UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-020

Thursday, September 30, 2010

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 11-0053/AR.  U.S. v. Paul A. GARCIA, Jr.  CCA 20091002.

No. 11-0054/AR.  U.S. v. Wanda M. PITTS.  CCA 20100034.

 

INTERLOCUTORY ORDERS

 

No. 05-0157/NA.  U.S. v. Ivor G. LUKE.  CCA 200000481.

Appellant's motion to correct errata granted.

 



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-019

Wednesday, September 29, 2010

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 11-0048/AR.  U.S. v. Ted K. BALTIMORE, Jr.  CCA 20090885.

No. 11-0049/AR.  U.S. v. Dillon C. PERALES.  CCA 20091046.

No. 11-0050/AR.  U.S. v. Omar P. PUERTO, Jr.  CCA 20091133.

No. 11-0051/AR.  U.S. v. Paul M. GARZA.  CCA 20090953.

No. 11-0052/MC.  U.S. v. Daniel J. FIELDS.  CCA 200900589.

 

 

In the Matter of the

RULES ADVISORY COMMITTEE

 

Pursuant to Rule 45 of the Rules of Practice and Procedure, United States Court of Appeals for the Armed Forces, the following person, whose term expires on September 30, 2010, is this 29th day of September, 2010, hereby reappointed as a member of the Rules Advisory Committee for a term expiring on September 30, 2013:

 

     Professor Steven H. Goldblatt, Chair

 

     The following members, whose terms expire on the dates indicated below, remain on the Rules Advisory Committee:

 

To expire on September 30, 2011:

 

     Professor Mary Cheh

     Mary T. Hall, Esq.

     Colonel Mark Tellitocci, JA, U.S. Army

 

To expire on September 30, 2012:

 

     Colonel Barbara G. Brand, U.S. Air Force

     John F. DePue, Esq.

     Malcolm Squires, Esq.

 

     David B. Goodhand, Esq., is hereby appointed to replace Captain Kyle Kilian, U.S. Marine Corps, whose term will expire on September 30, 2010.  Mr. Goodhand’s term will expire on September 30, 2013.

 

Michelle M. Lindo McCluer, Esq., is hereby appointed to replace Matthew S. Freedus, Esq., whose term will expire on September 30, 2010.  Ms. McCluer’s term will expire on September 30, 2013.

 

     James E. McPherson, Esq., is hereby appointed to replace Professor Jane Aiken, whose term will expire on September 30, 2010.  Mr. McPherson’s term will expire on September 30, 2013.

 

     Lieutenant Colonel Jeremy S. Weber, U.S. Air Force, has been reassigned pursuant to military orders. 

 

     William A. DeCicco, Clerk of the Court, is an ex officio member of the Committee, and serves as its Reporter.

 

     The Court wishes to express its great appreciation to Matthew S. Freedus, Professor Jane Aiken, Lieutenant Colonel Weber, and Captain Kilian for their outstanding service as members of the Rules Advisory Committee.

 

 

                                  For the Court,

 

 

                              /s/ William A. DeCicco

                                  Clerk of the Court

 



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-018

Tuesday, September 28, 2010

 

HEARINGS

 

No. 10-0262/MC.  U.S. v. Jose MEDINA.  CCA 200900053.

No. 10-0345/AF.  U.S. v. Stephen A. PRATHER.  CCA 37329.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 10-0487/AF.  U.S. v. Lawrence M. ROGERS.  CCA 37376.

No. 10-0580/AF.  U.S. v. Brett T. BANWELL.  CCA S31585.

No. 10-0612/AF.  U.S. v. Hebert J. MCDOWELL.  CCA 37354.

No. 10-0673/AR.  U.S. v. William D. GUTIERREZ.  CCA 20070558.

No. 10-0678/AR.  U.S. v. Marsha A. MULLINGS-FOSTER.  CCA 20090547.

No. 10-0692/AR.  U.S. v. Robert A. LOVETT, III.  CCA 20091020.

No. 10-0698/AR.  U.S. v. Joshua W. POOL.  CCA 20090916.

No. 10-0699/AR.  U.S. v. Daniel L. EDENFIELD.  CCA 20100094.

No. 10-0700/AR.  U.S. v. Christopher R. PONSOT.  CCA 20100130.

No. 10-0701/AR.  U.S. v. Erik H. PRIDGEN.  CCA 20090926.

No. 10-0703/AR.  U.S. v. Daniel S. WILLIAMS.  CCA 20090921.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 11-0046/NA.  U.S. v. Kevin T. ROMANOSKY.  CCA 201000009.

No. 11-0047/AR.  U.S. v. Daniel FERNANDEZ-MARTINEZ.  CCA 20080551.

 

SPECIAL DOCKET MATTERS

 

No. 10-20.  In the Matter of James B. Atwood, Jr.  It appearing that the above-named attorney is a member of the Bar of this Court, that he was disbarred from the practice of law in the State of Alabama and indefinitely suspended from the practice of law in the U.S. Army Court of Criminal Appeals, that, pursuant to Rule 15(b), Rules of Practice and Procedure, United States Court of Appeals for the Armed Forces, said attorney was suspended from the practice of law before this Court and was directed to show cause by August 30, 2010, why he should not be disbarred, that no reply was received in response to the Court’s Order, and considering the serious nature of his misconduct, it is ordered that James B. Atwood, Jr. is hereby disbarred from the practice of law before this Court effective the date of this Order.

 



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-017

Monday, September 27, 2010

 

HEARINGS

 

No. 09-0441/AF.  U.S. v. Joshua C. BLAZIER.  CCA 36988.

No. 10-0334/AF.  U.S. v. Dennis R. SAVARD.  CCA 37346.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 10-0512/AR.  U.S. v. Troy D. GADDIS.  CCA 20080150.  Review granted on the following issues:

 

WHETHER THE MILITARY JUDGE ERRED BY DENYING APPELLANT THE OPPORTUNITY TO PRESENT EVIDENCE THAT HIS ACCUSER HAD A MOTIVE TO FABRICATE THE ALLEGATIONS AGAINST HIM TO HIDE THE ACCUSER'S SEXUAL ACTIVITY WITH OTHERS FROM THE ACCUSER'S MOTHER.

 

WHETHER THE BALANCING TEST, AS ARTICULATED IN MRE 412(c)(3) AND UNITED STATES v. BANKER, 60 M.J. 216 (C.A.A.F. 2004), IS CONSTITUTIONAL.

