UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-020
Thursday,
September 30, 2010
PETITIONS FOR GRANT OF
REVIEW FILED
No.
11-0053/AR.
No.
11-0054/AR.
INTERLOCUTORY ORDERS
No.
05-0157/NA.
Appellant's
motion to correct errata granted.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-019
Wednesday,
September 29,
2010
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0048/AR.
No. 11-0049/AR.
No. 11-0050/AR.
No. 11-0051/AR.
No. 11-0052/MC.
In the Matter of the
RULES ADVISORY COMMITTEE
Pursuant to Rule
45 of the
Rules of Practice and
Professor
Steven H. Goldblatt, Chair
The
following members, whose terms expire on the dates indicated below,
remain on
the Rules Advisory Committee:
To expire on
September 30, 2011:
Professor
Mary Cheh
Mary T.
Hall, Esq.
Colonel
Mark Tellitocci,
To expire on
September 30, 2012:
Colonel
Barbara G. Brand,
John F.
DePue, Esq.
Malcolm
Squires, Esq.
David B.
Goodhand, Esq., is hereby appointed to replace Captain Kyle Kilian,
U.S. Marine
Corps, whose term will expire on September 30, 2010.
Mr. Goodhand’s term will expire on September
30, 2013.
Michelle M. Lindo
McCluer,
Esq., is hereby appointed to replace Matthew S. Freedus, Esq., whose
term will
expire on September 30, 2010. Ms.
McCluer’s term will expire on September 30, 2013.
James E.
McPherson, Esq., is hereby appointed to replace Professor Jane Aiken,
whose
term will expire on September 30, 2010.
Mr. McPherson’s term will expire on September 30, 2013.
Lieutenant
Colonel Jeremy S. Weber, U.S. Air Force, has been reassigned pursuant
to
military orders.
William A.
DeCicco, Clerk of the Court, is an ex officio member of
the
Committee, and serves as its Reporter.
The Court
wishes to express its great appreciation to Matthew S. Freedus,
Professor Jane
Aiken, Lieutenant Colonel Weber, and Captain Kilian for their
outstanding
service as members of the Rules Advisory Committee.
For
the Court,
/s/ William A. DeCicco
Clerk
of the Court
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-018
Tuesday,
September 28, 2010
HEARINGS
No.
10-0262/MC.
No.
10-0345/AF.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
10-0487/AF.
No.
10-0580/AF.
No.
10-0612/AF.
No.
10-0673/AR.
No.
10-0678/AR.
No.
10-0692/AR.
No.
10-0698/AR.
No.
10-0699/AR.
No.
10-0700/AR.
No.
10-0701/AR.
No.
10-0703/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
11-0046/NA.
No.
11-0047/AR.
SPECIAL DOCKET MATTERS
No.
10-20. In the Matter of James B. Atwood,
Jr. It appearing that the above-named
attorney is a member of the Bar of this Court, that he was disbarred
from the
practice of law in the State of Alabama and indefinitely suspended from
the
practice of law in the U.S. Army Court of Criminal Appeals, that,
pursuant to
Rule 15(b), Rules of Practice and Procedure, United States Court of
Appeals for
the Armed Forces, said attorney was suspended from the practice of law
before
this Court and was directed to show cause by August 30, 2010, why he
should not
be disbarred, that no reply was received in response to the Court’s
Order, and
considering the serious nature of his misconduct, it is ordered that
James B.
Atwood, Jr. is hereby disbarred from the practice of law before this
Court
effective the date of this Order.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-017
Monday,
September 27, 2010
HEARINGS
No.
09-0441/AF.
No.
10-0334/AF.
ORDERS GRANTING PETITION FOR REVIEW
No. 10-0512/AR.
WHETHER
THE MILITARY JUDGE ERRED BY DENYING APPELLANT THE
WHETHER
THE BALANCING TEST, AS ARTICULATED IN MRE 412(c)(3) AND UNITED
STATES v.
BANKER, 60 M.J. 216 (C.A.A.F. 2004), IS CONSTITUTIONAL.
Briefs
will be filed under Rule 25.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
10-0676/AR.
No.
10-0695/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
11-0043/AR.
No.
11-0044/AF.
No.
