UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Friday, February 27, 2015
Petitions for Grant
of Review Filed
No. 15-0396/AF. U.S.
v. Allen R. Henderson. CCA 38379.
No. 15-0397/AR. U.S.
v. Fatimah H. Diaab-Powell. CCA 20130846.
No. 15-0398/AR. U.S.
v. Maurice McCormick, Jr. CCA 20120029.
Interlocutory Orders
No. 15-0284/AF. U.S.
v. James E. Burke III. CCA S32137. On
consideration of Appellee's motion to dismiss the
petition for grant of review for lack of jurisdiction, it is ordered that the
petition for grant of review is hereby dismissed without prejudice to
Appellant's right to file a petition for grant of review on a subsequent date.
No. 15-0288/AF. U.S.
v. Brandon C. Thomas, Jr. CCA S32163. On consideration of Appellant's motion for
leave to file a petition out of time, Appellee's
motion to dismiss Appellant's petition for lack of jurisdiction, and Appellee's motion to attach, and in light of United States
v. Rodriguez, 67 M.J. 110 (C.A.A.F.
2009), cert. denied, 558 U.S. 969 (2009), it is ordered that Appellant's motion
for leave to file a petition out of time is hereby denied without prejudice to
filing a writ of error coram nobis
at the United States Air Force Court of Criminal Appeals (see Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008), aff'd, 556 U.S. 904 (2009)); Appellee's
motion to dismiss the petition for grant of review for lack of jurisdiction and
motion to attach are hereby denied as moot.
BAKER, Chief Judge
(dissenting):
I dissent to the
denial of Appellant's motion for leave to file his petition for grant of review
out of time based on my dissenting opinion in United States v. Rodriguez,
67 M.J. 110, 120-26 (C.A.A.F.
2009) (Baker, J., dissenting).
No. 15-0395/AR. U.S.
v. Jefferey M. Fiorito. CCA 20080535. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to March 18, 2015.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Thursday, February 26, 2015
Petitions for Grant
of Review Filed
No. 15-0394/AR. U.S.
v. Aaron M. Hill.
CCA 20140635.
No. 15-0395/AR. U.S.
v. Jefferey M. Fiorito. CCA 20080535.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Wednesday, February 25, 2015
Petitions for Grant
of Review Filed
No. 15-0392/MC. U.S.
v. Nicolas Vega, Jr. CCA 20130000277.
No. 15-0393/AR. U.S.
v. James R. Lawson. CCA 20130317.
Petitions for Grant
of Review Denied
No. 15-0121/AR. U.S.
v. Steven J. Spencer. CCA 20120165.
No. 15-0147/AR. U.S.
v. Lucas J. Shakespeare. CCA 20130622.
No. 15-0238/AF. U.S.
v. Myranda I. Decker. CCA S32173.
No. 15-0272/AR. U.S.
v. Christian M. Lopezmorales. CCA 20130502.
No. 15-0320/AR. U.S.
v. Kevin W. Barrington. CCA 20130705.
Petitions for Grant
of Review - Summary Dispositions
No. 15-0239/AR. U.S. v. Joshua C. Hudsoncurrier. CCA 20110737. On consideration of the petition for grant of
review of the decision of the United States Army Court of Criminal Appeals, we
agree with Appellant's personally-asserted contention that the Government
failed to prove the existence of an agreement to commit the offense of
aggravated assault. Accordingly, it is ordered that said petition is granted on
the following issue:
WHETHER THE EVIDENCE
OF CONSPIRACY TO COMMIT AGGRAVATED ASSAULT IS LEGALLY SUFFICIENT.
The decision of the United States Army Court
of Criminal Appeals is reversed as to Charge I and its Specification. The
findings of guilty as to Charge I and its Specification are set aside and that
charge and specification are dismissed. The remaining findings are affirmed.
Inasmuch as Appellant suffered no prejudice as to his sentence because the
military judge merged the conspiracy charge with the underlying aggravated
assault charge for sentencing purposes, the sentence is affirmed.
Interlocutory Orders
No. 15-0059/NA. U.S.
v. Darron D. Ward, Jr. CCA
201400021. Appellee's
motion for leave to file a corrected brief is granted.
