Daily Journal for May 2011

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-178

Tuesday, May 31, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0453/AR. U.S. v. Aaron M. MITCHELL. CCA 20100713. Review granted on the following issue:

WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT'S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT'S RECENT OPINIONS IN MEDINA, MILLER, AND JONES.

No briefs will be filed under Rule 25.

No. 11-0454/AR. U.S. v. Oren A. REECE. CCA 20100448. Review granted on the following issue:

No briefs will be filed under Rule 25.

PETITIONS FOR GRANT OF REVIEW DENIED

No. 11-0447/MC. U.S. v. John D. WEBSTER. CCA 201000211.

No. 11-0465/MC. U.S. v. Christopher K. BRADEN. CCA 201000588.

No. 11-0466/AR. U.S. v. Terry V. TWEEDY. CCA 20100563.

PETITIONS FOR GRANT OF REVIEW FILED

No. 11-0538/NA. U.S. v. Wesley R. VANDERWYST. CCA 201000452.

No. 11-0539/AR. U.S. v. Meghan M. MCCOY. CCA 20110016.

No. 11-0540/AR. U.S. v. Douglas L. DUNNAM. CCA 20100810.

No. 11-0541/AR. U.S. v. Mack J. MILLER, II. CCA 20100513.

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-177

Friday, May 27, 2011

PETITIONS FOR GRANT OF REVIEW FILED

No. 11-0536/AR. U.S. v. David T. CHASE. CCA 20091040.

No. 11-0537/MC. U.S. v. Christopher M. HARRIS. CCA 201000341.

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-176

Thursday, May 26, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0396/MC. U.S. v. Joshua D. FRY. CCA 201000179. Review granted on the following issue:

APPELLANT PURPORTEDLY ENLISTED IN THE MARINE CORPS AFTER A JUDICIAL DETERMINATION OF HIS INCAPACITY TO CONTRACT, WHICH REMAINS IN EFFECT. WAS HIS ENLISTMENT VOID AB INITIO?

Briefs will be filed under Rule 25.

No. 11-0446/MC. U.S. v. Justin GEYER. CCA 201000398. Review granted on the following issue:

No briefs will be filed under Rule 25.

No. 11-0481/AF. U.S. v. Nathan J. ARNOLD. CCA 37697. Review granted on the following issue:

No briefs will be filed under Rule 25.

PETITIONS FOR GRANT OF REVIEW FILED

No. 10-0265/AF. U.S. v. Douglas E. LONG. CCA 37044.

No. 11-0520/AR. U.S. v. Christopher L. YOUNG. CCA 20090614.

No. 11-0521/AR. U.S. v. Harold K. PARKER. CCA 20100308.

No. 11-0522/AR. U.S. v. Anthony M. LINTON. CCA 20090511.

No. 11-0523/MC. U.S. v. Alexander M. WATSON. CCA 201000263.

No. 11-0524/AF. U.S. v. O'marsharif K. WALKER. CCA S31788.

No. 11-0525/AF. U.S. v. Michael P. GRAFMULLER. CCA 37524.

No. 11-0526/AF. U.S. v. Kody T. WEEKS. CCA 37535.

No. 11-0527/AF. U.S. v. Bryan D. CREWS. CCA S31748.

No. 11-0528/AF. U.S. v. Brandon S. BOUGH. CCA S31815.

No. 11-0529/AF. U.S. v. Matthew C. ROTH. CCA S31834.

No. 11-0530/AF. U.S. v. Maximino ROSAS, Jr. CCA 37624.

No. 11-0531/AF. U.S. v. Andrew D. OLSON. CCA S31781.

No. 11-0532/AF. U.S. v. David A. AGUILAR, Jr. CCA 37545.

No. 11-0533/AF. U.S. v. Christopher A. LUZON. CCA S31821.

No. 11-0534/AF. U.S. v. William S. BRYANT. CCA 37619.

No. 11-0535/AR. U.S. v. Michael R. GEARY. CCA 20100426.

MISCELLANEOUS DOCKET - FILINGS

Misc. No. 11-8037/AF. In re Keith M. HALL, Petitioner, v. Commander Robert STOVER, USN, Commanding Officer, Naval Consolidated Brig, Miramar, California and the UNITED STATES, Respondents. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of habeas corpus, or in the alternative, a writ of mandamus, was filed under Rule 27(a). On consideration thereof, it is ordered that Respondents show cause no later than 5:00 p.m. this date why the requested relief should not be granted.

