UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Friday, February 27, 2015

 

Petitions for Grant of Review Filed

 

No. 15-0396/AF. U.S. v. Allen R. Henderson. CCA 38379.

No. 15-0397/AR. U.S. v. Fatimah H. Diaab-Powell. CCA 20130846.

No. 15-0398/AR. U.S. v. Maurice McCormick, Jr. CCA 20120029.

 

Interlocutory Orders

 

No. 15-0284/AF. U.S. v. James E. Burke III. CCA S32137. On consideration of Appellee's motion to dismiss the petition for grant of review for lack of jurisdiction, it is ordered that the petition for grant of review is hereby dismissed without prejudice to Appellant's right to file a petition for grant of review on a subsequent date.

 

No. 15-0288/AF. U.S. v. Brandon C. Thomas, Jr. CCA S32163. On consideration of Appellant's motion for leave to file a petition out of time, Appellee's motion to dismiss Appellant's petition for lack of jurisdiction, and Appellee's motion to attach, and in light of United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009), cert. denied, 558 U.S. 969 (2009), it is ordered that Appellant's motion for leave to file a petition out of time is hereby denied without prejudice to filing a writ of error coram nobis at the United States Air Force Court of Criminal Appeals (see Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008), aff'd, 556 U.S. 904 (2009)); Appellee's motion to dismiss the petition for grant of review for lack of jurisdiction and motion to attach are hereby denied as moot.

 

BAKER, Chief Judge (dissenting):

 

I dissent to the denial of Appellant's motion for leave to file his petition for grant of review out of time based on my dissenting opinion in United States v. Rodriguez, 67 M.J. 110, 120-26 (C.A.A.F. 2009) (Baker, J., dissenting).

 

No. 15-0395/AR. U.S. v. Jefferey M. Fiorito. CCA 20080535. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 18, 2015.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Thursday, February 26, 2015

 

Petitions for Grant of Review Filed

 

No. 15-0394/AR. U.S. v. Aaron M. Hill. CCA 20140635.

No. 15-0395/AR. U.S. v. Jefferey M. Fiorito. CCA 20080535.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Wednesday, February 25, 2015

 

Petitions for Grant of Review Filed

 

No. 15-0392/MC. U.S. v. Nicolas Vega, Jr. CCA 20130000277.

No. 15-0393/AR. U.S. v. James R. Lawson. CCA 20130317.

 

Petitions for Grant of Review Denied

 

No. 15-0121/AR. U.S. v. Steven J. Spencer. CCA 20120165.

No. 15-0147/AR. U.S. v. Lucas J. Shakespeare. CCA 20130622.

No. 15-0238/AF. U.S. v. Myranda I. Decker. CCA S32173.

No. 15-0272/AR. U.S. v. Christian M. Lopezmorales. CCA 20130502.

No. 15-0320/AR. U.S. v. Kevin W. Barrington. CCA 20130705.

 

Petitions for Grant of Review - Summary Dispositions

 

No. 15-0239/AR. U.S. v. Joshua C. Hudsoncurrier. CCA 20110737. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we agree with Appellant's personally-asserted contention that the Government failed to prove the existence of an agreement to commit the offense of aggravated assault. Accordingly, it is ordered that said petition is granted on the following issue:

 

WHETHER THE EVIDENCE OF CONSPIRACY TO COMMIT AGGRAVATED ASSAULT IS LEGALLY SUFFICIENT.

 

The decision of the United States Army Court of Criminal Appeals is reversed as to Charge I and its Specification. The findings of guilty as to Charge I and its Specification are set aside and that charge and specification are dismissed. The remaining findings are affirmed. Inasmuch as Appellant suffered no prejudice as to his sentence because the military judge merged the conspiracy charge with the underlying aggravated assault charge for sentencing purposes, the sentence is affirmed.