No. 15-0369/MC. Raymion E.
Richards v. William R. Lieblein and Robert F. Hedelund. Appellant's
motion to file a substitute brief with redacted appendix and Appellant's motion
to correct errata are granted.
No. 15-0392/MC. U.S. v. Nicolas Vega, Jr. CCA 20130000277. Appellant's
motion to extend the time to file the supplement to the petition for grant of
review is granted to March 17, 2015.
Hearings
No. 14-0744/NA. U.S. v. Allyssa K. Simmermacher. CCA 201300129.
No. 14-0783/NA. U.S. v. Marshand A. Woods. CCA 201300153.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Tuesday, February 24, 2015
Petitions for Grant
of Review Filed
No. 15-0389/AR. U.S.
v. Justin R. Colby. CCA 20130274.
No. 15-0390/AR. U.S.
v. Kye C. Womack. CCA 20140345.
No. 15-0391/AR. U.S.
v. Luis R. Corral.
CCA
20121031.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Monday, February 23, 2015
Petitions for Grant
of Review Filed
No. 15-0384/CG. U.S.
v. Christopher S. Cooley. CCA 1389.
No. 15-0385/AR. U.S.
v. Henry D. Smith.
CCA
20140243.
No. 15-0386/AR. U.S.
v. Ferguson J. Marcelle. CCA 20130339.
No. 15-0388/AR. U.S.
v. Arthur J. Garry, Jr. CCA 20130983.
Petitions for Grant
of Review Denied
No. 15-0256/AR. U.S.
v. Rashad J. Valmont. CCA 20110644.
No. 15-0264/MC. U.S.
v. Christopher L. Olcott. CCA 201300228.
No. 15-0324/AR. U.S.
v. Evan A. Theoharis. CCA 20140382.
No. 15-0325/AR. U.S.
v. Arnold Medellin, Jr. CCA 20130814.
Certificates for
Review Filed
No. 15-0387/CG. U.S. v. Christopher S. Cooley. CCA 1389. Notice is hereby given that a certificate for
review of the decision of the United States Coast Guard Court of Criminal
Appeals was filed under Rule 22 on this date on the following issues:
WHETHER THE COAST
GUARD COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT PRE-TRIAL CONFINEMENT CAN
SERVE AS PER SE PREJUDICE FOR PURPOSES OF DETERMINING A VIOLATION OF
ARTICLE 10, UNIFORM CODE OF MILITARY JUSTICE.
WHETHER THE FACTS AND
CIRCUMSTANCES OF APPELLEE'S CASE, CONSIDERING THE
FACTORS SET OUT IN BARKER V. WINGO, 407 U.S.
514, 530 (1972) AND APPLIED TO REVIEW OF ARTICLE 10 BY UNITED STATES V. BIRGE, 52 M.J. 209, 212 (C.A.A.F. 1999), AMOUNT TO A VIOLATION OF ARTICLE 10,
UNIFORM CODE OF MILITARY JUSTICE.
Miscellaneous Docket
- Summary Dispositions
No. 15-0295/AR. U.S.
v. Kevin D. Washington. CCA 20140826. On
consideration of the writ-appeal petition, it is ordered that said writ-appeal
petition is hereby denied.
Interlocutory Orders
No. 15-0225/AR. U.S.
v. Neftaly Platero. CCA 20120620. On consideration of Appellant's third motion
to extend time to file the supplement to the petition for grant of review, it
is ordered that said motion is hereby granted to March 27, 2015, and in the
absence of extraordinary circumstances, no further extension of time will be
granted in this case.
No. 15-0260/AF. U.S.
v. Andrew P. Witt. CCA 36785. Appellant's
motion to extend time to file a brief granted to March 25, 2015.
No. 15-0357/MC. U.S.
v. Levon Tyler. CCA 201200327. Appellant's
second motion to extend time to file the supplement to the petition for grant
of review granted, up to and including March 17, 2015.
No. 15-0383/MC. U.S.
v. Edmund R. Gallegos. CCA 201300391. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to March 12, 2015.
