UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-244

Friday, August 31, 2012

 

PETITIONS FOR RECONSIDERATION DENIED

 

No. 12-0008/AR. U.S. v. Alaa M. ALI. CCA 20080559. On consideration of Appellant's petition for reconsideration of this Court's decision, 71 M.J. 256 (C.A.A.F. 2012), it is, ordered that said petition for reconsideration be, and the same is hereby denied.

 

 

 

ANNOUNCEMENT

 

BY THE CLERK OF THE COURT

 

OF THE CUMULATIVE SUMMARY OF

 

COURT WORKLOAD STATISTICS

 

FOR THE SEPTEMBER 2011 TERM OF COURT

 

 

I. CUMULATIVE PENDING SEPTEMBER 1, 2011

 

Master Docket . . . . . . . . . . . . . . . 71

Petition Docket . . . . . . . . . . . . . . 87

Miscellaneous Docket. . . . . . . . . . . . 0

TOTAL . . . . . . . . . . . . . . . . . 158

 

 

II. CUMULATIVE FILINGS

 

Master Docket . . . . . . . . . . . . . . . 206

Petition Docket . . . . . . . . . . . . . . 802

Miscellaneous Docket. . . . . . . . . . . . 34

TOTAL . . . . . . . . . . . . . . . . . 1,042

 

 

III. CUMULATIVE TERMINATIONS

 

Master Docket . . . . . . . . . . . . . . . 254

Petition Docket . . . . . . . . . . . . . . 820

Miscellaneous Docket. . . . . . . . . . . . 30

TOTAL . . . . . . . . . . . . . . . . . 1,104

 

 

IV. CUMULATIVE PENDING SEPTEMBER 1, 2012

 

Master Docket . . . . . . . . . . . . . . . 23

Petition Docket . . . . . . . . . . . . . . 69

Miscellaneous Docket. . . . . . . . . . . . 4

TOTAL . . . . . . . . . . . . . . . . . 96

 

V. CASES ON MASTER DOCKET CARRIED OVER TO THE

SEPTEMBER 2012 TERM OF COURT (23)

 

 

AWAITING ORAL ARGUMENT OR FINAL DISPOSITION (13)

(INCLUDES TRAILER CASES)

 

10-0319/MC - ROBINSON

11-0486/NA WILKINS

11-0547/AR GOINGS

11-0563/MC SANDERS

12-0282/AR GARNER

12-0313/MC TEARMAN

12-0320/AF CAPEL

12-0396/MC LUNSFORD

12-0414/AR SPICER

12-0418/AF HALPIN

12-0450/MC KILARSKI

12-5001/AF DATAVS

12-5002/AF - VAZQUEZ

 

 

AWAITING BRIEFS (10)

11-0497/MC HORTON

12-0353/MC CALDWELL

12-0398/AR BOWERSOX

12-0408/MC HUTCHINS

12-0451/AF IRIZARRY

12-0486/AR CLIFTON

12-0496/NA ALTIER

12-0516/AF TUNSTALL

12-0522/AF - COTE

12-5003/MC - PORTER




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-243

Thursday, August 30, 2012

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 12-0649/AF. U.S. v. Kevin K. SUTER, Jr. CCA S31976. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted; and the decision of the United States Air Force Court of Criminal Appeals is affirmed.* [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

* It is directed that the promulgating order be corrected to reflect a plea and finding of guilty as to Additional Charge II.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 12-0649/AF. U.S. v. Kevin K. SUTER, Jr. CCA S31976. [See also APPEALS - SUMMARY DISPOSITIONS this date.]

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0532/AR. U.S. v. Chad D. COLCLASURE. CCA 20110213.**

_______________________________

 

** Second petition filed in this case.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-242

Wednesday, August 29, 2012

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0569/NA. U.S. v. Jason K. KENNEDY. CCA 201100624.

No. 12-0619/AR. U.S. v. Kenneth D. NUNEZ. CCA 20100703.

No. 12-0639/AR. U.S. v. Erik R. TOMPKINS. CCA 20110911.

No. 12-0648/AF. U.S. v. Michael J. HYSELL. CCA S31990.

No. 12-0650/AF. U.S. v. Scott E. LUTZE. CCA 37997.

No. 12-0651/AF. U.S. v. Darian D. WESLEY. CCA S31979.

No. 12-0656/AR. U.S. v. Timothy J. EDWARDS. CCA 20110663.

No. 12-0657/AR. U.S. v. Thomas E. KRUEGER. CCA 20111141.

