UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-114

Friday, February 28, 2014

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 14-0137/AR. U.S. v. Daniella M. HOWARD. CCA 20120844. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is granted on the following issue:

 

WHETHER APPELLANT WAS DENIED HER SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE DEFENSE COUNSEL FAILED TO CONDUCT A PROPER INVESTIGATION AND PRESENT VITAL EVIDENCE TO THE MILITARY JUDGE REGARDING THE DEFENSE OF DURESS AS A RESULT OF A SEXUAL ASSAULT BY A NONCOMMISSIONED OFFICER.

 

The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further appellate inquiry on the granted issue. The Court of Criminal Appeals will obtain affidavits from the trial defense counsel (military and civilian) that respond to Appellant's allegation of ineffective assistance of counsel. Under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. 866(c) (2012), the Court of Criminal Appeals shall review the ineffective assistance of counsel issue in light of the affidavits and any other relevant matters. See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). If the court determines that a fact-finding hearing is necessary, that court shall order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Once the necessary information is obtained, the court will complete its Article 66(c), UCMJ, review. Thereafter, Article 67, UCMJ, 10 U.S.C. 867 (2012), shall apply.

 

ORDERS GRANTING PETITION FOR RECONSIDERATION

 

No. 13-7001/AR. U.S. v. Hasan K. AKBAR. CCA 20050514. On consideration of Appellant's petition to reconsider the denial of the motion for leave to file matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), out of time, it is ordered that reconsideration is granted and the matter raised pursuant to Grostefon will be considered.

 

CERTIFICATES FOR REVIEW FILED

 

No. 14-5003/AF. U.S., Appellant v. Jimmy L. WILSON, Appellee. CCA 37897. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

 

WHETHER ARTICLE 12, UCMJ, APPLIES TO THE CIRCUMSTANCE WHERE AN ACCUSED AND/OR CONVICTED MEMBER OF THE ARMED FORCES IS CONFINED IN IMMEDIATE ASSOCIATION WITH FOREIGN NATIONALS IN A STATE OR FEDERAL FACILITY WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES.

 

Appellant will file a brief under Rule 22(b) in support of said certificate on or before March 31, 2014.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0701/MC. U.S. v. Justin D. LOYA. CCA 201200436.

No. 14-0114/NA. U.S. v. Justin H. MCMURRIN. CCA 200900475.

No. 14-0366/AF. U.S. v. Ryan J. DERAAS. CCA S32141.

No. 14-0367/AR. U.S. v. Justin W. RIGGS. CCA 20110340.

No. 14-6003/AR. U.S. v. Robert J. TRANK. CCA .

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0437/AR. U.S. v. Chad D. BARTSH. CCA 20111104.

No. 14-0438/MC. U.S. v. Richard G. HAND. CCA 201300064.

No. 14-0439/AF. U.S. v. Alain R. HICKS. CCA 38191.

No. 14-0440/AR. U.S. v. Michael J. DELP. CCA 20120688.

 

INTERLOCUTORY ORDERS

 

No. 14-0137/AR. U.S. v. Daniella M. HOWARD. CCA 20120844. Appellant's motions to attach exhibits and to file the supplement to the petition for grant of review out of time are granted. Appellant's third motion to extend time to file the supplement to the petition for grant of review is denied as moot.

 

No. 14-0434/NA. U.S. v. Johnny R. RICHARDS. CCA 201300332. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 19, 2014.

 

No. 14-0436/MC. U.S. v. Daniel L. DOUGHERTY. CCA 201300060. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 19, 2014.

 

No. 14-0438/MC. U.S. v. Richard G. HAND. CCA 201300064. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 20, 2014.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-113

Thursday, February 27, 2014

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0280/AR. U.S. v. Michael L. TREAT. CCA 20110402. Review granted on the following issue:

 

WHETHER THERE IS A FATAL VARIANCE AND A VIOLATION OF APPELLANT'S DUE PROCESS RIGHT TO NOTICE WHEN THE GOVERNMENT ALLEGED THAT APPELLANT MISSED THE MOVEMENT OF A PARTICULAR AIRCRAFT BUT THE PROOF ESTABLISHED THAT HE MISSED THE MOVEMENT OF A PARTICULAR UNIT.

 

Briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 11-0567/AR. U.S. v. Eric L. NORDIN. CCA 20090044.