INTERLOCUTORY ORDERS

No. 11-0361/AR. U.S. v. Mark C. CHARTIER. CCA 20100312. Appellant's motion to attach defense appellate exhibits is denied. Appellee's motion to file an answer to the supplement out of time is granted.

No. 11-5001/NA. U.S. v. Justin H. MCMURRIN. CCA 200900475. Appellant's motion for issuance of mandate forthwith is granted.

MANDATES ISSUED

No. 10-0494/AF. U.S. v. Caleb B. BEATY. CCA 37478.

No. 11-5001/NA. U.S. v. Justin H. MCMURRIN. CCA 200900475.

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-175

Wednesday, May 25, 2011

APPEALS SUMMARY-DISPOSITIONS

No. 11-0320/AF. U.S. v. Crane XU. CCA 37722. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, we conclude that Appellant’s waiver of appellate counsel prior to the convening authority’s action was premature and that the convening authority failed to appropriately credit Appellant for prior punishment under Article 15, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 815 (2006), for an offense also charged as part of Additional Charge II. Accordingly, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER APPELLANT'S WAIVER OF APPELLATE COUNSEL, AT THE END OF TRIAL AND 117 DAYS BEFORE ACTION, WAS PREMATURE AND THEREFORE LEGALLY INVALID AND WITHOUT EFFECT.

II. WHETHER THE STAFF JUDGE ADVOCATE'S RECOMMENDATION ERRONEOUSLY FAILED TO REFERENCE APPELLANT'S PREVIOUS ARTICLE 15 PUNISHMENT FOR AN OFFENSE ALSO CHARGED AS PART OF ADDITIONAL CHARGE II.

III. WHETHER THE LOWER APPELLATE COURT FAILED TO APPROPRIATELY CREDIT APPELLANT FOR THE PRIOR ARTICLE 15 PUNISHMENT FOR AN OFFENSE ALSO CHARGED AS PART OF ADDITIONAL CHARGE II.

It is further ordered that the decision of the United States Air Force Court of Criminal Appeals and the convening authority’s action are set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to the convening authority for new post-trial review and action. Thereafter, Article 66, UCMJ, and Article 67, UCMJ, respectively, will apply. Furthermore, Appellant’s motion to supplement the record and Appellee’s motion to file a second opposition to remand are hereby granted; and Appellant’s motion for remand, Appellee’s motion to supplement the record, Appellant’s second motion to supplement dated February 18, 2011, and Appellant’s second motion to supplement the record dated April 1, 2011, are hereby denied as moot.

No. 11-0483/AR. U.S. v. Kevin P. PERKINS. CCA 20080893. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals and in light of United States v. Edwards, 69 M.J. 375 (C.A.A.F. 2011), it is ordered that said petition is hereby granted on the following issue:

WHETHER THERE IS SUBSTANTIAL BASIS IN LAW OR FACT TO QUESTION APPELLANT'S PLEA TO ESCAPE FROM CONFINEMENT GIVEN THAT HE WAS NEITHER WITHIN A CONFINEMENT FACILITY NOR UNDER GUARD OR ESCORT AFTER HAVING BEEN PLACED IN A CONFINEMENT FACILITY.

It is further ordered that the decision of the United States Army Court of Criminal Appeals is reversed as to Charge II and its specification, and Charge II and its specification are dismissed. The remaining findings of guilt and the sentence are affirmed.

PETITIONS FOR GRANT OF REVIEW DENIED

No. 11-0405/AF. U.S. v. David C. FARROW. CCA S31666.

No. 11-0426/AR. U.S. v. Ryan P. HUNT-LEGEAR. CCA 20100575.

No. 11-0433/AR. U.S. v. John A. HARDICK. CCA 20090042.

No. 11-0457/AR. U.S. v. Brooke OLIVAREZ. CCA 20100371.

No. 11-0459/AR. U.S. v. Shawn R. LEBLANC. CCA 20100472.

No. 11-0460/AR. U.S. v. Ryan L. GILL. CCA 20100523.

No. 11-0461/AR. U.S. v. Justin M. FERGUSON. CCA 20100883.

PETITIONS FOR GRANT OF REVIEW FILED

No. 11-0517/AR. U.S. v. Andrew F. LEAVASA. CCA 20100505.

No. 11-0518/AR. U.S. v. Thomas J. KOPP. CCA 20100629.

