UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-059
PETITIONS FOR GRANT OF
REVIEW FILED
No.
07-0186/AF.
No.
07-0187/AF.
No.
07-0188/AF.
No.
07-0189/AF.
No.
07-0190/AF.
No.
07-0191/AF.
No.
07-0192/AF.
No.
07-0193/AF.
No.
07-0194/AF.
No.
07-0195/AF.
INTERLOCUTORY ORDERS
No.
07-0130/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-058
PETITIONS
FOR GRANT OF REVIEW FILED
No.
07-0185/CG.
INTERLOCUTORY ORDERS
No.
06-0319/MC.
No.
07-0120/AR.
No.
07-0135/MC.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-057
PETITIONS FOR GRANT OF
REVIEW FILED
No.
07-0183/AR.
No.
07-0184/AR.
MISCELLANEOUS DOCKET - FILINGS
Misc.
No. 07-8007/AF.
Derek J. GRESKA, Petitioner. v. The Air Force Court of Criminal
Appeals,
Respondent. CCA
S30987. Notice is hereby given
that a petition for extraordinary relief in the nature of a writ of
prohibition
was filed under Rule 27(a) on this 27th day of December, 2006.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-056
PETITIONS FOR GRANT OF
REVIEW FILED
No.
07-0180/AR.
No.
07-0181/AR.
No.
07-0182/AR.
MISCELLANEOUS DOCKET - FILINGS
Misc.
No. 07-8006/AF.
Melvert WASHINGTON, Jr.,
Appellant/Petitioner v.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-055
PETITIONS FOR GRANT OF REVIEW FILED
No.
07-0178/AR.
No.
07-0179/MC.
INTERLOCUTORY ORDERS
No.
07-5001/MC.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-054
CERTIFICATES FOR
REVIEW FILED
No. 07-5002/AR.
WHETHER
THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT RULED
THAT THE
MILITARY JUDGE ERRED IN REFUSING TO INSTRUCT THE PANEL THAT A MUTUAL
COMBATANT
COULD REGAIN THE RIGHT TO SELF DEFENSE WHEN THE OPPOSING PARTY
ESCALATES THE
LEVEL OF CONFLICT, EVEN IF APPELLANT DOES NOT WITHDRAW IN GOOD FAITH,
AS
REQUIRED BY RULE FOR COURTS MARTIAL 916(e)(4).
APPEALS – SUMMARY DISPOSITIONS
No. 06-0745/AR.
On further review
of the above-entitled case, it is
noted that in its final brief, Appellee concedes that “the findings
should be
modified to reflect the lesser-included offenses of indecent acts with
another
and sodomy.” Final
Brief on Behalf of Appellee at 5.
In light of this concession and upon consideration of the record
and the
briefs, it is ordered that the decision of the United
States Army Court of Criminal Appeals is reversed as to the language “a
person
who had not attained the age of 16 years” in Specification 1 of Charge
I, “a
child under the age of 16 years” in the Specification of Charge II, and
“a
female under 16 years of age” in Specification 2 of Charge III and as
to the
sentence, but is affirmed in all other respects.
The findings of
guilty as to
the aforementioned language are set aside and those portions of the
specifications are dismissed. The record
of trial is returned to the Judge Advocate General of the Army for
remand to
the Court of Criminal Appeals. That
court may either reassess the
sentence based on the affirmed findings or order a rehearing. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867
(2000), shall apply. The Hearing Notice
of
PETITIONS FOR GRANT OF REVIEW FILED
No.
07-0177/AR.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-053
APPEALS - SUMMARY DISPOSITIONS
No. 06-0889/AR.
