory Appeals: Collateral Attack


2008 (Transition)


Denedo v. United States, 66 M.J. 114 (the results of courts-martial are subject to collateral review by courts outside the military justice system; courts-martial also are subject to collateral review within the military justice system). 

 

(when a petitioner seeks collateral relief to modify an action that was taken within the subject matter jurisdiction of the military justice system, such as the findings or sentence of a court-martial, a writ that is necessary or appropriate may be issued under the All Writs Act in aid of the courtís existing jurisdiction). 

 

(Article 76, UCMJ, addressing the finality of a court-martial conviction after completion of direct review, provides a prudential constraint on collateral review, not a jurisdictional limitation; Article 76 does not expressly effect any change in the subject-matter jurisdiction of Article III courts; the Article only defines the point at which military court judgments become final and requires that they be given res judicata effect). 

 
(in terms of timing, Article 76, UCMJ, addressing the finality of a court-martial conviction after completion of direct review, serves as a prudential restraint on collateral review of courts-martial pending completion of direct review; when a coram nobis petition is considered after completion of direct review, finality of direct review enhances rather than diminishes consideration of a request for collateral relief). 

 

(in terms of the scope of collateral review, the res judicata effect of Article 76, UCMJ, addressing the finality of a court-martial conviction after completion of direct review, means that the decision on direct review will stand as final unless it fails to pass muster under the highly constrained standards applicable to review of final judgments).  

 

(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 should be brought before the court that rendered the judgment). 

 

(in the military justice system, the trial court - the court-martial - does not have independent jurisdiction over a case after the military judge authenticates the record and the convening authority forwards the record after taking action; because the trial court is not available for collateral review under the UCMJ or the MCM, collateral review within the military justice system does not occur at the trial court level). 

 

(the courts of criminal appeals, the first-level standing courts in the military justice system, provide an appropriate forum for consideration of coram nobis petitions regarding courts-martial; during the initial consideration of a case, they engage in de novo consideration of the record and expressly act on the findings and sentence; with respect to collateral review of the present case, they are well-positioned to determine whether corrective action on the findings and sentence is warranted, including ordering any factfinding proceedings that may be necessary). 

 

(the court of criminal appeals is an appropriate forum to receive and consider a writ of coram nobis that involves a collateral challenge to that courtís approval of the findings and sentence in a court-martial, where the court-martial that convicted appellant had jurisdiction over both the person and the offense and the court of criminal appeals had jurisdiction to review and approve the findings and sentence on direct review). 

 

(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). 

 

(when reviewing an ineffective assistance of counsel claim raised via a coram nobis petition, petitioner must first satisfy the threshold requirements for a writ of coram nobis; if the petitioner does so, the court then analyzes, in the second tier, the ineffective assistance of counsel claim under Strickland v. Washington, 466 US 668 (1984)). 

 

(appellantís coram nobis petition challenging his court-martial conviction on the ground that his counsel was ineffective for failing to inform him of the immigration consequences of his guilty pleas met the threshold requirements of coram nobis review; although appellant had served his sentence, the alleged error was of the most fundamental character, there was no other adequate remedy because appellant was not in custody and could not obtain relief through a writ of habeas corpus, appellant did not seek earlier relief because the immigration consequences of his pleas did not become known to him until the government initiated deportation proceedings, the new information about the immigration consequences could not have been discovered through the exercise of reasonable diligence prior to the original judgment, the writ does not seek to reevaluate previously considered evidence or legal issues, and the sentence has been served, but serious consequences persist Ė the initiation of deportation proceedings that rely primarily on appellantís court-martial conviction as the basis for deportation). 

 

(appellantís claim that he received ineffective assistance of counsel in a court-martial proceeding when his counsel told him that he would not face deportation if he pleaded guilty at a special court-martial facially established a sufficient basis for coram nobis review, but a ruling on his petition would be premature without a government response and consideration by the court of criminal appeals as to whether his counselís performance was deficient and, if so, whether appellant was prejudiced thereby). 


2006

 

Loving v. United States, 64 M.J. 132 (in Teague v. Lane, the Supreme Court held that new constitutional rules should not be applied retroactively to convictions on collateral review that have become final, unless a new rule falls into one of two exceptions: (1) the new substantive rule places certain kinds of individual conduct beyond the power of the criminal law-making authority to proscribe; or (2) the new procedural rule requires procedures without which the likelihood of an accurate conviction is seriously diminished; for purposes of Teague, a military justice case is final when there is a final judgment as to the legality of the proceedings under Article 71(c), UCMJ, i.e. when all direct judicial appeals have been exhausted). 

 

(petitionerís conviction was final for the purposes of the Teague rule precluding retroactive application of new constitutional rules to convictions on collateral review that have become final, where the CAAF had completed direct review, and the Supreme Court granted certiorari and eventually affirmed the CAAFís decision; the Presidentís decision whether to order the death sentence executed or to grant executive clemency is not part of the direct judicial review of the case). 