 

Interlocutory Orders

 

No. 15-0059/NA. U.S. v. Darron D. Ward, Jr. CCA 201400021. Appellee's motion for leave to file a corrected brief is granted.

 

No. 15-0369/MC. Raymion E. Richards v. William R. Lieblein and Robert F. Hedelund. Appellant's motion to file a substitute brief with redacted appendix and Appellant's motion to correct errata are granted.

 

No. 15-0392/MC. U.S. v. Nicolas Vega, Jr. CCA 20130000277. Appellant's motion to extend the time to file the supplement to the petition for grant of review is granted to March 17, 2015.

 

Hearings

 

No. 14-0744/NA. U.S. v. Allyssa K. Simmermacher. CCA 201300129.

No. 14-0783/NA. U.S. v. Marshand A. Woods. CCA 201300153.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Tuesday, February 24, 2015

 

Petitions for Grant of Review Filed

 

No. 15-0389/AR. U.S. v. Justin R. Colby. CCA 20130274.

No. 15-0390/AR. U.S. v. Kye C. Womack. CCA 20140345.

No. 15-0391/AR. U.S. v. Luis R. Corral. CCA 20121031.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Monday, February 23, 2015

 

Petitions for Grant of Review Filed

 

No. 15-0384/CG. U.S. v. Christopher S. Cooley. CCA 1389.

No. 15-0385/AR. U.S. v. Henry D. Smith. CCA 20140243.

No. 15-0386/AR. U.S. v. Ferguson J. Marcelle. CCA 20130339.

No. 15-0388/AR. U.S. v. Arthur J. Garry, Jr. CCA 20130983.

 

Petitions for Grant of Review Denied

 

No. 15-0256/AR. U.S. v. Rashad J. Valmont. CCA 20110644.

No. 15-0264/MC. U.S. v. Christopher L. Olcott. CCA 201300228.

No. 15-0324/AR. U.S. v. Evan A. Theoharis. CCA 20140382.

No. 15-0325/AR. U.S. v. Arnold Medellin, Jr. CCA 20130814.

 

Certificates for Review Filed

 

No. 15-0387/CG. U.S. v. Christopher S. Cooley. CCA 1389. Notice is hereby given that a certificate for review of the decision of the United States Coast Guard Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

 

WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT PRE-TRIAL CONFINEMENT CAN SERVE AS PER SE PREJUDICE FOR PURPOSES OF DETERMINING A VIOLATION OF ARTICLE 10, UNIFORM CODE OF MILITARY JUSTICE.

 

WHETHER THE FACTS AND CIRCUMSTANCES OF APPELLEE'S CASE, CONSIDERING THE FACTORS SET OUT IN BARKER V. WINGO, 407 U.S. 514, 530 (1972) AND APPLIED TO REVIEW OF ARTICLE 10 BY UNITED STATES V. BIRGE, 52 M.J. 209, 212 (C.A.A.F. 1999), AMOUNT TO A VIOLATION OF ARTICLE 10, UNIFORM CODE OF MILITARY JUSTICE.

 

Miscellaneous Docket - Summary Dispositions

 

No. 15-0295/AR. U.S. v. Kevin D. Washington. CCA 20140826. On consideration of the writ-appeal petition, it is ordered that said writ-appeal petition is hereby denied.

 

Interlocutory Orders

 

No. 15-0225/AR. U.S. v. Neftaly Platero. CCA 20120620. On consideration of Appellant's third motion to extend time to file the supplement to the petition for grant of review, it is ordered that said motion is hereby granted to March 27, 2015, and in the absence of extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 15-0260/AF. U.S. v. Andrew P. Witt. CCA 36785. Appellant's motion to extend time to file a brief granted to March 25, 2015.

 

No. 15-0357/MC. U.S. v. Levon Tyler. CCA 201200327. Appellant's second motion to extend time to file the supplement to the petition for grant of review granted, up to and including March 17, 2015.