 

Briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 10-0676/AR.  U.S. v. Jamon L. FISHER.  CCA 20091165.

No. 10-0695/AR.  U.S. v. Eduardo BARREDA.  CCA 20080446.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 11-0043/AR.  U.S. v. Ivan T. PANKO.  CCA 20090998.

No. 11-0044/AF.  U.S. v. Jason A. VAN VALIN.  CCA 37283.

No. 11-0045/AF.  U.S. v. William E.V. DUNN.  CCA S31584.

 



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-016

Friday, September 24, 2010

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 10-0483/AR.  U.S. v. David C. ELLERBROCK.  CCA 20070925.  Review granted on the following issues:

 

WHETHER THE MILITARY JUDGE ERRED IN EXCLUDING, UNDER MILITARY RULE OF EVIDENCE 412, EVIDENCE OF PRIOR SEXUAL BEHAVIOR BY THE ALLEGED VICTIM WHERE THE PROFFERED EVIDENCE WAS CONSTITUTIONALLY REQUIRED.

 

WHETHER THE BALANCING TEST, AS ARTICULATED IN MILITARY RULE OF EVIDENCE 412(c)(3) AND UNITED STATES v. BANKER, 60 M.J. 216 (C.A.A.F. 2004), IS CONSTITUTIONAL.

 

Briefs will be filed under Rule 25.

 

No. 10-0642/AR.  U.S. v. Raymond L. GIROUARD.  CCA 20070299.  Review granted on the following issue:

 

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN FAILING TO DISMISS APPELLANT'S NEGLIGENT HOMICIDE CONVICTION PURSUANT TO THIS COURT'S OPINION IN UNITED STATES v. JONES, 68 M.J. 465 (C.A.A.F. 2010), BECAUSE NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE TO MURDER.

 

Briefs will be filed under Rule 25.

 

NOTICE OF FILING OF MOTION

 

No. 11-5001/NA.  U.S., Appellant v. Justin H. MCMURRIN, Appellee.  CCA 200900475.  Notice is hereby given that a motion for enlargement of time to file a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed by Appellant under Rule 30 on September 24, 2010.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 11-0038/AR.  U.S. v. Corey A. FRANK.  CCA 20100046.

No. 11-0039/AR.  U.S. v. Hakeem L. PINKSTON.  CCA 20091161.

No. 11-0040/AR.  U.S. v. Howard K. LOPES.  CCA 20090855.

No. 11-0041/AR.  U.S. v. Steven R. TUCKER.  CCA 20090910.

No. 11-0042/AR.  U.S. v. Joseph W. MARSH.  CCA 20100111.

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

Misc. No. 10-8026/AF.  U. S. v. David A. VALOIS.  On consideration of Appellant’s motion for appointment of counsel and Appellant’s pro se writ-appeal petition, it is ordered that Appellant’s motion for appointment of counsel is hereby denied without prejudice to the Appellant’s requesting the Judge Advocate General of the Air Force to appoint counsel; and that the pro se writ-appeal petition is hereby denied without prejudice to re-filing a writ-appeal petition with the assistance of counsel, if counsel is afforded to the Appellant by the Judge Advocate General. 

 

INTERLOCUTORY ORDERS

 

No. 10-0349/AR.  U.S. v. Dustin A. STEFAN.  CCA 20081097.  On consideration of Appellee's motion for leave to file supplement to the record and designate Government Appellate Exhibit 1 be included in the joint appendix, it is ordered that Appellant will file a response to Appellee’s motion on or before October 1, 2010.

 

No. 10-0383/MC.  U.S. v. Geoffrey L. SULLIVAN.  CCA 200900148.  Appellee's motion to extend time to file a brief granted, up to and including November 4, 2010, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 10-0572/AF.  U.S. v. Alejandro V. ARRIAGA.  CCA 37439.  Appellant's motion to attach documents and Appellee’s motion for appropriate relief are granted.

 

No. 11-0034/AF.  U.S. v. Jonathan G. WEEKS.  CCA S31625.  Appellant's motion to extend time to file a supplement to the petition for grant of review granted, up to and including October 13, 2010.

 



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-015

Thursday, September 23, 2010

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 10-0690/AR.  U.S. v. Stephen R. MARSHALL, Jr.  CCA 20100013.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 11-0034/AF.  U.S. v. Jonathan G. WEEKS.  CCA S31625.

No. 11-0035/AF.  U.S. v. Michael D. LABOUNTY.  CCA 37523.

No. 11-0036/AF.  U.S. v. Marcus SPEARS.  CCA S31736.

No. 11-0037/AF.  U.S. v. Denietra M. CHENEY.  CCA S31751.

 

MISCELLANEOUS DOCKET - FILINGS

 

Misc. No. 11-8004/AR.  Daniel GASKINS, Petitioner v. Colonel John B. Hoffman, Colonel David L. Conn, Colonel Mark L. Johnson, Colonel Alan L. Cook, Lieutenant Colonel Eugene E. Baime, and United States Army, Respondents.  CCA 20080132.  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 date.

 



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-014

Wednesday, September 22, 2010

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 10-0681/AF.  U.S. v. Robert S. GRUSS.  CCA 37326.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 11-0033/AR.  U.S. v. Dean L. LOWE III.  CCA 20100348.

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

Misc. No. 11-8003/AR.  Benjamin B. JOSHUA, Petitioner v. United States, Respondent.  Notice is hereby given that a petition for extraordinary relief was filed by mail under Rule 27(a) on August 5, 2010, and placed on the docket this 22nd day of September, 2010.  On consideration thereof, it is ordered that said petition is hereby denied.

 

PETITIONS FOR RECONSIDERATION DENIED

 

No. 10-0570/AF.  U.S. v. Creon D. FAISON.  CCA 37464.  On consideration of Appellant’s petition for reconsideration of this Court’s order, __ M.J. __ (Daily Journal July 28, 2010), it is ordered that said petition for reconsideration is hereby denied.

 

INTERLOCUTORY ORDERS

 

No. 10-0317/NA.  U.S. v. William R. SAVALA.  CCA 200800818.  Appellee's motion to extend time to file a brief granted, but only up to and including October 13, 2010, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-013

Tuesday, September 21, 2010

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 10-0596/AF.  U.S. v. Pablo ASTACIO-PENA.  CCA 37401.