11-0045/AF.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-016
Friday,
September 24, 2010
ORDERS GRANTING
PETITION FOR REVIEW
No. 10-0483/AR.
WHETHER THE
MILITARY JUDGE
ERRED IN EXCLUDING, UNDER MILITARY RULE OF EVIDENCE 412, EVIDENCE OF
PRIOR
SEXUAL BEHAVIOR BY THE ALLEGED VICTIM WHERE THE PROFFERED EVIDENCE WAS
CONSTITUTIONALLY REQUIRED.
WHETHER THE
BALANCING TEST,
AS ARTICULATED IN MILITARY RULE OF EVIDENCE 412(c)(3) AND UNITED
STATES v.
BANKER, 60 M.J. 216 (C.A.A.F. 2004), IS CONSTITUTIONAL.
Briefs will be
filed under
Rule 25.
No.
10-0642/AR.
WHETHER THE ARMY
COURT OF
CRIMINAL APPEALS ERRED IN FAILING TO DISMISS APPELLANT'S NEGLIGENT
HOMICIDE CONVICTION
PURSUANT TO THIS COURT'S OPINION IN UNITED STATES v. JONES, 68
M.J. 465
(C.A.A.F. 2010), BECAUSE NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED
OFFENSE TO
MURDER.
Briefs will be
filed under
Rule 25.
NOTICE OF FILING OF MOTION
No. 11-5001/NA.
PETITIONS FOR GRANT OF REVIEW FILED
No. 11-0038/AR.
No. 11-0039/AR.
No. 11-0040/AR.
No. 11-0041/AR.
No. 11-0042/AR.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc.
No. 10-8026/AF.
INTERLOCUTORY ORDERS
No. 10-0349/AR.
No. 10-0383/MC.
No. 10-0572/AF.
No. 11-0034/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-015
Thursday,
September 23, 2010
PETITIONS
FOR GRANT OF REVIEW DENIED
No.
10-0690/AR.
PETITIONS
FOR
GRANT OF REVIEW FILED
No.
11-0034/AF.
No.
11-0035/AF.
No.
11-0036/AF.
No.
11-0037/AF.
MISCELLANEOUS
DOCKET - FILINGS
Misc. No.
11-8004/AR. Daniel GASKINS, Petitioner
v. Colonel John B. Hoffman, Colonel David L. Conn, Colonel Mark L.
Johnson,
Colonel Alan L. Cook, Lieutenant Colonel Eugene E. Baime, and United
States
Army, Respondents. CCA 20080132. 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 date.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-014
Wednesday,
September 22, 2010
PETITIONS FOR GRANT OF
REVIEW DENIED
No.
10-0681/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
11-0033/AR.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
PETITIONS FOR RECONSIDERATION DENIED
No. 10-0570/AF.
INTERLOCUTORY ORDERS
No.
10-0317/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-013
Tuesday,
September 21, 2010
PETITIONS FOR GRANT OF
REVIEW DENIED
No.
10-0596/AF.
No.
10-0605/AF.
No.
10-0667/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
11-0032/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-012
Monday,
September 20, 2010
PETITIONS FOR GRANT OF
REVIEW DENIED
No.
10-0682/AF.
No.
10-0683/AF.
No.
10-0684/AF.
No.
10-0687/AR.
No.
10-0688/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No. 11-0030/AR.
No.
11-0031/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-011
Friday,
September 17, 2010
PETITIONS FOR GRANT OF REVIEW DENIED
No.
10-0648/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No. 11-0023/AR.
No.
11-0024/AR.
No.
11-0025/AF.
No.
11-0026/AF.
No.
11-0027/AF.
No.
11-0028/AF.
No.
11-0029/AF.
MISCELLANEOUS DOCKET - FILINGS
INTERLOCUTORY ORDERS
No. 11-0019/AF.
No.
11-0020/AR.
No.
11-0021/AR.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-010
Thursday,
September 16, 2010
PETITIONS FOR GRANT
OF REVIEW FILED
No.
11-0019/AF.
No.
11-0020/AR.
No.
11-0021/AR.
No.
11-0022/AF.
INTERLOCUTORY
ORDERS
No.
08-0365/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-009
Wednesday,
September 15, 2010
PETITIONS FOR GRANT OF
REVIEW DENIED
No.