 

No. 15-0383/MC. U.S. v. Edmund R. Gallegos. CCA 201300391. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 12, 2015.

 

No. 15-0384/CG. U.S. v. Christopher S. Cooley. CCA 1389. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 16, 2015.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Friday, February 20, 2015

 

Petitions for Grant of Review Filed

 

No. 15-0381/MC. U.S. v. Stephen M. Box. CCA 201400147.

No. 15-0382/AF. U.S. v. Jessica M. Combs. CCA S32216.

No. 15-0383/MC. U.S. v. Edmund R. Gallegos. CCA 201300391.

 

Petitions for Grant of Review Denied

 

No. 14-0054/AF. U.S. v. Sharmaine L. Latham. CCA 38107.

 

Interlocutory Orders

 

No. 14-0054/AF. U.S. v. Sharmaine L. Latham. CCA 38107. Appellant's motion to attach documents is denied.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Thursday, February 19, 2015

 

Petitions for Grant of Review Filed

 

No. 15-0377/NA. U.S. v. Nestor L. Suazo-Lopez. CCA 201300463.

No. 15-0378/AR. U.S. v. Thomas A. Bousman. CCA 20140781.

No. 15-0379/AR. U.S. v. Dakota L. Campbell. CCA 20140505.

No. 15-0380/AR. U.S. v. William E. Freschman. CCA 20140221.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Wednesday, February 18, 2015

 

Petitions for Grant of Review Filed

 

No. 15-0371/NA. U.S. v. Kevin C. Corcoran. CCA 201400074.

No. 15-0372/NA. U.S. v. Pedro M. Bess. CCA 201300311.

No. 15-0373/AR. U.S. v. Michael A. Hoss. CCA 20120086.

No. 15-0374/AF. U.S. v. Jose F. Oropeza, Jr. CCA 38413.

No. 15-0375/AR. U.S. v. Warren L. Lawrence. CCA 20130678.

No. 15-0376/AR. U.S. v. Gregory A. Rice. CCA 20100678.

 

Petitions for Grant of Review Denied

 

No. 15-0110/AR. U.S. v. Kody D. Schenk. CCA 20120122.

No. 15-0192/MC. U.S. v. Eric D. Raines. CCA 201400027.

No. 15-0248/AF. U.S. v. Joseph M. Ward III. CCA 38376.

No. 15-0259/NA. U.S. v. John F. Doyle III. CCA 201300442.

No. 15-0304/AR. U.S. v. David A. Smith. CCA 20121092.

No. 15-0305/AR. U.S. v. Jonathon V. Johnson. CCA 20131016.

No. 15-0306/AR. U.S. v. Justin E. Dickey. CCA 20140212.

No. 15-0316/AR. U.S. v. Luke E. Joseph. CCA 20140383.

No. 15-0317/MC. U.S. v. Adam S. Bennett. CCA 201400281.

 

Interlocutory Orders

 

No. 15-0059/NA. U.S. v. Darron D. Ward, Jr. CCA 201400021. On consideration of Appellant's motion for leave to file and motion to file a corrected brief, and motion for leave to file and motion to file a substitute joint appendix, it is ordered that said motions are hereby granted.

 

No. 15-0370/AR. U.S. v. Christopher A. Bogus. CCA 20130224. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 5, 2015.

 

No. 15-0371/NA. U.S. v. Kevin C. Corcoran. CCA 201400074. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 10, 2015.

 

No. 15-0372/NA. U.S. v. Pedro M. Bess. CCA 201300311. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 10, 2015.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Friday, February 13, 2015

 

Petitions for Grant of Review Filed

 

No. 15-0370/AR. U.S. v. Christopher A. Bogus. CCA 20130224.