No. 10-0605/AF.  U.S. v. Brandon D. BERRY.  CCA 37310.

No. 10-0667/AF.  U.S. v. Troy D. STROWD, Jr.  CCA 37497.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 11-0032/AR.  U.S. v. Kevin M. BENEFIEL.  CCA 20090411.

 



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-012

Monday, September 20, 2010

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 10-0682/AF.  U.S. v. Terrall M. CAFFIE.  CCA 37389.

No. 10-0683/AF.  U.S. v. Shaun E. RUSSELL.  CCA S31713.

No. 10-0684/AF.  U.S. v. Christopher J. HARDEN.  CCA 37388.

No. 10-0687/AR.  U.S. v. Daniel R. PEQUENO.  CCA 20100037.

No. 10-0688/AR.  U.S. v. Trivanti L. TEELE.  CCA 20090453.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 11-0030/AR.  U.S. v. Jonathon L. DODSON.  CCA 20090618.

No. 11-0031/AR.  U.S. v. Ernest VALDEZ, Jr.  CCA 20100192.

 



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-011

Friday, September 17, 2010

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 10-0648/AR.  U.S. v. Matthew E. JOHNSON.  CCA 20081165.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 11-0023/AR.  U.S. v. Ryan C. BURTON.  CCA 20090834.

No. 11-0024/AR.  U.S. v. Gregory L. RILEY.  CCA 20100128.

No. 11-0025/AF.  U.S. v. Miquel M. MAIMES.  CCA S31730.

No. 11-0026/AF.  U.S. v. Richard W. EBY.  CCA S31740.

No. 11-0027/AF.  U.S. v. Andrew C. BERTRAND.  CCA 37569.

No. 11-0028/AF.  U.S. v. Joshua R. PARKER.  CCA S31698.

No. 11-0029/AF.  U.S. v. Joshua R. PARKER.  CCA S31739.

 

MISCELLANEOUS DOCKET - FILINGS

 

Misc. No. 11-8002/NA.  Brian S. WARD, Appellant v. Colonel Eric Belcher, Commandant, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, Appellee.  CCA 200600722.  Notice is hereby given that a writ-appeal petition for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on application for extraordinary relief, together with a motion for leave to file the same out of time were received by mail under Rule 27(b) on this date.  Further action on the petition shall be held in abeyance pending the Court’s final action on the motion.

 

INTERLOCUTORY ORDERS

 

No. 11-0019/AF.  U.S. v. Shannon L. DOLLAR.  CCA S31607.  Appellant's motion to extend time to file the supplement to the petition for grant of review granted, up to and including October 6, 2010.

 

No. 11-0020/AR.  U.S. v. Paul J. BARSOTTI.  CCA 20080888.  Appellant's motion to extend time to file the supplement to the petition for grant of review granted, up to and including October 6, 2010.

 

No. 11-0021/AR.  U.S. v. Anthony N. RAMOS.  CCA 20090099.  Appellant's motion to extend time to file the supplement to the petition for grant of review granted, up to and including October 6, 2010.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-010

Thursday, September 16, 2010

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 11-0019/AF.  U.S. v. Shannon L. DOLLAR.  CCA S31607.

No. 11-0020/AR.  U.S. v. Paul J. BARSOTTI.  CCA 20080888.

No. 11-0021/AR.  U.S. v. Anthony N. RAMOS.  CCA 20090099.

No. 11-0022/AF.  U.S. v. Brandon M. PAYNE.  CCA S31756.

 

INTERLOCUTORY ORDERS

 

No. 08-0365/AR.  U.S. v. John M. DIAMOND.  CCA 20010761.  On consideration of Appellant’s motion for leave to file a supplement separate from the petition and in view of the filing of the supplement on the same day as the date the petition was filed, it is ordered that said motion is hereby denied as moot.

 



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-009

Wednesday, September 15, 2010

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 10-0625/AR.  U.S. v. Randy ORTIZ.  CCA 20091053.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 11-0012/AR.  U.S. v. Christopher J. GORMAN.  CCA 20090841.

No. 11-0013/AR.  U.S. v. David A. BARNES III.  CCA 20090917.

No. 11-0014/AR.  U.S. v. Joseph D. WALLS.  CCA 20091139.

No. 11-0015/AR.  U.S. v. Corey J. KEYES.  CCA 20090306.

No. 11-0016/AR.  U.S. v. John M. COHEN.  CCA 20100031.

No. 11-0017/MC.  U.S. v. David GARDNER.  CCA 200900545.

No. 11-0018/NA.  U.S. v. Jerome H. RANDOLPH.  CCA 201000029.

 



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-008

Tuesday, September 14, 2010

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 10-0679/AR.  U.S. v. Richard D. CARTER.  CCA 20091073.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 08-0365/AR.  U.S. v. John M. DIAMOND.  CCA 20010761.*

No. 11-0010/AR.  U.S. v. Marco J. MEJIA.  CCA 20071423.

No. 11-0011/AR.  U.S. v. Brad A. WILKES.  CCA 20091017.

_____________________

 

*  Second petition filed in this case.

 



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-007

Monday, September 13, 2010

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 10-0668/AF.  U.S. v. Jerrod D. NUTT.  CCA S31600.  Review granted on the following issues:

 

WHETHER, UNDER MELENDEZ-DIAZ v. MASACHUSETTS, 129 S.CT. 2527 (2009), THE ADMISSION OF THE DRUG TESTING REPORT VIOLATES APPELLANT'S SIXTH AMENDMENT RIGHTS UNDER THE CONFRONTATION CLAUSE.

 

WHETHER TRIAL DEFENSE COUNSEL'S FAILURE TO OBJECT TO THE ADMISSION OF THE DRUG LABORATORY REPORT AT TRIAL FORFEITED THE CONFRONTATION CLAUSE ISSUE, AND, IF SO, DID ADMISSION OF THE DRUG TESTING REPORT CONSTITUTE PLAIN ERROR?

 

WHETHER THE CONFRONTATION CLAUSE WAS SATISFIED BY TESTIMONY FROM DR. TURNER.

 

IF DR. TURNER'S TESTIMONY DID NOT ITSELF SATISFY THE CONFRONTATION CLAUSE, WAS THE INTRODUCTION OF TESTIMONIAL EVIDENCE NEVERTHELESS HARMLESS BEYOND A REASONABLE DOUBT UNDER THE CIRCUMSTANCES OF THIS CASE IF HE WAS QUALIFIED AS, AND TESTIFIED AS, AN EXPERT UNDER M.R.E. 703?

