UNITED STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 05-079
PETITIONS FOR GRANT OF REVIEW
FILED
No.
05-0267/AR.
No.
05-0268/AR.
No.
05-0269/NA.
No.
05-0270/NA.
No.
05-0271/NA.
No.
05-0272/NA.
INTERLOCUTORY ORDERS
No.
05-0159/AR.
No.
05-0200/NA.
No.
05-0208/AR.
No.
05-0211/AR.
No.
05-0224/AR.
No.
05-8020/NA.
John DOE, Appellant, v. Commander, Naval
Special
Warfare Command, Appellee. CCA 200401530.
Appellee's motion to correct granted.
UNITED STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 05-078
PETITIONS FOR GRANT OF REVIEW
FILED
No.
05-0264/AF.
No.
05-0265/AF.
No.
05-0266/MC.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-077
INTERLOCUTORY ORDERS
No.
04-0216/AF.
No.
04-8018/AR.
No.
05-0184/AR.
No.
05-0198/AR.
No.
05-0199/AR.
No.
05-0205/AR.
UNITED STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-076
HEARINGS
No.
03-0678/AR.
No.
04-0178/AR.
ORDERS GRANTING PETITION FOR REVIEW
No. 04-0700/AF.
WHETHER
THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY RULING THAT THE
GOVERNMENT DID
NOT VIOLATE APPELLANT'S RIGHT TO SPEEDY TRIAL UNDER R.C.M. 707. MORE SPECIFICALLY, (1) CAN AN INVESTIGATING
OFFICER APPROVE PRETRIAL DELAY TO BE EXCLUDED UNDER R.C.M. 707? (2) CAN
A COURT
OF CRIMINAL APPEALS DETERMINE AN EXCLUSION OF DELAY FOR PURPOSES OF
R.C.M. 707
AFTER THE FACT IF THERE HAD BEEN NO PRETRIAL APPROVAL UNDER R.C.M. 707?
AND (3)
WAS THE HOLDING OF THE COURT OF CRIMINAL APPEALS THAT TWO DELAYS WERE
EXCLUDABLE UNDER R.C.M. 707 LEGAL ERROR?
PETITIONS FOR GRANT OF REVIEW DENIED
No.
05-0094/AR.
No.
05-0110/AF.
No.
05-0119/AR.
No.
05-0129/AF.
No.
05-0134/AF.
No.
05-0158/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
01-0134/AR.
____________
*/ Second
petition filed in this case.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-075
HEARINGS
No.
00-0679/AR.
No.
04-0392/AF.
No.
04-0465/AF.
No.
04-0540/AF.
ORDERS GRANTING PETITION FOR REVIEW
No. 04-0707/MC.
I.
WHETHER THE
II.
WHETHER THE
INTERLOCUTORY ORDERS
No.
05-0196/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-074
ORDERS GRANTING PETITION FOR REVIEW
No. 05-0139/MC.
WHETHER
THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS AWARDED MEANINGFUL
SENTENCE
RELIEF (NOT AFFIRMING AN AUTOMATICALLY REMITTED BAD-CONDUCT DISCHARGE)
AFTER IT
FOUND SENTENCING RELIEF TO BE APPROPRIATE UNDER UNITED STATES v.
TARDIF,
57 M.J. 219 (C.A.A.F. 2002) FOR UNREASONABLE POST-TRIAL DELAY.
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0258/AR.
No.
05-0259/AR.
No.
05-0260/AF.
No.
05-0261/AR.
No.
05-0262/AR.
No.
05-0263/MC.
UNITED STATES
COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 05-073
PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY
DISPOSITIONS
No. 05-0173/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0249/AR.
No. 05-0250/AF.
No. 05-0251/AF.
No. 05-0252/AF.
No. 05-0253/AF.
No. 05-0254/AF.
No. 05-0255/AF.
No. 05-0256/AF.
No. 05-0257/AR.
INTERLOCUTORY ORDERS
No. 01-0295/AR.
No. 04-8018/AR.
No. 05-00029/AR.
No. 05-0183/AR.
No. 05-0186/AR.
No. 05-0187/AR.
No. 05-0190/AR.
UNITED STATES
COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 05-072
PETITIONS FOR GRANT OF REVIEW DENIED
No. 05-0067/AR.
No. 05-0080/AR.