No. 11-0519/NA. U.S. v. Brandon T. GATEWOOD. CCA 201000142.

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-174

Tuesday, May 24, 2011

HEARINGS

No. 11-0167/AR. U.S. v. Inez T. MARTINEZ, Jr. CCA 20080699.

PETITIONS FOR GRANT OF REVIEW FILED

No. 11-0512/AR. U.S. v. Ira D. RHODES. CCA 20100908.

No. 11-0513/AR. U.S. v. Luke S. EWING. CCA 20100699.

No. 11-0514/NA. U.S. v. Damien J. AUTRY. CCA 201100105.

No. 11-0515/MC. U.S. v. Benny NORWOOD , Jr. CCA 201000495.

No. 11-0516/AR. U.S. v. Maurice K. ROBINS. CCA 20090996.

RECONSIDERATION DENIED

No. 11-5001/NA. U.S. , Appellant, v. Justin H. MCMURRIN, Appellee. CCA 200900475.On consideration of Appellant’s petition for reconsideration of this Court’s decision in the above-captioned case, 70 M.J. 15 (C.A.A.F. 2011), it is ordered that said petition for reconsideration be, and the same is, hereby denied.

INTERLOCUTORY ORDERS

No. 11-0231/AR. U.S. v. William J. KREUTZER, Jr. CCA 19961044. Appellee's motion to extend time to file a brief granted, up to and including June 16, 2011, and absent extraordinary circumstances, no further extension of time will be granted in this case.

No. 11-0476/AR. U.S. v. Berttran L. TILLER. CCA 20080438. Appellant's motion to extend time to file the supplement to the petition for grant of review granted, up to and including June 6, 2011.

No. 11-8027. In Re Justin H. MCMURRIN, Petitioner v. The Honorable Ray MABUS, Secretary of the Navy, and Commanding Officer, Naval Consolidated Brig, Charleston, Respondents. On consideration of the petition for extraordinary relief in the nature of a writ of habeas corpus, it is ordered that Respondents show cause on or before June 3, 2011, why the requested relief should not be granted.

MANDATES ISSUED

No. 11-0089/AR. U.S. v. Mervyn W. OLIVER Jr. CCA 20091109.

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-173

Monday, May 23, 2011

APPEALS SUMMARY-DISPOSITIONS

No. 11-0154/CG. U.S. v. Wilson MEDINA . CCA 1325. On further consideration of the granted issue, 69 M.J. 496 (C.A.A.F. 2011), it is ordered that the decision of the United States Coast Guard Court of Criminal Appeals is vacated. The record of trial is returned to the Judge Advocate General of the Coast Guard for remand to the Court of Criminal Appeals for reconsideration in light of United States v. Hartman, 69 M.J. 467 (C.A.A.F. 2011).

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0239/AR. U.S. v. Phillip L. PIERCE. CCA 20080009. 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 issue raised by appellate defense counsel:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS INCORRECTLY FOUND THAT THE MILITARY JUDGE'S FAILURE TO INSTRUCT ON NECESSARY ELEMENTS OF AN OFFENSE WAS HARMLESS BEYOND A REASONABLE DOUBT.

And the following issue specified by the Court:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF LAW WHEN IT HELD THAT THE MILITARY JUDGE'S INSTRUCTION ON 18 U.S.C. 2422(B), WHICH INSTRUCTION USED THE TERM "INTERNET" INSTEAD OF "ANY FACILITY OR MEANS OF INTERSTATE COMMERCE" WAS NOT HARMLESS BEYOND A REASONABLE DOUBT.

Briefs will be filed under Rule 25.

No. 11-0362/AR. U.S. v. Thomas G. GENTRY. CCA 20080985. Review granted on the following issue:

WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT’S RECENT OPINIONS IN MEDINA, MILLER, AND JONES.

No briefs will be filed under Rule 25.

No. 11-0422/AR. U.S. v. Byron D. TYSON. CCA 20090072. Review granted on the following issues:

No briefs will be filed under Rule 25.

No. 11-0427/AR. U.S. v. Nicholas A. PATLA. CCA 20100809. Review granted on the following issue:

No briefs will be filed under Rule 25.

PEITIONS FOR GRANT OF REVIEW DENIED

No. 11-0342/MC. U.S. v. Adrian A. TAYLOR. CCA 201000219.

No. 11-0398/AR. U.S. v. William H. STEELE. CCA 20071177.