No. 14-0151/AR. U.S. v. Aaron M. MAGILL. CCA 20110640.

No. 14-0251/AF. U.S. v. Michael M. BRIDGES. CCA 38141.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0434/NA. U.S. v. Johnny R. RICHARDS. CCA 201300332.

No. 14-0435/AF. U.S. v. Kenosha R. JOHNSON. CCA 38193.

No. 14-0436/MC. U.S. v. Daniel L. DOUGHERTY. CCA 201300060.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-112

Wednesday, February 26, 2014

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0429/AR. U.S. v. Dennis R. DREW II. CCA 20130265.

No. 14-0430/AR. U.S. v. Jason A. BLANCHETTE. CCA 20120291.

No. 14-0431/AR. U.S. v. Robert C. SMITH. CCA 20120793.

No. 14-0432/AR. U.S. v. David T. NEWMAN. CCA 20121114.

No. 14-0433/AR. U.S. v. Lawrence J. BRUCE. CCA 20121063.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-111

Tuesday, February 25, 2014

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0206/AR. U.S. v. Martin A. ALAMO. CCA 20120617.

No. 14-0227/AR. U.S. v. Miguel A. GONZALEZ-CHAVEZ. CCA 20110811.

No. 14-0299/AR. U.S. v. Ceasar A. LAUREANO. CCA 20110957.

No. 14-0302/AF. U.S. v. Michael S. STEINKAMP, Jr. CCA S32078.

No. 14-0355/AR. U.S. v. Anthony L. LEWIS. CCA 20121140.

No. 14-0363/AR. U.S. v. Bradley H. SCOTT. CCA 20130209.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0427/AF. U.S. v. Jason R. BARNES. CCA 38349.

No. 14-0428/AR. U.S. v. Samuel A. MEIXUEIRO. CCA 20120492.

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

Misc. No. 14-8004/AF. U.S. v. Samuel LOFTON III. CCA 2011-10. On consideration of the writ-appeal petition, it is ordered that said writ-appeal petition is denied.

 

Misc. No. 14-8008/AR. Timothy B. HENNIS, Petitioner v. Siobahn LEDWITH, Colonel, United States Army, Commandant, U.S. Disciplinary Barracks, the United States Army, and the United States, Respondents. CCA 20100304. On consideration of the petition for extraordinary relief in the nature of a writ of habeas corpus, it is ordered that said petition is hereby denied without prejudice to Petitioner's right to raise the issue asserted during the course of normal appellate review.

 

INTERLOCUTORY ORDERS

 

No. 14-0151/AR. U.S. v. Aaron M. MAGILL. CCA 20110640. Appellant's motion to file the supplement to the petition for grant of review out of time denied.

 

No. 14-0424/AR. U.S. v. Michael T. BROWN, Sr. CCA 20121106. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 14, 2014.

 

No. 14-0425/AR. U.S. v. Richard MARTINEZ, Jr. CCA 20110570. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 14, 2014.

 

No. 14-0426/AR. U.S. v. Jeremy D. WAITE. CCA 20121015. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 14, 2014.

 

No. 14-0427/AF. U.S. v. Jason R. BARNES. CCA 38349. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 17, 2014.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-110

Monday, February 24, 2014

 

HEARINGS

 

No. 13-0602/AR. U.S. v. Thomas C. FLESHER. CCA 20110449.

No. 14-0005/AF. U.S. v. Daniel A. FREY. CCA 37759.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0275/AR. U.S. v. Emanuel R. WATERS. CCA 20111073.

No. 14-0317/AR. U.S. v. Deangello A. ARMSTRONG. CCA 20120732.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0422/AR. U.S. v. Jeffrey I. HINZMAN. CCA 20120441.

No. 14-0423/MC. U.S. v. Roger E. EASTERLY, Jr. CCA 201300067.

No. 14-0424/AR. U.S. v. Michael T. BROWN, Sr. CCA 20121106.

No. 14-0425/AR. U.S. v. Richard MARTINEZ, Jr. CCA 20110570.

No. 14-0426/AR. U.S. v. Jeremy D. WAITE. CCA 20121015.

 

INTERLOCUTORY ORDERS

 

No. 14-0419/AR. U.S. v. Jason K. SHANLEY. CCA 20120199. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 7, 2014.