No. 05-0088/MC.
No. 05-0113/AR.
No. 05-0120/MC.
No. 05-0121/AF.
No. 05-0123/AF.
No. 05-0126/AR.
No. 05-0142/AR.
No. 05-0146/AF.
No. 05-0147/AF.
No. 05-0155/MC.
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0246/AR.
No. 05-0247/AR.
No. 05-0248/AF.
INTERLOCUTORY ORDERS
No. 05-0174/MC.
UNITED STATES
COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 05-071
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0241/AR.
No. 05-0242/AR.
No. 05-0243/MC.
No. 05-0244/MC.
No. 05-0245/MC.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
MISCELLANEOUS DOCKET - FILINGS
Misc. No.
05-8021/AR. Ibrahim
Ahmed Mahmoud AL QOSI, Presumptive
Prisoner of War, Guantanamo Bay, Cuba, Detainee, Petitioner, v. John D.
ALTENBURG, Appointing Authority, Colonel Peter BROWNBACK, Presiding
Officer,
and the United States, Respondents. [See also MISCELLANEOUS
DOCKET –
SUMMARY DISPOSITIONS and INTERLOCUTORTY ORDERS this date.]
INTERLOCUTORY ORDERS
No. 05-8021/AR. Ibrahim Ahmed Mahmoud AL QOSI, Presumptive Prisoner of War, Guantanamo Bay, Cuba, Detainee, Petitioner, v. John D. ALTENBURG, Appointing Authority, Colonel Peter BROWNBACK, Presiding Officer, and the United States, Respondents. [See also MISCELLANEOUS DOCKET – SUMMARY DISPOSITIONS and MISCELLANEOUS DOCKET – FILINGS this date.]
UNITED STATES
COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 05-070
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0237/AR.
No. 05-0238/AR.
No. 05-0239/AR.
No. 05-0240/MC.
INTERLOCUTORY ORDERS
No. 03-0590/AR.
No. 04-0588/NA.
No. 04-8018/AR.
No. 05-0098/AR.
No. 05-0118/MC.
No. 05-0138/AR.
No. 05-0141/AR.
UNITED STATES
COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 05-069
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-0556/AF.
No. 05-0073/AR.
No. 05-0124/AF.
No. 05-0128/AF.
No. 05-0135/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0232/AR.
No. 05-0233/NA.
No. 05-0234/NA.
No. 05-0235/NA.
No. 05-0236/MC.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 05-068
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-0790/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0230/AR.
No. 05-0231/AR.
INTERLOCUTORY ORDERS
No. 04-0264/AR.
No. 05-0102/AR.
No. 05-0206/NA.
UNITED STATES
COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 05-067
ORDERS GRANTING PETITION FOR REVIEW
No. 05-0041/AF.
WHETHER THE
MILITARY JUDGE ERRED IN DENYING
APPELLANT'S MOTION TO SUPPRESS HIS HAIR TEST RESULTS WHEN THERE WAS NO
PROBABLE
CAUSE FOR THE SEARCH AUTHORIZATION USED TO SECURE APPELLANT'S HAIR.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 05-0016/AF.
No. 05-0033/MC.
No. 05-0079/AF.
No. 05-0083/AF.
No. 05-0085/NA.
No. 05-0086/MC.
No. 05-0087/NA.
No. 05-0109/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0225/AR.
No. 05-0226/AR.
No. 05-0227/AR.
No. 05-0228/AR.
No. 05-0229/AR.
INTERLOCUTORY ORDERS
No. 03-0595/AR.
No. 05-0177/AR.
UNITED STATES
COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 05-066
APPEALS - SUMMARY DISPOSITIONS
No.
04-0608/AR.
WHETHER APPELLANT
WAS SUBJECT TO ILLEGAL POST-TRIAL
CONFINEMENT IF, IN CONTRAVENTION OF THE DECISION OF THE ARMY COURT OF
CRIMINAL
APPEALS, HE WAS NOT CREDITED WITH THIRTY DAYS OF CONFINEMENT CREDIT.
We conclude that a remand is necessary so that the court below can exercise its authority under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c), to determine whether relief is warranted as to sentence, and if so, what relief should be granted. Accordingly, it is ordered that the decision of the United States Army Court of Criminal Appeals is affirmed as to the findings, but reversed as to the sentence. The record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals for consideration of the granted issue. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867, will apply. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]
ORDERS GRANTING PETITION FOR REVIEW
No.