THE DILATORY
POST-TRIAL
PROCESSING OF APPELLANT'S CASE WARRANTS RELIEF BECAUSE: (1) OVER EIGHT
MONTHS
ELAPSED BETWEEN ADJUDGMENT OF THE SENTENCE AND PRODUCTION OF THE RECORD
OF
TRIAL; (2) OVER THREE MONTHS ELAPSED BETWEEN TRANSCRIPTION OF THE
RECORD OF
TRIAL AND AUTHENTICATION THEREOF; AND (3) TWENTY-TWO DAYS ELAPSED
BETWEEN
AUTHENTICATION OF THE RECORD OF TRIAL AND INITIAL ACTION, CUMULATIVELY
TOTALING
ALMOST ONE YEAR BETWEEN SENTENCING AND INITIAL ACTION REGARDING A
617-PAGE
RECORD OF TRIAL. (CITATIONS
TO ACCA OPINIONS OMITTED)
The decision of
the United
States Army Court of Criminal Appeals is affirmed.
[See also ORDERS GRANTING PETITION FOR REVIEW
this date.]
ORDERS GRANTING PETITION FOR REVIEW
No. 06-0860/AF.
WHETHER
THE MILITARY JUDGE ERRED IN ADMITTING EVIDENCE AT TRIAL THAT WAS
OBTAINED AS A
DIRECT RESULT OF AN ILLEGAL SEARCH OF APPELLANT'S PERSONAL COMPUTER.
Briefs will be
filed under
Rule 25.
No. 06-0889/AR.
No. 06-0943/NA.
I.
WHETHER THE
II. WHETHER THE
EVIDENCE IS LEGALLY INSUFFICIENT TO PROVE THAT APPELLANT CONSPIRED WITH
JOHN
DOE TO OBSTRUCT JUSTICE WHERE THERE IS NO EVIDENCE IN THE RECORD THAT
JOHN DOE
EVER EXISTED.
III. WHETHER
APPELLANT WAS DENIED DUE PROCESS OF LAW WHERE THE
Briefs will be
filed under
Rule 25.
PETITIONS FOR GRANT OF REVIEW FILED
No. 07-0174/AR.
No. 07-0175/AR.
No. 07-0176/AR.
INTERLOCUTORY ORDERS
No. 06-0403/MC.
No. 06-0714/AF.
No. 07-0028/MC.
No. 07-0029/MC.
No. 07-0101/NA.
No. 07-0103/AR.
No. 07-0108/AR.
No. 07-0114/AR.
No. 07-0118/AR.
MANDATES ISSUED
No. 05-0563/MC.
No. 06-0116/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-052
PETITIONS FOR GRANT OF
REVIEW FILED
No.
07-0162/AF.
No.
07-0163/AF.
No.
07-0164/AF.
No.
07-0165/AF.
No.
07-0166/AF.
No.
07-0167/AF.
No.
07-0168/AF.
No.
07-0169/AF.
No.
07-0170/AF.
No.
07-0171/MC.
No.
07-0172/AR.
No.
07-0173/AR.
INTERLOCUTORY ORDERS
No.
06-8006/AR.
MANDATES ISSUED
No.
06-8006/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-051
PETITIONS FOR GRANT OF
REVIEW DENIED
No.
06-0628/AR.
No.
06-0655/AF.
No.
06-0887/NA.
No.
07-0052/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0555/AF.
No.
07-0159/NA.
No.
07-0160/AF.
No.
07-0161/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-050
PETITIONS FOR GRANT OF
REVIEW FILED
No.
07-0158/AR.
MISCELLANEOUS DOCKET – SUMMARY DISPOSITIONS
Nos.
05-0405 & 07-8004/NA.
On
On
On December 4,
after our Court issued the Dearing
mandate, Respondent filed a motion to stay the mandate.
In a separate filing on the same day,
Respondent urged our Court to deny Petitioner’s request for
extraordinary
relief while the Government considered whether to seek review of the Dearing
decision in the Supreme Court. We note
that the Dearing mandate was issued in accordance with our
rules seven
days after we completed action on the petition for reconsideration. See C.A.A.F. R. 43A(a). Respondent did not file the request for a
stay until after the mandate was issued.
Respondent has provided no explanation or basis for its untimely
filing. Accordingly, the motion to stay
the mandate is denied.