No. 12-0659/AF. U.S. v. Pablo R. MARTINEZ. CCA S32000.

No. 12-0660/AF. U.S. v. Michael L. ROGERS, Jr. CCA S32004.

No. 12-0662/AF. U.S. v. Jeffrey W. PRESCOTT. CCA 38052.

No. 12-0663/AF. U.S. v. William S. HOBBICK. CCA S32012.

No. 12-0664/AF. U.S. v. Justin G. MCCARTHY. CCA S32003.

 

INTERLOCUTORY ORDERS

 

No. 12-0666/AR. U.S. v. Steven P. STRICKLAND. CCA 20050455. Appellant's motion to extend time to file the supplement to the petition for grant of review granted, but only up to and including September 12, 2012, 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. 12-241

Tuesday, August 28, 2012

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0603/CG. U.S. v. Ernesto MARANJE. CCA 1350.

No. 12-0640/AR. U.S. v. Brandon J. TEMPLE. CCA 20111040.

No. 12-0641/AF. U.S. v. Roy S. DANIEL. CCA 38029.

No. 12-0642/AF. U.S. v. Lance J. HINES. CCA 38040.

No. 12-0645/AF. U.S. v. Anthony D. MARTIN. CCA S31999.

No. 12-0646/AF. U.S. v. Caleb T. SARGENT. CCA S31994.

No. 12-0647/AF. U.S. v. James A. GUERRERO. CCA S31985.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0701/AF. U.S. v. Jose R. SALDANA, IV. CCA 37598.

No. 12-0702/AR. U.S. v. Kyle A. CHRISTENSEN. CCA 20110711.

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

Misc. No. 12-8034/AR. Kesha R. CONNER, Appellant v. United States, Appellee. CCA 20120761. On consideration of the motion for a stay of proceedings, the motion to expedite a decision on the stay of proceedings, and the writ-appeal petition, it is ordered that the motion to expedite a decision on the stay of proceedings is granted; the motion to stay proceedings is hereby denied; and the writ-appeal petition is hereby denied without prejudice.

 

INTERLOCUTORY ORDERS

 

No. 12-0569/NA. U.S. v. Jason K. KENNEDY. CCA 201100624. Appellee's motion for leave to file the answer letter out of time is hereby denied.

 

No. 12-0697/AF. U.S. v. Timothy M. BAZAR. CCA 37548. Appellant's motion to extend time to file the supplement to the petition for grant of review is hereby granted to September 17, 2012.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-240

Monday, August 27, 2012

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0697/AF. U.S. v. Timothy M. BAZAR. CCA 37548.

No. 12-0698/AR. U.S. v. Xavier J. LOZOYA. CCA 20111028.

No. 12-0699/AF. U.S. v. Stanley A. TITANSKI. CCA S31888.

No. 12-0700/AR. U.S. v. Dale E. BOLDWARE. CCA 20090665.

 

MISCELLANEOUS DOCKET FILINGS

 

Misc. No. 12-8034/AR. Kesha R. CONNER, Appellant v. Colonel Andrew C.S. Efaw, United States Army, Military Judge, Appellee. CCA 20120761. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief together with a motion for a stay of proceedings were filed under Rule 27(b).

 

INTERLOCUTORY ORDERS

 

No. 12-8032/AR. Nidal M. HASAN, Petitioner v. Gregory Gross, Colonel, United States Army, Military Judge, Respondent.

On consideration of the petition for extraordinary relief in the nature of a writ of prohibition to prevent the military judge from ordering the forcible shaving of Petitioner's facial hair, and the Government's answer, it is ordered that the petition is denied without prejudice as premature because the military judge has not issued a definitive order for Petitioner to be forcibly shaved.

Should the military judge issue an order that Petitioner be forcibly shaved, Petitioner shall be afforded the opportunity to file a petition for extraordinary relief with the United States Army Court of Criminal Appeals prior to the execution of the order. Also, if such an order is given, the military judge shall address those issues raised in this writ proceeding that he has not yet had an opportunity to address on the record, including, among other matters:

(1) whether the Religious Freedom Restoration Act, 42 U.S.C. 2000bb (2006), applies in the context of this court-martial; and

(2) if so, what compelling interest(s), if any, are implicated in the specific court-martial context presented and why forcible shaving is the least restrictive means of furthering the compelling governmental interest(s) including, if relevant, consideration as to why an instruction to the court members, if requested by the Petitioner, is not the least restrictive means in the court-martial context. See United States v. West, 12 C.M.A. 670, 674, 31 C.M.R. 256, 260 (1962).