 

Briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 10-0643/MC.  U.S. v. John D. MENDEZ.  CCA 201000051.

No. 10-0656/AR.  U.S. v. Jeremy A. HUGHES.  CCA 20090144.

No. 10-0672/AR.  U.S. v. Anthony M. HALL II.  CCA 20090818.

No. 10-0674/AR.  U.S. v. Mary Jo A. KUNKLE.  CCA 20100187.

No. 10-0675/AR.  U.S. v. Cody R. STAGE.  CCA 20091084.

 



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-006

Friday, September 10, 2010

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 10-0461/NA.  U.S. v. Joseph A. SWEENEY.  CCA 200900468.  Review granted on the following issues:

 

WHETHER, IN LIGHT OF THE UNITED STATES SUPREME COURT'S RULING IN MELENDEZ-DIAZ v. MASSACHUSETTS, 557 U.S. ___, 129 S.CT. 2527 (2009), THE ADMISSION INTO EVIDENCE OF THE NAVY DRUG SCREENING LABORATORY URINALYSIS DOCUMENTS VIOLATED APPELLANT'S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.

 

WHETHER TRIAL DEFENSE COUNSEL'S OBJECTION TO THE DRUG LABORATORY REPORT CONSTITUTED A VALID CRAWFORD OBJECTION.  IF NOT, THEN WHETHER TRIAL DEFENSE COUNSEL WAIVED OR FORFEITED THE CONFRONTATION CLAUSE ISSUE, AND, IF FORFEITED, WHETHER ADMISSION OF THE REPORT CONSTITUTED PLAIN ERROR.

 

Briefs will be filed under Rule 25.

 

No. 10-0537/AR.  U.S. v. Alan D. ESLINGER.  CCA 20070335.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR BY PERMITTING THE GOVERNMENT TO OFFER EVIDENCE IN THE FORM OF OPINION TESTIMONY FROM SENIOR OFFICER AND NCO WITNESSES WITH NO PERSONAL KNOWLEDGE OF APPELLANT'S DUTY PERFORMANCE TO OPINE THAT HE SHOULD BE SEPARATED FROM THE ARMY AND SPECIAL FORCES.

 

Briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 10-0663/AR.  U.S. v. Zachary K. RUPRIGHT.  CCA 20091164.

No. 10-0669/AR.  U.S. v. Scott E. SCHEESLEY.  CCA 20100121.

No. 10-0670/AF.  U.S. v. Brandon R. BATEY.  CCA S31744.

No. 10-0671/AF.  U.S. v. Ronald D. ANASTASIA II.  CCA S31663.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-005

Thursday, September 9, 2010

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 10-0575/AR.  U.S. v. Jason L. SHANKS.  CCA 20090289.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*  [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

* It is noted that the promulgating order’s summary of Specifications 2 and 3 of Charge I states that, on motion of the trial counsel, the specifications were “amended to conform with the accused’s plea of Guilty,” which included exceptions and substitutions.  In fact, the record reflects that the military judge did not permit such an amendment of those specifications.  Accordingly, it is directed that the promulgating order be corrected by deleting all language within parentheses in the summary of Specifications 2 and 3 of Charge I.

 

No. 10-0600/AR.  U.S. v. Joshua J. STREIFF.  CCA 20090134.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following specified issue:

 

WHETHER THE AFFIRMED FORFEITURE OF $1000.00 PAY PER MONTH FOR 12 MONTHS AT A SPECIAL COURT-MARTIAL WAS ILLEGAL UNDER ARTICLE 19, UCMJ, AND RULE FOR COURTS-MARTIAL 1003(b)(2), WHEN APPELLANT WAS REDUCED TO E-1 AS PART OF THE SENTENCE. 

 

The decision of the United States Army Court of Criminal Appeals is affirmed as to findings and to only so much of the sentence as provides for forfeiture of $933.00 pay per month for 12 months, confinement for six months, reduction to pay grade E-1, and a bad-conduct discharge.  [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 10-0567/AF.  U.S. v. Steven H. BONNER.  CCA 37371.  Review granted on the following issue:

 

WHETHER, IN LIGHT OF THIS COURT'S RECENT DECISION IN UNITED STATES v. JONES, 68 M.J. 465 (C.A.A.F. 2010), THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY OF ASSAULT CONSUMMATED BY A BATTERY AS A LESSER INCLUDED OFFENSE OF WRONGFUL SEXUAL CONTACT.

 

Briefs will be filed under Rule 25.

 

No. 10-0575/AR.  U.S. v. Jason L. SHANKS.  CCA 20090289.  [See also APPEALS- SUMMARY DISPOSITIONS this date.]

 

No. 10-0600/AR.  U.S. v. Joshua J. STREIFF.  CCA 20090134.  [See also APPEALS- SUMMARY DISPOSITIONS this date.]

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 10-0482/AR.  U.S. v. Roberto E. TRIGUEROS.  CCA 20070754.

No. 10-0613/AR.  U.S. v. Roy Lee BLIZZARD.  CCA 20080509.

No. 10-0636/AR.  U.S. v. Clifton E. TAVARES.  CCA 20080545.

No. 10-0639/AR.  U.S. v. Walter L. SIMS, Jr.  CCA 20080966.

No. 10-0647/AR.  U.S. v. Benjamin J. TOBIN.  CCA 20090457.

No. 10-0652/AR.  U.S. v. James A. GONZALEZ.  CCA 20090878.

No. 10-0654/AR.  U.S. v. Joseph R. LAMBERT.  CCA 20090749.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 11-0007/NA.  U.S. v. James M. PLEVYAK.  CCA 200900347.

No. 11-0008/AR.  U.S. v. Jason D. SWANIGAN.  CCA 20100110.

No. 11-0009/AR.  U.S. v. Claudia J. WABLES.  CCA 20090835.

 

INTERLOCUTORY ORDERS

 

No. 10-0397/AR.  U.S. v. Sergio SOTO, Jr.  CCA 20090255.  Appellant's motion to extend time to file a brief granted, up to and including September 24, 2010, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 10-0484/AR.  U.S. v. Jamaal LEWIS.  CCA 20061070.  Appellant's motion to extend time to file a brief granted, up to and including September 24, 2010, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 10-0680/AR.  U.S. v. Shakima BURTON.  CCA 20090954.  Appellant's motion to extend time to file the supplement to the petition for grant of review out of time granted, up to and including September 14, 2010, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-004

Wednesday, September 8, 2010

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 10-0637/AR.  U.S. v. Victor K. KINDERKNECHT.  CCA 20091102.

