Petition for Writ of Certiorari — James W. Richards, IV, Petitioner v. Barbara M. Barrett, Secretary of the Air Force, et al.
Supreme Court briefOct 2, 2020
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No.
In The
Supreme Court of the United States
JAMES W. RICHARDS IV,
Petitioner,
v.
BARBARA M. BARRETT,
SECRETARY OF THE
AIR FORCE,
AARON GUILL,
COLONEL, COMMANDER,
AIR FORCE SECURITY FORCES CENTER,
CAROLINE K. HORTON,
COLONEL, COMMANDANT,
UNITED STATES DISCIPLINARY BARRACKS,
Respondents.
On Petition for a Writ of Certiorari to the
Court of Appeals for the Armed Forces
APPENDIX TO PETITION FOR WRIT OF CERTIORARI
ALEXANDER A. NAVARRO
Counsel of Record
MARK C. BRUEGGER
Appellate Defense Division
United States Air Force
1500 West Perimeter Road Suite 1100
Joint Base Andrews, MD 20762
(240) 612-4770
alexander.navarro.4@us.af.mil
Counsel for Petitioner
1a
TABLE OF CONTENTS
United States Court of Appeals for the Armed Forces, Opinion (Jul. 13, 2017) ……...3a
United States Court of Appeals for the Armed Forces, Order (May 6, 2020) ………..13a
Petition to the United States Court of Appeals for the Armed Forces
for Extraordinary Relief in the Nature of a Writ of Habeas Corpus or, in the
Alternative, a Writ of Error Coram Nobis ………………………………………………..15a
Action of the Secretary of the Air Force (Aug. 27, 2018) ………………………………49a
Petition for Extraordinary Relief: Writ of Habeas Corpus (Sept. 13, 2018) …………50a
Declaration of Petitioner, James W. Richards, IV (Sept. 8, 2018) ….……………….128a
2a
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
James W. RICHARDS IV, Lieutenant Colonel
United States Air Force, Appellant
No. 16-0727
Crim. App. No. 38346
Argued March 15, 2017—Decided July 13, 2017
Military Judge: Mark L. Allred
For Appellant: William E. Cassara, Esq. (argued); Major
Johnathan D. Legg, Major Thomas A. Smith, and Captain
Patrick A. Clary.
For Appellee: Major Mary Ellen Payne (argued); Colonel
Katherine E. Oler and Gerald R. Bruce, Esq. (on brief).
Judge SPARKS delivered the opinion of the Court, in
which Chief Judge ERDMANN, and Judges STUCKY,
RYAN, and OHLSON, joined.
_______________
Judge SPARKS delivered the opinion of the Court.
This case arises out of the conviction of Lieutenant Colonel James W. Richards IV (Appellant), contrary to his pleas,
of one specification of possession of child pornography and
five specifications of indecent acts with a male under sixteen
years of age, both in violation of Article 134, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 934 (2012); and four
specifications of failing to obey a lawful order in violation of
Article 92, UCMJ, 10 U.S.C. § 892 (2012). A military judge,
sitting alone, sentenced Appellant to a dismissal, seventeen
years confinement, and forfeiture of all pay and allowances.
The convening authority approved the adjudged sentence.
Appellant raised numerous issues before the United
States Air Force Court of Criminal Appeals and, on May 2,
2016, the lower court affirmed the findings and sentence.
Appellant then filed a petition for review with this Court.
We granted review on the issue of whether the November 9,
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Opinion of the Court
2011, search authorization was overly broad in failing to
limit the dates of communications being searched.1
Upon review of this issue, we agree with the lower court
that the November 9, 2011, search authorization was sufficiently particularized and that investigators did not exceed
the scope of that authorization in searching the electronic
devices in question.2
Facts
In April 2011, the Air Force Office of Special Investigations (AFOSI) at Tyndall Air Force Base in Florida initiated
an investigation into Appellant based on notification from
the National Center for Missing and Exploited Children that
one of Appellant’s former “little brothers”3 from the Big
Brothers Big Sisters program had alleged Appellant sexually
abused him between 1993 and 1997, prior to Appellant joining the Air Force. Several months into their investigation,
agents received permission to place a GPS tracking device
on Appellant’s car, through which they learned that on a
number of occasions he had signed a seventeen-year-old boy
onto Tyndall Air Force Base. Agents interviewed the boy,
AP, who told them he and Appellant had met online, developed a sexual relationship, and continued to communicate
1 Without briefs, the Court granted review of an issue ad-
dressing the constitution of the lower court. That issue is
moot per our holding in United States v. Dalmazzi, 76 M.J.
1, 3 (C.A.A.F. 2016). The exact issue granted was:
Whether the 9 November 2011 search authorization was overbroad in failing to limit the dates of
the communications being searched, and if so,
whether the error was harmless.
2
On May 11, 2017, Appellant filed two additional motions requesting that the Court consider whether Appellant’s counsel was
ineffective in failing to file in a timely manner Appellant’s additional issues pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982). These motions are denied. On May 24, 2017, Appellant filed a motion for leave to correct errata in a previous motion.
This motion is granted. On May 24, 2017, and May 25, 2017, Appellant filed two separate motions for leave to supplement the record. These motions are denied.
3 Children in the Big Brothers Big Sisters program are commonly
referred to as “little brothers” and “little sisters.”
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Opinion of the Court
online as their relationship evolved. Several weeks later AP
recanted the portion of his statement about himself and Appellant having a sexual relationship.
