2008 (Transition)
Denedo
v. United States, 66 M.J. 114 (the results of
courts-martial are subject to
collateral review by courts outside the military justice system;
courts-martial
also are subject to collateral review within the military justice
system).
(when a petitioner seeks
collateral relief to
modify an action that was taken within the subject matter jurisdiction
of the
military justice system, such as the findings or sentence of a
court-martial, a
writ that is necessary or appropriate may be issued under the All Writs
Act in
aid of the court’s existing jurisdiction).
(Article 76, UCMJ, addressing
the finality of
a court-martial conviction after completion of direct review, provides
a
prudential constraint on collateral review, not a jurisdictional
limitation;
Article 76 does not expressly effect any change in the subject-matter
jurisdiction of Article
(in terms of timing, Article 76, UCMJ,
addressing the finality of a court-martial conviction after completion
of
direct review, serves as a prudential restraint on collateral review of
courts-martial pending completion of direct review; when a coram nobis
petition
is considered after completion of direct review, finality of direct
review
enhances rather than diminishes consideration of a request for
collateral
relief).
(in terms of the scope of
collateral review,
the res judicata effect of Article 76, UCMJ, addressing the finality of
a
court-martial conviction after completion of direct review, means that
the
decision on direct review will stand as final unless it fails to pass
muster
under the highly constrained standards applicable to review of final
judgments).
(under the exhaustion of
remedies doctrine,
courts outside the military justice system normally refrain from
collateral
review of courts-martial until all available military remedies are
exhausted).
(as a general matter, courts
outside the
military justice system will not entertain habeas petitions by military
prisoners until all available military remedies have been exhausted;
however,
the exhaustion requirement is prudential rather than jurisdictional;
the
circumstances of a particular case might warrant consideration of a
habeas
petition by an Article
(even when remedies have been
exhausted, the
scope of collateral review outside the military justice system is
constrained
by the requirement to consider whether the military justice system has
given
full and fair consideration to the claims at issue; de novo review is
appropriate only if the military justice system manifestly refused to
consider
those claims).
(a writ of error coram nobis
should be brought
before the court that rendered the judgment).
(in the military justice
system, the trial
court - the court-martial - does not have independent jurisdiction over
a case
after the military judge authenticates the record and the convening
authority
forwards the record after taking action; because the trial court is not
available for collateral review under the UCMJ or the MCM, collateral
review
within the military justice system does not occur at the trial court
level).
(the courts of criminal
appeals, the
first-level standing courts in the military justice system, provide an
appropriate forum for consideration of coram nobis petitions regarding
courts-martial; during the initial consideration of a case, they engage
in de
novo consideration of the record and expressly act on the findings and
sentence; with respect to collateral review of the present case, they
are
well-positioned to determine whether corrective action on the findings
and
sentence is warranted, including ordering any factfinding proceedings
that may
be necessary).
(the court of criminal appeals
is an
appropriate forum to receive and consider a writ of coram nobis that
involves a
collateral challenge to that court’s approval of the findings and
sentence in a
court-martial, where the court-martial that convicted appellant had
jurisdiction over both the person and the offense and the court of
criminal
appeals had jurisdiction to review and approve the findings and
sentence on
direct review).
(a writ of error coram nobis
requests the
court that imposed the judgment to consider exceptional circumstances,
such as
new facts or legal developments, that may change the result).
(the decision of the court of
criminal appeals
on a writ petition is subject to appellate review).
(coram nobis permits
continuation of
litigation after final judgment and exhaustion or waiver of any
statutory right
of review, but only under very limited circumstances; although a
petition may
be filed at any time without limitation, a petitioner must meet
stringent
threshold requirements: (1) the alleged
error is of the most fundamental character; (2) no remedy other than
coram
nobis is available to rectify the consequences of the error; (3) valid
reasons
exist for not seeking relief earlier; (4) the new information presented
in the
petition could not have been discovered through the exercise of
reasonable
diligence prior to the original judgment; (5) the writ does not seek to
reevaluate previously considered evidence or legal issues; and (6) the
sentence
has been served, but the consequences of the erroneous conviction
persist).
(when reviewing an ineffective
assistance of
counsel claim raised via a coram nobis petition, petitioner must first
satisfy
the threshold requirements for a writ of coram nobis; if the petitioner
does
so, the court then analyzes, in the second tier, the ineffective
assistance of
counsel claim under Strickland v.
Washington, 466 US 668 (1984)).
(appellant’s coram nobis
petition challenging
his court-martial conviction on the ground that his counsel was
ineffective for
failing to inform him of the immigration consequences of his guilty
pleas met
the threshold requirements of coram nobis review; although appellant
had served
his sentence, the alleged error was of the most fundamental character,
there
was no other adequate remedy because appellant was not in custody and
could not
obtain relief through a writ of habeas corpus, appellant did not seek
earlier
relief because the immigration consequences of his pleas did not become
known
to him until the government initiated deportation proceedings, the new
information about the immigration consequences could not have been
discovered
through the exercise of reasonable diligence prior to the original
judgment,
the writ does not seek to reevaluate previously considered evidence or
legal
issues, and the sentence has been served, but serious consequences
persist –
the initiation of deportation proceedings that rely primarily on
appellant’s
court-martial conviction as the basis for deportation).
(appellant’s claim that he
received
ineffective assistance of counsel in a court-martial proceeding when
his
counsel told him that he would not face deportation if he pleaded
guilty at a
special court-martial facially established a sufficient basis for coram
nobis
review, but a ruling on his petition would be premature without a
government
response and consideration by the court of criminal appeals as to
whether his
counsel’s performance was deficient and, if so, whether appellant was
prejudiced thereby).
Loving
v.