No. 10-0650/AR.  U.S. v. Darrchelle D. JOHNSON.  CCA 20080776.

No. 10-0653/AR.  U.S. v. Tyrone H.L. WALLER.  CCA 20091138.

No. 10-0655/AR.  U.S. v. Stephen P. PENDERGAST.  CCA 20090897.

No. 10-0657/AR.  U.S. v. Daniel A. HUEPPELSHEUSER.  CCA 20091127.

No. 10-0658/AR.  U.S. v. Quentin T. GRASTY.  CCA 20091061.

No. 10-0662/AR.  U.S. v. Ryan H. LAM.  CCA 20100092.

No. 10-0666/MC.  U.S. v. James A. SCAGLIONE.  CCA 201000111.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 11-0005/MC.  U.S. v. Marshall L. MAGINCALDA, Jr.  CCA 200900686.

No. 11-0006/AR.  U.S. v. Kristopher B. HENDRICKS.  CCA 20080683.

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

Misc. No. 10-8016/NA.  U.S. v. Jacob DENEDO.  CCA 9900680.

 

On May 4, 2010, Denedo’s appellate counsel filed a motion for leave to file writ-appeal petition out of time.  In response the Government filed a motion for leave to file an answer out of time and an answer to the writ-appeal.  The Government later filed a motion for leave to file a response to Denedo’s motion for leave to file out of time as well as a motion to withdraw its earlier filings and an answer to petitioner’s motion for leave to file writ-appeal petition out of time.  

 

The sole issue for our consideration is whether Denedo has shown good cause for the late filing of his writ-appeal petition.

 

C.A.A.F. Rule 19(e) requires “[a] writ-appeal petition . . . for review of a decision by a Court of Criminal Appeals acting on a petition for extraordinary relief shall be filed no later than 20 days after the date the decision of the Court of Criminal Appeals is served on the appellant or the appellant’s counsel.”  Denedo’s counsel filed a petition for extraordinary relief in the nature of a writ of error coram nobis with the Navy-Marine Corps Court of Criminal Appeals.  That court denied Denedo’s petition on March 18, 2010.  United States v. Denedo, No. NMCCA 9900680, 2010 CCA LEXIS 27, at *14, 2010 WL 996432, at *5 (N-M. Ct. Crim. App. Mar. 18, 2010).  The opinion was served on appellate defense counsel the same day.  Pursuant to C.A.A.F. Rule 19(e), a writ-appeal petition for review of the decision of the Navy-Marine Corps Court of Criminal Appeals was due at this court on April 7, 2010. 

 

In support of the motion for leave to file writ-appeal petition out of time, Denedo’s counsel explained that he “erroneously believed that this case was governed by Rule 19(a)(1)(B),” which provides sixty days from the date of the decision at the CCA for filing a petition for review with this court.  Denedo’s appellate defense counsel’s argument for the writ-appeal petition went on to reference the fact that the Supreme Court had previously reviewed the jurisdictional aspects of this case and remanded the case to the military justice system for further consideration.  Appellate defense counsel also referenced Padilla v. Kentucky, 130 S. Ct. 1473 (2010), a recent Supreme Court decision that dealt with a similar ineffective assistance of counsel issue.1  Padilla, however, did not implicate any issues involving untimely filings by defense counsel.

 

Appellate defense counsel requests this court suspend Rule 19(e) pursuant to our authority under C.A.A.F. Rule 33, which states “[f]or good cause shown, the Court may suspend any of these rules in a particular case, on application of a party or on its own motion, and may order proceedings in accordance with its direction.”  In our view, neither the fact of the previous Supreme Court review of Denedo’s case, nor the Padilla case are relevant to our analysis as to whether there was good cause for a late filing.2  Counsel’s claim that he erroneously believed that this court imposed a sixty day deadline for the appeal of writ-appeal petitions does not provide us with the requisite good cause for suspending the deadline for filing a writ-appeal.3 

 

Accordingly, it is ordered that Appellant’s motion for leave to file a writ-appeal petition out of time is hereby denied, and that Appellee’s motion to file an answer to the writ-appeal petition, motion to file untimely answer to Appellant’s motion for leave to file the writ-appeal out of time, and motion to withdraw are denied as moot. 

_____________________

 
1  The CCA did not consider the deficiency prong in the Strickland v. Washington, 466 U.S. 668 (1984), ineffective assistance of counsel analysis because, having assumed the deficiency arguendo, it found no prejudice.  Denedo, 2010 CCA LEXIS 27, at *10-*11, 2010 WL 996432, at *4.  In contrast, Padilla dealt entirely with the deficiency prong and specifically said nothing about prejudice.  See Padilla, 130 S. Ct. at 1478, 1483-84.

2  Those issues may have been relevant to a determination as to whether good cause existed for granting the writ-appeal petition had it been timely filed. 

3  Although we have on occasion excused late filings based on administrative or attorney error, this court has cautioned counsel that failure to comply with the basic rules of this court risks compromising their client’s rights and protections.  United States v. Brunson, 59 M.J. 41, 43 (C.A.A.F. 2003).  Further, this court has warned counsel that “[w]e shall not continue to tolerate untimeliness which violates this Court’s Rules and demeans the military-justice system.”  United States v. Ortiz, 24 M.J. 323, 325 (C.M.A. 1987). 

--------------------------------------------------

 

EFFRON, Chief Judge (dissenting):

 

Appellant contends that his court-martial conviction should be overturned based upon denial of his Sixth Amendment right to effective assistance of counsel and requests issuance of a writ of error coram nobis.  During prior consideration of this case, the Supreme Court exercised its discretion to review the petition for extraordinary relief.  United States v. Denedo, 129 S. Ct. 2213 (2009).  In Denedo, the Supreme Court determined that the military justice system should address the merits of the petition and remanded the case for consideration of Appellant’s claim.  Id. at 2224.  Upon remand, the United States Navy-Marine Corps Court of Criminal Appeals determined that relief was not warranted.  United States v. Denedo, No. NMCCA 9900680, 2010 CCA LEXIS 27, at *14, 2010 WL 996432, at *5 (N-M. Ct. Crim. App. Mar. 18, 2010) (unpublished). 