AFOSI coordinated with the local sheriff’s office who assumed the primary investigative role in Appellant’s relationship with AP. However, AFOSI agents did utilize information from AP’s statement to obtain a search authorization
for Appellant’s residence and person for items used to electronically communicate with AP, requesting the seizure of
“[a]ll electronic media and power cords for devices capable of
transmitting or storing online communications.” The affidavit accompanying the search request stated that AFOSI, in
tandem with the Bay County Sherriff’s Office, was investigating Appellant’s violation of a Florida statute “Computer
Pornography; Traveling to meet a minor.”4 The affidavit detailed the investigation into Appellant’s relationship with
AP, including the fact that the sexual relationship had been
ongoing since approximately April 2011 with sexually explicit online communications starting about a year earlier. The
affidavit did not mention Appellant’s history or any potential allegations connected with the Big Brothers Big Sisters
program.5 On November 9, 2011, agents seized a number of
electronic devices from Appellant’s home. The following day,
the Bay County Sherriff’s Office arrested Appellant and
seized all electronic devices on his person. Among the items
seized from Appellant himself was a personal laptop, which
was handed over to AFOSI on November 24, 2011.
AFOSI agents sent the electronic devices they had collected to the Defense Computer Forensic Laboratory (DCFL)
so that DCFL could extract data to be searched. The DCFL
4 The lower court summarized the relevant section of the Florida
statute as follows:
The Florida state statute defines “traveling to meet
a minor” as, inter alia, a person who travels within
the state in order to engage in an illegal sexual act
with a child under the age of 18 years after using a
computer online or Internet service to seduce, solicit, lure or entice the child to do so.
5
At one point, Special Agent Nishioka testified that he was
searching for communication between Appellant and AP or the
“little brothers.” However, there was no mention of communication
with “little brothers” in the warrant or affidavit.
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Opinion of the Court
application form required submission of both case background information and a copy of the search authority documentation. The case background information provided by
AFOSI agent Sara Winchester included the accusations of
the former “little brother” which formed the genesis of the
investigation and detailed how this led to the identification
of an investigation into Appellant’s relationship to AP and
the subsequent seizure of the electronic materials. Agent
Winchester requested that DCFL:
Search SUBJECT’s Cell Phones, laptop computers,
digital cameras and memory cards for all videos,
images and possible online communication. To include, but not limited to the following: any and all
information saved or maintained on SUBJECT’s
cellular telephones, laptop computers or hard
drives; all associated SIM cards, components, peripherals or other data, relating to the matter being
investigated.
Unfortunately, SA Winchester’s request did not clarify that
the “matter being investigated” was Appellant’s communication with AP between 2010 and 2011, not the earlier accusation by the “little brother.” DCFL created a mirror image of
the data on the devices and placed that data on a forensic
data extraction (FDE). As Mr. Kleeh, the forensics examiner,
described the extraction process, “it goes through the image
– the mirrored copy of the drive, it looks for those files, pictures, chat logs, Word documents, Internet history, and it
pulls them all out and throws them into a directory on a new
drive.”
The first batch of extracted data (FDE #1) was returned
to AFOSI on December 23, 2011, and around January 4,
2012, Special Agent Nishioka conducted a search of the data.
FDE #1 contained materials found on Appellant’s personal
laptop as well as from two seized loose hard drives. Agent
Nishioka described in his statement that “DCFL simply
dumped all pictures and on-line chats from these drives onto
one big drive for review.” Agent Nishioka plugged the FDE
into a stand-alone laptop and, utilizing a graphic user interface or GUI, opened the FDE in which all the materials extracted were arranged in folders and subfolders. He testified
that he worked through the FDE folders in the order they
were listed, beginning with the “pictures” folder. Agent
Nishioka stated that he started by going through the “at-
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Opinion of the Court
tributable” folder. He then moved on to the folders of
“unattributable” material. It appears that by using the term
“unattributable” Agent Nishioka was referring to what Mr.
Kleeh testified to as unallocated or deleted material. Mr.
Kleeh testified that unallocated materials are deleted files
that remain in the system but potentially without dates and
times attached.
While searching the unallocated pictures, Agent
Nishioka encountered an image that appeared to be child
pornography. He stopped his search and sought an additional authorization to search for child pornography. A search of
the remainder of FDE #1, pursuant to the additional authorization, turned up thousands of suspected child pornography
images. The discovery of child pornography on these devices
formed the basis for additional search authorizations, turning up more images which led to the charges of possessing
child pornography and indecent acts of which Appellant was
ultimately convicted.
At trial, Appellant moved to suppress the evidence derived from the November 9, 2011, search authorization because it was overbroad. The military judge denied Appellant’s motion. The scope and propriety of that initial search
authorization is now at issue in this appeal.
Discussion
“A military judge’s decision to admit evidence is reviewed
for an abuse of discretion.” United States v. Hills, 75 M.J.
350, 354 (C.A.A.F. 2016). “An abuse of discretion occurs
when we determine that the military judge’s findings of fact
are clearly erroneous or that he misapprehended the law.”
United States v. Clayton, 68 M.J. 419, 423 (C.A.A.F. 2010).
When we review a decision on a motion to suppress, we consider the evidence in the light most favorable to the prevailing party. United States v. Cowgill, 68 M.J. 388, 390
(C.A.A.F. 2010). We review de novo questions regarding
whether a search authorization is overly broad. United
States v. Maxwell, 45 M.J. 406, 420 (C.A.A.F. 1996). “Evidence derivative of an unlawful search, seizure, or interrogation is commonly referred to as the ‘fruit of the poisonous
tree’ and is generally not admissible at trial.” United States
v. Conklin, 63 M.J. 333, 334 (C.A.A.F. 2006) (citing Wong
Sun v. United States, 371 U.S. 471, 488 (1963)).
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Opinion of the Court
A search authorization, whether for a physical location or
for an electronic device, must adhere to the standards of the
Fourth Amendment of the Constitution. The Fourth
Amendment states that “no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. This insistence on particularity is a defining aspect of search and
seizure law.
The manifest purpose of this particularity requirement was to prevent general searches. By limiting
the authorization to search to the specific areas and
things for which there is probable cause to search,
the requirement ensures that the search will be
carefully tailored to its justifications, and will not
take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.