Petitioner's motions to waive submission of supporting documents under Rule 27(a)(2)(C) and to attach a transcript are granted. Petitioner's motion for an enlargement of time to reply to the Government's answer is denied as moot.

The stay of proceedings that was ordered on August 15, 2012, is hereby lifted.*

_______________________________

 

* In view of the existence of a vacant position on the Court, notice is hereby given that the Chief Judge has called upon Senior Judge Andrew S. Effron to perform judicial duties in the above-captioned case, and that Senior Judge Effron has consented to perform judicial duties in said case under Article 142(e)(1)(A)(ii), Uniform Code of Military Justice, 10 U.S.C. 942(e)(1)(A)(ii) (2006).




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-239

Friday, August 24, 2012

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0504/AR. U.S. v. Roderick C. HILLIAN. CCA 20091104.

No. 12-0598/MC. U.S. v. Samuel J. BOUDREAUX. CCA 201100606.

No. 12-0620/AF. U.S. v. Monique M. YARBROUGH. CCA 37789.

No. 12-0623/AR. U.S. v. Jeremy R. CERVANTES. CCA 20101014.

No. 12-0625/NA. U.S. v. Charles L. PERRY. CCA 201100645.

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

Misc. No. 12-8031/MC. James M. LEWIS, Petitioner v. United States, Respondent. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus and Petitioner's motion to file the same out of time, it is ordered that said motion is hereby denied, and that said petition is hereby dismissed as untimely.

 

INTERLOCUTORY ORDERS

 

No. 12-0643/AF. U.S. v. Evaristo MALACARA, IV. CCA 38024.

No. 12-0647/AF. U.S. v. James A. GUERRERO. CCA S31985.

No. 12-0659/AF. U.S. v. Pablo R. MARTINEZ. CCA S32000.

No. 12-0660/AF. U.S. v. Michael L. ROGERS, Jr. CCA S32004.

No. 12-0662/AF. U.S. v. Jeffrey W. PRESCOTT. CCA 38052.

No. 12-0663/AF. U.S. v. William S. HOBBICK. CCA S32012.

No. 12-0664/AF. U.S. v. Justin G. MCCARTHY. CCA S32003.

 

In each of the above cases, Major Andrew J. Unsicker's motion to withdraw as appellate defense counsel is granted.

 

No. 12-8032/AR. Nidal M. HASAN, Petitioner v. Gregory Gross, Colonel, United States Army, Military Judge, Respondent. CCA 20120667. On consideration of Respondent's motion to file a second supplemental joint appendix, it is ordered that said motion is hereby granted.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No.12-238

Thursday, August 23, 2012

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0637/AR. U.S. v. Steven W. GILLROY. CCA 20111112.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0082/AF. U.S. v. Steven D. HARRIS, Jr. CCA S31822.*

No. 12-0690/AF. U.S. v. Raymond M. SAVOIE, Jr. CCA S31933.

No. 12-0691/AF. U.S. v. William B. LAFRENIERE. CCA 38054.

No. 12-0692/AR. U.S. v. Enrique PEREZ. CCA 20110553.

No. 12-0693/AR. U.S. v. Bradley O. TEMPLE. CCA 20090883.

No. 12-0694/AF. U.S. v. Levi D. SKINNER. CCA S31956.

No. 12-0695/AF. U.S. v. Christopher L. WRIGHT. CCA S31848.

No. 12-0696/AF. U.S. v. James P. CONNORS. CCA S32001.

______________________________

 

* Second petition filed in this case.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-237

Tuesday, August 21, 2012

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0609/AR. U.S. v. Robert L. CLINARD III. CCA 20110705.

No. 12-0630/NA. U.S. v. Jennifer A. ADAMS. CCA 201100669.

No. 12-0631/AR. U.S. v. Justin R. BAILEY. CCA 20111154.

No. 12-0632/AR. U.S. v. Johnnie B. STEVENSON. CCA 20111044.

No. 12-0633/AR. U.S. v. Daniel J. MOORER. CCA 20110693.

No. 12-0634/AR. U.S. v. Adam W. KELLY. CCA 20110202.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0687/AR. U.S. v. Daniel ZAVALAGAMEZ. CCA 20110197.

No. 12-0688/AR. U.S. v. Beyshee O. VELEZ. CCA 20110317.

No. 12-0689/AR. U.S. v. Brandon M. WHITE. CCA 20100325.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-236

Monday, August 20, 2012

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0589/AR. U.S. v. Brett D. BLAKELY. CCA 20110147.