10-0625/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
11-0012/AR.
No.
11-0013/AR.
No.
11-0014/AR.
No.
11-0015/AR.
No. 11-0016/AR.
No.
11-0017/MC.
No.
11-0018/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-008
Tuesday,
September 14, 2010
PETITIONS FOR GRANT OF
REVIEW DENIED
No.
10-0679/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
08-0365/AR.
No.
11-0010/AR.
No.
11-0011/AR.
_____________________
*
Second
petition filed in this case.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-007
Monday,
September 13, 2010
ORDERS GRANTING
PETITION FOR REVIEW
No. 10-0668/AF.
WHETHER,
UNDER MELENDEZ-DIAZ v. MASACHUSETTS, 129 S.CT. 2527 (2009), THE
ADMISSION OF THE DRUG TESTING REPORT VIOLATES APPELLANT'S SIXTH
AMENDMENT
RIGHTS UNDER THE CONFRONTATION CLAUSE.
WHETHER
TRIAL DEFENSE COUNSEL'S FAILURE TO OBJECT TO THE ADMISSION OF THE DRUG
LABORATORY REPORT AT TRIAL FORFEITED THE CONFRONTATION CLAUSE ISSUE,
AND, IF
SO, DID ADMISSION OF THE DRUG TESTING REPORT CONSTITUTE PLAIN ERROR?
WHETHER
THE CONFRONTATION CLAUSE WAS SATISFIED BY TESTIMONY FROM DR. TURNER.
IF
DR. TURNER'S TESTIMONY DID NOT ITSELF SATISFY THE CONFRONTATION CLAUSE,
WAS THE
INTRODUCTION OF TESTIMONIAL EVIDENCE NEVERTHELESS HARMLESS BEYOND A
REASONABLE
DOUBT UNDER THE CIRCUMSTANCES OF THIS CASE IF HE WAS QUALIFIED AS, AND
TESTIFIED
AS, AN EXPERT UNDER M.R.E. 703?
Briefs
will be filed under Rule 25.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
10-0643/MC.
No.
10-0656/AR.
No.
10-0672/AR.
No.
10-0674/AR.
No.
10-0675/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-006
Friday,
September 10, 2010
ORDERS GRANTING PETITION FOR REVIEW
No. 10-0461/NA.
WHETHER,
IN LIGHT OF THE UNITED STATES SUPREME COURT'S RULING IN MELENDEZ-DIAZ
v.
MASSACHUSETTS, 557
WHETHER
TRIAL DEFENSE COUNSEL'S OBJECTION TO THE DRUG LABORATORY REPORT
CONSTITUTED A
VALID CRAWFORD OBJECTION. IF NOT,
THEN WHETHER TRIAL DEFENSE COUNSEL WAIVED OR FORFEITED THE
CONFRONTATION CLAUSE
ISSUE, AND, IF FORFEITED, WHETHER ADMISSION OF THE REPORT CONSTITUTED
PLAIN
ERROR.
Briefs
will be filed under Rule 25.
No.
10-0537/AR.
WHETHER
THE MILITARY JUDGE COMMITTED PLAIN ERROR BY PERMITTING THE GOVERNMENT
TO OFFER
EVIDENCE IN THE FORM OF OPINION TESTIMONY FROM SENIOR OFFICER AND NCO
WITNESSES
WITH NO PERSONAL KNOWLEDGE OF APPELLANT'S DUTY PERFORMANCE TO OPINE
THAT HE
SHOULD BE SEPARATED FROM THE ARMY AND SPECIAL FORCES.
Briefs
will be filed under Rule 25.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
10-0663/AR.
No.
10-0669/AR.
No.
10-0670/AF.
No. 10-0671/AF.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-005
Thursday,
September 9, 2010
APPEALS - SUMMARY DISPOSITIONS
No.
10-0575/AR.
* It is noted that
the promulgating
order’s summary of Specifications 2 and 3 of Charge I states that, on
motion of
the trial counsel, the specifications were “amended to conform with the
accused’s plea of Guilty,” which included exceptions and substitutions. In fact, the record reflects that the
military judge did not permit such an amendment of those specifications. Accordingly, it is directed that the
promulgating order be corrected by deleting all language within
parentheses in
the summary of Specifications 2 and 3 of Charge I.