Maryland v. Garrison, 480 U.S. 79, 84 (1987). “The Fourth
Amendment requires that a search warrant describe the
things to be seized with sufficient particularity to prevent a
general exploratory rummaging in a person’s belongings.”
United States v. Carey, 172 F.3d 1268, 1272 (10th Cir. 1999).
Despite the importance of preserving this particularity
requirement, considerable support can be found in federal
law for the notion of achieving a balance by not overly restricting the ability to search electronic devices.
The prohibition of general searches is not to be confused with a demand for precise ex ante knowledge
of the location and content of evidence .... The proper metric of sufficient specificity is whether it was
reasonable to provide a more specific description of
the items at that juncture of the investigation.
United States v. Richards, 659 F.3d 527, 541 (6th Cir. 2011)
(alteration in original) (quoting United States v. Meek, 366
F. 3d 705, 716 (9th Cir. 2004)); see id. at 540–42 (court allowing the search of an entire server known to contain websites harboring child pornography). “[I]t is folly for a search
warrant to attempt to structure the mechanics of the search
and a warrant imposing such limits would unduly restrict
legitimate search objectives.” United States v. Burgess, 576
F.3d 1078, 1094–95 (10th Cir. 2009) (court upholding a warrant to search “all computer records” for evidence of drug
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Opinion of the Court
trafficking). Instead of attempting to set out bright line rules
for limiting searches of electronic devices, the courts have
looked to what is reasonable under the circumstances. “As
always under the Fourth Amendment, the standard is reasonableness.” United States v. Hill, 459 F.3d 966, 974–77
(9th Cir. 2006) (court upholding an off-site search of all of
the defendant’s computer storage media for evidence of child
pornography).6
Searches of electronic devices present distinct issues surrounding where and how incriminating evidence may be located. While we support the notion that “warrants for computer searches must affirmatively limit the search to
evidence of specific federal crimes or specific types of material,” United States v. Riccardi, 405 F.3d 852, 862 (10th Cir.
2005), we also recognize the dangers of too narrowly limiting
where investigators can go. As stated by the United States
Court of Appeals for the Seventh Circuit, “[u]nlike a physical
object that can be immediately identified as responsive to
the warrant or not, computer files may be manipulated to
hide their true contents.” United States v. Mann, 592 F.3d
779, 782 (7th Cir. 2010). “[I]n the end, there may be no practical substitute for actually looking in many (perhaps all)
folders and sometimes at the documents contained within
those folders, and that is true whether the search is of computer files or physical files. It is particularly true with image
files.” Burgess, 576 F.3d at 1094; see also United States v.
Williams, 592 F.3d 511, 521–22 (4th Cir. 2010) (positing an
implied authorization for officers to open each file on the
computer and view its contents, at least cursorily, to determine whether it falls within the scope of the warrant’s authorization. “To be effective, such a search could not be limited to reviewing only the files’ designation or labeling,
because the designation or labeling of files on a computer
can easily be manipulated to hide their substance”). Of
course our reluctance to prescribe ex ante limitations or require particular search methods and protocols does not render them immune from an ex post reasonableness analysis.
See, e.g., United States v. Christie, 717 F.3d 1156, 1167 (10th
Cir. 2013) (“[E]ven if courts do not specify particular search
protocols up front in the warrant application process, they
retain the flexibility to assess the reasonableness of the
6 Obviously, what is reasonable in one instance may not be so in
another.
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Opinion of the Court
search protocols the government actually employed in its
search after the fact, when the case comes to court, and in
light of the totality of the circumstances.”).
In charting how to apply the Fourth Amendment to
searches of electronic devices, we glean from our reading of
the case law a zone in which such searches are expansive
enough to allow investigators access to places where incriminating materials may be hidden, yet not so broad that they
become the sort of free-for-all general searches the Fourth
Amendment was designed to prevent.
On one hand, it is clear that because criminals
can—and often do—hide, mislabel, or manipulate
files to conceal criminal activity, a broad, expansive
search of the hard drive may be required.... On the
other hand, ... granting the Government a carte
blanche to search every file on the hard drive impermissibly transforms a “limited search into a
general one.”
United States v. Stabile, 633 F.3d 219, 237 (3d Cir. 2011) (citations omitted).
Appellant argues that the November 9, 2011, authorization was overbroad because it did not contain a temporal
limitation when that information was available and known
to investigators. Applying the above Fourth Amendment
law, we conclude that the authorization did not require a
date restriction because it was already sufficiently particularized to prevent a general search. Though a temporal limitation is one possible method of tailoring a search authorization, it is by no means a requirement. Here, the
authorization and accompanying affidavit did not give authorities carte blanche to search in areas clearly outside the
scope of the crime being investigated. They were entitled to
search Appellant’s electronic media for any communication
that related to his possible violation of the Florida statute in
his relationship with AP.
We also conclude that the authorization allowed for a
search of the unallocated space and through potential
communications materials that did not have an immediately
clear date associated with them. The precise extraction
process utilized by Agent Kleeh and the accessibility of
metadata on unallocated materials was not fleshed out in
trial or anywhere on the record. However, we deduce from
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Opinion of the Court
Mr. Kleeh’s testimony that metadata for unallocated
materials often does not exist or is difficult to extract. We
conclude that the possibility that relevant communications
could have existed among the unallocated materials
provided sufficient basis to subject those materials to an
authorized and particularized search.
The record also does not disclose the origin of the first
image of child pornography encountered by Agent Nishioka.