No. 15-0384/CG. U.S.
v. Christopher S. Cooley. CCA 1389. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to March 16, 2015.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Friday, February 20, 2015
Petitions for Grant
of Review Filed
No. 15-0381/MC. U.S.
v. Stephen M. Box.
CCA
201400147.
No. 15-0382/AF. U.S.
v. Jessica M. Combs. CCA S32216.
No. 15-0383/MC. U.S.
v. Edmund R. Gallegos. CCA 201300391.
Petitions for Grant
of Review Denied
No. 14-0054/AF. U.S.
v. Sharmaine L. Latham. CCA 38107.
Interlocutory Orders
No. 14-0054/AF. U.S.
v. Sharmaine L. Latham. CCA 38107. Appellant's motion to attach documents is
denied.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Thursday, February 19, 2015
Petitions for Grant
of Review Filed
No. 15-0377/NA. U.S.
v. Nestor L. Suazo-Lopez. CCA 201300463.
No. 15-0378/AR. U.S.
v. Thomas A. Bousman. CCA 20140781.
No. 15-0379/AR. U.S.
v. Dakota L. Campbell. CCA 20140505.
No. 15-0380/AR. U.S.
v. William E. Freschman. CCA
20140221.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Wednesday, February 18, 2015
Petitions for Grant
of Review Filed
No. 15-0371/NA. U.S.
v. Kevin C. Corcoran. CCA 201400074.
No. 15-0372/NA. U.S.
v. Pedro M. Bess. CCA 201300311.
No. 15-0373/AR. U.S.
v. Michael A. Hoss. CCA 20120086.
No. 15-0374/AF. U.S.
v. Jose F. Oropeza, Jr. CCA
38413.
No. 15-0375/AR. U.S.
v. Warren L. Lawrence. CCA 20130678.
No. 15-0376/AR. U.S.
v. Gregory A. Rice. CCA 20100678.
Petitions for Grant
of Review Denied
No. 15-0110/AR. U.S.
v. Kody D. Schenk. CCA 20120122.
No. 15-0192/MC. U.S.
v. Eric D. Raines.
CCA
201400027.
No. 15-0248/AF. U.S.
v. Joseph M. Ward III. CCA 38376.
No. 15-0259/NA. U.S.
v. John F. Doyle III. CCA 201300442.
No. 15-0304/AR. U.S.
v. David A. Smith.
CCA
20121092.
No. 15-0305/AR. U.S.
v. Jonathon V. Johnson. CCA 20131016.
No. 15-0306/AR. U.S.
v. Justin E. Dickey. CCA 20140212.
No. 15-0316/AR. U.S.
v. Luke E. Joseph.
CCA
20140383.
No. 15-0317/MC. U.S.
v. Adam S. Bennett. CCA 201400281.
Interlocutory Orders
No. 15-0059/NA. U.S.
v. Darron D. Ward, Jr. CCA
201400021. On consideration of
Appellant's motion for leave to file and motion to file a corrected brief, and
motion for leave to file and motion to file a substitute joint appendix, it is
ordered that said motions are hereby granted.
No. 15-0370/AR. U.S.
v. Christopher A. Bogus. CCA 20130224. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to March 5, 2015.
No. 15-0371/NA. U.S.
v. Kevin C. Corcoran. CCA 201400074. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to March 10, 2015.
No. 15-0372/NA. U.S.
v. Pedro M. Bess. CCA 201300311. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to March 10, 2015.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Friday, February 13, 2015
Petitions for Grant
of Review Filed
No. 15-0370/AR. U.S.
v. Christopher A. Bogus. CCA 20130224.
Miscellaneous Docket –
Filings
No.
15-0369/MC. Raymion E. Richards, Appellant v. Robert
F. Hedelund, Major General, U.S. Marine Corps and
William R. Lieblein, Colonel, U.S. Marine Corps, Appellees. Notice is
hereby given that a writ-appeal petition was filed under Rule 27(b) on this
date. Appellees
will file an answer no later than 10 days after the date of this notice.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Thursday, February 12, 2015
Petitions for Grant
of Review Filed
No. 15-0365/AR. U.S.
v. Joshua A. Hauser. CCA 20130734.