No.
10-0600/AR.
ORDERS GRANTING PETITION FOR REVIEW
No.
10-0567/AF.
WHETHER, IN LIGHT
OF THIS
COURT'S RECENT DECISION IN UNITED STATES v. JONES, 68 M.J. 465
(C.A.A.F.
2010), THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY OF ASSAULT
CONSUMMATED
BY A BATTERY AS A LESSER INCLUDED OFFENSE OF WRONGFUL SEXUAL CONTACT.
Briefs will be
filed under
Rule 25.
No.
10-0575/AR.
No.
10-0600/AR.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 10-0482/AR.
No. 10-0613/AR.
No. 10-0636/AR.
No. 10-0639/AR.
No. 10-0647/AR.
No. 10-0652/AR.
No. 10-0654/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No. 11-0007/NA.
No. 11-0008/AR.
No. 11-0009/AR.
INTERLOCUTORY ORDERS
No. 10-0397/AR.
No. 10-0484/AR.
No. 10-0680/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-004
Wednesday,
September 8, 2010
PETITIONS FOR GRANT OF REVIEW DENIED
No.
10-0637/AR.
No.
10-0650/AR.
No.
10-0653/AR.
No.
10-0655/AR.
No.
10-0657/AR.
No.
10-0658/AR.
No.
10-0662/AR.
No.
10-0666/MC.
PETITIONS FOR GRANT OF REVIEW FILED
No.
11-0005/MC.
No.
11-0006/AR.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc. No.
10-8016/NA.
On May 4, 2010,
Denedo’s appellate counsel filed a
motion for leave to file writ-appeal petition out of time.
In response the Government filed a motion for
leave to file an answer out of time and an answer to the writ-appeal. The Government later filed a motion for leave
to file a response to Denedo’s motion for leave to file out of time as
well as
a motion to withdraw its earlier filings and an answer to petitioner’s
motion
for leave to file writ-appeal petition out of time.
The sole issue
for our consideration is whether
Denedo has shown good cause for the late filing of his writ-appeal
petition.
C.A.A.F. Rule
19(e) requires “[a] writ-appeal
petition . . . for review of a decision by a Court of Criminal Appeals
acting
on a petition for extraordinary relief shall be filed no later than 20
days
after the date the decision of the Court of Criminal Appeals is served
on the
appellant or the appellant’s counsel.”
Denedo’s counsel filed a petition for extraordinary relief in
the nature
of a writ of error coram nobis with the Navy-Marine Corps Court of
Criminal
Appeals. That court denied Denedo’s
petition on March 18, 2010. United
States v. Denedo, No. NMCCA 9900680, 2010 CCA LEXIS 27, at *14,
2010 WL
996432, at *5 (N-M.
In support of the
motion for leave to file
writ-appeal petition out of time, Denedo’s counsel explained that he
“erroneously believed that this case was governed by Rule 19(a)(1)(B),”
which
provides sixty days from the date of the decision at the CCA for filing
a
petition for review with this court.
Denedo’s appellate defense counsel’s argument for the
writ-appeal
petition went on to reference the fact that the Supreme Court had
previously
reviewed the jurisdictional aspects of this case and remanded the case
to the
military justice system for further consideration.
Appellate defense counsel also referenced Padilla
v. Kentucky, 130
Appellate defense
counsel requests this court
suspend Rule 19(e) pursuant to our authority under C.A.A.F. Rule 33,
which
states “[f]or good cause shown, the Court may suspend any of these
rules in a
particular case, on application of a party or on its own motion, and
may order
proceedings in accordance with its direction.”
In our view, neither the fact of the previous Supreme Court
review of
Denedo’s case, nor the Padilla case are relevant to our
analysis as to
whether there was good cause for a late filing.2 Counsel’s claim that he erroneously believed
that this court imposed a sixty day deadline for the appeal of
writ-appeal
petitions does not provide us with the requisite good cause for
suspending the
deadline for filing a writ-appeal.3
Accordingly, it
is ordered that Appellant’s motion
for leave to file a writ-appeal petition out of time is hereby denied,
and that
Appellee’s motion to file an answer to the writ-appeal petition, motion
to file
untimely answer to Appellant’s motion for leave to file the writ-appeal
out of
time, and motion to withdraw are denied as moot.