Though he indicates he saw it in the folder of unallocated or
unattributable materials, we do not know whether the specific image was drawn from the laptop or one of the two external hard drives. A list of images compiled by the Government as potential Rule for Courts-Martial 404(b) evidence
indicates that child pornography from both the laptop and
one of the external hard drives appeared in the unallocated
folder viewed around January 4, 2012. This is supported by
testimony from Mr. Kleeh. Neither Agent Nishioka nor trial
counsel indicated any obvious delineation between materials
found on individual devices in their description of what was
contained on FDE #1. The issue of the shutdown dates of the
two loose hard drives was raised during oral argument and
addressed by both parties in subsequent motions. The FDE
lists the shutdown dates for the hard drives as 2006 and
2008, years before Appellant initiated his relationship with
AP. Assuming the shutdown dates were indicative of the
timing of their last use, these materials were outside the
scope of the search authorization, which described criminal
activity dating no earlier than approximately April 2010.
However, because images of child pornography from the laptop, with a last shutdown date in 2011, appeared in the unallocated materials Agent Nishioka searched, we conclude
that he either did discover or inevitably would have discovered child pornography that validly lay within the scope of
the search regardless of the significance of the shutdown
dates on the two loose hard drives.
Agent Nishioka’s discovery of the child pornography images within the folder of unallocated materials was consistent with Horton v. California and the plain view exception to the Fourth Amendment. 496 U.S. 128 (1990). Under
Horton, in order for the plain view exception to apply: (1) the
officer must not violate the Fourth Amendment in arriving
at the spot from which the incriminating materials can be
plainly viewed; (2) the incriminating character of the mate-
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Opinion of the Court
rials must be immediately apparent; and (3) the officer must
have lawful access to the object itself. Id. at 136–37. Here,
Agent Nishioka was lawfully searching through the extracted files based on what we have determined to be a valid authorization when he encountered what appeared to be child
pornography among the unallocated materials. Upon spotting the child pornography, he properly stopped his search
and obtained a new authorization that allowed him to search
specifically for child pornography.
We hold that the November 9, 2011, search authorization
was sufficiently particularized to avoid any violation of Appellant’s Fourth Amendment rights and uphold the military
judge’s decision not to suppress evidence derived from the
fruits of that authorization.
Decision
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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United States Court of Appeals
for the Armed Forces
Washington, D.C.
James W.
Richards, IV,
Petitioner
USCA Dkt. No. 20-0212/AF
v.
ORDER
Barbara M.
Barrett,
Secretary of the United States Air Force,
Brian S.
Greenroad, Colonel, Commander,
Air Force Security Forces Center,
and
Caroline K. Horton,
Colonel, Commandant,
United States Disciplinary Barracks
Respondents
On consideration of the petition for extraordinary relief in the nature of a
writ of habeas corpus or, in the alternative, a writ of error coram nobis, it is, by the
Court, this 6th day of May, 2020,
ORDERED:
That to the extent that the petition seeks a writ of error coram nobis, it is
denied; and
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Richards v. U.S., 20-0212/AF
That to the extent that the petition seeks a writ of habeas corpus, it is
dismissed for lack of jurisdiction.
For the Court,
/s/
cc:
Joseph R. Perlak
Clerk of the Court
The Judge Advocate General of the Air Force
Appellate Defense Counsel (Bruegger)
Appellate Government Counsel (Payne)
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IN THE UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
JAMES W. RICHARDS, IV
Lieutenant Colonel (O-5), USAF
Petitioner,
v.
BARBARA M. BARRETT
Secretary of the Air Force
BRIAN S. GREENROAD
Colonel (O-6), USAF
Commander
Air Force Security Forces Center
CAROLINE K. HORTON
Colonel (O-6), USA
Commandant
United States Disciplinary Barracks
Respondents.
USCA Dkt. No. ________/AF
PETITION FOR EXTRAORDINARY RELIEF IN THE NATURE
OF A WRIT OF HABEAS CORPUS OR, IN THE ALTERNATIVE,
A WRIT OF ERROR CORAM NOBIS
15a
INDEX
Petition ….………………………………………………………………………….1
Preamble ….……………………………………………………………………….. 1
I. History of the Case ...……………...……….…………………………………..1
II. Reasons Relief Not Sought Below…..………………………………..………..3
III. Relief Sought ………………………………………………………………...4
IV. Issues Presented ………………………………………………………….......4
V. Statement of Facts ………………………………………………………….....5
VI. Reasons Why This Court Should Grant Review …………………………......5
(1) MILITARY COURTS HAVE JURISDICTION TO ADJUDICATE
POST-FINALITY CLAIMS BROUGHT VIA EXTRAORDINARY
WRITS BY MILITARY INMATES CONFINED TO MILITARY
CONFINEMENT FACILITIES PURSUANT TO A COURTMARTIAL SENTENCE TO CONFINEMENT UNDER THE
UNIFORM CODE OF MILITARY JUSTICE …………………….5
(2) THE SECRETARY’S PURPORTED ACTION UNDER ARTICLE
71, UCMJ, WAS A NULLITY BECAUSE IT OCCURRED WHILE
THE LEGALITY OF PETITIONER’S COURT-MARTIAL