 

No. 14-0420/AR. U.S. v. Kyle C. NEWMAN. CCA 20100481. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 13, 2014.

 

SPECIAL DOCKET MATTERS

 

No. 14-03. In the Matter of Ruth M. Pollack. It appearing that the above-named attorney is a member of the Bar of this Court, that she has been disbarred from the practice of law by the Supreme Court of the United States, the United States Court of Appeals for the Second Circuit, the United States District Courts for the Eastern and Southern Districts of New York, and the Supreme Court of the State of New York, Appellate Division, Second Judicial Department, and that pursuant to Rule 15(b), Rules of Practice and Procedure, U.S. 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 why she should not be disbarred, and having carefully considered the answer she submitted with enclosures, the request for a hearing, the serious nature of her misconduct, including the conviction of the offense of criminal contempt of court, and that her response did not raise material questions of fact necessitating a hearing, the request for a hearing is denied and Ruth M. Pollack 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. 14-109

Friday, February 21, 2014

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0001/AR. U.S. v. George D. MACDONALD. CCA 20091118. Review granted on the following issues:

 

I. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN DETERMINING THAT THE MILITARY JUDGE'S ERROR IN QUASHING A SUBPOENA ISSUED TO PFIZER, INC., TO PRODUCE RELEVANT AND NECESSARY DOCUMENTS REGARDING CLINICAL TRIALS, ADVERSE EVENT REPORTS, AND POST-MARKET SURVEILLANCE OF THE DRUG VARENICLINE WAS HARMLESS BEYOND A REASONABLE DOUBT.

 

II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING A DEFENSE REQUESTED INSTRUCTION ON INVOLUNTARY INTOXICATION, AND ERRED IN FAILING TO INSTRUCT THE MEMBERS ON THE EFFECT OF INTOXICATION ON APPELLANT'S ABILITY TO FORM SPECIFIC INTENT AND PREMEDITATION.

 

Briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0197/AF. U.S. v. Susanna K. LOZANO. CCA S32043.

No. 14-0204/AR. U.S. v. Derrick A. MILLER. CCA 20110651.

No. 14-0210/AF. U.S. v. Matthew D. JOLIVET. CCA 38123.

No. 14-0221/AF. U.S. v. William B. FILYAW. CCA S32062.

No. 14-0245/AR. U.S. v. Keona M. ANDREWS. CCA 20130324.

No. 14-0263/AF. U.S. v. Tracy F. HILL. CCA 38161.

No. 14-0277/MC. U.S. v. Ronald MURPHY. CCA 201300100.

No. 14-0320/MC. U.S. v. Jimmy GALYON. CCA 201300163.

No. 14-0354/AR. U.S. v. William L. MCDONALD. CCA 20130499.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0418/AR. U.S. v. Maurice A. FREEMAN. CCA 20120531.

No. 14-0419/AR. U.S. v. Jason K. SHANLEY. CCA 20120199.

No. 14-0420/AR. U.S. v. Kyle C. NEWMAN. CCA 20100481.

No. 14-0421/AR. U.S. v. Kenneth M. NEWBERRY II. CCA 20121109.

No. 14-6004/NA. U.S. v. Lamont E. HOYES. CCA 201300303.

 

INTERLOCUTORY ORDERS

 

No. 14-0206/AR. U.S. v. Martin A. ALAMO. CCA 20120617. Appellant's motion to file the supplement to the petition for grant of review out of time is granted.

 

No. 14-6003/AR. U.S. v. Robert J. TRANK. CCA 20130742. On consideration of Appellant's motion for a stay of proceedings, it is ordered that said motion is hereby granted pending further order of the Court.

 

MANDATES ISSUED

 

No. 13-0512/AF. U.S. v. Michael L. KNAPP II. CCA 37718.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-108

Thursday, February 20, 2014

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0417/AR. U.S. v. Brendan D. THOMPSON. CCA 20111176.

 

PETITIONS FOR RECONSIDERATION DENIED

 

No. 13-0512/AF. U.S. v Michael L. KNAPP II. CCA 37718. On consideration of Appellee's petition for reconsideration of the Court's decision, 73 M.J. 33 (C.A.A.F. 2014), it is ordered that said petition for reconsideration is denied.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-107

Wednesday, February 19, 2014

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0268/AR. U.S. v. Dustin B. HALCOM. CCA 20111105.