04-0608/AR.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-0717/AR.
No. 04-0729/AR.
No. 04-0780/AR.
No. 05-0026/AR.
No. 05-0030/AR.
No. 05-0090/AR.
No. 05-0107/AR.
No. 05-0112/AR.
No. 05-0116/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0219/AR.
No. 05-0220/AF.
No. 05-0221/AF.
No. 05-0222/AF.
No. 05-0223/MC.
No. 05-0224/AR.
INTERLOCUTORY ORDERS
No. 04-0524/AR.
No. 05-0161/MC.
UNITED STATES
COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 05-065
PETITIONS FOR GRANT OF REVIEW
DENIED
No. 05-0056/AF.
No. 05-0130/AF.
No. 05-0143/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0217/NA.
No. 05-0218/NA.
MANDATES ISSUED
No. 03-0128/AF.
UNITED STATES
COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 05-064
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0216/MC.
MISCELLANEOUS DOCKET - FILINGS
Misc. No.
05-8020/NA. John DOE, Appellant, v.
Commander, Naval Special Warfare Command, Appellee. CCA 200401530. Notice is hereby given that
a
writ-appeal petition for review of the Navy-Marine Corps Court of
Criminal
Appeals decision on application for extraordinary relief in the nature
of writs
of mandamus and prohibition was filed under Rule 27(b) on January 5,
2005 and
placed on the docket this 6th day of January 2005. In addition,
Appellant
has filed a motion for leave to file documents under seal, a motion to
suspend
Rule 8(a) in part and for leave to proceed under a pseudonym, and a
motion for
a stay. On consideration thereof, it is ordered that Appellant’s
motion
for leave to file documents under seal is hereby granted; that
Appellant’s
unopposed motion to suspend Rule 8(a) in part and for leave to proceed
under a
pseudonym is hereby granted for purposes of this writ-appeal petition;
that
Appellant’s motion for a stay is hereby denied; and that Government
will file
an answer to Appellant’s writ-appeal petition on or before January 18,
2005. See Rules 27(b) and 28(b)(2),
Rules
of Practice and
INTERLOCUTORY ORDERS
Misc. No.
05-8020/NA. John DOE, Appellant, v.
Commander, Naval Special Warfare Command, Appellee. CCA 200401530. [See
also
MISCELLANEOUS DOCKET – FILINGS this date.]
UNITED STATES
COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 05-063
APPEALS - SUMMARY DISPOSITIONS
No. 04-0433/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0215/AR.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc. No.
05-8002/AR. William J. KREUTZER, Jr., Petitioner, v.
The All Writs Act limits this Court’s power to issue extraordinary
writs to
those matters “in aid of” our jurisdiction. 28
U.S.C. §
1651(a) (2000). This Court has the authority to act “with
respect
to the findings and sentence as approved by the convening authority and
as
affirmed or set aside as incorrect in law by the Court of Criminal
Appeals.” 10 U.S.C. § 867(c) (2000).
It is
the direct effect of a legal ruling by the service court, setting aside
this
capital sentence, that is before us.
The
execution of the decision of the Army Court of Criminal Appeals and
Petitioner’s claim that continued confinement on “death row” as an
unsentenced
person is in violation of law and regulation are within our statutory
jurisdiction.
Army regulations prohibit the commingling of prisoners under sentence
of death
with “other than death sentence prisoners.” (Paragraph 12-6b, Army
Regulation
190-47, The Army Corrections System (
CRAWFORD, Judge
(dissenting):
[T]he political
truth is, that the disposal of the
judicial power (except in a few specified instances), belongs to
congress. If congress has given the power to this Court, we
pos[s]ess it,
not otherwise; and if congress has not given the power to us, or to any
other
Court, it still remains at the legislative disposal. Besides,
congress is
not bound, and it would, perhaps, be inexpedient, to enlarge the
jurisdiction
of the federal Courts to every subject, in every form, which the
constitution
might warrant.
Turner v. Bank of
North America, 4
Once again, for the reasons detailed in my dissent to the Show Cause
Order, as
well as for the additional reasons set forth below, I must respectfully
dissent
from the majority’s action on this extraordinary writ.