No. 11-0455/AR. U.S. v. Jedediah W. CALI. CCA 20100440.

PETITIONS FOR GRANT OF REVIEW FILED

No. 11-0510/NA. U.S. v. Dustin E. EVERHART. CCA 201000065.

No. 11-0511/AR. U.S. v. Aaron P. STONE. CCA 20090332.

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

Misc. No. 11-8021/MC. William J. WIECZOREK, Jr., Appellant v. United States , Appellee. CCA 201100036. On consideration of the writ-appeal petition, it is ordered that said petition is hereby denied without prejudice to Appellant’s right to raise the issue asserted during the course of normal appellate review.

MISCELLANEOUS DOCKET - FILINGS

Misc. No. 11-8028/NA. Juan D. ALONSO, CCA 201000095.

Misc. No. 11-8029/NA. Calvin D. GRIFFITTS, CCA 201000673.

Misc. No. 11-8030/MC. Joseph M. JONES, CCA 201000676.

Misc. No. 11-8031/NA. Christopher KINARD, CCA 201000084.

Misc. No. 11-8032/NA. Zornell L. MALONE, CCA 201000387.

Misc. No. 11-8033/NA. Marquis L. MERIWEATHER, CCA 201000082.

Misc. No. 11-8034/NA. Jacob D. NEVANDRO, CCA 201000641.

Misc. No. 11-8035/NA. Markalle D. REDD, CCA 201000682.

Misc. No. 11-8036/MC. Hugo VALENTIN, CCA 201000683, Appellants v. Commandant, United States Disciplinary Barracks, Fort Leavenworth, Commanding Officer, Naval Consolidated Brig, Charleston, Appellees

Notice is hereby given that writ-appeal petitions for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on application for extraordinary relief in the nature of a writ of habeas corpus or mandamus were filed in the above cases under Rule 27(b) on this date.

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-172

Friday, May 20, 2011

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

Misc. No. 11-8025/AF. In Re Keith M. HALL, Petitioner v. Commander Robert STOVER, USN, Commanding Officer, Naval Consolidated Brig, Miramar , California , and The United States , Respondents. On consideration of the petition for extraordinary relief in the nature of a writ of habeas corpus, or in the alternative, a writ of mandamus, it is ordered that said petition is hereby denied without prejudice to further consideration by the Court should the Court of Criminal Appeals not give prompt consideration to the matter raised in the petition.

No. 11-8026/AF. In Re Dustin S. HOGELAND, Petitioner v. Commander Robert STOVER, USN, Commanding Officer, Naval Consolidated Brig, Miramar , California , and The United States , Respondents. On consideration of the petition for extraordinary relief in the nature of a writ of habeas corpus, or in the alternative, a writ of mandamus, it is ordered that said petition is hereby denied without prejudice to further consideration by the Court should the Court of Criminal Appeals not give prompt consideration to a petition, if any, filed in that Court. See Rule 4(b)(1), Rules of Practice and Procedure.

INTERLOCUTORY ORDERS

No. 11-6007/AR. U.S. v. Demetrice K. BAKER. CCA 20100841. On consideration of the petition for grant of review filed by counsel for the Appellant on April 11, 2011, under Rule 19(a) (5)(A), Rules of Practice and Procedure, United States Court of Appeals for the Armed Forces, and docketed under Docket Number 11-0438/AR, it appears that said petition is in fact a petition for grant of review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862. Accordingly, it is ordered that Docket Number 11-6007/AR be forthwith assigned to this case, that the Docket Number 11-0438/AR be removed from this case and not be assigned to any case in the future, that the Clerk’s office and counsel for both parties herein promptly ensure that the new docket number assigned to this case be noted on all pleadings filed to date in this matter.

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-171

Thursday, May 19, 2011

PETITIONS FOR GRANT OF REVIEW FILED

No. 11-0507/AR. U.S. v. Pedrus HELGENBERGER. CCA 20080560.

No. 11-0508/AR. U.S. v. Montgomery L. BREDA . CCA 20100567.

No. 11-0509/AR. U.S. v. Michael P. LEAHY, Jr. CCA 20090146.

PETITIONS FOR RECONSIDERATION DENIED

No. 10-0494/AF. U.S. v. Caleb B. BEATY. CCA 37478. On consideration of the Appellee’s petition for reconsideration of this Court’s decision, United States v. Beaty, 70 M.J. 39 (C.A.A.F. 2011), it is ordered that said petition for reconsideration be, and the same is, hereby denied.