Even
if we
were to treat Respondent’s filing as a motion to recall the mandate,
relief
would not be warranted. The Supreme
Court has
cautioned that, “[i]n light of the profound interests
in repose attaching to the mandate of a court of appeals,” a court’s
authority
to recall a mandate should be “exercised only in extraordinary
circumstances”
for the power “is one of last resort, to be held in reserve against
grave,
unforeseen contingencies.” Calderon v. Thompson, 523
Respondent has
not identified any extraordinary
circumstance warranting recall.
Respondent simply cited the internal consideration within the
executive
branch on whether to seek discretionary Supreme Court review of our
decision in
Dearing. Such internal review is
a standard feature of government litigation, not the type of “grave,
unforeseen
contingenc[y]” described in Calderon, 523
With
respect
to Petitioner’s request for a writ of mandamus, we note that the
following
matters asserted by Petitioner have not been disputed by Respondent: (1) the maximum sentence of confinement for
obstruction of justice is five years, Manual for Courts-Martial,
Respondent has
two options in this
circumstance: (1) release Petitioner
from confinement, or (2) take the appropriate steps to determine
whether to
place him in pretrial confinement pending a rehearing.
See
Respondent
suggests that the present case is
governed by United States v. Miller, 47 M.J. 352 (C.A.A.F.
1997), rather
than
Respondent also
contends that Petitioner must pursue
other means of obtaining relief -- by filing a complaint under Article
138,
UCMJ, 10 U.S.C. § 938 (2000), or requesting the Judge Advocate General
to order
his release -- before he would be entitled to relief from this Court. Our precedents do not require a petitioner to
take such action in order to achieve the performance of the
nondiscretionary
duty of releasing him from confinement once he has served the maximum
period
for the offenses of which he has been convicted.
Accordingly,
the Motion to Stay Mandate is denied. The
Petition for Extraordinary Relief in the Nature of a Writ of Mandamus
is
granted to the extent that Respondent is ordered either to release
Petitioner
from confinement or promptly determine whether he should be held in
pretrial
confinement pending a rehearing.
INTERLOCUTORY
No.
07-0019/AR.
No. 07-0086/NA.
No.
07-0097/AF.
No.
07-0102/AR.
No.
07-0106/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-049
APPEALS - SUMMARY
DISPOSITIONS
ORDERS GRANTING PETITION FOR REVIEW
No. 06-0774/AF.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
06-0899/AR.
No.
06-0951/AR.
No.
07-0011/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
07-0156/AR.
No.
07-0157/MC.
INTERLOCUTORY ORDERS
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-048
PETITIONS FOR GRANT OF
REVIEW DENIED
No.
06-0557/AF.
No.
06-0830/AR.
No.
06-0930/AR.
No.
06-0952/AR.
No.
07-0022/AF.
No.
07-0042/AF.
No.
07-0072/MC.
PETITIONS FOR GRANT OF REVIEW FILED
No.
07-0154/MC.
No.
07-0155/NA.
UNITED STATES COURT OF APPEALS FOR THE
ARMED FORCES
DAILY JOURNAL
No. 07-047
PETITIONS FOR GRANT OF REVIEW
DENIED
No.
06-0872/AR.
No.
06-0893/AF.
PETITIONS
FOR GRANT OF REVIEW FILED
No.
07-0144/AR.
No.
07-0145/AR.
No.
07-0146/AR.
No.
07-0147/AR.
No.
07-0148/AR.
No.
07-0149/AF.
No.
07-0150/AF.
No.
07-0151/AF.
No.
07-0152/AF.
No.
07-0153/AR.
PETITIONS
FOR RECONSIDERATION DENIED
No.
06-8006/AR. Dwight J. LOVING, Petitioner, v.
INTERLOCUTORY
ORDERS
No.
06-0657/AF.
No.
06-0675/MC.
No.
07-0016/MC.
No.
07-0048/AR.
No.
07-0051/AR.
No.
07-0093/AR.
No.