PROCEEDINGS WAS ACTIVELY UNDER CHALLENGE …..15
(3) EVEN IF THE ACTION IS VALID UNDER ARTICLE 76, UCMJ,
THE FACTS OF THIS CASE WARRANT A FINDING OF
JURISDICTION UNDER THE PRINCIPLES OUTLINED BY
THIS COURT IN GARRETT AND THE SUPREME COURT IN
DENEDO ………………………………………………………...17
(4) THIS COURT SHOULD RECOGNIZE AN EXCEPTION TO THE
FINALITY RULE FOR CASES IN WHICH GOVERNMENT
MISCONDUCT IS A MATERIAL FACTOR IN THE
APPLICATION OF THE FINALITY RULE …………………… 20
(5) THE APPEARANCE OF UNLAWFUL INFLUENCE (UCI)
INFECTED THE PRETRIAL, TRIAL, AND POST-TRIAL
PHASES OF PETITIONER’S COURT-MARTIAL, DEPRIVING
i
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HIM OF HIS FIFTH AMENDMENT RIGHTS TO DUE PROCESS
……………………………………………………………………23
VII. Respondents’ Addresses, Telephone, and Facsimile Numbers …………….26
Appendices ………………………………………………………………………..27
Certificate of Compliance, Filing and Service …………………………………….28
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TABLE OF AUTHORITIES
Cases
United States Supreme Court
Burns v. Wilson, 346 U.S. 137 (1953) …………………………………………...7-8
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) ……………….10
Noyd v. Bond, 395 U.S. 683 (1969) ………………………………………8-9, 18-19
Ortiz v. United States, 138 S. Ct. 2165 (2018) ………………………………….....22
Schlesinger v. Councilman, 420 U.S. 738 (1975) …………………………..6, 13-14
Sturgeon v. Frost, 136 S. Ct. 1061 (2016) ………………………………………...10
United States v. Denedo, 556 U.S. 904 (2009) …………………………….....passim
Court of Appeals for the Armed Forces
Boudreaux v. NMCMR, 28 M.J. 181 (C.M.A. 1989) ……………………………...16
Diaz v. Judge Advocate General of the Navy, 59 M.J. 34 (C.A.A.F. 2003) ………20
Garrett v. Lowe, 39 M.J. 293 (C.M.A. 1994) ………………………………….17-18
Gray v. United States, 77 M.J. 5 (C.A.A.F. 2017)) …………………………...passim
Loving v. United States, 62 M.J. 235 (C.A.A.F. 2005) …………………………….17
Loving v. United States, 64 M.J. 132 (C.A.A.F. 2006) ………………………..12, 18
McPhail v. United States, 1 M.J. 407 (C.M.A. 1976) …………………….6-7, 13-14
United States v. Arness, 74 M.J. 441 (C.A.A.F. 2015) …………………………..…7
United States v. Bailey, 68 M.J. 409 (C.A.A.F. 2009) …………………………….16
United States v. Barry, 78 M.J. 70 (C.A.A.F. 2018) ………………………………25
United States v. Bevilacqua, 39 C.M.R. 10 (C.M.A. 1968) ……………………….14
United States v. Chin, 75 M.J. 220 (2016) ………………………………………...10
United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006) …………………………..20
United States v. Snyder, 18 U.S.C.M.A. 480 (1969) …………………………....9-10
Service Courts of Criminal Appeals
Chapman v. United States, 75 M.J. 598 (AF Ct. Crim. App. 2016) ………………12
iii
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Dew v. United States, 48 M.J. 639 (A. Ct. Crim. App. 1998) …………………11-14
Fisher v. Commander, 56 M.J. 691 (N-M. Ct. Crim. App. 2001) …………………11
Gray v. Belcher, 10 M.J. 646 (A. Ct. Crim. App. 2012) …………………………..12
Ponder v. Stone, 54 M.J. 613 (N-M. Ct. Crim. App. 2000) …………………...13-14
Richards v. James, 2018 CCA LEXIS 507 (A.F. Ct. Crim. App. October 19, 2018)
(unpub. op.) …………………………………………………………...............15, 21
Roberts v. United States, 77 M.J. 615 (A. Ct. Crim. App. 2018) ………………….12
Sutton v. United States, 2018 CCA LEXIS 349 (AF Ct. Crim. App. 2018) ……….12
United States v. Kennedy, 12 M.J. 620 (NMCMR 1980) ………………………….16
United States v. Therasse, 17 M.J. 1068 (AFCMR 1984) ………………………...16
United States v. Williams, 2011 CCA LEXIS 893 (A.F. Ct. Crim. App. 2011) …..11
Statutes, Rules, Regulations, and Constitutional Provisions
All Writs Act, 29 U.S.C. § 1651(a) ………………………………………..9, 13, 18
Article 2(a)(7), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 2(a)(7)
…………………………………………………………………………………10-11
Article 66, UCMJ, 10 U.S.C. §866 ….…………………………………..1, 11, 15-16
Article 67, UCMJ, 10 U.S.C. § 867 ……………………………….……1, 11, 13, 16
Article 67a(a), UCMJ, 10 U.S.C. § 867a(a) ………………………………..…...…16
Article 70, UCMJ, 10 U.S.C. § 870 ………………………………………..….20, 22
Article 71, UCMJ, 10 U.S.C. § 871 ……………………………………….….passim
Article 71(c)(1), UCMJ, 10 U.S.C. § 871(c)(1) …………………………………..16
Article 71(c)(1)(C), UCMJ, 10 U.S.C. §871(c)(1)(C) …………………………….16
Article 76, UCMJ, 10 U.S.C. § 876 …………………………………………..passim
U.S. Const., amend. V …………………………………………………………...…2
Miscellaneous
95 Cong. Rec. H5719-22 (daily ed. May 5, 1949) ………………………………….8
95 Cong. Rec. at 165 ……………………………………………………………....19
iv
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S. Rep. No. 81-486 (1949) ………………………………………………………..13
v
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IN THE UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
JAMES W. RICHARDS, IV
Lieutenant Colonel (O-5)
United States Air Force
Petitioner
v.
BARBARA M. BARRETT
Secretary of the Air Force
BRIAN S. GREENROAD
Colonel (O-6)
Commander
Air Force Security Forces Center
CAROLINE K. HORTON
Colonel (O-6)
Commandant
United States Disciplinary Barracks
Respondents.
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PETITION FOR EXTRAORDINARY
RELIEF IN THE NATURE OF A
WRIT OF HABEAS CORPUS OR,
IN THE ALTERNATIVE, A WRIT
OF ERROR CORAM NOBIS
USCA Dkt. No.
/AF
21 April 2020
PREAMBLE
Lt Col James W. Richards, IV, hereby personally prays for an order directing
Respondents to release Petitioner from confinement due to the appearance of
unlawful command influence at the time of his court-martial.
I. HISTORY OF THE CASE
Petitioner was convicted of various offenses at a court-martial held in 2013.