 

Miscellaneous Docket Filings

 

No. 15-0369/MC. Raymion E. Richards, Appellant v. Robert F. Hedelund, Major General, U.S. Marine Corps and William R. Lieblein, Colonel, U.S. Marine Corps, Appellees. Notice is hereby given that a writ-appeal petition was filed under Rule 27(b) on this date. Appellees will file an answer no later than 10 days after the date of this notice.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Thursday, February 12, 2015

 

Petitions for Grant of Review Filed

 

No. 15-0365/AR. U.S. v. Joshua A. Hauser. CCA 20130734.

No. 15-0366/AR. U.S. v. Cory A. Stellmach. CCA 20140485.

No. 15-0367/AR. U.S. v. Scott A. Bollinger. CCA 20120376.

No. 15-0368/AR. U.S. v. David A. Lopez. CCA 20100457.

 

Petitions for Grant of Review Denied

 

No. 15-0086/AR. U.S. v. Kareem A. Ransom. CCA 20130658.

No. 15-0222/AR. U.S. v. Jamel E. Greene. CCA 20120805.

No. 15-0267/NA. U.S. v. Adam C. Terral. CCA 201300273.

 

Miscellaneous Docket - Summary Dispositions

 

No. 15-0258/AR. U.S. v. Ricardo Gonzales. CCA 20140620. On consideration of the writ-appeal petition, it is ordered that said petition is hereby denied.

 

Orders Granting Petition for Review

 

No. 15-0206/NA. U.S. v. Jeffrey F. Morris. CCA 201300348. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

DOES IMAGE 106470 IN PROSECUTION EXHIBIT 2 CONSTITUTE CHILD PORNOGRAPHY UNDER UNITED STATES v. WARNER, 73 M.J. 1 (C.A.A.F. 2013)?

 

No briefs will be filed under Rule 25.

 

Interlocutory Orders

 

No. 14-0783/NA. U.S. v. Marshand A. Woods. CCA 201300153. Appellee's motion to substitute a corrected brief is granted.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Wednesday, February 11, 2015

 

Petitions for Grant of Review Denied

 

No. 13-0498/AF. U.S. v. Christopher J. Martin. CCA S32035.

No. 15-0078/AF. U.S. v. Charles B. Eichelberger. CCA 38318.

No. 15-0123/AR. U.S. v. Timothy J. Pherigo. CCA 20140032.

No. 15-0226/AF. U.S. v. Anthony D. Daniels, Jr. CCA 38371.

No. 15-0243/AF. U.S. v. Jonathan J. Arma. CCA 2014-09.

No. 15-0250/AF. U.S. v. Nathaniel A. Tessner. CCA 38514.

 

Appeals Summary Dispositions

 

No. 14-0491/AR. U.S. v. Jacob T. Nemeth. CCA 20120653. On consideration of the granted issue, the judgment of the United States Army Court of Criminal Appeals, United States v. Nemeth, No. 20120653 (A. Ct. Crim. App. Mar. 7, 2014), and the judgment of this Court in United States v. Phillips, No. 14-0199/AR (C.A.A.F. Jan. 6, 2015), we conclude that Appellant is not entitled to have his guilty plea to disobeying the order of his superior commissioned officer under Article 90, UCMJ, 10 U.S.C. 890 (2012), set aside. Appellant did not establish "a substantial basis in law or fact for questioning the guilty plea." United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). He failed to produce evidence that his company commander issued the restriction order for the sole purpose of increasing the penalty that would apply if Appellant violated the restriction order. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is hereby affirmed.

 

No. 14-0505/AR. U.S. v. Martin L. Carroll. CCA 20111158. On consideration of the granted issue, the judgment of the United States Army Court of Criminal Appeals, United States v. Carroll, No. 20111158 (A. Ct. Crim. App. Feb. 28, 2014), and the judgment of this Court in United States v. Phillips, No. 14-0199/AR (C.A.A.F. Jan. 6, 2015), we conclude that Appellant is not entitled to have his guilty plea to disobeying the order of his superior commissioned officer under Article 90, UCMJ, 10 U.S.C. 890 (2012), set aside. Appellant did not establish "a substantial basis in law or fact for questioning the guilty plea." United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). He failed to produce evidence that his company commander issued the restriction order for the sole purpose of increasing the penalty that would apply if Appellant violated the restriction order. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is hereby affirmed.

