TRIAL STAGES: Writs and Interlocutary Appeals: Generally

2022 (October Term)

Fink v. Y.B., 83 M.J. 222 (the CAAF has jurisdiction under Article 67(a)(3), UCMJ, to review a writ-appeal petition filed by an accused that seeks review of a decision of a CCA on a petition for extraordinary relief filed under Article 6b(e)(1), UCMJ). 

(the CAAF’s decision in Randolph v. HV, 76 M.J. 27, 30-31 (CAAF 2017) (holding that the CAAF did not have jurisdiction to hear the appeal filed by an accused that sought review of a CCA’s decision on a petition for extraordinary relief filed under Article 6b(e)(1), UCMJ) has been superseded by statute, namely, by an amendment to Article 67(c), UCMJ, in the 2017 NDAA; as amended, Article 67(c)(1)(B), UCMJ, expands the CAAF’s scope of review to act with respect to a decision, judgment, or order by a military judge, as affirmed or set aside as incorrect in law by a CCA).

(the CAAF must satisfy itself that it has jurisdiction before it can act on a writ-appeal petition, and it decides the question of jurisdiction de novo; if it lacks jurisdiction, it must dismiss the writ-appeal petition; but if it has jurisdiction, it may either grant or deny review of the issues presented in the petition, depending on whether appellant has shown “good cause” for its review). 

(the amendment to Article 67(c), UCMJ, in the 2017 NDAA changed the CAAF’s jurisdiction; under the new Article 67(c)(1)(B), the CAAF is no longer limited to acting on the findings or sentence of a court-martial; it now may also address a military judge’s decision or order on interlocutory questions; accordingly, granting a writ-appeal filed by the accused to review a decision of a military judge on a matter such as the admissibility of evidence fits within the plain language of Article 67(a)(3) and (c)(1)(B), UCMJ). 

(if the victim of an offense challenges a decision or order of a military judge by petitioning a CCA for mandamus under Article 6b(e), UCMJ, and if the CCA affirms or sets aside the decision or order of the military judge, then the accused may petition the CAAF for review under Article 67(a)(3), UCMJ, and the CAAF may act with respect to the military judge’s decision or order under Article 67(c)(1)(B), UCMJ).

2020 (October Term)

United States v. Brown, 81 M.J. 1 (the All Writs Act grants the power to all courts established by Act of Congress to issue all writs necessary or appropriate in aid of their respective jurisdiction and agreeable to the usages and principles of law; the All Writs Act is not an independent grant of jurisdiction, nor does it expand a court’s existing statutory jurisdiction; rather, the All Writs Act requires two determinations: (1) whether the requested writ is in aid of the court’s jurisdiction; and (2) whether the requested writ is necessary or appropriate). 

(to determine whether a requested writ is in aid of a lower court’s jurisdiction, an appellate court must first determine the scope and authority for the lower court’s statutory jurisdiction; the second determination concerns whether a requested writ implicates a lower court’s subject-matter jurisdiction over the case or controversy; and to establish subject-matter jurisdiction, a lower court must find that the harm alleged have the potential to directly affect the findings and sentence). 

(the Supreme Court has held that the power to issue writs is not confined to the issuance of writs in aid of a jurisdiction already acquired by appeal; the power also extends to the potential jurisdiction of the appellate court where an appeal is not then pending but may be later perfected; the doctrine of potential jurisdiction allows appellate courts to issue opinions in matters that may reach the actual jurisdiction of the court). 

2015 (September Term)

EV v. United States, 75 M.J. 331 (the writ of mandamus is a drastic and extraordinary remedy reserved for really extraordinary causes). 

(under Article 6b(e), UCMJ, the victim of a sexual assault may petition the CCA for a writ of mandamus to require a court-martial to comply with MRE 513, relating to the psychotherapist-patient privilege, and with MRE 412, relating to the admission of evidence regarding a victim’s sexual background). 

(in this case, where an alleged sexual assault victim seeks a writ of mandamus from CAAF to correct an alleged abuse of discretion by the military judge relating to the release of certain of her mental health records to the defense, and where the CCA, to whom the petition was first directed under Article 6b(e), UCMJ, denied relief, CAAF lacks jurisdiction to decide the petition on the merits; Article 6b, UCMJ, is quite straightforward; it is a clear and unambiguous grant of limited jurisdiction to CCAs to consider petitions by alleged victims of sexual assault for a writ of mandamus to require a court-martial to comply with MRE 513, relating to the psychotherapist-patient privilege and MRE 412, relating to the admission of evidence regarding a victim’s sexual background; there is no mention whatsoever of CAAF; Congress having legislated in this area and bestowed certain third-party rights on alleged victims, CAAF must be guided by the choices Congress has made; Congress certainly could have provided for further judicial review in this novel situation, but it did not; Congress having now legislated in the area, CAAF is bound by the choices it made).