 

(the rule of Ring v. Arizona, that a jury, rather than a judge, must find the existence of an aggravating factor in a capital case, could not be applied retroactively to petitionerís final conviction on collateral review, as the rule was procedural and not substantive).

 

(the rule of Apprendi v. New Jersey, that any fact that increases the criminal penalty beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt, could not be applied retroactively to petitionerís final conviction on collateral review, as the rule was procedural and not substantive).

 

(the authority of Wiggins v. Smith, providing guidance on what constitutes ineffective assistance of counsel during capital sentencing under Strickland v. Washington and what is a reasonable investigation in the context of a death penalty case, may be relied on by petitioner to support his habeas corpus petition; unlike the cases of Ring and Apprendi, Wiggins did not announce a new constitutional rule; Wiggins did not make new law, but it did both clarify and illuminate the standards for a reasonable investigation in a criminal trial, in general, and in a death penalty case, in particular; at its core, Wiggins addressed a misapplication of the clearly established legal principles of ineffective assistance of counsel under Strickland; as such, both Wiggins and Strickland present governing legal authority relevant to petitionerís habeas petition).   

 

(the CAAF adopts the standards of the Antiterrorism and Effective Death Penalty Act, codified at 28 USC ßß 2244-2254, as to both the scope of review and the standard of review to evaluate habeas corpus claims raising issues of constitutional law). 

 

(in reviewing habeas corpus petitions on collateral review raising issues of constitutional law, the CAAF will determine whether its prior review: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the prior proceeding). 

 

(with respect to the factual component of a mixed fact/law question in a prior proceeding being considered in a habeas corpus petition on collateral review, a determination of a factual issue made in the prior proceeding is presumed to be correct, and a habeas petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence). 

 

(the CAAF declines to adopt the provisions of the statute governing collateral attacks on federal convictions, 28 USC ß 2255, to evaluate habeas corpus petitions that raise a constitutional issue). 

 

(it is appropriate to order an evidentiary hearing on a habeas corpus petition where a petitioner alleges facts which, if proved, would entitle him to relief, the record reveals a genuine factual dispute as to the alleged facts, and the petitioner did not receive a hearing on the issue; the decision whether to hold an evidentiary hearing is discretionary).   

 

(a DuBay evidentiary hearing is required to consider petitionerís claim on habeas review that his trial defense counsel who defended him in his capital case were deficient in not reasonably investigating his traumatic life history, where the prior opinion of the CAAF did not adequately review the nature of defense counselís investigation; moreover, there was no discussion of the prevailing professional norms at the time as to what was a reasonable investigation or the red flags that should have alerted defense counsel to dig deeper to determine whether petitioner was, indeed, the subject of specific childhood harm that might mitigate his culpability as alleged; the statement of legal conclusions and the absence of detailed factual analysis of what defense counsel did and did not do in investigating the case, reveals that the prior opinion did not address whether trial defense counsel chose to abandon their investigation at an unreasonable juncture, thereby making a fully informed decision with respect to sentencing strategy impossible; the recent authority of Wiggins reveals that the CAAF previously did not adequately focus on the reasonableness of the defense investigation). 

 

(an ineffective assistance of counsel issue may be raised in a habeas petition irrespective of whether a petitioner could have raised it on direct appeal).

 

(with respect to an issue of ineffective assistance of counsel raised in a habeas petition, if there has been no previous factual development at a hearing, and important factual questions or mixed questions of fact and law remain after direct appeal, then those matters must be addressed in a hearing before a determination on that issue can be made under the AEDPA standards).  

 

(in this habeas petition, an evidentiary hearing on the issue of ineffective assistance of counsel is appropriate where there has been no previous factual development at a hearing and there remain important factual questions as to petitionerís claim). 

 

(the U.S. Court of Appeals for the Armed Forces has collateral review jurisdiction over a military death penalty case and may entertain assertions of error as to the legality of the sentence in the period after there is a final judgment as to the legality of the proceedings under Article 71(c)(1), with the completion of direct review, but before the case is final under Article 76 with the approval of the sentence by the President; a capital case is final with the meaning of Article 76 only after the President, acting under Article 71(a), approves it; as finality under Article 76 is the terminal point for proceedings within the court-martial and military justice system, the CAAFís jurisdiction continues until a case is final). 

 

(a petition for writ of error coram nobis was not the appropriate procedural vehicle to seek collateral review of a death penalty by the U.S. Court of Appeals for the Armed Forces during the period after completion of direct review, but before approval of the sentence by the President; a writ of habeas corpus was the only pleading available to raise the substantive challenges to the legality of the death sentence).


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