INTERLOCUTORY ORDERS

No. 11-0143/AR. U.S. v. Aaron R. STANLEY. CCA 20050703. Appellee's motion to extend time to file a brief granted, up to and including June 15, 2011, and absent extraordinary circumstances, no further extension of time will be granted in this case.

No. 11-0509/AR. U.S. v. Michael P. LEAHY, Jr. CCA 20090146. Appellant's motion to extend time to file the supplement to the petition for grant of review granted up to and including June 8, 2011.

ORDER

IN RE CASE INFORMATION

The Order of the Court, In Re Electronic Filing, entered on July 22, 2010, 69 M.J. 204, is hereby supplemented as follows this date. It is ordered that counsel shall hereafter redact the names of complainants and victims from all pleadings in sex offense cases, that the requirement for personal and data identifiers to be redacted in pleadings filed with the Court shall apply to all filings, whether filed electronically or on paper, and that the attached Notice Regarding Case Information shall take effect 10 days after the date of this Order.

NOTICE REGARDING CASE INFORMATION

Once filed, pleadings, including the joint appendix, are public documents and are available for inspection at the courthouse. Accordingly, parties are required to redact private and sensitive information from such pleadings. See, Order of July 22, 2010 (In Re Electronic Filing). 69 M.J. 204-06. Specifically, that order requires the following information to be redacted from electronic filings:

Social Security Numbers. If an individual’s social security number must be included, only the last four digits of that number should be used.
Names of Minor Children. If the involvement of a minor child must be addressed, only the initials of that child should be used.
Dates of Birth. If an individual’s date of birth must be included, only the year should be used.
Financial Account Numbers. If financial account numbers are relevant, only the last four digits of these numbers should be used.
Home Addresses. If a home address must be included, only the city and state should be listed.

The Court, by order of May 19, 2011, has expanded the order to make it applicable to all filings and also directed that the following additional information be redacted from all filings:

Names of Complainants and Victims in Sex Offense Cases. If the involvement of a complainant or victim in a sex offense case must be addressed, only the initials of the complainant or victim should be used.

Parties also shall exercise caution in including other sensitive personal data in their filings, such as personal identifying numbers, medical records, individual financial information, employment history, information regarding an individual’s cooperation with the government, and national security information.

The Clerk will not review any documents for redaction. Particular attention should be focused on attachments and appendices where sensitive or personal information should be redacted before filing the document in the Court. If it is necessary in a particular case to include personal or sensitive information in a filing, the document may be filed with a motion to file it under seal along with a redacted version that can be filed and be available to the public.

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-170

Wednesday, May 18, 2011

HEARINGS

No. 11-6003/AR. U.S. v. Michael A. PRINCE. CCA 20100939.

No. 11-6004/MC. U.S. v. Caleb P. HOHMAN. CCA 201000563.

INTERLOCUTORY ORDERS

No. 11-0167/AR. U.S. v. Inez T. MARTINEZ, Jr. CCA 20080699. On consideration of Appellee's request to reschedule oral argument, it is ordered that said motion is granted, and that the above-entitled action be called for hearing at 11:00 a.m. on the 24^th day of May, 2011.

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-169

Tuesday, May 17, 2011

HEARINGS

No. 10-0461/NA. U.S. v. Joseph A. SWEENEY. CCA 200900468.

APPEALS - SUMMARY DISPOSITIONS

No. 11-0105/AF. U.S. v. William T. HALEY. CCA 37565. Upon further consideration of the granted issue (69 M.J. 473) in light of United States v. Beaty, 70 M.J. 39 (C.A.A.F. 2011), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed as to findings, but reversed as to sentence, and that the record of trial is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals to reassess the sentence or to order a rehearing on sentence, as appropriate. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2006) shall apply.

PETITIONS FOR GRANT OF REVIEW DENIED

No. 11-0449/AR. U.S. v. Andrew J. BARKER. CCA 20100376.

No. 11-0451/AR. U.S. v. Gerald O. ELLSWORTH. CCA 20100633.

No. 11-0452/AR. U.S. v. Scott R. WALTON. CCA 20090703.

PETITIONS FOR GRANT OF REVIEW FILED

No. 11-0503/AR. U.S. v. Austin R. TAYLOR. CCA 20100751.