Sadly, I note
that the only extraordinary aspect of
this writ decision is this Court’s willingness to disregard both the
limits of
our writ authority and the normal course of appellate review in a
stampede
toward what one can only assume is a well-intended vision of
justice.
Contrary to Supreme Court interpretation of the All Writs Act (Cheney
v.
United States District Court, 124 S. Ct. 2576 (2004)), and armed
only with
a piecemeal interpretation of a single service regulation, today this
Court
orders the USDB Commandant to move Petitioner from the cell block in
which he
is confined. I decline to speculate on whether this result may
ultimately
prove substantively “correct,” noting only that this decision, like all
others
putatively made in the orderly administration of justice, must be made
in the
proper venue at the proper time and based on evidence sufficient to
satisfy the
requirements of law. Here, now, and in view of the evidence, this
Court
is without authority to issue the writ Petitioner seeks.
By granting Petitioner’s extraordinary writ on this issue, we
perilously
suggest that this Court is the first-tier appellate authority for
classification decisions by the Commandant, USDB, and in so doing we
marginalize an entire panoply of administrative remedies. Perhaps
more
damaging, our action cannot help but suggest to prudent defense counsel
that if
an imprisoned client believes the Commandant has wrongly interpreted an
applicable regulation, counsel may be remiss in failing to seek
extraordinary
relief from this Court.
I find curious the conclusion that “the Respondent (United States
Government)
has failed to meet its burden to show why relief should not be
granted,”
particularly since, despite express statutory and Supreme Court
requirements to
the contrary, Petitioner was required to meet no burden at all before
Respondent was assigned the burden it is now claimed it failed to
meet.
Lifting one sentence from a complex regulation in a complex system of
regulations, this Court concludes not only that Petitioner cannot be
commingled
with prisoners who remain under a sentence of death, but that
Petitioner has a right
to a writ of mandamus from this Court compelling that result. We
could
hardly more plainly announce that, henceforth, exhaustion is waived,
that the
normal course of appellate review is passé, and that we are no
longer
constrained by precedent, our statutory charter, or the edicts of our
superior
court when we seek to do what is “just.”
Petitioner’s request to be moved from one
cell to
another, and the propriety of that request’s denial, are
precisely the
sort of issues daily evaluated by commanders, general court-martial
convening
authorities, inspectors general, and even assistant service
secretaries.
These officials are empowered, equipped, and prepared to act as first
or second
tier reviewers or appellate authorities on such routine personnel
actions. They know, based on training and experience, both the
internal
and external risks including the potential for suicide by individuals
who are
awaiting trial involving a death penalty. They would also know
the
potential for violence by individuals who may have nothing to lose in
the
future.
The regulation
cited by the majority does not grant
rights to the Petitioner. In fact, it spells out that “facility
commanders are authorized to restrict the movement and actions of
prisoners and
to take other action, as required, to maintain control; to protect the
safety
and welfare of prisoners and other personnel; and to assure the orderly
operation and administration of” confinement facilities.
In the affidavit
of LtCol Nance, who represented
Petitioner on this issue before the USDB Commandant, we are informed
that at
least one other prisoner whose death sentence has been overturned has
requested
to remain where he is confined, a request apparently granted by the
Commandant. Given today’s order, and our willing, though perhaps
uninformed interpretation of AR 190-47, is the Commandant now compelled
to move
that prisoner, against his wishes, from his current quarters? May
other
prisoners under sentence of death obtain a writ compelling his
movement?
What do we perceive our role to be in any dispute as to where similarly
situated prisoners are to be incarcerated, pending retrial or rehearing
on
sentence? Having granted individual provisions of AR 190-47 the
force of
judicial edict, we cannot overlook the absolute prohibition in
paragraph 3-2(c)
of AR 190-47, that “[p]retrial prisoners may not be confined at the
USDB.” As these two prisoners (and possibly dozens of others) are
not
currently under any sentence and are pending trial by court-martial on
that
issue, they are pretrial prisoners. With our newfound
jurisdiction over
classification and assignment decisions, how long should defense
counsel wait
before petitioning this Court to compel movement of tens of prisoners
to an
authorized pretrial confinement facility?
My point in
leading this parade of horribles is only
to emphasize, once again, that we are a court of law and not of equity
and, as
we have been reminded by our superior court, that we are an Article I
court, of
limited jurisdiction. Clinton v. Goldsmith,
526
INTERLOCUTORY ORDERS
No. 04-0359/AR.