 

No. 14-0558/AR. U.S. v. Aaron D. Amaya. CCA 20120406. On consideration of the granted issue, and the judgment of the United States Army Court of Criminal Appeals, United States v. Amaya, No. 20120406 (A. Ct. Crim. App. Feb. 24, 2014), we conclude that the military judge granted Appellant the relief to which he was entitled by reducing the maximum punishment for disobeying an order not to travel outside the limits of Fort Richardson, under Article 92, UCMJ, 10 U.S.C. 892 (2008), to that authorized for breaking restriction under Article 134, UCMJ, 10 U.S.C. 934 (2008). See Manual for Courts Martial, United States pt. IV, 16.e. Note (2008 ed.). Therefore, it is ordered that the judgment of the United States Court of Criminal Appeals is hereby affirmed.

 

No. 14-0619/AR. U.S. v. Aaron J. Twinam. CCA 20120384. On consideration of the granted issue, and the judgment of the United States Army Court of Criminal Appeals, United States v. Twinam, No. 20120384 (A. Ct. Crim. App. Mar. 7, 2014), we conclude that Appellant is not entitled to relief. The maximum punishment for violations of Article 92, UCMJ, 10 U.S.C. 892 (2008), does not apply "if the violation of failure to obey is a breach of restraint imposed as a result of an order." Manual for Courts-Martial, United States pt. IV, 16.e. Note (2008 ed.) Although the military judge did not note that he was limiting the maximum punishment for the Article 92 offense, the maximum punishment did not change. Article 19, UCMJ, 10 U.S.C. 819 (2012) (setting the statutory maximum confinement that can be imposed by a special court-martial at one year). Appellant pled guilty to desertion, numerous AWOLs and failures to go, wrongful use of cocaine and marijuana, and larceny of computer materials with a value greater than $500. Articles 85, 86, 112a, 121, UCMJ, 10 U.S.C. 885, 886, 912a, 921 (2008). The maximum punishment for these offenses, separate from any Article 92 offense, exceeded the statutory jurisdiction of the special court-martial. The convening authority, acting in accord with the pretrial agreement, disapproved Appellant's sentence to confinement in excess of four months. Accordingly, under the circumstances of this case, the military judge's omission "did not substantially influence the sentence and materially prejudice Appellant's substantial rights." United States v. St. Blanc, 70 M.J. 424, 430 (C.A.A.F. 2012) (citing Article 59(a), UCMJ, 10 U.S.C. 859(a) (2006)). Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is hereby affirmed.

 

No. 14-0650/AR. U.S. v. Kenneth E. Hagstrom. CCA 20121058. On consideration of the granted issue, the judgment of the United States Army Court of Criminal Appeals, United States v. Hagstrom, No. 20121058 (A. Ct. Crim. App. May 27, 2014), and the judgment of this Court in United States v. Phillips, No. 14-0199/AR (C.A.A.F. Jan. 6, 2015), we conclude that Appellant is not entitled to have his guilty plea to disobeying the order of his superior commissioned officer under Article 90, UCMJ, 10 U.S.C. 890 (2012), set aside. Appellant did not establish "a substantial basis in law or fact for questioning his guilty plea." United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). He failed to produce evidence that his company commander issued the order requiring him to sign in at the Charge of Quarters desk for the sole purpose of increasing the penalty that would apply if Appellant failed to do so. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is hereby affirmed.