2 Those
issues may have been relevant to a determination as to whether good
cause
existed for granting the writ-appeal petition had it been timely filed.
3 Although
we have on occasion excused late filings based on administrative or
attorney
error, this court has cautioned counsel that failure to comply with the
basic
rules of this court risks compromising their client’s rights and
protections.
EFFRON,
Chief Judge (dissenting):
Appellant
contends that his court-martial conviction
should be overturned based upon denial of his Sixth Amendment right to
effective assistance of counsel and requests issuance of a writ of
error coram
nobis. During prior consideration of
this case, the Supreme Court exercised its discretion to review the
petition
for extraordinary relief.
Appellant filed an appeal with our Court
within the statutory sixty-day period for appeals from the decisions of
the
lower court under Article 67(b), Uniform Code of Military Justice
(UCMJ), 10
U.S.C. § 867(b) (2006), but not within the regulatory twenty-day window
for
writ appeals under C.A.A.F. Rule 19(e).
The twenty-day period may be waived by our Court under C.A.A.F.
Rule 33.
The majority declines to exercise this
Court’s discretion to waive the rule. In
view of the brief period of delay, the absence of any prejudice to the
Government, and the important issues raised by this case, I agree with
Judge
Baker that the Court should waive the rule and permit Appellant to file. I respectfully dissent.
The
constitutional issue
Appellant faces deportation proceedings
based upon his conviction under the UCMJ, which resulted from a guilty
plea at
a special court-martial. See Denedo,
129
Appellant contends that his conviction is
“void because his guilty plea was the result of ineffective assistance
of
counsel.” Denedo, 129
In considering Denedo on remand, the
Court of Criminal Appeals ordered the Government to provide affidavits
from
Appellant’s civilian and military defense counsel.
Appellant’s civilian defense counsel states
in his affidavit that his usual practice was not to predict future
collateral
consequences to a guilty plea and that he did not do so in this case. 2010 CCA LEXIS 27, at
*9-*10, 2010 WL 996432, at *4. He
also states that his client’s primary concern was limitation of
confinement.
The Court of Criminal Appeals concluded
that a hearing was not necessary to resolve the contradictory
affidavits,
holding that Appellant had not been prejudiced even if his attorney
provided
him with erroneous advice about the consequences of his guilty plea.
Less than two weeks after the lower court
released its opinion, the Supreme Court issued its decision in Padilla
v.
Kentucky, 130 S. Ct. 1473 (2010). Padilla
involved a contention by a lawful permanent resident that his counsel
was
ineffective for not only failing to advise him that his guilty plea to
a drug
distribution offense would result in deportation, but also for telling
him that
he “did not have to worry about immigration status.”
when a defendant
bases the decision to plead guilty
on counsel’s express misrepresentation that the defendant will not be
removable. . . . it seems hard to say that the plea was entered with
the advice
of constitutionally competent counsel -- or that it embodies a
voluntary and
intelligent decision to forsake constitutional rights.
At this stage of
the motions proceeding in the
present case, we are not called upon to decide whether Padilla
mandates
reversal of the lower court. The issue
before us is whether the Supreme Court’s decision in Padilla
underscores
the importance of evaluating the merits of Appellant’s request that we
consider
his appeal.
The
exercise of discretion
Appellate defense
counsel filed Appellant’s appeal
forty-seven days after the decision by the Court of Criminal Appeals. The filing falls within the sixty-day
statutory period for appeals provided by Article 67(b), UCMJ, as
implemented by
C.A.A.F. Rule 19(a)(1), but twenty-seven days after the waivable
timeline for
filing under C.A.A.F Rule 19(e).
Appellate defense
counsel agrees that his filing is
untimely. He does not cast blame
elsewhere for his mistake. He notes that
he assumed, incorrectly, that the normal filing time applied under
C.A.A.F.
Rule 19(a)(1), which implements Article 67(b), UCMJ, and he filed
within that
time.
This is not a
case in which counsel has demonstrated
an absence of attention to filing deadlines.
