UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-174
Thursday,
May 27, 2010
PETITIONS FOR GRANT OF
REVIEW FILED
No.
10-0512/AR.
No. 10-0513/AR.
No.
10-0514/AR.
No.
10-0515/AR.
No.
10-0516/AF.
No.
10-0517/AR.
No.
10-0518/AF.
No.
10-0519/AF.
No.
10-0520/AF.
No.
10-0521/AF.
No.
10-0522/AF.
No.
10-0523/AF.
MISCELLANEOUS DOCKET - SUMMARY
DISPOSITIONS
Misc. No.
10-8007/AR. Josh R. RITTENHOUSE,
Petitioner v.
EFFRON, Chief
Judge (concurring in the result):
As noted
by the majority, an application for a writ of error coram nobis is
“viewed as a
belated extension of the original proceeding during which the error
allegedly
transpired.”
As the
Court of Criminal Appeals has control over a proceeding until such a
petition
is filed, an appellate defense counsel’s duty to make such a filing
occurs
while the proceeding is still under the jurisdiction of the lower court. Issues regarding ineffective assistance of
counsel for failure to file a petition with this Court should first be
raised
at the Court of Criminal Appeals. The
Court of Criminal Appeals would determine whether counsel’s performance
was
deficient, whether any deficiency was prejudicial, and, if so, what
relief
could be granted within the jurisdiction of the Court of Criminal
Appeals. This Court would then have
jurisdiction over
an appeal from a decision granting or denying the writ.
See Denedo, 129
Irrespective
of this Court’s jurisdiction over the instant writ, Petitioner is not
foreclosed from seeking review in this Court under Article 67(a)(2),
Uniform
Code of Military Justice, 10 U.S.C. § 867(a)(2) (2006), which
authorizes the
Judge Advocate General to certify cases for review.
See United States v. Angell, 68
M.J. 79, 80 (C.A.A.F. 2009) (Effron, C.J., concurring in the result).
BAKER, Judge
(dissenting):
I adhere
to my position in United States v. Rodriguez, 67 M.J. 110, 120
(C.A.A.F.
2009) (Baker, J., dissenting), and therefore would have entertained
Appellant’s
original petition had it been demonstrated that appellate defense
counsel
provided by the Government to Appellant was ineffective by failing to
timely
file his petition for review in this Court.
Accordingly, I respectfully dissent.
INTERLOCUTORY ORDERS
No.
10-0473/AR.
No.
10-0512/AR.
No.
10-0513/AR.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-173
Wednesday,
May 26, 2010
APPEALS - SUMMARY
DISPOSITIONS
No.
10-0405/AF.
ORDERS GRANTING PETITION FOR REVIEW
No.
10-0405/AF.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 10-0418/AR.
No. 10-0433/AF.
No. 10-0469/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No. 10-0500/AR.
No. 10-0501/AR.
No. 10-0502/AR.
No. 10-0503/AR.
No. 10-0504/AR.
No. 10-0505/AR.
No. 10-0506/AR.
No. 10-0507/AR.
No. 10-0508/AR.
No. 10-0509/AR.
No. 10-0510/AF.
No. 10-0511/AF.
PETITIONS FOR RECONSIDERATION DENIED
No.
05-0157/NA.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc. No.
10-8009/AF.
INTERLOCUTORY ORDERS
No. 09-0441/AF.
No. 10-0262/MC.
No. 10-5003/MC.
* It
is directed that the promulgating order be
corrected to reflect that, in the Specification of Additional Charge I,
Appellant did, “go from his appointed place of duty,” vice “fail to go
from his
appointed place of duty.”
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-172
Tuesday,
May 25, 2010
ORDERS GRANTING
PETITION FOR REVIEW
No. 10-0349/AR.
WHETHER
THE APPELLANT MUST SHOW PREJUDICE TO OBTAIN RELIEF WHERE THE CONVENING
AUTHORITY RECEIVED ADVICE ON CLEMENCY FROM A PERSON DISQUALIFIED FROM
DOING SO
BY ARTICLE 6 UCMJ, AND, IF SO, WHETHER THERE WAS PREJUDICE IN THIS CASE.
Briefs
will be filed under Rule 25.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
10-0379/MC.
No.
10-0385/AR.
No.
10-0421/AR.
No. 10-0426/AF.
No.
10-0430/AF.
No.
10-0432/AR.
No.
10-0441/AF.
No.
10-0449/AR.
No.
10-0452/AR.
No.
10-0459/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
10-0495/AR.
No.
10-0496/AR.
No.
10-0497/AR.
No.
10-0498/AR.
No.