No. 12-0622/AR. U.S. v. Tony T. FOLEY, Jr. CCA 20110605.

No. 12-0624/AR. U.S. v. Christopher A. DOUGLAS. CCA 20110618.

No. 12-0626/AR. U.S. v. Alexander VALDEZ. CCA 20110283.

No. 12-0627/AR. U.S. v. Steven P. BURNS, Jr. CCA 20110700.

No. 12-0628/AR. U.S. v. Amber R. ROMERO. CCA 20110575.

No. 12-0629/AR. U.S. v. Lorenzo T. FRANKLIN. CCA 20100653.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0684/MC. U.S. v. Antonio M. CASTELLANO. CCA 201100248.

No. 12-0685/AR. U.S. v. Michael J. FIERLEY, Jr. CCA 20110529.

No. 12-0686/AR. U.S. v. Johncharles A. SHORES. CCA 20110901.

 

INTERLOCUTORY ORDERS

 

No. 12-0638/AR. U.S. v. Jeffrey D. SMITH. CCA 20110569. Appellant's motion to extend time to file the supplement to the petition for grant of review out of time is granted.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-235

Friday, August 17, 2012

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0680/AF. U.S. v. Gary D. SIMMONS, Jr.,. CCA 37967.

No. 12-0681/AF. U.S. v. Anglia G. SAGELY. CCA 38064.

No. 12-0682/AR. U.S. v. Bobbybare B. BAYRAN. CCA 20110451.

No. 12-0683/AR. U.S. v. Daniel J. GOODSON. CCA 20110960.

 

MISCELLANEOUS DOCKET - FILINGS

 

Misc. No. 12-8033/AR. Maurice K. Robins, Appellant v. United States, Appellee. CCA 20990996. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of error coram nobis or writ of habeas corpus, which this Court construes as a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief, was filed under Rule 27(b) on this date.

 

INTERLOCUTORY ORDERS

 

No. 12-0672/AF. U.S. v. Stephanie S. GUTSHE. CCA S31992.

No. 12-0673/AF. U.S. v. Gilbert J. JIO. CCA S32014.

 

In each of the above cases, Major Daniel E. Schoeni's motion to withdraw as appellate defense counsel is granted.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-234

Thursday, August 16, 2012

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0678/AR. U.S. v. David N. GILLUM. CCA 20111156.

No. 12-0679/AR. U.S. v. Thomas B. HENDRIX. CCA 20110926.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-233

Wednesday, August 15, 2012

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0487/NA. U.S. v. Jennifer A. ADAMS. CCA 201100324.

No. 12-0621/AR. U.S. v. Frederick D. WOODS. CCA 20110906.

 

INTERLOCUTORY ORDERS

 

No. 12-0353/MC. U.S. v. Lazzaric T. CALDWELL. CCA 201000557. On consideration of Appellant's motion to file a portion of the joint appendix under seal and motion to correct a portion of the joint appendix, it is ordered that said motions are hereby granted.

 

No. 12-0636/AR. U.S. v. Ryahn P. SHAW. CCA 20100158. Appellant's second motion to extend time to file the supplement to the petition for grant of review granted, up to and including August 27, 2012, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 12-0671/AF. U.S. v. Jeremy K. ARSENAULT. CCA 38030. On consideration of the motion filed by Major Daniel E. Schoeni for leave to withdraw as appellate defense counsel, it appears that the Judge Advocate General has assigned another counsel to represent Appellant and that the new counsel has assumed representation of said Appellant. Accordingly, it is ordered that said motion is hereby granted.

 

Misc. No. 12-8032/AR. Nidal M. HASAN, Petitioner v. Gregory Gross, Colonel, United States Army, Military Judge, Respondent. CCA 20120667. On consideration of the petition for extraordinary relief in the nature of a writ of prohibition to prevent the military judge from ordering the forcible shaving of Petitioner's facial hair, and Petitioner's motion for a stay of proceedings, it is ordered that said motion for a stay of proceedings is hereby granted, pending further order of the Court. Respondent will file an answer to said petition on or before 12:00 p.m., EDT, August 22, 2012.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-232

Tuesday, August 14, 2012

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0674/AF. U.S. v. Joanna BROWN. CCA 38073.

No. 12-0675/AR. U.S. v. Floyd J. LEWIS, Jr. CCA 20110022.

No. 12-0676/AR. U.S. v. William C. LYNCH. CCA 20110601.