He looked at a rule which, on its face, appears to apply to all
appeals,
and he filed within that time. He
overlooked a separate provision that applies a shorter time period for
writ
appeals.
The Government
has not claimed any prejudice
resulting from the timing of Appellant’s filing. Upon
receiving Appellant’s motion, this Court
ordered the Government to file an answer to Appellant’s motion on or
before May
11, 2010. May 11 came and went without
any filing from the Government. Six
weeks later, on June 25, 2010, the Government submitted a motion to
file its
answer to the writ-appeal petition out of time.
The Government explained that its late filing was a result of
administrative error. On June 28, 2010,
the Government filed a motion to withdraw its June 25 motion, stating
that it
intended to oppose Appellant’s motion to file out of time.
Concurrently, the Government filed a motion
for leave to file out of time its answer to Appellant’s motion to file
the
writ-appeal petition out of time, again citing administrative error as
the
justification for the late filing. In
the underlying answer to Appellant’s motion, the Government
acknowledged that a
misunderstanding of the Court’s rules may qualify as good cause but
asked our
Court to use its discretion to deny Appellant’s motion.
The Government did not assert prejudice or
any other reason for requesting this Court to deny Appellant’s request
to waive
the twenty-day regulatory filing provision.
We have before us
a case involving extensive
consideration at the highest levels of our legal system; a problematic
lower
court decision; significant constitutional issues; a recent Supreme
Court
decision bearing on the substantive issues before us; a filing that,
while
late, is well within the normal filing time for appeals to our Court;
and an
absence of prejudice to the Government.
Under these circumstances, Appellant has established good cause
for
waiver of the twenty-day filing provision.
Along with Judge Baker, I would grant the waiver, permit the
filing, and
permit the Government to file its untimely response.
--------------------------------------------------
BAKER,
Judge (dissenting):
C.A.A.F. Rule 19
of the Rules of Practice and
Procedure for our Court contain ten different time limits for filing
appeals
with the Court. The time line with which
military practitioners are most familiar is the sixty-day time limit
for filing
“petitions for grant of review.”
C.A.A.F. R. 19(a)(1)(B).
Writ-appeal petitions are required to be filed within twenty
days. C.A.A.F. R. 19(e).
All five judges of this Court agree that
C.A.A.F. Rule 19(e) is a discretionary rule that can be suspended “for
good
cause shown.”
Following remand
from the Supreme Court of the
The immediate
question presented to this Court at
this time is whether good cause exists to waive application of the
twenty-day
rule. The merits of Appellant’s
writ-appeal are not at issue at this time.
Whether good cause exists to waive C.A.A.F. Rule 19(e) depends
on how
one responds to two related questions.
First, should Appellant be penalized for his military appellate
counsel’s failure to follow the rules of this Court?
Second, is it relevant to this Court’s
exercise of its discretion that this case comes to us following Supreme
Court
review of Appellant’s jurisdictional right to seek a writ of error
coram nobis?
The majority’s de
facto response to the first
question is yes. The majority does not
address, or acknowledge, any countervailing arguments involving
principles of
fairness, civilian judicial review, or the interests of justice
presented by an
appellant having his “day in court.”
Further, in this
case four related distinctions take
this case out of the mainstream of late filings. First,
Appellant alleges that his original
trial defense counsel was ineffective when he advised Appellant to
plead guilty
at a special court-martial rather than contest his case at a general
court-martial in order to protect himself against deportation. Thus, the ultimate response to Appellant’s
claim of ineffective assistance of counsel before this court is,
apparently,
ineffective assistance of counsel.
Second, the Supreme Court and this Court have determined that
Appellant
was entitled to have his claim heard pursuant to a writ of error coram
nobis. Third, the military defense
lawyer missed the filing deadline for appealing to this Court the lower
court’s
subsequent decision on remand. Fourth,
assuming that this delinquent filing constitutes ineffective assistance
of
counsel, Appellant is without apparent recourse.1
Rote adherence to
time limits makes sense where a
court has a heavy docket, or when it is determined that counsel are
using the
time limits for tactical advantage.
These factors are not at play here.
Indeed, having heard oral argument and rendered opinions in
forty-three
cases during the 2009-2010 term, it is fair to say this Court has the
time to
err on the side of keeping the courthouse door open in the interest of
justice
rather than shutting it to make a point about following the rules.