No. 11-0504/AR. U.S. v. Timothy A. COLLINS. CCA 20090368.

No. 11-0505/AR. U.S. v. Edward N. SORIANO. CCA 20090836.

No. 11-0506/AR. U.S. v. Jeffrey A. DANIELS. CCA 20091071.

INTERLOCUTORY ORDERS

No. 10-0178/AF. U.S. v. William J. ST BLANC, Jr. CCA 37206. Upon further consideration of the granted issue (69 M.J. 247) in light of United States v. Beaty, 70 M.J. 39 (C.A.A.F. 2011), it is ordered that Appellant and Appellee file additional briefs addressing the effect of Beaty and the lack of objection at trial to the maximum permissible punishment announced by the military judge. Appellant’s brief shall be filed within 30 days of the date of this order. Appellee’s brief shall be filed within 30 days of the filing of Appellant’s brief. Appellant may file a reply within 10 days of the filing of Appellee’s brief.

No. 11-8024/NA. U.S. v. John R. DAVENPORT. CCA 201000067. Appellant's motion for leave to file a substitute pleading granted.

MANDATES ISSUED

No. 10-0572/AF. U.S. v. Alejandro V. ARRIAGA. CCA 37439.

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-168

Monday, May 16, 2011

HEARINGS

No. 11-0149/MC. U.S. v. James N. FOSLER. CCA 201000134.

PETITIONS FOR GRANT OF REVIEW DENIED

No. 11-0381/AR. U.S. v. Robert E. BRINKLEY III. CCA 20100595.

No. 11-0392/AR. U.S. v. Damon L. ALSUP. CCA 20091114.

No. 11-0439/AR. U.S. v. Paul D. DELLINGER. CCA 20100648.

No. 11-0441/AR. U.S. v. Oswaldomar RIVERA-MORALES. CCA 20100762.

No. 11-0442/AR. U.S. v. Donald L. FOXWORTHY. CCA 20090785.

No. 11-0444/AR. U.S. v. Khalif J. RHODEN. CCA 20100429.

No. 11-0445/AR. U.S. v. Juan S. MONTEZ. CCA 20100782.

INTERLOCUTORY ORDERS

No. 11-0463/AR. U.S. v. Jermaine J. JOHNSON. CCA 20090797. Appellant's second motion to extend time to file the supplement granted, up to and including May 24, 2011, and absent extraordinary circumstances, no further extension of time will be granted in this case.

No. 11-0475/AR. U.S. v. Robert L. CONRADY. CCA 20080534. Appellant's motion to extend time to file the supplement to the petition for grant of review granted up to and including June 7, 2011.

No. 11-6003/AR. U.S. v. Michael A. PRINCE. CCA 20100939. Appellant's motion to dismiss for lack of subject matter jurisdiction denied.

No. 11-8024/NA. U.S. v. John R. DAVENPORT. CCA 201000067. Appellee's motion to extend time to file an answer to the writ-appeal granted, up to and including May 31, 2011.

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-167

Friday, May 13, 2011

PETITIONS FOR GRANT OF REVIEW FILED

No. 11-0501/AR. U.S. v. Patrick A. CASTILLO. CCA 20100576.

No. 11-0502/AR. U.S. v. Christopher J. LOPEZ. CCA 20100246.

MISCELLANEOUS DOCKET - FILINGS

Misc. No. 11-8027/NA. In Re Justin H. MCMURRIN, Petitioner v. The Honorable Ray MABUS, Secretary of the Navy, and Commanding Officer, Naval Consolidated Brig, Charleston, Respondents. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of habeas corpus was filed under Rule 27(a) on this date.

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-166

Thursday, May 12, 2011

MISCELLANEOUS DOCKET - FILINGS

Misc. No. 11-8025/AF. In re Keith M. HALL, Petitioner v. Commander Robert STOVER, USN, Commanding Officer, Naval Consolidated Brig, Miramar, California. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of habeas corpus, or in the alternative, writ of mandamus, was filed under Rule 27(a) on this date.

Misc. No. 11-8026/AF. In re Dustin S. HOGELAND, Petitioner v. Commander Robert STOVER, USN, Commanding Officer, Naval Consolidated Brig, Miramar, California. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of habeas corpus, or in the alternative, writ of mandamus, was filed under Rule 27(a) on this date.