UNITED STATES
COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 05-062
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-0520/NA.
No. 04-0683/MC.
No. 04-0758/AR.
No. 05-0070/NA.
No. 05-0100/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0214/MC.
PETITIONS FOR RECONSIDERATION DENIED
No. 03-0128/AF.
INTERLOCUTORY ORDERS
No. 03-0688/NA.
No. 05-0012/AR.
No. 05-0102/AR.
No. 05-0159/AR.
No. 05-0165/NA.
No. 05-0166/NA.
MANDATES ISSUED
No. 04-0208/AR.
UNITED STATES
COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 05-061
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-0599/AR.
No. 04-0639/AF.
No. 05-0046/AF.
No. 05-0051/AF.
No. 05-0059/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0191/AR.
No. 05-0206/NA.
No. 05-0207/AR.
No. 05-0208/AR.
No. 05-0209/AR.
No. 05-0210/AR.
No. 05-0211/AR.
No. 05-0212/AF.
No. 05-0213/AF.
INTERLOCUTORY ORDERS
____________
CRAWFORD,
Judge (concurring in part and dissenting in part):
I concur that the
Petitioner is entitled to a
properly designated panel to review his case, but the
Petitioner has not
met the statutory and jurisprudential standards for extraordinary writs
concerning
his additional Mental Health Evaluation. For these reasons, I
respectfully dissent from the show-cause order and would deny the
request for
the writ concerning the Mental Health Evaluation of Petitioner.
Contrary to his
pleas, on July 19, 1993, the
Petitioner was convicted by officer members of a general court-martial
of two
specifications of conspiracy, two specifications of failure to obey an
order or
regulation, three specifications of murder, one specification of
robbery, and
two specifications of kidnapping in violation of Articles 81, 92, 118,
122, and
134 Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C., §§
881, 892,
918, 922, and 934 (2002), respectively. The convening authority
approved
the sentence -- reduction in pay grade to E-1, forfeiture of all pay
and
allowances, and death -- and ordered the sentence, with the exception
of death,
be executed. The Navy-Marine Corps Court of Criminal Appeals
(CCA) set
aside the action of the convening authority and remanded the case to a
new
staff judge advocate and convening authority. The new convening
authority
approved the same sentence on
In June 2003, the
petitioner requested a
mental-health examination based upon Atkins v. Virginia.1 The CCA
granted the request and ordered a
mental-health examination to determine whether the Petitioner is
mentally
retarded and, if so, to what degree.2 On
This Court may
issue an extraordinary writ4 if the relief
sought is “in aid of [the Court’s]
jurisdiction and agreeable to the usages and principles of law.”5 The first
statutory requirement, jurisdiction,
is easily satisfied, as this Court is required to review “all cases in
which
the sentence, as affirmed by the Court of Criminal Appeals, extends to
death.”6 The second
requirement, however, has not been
met.
In a recent
decision, the Supreme Court, citing the
All Writs Act, reiterated that courts should issue writs only when: (1)
“the
party seeking issuance of the writ [has] no other adequate means to
attain the
relief he desires,"7 (2) “the
Petitioner [has
met] the burden of showing that [his] right to issuance of the writ is
clear
and indisputable,"8 and (3) “in the
exercise of
its discretion, [the court is] satisfied that the writ is appropriate
under the
circumstances.”9 This Court
has issued
writs when there is a showing of illegal confinement,10 lack of
jurisdiction over a
person,11 a
double-jeopardy bar to
prosecution,12 and for reasons
of judicial
economy.13 Neither
the Supreme
Court standard nor our Court’s history supports the decision to issue a
writ in
this case.
