UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-141
APPEALS - SUMMARY DISPOSITIONS
No. 04-0718/AF.
WHETHER
APPELLANT'S
CONVICTION OF SPECIFICATION 2 OF CHARGE III (CONSENSUAL, HETEROSEXUAL,
ORAL
SODOMY) SHOULD BE SET ASIDE IN LIGHT OF LAWRENCE v. TEXAS, 539
U.S. 558
(2003).
In view of
United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), the
decision of
the United States Air Force Court of Criminal Appeals is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW
this date.]
No. 05-0192/NA.
I.
WHETHER THE LOWER COURT ERRED WHEN IT HELD
THAT APPELLANT WAS NOT PREJUDICED BY HIS DEFENSE COUNSEL'S DEFICIENT
PERFORMANCE WHERE HIS COUNSEL RECOMMENDED A PUNITIVE DISCHARGE AND
STRUCTURED
HIS CLOSING ARGUMENT TO AVOID FORFEITURES IGNORANT OF THE FACT THAT
APPELLANT
WOULD BE IN A NON-PAY STATUS DURING HIS CONFINEMENT BECAUSE HE WAS PAST
HIS END
OF ACTIVE OBLIGATED SERVICE.
II. WHETHER APPELLANT WAS DEPRIVED OF HIS
CONSTITUTIONAL RIGHT TO TIMELY REVIEW WHEN IT TOOK 561 DAYS FOR THE
CONVENING
AUTHORITY'S ACTION.
The
decision of the United States Navy-Marine Corps Court of Criminal
Appeals is
set aside. The record of trial is
returned to the Judge Advocate General of the Navy for resubmission to
that
court. Issue I is remanded for further
consideration in light of United States v. Quick, 59 M.J. 383,
387
(C.A.A.F. 2004). Issue II is remanded to
address the delay encountered between the end of the trial and the
convening
authority’s action. Thereafter, Article
67, Uniform Code of Military Justice, 10 U.S.C. § 867 (2000), will
apply. [See also ORDERS GRANTING PETITION
FOR REVIEW
this date.]
ORDERS GRANTING PETITION FOR REVIEW
No. 04-0718/AF.
No. 05-0015/AR.
WHETHER
APPELLANT WAS PREJUDICED BY LENGTHY POST-TRIAL DELAY.
No briefs
will be filed under Rule 25.
No. 05-0117/MC.
WHETHER APPELLANT
WAS
DEPRIVED OF A SUBSTANTIVE LEGAL AND FACTUAL REVIEW OF HIS CASE WHEN HE
DIED
AFTER THE COURT OF CRIMINAL APPEALS AFFIRMED HIS CONVICTION, BUT BEFORE
THE TIME
PERIOD FOR RECONSIDERATION HAD PASSED, IN VIOLATION OF THE CONSTITUTION
AND UNITED
STATES v. RORIE, 58 M.J. 399 (C.A.A.F. 2003).
Briefs
will be filed under Rule 25.
No. 05-0192/NA.
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0443/AF.
No. 05-0444/AF.
No. 05-0445/AF.
No. 05-0446/AF.
No. 05-0447/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-140
ORDERS GRANTING PETITION FOR REVIEW
No. 05-0260/AF.
WHETHER A UNITED
STATES SENATOR'S PARTICIPATION ON A PANEL
OF THE AIR FORCE COURT OF CRIMINAL APPEALS VIOLATES THE SEPARATION OF
POWERS
DOCTRINE.
Briefs will be filed under Rule 25.
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0441/AR.
No.
05-0442/AR.
INTERLOCUTORY ORDERS
No.
05-8030/NA.
Jessie A. QUINTANILLA, Petitioner, v.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-139
APPEALS - SUMMARY DISPOSITIONS
No. 01-0134/AR.
ORDERS GRANTING PETITION FOR REVIEW
No. 01-0134/AR.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
05-0276/AR.
No.
05-0302/AF.
No.
05-0316/AR.
No.
05-0319/AR.
No.
05-0326/AF.
No.
05-0345/AF.
No.
05-0350/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-138
PETITIONS FOR GRANT OF REVIEW DENIED
No.
05-0188/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0439/AR.
No.
05-0440/AR.
MANDATES ISSUED
No.
03-0646/AR.
No.
04-0217/AF.
No.
04-0348/AR.
UNITED STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 05-137
PETITIONS FOR GRANT OF REVIEW
DENIED
No.
05-0194/NA.