No. 14-0290/AR. U.S. v. Nicholas R. SAMAR. CCA 20110971.

No. 14-0324/AR. U.S. v. Cody J. ODOM. CCA 20130307.

No. 14-0325/AF. U.S. v. Benjamin T. ROJEK. CCA 38329.

No. 14-0326/AF. U.S. v. William I. SMITH. CCA 38333.

No. 14-0328/AR. U.S. v. John H. YI. CCA 20120808.

No. 14-0331/AR. U.S. v. Nicholas R. THORNTON. CCA 20130268.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0416/AR. U.S. v. Daniel B. PARKER. CCA 20130617.

 

MISCELLANEOUS DOCKET - FILINGS

 

Misc. No. 14-8013/MC. Daniel J. JIMENEZ, Appellant v. United States. CCA 200900010. Notice is hereby given that a writ-appeal petition for review of the United States Navy-Marine Corps Court of Criminal Appeals decision on application for extraordinary relief in the nature of a writ of error coram nobis was filed under Rule 27(b) on this date.

 

INTERLOCUTORY ORDERS

 

No. 13-0573/AR. U.S. v. Calvin J. DAVENPORT. CCA 20081102. Appellant's motion to extend time to file a brief and a joint appendix granted, up to and including February 28, 2014, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 14-0071/AR. U.S. v. Travis D. JONES. CCA 20110679. Appellant's motion to extend time to file a brief granted, up to and including February 21, 2014, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 14-0230/AR. U.S. v. Samuel R. SPOTTS. CCA 20111144. Appellant's motion for an extension of time to file a brief and a joint appendix granted, up to and including February 28, 2014, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 14-0277/MC. U.S. v. Ronald MURPHY. CCA 201300100. Appellant's motion to file the supplement to the petition for grant of review out of time is granted.

 

No. 14-0356/AR. U.S. v. Steven G. HOWSAM. CCA 20120205. Appellant's motion to extend time to file the supplement to the petition for grant of review granted, but only up to and including February 27, 2014, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 14-0370/AF. U.S. v. Michael W. GLEISER. CCA 38155. Appellant's second motion to extend time to file the supplement to the petition granted, but only up to and including March 5, 2014, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 14-0371/AF. U.S. v. Larry M. PALMER III. CCA 38184. Appellant's second motion to extend time to file the supplement to the petition for grant of review granted, but only up to and including March 4, 2014, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 14-0406/AR. U.S. v. Patrick A. WRIGHT. CCA 20121075. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 4, 2014.

 

No. 14-0409/AF. U.S. v. Stephan H. CLAXTON. CCA 38188. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 10, 2014.

 

No. 14-0410/AF. U.S. v. Adam D. YUNDT. CCA 38059. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 10, 2014.

 

No. 14-0411/AF. U.S. v. Joseph W. YANEZ. CCA 38181. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 10, 2014.

 

No. 14-0413/AF. U.S. v. Jason A. PATE. CCA 38250. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 10, 2014.

 

No. 14-0414/AR. U.S. v. John P. YOUNG. CCA 2010456. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 6, 2014.

 

No. 14-0415/AR. U.S. v. William E. NEWTON, Jr. CCA 20110499. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 6, 2014.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-106

Tuesday, February 18, 2014

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0265/CG. U.S. v. Jaason LEAHR. CCA 1365. Review granted on the following issues:

 

I. WHETHER THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTION TO DISMISS FOR VIOLATION OF APPELLANT'S RIGHT TO SPEEDY TRIAL UNDER RCM 707.

 

II. WHETHER THE GOVERNMENT'S WITHDRAWAL OF CHARGES AND RE-REFERRAL TO ANOTHER COURT-MARTIAL WAS IN VIOLATION OF RCM 604(b) BECAUSE THEY WERE PREVIOUSLY WITHDRAWN FOR AN IMPROPER REASON.

 

III. WHETHER APPELLANT WAS DENIED A FAIR TRIAL WHEN THE MILITARY JUDGE TWICE SUGGESTED IN FRONT OF THE MEMBERS THAT APPELLANT WAS GUILTY, FIRST BY "THANKING" A WITNESS FOR HIS EFFORTS TO PROTECT THE VICTIM, AND THEN BY ASKING DEFENSE COUNSEL BEFORE FINDINGS WHETHER A WITNESS WOULD BE SUBJECT TO RECALL AS A "SENTENCING WITNESS."