No. 15-0366/AR. U.S.
v. Cory A. Stellmach. CCA 20140485.
No. 15-0367/AR. U.S.
v. Scott A. Bollinger. CCA 20120376.
No. 15-0368/AR. U.S.
v. David A. Lopez.
CCA
20100457.
Petitions for Grant
of Review Denied
No. 15-0086/AR. U.S.
v. Kareem A. Ransom. CCA 20130658.
No. 15-0222/AR. U.S.
v. Jamel E. Greene. CCA 20120805.
No. 15-0267/NA. U.S.
v. Adam C. Terral. CCA 201300273.
Miscellaneous Docket
- Summary Dispositions
No. 15-0258/AR. U.S.
v. Ricardo Gonzales. CCA 20140620. On
consideration of the writ-appeal petition, it is ordered that said petition is
hereby denied.
Orders Granting
Petition for Review
No. 15-0206/NA. U.S. v. Jeffrey F. Morris. CCA 201300348.
On consideration of the petition for grant of review of the decision of
the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered
that said petition is hereby granted on the following issue:
DOES IMAGE 106470 IN
PROSECUTION EXHIBIT 2 CONSTITUTE CHILD PORNOGRAPHY UNDER UNITED STATES v.
WARNER, 73 M.J. 1 (C.A.A.F. 2013)?
No briefs will be
filed under Rule 25.
Interlocutory Orders
No. 14-0783/NA. U.S.
v. Marshand A. Woods. CCA 201300153. Appellee's motion
to substitute a corrected brief is granted.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Wednesday,
February 11, 2015
Petitions for Grant
of Review Denied
No. 13-0498/AF. U.S. v. Christopher J. Martin. CCA S32035.
No. 15-0078/AF. U.S. v. Charles B. Eichelberger. CCA 38318.
No. 15-0123/AR. U.S. v. Timothy J. Pherigo. CCA 20140032.
No. 15-0226/AF. U.S. v. Anthony D. Daniels, Jr. CCA 38371.
No. 15-0243/AF. U.S. v. Jonathan J. Arma. CCA 2014-09.
No. 15-0250/AF. U.S. v. Nathaniel A. Tessner. CCA 38514.
Appeals – Summary
Dispositions
No. 14-0491/AR. U.S. v. Jacob T. Nemeth.
CCA
20120653. On consideration of the granted issue, the
judgment of the United States Army Court of Criminal Appeals, United States
v. Nemeth, No. 20120653 (A. Ct. Crim. App. Mar. 7, 2014), and the judgment
of this Court in United States v. Phillips, No. 14-0199/AR (C.A.A.F. Jan. 6, 2015), we conclude that Appellant is not
entitled to have his guilty plea to disobeying the order of his superior
commissioned officer under Article 90, UCMJ, 10 U.S.C. § 890 (2012), set aside. Appellant did not establish "a substantial
basis in law or fact for questioning the guilty plea." United States v. Inabinette, 66 M.J. 320, 322
(C.A.A.F. 2008). He failed to produce evidence that his
company commander issued the restriction order for the sole purpose of
increasing the penalty that would apply if Appellant violated the restriction
order. Therefore, it is ordered that the
judgment of the United States Army Court of Criminal Appeals is hereby affirmed.
No. 14-0505/AR. U.S. v. Martin L. Carroll.
CCA
20111158. On consideration of the granted issue, the
judgment of the United States Army Court of Criminal Appeals, United States
v. Carroll, No. 20111158 (A. Ct. Crim. App. Feb. 28, 2014), and the
judgment of this Court in United States v. Phillips, No. 14-0199/AR (C.A.A.F. Jan. 6, 2015), we conclude that Appellant is not
entitled to have his guilty plea to disobeying the order of his superior
commissioned officer under Article 90, UCMJ, 10 U.S.C. § 890 (2012), set aside. Appellant did not establish "a substantial
basis in law or fact for questioning the guilty plea." United States v. Inabinette, 66 M.J. 320, 322
(C.A.A.F. 2008). He failed to produce evidence that his
company commander issued the restriction order for the sole purpose of
increasing the penalty that would apply if Appellant violated the restriction
order. Therefore, it is ordered that the
judgment of the United States Army Court of Criminal Appeals is hereby
affirmed.