10-0499/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-171
Monday,
May 24, 2010
APPEALS-SUMMARY DISPOSITIONS
No.
10-0291/NA.
ORDERS GRANTING PETITION FOR REVIEW
No. 10-0291/NA.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 10-0273/AR.
No.
10-0417/AR.
No.
10-0448/AF.
No.
10-0456/AF.
No.
10-0465/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
10-0491/AR.
No.
10-0492/AF.
No.
10-0493/AF.
No.
10-0494/AF.
INTERLOCUTORY ORDERS
No.
07-0253/NA.
MANDATES ISSUED
No.
10-5001/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-170
Friday,
May 21, 2010
PETITIONS FOR GRANT OF
REVIEW FILED
No.
10-0489/MC.
No.
10-0490/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-169
Thursday,
May 20, 2010
APPEALS-SUMMARY DISPOSTIONS
No. 10-0265/AF.
WHETHER
THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FAILING TO REMAND THIS
CASE
FOR A DUBAY HEARING.
WHETHER
APPELLANT WAS DENIED DUE PROCESS BECAUSE ASSURANCES OF AIR FORCE
OFFICIALS
PROVIDED HIM WITH DE FACTO IMMUNITY FROM PROSECUTION.
Thereafter, the
record shall
be forwarded to the Court of Criminal Appeals for review in accordance
with
Article 66, UCMJ, 10 U.S.C. § 866 (2006).[See also ORDERS GRANTING
PETITION FOR
REVIEW this date.]
ORDERS GRANTING PETITION FOR REVIEW
No. 10-0265/AF.
No. 10-0319/MC.
WHETHER,
IN LIGHT OF MELENDEZ-DIAZ v.
No briefs will be
filed under Rule 25.
No. 10-0345/AF.
WHETHER
THE ELIMINATION OF THE ELEMENT OF LACK OF CONSENT COMBINED WITH THE
SHIFTING OF
THE BURDEN TO PROVE CONSENT, BY A PREPONDERANCE OF THE EVIDENCE, TO THE
ACCUSED
IN ORDER TO RAISE AN AFFIRMATIVE DEFENSE TO AGGRAVATED SEXUAL ASSAULT
UNDER
ARTICLE 120, UCMJ, WHERE APPELLANT ALLEGEDLY ENGAGED IN SEXUAL
INTERCOURSE WITH
A PERSON WHO WAS SUBSTANTIALLY INCAPACITATED, IS A VIOLATION OF
APPELLANT'S
RIGHT TO DUE PROCESS UNDER THE 5TH AMENDMENT OF THE U.S. CONSTITUTION.
Briefs
will be filed under Rule 25.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
10-0154/AF.
No.
10-0267/NA.
No.
10-0326/AR.
No.
10-0347/AR.
No.
10-0394/AR.
No.
10-0428/AF.
No.
10-0435/AF.
No.
10-0437/AF.
No.
10-0438/AF.
No.
10-0440/AF.
No.
10-0442/AF.
No.
10-0454/AF.
No.
10-0455/AF.
No.
10-0457/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
10-0488/AR.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
DAILY
JOURNAL
No.
10-168
Wednesday,
May 19, 2010
ORDERS GRANTING
PETITION FOR REVIEW
No. 10-0332/AF.
WHETHER
TRIAL COUNSEL IMPROPERLY COMMENTED ON APPELLANT'S CONSTITUTIONAL RIGHT
TO
REMAIN SILENT THUS DEPRIVING APPELLANT OF A FAIR TRIAL.
Briefs
will be filed under Rule 25.
No. 10-0334/AF.
WHETHER
THE MILITARY JUDGE ERRED BY DENYING TWO WRITTEN DEFENSE MOTIONS WITHOUT
HOLDING
DEFENSE-REQUESTED ARTICLE 39(a) SESSIONS DESPITE RCM 904(h), WHICH
PROVIDES
THAT "UPON REQUEST, EITHER PARTY IS ENTITLED TO AN ARTICLE 39(a)
SESSION
TO PRESENT ORAL ARGUMENT OR HAVE AN EVIDENTIARY HEARING CONCERNING THE
DISPOSITION OF WRITTEN MOTIONS."
Briefs
will be filed under Rule 25.
PETITIONS FOR GRANT OF REVIEW FILED
No.
10-0482/AR.
No.
10-0483/AR.
No.
10-0484/AR.
No.
10-0485/AF.
No.
10-0486/AF.
No.
10-0487/AF.
No.
10-6007/AF.
MISCELLANEOUS DOCKET - FILINGS
Misc. No.
10-8019/AR. Peter T. ROUKIS, Petitioner,
v.