United States, 64 M.J. 132 (in Teague v. Lane, the Supreme
Court
held that new constitutional rules should not be applied retroactively
to
convictions on collateral review that have become final, unless a new
rule
falls into one of two exceptions: (1) the new substantive rule places
certain
kinds of individual conduct beyond the power of the criminal law-making
authority to proscribe; or (2) the new procedural rule requires
procedures
without which the likelihood of an accurate conviction is seriously
diminished;
for purposes of Teague, a military justice case is final when
there is a
final judgment as to the legality of the proceedings under Article
71(c), UCMJ,
i.e. when all direct judicial appeals have been exhausted).
(petitioner’s
conviction was final for the purposes of the Teague rule
precluding
retroactive application of new constitutional rules to convictions on
collateral review that have become final, where the CAAF had completed
direct
review, and the Supreme Court granted certiorari and eventually
affirmed the
CAAF’s decision; the President’s decision whether to order the death
sentence
executed or to grant executive clemency is not part of the direct
judicial
review of the case).
(the
rule of Ring
v. Arizona, that a jury, rather than a judge, must find the
existence of an
aggravating factor in a capital case, could not be applied
retroactively to
petitioner’s final conviction on collateral review, as the rule was
procedural
and not substantive).
(the
rule of Apprendi
v. New Jersey, that any fact that increases the criminal penalty
beyond the
statutory maximum must be submitted to a jury and proved beyond a
reasonable
doubt, could not be applied retroactively to petitioner’s final
conviction on
collateral review, as the rule was procedural and not substantive).
(the
authority
of Wiggins v. Smith, providing guidance on what constitutes
ineffective
assistance of counsel during capital sentencing under Strickland v.
Washington and what is a reasonable investigation in the context of
a death
penalty case, may be relied on by petitioner to support his habeas
corpus
petition; unlike the cases of Ring and Apprendi, Wiggins
did not announce a new constitutional rule; Wiggins did not
make new
law, but it did both clarify and illuminate the standards for a
reasonable
investigation in a criminal trial, in general, and in a death penalty
case, in
particular; at its core, Wiggins addressed a misapplication of
the
clearly established legal principles of ineffective assistance of
counsel under
Strickland; as such, both Wiggins and Strickland
present
governing legal authority relevant to petitioner’s habeas
petition).
(the
CAAF adopts
the standards of the Antiterrorism and Effective Death Penalty Act,
codified at
28 USC §§ 2244-2254, as to both the scope of review and the standard of
review
to evaluate habeas corpus claims raising issues of constitutional
law).
(in
reviewing
habeas corpus petitions on collateral review raising issues of
constitutional
law, the CAAF will determine whether its prior review: (1) resulted in
a
decision that was contrary to, or involved an unreasonable application
of,
clearly established Federal law, as determined by the Supreme Court of
the United
States; or (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
prior
proceeding).
(with
respect to
the factual component of a mixed fact/law question in a prior
proceeding being
considered in a habeas corpus petition on collateral review, a
determination of
a factual issue made in the prior proceeding is presumed to be correct,
and a
habeas petitioner has the burden of rebutting the presumption of
correctness by
clear and convincing evidence).
(the
CAAF
declines to adopt the provisions of the statute governing collateral
attacks on
federal convictions, 28 USC § 2255, to evaluate habeas corpus petitions
that
raise a constitutional issue).
(it
is
appropriate to order an evidentiary hearing on a habeas corpus petition
where a
petitioner alleges facts which, if proved, would entitle him to relief,
the
record reveals a genuine factual dispute as to the alleged facts, and
the
petitioner did not receive a hearing on the issue; the decision whether
to hold
an evidentiary hearing is discretionary).
(a DuBay
evidentiary hearing is required to consider petitioner’s claim on
habeas review
that his trial defense counsel who defended him in his capital case
were
deficient in not reasonably investigating his traumatic life history,
where the
prior opinion of the CAAF did not adequately review the nature of
defense
counsel’s investigation; moreover, there was no discussion of the
prevailing
professional norms at the time as to what was a reasonable
investigation or the
red flags that should have alerted defense counsel to dig deeper to
determine
whether petitioner was, indeed, the subject of specific childhood harm
that
might mitigate his culpability as alleged; the statement of legal
conclusions
and the absence of detailed factual analysis of what defense counsel
did and
did not do in investigating the case, reveals that the prior opinion
did not
address whether trial defense counsel chose to abandon their
investigation at
an unreasonable juncture, thereby making a fully informed decision with
respect
to sentencing strategy impossible; the recent authority of Wiggins
reveals that the CAAF previously did not adequately focus on the
reasonableness
of the defense investigation).
(an
ineffective
assistance of counsel issue may be raised in a habeas petition
irrespective of
whether a petitioner could have raised it on direct appeal).
(with
respect to
an issue of ineffective assistance of counsel raised in a habeas
petition, if
there has been no previous factual development at a hearing, and
important
factual questions or mixed questions of fact and law remain after
direct
appeal, then those matters must be addressed in a hearing before a
determination on that issue can be made under the AEDPA standards).
(in
this habeas
petition, an evidentiary hearing on the issue of ineffective assistance
of
counsel is appropriate where there has been no previous factual
development at
a hearing and there remain important factual questions as to
petitioner’s
claim).
(the
U.S. Court
of Appeals for the Armed Forces has collateral review jurisdiction over
a
military death penalty case and may entertain assertions of error as to
the
legality of the sentence in the period after there is a final judgment
as to
the legality of the proceedings under Article 71(c)(1), with the
completion of
direct review, but before the case is final under Article 76 with the
approval
of the sentence by the President; a capital case is final with the
meaning of
Article 76 only after the President, acting under Article 71(a),
approves it;
as finality under Article 76 is the terminal point for proceedings
within the
court-martial and military justice system, the CAAF’s jurisdiction
continues
until a case is final).