No. 14-0558/AR. U.S. v. Aaron D. Amaya. CCA 20120406. On consideration of the granted issue, and
the judgment of the United States Army Court of Criminal Appeals, United
States v. Amaya, No. 20120406 (A. Ct. Crim. App.
Feb. 24, 2014), we conclude that the military judge granted Appellant the
relief to which he was entitled by reducing the maximum punishment for
disobeying an order not to travel outside the limits of Fort Richardson, under
Article 92, UCMJ, 10 U.S.C.
§ 892 (2008), to that authorized for breaking restriction under Article 134, UCMJ, 10 U.S.C. § 934
(2008). See Manual for Courts
Martial, United States pt. IV, ¶ 16.e. Note (2008 ed.). Therefore, it is ordered that the judgment of
the United States Court of Criminal Appeals is hereby affirmed.
No. 14-0619/AR. U.S. v. Aaron J. Twinam. CCA 20120384. On consideration of the granted issue, and
the judgment of the United States Army Court of Criminal Appeals, United
States v. Twinam, No. 20120384 (A. Ct. Crim. App.
Mar. 7, 2014), we conclude that Appellant is not entitled to relief. The maximum punishment for violations of
Article 92, UCMJ, 10 U.S.C.
§ 892 (2008), does not apply "if the violation of failure to obey is a breach
of restraint imposed as a result of an order."
Manual for Courts-Martial, United States pt. IV, ¶ 16.e. Note
(2008 ed.)
Although the military judge did not note that he was limiting the
maximum punishment for the Article 92 offense, the maximum punishment did not
change. Article 19, UCMJ,
10 U.S.C. § 819 (2012) (setting the statutory maximum
confinement that can be imposed by a special court-martial at one year). Appellant pled guilty to desertion, numerous AWOLs and failures to go, wrongful use of cocaine and
marijuana, and larceny of computer materials with a value greater than
$500. Articles 85, 86,
112a, 121, UCMJ, 10 U.S.C.
§§ 885, 886, 912a, 921 (2008).
The maximum punishment for these offenses, separate from any Article 92
offense, exceeded the statutory jurisdiction of the special court-martial. The convening authority, acting in accord
with the pretrial agreement, disapproved Appellant's sentence to confinement in
excess of four months. Accordingly,
under the circumstances of this case, the military judge's omission "did not
substantially influence the sentence and materially prejudice Appellant's
substantial rights." United
States v. St. Blanc, 70 M.J. 424, 430 (C.A.A.F. 2012) (citing Article 59(a), UCMJ,
10 U.S.C. § 859(a) (2006)). Therefore, it is ordered that the judgment of
the United States Army Court of Criminal Appeals is hereby affirmed.
No. 14-0650/AR. U.S. v. Kenneth E. Hagstrom. CCA 20121058. On consideration of the granted issue, the
judgment of the United States Army Court of Criminal Appeals, United States
v. Hagstrom, No. 20121058 (A. Ct. Crim. App. May
27, 2014), and the judgment of this Court in United States v. Phillips,
No. 14-0199/AR (C.A.A.F. Jan. 6, 2015), we conclude
that Appellant is not entitled to have his guilty plea to disobeying the order
of his superior commissioned officer under Article 90, UCMJ,
10 U.S.C. § 890 (2012), set aside. Appellant did not establish "a substantial
basis in law or fact for questioning his guilty plea." United States v. Inabinette, 66 M.J. 320, 322
(C.A.A.F. 2008). He failed to produce evidence that his
company commander issued the order requiring him to sign in at the Charge of
Quarters desk for the sole purpose of increasing the penalty that would apply
if Appellant failed to do so. Therefore,
it is ordered that the judgment of the United States Army Court of Criminal
Appeals is hereby affirmed.
No. 15-0048/AR. U.S. v. Joshua R. Baker.