He timely appealed via Articles 66 and 67, Uniform Code of Military Justice
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(UCMJ). When this Court denied Petitioner’s direct appeal, he petitioned the U.S.
Supreme Court for review.
In May 2018—while his petition for a writ of certiorari was still pending
with the Supreme Court—Petitioner sent the Air Force Appellate Defense Division
(ADD) a petition for a writ of habeas corpus. This petition focused on the
appearance of unlawful command influence (UCI) during various phases of his
court-martial, resulting in a denial of his Fifth Amendment right to due process.
The ADD agreed to file the petition with the Air Force Court of Criminal Appeals
(AFCCA) on Petitioner’s behalf; however, ADD failed to file the petition until
September 13, 2018. Appendix A. By this time, the Supreme Court had denied
review of Petitioner’s direct appeal (on June 28, 2018) and Respondent’s
predecessor, Dr. Heather Wilson, purported to take final action under Article 71
(on August 27, 2018).
On September 17, 2018, the Government moved to dismiss the UCI petition
for lack of jurisdiction (Appendix B) and Petitioner responded. Appendix C. On
October 22, 2019, the AFCCA granted the Government’s motion, concluding it
lacked jurisdiction because the habeas petition was filed after direct review was
completed under Article 76 and final action was taken under Article 71. Appendix
D.
Petitioner subsequently sought reconsideration (Appendix E) and the
Government opposed. Appendix F. On December 7, 2018, the AFCCA denied the
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motion. Appendix G.
On December 26, 2018, Petitioner’s then-counsel filed for an enlargement
of time with this Court, seeking an additional 20 days to file a writ-appeal petition
of the AFCCA’s dismissal. Appendix I. On December 27, 2018, the Government
opposed the requested enlargement on the basis that this Court lacked jurisdiction
to hear the writ-appeal petition and, therefore, an enlargement of time was
unnecessary. Appendix J. With the motion for an enlargement of time still
pending, Petitioner filed his writ-appeal petition on January 14, 2019. Appendix
K.1 The Government responded on January 25, 2019. Appendix L. On February
6, 2019, this Court summarily denied Petitioner’s motion for an enlargement of
time and subsequently dismissed the writ-appeal petition as moot. Appendix M.
This Court later denied Petitioner’s motion for reconsideration.
II. REASONS RELIEF NOT SOUGHT BELOW
Petitioner sought similar relief below by filing a separate petition for a writ
of habeas corpus with the AFCCA. Appendix A. That writ, however, was filed
prior to Petitioner obtaining supplemental, supporting materials through the
Freedom of Information Act (FOIA). Appendix N. Although the AFCCA’s rules
of practice and procedure do not include a specific deadline by which to file
1
The appendices and subappencies have been removed from Appendix K. This
information can be found in Appendices A-G.
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extraordinary writs, the lower court previously found that it did not have
jurisdiction to address the merits of the earlier petition. The AFCCA based its
conclusion on its prior precedent, as well as this Court’s interpretation that finality
under Article 76 terminates a military court’s jurisdiction over writs for
extraordinary relief from military confinees. Given the AFCCA’s jurisdictional
posture, filing the instant petition that includes the newly obtained materials
(Appendix N) with the lower court would be futile.
III. RELIEF SOUGHT
Petitioner respectfully asks this Court to determine it has jurisdiction to
address the merits of his Petition for a Writ of Habeas Corpus (or, in the
alternative, a Writ of Error Coram Nobis) and find that, due to the appearance of
UCI, Petitioner’s convictions and sentence be set aside with prejudice.
IV. ISSUES PRESENTED
(1)
WHETHER THE MILITARY COURTS HAVE JURISDICTION
TO ADJUDICATE POST-FINALITY CLAIMS BROUGHT VIA
EXTRAORDINARY WRITS BY MILITARY INMATES
CONFINED TO MILITARY CONFINEMENT FACILITIES
PURSUANT TO A COURT-MARTIAL SENTENCE TO
CONFINEMENT UNDER THE UNIFORM CODE OF MILITARY
JUSTICE?
(2)
THE SECRETARY OF THE AIR FORCE PURPORTED TO TAKE
ACTION UNDER ARTICLE 71 DESPITE THE FACT THAT THE
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LEGALITY
OF
PETITIONER’S
COURT-MARTIAL
PROCEEDINGS WAS NOT YET FINAL. WAS THE
SECRETARY’S PURPORTED ARTICLE 71 ACTION A
NULLITY?
(3)
EVEN IF THE ACTION IS VALID UNDER ARTICLE 76, DO THE
FACTS OF THIS CASE WARRANT A FINDING OF
JURISDICTION UNDER THE PRINCIPLES OUTLINED BY THIS
COURT IN GARRETT AND THE SUPREME COURT IN
DENEDO?
(4)
WHETHER THIS COURT SHOULD RECOGNIZE AN
EXCEPTION TO THE FINALITY RULE FOR CASES IN WHICH
GOVERNMENT MISCONDUCT IS A MATERIAL FACTOR IN
THE APPLICATION OF THE FINALITY RULE?
(5)
WHETHER THE APPEARANCE OF UNLAWFUL INFLUENCE
(UCI) INFECTED THE PRETRIAL, TRIAL, AND POST-TRIAL
PHASES OF PETITIONER’S COURT-MARTIAL, DEPRIVING
HIM OF HIS FIFTH AMENDMENT RIGHTS TO DUE PROCESS?
V. STATEMENT OF FACTS
The facts necessary for the resolution of this claim of error are set forth
below, in the briefing provided to the lower court (Appendix A), and in additional
information contained in the Appendices to this Petition.