PETITIONS FOR RECONSIDERATION DENIED
No.
10-6005/AF.
INTERLOCUTORY ORDERS
No.
05-0157/NA.
No.
08-0335/NA.
No.
10-0154/AF.
No.
10-0243/MC.
No.
10-0402/AR.
No.
10-0408/AF.
No.
10-0486/AF.
No.
10-5003/MC.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-167
Tuesday,
May 18, 2010
APPEALS-SUMMARY DISPOSITIONS
No. 09-0258/NA.
BAKER, Judge
(dissenting):
For the reasons
stated in my dissent in United
States v. Jones, 68 M.J. 465, 473-79 (C.A.A.F. 2010) (Baker, J.,
dissenting), I would affirm. Appellant
had fair notice that indecent assault was an LIO of rape.
As a result, I dissent from the Court’s
order.
PETITIONS
FOR GRANT OF REVIEW FILED
No.
10-0480/AR.
No.
10-0481/AR.
MANDATES ISSUED
No.
09-0589/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-166
Monday,
May 17, 2010
PETITIONS FOR GRANT OF
REVIEW DENIED
No.
10-0344/AR.
No.
10-0400/NA.
No.
10-0410/AR.
No.
10-0413/AR.
No.
10-0415/MC.
No.
10-0419/AR.
No.
10-0427/AF.
No.
10-0429/AF.
No.
10-0436/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
10-0476/AR.
No.
10-0477/AR.
No.
10-0478/AR.
No.
10-0479/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-165
Friday,
May 14, 2010
PETITIONS FOR GRANT OF
REVIEW FILED
No.
10-0472/AR.
No.
10-0473/AR.
No.
10-0474/AR.
No.
10-0475/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-164
Thursday,
May 13, 2010
APPEALS - SUMMARY DISPOSITIONS
No. 08-0613/AR.
ORDERS GRANTING PETITION FOR REVIEW
No. 08-0613/AR.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
10-0336/CG.
No. 10-0352/AR.
No.
10-0377/AR.
No.
10-0382/NA.
No.
10-0396/AR.
No.
10-0407/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
10-0470/AR.
No.
10-0471/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-163
Wednesday,
May 12, 2010
PETITIONS
FOR GRANT OF REVIEW FILED
No. 10-0468/AR.
No. 10-0469/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-162
Tuesday,
May 11, 2010
PETITIONS FOR GRANT OF
REVIEW DENIED
No.
10-0372/AR.
No.
10-0387/AR.
No.
10-0391/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
10-0467/AR.
MANDATES ISSUED
No.
09-0271/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-161
Monday,
May 10, 2010
PETITIONS FOR GRANT OF REVIEW FILED
No.
10-0463/AF.
No.
10-0464/AF.
No. 10-0465/AF.
No.
10-0466/AF.
INTERLOCUTORY ORDERS
No.
08-0334/MC.
No.
10-0460/NA.
No.
10-0461/NA.
No.
10-0462/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-160
Friday,
May 7, 2010
PETITIONS FOR GRANT OF
REVIEW DENIED
No.
10-0323/AF.
No.
10-0412/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
10-0461/NA.
No.
10-0462/AR.
MISCELLANEOUS DOCKET - FILINGS
Misc. No.
10-8018/AR. William S. PARKER, Petitioner
v. Lieutenant Colonel Eugene E. Baime, Colonel Alan L. Cook, and
Colonel Mark
S. Johnson, and
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-159
Thursday,
May 6, 2010
PETITIONS FOR GRANT OF
REVIEW DENIED
No.
10-0338/AR.
No.
10-0353/AR.
No.
10-0358/AR.
No.
10-0364/AF.
No.
10-0380/AR.
No.
10-0409/AR.
No. 10-0420/AR.
PETITIONS FOR GRANT OF
REVIEW FILED
No.
08-0334/MC.
No.
09-0642/AF.
No.
10-0178/AF.
No.
10-0452/AR.
No.
10-0453/AR.
No.
10-0454/AF.
No.
10-0455/AF.
No. 10-0456/AF.
No.
10-0457/AF.
No.
10-0458/AF.
No.
10-0459/AF.
No.
10-0460/NA.
MISCELLANEOUS DOCKET - FILINGS
Misc. No.
10-8017/NA. In Re Tyrice L. HAYES. CCA 200600910. Notice
is hereby given that a petition for
extraordinary relief in the nature of writ of mandamus and/or
prohibition was
filed under Rule 27(a) on this date.
INTERLOCUTORY ORDERS
No.
10-0402/AR.
No.
10-0449/AR.