07-8005/NA.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-046
RULES
CHANGES
Upon careful consideration of certain proposed changes to the Rules of Practice and Procedure, United States Court of Appeals for the Armed Forces, which were presented to and reviewed by the Rules Advisory Committee of the United States Court of Appeals for the Armed Forces and thereafter published in the Federal Register for comment, it is, ordered that effective January 1, 2007, Rules 9(e), 14, 19(a)(5)(C), 19(b)(3), 19(g), 22(b)(3), 26(b), 37(c)(1), and 41(a), are amended, added or rescinded as follows:
AMENDMENT
TO RULE 9(e):
(e)
Hours. The
Clerk’s office shall be open for the filing of pleadings and other
papers from 9:00
a.m. 8:00 a.m. to 5:00 p.m.
RESCISSION
OF RULE 14:
RULE 14.
HONORARY MEMBERSHIP
Honorary membership in the Bar of the Court may be granted
from
time to time to distinguished members of the legal profession of other
nations
who are knowledgeable in the fields of military justice or the law of
war. A candidate for honorary membership
will be
presented at the Bar in person after the nomination has previously been
approved by the Court. A certificate of
honorary membership in the Bar will be presented to the person so
honored.
ADDITION OF NEW RULE 19(a)(5)(C):
(C) Grostefon Issues. Issues raised pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), if not raised earlier, may be
presented to the Court by motion filed pursuant to Rule 30(a) no later
than 30
days following the filing of the supplement to the petition.
AMENDMENT
TO RULE 19(b)(3):
(3) Other cases. In all other cases involving a decision by a
Court of Criminal Appeals, a certificate for review filed by the Judge
Advocate
General shall be filed either (a) no
later than 30 days after the
date of the decision of the Court of Criminal Appeals (see Rules
22 and
34(a)), or (b) no later than 30 days
after a petition for grant of review is granted. In
cases that involve both granted and
certified issues, the Clerk may establish a consolidated briefing
schedule for
all issues. In cases that involve only
certified issue(s), an appellant’s brief shall be filed in
accordance with
Rule 24 no later than 30 days after the issuance by the Clerk of a
notice of
docketing of the certificate for review.
An appellee’s answer shall be filed no later than 30 days after
the
filing of an appellant’s brief. A reply
may be filed by the appellant no later than 10 days after the filing of
the appellee’s
answer.
ADDITION
OF NEW
RULE 19(g):
(g) Timely
Motion for Reconsideration Before the Court
of
Criminal Appeals. If an appeal is
filed in this Court before the expiration of time to file a motion for
reconsideration in a Court of Criminal Appeals, this Court, upon the
prompt
filing of a motion to dismiss by a party stating that a timely motion
for
reconsideration is pending in a Court of Criminal Appeals, may dismiss
the
appeal without prejudice and remand the case to the Court of Criminal
Appeals
for resolution of the motion for reconsideration. Following
a decision by the Court of Criminal
Appeals on the motion for reconsideration, review may be sought in this
Court
under Article 67, Uniform Code of Military Justice.
AMENDMENT
TO RULE 22(b)(3):
(3) Other cases.
In all other cases involving a decision by a Court of Criminal
Appeals,
a certificate for review shall be filed either
(a) no later than 30 days after the date of the decision of the
Court of
Criminal Appeals (see Rule 34(a))
or (b) no later than 30 days after a petition for grant of review is
granted. In cases that involve both
granted and certified issues, the Clerk may establish a consolidated
briefing
schedule for all issues. In cases that
involve only certified issue(s), a brief in support of the
certified issues
shall be filed by the appellant in accordance with Rule 24 no later
than 30
days after the issuance by the Clerk of a notice of docketing of the
certificate for review. An appellee’s
answer shall be filed no later than 30 days after the filing of an
appellant’s
brief. A reply may be filed by the
appellant no later than 10 days after the filing of the appellee’s
answer.
AMENDMENT
TO RULE
26(b):
(b) Unless
otherwise ordered by the Court, a brief of an amicus curiae
in support of a party may under
subsection (a)(1) of this rule shall be filed no later than 10
days after that party has filed its brief.
If neither party is supported, the brief of
an amicus curiae shall be filed no later
than 10 days after the first brief is filed. the
filing of the answer by the appellee or respondent.