VI. REASONS WHY THIS COURT SHOULD GRANT REVIEW
(1)
MILITARY COURTS HAVE JURISDICTION TO ADJUDICATE
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POST-FINALITY CLAIMS BROUGHT VIA EXTRAORDINARY
WRITS BY MILITARY INMATES CONFINED TO MILITARY
CONFINEMENT FACILITIES PURSUANT TO A COURTMARTIAL SENTENCE TO CONFINEMENT UNDER THE
UNIFORM CODE OF MILITARY JUSTICE.
The Supreme Court in Schlesinger v. Councilman, 420 U.S. 738, 758 (1975)
stated, “It must be assumed that the military court system will vindicate a
serviceman’s constitutional rights.” That assumption may no longer apply following
this Court’s decision in Gray v. United States, 77 M.J. 5 (C.A.A.F. 2017). In Gray,
this Court held that it did not have jurisdiction to hear a writ of coram nobis because
Gray’s case was final under Article 76.
Critically, while the Supreme Court
ultimately declined to grant Gray’s writ of certiorari, the Solicitor General conceded
in the Government’s Answer that this Court erred in concluding that Article 76’s
post-finality rule deprived the Court of jurisdiction to hear Gray’s writ. Appendix
N at 12, 18. Rather than argue the post-finality rule applied, the Solicitor General
instead posited that the writ of error coram nobis did not lie due to the fact that Gray
was still confined. Id. Petitioner respectfully asks this Court to revisit its analysis
in Gray with an eye towards the present case and others sure to follow.
This Court once believed that, “To deny it has the authority to relieve a person
subject to the Uniform Code of the burdens of judgment by an inferior court that has
acted contrary to the constitutional command and decisions of this Court is to destroy
the ‘integrated nature’ of the military court system and to defeat the high purpose
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Congress intended [the C.A.A.F.] to serve.” McPhail v. United States, 1 M.J. 407,
462 (C.M.A. 1976). Yet, as illustrated in Gray and United States v. Arness, 74 M.J.
441 (C.A.A.F. 2015), this Court now appears to believe that military inmates,
confined to military confinement facilities as a result of court-martial convictions,
must petition the civilian courts for relief from issues that arise after action is taken
under Article 71, and a conviction becomes “final” under Article 76.
Respectfully, this interpretation contravenes both Congressional intent in
creating the UCMJ, and established precedent from this Court and the Supreme
Court. Among that precedent is United States v. Denedo, 556 U.S. 904 (2009), in
which the Supreme Court considered whether this Court had jurisdiction to hear a
writ of error coram nobis brought by a former servicemember who had served his
court-martial sentence and was discharged from the military. The Denedo Court
determined that this Court did have jurisdiction to hear such claims as an exception
to Article 76’s post-finality rule. In reaching that conclusion, the Supreme Court
emphasized that “the long-recognized authority of a court to protect the integrity of
its earlier judgments impels the conclusion that the finality rule is not so inflexible
that it trumps each and every compelling consideration.” Id. at 916.
Further, in Burns v. Wilson, the Supreme Court recognized that “Congress has
taken great care both to define the rights of those subject to military law, and provide
a complete system of review within the military system to secure those rights.” 346
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U.S. 137, 140 (1953). More specifically, Congress created this Court to ensure
uniformity in military court decisions. 95 Cong. Rec. H5719-22 (daily ed. May 5,
1949). Accordingly, if this Court refuses to hear Petitioner’s claim of error, the
military justice system is not “complete” as envisioned by Congress.
Not only had Congress recognized this Court’s critical role in ensuring the
completeness of the military justice system, but the Supreme Court has expressly
noted the necessity for a “substantial degree of civilian deference to the military
tribunals” and for the military courts to exercise “primary responsibility” for the
supervision of military justice. See Noyd v. Bond, 395 U.S. 683, 693-94 (1969). In
other words, military issues should be heard by military courts first.
In the context of Petitioner’s claim of error, it would be particularly odd for
an Article III court to decide whether UCI impacted Petitioner’s court-martial, as an
analog to UCI simply does not exist in the civilian criminal justice system. Forcing
a claim of error relating to UCI into the civilian courts necessarily would require
those courts to solely consider military rules and regulations, military command
structure, the UCMJ, and decisions from military appeal courts—all in an effort to
decide an issue they likely have never seen before. Conversely, military Courts of
Criminal Appeals (CCAs) and this Court are well-versed in the law regarding UCI
and routinely handle such issues.
Should this Court refuse to hear this UCI petition, it will shunt a uniquely
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military claim of error into a civilian court system ill-equipped to handle it,
subjecting Petitioner to a particularized legal forum that is neither designed for nor
concerned with providing uniformity to the extent the UCMJ requires. Moreover, it
will exacerbate a paradoxical problem wherein individuals confined in military
prisons must wait years or even decades before this Court will act. Indeed, this
Court’s current interpretation of its jurisdiction over petitions for extraordinary relief
does not necessarily revolve around whether it has jurisdiction but rather when. For
example, even if this Court were to refuse to hear this petition now, Petitioner could
file a writ of error coram nobis once he is released from confinement and, in
accordance with Denedo, this Court should acknowledge its jurisdiction to hear the
claim of error. But see Gray, 77 M.J. at 6. But Petitioner’s term of confinement
does not expire until December 25, 2028. In creating what it believed would be an
“integrated” and “complete” military justice system, Congress surely never
envisioned that a servicemember confined in a military prison would have to wait
until he was actually released—which, in this case, would be nearly nine more
years—to have his specialized claim of error adjudicated in the military system.
In United States v. Snyder, this Court’s predecessor held:
There can be no doubt of the fact that this Court does
possess the authority to resort to extraordinary writs
under the All Writs Act, 28 USC § 1651. [Noyd, 395
U.S. 683] specifically recognizes our authority in this
area. But such resort is had, under the very terms of the
statute, in aid of the exercise of our jurisdiction over
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cases properly before us or which may come here
eventually.