 

No. 15-0048/AR. U.S. v. Joshua R. Baker. CCA 20120839. On consideration of the granted issue, the judgment of the United States Army Court of Criminal Appeals, United States v. Baker, No. 20120839 (A. Ct. Crim. App. Aug. 27, 2014), and the judgment of this Court in United States v. Phillips, No. 14-0199/AR (C.A.A.F. Jan. 6, 2015), we conclude that Appellant is not entitled to have his guilty plea to disobeying the order of his superior commissioned officer under Article 90, UCMJ, 10 U.S.C. 890 (2012), set aside. Appellant did not establish "a substantial basis in law or fact for questioning his guilty plea." United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). He failed to produce evidence that the superior commissioned officer issued the restriction order for the sole purpose of increasing the penalty that would apply if Appellant violated the restriction order. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is hereby affirmed.

 

No. 15-0116/AR. U.S. v. Derrick L. Hardy. CCA 20120816. On consideration of the granted issue, the judgment of the United States Army Court of Criminal Appeals, United States v. Hardy, No. 20120816 (A. Ct. Crim. App. Aug. 13, 2014), and the judgment of this Court in United States v. Phillips, No. 14-0199/AR (C.A.A.F. Jan. 6, 2015), we conclude that Appellant is not entitled to have his guilty plea to disobeying the order of his superior commissioned officer under Article 90, UCMJ, 10 U.S.C. 890 (2012), set aside. Appellant did not establish "a substantial basis in law or fact for questioning his guilty plea." United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). He failed to produce evidence that the superior commissioned officer issued the restriction order for the sole purpose of increasing the penalty that would apply if Appellant violated the restriction order. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is hereby affirmed.

 

Interlocutory Orders

 

No. 15-0267/NA. U.S. v. Adam C. Terral. CCA 201300273. Appellant's motion to supplement the record is hereby denied.

 

No. 15-0291/NA. U.S. v. Kevin P. Shippee. CCA 860285. Appellant's second motion to extend time to file the supplement to the petition for grant of review is hereby granted to February 26, 2015.

 

No. 15-0295/AR. U.S. v. Kevin D. Washington. CCA 20140826. Appellee's motion to file an appendix to Appellee's brief is hereby granted.

 

Hearings

 

No. 14-0724/NA. U.S. v. Nancy L. Castillo. CCA 201300280.

No. 14-0792/AR. U.S. v. Collin J. Carter. CCA 20121046.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Tuesday, February 10, 2015

 

Petitions for Grant of Review Filed

 

No. 15-0363/AR. U.S. v. Shakeel J. Lewis. CCA 20140278.

No. 15-0364/MC. U.S. v. Ryan C. Politz. CCA 201400305.

 

Petitions for Grant of Review Denied

 

No. 15-0215/AF. U.S. v. Christopher T. Groomes. CCA 38360.

No. 15-0237/AF. U.S. v. James R. Lewis. CCA 38321.

No. 15-0302/AR. U.S. v. John W. Cox. CCA 20111136.

 

Hearings

 

No. 14-0656/AR. United States v. Dana P. Blouin. CCA 20121135.

No. 14-8014/AF. United States v. Mark K. Arness. CCA 2013-30.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Monday, February 9, 2015

 

Petitions for Grant of Review Filed

 

No. 15-0361/MC. U.S. v. Matthew Hoffmann. CCA 201400067.

No. 15-0362/MC. U.S. v. Antonio M. Castellano. CCA 201100248.

 

Petitions for Grant of Review Denied

 

No. 14-0784/NA. U.S. v. Anthony L. Evans. CCA 201300174.

No. 15-0108/AR. U.S. v. Dustin B. Halcom. CCA 20120442.

No. 15-0113/AR. U.S. v. Forrest A. Stross. CCA 20130404.

No. 15-0138/AR. U.S. v. Marvin E. Broadus. CCA 20130889.

No. 15-0198/AF. U.S. v. William E. Callaway IV. CCA 38345.

No. 15-0253/AR. U.S. v. Byron E. Bero. CCA 20120694.

No. 15-0281/AR. U.S. v. Michael A. Chambers. CCA 20130518.