PETITIONS FOR GRANT OF REVIEW
FILED
No.
05-0436/AR.
No.
05-0437/AR.
No.
05-0438/NA.
UNITED STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 05-136
PETITIONS FOR GRANT OF REVIEW
DENIED
No.
05-0284/AR.
No.
05-0286/AF.
No.
05-0301/AR.
PETITIONS FOR GRANT OF REVIEW
FILED
No.
05-0427/AR.
No.
05-0428/AF.
No.
05-0429/AF.
No.
05-0430/AF.
No.
05-0431/MC.
No.
05-0432/MC.
No.
05-0433/NA.
No.
05-0434/MC.
No.
05-0435/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-135
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0425/AR.
No.
05-0426/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-134
ORDERS GRANTING PETITION FOR REVIEW
No. 03-0394/AF.
I.
WHETHER BRADY v. MARYLAND, 373 U.S. 83
(1963), AND R.C.M. 701 REQUIRED THE GOVERNMENT TO DISCLOSE EVIDENCE
REGARDING
AN AUGUST 2000 BROOKS LAB ANALYTICAL FALSE POSITIVE URINALYSIS RESULT
AND
PREJUDICIALLY ERRED IN FAILING TO DO SO.
And
the following issue specified by the Court:
II.
WHETHER THE COURT OF CRIMINAL APPEALS ERRED ON
REMAND WHEN IT FOUND NO INEFFECIVE ASSISTANCE OF COUNSEL BECAUSE
DEFENSE
COUNSEL FAILED TO DISCOVER EXCULPATORY EVIDENCE REGARDING AN AUGUST
2000 BROOKS
LAB ANALYTICAL FALSE POSITIVE URINALYSIS RESULT.
No. 05-0242/AR.
WHETHER
THE CONVENING AUTHORITY IMPROPERLY APPROVED FORFEITURE OF ALL PAY AND
ALLOWANCES WHERE APPELLANT HAD ALREADY COMPLETED HIS SENTENCE TO
CONFINEMENT AT
THE TIME THE CONVENING AUTHORITY TOOK ACTION.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
04-0651/NA.
No.
04-0751/AF.
No.
05-0064/AF.
No.
05-0167/AF.
No.
05-0176/MC.
No.
05-0205/AR.
No.
05-0231/AR.
No.
05-0272/NA.
No.
05-0314/MC.
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0422/AR.
No.
05-0423/CG.
No.
05-0424/AR.
INTERLOCUTORY ORDERS
No.
05-0307/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-133
PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY
DISPOSITIONS
No.
04-0082/AF.
No.
05-0281/AF.
No.
05-0346/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0421/NA.
INTERLOCUTORY ORDERS
No.
04-0698/MC.
No.
04-0801/MC.
No.
05-0103/MC.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-132
APPEALS - SUMMARY DISPOSITIONS
No. 05-0145/AF.
WHETHER THE
MILITARY JUDGE MATERIALLY PREJUDICED APPELLANT'S
SUBSTANTIAL RIGHTS WHEN SHE INSTRUCTED THE COURT MEMBERS IN SENTENCING
THAT
MILITARY CONFINEMENT FACILITIES ARE CORRECTIVE RATHER THAN PUNITIVE.
In view of the
inconsistency
between the military judge’s instruction that confinement is a form of
authorized punishment, see Article 58(a), Uniform Code of
Military
Justice, 10 U.S.C. § 858(a) (2000), Rule for Courts-Martial 1003(b)(7), Manual for Courts-Martial, United States
(2002 ed.),
and her instruction that the military confinement facilities are
corrective
rather than punitive, we hold that the sentencing instruction was
erroneous. Accordingly, the decision of
the United States Air Force Court of Criminal Appeals is affirmed as to
findings but reversed as to sentence.
The record of trial is returned to the Judge Advocate General of
the Air
Force for remand to the Court of Criminal Appeals for reassessment of
the
sentence or remand for a sentence rehearing if the court concludes that
it
cannot appropriately reassess the sentence.
See
ORDERS GRANTING PETITION FOR REVIEW
No. 05-0010/MC.
WHETHER
THE
No. 05-0145/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0408/AR.
No.
05-0409/AR.
No.
05-0410/AR.
No.
05-0411/AR.
No.
05-0412/AR.
No.
05-0413/AR.
No.
05-0414/AR.
No.
05-0415/AR.
No.
05-0416/AF.
No.
05-0417/AF.
No.