CCA
20120839. On consideration of the granted issue, the
judgment of the United States Army Court of Criminal Appeals, United States
v. Baker, No. 20120839 (A. Ct. Crim. App. Aug. 27, 2014), and the judgment
of this Court in United States v. Phillips, No. 14-0199/AR (C.A.A.F. Jan. 6, 2015), we conclude that Appellant is not
entitled to have his guilty plea to disobeying the order of his superior
commissioned officer under Article 90, UCMJ, 10 U.S.C. § 890 (2012), set aside. Appellant did not establish "a substantial
basis in law or fact for questioning his guilty plea." United States v. Inabinette, 66 M.J. 320, 322
(C.A.A.F. 2008). He failed to produce evidence that the
superior commissioned officer issued the restriction order for the sole purpose
of increasing the penalty that would apply if Appellant violated the
restriction order. Therefore, it is
ordered that the judgment of the United States Army Court of Criminal Appeals
is hereby affirmed.
No. 15-0116/AR. U.S. v. Derrick L. Hardy.
CCA
20120816. On consideration of the granted issue, the
judgment of the United States Army Court of Criminal Appeals, United States
v. Hardy, No. 20120816 (A. Ct. Crim. App. Aug. 13, 2014), and the judgment
of this Court in United States v. Phillips, No. 14-0199/AR (C.A.A.F. Jan. 6, 2015), we conclude that Appellant is not
entitled to have his guilty plea to disobeying the order of his superior
commissioned officer under Article 90, UCMJ, 10 U.S.C. § 890 (2012), set aside. Appellant did not establish "a substantial
basis in law or fact for questioning his guilty plea." United States v. Inabinette, 66 M.J. 320, 322
(C.A.A.F. 2008). He failed to produce evidence that the
superior commissioned officer issued the restriction order for the sole purpose
of increasing the penalty that would apply if Appellant violated the
restriction order. Therefore, it is
ordered that the judgment of the United States Army Court of Criminal Appeals
is hereby affirmed.
Interlocutory Orders
No. 15-0267/NA. U.S. v. Adam C. Terral. CCA 201300273. Appellant's
motion to supplement the record is hereby denied.
No. 15-0291/NA. U.S. v. Kevin P. Shippee. CCA 860285. Appellant's
second motion to extend time to file the supplement to the petition for grant
of review is hereby granted to February 26, 2015.
No. 15-0295/AR. U.S. v. Kevin D. Washington.
CCA
20140826. Appellee's
motion to file an appendix to Appellee's brief is
hereby granted.
Hearings
No. 14-0724/NA. U.S. v. Nancy L. Castillo.
CCA
201300280.
No. 14-0792/AR. U.S. v. Collin J. Carter.
CCA
20121046.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Tuesday, February 10, 2015
Petitions for Grant
of Review Filed
No. 15-0363/AR. U.S.
v. Shakeel J. Lewis. CCA 20140278.
No. 15-0364/MC. U.S.
v. Ryan C. Politz. CCA 201400305.
Petitions for Grant
of Review Denied
No. 15-0215/AF. U.S.
v. Christopher T. Groomes. CCA 38360.
No. 15-0237/AF. U.S.
v. James R. Lewis. CCA 38321.
No. 15-0302/AR. U.S.
v. John W. Cox.
CCA
20111136.
Hearings
No. 14-0656/AR.
United States v. Dana P. Blouin. CCA 20121135.
No. 14-8014/AF. United
States v. Mark K. Arness. CCA
2013-30.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Monday, February 9, 2015
Petitions for Grant
of Review Filed
No. 15-0361/MC. U.S.
v. Matthew Hoffmann. CCA 201400067.
No. 15-0362/MC. U.S.
v. Antonio M. Castellano. CCA 201100248.
Petitions for Grant
of Review Denied
No. 14-0784/NA. U.S.
v. Anthony L. Evans. CCA 201300174.
No. 15-0108/AR. U.S.
v. Dustin B. Halcom. CCA 20120442.
No. 15-0113/AR. U.S.
v. Forrest A. Stross. CCA 20130404.
No. 15-0138/AR. U.S.
v. Marvin E. Broadus. CCA 20130889.
No. 15-0198/AF. U.S.
v. William E. Callaway IV. CCA 38345.
No. 15-0253/AR. U.S.
v. Byron E. Bero. CCA 20120694.