 

Briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0070/AF. U.S. v. Erica N. PERRY. CCA 37676.

No. 13-0500/AF. U.S. v. Edward W. GUSSMAN. CCA 38048.

No. 14-0008/AF. U.S. v. Adrian G. LARA. CCA 37861.

No. 14-0202/AR. U.S. v. Steven F. MICHALKE. CCA 20111043.

No. 14-0209/AR. U.S. v. Roy L. STIFF, Jr. CCA 20110534.

No. 14-0223/AR. U.S. v. Daniel A. DEMARSH. CCA 20110088.

No. 14-0229/AF. U.S. v. Andrew C. CERTA. CCA 38037.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0407/AF. U.S. v. Patrick D. QUINSLAND. CCA 38335.

No. 14-0408/AR. U.S. v. Luis RODRIGUEZ III. CCA 20120063.

No. 14-0409/AF. U.S. v. Stephan H. CLAXTON. CCA 38188.

No. 14-0410/AF. U.S. v. Adam D. YUNDT. CCA 38059.

No. 14-0411/AF. U.S. v. Joseph W. YANEZ. CCA 38181.

No. 14-0412/AF. U.S. v. Jude N.J. PARSONS. CCA S32109.

No. 14-0413/AF. U.S. v. Jason A. PATE. CCA 38250.

No. 14-0414/AR. U.S. v. John P. YOUNG. CCA 20110456.

No. 14-0415/AR. U.S. v. William E. NEWTON, Jr. CCA 20110499.

 

MISCELLANEOUS DOCKET - FILINGS

 

Misc. No. 14-8012/CG. United States, Appellant v. Christine N. Cutter, Captain, U.S. Coast Guard, Military Judge, Appellee and William R. Bisel, Aviation Maintenance Technician Third Class sssU.S. Coast Guard, Real Party In Interest. CCA 001-14. Notice is hereby given that a writ-appeal petition for review of the United States Coast Guard Court of Criminal Appeals decision on application for extraordinary relief in the nature of a writ of mandamus was filed by the United States under Rule 27(b) on this date.

 

MANDATES ISSUED

 

No. 13-0348/AR. U.S. v. Amanda M. MOSS. CCA 20110337.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-105

Wednesday, February 12, 2014

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 14-5001/AR. U.S. v. Joshua R. SICKELS. CCA 20110110. On consideration of the issue certified by the Judge Advocate General of the Army, 73 M.J. __ (C.A.A.F. Oct. 16, 2013), concerning ineffective assistance of counsel in the sentencing phase of this child sexual assault court-martial, we note that Appellee faced a maximum sentence including confinement for life without parole and that the approved sentence includes that severe punishment. We also note that both the civilian and military defense counsel failed to: (1) interview or call as witnesses former supervisors who assert that they would have offered favorable testimony; (2) offer any evidence of Appellee's bravery in combat; (3) present any documentation of Appellee's personal decorations and other awards; and (4) offer any other evidence in extenuation or mitigation. See generally United States v. Boone, 49 M.J. 187 (C.A.A.F. 1998). Accordingly, we conclude that the United States Army Court of Criminal Appeals did not err when it held that the trial defense team's investigation and presentation of a sentencing case was ineffective. Accordingly, it is ordered that the certified issue is answered in the negative and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0403/AR. U.S. v. Jejuan K. WILLIAMS, Jr. CCA 20130238.

No. 14-0404/AR. U.S. v. Robert D. GEORGE. CCA 20120152.

No. 14-0405/MC. U.S. v. Benjamin D. MORRIS. CCA 201300269.

No. 14-0406/AR. U.S. v. Patrick A. WRIGHT. CCA 20121075.

 

INTERLOCUTORY ORDERS

 

No. 14-0364/AR. U.S. v. Keith A. JACKSON. CCA 20120026. Appellant's second motion to extend time to file the supplement to the petition for grant of review granted, up to and including February 26, 2014, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

 

No. 14-0401/NA. U.S. v. Richard M. PAYNE. CCA 201200477. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 3, 2014.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-104

Tuesday, February 11, 2014

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0314/AR. U.S. v. Benjamin S. HOLLOWAY. CCA 20120615.