No. 15-0282/AF. U.S. v. Gary B. Higgins. CCA 38477.

No. 15-0283/AF. U.S. v. Tory T. Loving. CCA S32217.

No. 15-0285/AF. U.S. v. Andrew D. Hall. CCA 38553.

No. 15-0293/AR. U.S. v. Bryan S. Hurd. CCA 20130144.

No. 15-0298/AR. U.S. v. Dalante E. Watts. CCA 20130043.

 

Miscellaneous Docket - Summary Dispositions

 

No. 15-0359/AR. Matthew K. Barry, Petitioner. v. United States, and James M. Flanagan, Captain, U.S. Army, Respondents. On the consideration of the petition for extraordinary relief in the nature of Relief Pendente Lite for Declaratory Relief, and Petitioner's motion for a stay of proceedings below and other specified relief, it is ordered that said petition for extraordinary relief is hereby denied without prejudice to Petitioner's right to assert the issues presented during the course of normal appellate review and said motion for a stay of proceedings and other specified relief is hereby denied as moot.

 

Interlocutory Orders

 

No. 15-0361/MC. U.S. v. Matthew Hoffmann. CCA 201400067. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 2, 2015.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Friday, February 6, 2015

 

Petitions for Grant of Review Filed

 

No. 15- 0360/MC. U.S. v. Kelvin L. Zimmerman. CCA 201300350.

 

Petitions for Grant of Review Summary Dispositions

 

No. 15-0228/MC. U.S. v. Myles R. Spurling. CCA 201400124. On consideration of Appellant's petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we conclude that the Court of Criminal Appeals applied erroneous standards of review in evaluating Appellant's ineffective assistance of counsel claim. First, in its review of the facts and circumstances to determine whether a motion to suppress would have been meritorious, the Court of Criminal Appeals relied on the subjective beliefs and opinions of the questioner and third-parties in assessing whether Appellant faced questioning from an individual in an official capacity or for disciplinary purposes. As we made clear in United States v. Jones, 73 M.J. 357, 362 (C.A.A.F. 2014), the analysis is informed by an objective standard. Additionally, when the Court of Criminal Appeals reviewed whether the motion to suppress would have been "meritorious," it correctly cited the "reasonable probability" of success standard but then equated that standard with a standard of preponderance of the evidence. United States v. Spurling, No. NMCCA 201400124, slip op. at 7 n.18 (N-M. Ct. Crim. App. Oct. 16, 2014). Whether a motion is meritorious falls under the "reasonable probability" standard of Strickland v. Washington, 466 U.S. 668 (1994), and "[a] reasonable probability" is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. See United States v. Jameson, 65 M.J. 160, 161-62 (C.A.A.F. 2007). Therefore, the Court of Criminal Appeals applied the wrong standard in assessing the meritorious aspect of the ineffective assistance claim.  Accordingly, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS (1) APPLIED AN ERRONEOUS STANDARD OF REVIEW IN EVALUATING WHETHER A MOTION TO SUPPRESS WOULD HAVE BEEN MERITORIOUS IN ASSESSING APPELLANT'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM, AND (2) ERRED IN DETERMINING THAT ANY SUCH MOTION WOULD FAIL BECAUSE APPELLANT WAS NOT ENTITLED TO WARNINGS PURSUANT TO ARTICLE 31(b).

 

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed, and the case is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further review under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. 866(c) (2012), utilizing the standards of review set forth in Jones and Strickland. Thereafter, Article 67, UCMJ, 10 U.S.C. 867 (2012), shall apply.

 

Miscellaneous Docket Filings

 

No. 15-0359/AR. Matthew K. Barry, Petitioner. v. United States, and James M. Flanagan, Captain, U.S. Army. Respondents. Notice is hereby given that a petition for extraordinary relief in the nature of Relief Pendente Lite for Declaratory Relief was filed under Rule 27(a) on this date.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Thursday, February 5, 2015

 

Petitions for Grant of Review Filed

 

No. 15-0354/NA. U.S. v. John C. Averell. CCA 201300471.