The second
essential question is whether or not the
Supreme Court’s review and remand in this case should inform our
judgment as to
whether good cause exists to waive the deadline. On
the one hand, the Supreme Court’s review
was limited to the specific jurisdictional question as to whether the
lower
court could entertain a writ of error coram nobis nine years after
direct review
was completed. Thus, the Supreme Court’s
decision did not address the merits of Appellant’s petition.
On the other
hand, I do not believe rote application
of a discretionary filing rule is appropriate where the Supreme Court
remanded
the case specifically inviting the Court of Criminal Appeals to explore
on
remand “[t]he relative strength of respondent’s ineffective-assistance
claim,
his delay in lodging his petition, when he learned or should have
learned of
his counsel’s alleged deficiencies, and the effect of the rule of
judgment finality
expressed in Article 76 . . . .”
Further, while
one can reasonably debate whether the
lower court has responded to the Supreme Court’s remand, one cannot
debate
whether that court decided the case on the correct law.
It did not.
That is because the lower court decided this case while Padilla v. Kentucky3
was pending, a case
directly relevant to Appellant’s appeal.
Indeed, Padilla was decided just two weeks after the
Court of
Criminal Appeals disposed of Appellant’s appeal on remand.
Padilla directly
addresses the original claim of
ineffective assistance in this case and contradicts the lower court’s
statement
of legal principles. The Padilla
court concluded that
“advice regarding deportation is not categorically removed from the
ambit of
the Sixth Amendment right to counsel.”
130
In
short, this Court’s response to Appellant and to the Supreme Court in a
matter
within its discretion seems curt -- rules are rules.
It is also unfair to Appellant. Because
I think that in the context of this
case Appellant should get his full day in court before a military
appellate
court informed by a correct view of the law and before this civilian
court,
like the Chief Judge, I respectfully dissent.
1 Appellant’s right
to be
heard at this point would appear dependent on whether he can seek
relief in an
Article III court on the basis that he has received ineffective
assistance of
counsel on appeal to this Court. This
would seem a futile endeavor since Appellant’s right to pursue a writ
of error
coram nobis rests with the Court of Criminal Appeals.
Nor, does any issue regarding proper
supervision of military appellate defense counsel afford Appellant in
this case
a remedy. It has no bearing on
Appellant’s opportunity to have his case heard.
Moreover, this Court does not have supervisory authority over
the day to
day operations of military appellate counsel provided by the government. What it possesses is authority over specific
cases.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-003
Friday,
September 3, 2010
PETITIONS FOR GRANT OF REVIEW FILED
No.
11-0003/MC.
No.
11-0004/MC.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-002
Thursday,
September 2, 2010
ORDERS GRANTING PETITION FOR REVIEW
No.
10-0588/AF.
WHETHER IT WAS
PLAIN ERROR
FOR TRIAL COUNSEL TO ELICIT TESTIMONY THAT APPELLANT DID NOT RESPOND
VERBALLY
WHEN ARRESTED, AND THEN RELY ON THIS TESTIMONY DURING CLOSING ARGUMENT.
WHETHER THE
MILITARY JUDGE
COMMITTED CONSTITUTIONAL ERROR THAT WAS NOT HARMLESS BEYOND A
REASONABLE DOUBT
WHEN HE OVERRULED DEFENSE COUNSEL'S OBJECTION DURING TRIAL COUNSEL'S
IMPROPER
REBUTTAL ARGUMENT.
Briefs will be
filed under
Rule 25.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 10-0544/AR.
No. 10-0561/AR.
No. 10-0573/AR.
No. 10-0597/AR.
No. 10-0623/AR.
No. 10-6009/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No. 11-0001/AR.
No. 11-0002/AR.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc.
No. 11-8001/AF. Jose A. COSSIO, Jr., v.
PETITIONS FOR RECONSIDERATION DENIED
No. 10-0574/AR.
INTERLOCUTORY ORDERS
No. 09-0795/MC.
No. 10-0630/AF.
No. 11-0001/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-001
Wednesday,
September 1, 2010
INTERLOCUTORY ORDERS
No.
10-5003/MC.