MISCELLANEOUS MATTERS: Judicial Review: Generally

2021(October Term)

United States v. Anderson, 82 M.J. 82 (appellate courts can take judicial notice of law and fact just as a military judge can under MRE 201(b))

(in this case, where the government asked an appellate court to take judicial notice of the operational tempo of appellant’s command to justify the military judge’s post-trial delay in authenticating the record of trial, the court declined to do so where the government provided no information that made indisputable the operational tempo of the command). 

2019 (October Term)

United States v. Wall, 79 M.J. 456 (ripeness is the state of a dispute that has reached, but has not passed, the point when the facts have developed sufficiently to permit an intelligent and useful decision to be made; the doctrine’s basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties; the problem is best seen in a twofold aspect, requiring a court to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration). 

(the ripeness doctrine originates in the Constitution’s Article III case or controversy language; nevertheless, Article I courts, such as the CAAF, generally adhere to this doctrine and ordinarily decline to consider an issue that is premature; if the appeal is not ripe, it deprives the court of subject matter jurisdiction and must be dismissed). 

(a claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all). 

2017 (October Term)

United States v. Mangahas, 77 M.J. 220 (it is a long-established principle that federal courts will avoid a constitutional question if the issue presented in a case may be adjudicated on a nonconstitutional ground; this is true even where the nonconstitutional ground, although raised at trial, is not raised by the parties on appeal). 

(criminal statutes of limitations are to be liberally interpreted in favor of repose).

2016 (October Term)

United States v. Boyce, 76 M.J. 242 (federal courts have an independent interest in ensuring that legal proceedings appear fair to all who observe them). 

2011 (September Term)

United States v. Easton, 71 M.J. 168 (judicial deference is at its apogee when the authority of Congress to govern the land and naval forces is challenged; this principle applies even when the constitutional rights of a servicemember are implicated by a statute enacted by Congress).

2008 (Transition)


Denedo v. United States, 66 M.J. 114 (the results of courts-martial are subject to collateral review by courts outside the military justice system; courts-martial also are subject to collateral review within the military justice system). 


(when a petitioner seeks collateral relief to modify an action that was taken within the subject matter jurisdiction of the military justice system, such as the findings or sentence of a court-martial, a writ that is necessary or appropriate may be issued under the All Writs Act in aid of the courtís existing jurisdiction). 


(Article 76, UCMJ, addressing the finality of a court-martial conviction after completion of direct review, provides a prudential constraint on collateral review, not a jurisdictional limitation; Article 76 does not expressly effect any change in the subject-matter jurisdiction of Article III courts; the Article only defines the point at which military court judgments become final and requires that they be given res judicata effect). 


(in terms of timing, Article 76, UCMJ, addressing the finality of a court-martial conviction after completion of direct review, serves as a prudential restraint on collateral review of courts-martial pending completion of direct review; when a coram nobis petition is considered after completion of direct review, finality of direct review enhances rather than diminishes consideration of a request for collateral relief). 


(in terms of the scope of collateral review, the res judicata effect of Article 76, UCMJ, addressing the finality of a court-martial conviction after completion of direct review, means that the decision on direct review will stand as final unless it fails to pass muster under the highly constrained standards applicable to review of final judgments).  


(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). 


(when court-martial jurisdiction has been invoked properly at the time of trial, the jurisdiction of the court of criminal appeals to review the case does not depend on whether a person remains in the armed forces at the time of such review). 


(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 courtís 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).  

(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. Hunter, 65 M.J. 399 (ordinary rules of statutory construction apply in interpreting the RCM).

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