* Second petition
filed in this case.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-158
Wednesday,
May 5, 2010
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 July 1, 2010, Rule 21(b) and Rule 21(b)(5)(G) are hereby
amended
and new Rule 21A shall take effect, as provided in the attachment to
this Order
(changes appear in bold typeface).
RULE
21. SUPPLEMENT TO PETITION FOR GRANT OF
REVIEW
(a) Unchanged.
(b) The
supplement to the
petition shall be filed in accordance with the applicable time limit
set forth
in Rule 19(a)(5)(A) or (B), shall include an Appendix containing a copy
of the
decision of the Court of Criminal Appeals, unpublished opinions cited
in the
brief, relevant extracts of rules and regulations, and shall conform to
the
provisions of Rules 35A and 37. Unless
authorized by order of the Court or
by motion of a party granted by the Court, the supplement and any
answer
thereto shall not exceed 25 pages, except that a supplement or answer
containing no more than 9,000 words or 900 lines of text is also
acceptable. Any reply to the answer
shall not exceed 10 pages, except that a reply containing 4,000 words
or 400
lines of text is also acceptable.
The supplement shall contain: [paragraphs (1)-(4) of Rule 21(b)
are
unchanged].
Rule
21(b)(5):
[Paragraphs
(A)-(F) unchanged].
(G) taken
inadequate
corrective action after remand by the Court subsequent to grant of an
earlier
petition in the same case and that appellant wishes to seek review in
the
Supreme Court of the United States specifying
the issue or issues on which certiorari review would be sought, whether
related
to the remand or to the original decision by this Court; and
[remainder of
Rule 21(b) unchanged].
RULE
21A. SUBMISSIONS
UNDER UNITED STATES v. GROSTEFON
(a) Issues raised
pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), shall be presented in a separate Appendix to
the
supplement not to exceed 15 pages.
(b) Grostefon
issues shall be identified by counsel with
particularity substantially in the following form:
APPENDIX
Pursuant to United
States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), appellant, through appellate defense counsel, personally
requests that this Court consider the following matters:
[List issues and
any argument for each issue.]
(c) Grostefon
issues raised within 30 days of the filing
of the supplement under Rule 19(a)(5)(C) are subject to and included
within the
15-page limit in Rule 21A(a).
PETITIONS FOR GRANT OF REVIEW DENIED
No.
10-0190/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
10-0450/AR.
No.
10-0451/AR.
APPEALS - SUMMARY DISPOSITIONS
INTERLOCUTORY ORDERS
No. 10-8008/AR.
Shaun K. BRASINGTON, Petitioner, United States, Respondent. CCA
20060033. On consideration of the
petition for extraordinary relief in the nature of a writ of
prohibition, the
Petitioner’s motion to attach defense appellate exhibits and the
Respondent’s
motion to attach government appellate exhibits 1, 2, 3 and 4, it is
ordered
that said petition is hereby denied without prejudice, and that said
motions
are hereby denied as moot.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-157
Tuesday,
May 4, 2010
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 10-0321/AR.
No. 10-0348/AR.
No. 10-0375/AR.
No. 10-0376/AR.
No. 10-0388/AR.
No. 10-0389/AR.
No. 10-0390/AR.
No. 10-0392/AR.
No. 10-0395/AR.
No. 10-0398/AR.
No. 10-0403/AR.
No. 10-0406/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No. 10-0431/AF.
No. 10-0432/AR.
No. 10-0433/AF.
No. 10-0434/AF.
No. 10-0435/AF.
No. 10-0436/AF.
No. 10-0437/AF.
No. 10-0438/AF.
No. 10-0439/AF.
No. 10-0440/AF.
No. 10-0441/AF.
No. 10-0442/AF.
No. 10-0443/AF.
No. 10-0444/AF.
No. 10-0445/AF.
No. 10-0446/AR.
No. 10-0447/AF.
No. 10-0448/AF.
No. 10-0449/AR.
MISCELLANEOUS DOCKET – FILINGS
Misc.
No. 10-8016/NA.
INTERLOCUTORY ORDERS
No. 10-0386/AR.
No. 10-0424/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-156
Monday,
May 3, 2010
HEARINGS
No.
09-0432/AR.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
10-0222/MC.
No.
10-0303/AR.
No.
10-0305/AR.
No.
10-0335/AR.
No.
10-0354/AF.
No.
10-0355/AR.
No.
10-0371/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
10-0426/AF.
No.
10-0427/AF.
No.
10-0428/AF.
No.
10-0429/AF.
No.
10-0430/AF.
MANDATES ISSUED
No.
09-0429/MC.