TRIAL STAGES: Writs and Interlocutory Appeals: Appropriateness of Forum

2017 (October Term)

United States v. Gray, 77 M.J. 5 (CAAF lacks jurisdiction to entertain a request for coram nobis in a case that is final in all respects under the UCMJ; there is no statutory authority to provide extraordinary relief for a capital case that is final for all purposes under the UCMJ). 

(appellant is not entitled to a writ of coram nobis where he has a remedy other than coram nobis to rectify the consequences of the alleged errors, namely a writ of habeas corpus in the Article III courts; an extraordinary remedy such as coram nobis may not issue when alternative remedies, such as habeas corpus, are available; moreover, where appellant is still in confinement, coram nobis relief is unavailable). 

2008 (Transition)

Denedo v. United States, 66 M.J. 114 (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 should be brought before the court that rendered the judgment). 


(in the military justice system, the trial court - the court-martial - does not have independent jurisdiction over a case after the military judge authenticates the record and the convening authority forwards the record after taking action; because the trial court is not available for collateral review under the UCMJ or the MCM, collateral review within the military justice system does not occur at the trial court level). 

(the courts of criminal appeals, the first-level standing courts in the military justice system, provide an appropriate forum for consideration of coram nobis petitions regarding courts-martial; during the initial consideration of a case, they engage in de novo consideration of the record and expressly act on the findings and sentence; with respect to collateral review of the present case, they are well-positioned to determine whether corrective action on the findings and sentence is warranted, including ordering any factfinding proceedings that may be necessary). 


(the court of criminal appeals is an appropriate forum to receive and consider a writ of coram nobis that involves a collateral challenge to that court’s approval of the findings and sentence in a court-martial, where the court-martial that convicted appellant had jurisdiction over both the person and the offense and the court of criminal appeals had jurisdiction to review and approve the findings and sentence on direct review). 



United States v. Davis, 63 M.J. 171 (Article 62(a)(1), UCMJ, gives the government a right to appeal certain decisions from a court-martial in which a military judge presides and in which a punitive discharge may be adjudged; even though appellant had not been sentenced to a punitive discharge at his original trial, the government could properly appeal a military judge’s decision at a sentencing rehearing under Article 62, UCMJ, because that rehearing was empowered to adjudge any sentence authorized for the underlying offenses regardless of the sentence approved after the original trial, and a punitive dismissal was such an authorized punishment). 


Loving v. United States, 62 M.J. 235 (federal courts typically will not entertain habeas petitions by military prisoners unless all available military remedies have been exhausted).

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