AMENDMENT
TO RULE 37(c)(1):
(1) All pleadings that
consist of ten or more pages presented
to the Court shall, unless they are less than 5 pages in length, shall be preceded by a subject index of
the matter contained therein, with page references, and a table of
cases
(alphabetically arranged with citations), textbooks, and statutes
cited, with
references to the pages where cited.
AMENDMENT TO RULE
41(a):
The photographing, televising, recording, or broadcasting of
any
session of the Court or other activity relating thereto is prohibited
within
the confines of the courthouse unless authorized by the Court.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 07-0142/AR.
No. 07-0143/AR.
No. 07-6001/NA.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-045
ORDERS GRANTING
PETITION FOR REVIEW
No. 06-0882/MC.
WHETHER
APPELLANT’S DUE PROCESS RIGHTS TO A TIMELY
REVIEW WERE VIOLATED
The decision of
the United States Navy-Marine Corps
Court of Criminal Appeals is affirmed.
No. 06-0914/AF.
I.
WHETHER THE MILITARY JUDGE ERRED IN FINDING
THERE WAS A "DE FACTO DISMISSAL" OF THE CHARGES AGAINST APPELLANT ON
II. WHETHER THE MILITARY JUDGE ERRED IN FINDING
THAT APPELLANT WAS NOT DENIED THE RIGHT TO A SPEEDY TRIAL UNDER ARTICLE
10, UCMJ.
III.
WHETHER APPELLANT RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL WHEN HIS TRIAL DEFENSE COUNSEL DID NOT INFORM HIM
THAT AN
UNCONDITIONAL GUILTY PLEA WAIVED THE SPEEDY TRIAL ISSUE UNDER R.C.M.
707.
IV. WHETHER APPELLANT'S PLEA WAS IMPROVIDENT WHERE
IT WAS ENTERED UPON THE MISTAKEN BELIEF THAT HIS R.C.M. 707 SPEEDY
TRIAL ISSUE
WOULD BE PRESERVED FOR APPEAL.
Briefs will be
filed under
Rule 25.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 06-0862/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0139/MC.
INTERLOCUTORY ORDERS
No. 06-0655/AF.
No. 07-0074/NA.
No. 07-0077/AR.
No. 07-0078/AR.
No. 07-0079/AR.
No. 07-0080/AF.
No. 06-0001/AR.
*Second petition
filed in
this case.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-044
APPEALS - SUMMARY DISPOSITIONS
No. 05-0233/NA.
No. 06-0751/AR.
WHETHER THE
LENGTHY DELAY IN
THE POST-TRIAL PROCESSING OF THIS CASE DENIED APPELLANT DUE PROCESS OF
LAW.
The decision of
the United States Army Court of
Criminal Appeals is affirmed. [See also ORDERS GRANTING PETITION FOR
REVIEW
this date.]
No. 06-0845/AF.
ORDERS GRANTING PETITION FOR REVIEW
No. 05-0233/NA.
No. 06-0751/AR.
No. 06-0845/AF.
DAILY
JOURNAL
No.
07-043
APPEALS - SUMMARY
DISPOSITIONS
No. 06-0883/AR.
ORDERS GRANTING PETITION FOR REVIEW
No. 06-0883/AR.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
06-0800/CG.
No.
06-0811/AR.
No.
06-0859/AF.
No.
06-0940/AR.
No.
06-0957/AF.
No.
07-0041/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
07-0141/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-042
PETITIONS FOR GRANT OF
REVIEW FILED
No.
07-0140/AR.
INTERLOCUTORY ORDERS
No.
06-0434/AR.
No.
06-0567/AF.
No.
06-0908/NA.
No.
07-0010/AR.
No.
07-0067/MC.
PETITIONS FOR GRANT OF REVIEW DENIED
07-0032/AF.
07-0021/AF.
06-0955/AF.
06-0945/NA.
06-0944/NA.
06-0919/AR.
06-0916/MC.
06-0903/AR.
06-0896/AR.
06-0894/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-041
MISCELLANEOUS DOCKET -
FILINGS