I. Exhaustion
of Remedies
The Petitioner
has not exhausted his remedies
because he has not pursued normal appellate review. If, as
Petitioner
asserts, the CCA has abused its discretion, then the alleged abuse and
any
alleged error can be reviewed upon appeal to this Court.14
A
Clear and Indisputable Right
The Petitioner’s
ability to address error through
the appellate process is fatal to the argument that he has a “clear and
indisputable” right to a writ. The Petitioner has not shown that
he has a
right to the relief sought in the motions made to the CCA, which he now
seeks
through writ of mandamus, or that he falls within the protected group
of
mentally retarded individuals described in Atkins v. Virginia.15
The
Motions to the CCA
Petitioner’s
first motion was for a fact-finding
hearing to determine whether qualifications of the board members were
consistent with the CCA’s order and to determine whether the Petitioner
is
mentally retarded. The appellate defense counsel argue that
because
military judges are “gatekeepers” who can admit only reliable and
relevant
expert testimony, counsel should be able to voir dire the board
members. By allowing a review of the members, they argue, the CCA
will be
able to decide whether to accept the expert opinions. While it is
true
that judges must carefully evaluate expert testimony,16 counsel cite no
authority
for the proposition that this judicial responsibility entitles the
Petitioner
to a separate fact-finding hearing in which they can voir dire
the
proposed experts. Additionally, defense counsel
argue
that, because execution is “irremediable,” there is a heightened need
to guard
against error. Once again, no statute or case is cited that
supports the
assertion that this concern translates into a right of the Petitioner
to
request a separate fact-finding hearing to protect against error.
Furthermore, the UCMJ does recognize the importance of accuracy in
death
sentences and provides a safeguard through Article 67.17
The second motion
was to limit the scope of the
examination. In particular, counsel urge that the board members
should be
able to administer a tool to assess the Petitioner’s intelligence
quotient (IQ)
and nothing more, as the two other prongs for mental retardation can be
evaluated using third-party sources. However, the report by the
board
members does not include any plans to conduct wholly apposite
assessments, such
as for schizophrenia or obsessive-compulsive disorder.18 The CCA,
presumably,
is satisfied that the examination is within the bounds of its
order.
Thus, without any showing that the proposed examination exceeds the
order, the
Petitioner’s argument that he has a right to a writ is without merit.
In its third
motion, appellate defense counsel
requested expert assistance only if a fact-finding hearing was
granted.
The Petitioner did not show that he has a right to a fact-finding
hearing;
therefore, the argument for relief in the form of expert assistance is
irrelevant.
A
Claim of Right Through Atkins
In Atkins,
the Supreme Court noted that while
there are some variations in statutory definitions,19 mental
retardation is
evaluated based upon “substantially subaverage intellectual
functioning,”20 “significant
limitations in adaptive functioning,”21 and “onset . . .
before age 18 years.”22 Appellant
did not fall within the mental
retardation groups the Supreme Court addressed in Atkins.
Wigmore, one of
the drafters of the evidentiary
rules in the 1928 Manual, recognized that a servicemember is constantly
observed by his peers on a daily basis as he goes about his various
duties.23 At 18
years of age, the Petitioner took the
Armed Forces entrance exams and, soon thereafter, in February 1989, he
was
enlisted in the Marine Corps. After finishing basic training, he
successfully completed a three-month communications course to become a
field
radio operator. Less than one year after his enlistment, the
Petitioner
served for one month in Operation “Classic Resolve” and in December
1990, he
was deployed and served for three months in Operation “Desert
Shield/Storm.”
In his service as a Marine, the Petitioner received the Combat Action
Ribbon,
the National Defense Service Medal, the Southwest Asia Service Medal
(with two
stars), the Sea Service Deployment Ribbon (with one star), and the
Kuwait
Liberation Medal. This is not the personal history of a mentally
retarded
individual. This was an individual who was under
observation around the clock
during some of these operations,
and his command did not testify that he was mentally retarded as to the
performance of his duties.
First, the
appellant in Atkins had a full
scale intelligence quotient (IQ) of 59, placing him in the “less than
one
percentile,”24 whereas the
Petitioner’s
full scale IQ was 74, placing him in the fifth percentile, the outer
fringe of
cutoff scores for mental retardation.25 One of the
two
experts at trial testified that the Petitioner had IQ scores placing
him in the
“borderline retardation range.” The second expert who conducted
the
competency evaluation, on the other hand, did not mention findings or
concerns
regarding subaverage intelligence or mental retardation at trial or in
her
written report. The differences in assessment – one suggesting
borderline
retardation and the other raising no concerns about intelligence or
retardation
– suggest that even though he may not have average adult intellectual
functioning,26 his functioning
is greater
than mentally retarded individuals and would not fall within
constitutionally
protected limits.