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-165

Wednesday, May 11, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0389/AR. U.S. v. Kenneth L. GOODMAN. CCA 20090083. Review granted on the following issues:

I. WHETHER APPELLANT'S PLEA OF GUILTY TO FAILURE TO OBEY A GENERAL REGULATION (CHARGE I) WAS IMPROVIDENT BECAUSE THE MILITARY JUDGE FAILED TO SECURE A DISCLAIMER OF THE MISTAKE OF FACT DEFENSE WHEN IT WAS RAISED DURING THE PROVIDENCE INQUIRY.

II. WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT'S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT'S RECENT OPINIONS IN MEDINA, MILLER, AND JONES.

Briefs will be filed under Rule 25 on Issue I only.

No. 11-0420/AR. U.S. v. Cody T. SMITH. CCA 20100646. Review granted on the following issue:

No briefs will be filed under Rule 25.

PETITIONS FOR GRANT OF REVIEW FILED

No. 11-0495/AR. U.S. v. Brandon K. PRICE. CCA 20100382.

No. 11-0496/AR. U.S. v. Christopher D. RICE. CCA 20090857.

No. 11-0497/MC. U.S. v. Desmond J. HORTON. CCA 201000481.

No. 11-0498/AR. U.S. v. Trina L. TAYLOR. CCA 20100603.

No. 11-0499/AR. U.S. v. Kevin M. RANDALL. CCA 20080953.

No. 11-0500/AR. U.S. v. Jacob M. SANSONE. CCA 20100881.

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-164

Tuesday, May 10, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0443/AR. U.S. v. Aaron P. HUDSON. CCA 20090506. Review granted on the following issue:

No briefs will be filed under Rule 25.

PETITIONS FOR GRANT OF REVIEW DENIED

No. 11-0382/AR. U.S. v. Kevin T. PIERCE. CCA 20090014.

No. 11-0428/AR. U.S. v. Kalon L. BROOKS. CCA 20100323.

No. 11-0429/AR. U.S. v. Adarrious S. PATTERSON. CCA 20100686.

No. 11-0430/AF. U.S. v. Michael W. DAVIDSON. CCA S31770.

No. 11-0432/AF. U.S. v. Jake L. SCHWEIKERT. CCA 37553.

No. 11-0435/AR. U.S. v. Brandan L. MELVIN. CCA 20100331.

PETITIONS FOR GRANT OF REVIEW FILED

No. 11-0487/AR. U.S. v. Genaro HERNANDEZ. CCA 20100471.

No. 11-0488/AR. U.S. v. Anthony J. AVERY. CCA 20100947.

No. 11-0489/AR. U.S. v. Scott J. MAXFIELD. CCA 20100804.

No. 11-0490/AR. U.S. v. Kurt J. GULLENS. CCA 20100428.

No. 11-0491/AR. U.S. v. Kenneth B. OWENS. CCA 20100636.

No. 11-0492/AR. U.S. v. Bryson E. LOWE. CCA 20100913.

No. 11-0493/AF. U.S. v. Eric W. PARKER. CCA 37482.

No. 11-0494/AF. U.S. v. Michael T. NERAD. CCA 36994.

MISCELLANEOUS DOCKET - FILINGS

Misc. No. 11-8024/NA. U.S. v. John R. DAVENPORT. CCA 201000067. Notice is hereby given that a writ-appeal petition for review of the United States Navy-Marine Corps Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.

INTERLOCUTORY ORDERS

No. 11-0485/CG. U.S. v. Royce G. CLIFTON. CCA 1332. Appellant’s motion to extend time to file the supplement to the petition for grant of review granted, up to and including May 31, 2011.

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-163

Monday, May 9, 2011

PETITIONS FOR GRANT OF REVIEW FILED

No. 11-0484/AR. U.S. v. Randall L. WHITE. CCA 20100299.

No. 11-0485/CG. U.S. v. Royce G. CLIFTON. CCA 1332.

No. 11-0486/NA. U.S. v. Akeem A. WILKINS. CCA 201000289.

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-162

Friday, May 6, 2011

PETITIONS FOR GRANT OF REVIEW FILED

No. 11-0483/AR. U.S. v. Kevin P. PERKINS. CCA 20080893.