 

     Appellant filed an appeal with our Court within the statutory sixty-day period for appeals from the decisions of the lower court under Article 67(b), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(b) (2006), but not within the regulatory twenty-day window for writ appeals under C.A.A.F. Rule 19(e).  The twenty-day period may be waived by our Court under C.A.A.F. Rule 33. 

 

     The majority declines to exercise this Court’s discretion to waive the rule.  In view of the brief period of delay, the absence of any prejudice to the Government, and the important issues raised by this case, I agree with Judge Baker that the Court should waive the rule and permit Appellant to file.  I respectfully dissent.

 

The constitutional issue

     Appellant faces deportation proceedings based upon his conviction under the UCMJ, which resulted from a guilty plea at a special court-martial.  See Denedo, 129 S. Ct. at 2218.  Appellant seeks to void his conviction through a writ of error coram nobis under the All Writs Act, 28 U.S.C. § 1651(a) (2006).

 

     Appellant contends that his conviction is “void because his guilty plea was the result of ineffective assistance of counsel.”  Denedo, 129 S. Ct. at 2218.  According to Appellant, he advised his attorney during plea negotiations that “‘his primary concern and objective’ was to avoid deportation and that he was willing to ‘risk . . . going to jail’ to avert separation from his family.”  Id. (quoting United States v. Denedo, 66 M.J. 114, 118 (C.A.A.F. 2008)) (alteration in original).  He further contends that “his attorney -- an alcoholic who was not sober during the course of the special court-martial proceeding -- erroneously assured him that ‘if he agreed to plead guilty at a special court-martial he would avoid any risk of deportation.’”  Id.

 

     In considering Denedo on remand, the Court of Criminal Appeals ordered the Government to provide affidavits from Appellant’s civilian and military defense counsel.  Appellant’s civilian defense counsel states in his affidavit that his usual practice was not to predict future collateral consequences to a guilty plea and that he did not do so in this case.  2010 CCA LEXIS 27, at *9-*10, 2010 WL 996432, at *4.  He also states that his client’s primary concern was limitation of confinement.  Id. at *10, 2010 WL 996432, at *4.  His statements directly contradict Appellant’s affidavit, which asserts that:  (1) his primary concern was to avoid deportation; (2) his civilian attorney advised him that a general court-martial conviction would constitute a felony that could be a basis for deportation; (3) that a special court-martial conviction would constitute only a misdemeanor and that he would avoid risk of deportation; and (4) that, had he been advised that his special court-martial conviction could result in deportation, he would have insisted on going to trial.  Id. at *9, 2010 WL 996432, at *3. 

 

     The Court of Criminal Appeals concluded that a hearing was not necessary to resolve the contradictory affidavits, holding that Appellant had not been prejudiced even if his attorney provided him with erroneous advice about the consequences of his guilty plea.  Id. at *10-*14, 2010 WL 996432, at *4-*5.  The lower court relied extensively on Appellant’s statements to the military judge during the plea colloquy at trial and stated that there was no doubt as to his factual guilt.  Id. at *11-*13, 2010 WL 996432, at *5.  Based upon its determination of factual guilt, the court concluded that a competent attorney would have advised Appellant that he was unlikely to prevail in a contested court-martial, which would have led a “rational accused” to enter a guilty plea.  Id. at *13, 2010 WL 996432, at *5.  In that context, the lower court determined that even if counsel provided deficient advice with respect to the consequences of a guilty plea, there was no prejudice under the Supreme Court’s standard for reviewing Sixth Amendment claims of ineffective assistance of counsel.  Id. at *13, 2010 WL 996432, at *5 (citing Strickland v. Washington, 466 U.S. 668, 689 (1984)). 

 

     Less than two weeks after the lower court released its opinion, the Supreme Court issued its decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010).  Padilla involved a contention by a lawful permanent resident that his counsel was ineffective for not only failing to advise him that his guilty plea to a drug distribution offense would result in deportation, but also for telling him that he “did not have to worry about immigration status.”  Id. at 1478 (quotation marks omitted).  The Supreme Court held that “constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation,” and remanded the case for further proceedings on the question of prejudice.  Id. at 1478, 1483-84.  In a separate opinion, Justice Alito, joined by Chief Justice Roberts, expressed reservations regarding the affirmative obligation to provide immigration advice but strongly underscored the constitutional consequences of erroneous advice.  Id. at 1487 (Alito, J., joined by Roberts, C.J., concurring in the judgment).  As noted by Justice Alito, “incompetent advice distorts the defendant’s decisionmaking process and seems to call the fairness and integrity of the criminal proceeding itself into question.”  Id. at 1493.  He observed that:

 

when a defendant bases the decision to plead guilty on counsel’s express misrepresentation that the defendant will not be removable. . . . it seems hard to say that the plea was entered with the advice of constitutionally competent counsel -- or that it embodies a voluntary and intelligent decision to forsake constitutional rights. 

  

Id.  In that context, the extensive reliance by the lower court in the present case upon Appellant’s statements to the military judge during the plea inquiry is particularly problematic in view of the lower court’s decision to proceed on the assumption that counsel affirmatively misrepresented the immigration consequences of the plea.  See also Military Rule of Evidence 410 (precluding the admissibility in a court-martial of statements made during a plea inquiry, with exceptions not relevant here).

 

At this stage of the motions proceeding in the present case, we are not called upon to decide whether Padilla mandates reversal of the lower court.  The issue before us is whether the Supreme Court’s decision in Padilla underscores the importance of evaluating the merits of Appellant’s request that we consider his appeal.

 

The exercise of discretion

Appellate defense counsel filed Appellant’s appeal forty-seven days after the decision by the Court of Criminal Appeals.  The filing falls within the sixty-day statutory period for appeals provided by Article 67(b), UCMJ, as implemented by C.A.A.F. Rule 19(a)(1), but twenty-seven days after the waivable timeline for filing under C.A.A.F Rule 19(e).

 

Appellate defense counsel agrees that his filing is untimely.  He does not cast blame elsewhere for his mistake.  He notes that he assumed, incorrectly, that the normal filing time applied under C.A.A.F. Rule 19(a)(1), which implements Article 67(b), UCMJ, and he filed within that time.

 

This is not a case in which counsel has demonstrated an absence of attention to filing deadlines.  He looked at a rule which, on its face, appears to apply to all appeals, and he filed within that time.  He overlooked a separate provision that applies a shorter time period for writ appeals.