No. 12-0677/AF. U.S. v. Joseph J. STONE. CCA 37999.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-231

Monday, August 13, 2012

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0611/AR. U.S. v. Robert G. WATTERS. CCA 20110591.

No. 12-0615/AR. U.S. v. Brian T. WALLER. CCA 20110387.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0670/AF. U.S. v. Tory T. CURTIS. CCA 38051.

No. 12-0671/AF. U.S. v. Jeremy K. ARSENAULT. CCA 38030.

No. 12-0672/AF. U.S. v. Stephanie S. GUTSHE. CCA S31992.

No. 12-0673/AF. U.S. v. Gilbert J. JIO. CCA S32014.

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

Misc. No. 12-8026/AR. Maurice K. Robins, Appellant v. Commandant, United States Disciplinary Barracks, Appellee. CCA 20090996. On consideration of the writ-appeal petition, and Appellant's motion to attach supplemental memo and motion to extend time to perform an act, it isordered that said writ-appeal petition is hereby denied, and said motions are hereby denied.

 

INTERLOCUTORY ORDERS

 

No. 12-0398/AR. U.S. v. Ryan A. BOWERSOX. CCA 20100580. Appellant's motion to extend time to file a brief granted, but only up to and including August 28, 2012, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

MANDATES ISSUED

 

No. 12-0030/AR. U.S. v. Michael C. BEHENNA. CCA 20090234.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-230

Friday, August 10, 2012

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 12-0643/AF. U.S. v. Evaristo MALACARA, IV. CCA 38024. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, we note that the convening authority failed to comply with a lawful term of the pretrial agreement in that he did not dismiss with prejudice Charge III and its specifications as required by that agreement. See United States v. Smead, 68 M.J. 44, 62 (C.A.A.F. 2009). Absent the presence of any circumstances to cancel the agreement, the convening authority's action improperly failed to give Appellant the benefit that he bargained for dismissal with prejudice of the charge and its specifications. We will take corrective action in the interest of judicial economy where we conclude that such action is consistent with the intent of the convening authority even if the action was not specified in the convening authority's action. See United States v. Scott, 4 M.J. 205, 206 (C.M.A. 1978). Accordingly, it is ordered that said petition for review is granted. The decision of the Air Force Court of Criminal Appeals is reversed to the extent that it approves the convening authority's failure to dismiss with prejudice Charge III and its specifications. This charge and its specifications are dismissed with prejudice in accordance with the pretrial agreement. In all other respects, the decision below is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 12-0643/AF. U.S. v. Evaristo MALACARA, IV. CCA 38024. [See also APPEALS-SUMMARY DISPOSITIONS this date.]

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0539/MC. U.S. v. Edward J. FIELDS. CCA 201100455.

No. 12-0545/AR. U.S. v. Scott J. LEBER. CCA 20100931.

No. 12-0579/MC. U.S. v. Trevor D. WELLER. CCA 201100043.

No. 12-0610/AR. U.S. v. Derek A. CIBIK. CCA 20120031.

No. 12-0612/AR. U.S. v. William R. HULL, Jr. CCA 20110586.

No. 12-0613/AR. U.S. v. Bryan S. FITZGERALD. CCA 20110354.

No. 12-0614/AR. U.S. v. Cornelius J. SPILLANE III. CCA 20110671.

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

Misc. No. 12-8029/AR. Nidal M. HASAN, Appellant v. Gregory Gross, Colonel, U.S. Army, Military Judge, Appellee. CCA 20120667. On consideration of the writ-appeal petition requesting the issuance of a writ of mandamus to disqualify the military judge in the pending court-martial of Major Nidal M. Hasan, and the accompanying motion to stay proceedings filed on July 18, 2012, it is ordered that said writ-appeal petition and motion to stay proceedings are hereby denied.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-229

Thursday, August 9, 2012

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0667/AR. U.S. v. Anthony P. CORRALEJO. CCA 20120004.

No. 12-0668/AR. U.S. v. Chadwick M. HURST. CCA 20110500.

No. 12-0669/AR. U.S. v. Kenneth D. NEWBERRY. CCA 20100909.

 

MANDATES ISSUED

 

No. 12-0194/AR. U.S. v. Evan VELA. CCA 20080133.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-228

Wednesday, August 8, 2012

 

RULES CHANGES

 

Upon careful consideration of certain proposed changes to the Rules of Practice and Procedure, United States Court of Appeals for the Armed Forces, which were presented to and reviewed by the Rules Advisory Committee of the United States Court of Appeals for the Armed Forces and thereafter published in the Federal Register for comment, it is ordered that effective September 1, 2012, Rules 19(b) and 22(b) are hereby amended as provided in the attachment to this Order (changes appear in bold typeface).