No. 15-0281/AR. U.S.
v. Michael A. Chambers. CCA 20130518.
No. 15-0282/AF. U.S.
v. Gary B. Higgins. CCA 38477.
No. 15-0283/AF. U.S.
v. Tory T. Loving. CCA S32217.
No. 15-0285/AF. U.S.
v. Andrew D. Hall. CCA 38553.
No. 15-0293/AR. U.S.
v. Bryan S. Hurd. CCA 20130144.
No. 15-0298/AR. U.S.
v. Dalante E. Watts. CCA 20130043.
Miscellaneous Docket
- Summary Dispositions
No. 15-0359/AR. Matthew K. Barry,
Petitioner. v. United States, and James M. Flanagan, Captain, U.S. Army,
Respondents. On the consideration of the
petition for extraordinary relief in the nature of Relief Pendente Lite for
Declaratory Relief, and Petitioner's motion for a stay of proceedings below and
other specified relief, it is ordered that said petition for extraordinary
relief is hereby denied without prejudice to Petitioner's right to assert the
issues presented during the course of normal appellate review and said motion
for a stay of proceedings and other specified relief is hereby denied as moot.
Interlocutory Orders
No. 15-0361/MC. U.S.
v. Matthew Hoffmann. CCA 201400067. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to March 2, 2015.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Friday,
February 6, 2015
Petitions
for Grant of Review Filed
No. 15- 0360/MC. U.S. v. Kelvin L.
Zimmerman. CCA
201300350.
Petitions
for Grant of Review – Summary Dispositions
No. 15-0228/MC. U.S. v. Myles R. Spurling.
CCA
201400124. On consideration of Appellant's petition for
grant of review of the decision of the United States Navy-Marine Corps Court of
Criminal Appeals, we conclude that the Court of Criminal Appeals applied erroneous
standards of review in evaluating Appellant's ineffective assistance of counsel
claim. First, in its review of the facts
and circumstances to determine whether a motion to suppress would have been
meritorious, the Court of Criminal Appeals relied on the subjective beliefs and
opinions of the questioner and third-parties in assessing whether Appellant
faced questioning from an individual in an official capacity or for
disciplinary purposes. As we made clear in United States v. Jones, 73
M.J. 357, 362 (C.A.A.F. 2014), the analysis is informed by an objective
standard. Additionally, when the Court
of Criminal Appeals reviewed whether the motion to suppress would have been "meritorious,"
it correctly cited the "reasonable probability" of success standard but then
equated that standard with a standard of preponderance of the evidence. United States v. Spurling, No. NMCCA 201400124, slip
op. at 7 n.18 (N-M. Ct. Crim. App. Oct. 16, 2014).
Whether a motion is meritorious falls under the "reasonable probability"
standard of Strickland v. Washington, 466 U.S. 668 (1994), and "[a]
reasonable probability" is a probability sufficient to undermine confidence in
the outcome. Strickland, 466 U.S. at 694. See United States v.
Jameson, 65 M.J. 160, 161-62 (C.A.A.F. 2007).
Therefore, the Court of Criminal Appeals applied the wrong standard in
assessing the meritorious aspect of the ineffective assistance claim.
WHETHER THE NAVY-MARINE
CORPS COURT OF CRIMINAL APPEALS (1) APPLIED AN ERRONEOUS STANDARD OF REVIEW IN
EVALUATING WHETHER A MOTION TO SUPPRESS WOULD HAVE BEEN MERITORIOUS IN
ASSESSING APPELLANT'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM, AND (2) ERRED IN
DETERMINING THAT ANY SUCH MOTION WOULD FAIL BECAUSE APPELLANT WAS NOT ENTITLED
TO WARNINGS PURSUANT TO ARTICLE 31(b).
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is reversed, and the case is returned to the Judge Advocate
General of the Navy for remand to the Court of Criminal Appeals for further
review under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 866(c) (2012), utilizing the standards of review set forth in Jones
and Strickland. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012),
shall apply.