 

The Government has not claimed any prejudice resulting from the timing of Appellant’s filing.  Upon receiving Appellant’s motion, this Court ordered the Government to file an answer to Appellant’s motion on or before May 11, 2010.  May 11 came and went without any filing from the Government.  Six weeks later, on June 25, 2010, the Government submitted a motion to file its answer to the writ-appeal petition out of time.  The Government explained that its late filing was a result of administrative error.  On June 28, 2010, the Government filed a motion to withdraw its June 25 motion, stating that it intended to oppose Appellant’s motion to file out of time.  Concurrently, the Government filed a motion for leave to file out of time its answer to Appellant’s motion to file the writ-appeal petition out of time, again citing administrative error as the justification for the late filing.  In the underlying answer to Appellant’s motion, the Government acknowledged that a misunderstanding of the Court’s rules may qualify as good cause but asked our Court to use its discretion to deny Appellant’s motion.  The Government did not assert prejudice or any other reason for requesting this Court to deny Appellant’s request to waive the twenty-day regulatory filing provision.

 

We have before us a case involving extensive consideration at the highest levels of our legal system; a problematic lower court decision; significant constitutional issues; a recent Supreme Court decision bearing on the substantive issues before us; a filing that, while late, is well within the normal filing time for appeals to our Court; and an absence of prejudice to the Government.  Under these circumstances, Appellant has established good cause for waiver of the twenty-day filing provision.  Along with Judge Baker, I would grant the waiver, permit the filing, and permit the Government to file its untimely response.

 

--------------------------------------------------

 

BAKER, Judge (dissenting):

 

C.A.A.F. Rule 19 of the Rules of Practice and Procedure for our Court contain ten different time limits for filing appeals with the Court.  The time line with which military practitioners are most familiar is the sixty-day time limit for filing “petitions for grant of review.”  C.A.A.F. R. 19(a)(1)(B).  Writ-appeal petitions are required to be filed within twenty days.  C.A.A.F. R. 19(e).  All five judges of this Court agree that C.A.A.F. Rule 19(e) is a discretionary rule that can be suspended “for good cause shown.” 

 

Following remand from the Supreme Court of the United States and subsequent review by the Court of Criminal Appeals, Appellant’s military counsel filed a writ-appeal petition to this Court on May 4, 2010, twenty-seven days late.  At that time, military counsel also filed a motion to file out of time.  To his credit, appellate defense counsel assumed responsibility for the late filing stating:  “Appellate Defense Counsel erroneously believed that this case was governed by Rule 19(a)(1)(B).”  Neither this filing nor the remainder of the record reflects whether military counsel consulted with the Clerk of Court on filing deadlines for writ appeals.  Neither does the filing or the record reflect what role if any, military defense counsel’s supervisory chain of command played, in assisting and supervising counsel in complying with this Court’s rules in this case on remand from the Supreme Court of the United States. 

 

The immediate question presented to this Court at this time is whether good cause exists to waive application of the twenty-day rule.  The merits of Appellant’s writ-appeal are not at issue at this time.  Whether good cause exists to waive C.A.A.F. Rule 19(e) depends on how one responds to two related questions.  First, should Appellant be penalized for his military appellate counsel’s failure to follow the rules of this Court?  Second, is it relevant to this Court’s exercise of its discretion that this case comes to us following Supreme Court review of Appellant’s jurisdictional right to seek a writ of error coram nobis?

 

The majority’s de facto response to the first question is yes.  The majority does not address, or acknowledge, any countervailing arguments involving principles of fairness, civilian judicial review, or the interests of justice presented by an appellant having his “day in court.”

 

Further, in this case four related distinctions take this case out of the mainstream of late filings.  First, Appellant alleges that his original trial defense counsel was ineffective when he advised Appellant to plead guilty at a special court-martial rather than contest his case at a general court-martial in order to protect himself against deportation.  Thus, the ultimate response to Appellant’s claim of ineffective assistance of counsel before this court is, apparently, ineffective assistance of counsel.  Second, the Supreme Court and this Court have determined that Appellant was entitled to have his claim heard pursuant to a writ of error coram nobis.  Third, the military defense lawyer missed the filing deadline for appealing to this Court the lower court’s subsequent decision on remand.  Fourth, assuming that this delinquent filing constitutes ineffective assistance of counsel, Appellant is without apparent recourse.1 

 

Rote adherence to time limits makes sense where a court has a heavy docket, or when it is determined that counsel are using the time limits for tactical advantage.  These factors are not at play here.  Indeed, having heard oral argument and rendered opinions in forty-three cases during the 2009-2010 term, it is fair to say this Court has the time to err on the side of keeping the courthouse door open in the interest of justice rather than shutting it to make a point about following the rules.

 

The second essential question is whether or not the Supreme Court’s review and remand in this case should inform our judgment as to whether good cause exists to waive the deadline.  On the one hand, the Supreme Court’s review was limited to the specific jurisdictional question as to whether the lower court could entertain a writ of error coram nobis nine years after direct review was completed.  Thus, the Supreme Court’s decision did not address the merits of Appellant’s petition. 

 

On the other hand, I do not believe rote application of a discretionary filing rule is appropriate where the Supreme Court remanded the case specifically inviting the Court of Criminal Appeals to explore on remand “[t]he relative strength of respondent’s ineffective-assistance claim, his delay in lodging his petition, when he learned or should have learned of his counsel’s alleged deficiencies, and the effect of the rule of judgment finality expressed in Article 76 . . . .”  United States v. Denedo, 129 S. Ct. 2213, 2224 (2009).  In fact, the lower court did not fully explore these issues.  Instead it decided Appellant’s case on the second prong of the Strickland2 analysis, that any error was harmless because Appellant would have lost at a contested court-martial.  Specifically, the Court of Criminal Appeals concluded, “Contesting the charges at a general court-martial with no conceivably valid defense would almost certainly have led to a significantly more calamitous result for petitioner, thereby only increasing the likelihood of deportation in addition to a more severe sentence.”  United States v. Denedo, No. NMCCA 9900680, 2010 CCA LEXIS 27, at *13, 2010 WL 996432, at *5 (N-M. Ct. Crim. App. Mar. 18, 2010). 

