TRIAL STAGES: Writs and Interlocutory Appeals: All Writs Act

2012 (September Term)

LRM v. Kastenberg, 72 M.J. 364 (the All Writs Act grants the power to all courts established by act of Congress to issue all writs necessary and appropriate in aid of their respective jurisdiction and agreeable to the usages and principles of law; extraordinary writs serve to confine an inferior court to a lawful exercise of its prescribed jurisdiction). 

(military courts, like Article III tribunals, are empowered to issue extraordinary writs under the All Writs Act). 

(the All Writs Act is not an independent grant of jurisdiction, nor does it expand a court’s existing statutory jurisdiction; rather, the All Writs Act requires two determinations: (1) whether the requested writ is in aid of the court’s existing jurisdiction; and (2) whether the requested writ is necessary or appropriate). 

(in the context of military justice, the All Writs Act in aid of jurisdiction includes cases where a petitioner seeks to modify an action that was taken within the subject matter jurisdiction of the military justice system; a writ petition may be in aid of a court’s jurisdiction even on interlocutory matters where no finding or sentence has been entered in the court-martial). 

(to establish subject-matter jurisdiction over a writ petition, the harm alleged must have had the potential to directly affect the findings and sentence; there is no jurisdiction to adjudicate what amounts to a civil action, maintained by persons who are strangers to the courts-martial, asking for relief that has no bearing on any findings and sentence that may eventually be adjudged by the court-martial). 

(the All Writs Act, 28 USC § 1651, and Article 66, UCMJ, 10 USC § 866, established the CCA’s jurisdiction to hear the writ petition of a rape victim who invited the CCA to evaluate whether a military judge can limit the victim’s right to be heard under MRE 412 and 513 by precluding the victim from presenting the basis for a claim of privilege or exclusion, with or without counsel, during an ongoing general court-martial; the military judge’s ruling had a direct bearing on the information that would be considered by the military judge when determining the admissibility of evidence, and thereafter the evidence considered by the court-martial on the issues of guilt or innocence - which would form the very foundation of a finding and sentence; furthermore, unlike strangers to the courts-martial, the petitioner was the named victim in a court-martial seeking to protect the rights granted to her by the President in duly promulgated rules of evidence, namely to a claim of privilege under MRE 513 and a right to a reasonable opportunity to be heard under MRE 412(c)(2) and 513(e)(2); the victim was not seeking any civil or administrative relief; rather, she was seeking her right to be heard pursuant to the MRE; thus, the harm alleged had the potential to directly affect the findings and sentence, and the CCA had jurisdiction over the writ petition).

(a writ of mandamus was not the appropriate remedy to direct the military judge to provide an opportunity for the named victim in a rape prosecution to be heard through counsel at hearings conducted pursuant to MRE 412 and 513, and to receive any motions or accompanying papers reasonably related to her rights as those may be implicated in those hearings; although the military judge’s ruling must be based on a correct view of the law, and MRE 412 and 513 create certain privileges and a right to a reasonable opportunity to be heard on factual and legal grounds, which may include the right of a victim or patient who is represented by counsel to be heard through counsel, these rights are subject to reasonable limitations and the military judge retains appropriate discretion under RCM 801, and the law does not dictate the particular outcome that the victim requests). 

Center for Constitutional Rights v. United States, 72 M.J. 126 (the CAAF is empowered to issue extraordinary writs under the All Writs Act; that Act provides that all courts established by act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law; the express terms of the Act confine the power of the CAAF to issuing process in aid of its existing statutory jurisdiction; the Act does not enlarge that jurisdiction; as noted by the Supreme Court, the CAAF is not given authority, by the All Writs Act or otherwise, to oversee all matters arguably related to military justice; the Act does not increase the areas of the CAAF’s jurisdiction beyond the limitations set out in Article 67, UCMJ). 

2008 (Transition)


Denedo v. United States, 66 M.J. 114 (the All Writs Act provides that all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law; the Act requires two separate determinations:  first, whether the requested writ is in aid of a courtís jurisdiction; and second, whether the requested writ is necessary or appropriate). 

 

(although military appellate courts are among those empowered to issue extraordinary writs under the All Writs Act, the Act confines a court to issuance of process in aid of its existing statutory jurisdiction and does not enlarge that jurisdiction). 

 

(the CAAF is not given authority, by the All Writs Act or otherwise, to oversee all matters arguably related to military justice, or to act as a plenary administrator even of criminal judgments it has affirmed; there is no source of continuing jurisdiction for the CAAF over all actions administering sentences that it at one time had the power to review). 

 

(when courts within the military justice system lack subject matter jurisdiction over an action, such as an administrative separation, they cannot invoke the All Writs Act to enlarge their jurisdiction to review the administrative action, even if it is based upon the results of a court-martial). 

 

(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).

 

(on direct appeal in courts-martial in which the sentence extends to a punitive discharge, the CCA conducts a de novo review of the findings and sentence approved by the convening authority; any request for coram nobis relief is limited to the findings and sentence of the court-martial reviewed by the CCA; where, as in this case, appellant has raised a claim of ineffective assistance of counsel that goes directly to the validity and integrity of the judgment rendered and affirmed, a petition for writ of error coram nobis was in aid of the existing jurisdiction of the CCA).


(because the All Writs Act serves as a residual authority, a writ is not necessary or appropriate under the statute if another adequate legal remedy is available; the determination of whether another remedy is adequate requires a contextual analysis). 

 

(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)). 


(where a claim arises under the All Writs Act, the petitioner must establish a clear and indisputable right to the requested relief). 

 
(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, 62 M.J. 235 (while the All Writs Act authorizes employment of extraordinary writs, it confines the authority to the issuance of process in aid of the issuing courtís jurisdiction; the Act does not enlarge that jurisdiction; the power of the U.S. Court of Appeals for the Armed Forces under the All Writs Act is essentially equitable and, as such, not generally available to provide alternatives to other adequate remedies at law; a writ may not be used when another method of review will suffice; the All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute; where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act that is controlling).

 

(a writ of error coram nobis remains appropriate when no other remedy is available; if a court may issue a writ of habeas corpus under the All Writs Act to address issues raised by petitioner, a coram nobis writ is not appropriate; the U.S. Court of Appeals for the Armed Forces is empowered under the All Writs Act to grant extraordinary relief where appropriate; the writ of habeas corpus is available to the military accused and may be filed in this Court under the All Writs Act, 28 U.S.C. ß 1651(a); the writ of coram nobis is thus an inappropriate procedural vehicle for a petitioner to challenge the legality of his death sentence because a writ of habeas corpus is the proper pleading).

 

2005

 

Walker v. United States, 60 MJ 354 (consideration of a case by a CCA panel composed of properly assigned appellate judges is an essential prerequisite to the conduct of appellate review under Article 66, UCMJ; where petitionerís case is pending Article 66 review before a CCA lacking a properly designated official who can perform the functions of the chief judge in making panel assignments, this is an extraordinary circumstance which directly and adversely affects the normal course of appellate review; as such, issuance of an extraordinary writ by this Court is essential to ensure that petitionerís case is before a panel authorized to conduct the normal course of appellate review; accordingly, petitionerís motion for extraordinary relief is granted in part; assignment of judges to the panel reviewing petitionerís court-martial shall not be made by or under the direction of a chief judge recused from this case; instead, the JAG shall designate an appellate military judge to perform the functions of the chief judge in view of his recusal).


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