 

Rule 19(b):

 

(b) Certificate for review/brief/answer/reply

 

(1) Article 62, UCMJ, cases. In cases involving a decision by a Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, 10 USC 862, a certificate for review, together with a supporting brief in accordance with Rule 24 on behalf of the appellant, shall be filed with the Court by the Judge Advocate General no later than 60 days after the date of the decision of the Court of Criminal Appeals. See Rules 22 and 34(a). An appellee's answer shall be filed no later than 10 days after the filing of such certificate for review and supporting brief. A reply may be filed by the appellant no later than 5 days after the filing of the appellee's answer.

 

(2) Extraordinary relief cases. In cases involving a decision by a Court of Criminal Appeals on application for extraordinary relief filed therein, a certificate for review, together with a supporting brief in accordance with Rule 24 on behalf of the appellant, shall be filed with the Court by the Judge Advocate General no later than 60 days after the date of the decision of the Court of Criminal Appeals. See Rules 22 and 34(a). An appellee's answer shall be filed no later than 10 days after the filing of such certificate for review and supporting brief. A reply may be filed by the appellant no later than 5 days after the filing of the appellee's answer.

 

(3) Other cases. In all other cases involving a decision by a Court of Criminal Appeals, a certificate for review filed by the Judge Advocate General shall be filed either (a) no later than 60 days after the date of the decision of the Court of Criminal Appeals (see Rules 22 and 34(a)), or (b) no later than 30 days after a petition for grant of review is granted. In cases that involve both granted and certified issues, the Clerk may establish a consolidated briefing schedule for all issues. In cases that involve only certified issue(s), an appellant's brief shall be filed in accordance with Rule 24 no later than 30 days after the issuance by the Clerk of a notice of docketing of the certificate for review. An appellee's answer shall be filed no later than 30 days after the filing of an appellant's brief. A reply may be filed by the appellant no later than 10 days after the filing of the appellee's answer.

 

Rule 22(b):

 

(b)(1) Article 62, UCMJ, cases. In cases involving a decision by a Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, 10 USC 862, a certificate for review, together with a supporting brief in accordance with Rule 24 on behalf of the appellant, shall be filed with the Court by the Judge Advocate General no later than 60 days after the date of the decision of the Court of Criminal Appeals. See Rules 22 and 34(a). An appellee's answer shall be filed no later than 10 days after the filing of such certificate for review and supporting brief. A reply may be filed by the appellant no later than 5 days after the filing of appellee's answer.

 

(2) Extraordinary relief cases. In cases involving a decision by a Court of Criminal Appeals on application for extraordinary relief filed therein, a certificate for review, together with a supporting brief in accordance with Rule 24 on behalf of the appellant, shall be filed with the Court by the Judge Advocate General no later than 60 days after the date of the decision of the Court of Criminal Appeals. See Rules 22 and 34(a). An appellee's answer shall be filed no later than 10 days after the filing of such certificate for review and supporting brief. A reply may be filed by the appellant no later than 5 days after the filing of the appellee's answer.

 

(3) Other cases. In all other cases involving a decision by a Court of Criminal Appeals, a certificate for review filed by the Judge Advocate General shall be filed either (a) no later than 60 days after the date of the decision of the Court of Criminal Appeals (see Rules 22 and 34(a)), or (b) no later than 30 days after a petition for grant of review is granted. In cases that involve both granted and certified issues, the Clerk may establish a consolidated briefing schedule for all issues. In cases that involve only certified issue(s), an appellant's brief shall be filed in accordance with Rule 24 no later than 30 days after the filing of an appellant's brief. An appellee's answer shall be filed no later than 30 days after the filing of an appellant's brief. A reply may be filed by the appellant no later then 10 days after the filing of the appellee's answer.

 

APPEALS-SUMMARY DISPOSITION

 

No. 12-0452/AR. U.S. v. Raymond J. REYNARD. CCA 20100351. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in view of United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), it is ordered that said petition is hereby granted on the following issue:

 

WHETHER APPELLANT SUFFERED MATERIAL PREJUDICE TO A SUBSTANTIAL RIGHT AS A RESULT OF THE GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ, IN THE SPECIFICATION OF CHARGE II.