Miscellaneous
Docket Filings
No. 15-0359/AR. Matthew K. Barry, Petitioner. v. United
States, and James M. Flanagan, Captain, U.S. Army. Respondents. Notice is hereby given that a petition for
extraordinary relief in the nature of Relief Pendente
Lite for Declaratory Relief was filed under Rule
27(a) on this date.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Thursday, February 5, 2015
Petitions for Grant
of Review Filed
No. 15-0354/NA. U.S.
v. John C. Averell. CCA 201300471.
No. 15-0355/AF. U.S.
v. Christopher W. Dalton. CCA 38463.
No. 15-0356/AF. U.S.
v. Phillip A. Williams. CCA 38406.
No. 15-0357/MC. U.S.
v. Levon Tyler. CCA 201200327.
No. 15-0358/AR. U.S.
v. Andrew Gasiorowski. CCA 20131057.
Interlocutory Orders
No. 14-0784/NA. U.S. v. Anthony L. Evans.
CCA
201300174. Appellant's motion for
leave to file the supplement to the petition for grant of review out of time is
granted.
No. 15-0029/AR. U.S. v. Levi A. Keefauver. CCA 20121026. Appellee's motion
to file a supplemental joint appendix is granted.
No. 15-0353/NA. U.S. v. Jason J. Carchio. CCA 201400117. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted up to February 24, 2015.
No. 15-0357/MC. U.S.
v. Levon Tyler. CCA 201200327. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted up to February 25, 2015.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Wednesday, February 4, 2015
Petitions for Grant of Review Filed
No. 15-0353/NA. U.S. v. Jason J. Carchio. CCA 201400117.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Tuesday, February 3, 2015
Petitions for Grant
of Review Denied
No. 14-0804/MC. U.S.
v. Vidal E. Sanchez III. CCA 201400053.
No. 15-0046/MC. U.S.
v. Richard A. Smith. CCA 201300401.
No. 15-0067/AF. U.S.
v. Timothy R. Spielman. CCA 38285.
No. 15-0132/AF. U.S.
v. Mark R. Mangasarian. CCA 38427.
No. 15-0246/AF. U.S. v. Johnny A. Escobar.
CCA 38343.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Monday, February 2, 2015
Petitions for Grant
of Review Filed
No. 15-0352/AR. U.S.
v. Jiovanny Leon. CCA 20120685.
Petitions for Grant
of Review Denied
No. 15-0219/AR. U.S.
v. Jonathan L. Kidwell. CCA 20130959.
No. 15-0233/AF. U.S.
v. David E. Allgaier. CCA 38400.
No. 15-0251/AR. U.S.
v. Kevin J. Kitmanyen. CCA 20120632.
No. 15-0271/AR. U.S.
v. Jason D. Salinas. CCA 20120833.
No. 15-0275/AR. U.S.
v. Luke A. Langley. CCA 20140555.
No. 15-0276/AR. U.S.
v. Gary K. Ashmore. CCA 20140357.
No. 15-0278/AR. U.S.
v. Alnivar Avellaneda. CCA 20140457.
Petitions for Grant
of Review - Summary Dispositions
No. 15-0273/AR. U.S. v. Corey A. Soucek. CCA 20140142. On consideration of the petition for grant of
review of the decision of the United States Army Court of Criminal Appeals, it
is ordered that said petition is hereby granted and the decision is affirmed.*
* It is ordered that the
court-martial promulgating order be corrected to reflect that the sentence
included confinement for eight months vice six months.
Interlocutory Orders
No. 14-0804/MC. U.S. v. Vidal E. Sanchez III. CCA 201400053. On consideration of Appellee's
motion to file a 10-day answer letter out of time, it is ordered that said
motion is denied.
No. 15-0310/MC. U.S. v. Spencer J. Russo. CCA 201300324. Appellant's second motion to extend time to extend
time to file the supplement to the petition for grant of review is granted up
to and including February 23, 2015.
No. 15-0348/MC. U.S. v. Christopher A. Quick. CCA 201300341. Appellee/Cross-Appellant's
motion to extend time to file the supplement to the petition for grant of
review is granted to February 19, 2015.
Mandates Issued
No. 14-0453/AR. U.S.
v. James S. Piren. CCA 20110416.
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