No. 14-0318/AR. U.S. v. Gregory S. SWINTON. CCA 20130182.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0401/NA. U.S. v. Richard M. PAYNE. CCA 201200477.

No. 14-0402/AR. U.S. v. Samuel A. MOREL-LOZADA. CCA 20120276.

 

INTERLOCUTORY ORDERS

 

No. 14-0341/AR. U.S. v. Joshua K. BASS. CCA 20130546. Appellant's second motion to extend time to file the supplement to the petition for grant of review granted, up to and including February 25, 2014, 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. 14-103

Monday, February 10, 2014

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0183/AF. U.S. v. Desmond L. GILL. CCA S32128.

No. 14-0272/AR. U.S. v. Sergio URIBE. CCA 20130223.

No. 14-0292/AF. U.S. v. Joshua C. BOLTON. CCA 38259.

No. 14-0315/AR. U.S. v. Stanley A. JOSEY. CCA 20120907.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0398/AF. U.S. v. Herbert T. MULLENS III. CCA 38278.

No. 14-0399/AF. U.S. v. Casey K. FLETCHER. CCA S32077.

No. 14-0400/AR. U.S. v. Dustin E. WILLIAMS. CCA 20120557.

 

MISCELLANEOUS DOCKET - FILINGS

 

Misc. No. 14-8011/AR. John Edmond HATLEY, Appellant v. United States, Appellee. CCA 20131070. Notice is hereby given that a writ appeal petition for review of the United States Army Court of Criminal Appeals decision on application for extraordinary relief in the nature of a writ of habeas corpus was filed under Rule 27(b) on this date.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-102

Friday, February 7, 2014

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 13-0329/AR. U.S. v. Slade MCKIM-BURWELL. CCA 20120719.  On further consideration of the granted issues, 72 M.J. 389 (C.A.A.F. 2013) (order granting review), and in view of United States v. Warner, 73 M.J. 1 (C.A.A.F. 2013), it is ordered that the judgment of the United States Army Court of Criminal Appeals is reversed as to Specification 2 of the Charge and the sentence. The finding of guilty as to Specification 2 of the Charge is set aside and the specification is dismissed.  The judgment as to the remaining findings is affirmed. The record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals to reassess the sentence.*

 

* BAKER, Chief Judge (dissenting):

 

I dissent from the dismissal of Specification 2 of the Charge. In my view, the charged conduct in this case is distinct from both the majority and dissenting positions in United States v. Warner, 73 M.J. 1 (C.A.A.F. 2013), for two reasons. First, the Specification 2 images depict children as completely nude in contrast to Appellant's brief which describes them as merely depicting "minors posing while wearing revealing clothes or while partially nude." (Reply Brief at 6). Second, several of these images directly expose the genitalia and pubic region of the children. This is unlike Warner, where none of the images consisted of completely nude children with exposed genitalia. Thus, on the basis of these factors, I do not find Warner dispositive. Moreover, the majority has not explained why Appellant was not on notice that the possession of images of nude children, including some with their genitalia exposed, was subject to criminal sanction. See 73 M.J. at 4 (Baker, C.J., dissenting).

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0217/AR. U.S. v. Michael J. TILLER. CCA 20120358.

No. 14-0300/AF. U.S. v. Cameron S. GILOW. CCA S32094.

No. 14-0308/AR. U.S. v. Richard W. CURTICIAN. CCA 20120456.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0394/AR. U.S. v. Richard A. BOURNE. CCA 20120481.

No. 14-0395/AR. U.S. v. Michael D. HUDSON. CCA 20121008.

No. 14-0396/AR. U.S. v. Tyrell D. MACK. CCA 20120247.

No. 14-0397/AR. U.S. v. Joshua A. PHENIX. CCA 20111108.

 

INTERLOCUTORY ORDERS

 

No. 14-0183/AF. U.S. v. Desmond L. GILL. CCA S32128. Appellant's motion to attach documents is denied.

 

No. 14-0336/AR. U.S. v. Dylan P. STAHL. CCA 20120664. Appellant's motion to extend time to file the supplement to the petition for grant of review granted, but only up to and including February 21, 2014, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 14-0338/AR. U.S. v. Christopher D. BIRDSONG. CCA 20110440. Appellant's second motion to extend time to file the supplement to

the petition for grant of review granted, up to and including February 21, 2014, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 14-0392/CG. U.S. v. Benjamin J. RUSSELL. CCA 1368. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to February 26, 2014.