No. 15-0355/AF. U.S. v. Christopher W. Dalton. CCA 38463.

No. 15-0356/AF. U.S. v. Phillip A. Williams. CCA 38406.

No. 15-0357/MC. U.S. v. Levon Tyler. CCA 201200327.

No. 15-0358/AR. U.S. v. Andrew Gasiorowski. CCA 20131057.

 

Interlocutory Orders

 

No. 14-0784/NA. U.S. v. Anthony L. Evans. CCA 201300174. Appellant's motion for leave to file the supplement to the petition for grant of review out of time is granted.

 

No. 15-0029/AR. U.S. v. Levi A. Keefauver. CCA 20121026. Appellee's motion to file a supplemental joint appendix is granted.

 

No. 15-0353/NA. U.S. v. Jason J. Carchio. CCA 201400117. Appellant's motion to extend time to file the supplement to the petition for grant of review granted up to February 24, 2015.

 

No. 15-0357/MC. U.S. v. Levon Tyler. CCA 201200327. Appellant's motion to extend time to file the supplement to the petition for grant of review granted up to February 25, 2015.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Wednesday, February 4, 2015

 

Petitions for Grant of Review Filed

 

No. 15-0353/NA. U.S. v. Jason J. Carchio. CCA 201400117.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Tuesday, February 3, 2015

 

Petitions for Grant of Review Denied

 

No. 14-0804/MC. U.S. v. Vidal E. Sanchez III. CCA 201400053.

No. 15-0046/MC. U.S. v. Richard A. Smith. CCA 201300401.

No. 15-0067/AF. U.S. v. Timothy R. Spielman. CCA 38285.

No. 15-0132/AF. U.S. v. Mark R. Mangasarian. CCA 38427.

No. 15-0246/AF. U.S. v. Johnny A. Escobar. CCA 38343.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Monday, February 2, 2015

 

Petitions for Grant of Review Filed

 

No. 15-0352/AR. U.S. v. Jiovanny Leon. CCA 20120685.

 

Petitions for Grant of Review Denied

 

No. 15-0219/AR. U.S. v. Jonathan L. Kidwell. CCA 20130959.

No. 15-0233/AF. U.S. v. David E. Allgaier. CCA 38400.

No. 15-0251/AR. U.S. v. Kevin J. Kitmanyen. CCA 20120632.

No. 15-0271/AR. U.S. v. Jason D. Salinas. CCA 20120833.

No. 15-0275/AR. U.S. v. Luke A. Langley. CCA 20140555.

No. 15-0276/AR. U.S. v. Gary K. Ashmore. CCA 20140357.

No. 15-0278/AR. U.S. v. Alnivar Avellaneda. CCA 20140457.

 

Petitions for Grant of Review - Summary Dispositions

 

No. 15-0273/AR. U.S. v. Corey A. Soucek. CCA 20140142. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted and the decision is affirmed.*

* It is ordered that the court-martial promulgating order be corrected to reflect that the sentence included confinement for eight months vice six months.

Interlocutory Orders

 

No. 14-0804/MC. U.S. v. Vidal E. Sanchez III. CCA 201400053. On consideration of Appellee's motion to file a 10-day answer letter out of time, it is ordered that said motion is denied.

 

No. 15-0310/MC. U.S. v. Spencer J. Russo. CCA 201300324. Appellant's second motion to extend time to extend time to file the supplement to the petition for grant of review is granted up to and including February 23, 2015.

 

No. 15-0348/MC. U.S. v. Christopher A. Quick. CCA 201300341. Appellee/Cross-Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to February 19, 2015.

 

Mandates Issued

 

No. 14-0453/AR. U.S. v. James S. Piren. CCA 20110416.



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