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-161

Thursday, May 5, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0256/MC. U.S. v. Michael J. CHEESEMAN. CCA 200900567. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, and in light of United States v. Prather, 69 M.J. 338 (C.A.A.F. 2011) and United States v. Neal, 68 M.J. 289 (C.A.A.F. 2010), said petition is granted on the following specified issue:

WHETHER APPELLANT’S CONVICTION FOR AGGRAVATED SEXUAL ASSAULT UNDER ARTICLE 120(c)(2), UCMJ, SHOULD BE SET ASIDE IN LIGHT OF THIS COURT’S DECISIONS IN UNITED STATES v. NEAL, 68 M.J. 289 (C.A.A.F. 2010), AND UNITED STATES v. PRATHER, 69 M.J. 338 (C.A.A.F. 2011).

It is further ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed as to Charge III and Specification 1 thereunder and as to the sentence, but affirmed in all other respects. The findings as to Charge III and Specification 1 thereunder and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to an appropriate convening authority who may order a rehearing on the affected charge and sentence. Alternatively, a rehearing on sentence only may be ordered with regard to the affirmed findings.

No. 11-0374/AR. U.S. v. Lelan M. SHANKLES. CCA 20100307. Review granted on the following specified issue:

No briefs will be filed under Rule 25.

PETITIONS FOR GRANT OF REVIEW DENIED

No. 11-0318/AF. U.S. v. Nicholas A. WATSON. CCA 37416.

No. 11-0425/AF. U.S. v. John G. TETI, Jr. CCA S31799.

PETITIONS FOR GRANT OF REVIEW FILED

No. 11-0480/AF. U.S. v. Kenny H.K. KIMIZUKA. CCA S31823.

No. 11-0481/AF. U.S. v. Nathan J. ARNOLD. CCA 37697.

No. 11-0482/AF. U.S. v. Benjamin N. CHATMAN. CCA S31820.

No. 11-6006/AF. U.S. v. Steven A. DANYLO. CCA 2010-15.

INTERLOCUTORY ORDERS

No. 07-0253/NA. U.S. v. John A. HALSEMA. CCA 20001337. Appellant's motion to withdraw the petition for grant of review granted. The Hearing Notice issued February 14, 2011, is hereby vacated.

No. 11-0231/AR. U.S. v. William J. KREUTZER, Jr. CCA 19961044. Appellant's motion for leave to file the joint appendix out of time granted.

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-160

Wednesday, May 4, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0434/AR. U.S. v. David J. ISENHOWER. CCA 20100354. Review granted on the following issues:

No briefs will be filed under Rule 25.

PETITIONS FOR GRANT OF REVIEW FILED

No. 11-0477/AR. U.S. v. Michael A. DUBIK. CCA 20080384.

No. 11-0478/NA. U.S. v. Antony M. DREIBELBEIS. CCA 201000269.

No. 11-0479/AR. U.S. v. Timothy P. KARSTENS. CCA 20100832.

MANDATES ISSUED

No. 10-0642/AR.

U.S.

v. Raymond L. GIROUARD. CCA 20070299.

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 11-159

Tuesday, May 3, 2011

PETITIONS FOR GRANT OF REVIEW DENIED

No. 11-0397/AR. U.S. v. Kali A. MOULTON. CCA 20100265.

No. 11-0411/AF. U.S. v. Adam T. HOFFMAN. CCA 37597.

No. 11-0421/AR. U.S. v. Branden J. HOFFMAN. CCA 20090105.

No. 11-0423/NA. U.S. v. Thomas D. FASICK. CCA 201000410.

No. 11-0424/AF. U.S. v. Rudy BANEGAS, Jr. CCA 37680.

PETITIONS FOR GRANT OF REVIEW FILED

No. 11-0475/AR. U.S. v. Robert L. CONRADY. CCA 20080534.

No. 11-0476/AR. U.S. v. Berttran L. TILLER. CCA 20080438.

MANDATES ISSUED

No. 10-0567/AF. U.S. v. Steven H. BONNER. CCA 37371.

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 11-158

Monday, May 2, 2011

PETITIONS FOR GRANT OF REVIEW DENIED

No. 11-0410/AF. U.S. v. Sean HIGGINS. CCA 37576.

No. 11-0414/AR. U.S. v. Matthias DAUGHERTY. CCA 20100473.

No. 11-0415/AR. U.S. v. Anthony W. DAISEY, Jr. CCA 20100330.

No. 11-0416/AR. U.S. v. Kijan A. EDWARDS. CCA 20100593.

No. 11-0417/AR. U.S. v. Alexis J. PINTO. CCA 20100086.

No. 11-0418/AR. U.S. v. Jacob M. PAPPAS. CCA 20091070.