Furthermore, in Atkins
the Supreme Court also
stated that, while the execution of mentally retarded individuals is
categorically unconstitutional, “[n]ot all people who claim to be
mentally retarded
will be so impaired as to fall within the range of mentally retarded
offenders
about whom there is a national consensus.”27 Using the
standard in
Atkins, the Petitioner has not shown that he is mentally
retarded or, if
so, that he would fall within the range of mental retardation that is
constitutionally protected.
The
constitutional standard described in Atkins
is clear. However, there is little in the record to support a
finding
that the Petitioner is either mentally retarded or that he would be
included in
the group of mentally retarded individuals constitutionally protected
from
execution. As with the motions, the Petitioner cannot claim a
right to a
writ based upon Atkins when he has not shown, in the record or
through
his petition, that he is within the group protected in Atkins.
Both in his
motions to the CCA and in his claim that
he is protected by Atkins, the
Petitioner has
not met the burden of showing a “clear and indisputable” right for
relief.
III.
Issuing the Writ in Appropriate Circumstances
The Petitioner’s
assertion that the mental-health
examination will not be conducted correctly or within the scope of the
order
because of the mental-health board members’ lack of expertise is
speculative, as
is any harm that might result.28 Equally
important and
central to the Petitioner’s claim of right, there is no evidence that
there has
been a gross abuse of judicial power.29
In sum, there is
nothing extraordinary about the
Petitioner’s circumstances that warrants
issuing a
writ. The Petitioner simply disagrees with a discretionary
decision made
by the CCA -- a decision that is reviewable by this Court if the death
sentence
is affirmed. Indeed, in the absence of a showing that the
Petitioner’s
right to a writ is “clear and indisputable,” it is inappropriate for
the Court
to question the judgment of the CCA or its ability to ensure that its
order is
completed to its specifications and that the findings of the mental
examination
are introduced appropriately.30
Conclusion
When seeking an
extraordinary writ, a Petitioner
must show that he has exhausted all available remedies, and that he has
a right
to the relief sought. The court considering the writ also must be
satisfied that the writ is appropriate, given the circumstances.
The
Petitioner has not met the burden of showing exhausted remedies and a
“clear
and indisputable” right to relief, nor is it appropriate for this Court
to
issue a writ. For these reasons, I respectfully dissent.
1
536 U.S. 304 (2002)(holding that the
execution of
mentally retarded individuals is unconstitutional).
2
3
4
6
Article 67 (a)(1), Uniform Code of Military
Justice
[hereinafter UCMJ], 10 U.S.C. § 867 (2002).
7
Cheney v. United States Dist. Court, 124
8
Cheney, 124
10 Collier
v.
11
12 Burtt v.
Schick, 23 M.J. 140 (C.M.A.
1986).
13
16 United States v. Huberty,
53 M.J. 369, 372 (C.A.A.F.
2000) (referring to the six factors to consider in the admission of
expert
testimony as outlined in United States v. Houser, 36 M.J. 392
(C.M.A.
1993)).
18 The report from board member LCDR
Wade A. Hachinsky to the
commanding officer described the assessment as follows: “The task
of
assessing mental retardation in an adult, especially in a forensic
case,
requires skilled assessment of cognitive ability, level of functioning,
psychological functioning, and possible malingering. . . . It is
critical
in this case to fully evaluate the individual for the possibility of
other
mental disorders that may have features similar to mental
retardation.
The board’s assessment approach in this case would include extensive
clinical
interviews, neuropsychological testing, collateral interviews, and a
careful
review of the available records.” Enclosure from
petitioner.
23 J. Wigmore, Evidence § 59
(3d ed. 1940).
26 An IQ of 100 is considered
average.
28 The appellate defense counsel’s
brief mentions that if
Petitioner were tested by the current board members and if he were
retested
later he could be harmed because his IQ scores would likely increase
due to
practice effect. Even if that were true, a supplemental article
submitted
by counsel states that “[i]f there is no alternative, and the second
test score
is significantly elevated . . . the psychologist can offer a practice
effect as
an explanation.” George S. Baroff, Establishing Mental
Retardation in
Capital Cases: An Update, 41 Mental
Retardation 3,
198, 199-200 (2003).
29 See Kerr v. United
States, 426 U.S. 394, 402
(1976)(explaining that mandamus should be limited to use in only the
most
extreme circumstances such as “usurpation of power”) (internal
quotations
omitted).
30 See Kerr,
426
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