 

No. 14-8004/AF. U.S. v. Samuel LOFTON III. CCA 2011-10. Appellee's motion to submit documents in response to the Court's order is granted.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-101

Thursday, February 6, 2014

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0200/AF. U.S. v. Kemuel W. SAMUELS. CCA S32060.

No. 14-0253/AR. U.S. v. Vincent P. MALLETT. CCA 20111025.

No. 14-0267/AR. U.S. v. Michael L. ALVAREZ. CCA 20120368.

No. 14-0310/AR. U.S. v. Carlton Z. VAZQUEZ. CCA 20120109.

 

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0392/CG. U.S. v. Benjamin J. RUSSELL. CCA 1368.

No. 14-0393/AR. U.S. v. Ry-feal D. CHAMBERS. CCA 20121160.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-100

Wednesday, February 5, 2014

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0033/AF. U.S. v. Anthony L.W. PEACOCK. CCA 38043. Review granted on the following issue:

 

WHETHER THE COURT OF CRIMINAL APPEALS PANEL THAT REVIEWED THIS CASE WAS PROPERLY CONSTITUTED.

 

No briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0388/AR. U.S. v. Cameron A. TURNER. CCA 20120504.

No. 14-0389/AR. U.S. v. Robert S. JENKS. CCA 20111122.

No. 14-0390/AR. U.S. v. Ronald W. PERRY. CCA 20120815.

No. 14-0391/AR. U.S. v. Ashlee N. BERRY. CCA 20120085.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-099

Tuesday, February 4, 2014

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 14-0242/AR. U.S. v. Steve A. FRASIER. CCA 20120744. Review granted on the following issue:

 

APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN THE POST-TRIAL PHASE OF HIS COURT-MARTIAL WHEN TRIAL DEFENSE COUNSEL FAILED TO REQUEST DEFERRAL OF FORFEITURES AND REDUCTION IN GRADE ON APPELLANT'S BEHALF.

 

The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further appellate inquiry of the granted issue. The Court of Criminal Appeals will obtain an affidavit from trial defense counsel that responds to Appellant's allegation of ineffective assistance of counsel. Under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C.  866(c) (2006), the Court of Criminal Appeals shall review the ineffective assistance of counsel issue in light of the affidavit and any other relevant matters. See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). If the court determines that a fact-finding hearing is necessary, that court shall order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Once the necessary information is obtained, the court will complete its Article 66(c), UCMJ, review. Thereafter, Article 67, UCMJ, 10 U.S.C.  867 (2006), shall apply.  [See also ORDERS GRANTING PETITION FOR REVIEW this date.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0242/AR. U.S. v. Steve A. FRASIER. CCA 20120744.  [See also APPEALS-SUMMARY DISPOSITIONS this date.]

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0162/AF. U.S. v. Michael T. BROWN. CCA 38158.

No. 14-0284/AF. U.S. v. Jeremy R. SANCHEZ. CCA S32096.

No. 14-0304/AR. U.S. v. Christopher R. WEBB. CCA 20130466.

No. 14-0305/NA. U.S. v. Grady W. NATIONS. CCA 201200524.

No. 14-0307/AR. U.S. v. Luis A. CASTILLO. CCA 20121111.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0385/AF. U.S. v. Jeffrey S. WEBSTER. CCA S32176.

No. 14-0386/AF. U.S. v. Paul R. SMITH. CCA 38157.

No. 14-0387/AF. U.S. v. Devin P. KELLEY. CCA 38267.

 

INTERLOCUTORY ORDERS

 

No. 14-0384/AF. U.S. v. Patrick J. HUEY, Jr. CCA 38139. Appellant's motion to extend time to file the supplement to the petition for grant of review granted February 24, 2014.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-098

Monday, February 3, 2014

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0729/AR. U.S. v. Dean T. BULLOCK. CCA 20121078.

No. 14-0049/AR. U.S. v. Robert A. WARREN. CCA 20100914.

No. 14-6002/AF. U.S. v. Ronnie S. MOBLEY, Jr. CCA 2013-21.