 

The portion of the decision of the United States Army Court of Criminal Appeals as to Charge II and its Specification and the sentence is reversed. The decision of that court as to the remaining charges and specifications is affirmed. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further consideration in light of Humphries. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

BAKER, Chief Judge, (dissenting):

 

Consistent with my views in United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012) (Baker, C.J., dissenting), I respectfully dissent from the order to grant.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 12-0516/AF. U.S. v. Michael S. TUNSTALL. CCA 37592. Review granted on the following issues:

 

I. WHETHER APPELLANT'S CONVICTION FOR INDECENT ACTS MUST BE SET ASIDE BECAUSE THE MILITARY JUDGE ERRED IN INSTRUCTING THE JURY THAT INDECENT ACTS IS A LESSER INCLUDED OFFENSE OF AGGRAVATED SEXUAL ASSAULT.

 

II. WHETHER THE FINDING OF GUILTY TO ADULTERY MUST BE DISMISSED IN ACCORDANCE WITH RULE FOR COURTS-MARTIAL 907(b)(1) BECAUSE IT FAILS TO STATE AN OFFENSE.

 

Briefs will be filed under Rule 25.

 

 

No. 12-0452/AR. U.S. v. Raymond J. REYNARD. CCA 20100351. [See also APPEALS-SUMMARY DISPOSITION this date.]

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

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

No. 12-0469/MC. U.S. v. Markus A. USECHE. CCA 201100001.

No. 12-0543/AR. U.S. v. Eduardo CALDERON-SALINAS. CCA 20110491.

No. 12-0576/AF. U.S. v. Vontrevian J. WILLIAMS. CCA S31851.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0666/AR. U.S. v. Steven P. STRICKLAND. CCA 20050455.

 

INTERLOCUTORY ORDERS

 

No. 12-0313/MC. U.S. v. Andrew D. TEARMAN. CCA 201100195. Appellee's motion to substitute the joint appendix is granted.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-227

Tuesday, August 7, 2012

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0549/NA. U.S. v. Manuel F. PEREZ. CCA 201100650.

No. 12-0602/AR. U.S. v. David T. HENLEY. CCA 20110875.

No. 12-0605/AF. U.S. v. Gregory L. WILSON. CCA 37691.

No. 12-0606/AF. U.S. v. Steven D. CASH. CCA S31881.

No. 12-0608/AR. U.S. v. Sean M. CHASTENAY. CCA 20110931.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0665/AR. U.S. v. Anthony C. DENOFRIO. CCA 20110305.

 

MISCELLANEOUS DOCKET - FILINGS

 

Misc. No. 12-8032/AR. Nidal M. HASAN, Petitioner v. Gregory Gross, Colonel, United States Army, Military Judge, Respondent. CCA 20120667. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of prohibition under Rule 27(a), and a motion for a stay of proceedings were filed this date.

 

INTERLOCUTORY ORDERS

 

No. 11-0497/MC. U.S. v. Desmond J. HORTON. CCA 201000481. On consideration of the motion filed by Major Kirk Sripinyo for leave to withdraw as appellate defense counsel in this case, it appears that the Judge Advocate General has assigned another counsel to represent Appellant and that the new counsel has assumed representation of said Appellant. Accordingly, it is ordered that said motion is hereby granted.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-226

Monday, August 6, 2012

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 11-0282/AR. U.S. v. Bobby D. MORRISSETTE. CCA 20090166. 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:

 

WHETHER THE DEFECTS IN SPECIFICATIONS 4, 5, AND 6 OF CHARGE III RESULTED IN MATERIAL PREJUDICE TO APPELLANT'S SUBSTANTIAL RIGHT TO NOTICE.

 

The portion of the decision of the United States Army Court of Criminal Appeals as to Charge III, Specifications 4, 5, and 6, and the sentence is reversed. United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012). The decision of that court as to the remaining charges and specifications is affirmed. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further reconsideration in light of Humphries.

 

* BAKER, Chief Judge (dissenting):

 

Consistent with my views in United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012) (Baker, C.J., dissenting), I respectfully dissent from the order to grant.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 12-0486/AR. U.S. v. Jeremey C. CLIFTON. CCA 20091092. Review granted on the following issue:

 

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT DETERMINED THE MILITARY JUDGE COMMITTED ERROR BY DENYING A PANEL MEMBER'S REQUEST TO CALL TWO ADDITIONAL WITNESSES FOR QUESTIONING, BUT FOUND THIS ERROR TO BE HARMLESS.

 

Briefs will be filed under Rule 25.