05-0418/AF.
No.
05-0419/AF.
No.
05-0420/MC.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-131
ORDERS GRANTING PETITION FOR REVIEW
No. 03-0072/AF.
I.
WHETHER THE MILITARY JUDGE ERRED BY
INSTRUCTING THE PANEL THAT THE MAXIMUM SENTENCE WAS LIFE WITHOUT PAROLE
WHEN
THAT PUNISHMENT WAS NOT AN AUTHORIZED SENTENCE AS ITS IMPLEMENTATION
HAD NOT
YET BEEN ORDERED BY THE PRESIDENT, OR, IN THE ALTERNATIVE, WHERE
INSUFFICIENT
EVIDENCE WAS PRESENTED AT TRIAL TO PROVE THAT ANY ALLEGED ACTS OF RAPE
HAD
OCCURRED AFTER 19 NOVEMBER 1997.
II.
WHETHER APPELLANT WAS SUBJECTED TO CRUEL
AND UNUSUAL PUNISHMENT WHILE IN POST-TRIAL CONFINEMENT.
No. 04-0604/NA.
I.
WHETHER APPELLANT WAS DEPRIVED OF HIS
CONSTITUTIONAL RIGHT TO TIMELY REVIEW WHEN OVER FORTY-THREE MONTHS
PASSED
BETWEEN THE DATE OF SENTENCE AND COMPLETION OF REVIEW PURSUANT TO
ARTICLE 66,
UCMJ.
II.
WHETHER APPELLANT'S RIGHT TO A FAIR TRIAL
AND APPELLATE REVIEW WERE DEPRIVED BECAUSE OF THE REASONS SET FORTH IN
[APPELLANT'S LETTER OF 8 AUG 04] SUBMITTED PURSUANT TO UNITED
STATES v.
GROSTEFON.
No. 04-0797/AR.
I.
BECAUSE LIFE WITHOUT PAROLE WAS NOT AN
AUTHORIZED PUNISHMENT UNDER THE UNIFORM CODE OF MILITARY JUSTICE FOR
FORCIBLE
SODOMY OF A CHILD UNDER TWELVE YEARS OF AGE, WHETHER APPELLANT'S
PRETRIAL
AGREEMENT IS A NULLITY AND IT, AND THE FINDINGS AND SENTENCE WHICH WERE
BASED
UPON IT, SHOULD BE SET ASIDE AS APPELLANT ENTERED INTO THE AGREEMENT
WITH A
MATERIAL MISUNDERSTANDING OF THE MAXIMUM IMPOSABLE SENTENCE.
And the following issue personally
asserted by Appellant:
II.
WHETHER APPELLANT RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL WHEN HIS TRIAL DEFENSE COUNSEL FAILED TO REQUEST
CREDIT
FOR APPELLANT'S ILLEGAL PRETRIAL RESTRAINT AND PRETRIAL CONFINEMENT AND
THEN
ADVISED APPELLANT TO AFFIRMATIVELY WAIVE THESE ISSUES.
No. 05-0058/NA.
WHETHER THE
GOVERNMENT VIOLATED APPELLANT'S DUE PROCESS
RIGHT TO A TIMELY APPEAL BY STRUCTURING THE APPELLATE REVIEW ACTIVITY
IN SUCH
PETITIONS FOR GRANT OF REVIEW DENIED
No.
05-0150/AR.
No.
05-0283/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0405/NA.
No.
05-0406/NA.
No.
05-0407/AF.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc.
No. 05-8023/AR.
Misc.
No. 05-8029/AR.
Anthony R. LUCERO, Petitioner, v.
MISCELLANEOUS DOCKET - FILINGS
Misc.
No. 05-8029/AR.
Anthony R. LUCERO, Petitioner, v.
Misc.
No. 05-8030/AR.
Jessie A. QUINTANILLA, Petitioner, v.
INTERLOCUTORY ORDERS
No.
05-0174/MC.
No.
05-0243/MC.
No.
05-0270/NA.
No.
05-0273/AR.
No.
05-8030/NA.
Jessie A. QUINTANILLA, Petitioner, v.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-130
PETITIONS FOR GRANT OF REVIEW FILED
No. 03-0620/AR.
INTERLOCUTORY ORDERS
No. 05-0276/AR.
No. 05-0292/AR.
____________
*/ Second petition filed
in this
case.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-129
HEARINGS
No. 04-0669/AF.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 05-0252/AF.
INTERLOCUTORY ORDERS
No. 05-0233/NA.