 

PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS

 

No. 14-6001/NA. U.S. v. Taylor R. JANOWIAK. CCA 201300246. On consideration of Appellee's motion for leave to file an answer to the petition for grant of review out of time and Appellant's motion to dismiss the petition for grant of review, it is ordered that said motion to dismiss the petition for grant of review is hereby granted, and said motion for leave to file an answer to the supplement to the petition for grant of review out of time is hereby denied as moot.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0379/AR. U.S. v. Vincent J. UMHOLTZ. CCA 20111013.

No. 14-0380/NA. U.S. v. Lee E. PARRETT. CCA 201300197.

No. 14-0381/AF. U.S. v. Ryan P. EVANS. CCA 38218.

No. 14-0382/AF. U.S. v. Marcus C. DANIELS. CCA S32105.

No. 14-0383/AF. U.S. v. Michael B. WITTMAN. CCA 38135.

No. 14-0384/AF. U.S. v. Patrick J. HUEY, Jr. CCA 38139.

 

MISCELLANEOUS DOCKET - FILINGS

 

Misc. No. 14-8010/NA. L.C., Midshipman, U.S. Navy, Appellant v. Daniel J. Daugherty, Colonel, USMC (in his official capacity as Military Judge), Appellee, Joshua L. Tate Midshipman, U.S. Navy, Real Party in Interest. CCA 201400044. Notice is hereby given that a writ-appeal petition for review of the United States Navy-Marine Corps Court of Criminal Appeals decision on application for extraordinary relief was filed under Rule 27(b) on this date.

 

INTERLOCUTORY ORDERS

 

No. 13-7001/AR. U.S. v. Hasan K. AKBAR. CCA 20050514. On consideration of Appellant's motion to file a brief in excess of fifty pages, Appellant's motion to attach defense appellate exhibits PPP-AAAA, the motion of the National Association of Criminal Defense Lawyers (NADCL) for leave to file an amicus curiae brief in support of Appellant, Appellant's motion to substitute a corrected Appendix B, the motion of Andrea D. Lyon, Esq., to appear pro hac vice and to participate in oral argument, Appellant's motion to consider Grostefon matters out of time, and Appellant's motion to attach supplemental exhibits in support of his supplement to file a brief in excess of fifty pages, the said motions to file an amicus curiae brief in support of Appellant, to substitute a corrected Appendix B, that part of Ms. Lyon's motion to appear pro hac vice, and to attach supplemental exhibits in support of the request to file a brief in excess of fifty pages are granted; the part of Ms. Lyon's motion to participate in oral argument and Appellant's motion to consider Grostefon matters out of time are denied; the motion to attach defense appellate exhibits PPP-AAAA is granted as to exhibits SSS, TTT, UUU, VVV, WWW, XXX, and ZZZ, and is denied as to PPP, YYY, and AAAA. As for exhibits QQQ and RRR, the motion is granted, but only for the purpose of evaluating Assignment of Error B.II. Exhibits QQQ and RRR will not be considered for the purpose of providing substantive evidence of Appellant's claim of ineffective assistance of counsel; and the motion to file a brief in excess of fifty pages is granted, but only up to 250 pages.

 

Appellant will resubmit his brief in compliance with this Order within 30 days. Appellee will submit its brief, also not to exceed 250 pages, within 60 days of the filing of Appellant's brief. Appellant may file a reply brief, not to exceed 50 pages, within 30 days of the filing of Appellee's brief. A new Joint Appendix will not be filed. The Court will use the Joint Appendix previously filed. Requests for further extensions of time or expansion of page limits will not be granted.

 

After all pleadings have been submitted, Appellant and Appellee are directed to seek agreement on the issues to be heard at oral argument, and to inform the Court of those issues. If no agreement can be reached, the parties will so advise the Court within 10 days of the date of the filing of the last pleading, and the Court will resolve any differences. Oral argument will be scheduled at the outset of the September 2014 Term of Court. Each side will be allotted one hour for oral argument.

 

No. 14-0114/NA. U.S. v. Justin H. MCMURRIN. CCA 200900475. Appellee's motion for leave to file a ten-day letter out of time is denied.

 

No. 14-0323/AR. U.S. v. Carlos S. CAICEDO. CCA 20110833. Appellant's second motion to extend time to file the supplement granted, up to and including February 18, 2014, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 


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