 

PETITIONS FOR RECONSIDERATION DENIED

 

No. 12-0030/AR. U.S. v. Michael C. BEHENNA. CCA 20090234. Appellant's petition for reconsideration of this Court's decision on July 5, 2012, is hereby denied.

 

MISCELLANEOUS DOCKET - FILINGS

 

Misc. No. 12-8030/NA. John H. MAZE, Appellant v. Commandant, U.S. Disciplinary Barracks, Appellee. CCA 200900027. 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 and brief were filed under Rule 27(b). Appellee will file an answer on or before August 16, 2012.

 

Misc. No. 12-8031/MC. James M. LEWIS, Petitioner v. UNITED STATES, Respondent. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of mandamus, together with a motion to file the same out of time, were filed under Rule 27(a).

 

INTERLOCUTORY ORDERS

 

No. 12-0557/AR. U.S. v. Mac D. WARNER. CCA 20100398. On consideration of Appellant's motion to correct errata and substitute corrected supplement, it is ordered that said motion is hereby granted.

 

No. 12-0373/AF. U.S. v. Jose S. MONSERRATE. CCA S31649.

No. 12-0651/AF. U.S. v. Darian D. WESLEY. CCA S31979.

No. 12-0653/AF. U.S. v. Jacob L. EDWARDS. CCA S31812

No. 12-0648/AF. U.S. v. Michael J. HYSELL. CCA S31990.

No. 12-0641/AF. U.S. v. Roy S. DANIEL. CCA 38029.

No. 12-0516/AF. U.S. v. Michael S. TUNSTALL. CCA 37592.

No. 12-0593/AF. U.S. v. Alexander SCHODOLSKI-CAREY. CCA 37605. On consideration of the motions filed by Major Daniel E. Schoeni for leave to withdraw as appellate defense counsel in the above cases, it appears that the Judge Advocate General has assigned another counsel to represent the Appellants and that the new counsel have assumed representation of said Appellants. Accordingly, it is ordered that said motions are hereby granted.

 

No. 12-0450/MC. U.S. v. Jonathan M. KILARSKI. CCA 201100329. On consideration of the motion filed by Lieutenant Daniel C. LaPenta for leave to withdraw as appellate defense counsel in this case, it appears that the Judge Advocate General has assigned another counsel to represent the Appellant and that the new counsel has assumed representation of said Appellant. Accordingly, it is ordered that said motion is hereby granted.

 

No. 12-0414/AR. U.S. v. David G. SPICER, Jr. CCA 20090608. Appellee's motion for leave to file a supplemental joint appendix is hereby granted.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-225

Friday, August 3, 2012

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0659/AF. U.S. v. Pablo R. MARTINEZ. CCA S32000.

No. 12-0660/AF. U.S. v. Michael L. ROGERS, Jr. CCA S32004.

No. 12-0661/AF. U.S. v. Michael B. GRANT. CCA S31768.

No. 12-0662/AF. U.S. v. Jeffrey W. PRESCOTT. CCA 38052.

No. 12-0663/AF. U.S. v. William S. HOBBICK. CCA S32012.

No. 12-0664/AF. U.S. v. Justin G. MCCARTHY. CCA S32003.

 

INTERLOCUTORY ORDERS

 

No. 12-0008/AR. U.S. v. Alaa M. ALI. CCA 20080559. Appellant's motion to extend time to file a petition for reconsideration granted, up to and including August 13, 2012, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

MANDATES ISSUED

 

No. 12-0251/AF. U.S. v. Ermen-Rene BARNETT. CCA 37578.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-224

Thursday, August 2, 2012

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0657/AR. U.S. v. Thomas E. KRUEGER. CCA 20111141. No. 12-0658/AR. U.S. v. John RON. CCA 20100599.

 

INTERLOCUTORY ORDERS

 

No. 10-0319/MC. U.S. v. Nathan M. ROBINSON. CCA 200800827.

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

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

In each of the above cases, Major Kirk Sripinyo's motion to withdraw as appellate defense counsel is granted.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-223

Wednesday, August 1, 2012

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0548/AR. U.S. v. Andrew L. GEAN. CCA 20100499.

No. 12-0571/AF. U.S. v. Max N. DEAN. CCA S31899.

No. 12-0581/AF. U.S. v. Michael J. MACALUSO, Jr. CCA 37787.

No. 12-0585/MC. U.S. v. Shane R. BARDES. CCA 201100612.

No. 12-0586/MC. U.S. v. Chance E. MIXON. CCA 201100665.

No. 12-0592/AR. U.S. v. Ole L. AULIE. CCA 20100349.



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