No. 05-0314/MC.
____________
*/ Hearing held at the
George Washington University School of Law, Washington, D.C., as part
of the
Court’s “Project Outreach” Program.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-128
HEARINGS
No. 04-0700/AF.
No. 05-0041/AF.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 05-0224/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0398/AR.
No. 05-0399/AR.
No. 05-0400/AR.
No. 05-0401/AR.
No. 05-0402/MC.
No. 05-0403/AF.
No. 05-0404/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-127
PETITIONS FOR GRANT OF REVIEW DENIED
No.
05-0237/AR.
No.
05-0245/MC.
No.
05-0258/AR.
No.
05-0285/AR.
No.
05-0290/AF.
No.
05-0293/AF.
No.
05-0303/AR.
No.
05-0304/AR.
No.
05-0309/AF.
No.
05-0313/AR.
No.
05-0338/AR.
No.
05-0340/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0397/AF.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc.
No. 05-8025/MC.
INTERLOCUTORY ORDERS
No.
04-0756/MC.
No.
05-0047/MC.
No.
05-0334/NA.
No.
05-0335/NA.
No.
05-0336/NA.
No.
05-0337/AR.
No.
05-0339/MC.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-126
PETITIONS
FOR GRANT OF REVIEW DENIED
No.
04-0685/AR.
No.
05-0321/AR.
1/
It is directed that
the
promulgating order be corrected to reflect a not guilty plea to Charge
I, vice
a guilty plea.
2/
It is directed that
the
promulgating order be corrected by substituting “2002” for “2003” in
the
Specification of Charge II.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-125
APPEALS - SUMMARY DISPOSITIONS
No. 04-0191/AR.
ORDERS GRANTING PETITION FOR REVIEW
No. 04-0191/AR.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
05-0163/AR.
No.
05-0253/AF.
PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY
DISPOSITIONS
No.
05-0048/MC.
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0394/AR.
No.
05-0395/AR.
No.
05-0396/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-124
ORDERS GRANTING PETITION FOR REVIEW
No. 05-0004/AR.
I.
WHETHER THE COURT-MARTIAL WAS IMPROPERLY
CONSTITUTED WHEN THE MILITARY JUDGE (1) GRANTED PEREMPTORY CHALLENGES
AFTER
ENLISTED QUORUM HAD BEEN LOST THROUGH CHALLENGES FOR CAUSE AND (2)
IMPROPERLY
PERMITTED THE ADDITION OF OFFICER MEMBERS TO THE PANEL AFTER ASSEMBLY
WHEN ONLY
ENLISTED REPRESENTATION HAD FALLEN BELOW QUORUM.
II. WHETHER
APPELLANT WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL AS TO EVIDENCE OF HER MENTAL HEALTH STATUS WHEN
DEFENSE
COUNSEL (A) USED A PSYCHOLOGIST WHO VIOLATED PSYCHOLOGICAL PROFESSIONAL
ETHICS
STANDARDS; (B) FAILED TO CONSULT WITH A MENTAL HEALTH EXPERT
RECOMMENDED BY THE
R.C.M. 706 BOARD; (C) ARRANGED FOR APPELLANT TO CONSULT WITH MILITARY
MENTAL
HEALTH PROVIDERS WITHOUT ENSURING CONFIDENTIALITY; AND (D) FAILED TO
USE
MITIGATING INFORMATION FROM THE R.C.M. 706 REPORT.
III. WHETHER
THE MILITARY JUDGE ERRED BY
EXCLUDING EVIDENCE OF SPECIFIC ACTS OF VIOLENCE BY THE PURPORTED VICTIM.
IV.
WHETHER THE EVIDENCE IS LEGALLY
INSUFFICIENT AS TO THE FINDING THAT APPELLANT COMMITTED PREMEDITATED
MURDER.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-123
PETITIONS FOR GRANT OF
REVIEW FILED
No.
05-0389/AR.
No.
05-0390/AR.
No.
05-0391/AF.
No.
05-0392/NA.
No.
05-0393/NA.
INTERLOCUTORY ORDERS
No.
05-0183/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-122
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0386/AR.
No.
05-0387/AF.
No.
05-0388/AF.
INTERLOCUTORY ORDERS
No.
05-0172/MC.
No.
05-0277/NA.
No.
05-0322/MC.
No.
05-6001/MC.
MANDATES ISSUED
No.
03-0655/MC.
No.
98-0497/NA.