 

Further, while one can reasonably debate whether the lower court has responded to the Supreme Court’s remand, one cannot debate whether that court decided the case on the correct law.  It did not.  That is because the lower court decided this case while Padilla v. Kentucky3 was pending, a case directly relevant to Appellant’s appeal.  Indeed, Padilla was decided just two weeks after the Court of Criminal Appeals disposed of Appellant’s appeal on remand.

 

Padilla directly addresses the original claim of ineffective assistance in this case and contradicts the lower court’s statement of legal principles.  The Padilla court concluded that “advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.”  130 S. Ct. at 1482.  Thus, the lower court’s conclusion that “An attorney’s failure to advise an accused of potential deportation consequences of a guilty plea does not constitute[] deficient performance under Strickland,” 2010 CCA LEXIS 27 at *6, 2010 WL 996432, at *2, is based on an erroneous view of the law.  For sure, the Court of Criminal Appeals ultimately decided Appellant’s appeal on the basis of prejudice, assuming “affirmative misrepresentation.”  Id. at *10, 2010 WL 996432, at *4.  However, we do not know whether the Court of Criminal Appeals would have decided the issue in the same manner with the benefit of the Padilla decision, which is directly on point.  Moreover, the lower court’s conclusions have not been subjected to civilian judicial review.  Thus, like Chief Judge Effron, I believe the Padilla decision provides an important basis for waiving the filing requirement in this case.

 

In short, this Court’s response to Appellant and to the Supreme Court in a matter within its discretion seems curt -- rules are rules.  It is also unfair to Appellant.  Because I think that in the context of this case Appellant should get his full day in court before a military appellate court informed by a correct view of the law and before this civilian court, like the Chief Judge, I respectfully dissent.  

_____________________

 

1 Appellant’s right to be heard at this point would appear dependent on whether he can seek relief in an Article III court on the basis that he has received ineffective assistance of counsel on appeal to this Court.  This would seem a futile endeavor since Appellant’s right to pursue a writ of error coram nobis rests with the Court of Criminal Appeals.  Nor, does any issue regarding proper supervision of military appellate defense counsel afford Appellant in this case a remedy.  It has no bearing on Appellant’s opportunity to have his case heard.  Moreover, this Court does not have supervisory authority over the day to day operations of military appellate counsel provided by the government.  What it possesses is authority over specific cases.

  
2 Strickland v. Washington, 466 U.S. 668 (1984). 

3 130 S. Ct. 1473 (2010).

 



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-003

Friday, September 3, 2010

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 11-0003/MC.  U.S. v. Gordon C. ROBINSON.  CCA 200900119.

No. 11-0004/MC.  U.S. v. Richard J. MURRAY-BURNS.  CCA 201000072.

 



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-002

Thursday, September 2, 2010

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 10-0588/AF.  U.S. v. Christopher J. CLARK.  CCA 37499.  Review granted on the following issues:

 

WHETHER IT WAS PLAIN ERROR FOR TRIAL COUNSEL TO ELICIT TESTIMONY THAT APPELLANT DID NOT RESPOND VERBALLY WHEN ARRESTED, AND THEN RELY ON THIS TESTIMONY DURING CLOSING ARGUMENT.

 

WHETHER THE MILITARY JUDGE COMMITTED CONSTITUTIONAL ERROR THAT WAS NOT HARMLESS BEYOND A REASONABLE DOUBT WHEN HE OVERRULED DEFENSE COUNSEL'S OBJECTION DURING TRIAL COUNSEL'S IMPROPER REBUTTAL ARGUMENT.

 

Briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 10-0544/AR.  U.S. v. Shuntavius T. LUCKEY.  CCA 20090019.

No. 10-0561/AR.  U.S. v. Robert P. SMITH.  CCA 20080834.

No. 10-0573/AR.  U.S. v. Jonathan W. GERMANN.  CCA 20081036.

No. 10-0597/AR.  U.S. v. Brandon S. BARE.  CCA 20060452.

No. 10-0623/AR.  U.S. v. Ashley N. WEGER.  CCA 20090840.

No. 10-6009/AF.  U.S. v. Benjamin J. KNELL.  CCA 2010-08.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 11-0001/AR.  U.S. v. Lee A. YOUNG, Jr.  CCA 20081038.

No. 11-0002/AR.  U.S. v. Daemeon S. PEARSON.  CCA 20090919.

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

Misc. No. 11-8001/AF.  Jose A. COSSIO, Jr., v. United States.  Notice is hereby given that a writ-appeal petition for review of the decision of the United States Air Force Court of Criminal Appeals, together with a motion for leave to file a supplemental brief until a counsel is appointed under Rules 10(c) and 17, were filed under Rule 27(b) by mail on August 11, 2010, and placed on the docket this 2nd day of September, 2010.  On consideration thereof, it is ordered that said writ-appeal petition is hereby denied, and said motion is hereby denied as moot.

 

PETITIONS FOR RECONSIDERATION DENIED

 

No. 10-0574/AR.  U.S. v. Kristina C. OLIVER.  CCA 20090987.  On consideration of Appellant’s motion to file supplemental matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), which this Court construes as a petition for reconsideration, it is ordered that said motion is hereby granted, and said petition for reconsideration is hereby denied.

 

INTERLOCUTORY ORDERS

 

No. 09-0795/MC.  U.S. v. Derrick O. LASTER.  CCA 200400143.  Appellant's motion to reconsider the dismissal of the petition for grant of review as untimely filed is denied.

 

No. 10-0630/AF.  U.S. v. John C. CALHOUN.  CCA 37274.  Appellant's motion to raise issues pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), is granted.

 

No. 11-0001/AR.  U.S. v. Lee A. YOUNG, Jr.  CCA 20081038.  Appellant's motion to extend time to file the supplement to the petition for grant of review granted, up to and including September 22, 2010.

 



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-001

Wednesday, September 1, 2010

 

INTERLOCUTORY ORDERS

 

No. 10-5003/MC.  U.S. v. Lawrence G. HUTCHINS.  CCA 200800393.  Appellee’s motion for leave to exceed the Rule 24 word limit and Appellant’s motion to extend time to file a reply brief, it is ordered that Appellee’s motion is hereby denied.  Appellee will file a brief that complies with Rule 24, Rules of Practice and Procedure, on or before September 8, 2010, and that Appellant’s motion to extend time to file a reply brief is hereby granted.  Appellant may file a reply brief no later than 10 days after the filing of Appellee’s brief.

 



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