2013 (September Term)

United States v. Wicks, 73 M.J. 93 (in an Article 62, UCMJ, interlocutory appeal, an appellate court reviews a military judge’s decision directly and reviews evidence in the light most favorable to the prevailing party at trial; in reviewing a military judge’s ruling on a motion to suppress, the court reviews factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard; the same standard is applied when reviewing evidentiary rulings; on mixed questions of law and fact, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect; the abuse of discretion standard calls for more than a mere difference of opinion; the challenged action must be arbitrary, clearly unreasonable, or clearly erroneous).    

2012 (September Term)

United States v. Salyer, 72 M.J. 415 (the normative method for challenging a military judge’s legal ruling is to seek an appeal of that ruling; this might be done on an interlocutory basis, and generally the appeal will be given precedence by an appellate court; the normative method for addressing a military judge’s substantive ruling is not to seek a military judge’s disqualification and get a new ruling from a replacement military judge; and, it is not to have the government communicate in an ex parte manner with the military judge’s judicial supervisor and express displeasure with the ruling). 

Hasan v. Gross, 71 M.J. 416 (to prevail on a writ of mandamus, appellant must show that: (1) there is no other adequate means to attain relief; (2) the right to issuance of the writ is clear and indisputable; and (3) the issuance of the writ is appropriate under the circumstances). 

2008 (September Term)

Loving v. United States, 68 M.J. 1 (under the standards of 28 USC 2254(d), a habeas review of a constitutional claim would normally employ a deferential review of the challenged decision). 


(to establish prejudice for an ineffective assistance of counsel claim with respect to sentencing in a capital case, the new evidence that a habeas petitioner presents must differ in a substantial way - in strength and subject matter - from the evidence actually presented at sentencing). 


2008 (Transition)

Denedo v. United States, 66 M.J. 114 (for a writ appeal, the CAAF considers the record developed at trial and on direct appeal; it also considers the materials filed by the parties in the course of the writ proceedings at the court of criminal appeals and the appeal to the CAAF; based on the foregoing, the CAAF considers whether a decision on the writ appeal can be reached on the record before it, or whether a more fully developed factual record is required prior to reaching a decision on the merits).  

(under the exhaustion of remedies doctrine, courts outside the military justice system normally refrain from collateral review of courts-martial until all available military remedies are exhausted).


(as a general matter, courts outside the military justice system will not entertain habeas petitions by military prisoners until all available military remedies have been exhausted; however, the exhaustion requirement is prudential rather than jurisdictional; the circumstances of a particular case might warrant consideration of a habeas petition by an Article III court prior to exhaustion). 


(even when remedies have been exhausted, the scope of collateral review outside the military justice system is constrained by the requirement to consider whether the military justice system has given full and fair consideration to the claims at issue; de novo review is appropriate only if the military justice system manifestly refused to consider those claims). 


(a writ of error coram nobis requests the court that imposed the judgment to consider exceptional circumstances, such as new facts or legal developments, that may change the result). 


(the decision of the court of criminal appeals on a writ petition is subject to appellate review). 


(coram nobis permits continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review, but only under very limited circumstances; although a petition may be filed at any time without limitation, a petitioner must meet stringent threshold requirements:  (1) the alleged error is of the most fundamental character; (2) no remedy other than coram nobis is available to rectify the consequences of the error; (3) valid reasons exist for not seeking relief earlier; (4) the new information presented in the petition could not have been discovered through the exercise of reasonable diligence prior to the original judgment; (5) the writ does not seek to reevaluate previously considered evidence or legal issues; and (6) the sentence has been served, but the consequences of the erroneous conviction persist). 


United States v. Beck, 56 MJ 426 (issuance of an extraordinary writ staying court-martial proceedings requires the careful exercise of discretion).

(when a writ petition asks us to stay a court-martial in deference to proceedings in a court outside the military justice system, it would be inappropriate to issue a stay absent a persuasive ruling from such a court or similar prudential considerations).

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