18 U.S.C.M.A. 480, 483 (1969) (emphasis added) (other citations omitted). Again,
in accordance with Denedo, once Petitioner serves his sentence, the military court
system will have jurisdiction to hear a coram nobis petition. If the military court can
hear this issue at a later time, regardless of how that issue may come before it, then
pursuant to Snyder, the courts should presently have the jurisdiction to hear those
issues under the All Writs Act, 28 U.S.C. § 1651(a). In other words, there is no
reason to force a petitioner to wait years or decades to bring an action.
Further support for considering this writ can be found in the UCMJ; namely,
Article 2(a)(7)’s extension of jurisdiction over individuals convicted by courtmartial and in the custody of the armed forces. “It is a fundamental canon of
statutory construction that the words of a statute must be read in their context and
with a view to their place in the overall statutory scheme.” FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (internal quotation marks
omitted) (citation omitted). Indeed, “[s]tatutory language cannot be construed in a
vacuum.” United States v. Chin, 75 M.J. 220, 224 (2016) (Stucky, CJ, dissent)
(citing Sturgeon v. Frost, 136 S. Ct. 1061 (2016)) (other citation omitted).
Accordingly, Article 76’s finality language must be read in conjunction with Article
2(a)(7)’s jurisdictional hook, with an eye towards harmonizing the provisions in the
context of the UCMJ’s overall statutory scheme. In so doing, it should be evident
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that Congress intended for convicted servicemembers to not merely be subject to
prosecution under the UCMJ while serving confinement in military prisons, but that
they also have access to the military court system to adjudicate disputes concerning
their imposed terms of confinement. It would be incongruent for the UCMJ to allow
the Armed Forces to court-martial one of its inmates, yet preclude that same inmate
from challenging his status as an inmate through collateral impeachment of his courtmartial conviction in a military court. Instead, to harmonize Article 2(a)(7) with
Article 76, this Court should recognize an exception to the finality rule for those
persons who remain subject to the UCMJ due to their continued imprisonment in a
military confinement facility.
Finding that jurisdiction exists over a writ of habeas corpus by a military
member in a military confinement facility, who is also subject to the military justice
by operation of Article 2(a)(7), is not a new or novel concept. Prior to 2012, each
service CCA found that jurisdiction existed to hear post-finality habeas petitions by
military inmates. See, e.g., United States v. Williams, 2011 CCA LEXIS 893 (A.F.
Ct. Crim. App. 2011); Dew v. United States, 48 M.J. 639 (A. Ct. Crim. App. 1998);
Fisher v. Commander, 56 M.J. 691 (N-M. Ct. Crim. App. 2001). Since that time,
there have be no applicable changes to Articles 66, 67, 71 or 76, nor has the Supreme
Court addressed this specific issue. Yet, in recent years, the CCAs have consistently
upended their own precedent by finding no jurisdiction to hear habeas petitions by
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military inmates based on the post-finality rule. See, e.g., Sutton v. United States,
2018 CCA LEXIS 349 (AF Ct. Crim. App. 2018); Roberts v. United States, 77 M.J.
615 (A. Ct. Crim. App. 2018). Notably, none of these recent cases have cited to
decisions by this Court or the Supreme Court, or to any specific statutory provision,
as support for their respective post-finality conclusions. Akin to Petitioner’s case,
the AFCCA simply cites to its own decision in Chapman v. United States, 75 M.J.
598 (AF Ct. Crim. App. 2016), which in turn does not cite to any authority for the
conclusion that jurisdiction did not exist over the habeas petition for relief. Instead,
Chapman cites to the Army Court of Criminal Appeals’ decision in Gray v. Belcher,
10 M.J. 646, 647 (A. Ct. Crim. App. 2012), which in turn cites to dicta in Loving v.
United States, 64 M.J. 132, 135 (C.A.A.F. 2006). 75 M.J. at 600. Loving, however,
is inapplicable to the present issue in that, at the time of Loving’s petition, final
action under Article 76 had not occurred.
Therefore, this Court has yet to
specifically address the question presented here.
The basis for finding that jurisdiction exists for military courts to hear habeas
petitions by military inmates in military confinement facilities was explained in very
simple terms by the Army CCA in Dew: “The finality provisions contained in Article
76, UCMJ, were never intended to preclude all collateral attacks.” 48 M.J. at 647
(emphasis added).
The Army CCA then further noted: “The drafters of this
provision recognized that decisions otherwise final under Article 76, UCMJ, were
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subject to a petition for a writ of habeas corpus.” Id. at n.13 (referencing S. Rep.
No. 81-486 (1949). For added support, the Army CCA cited to McPhail, 1 M.J. at
461, where this Court’s predecessor opined:
This Court is the supreme court of the military judicial
system. To deny that it has authority to relieve a
person subject to the Uniform Code of the burdens of
a judgment by an inferior court that has acted
contrary to constitutional command and decisions of
this Court is to destroy the “integrated” nature of the
military court system and to defeat the high purpose
Congress intended this Court to serve. Reexamining
the history and judicial applications of the All Writs Act,
we are convinced that our authority to issue an
appropriate writ in “aid” of our jurisdiction is not limited
to the appellate jurisdiction defined in Article 67.
Dew, 48 M.J. at 646 (emphasis added).
Finally, the Army CCA in Dew acknowledged:
Collateral attack has long been available to review
military judgments to ensure they pass constitutional
muster. See Schlesinger [420 U.S. 738] (judgments of
the military court system remain subject in proper cases
to collateral impeachment). As the United States
Supreme Court stated, “it must be assumed that the
military court system will vindicate servicemen’s
constitutional rights.” See Schlesinger, 420 U.S. at
758.
Dew, 48 M.J. at 647 (emphasis added).
As later elucidated by the Navy-Marine Corps CCA in Ponder v. Stone:
In establishing the military justice system, the intent of
Congress was to create “an integrated system” of
military courts that had sufficient “familiarity with
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military problems” to handle these specialized issues in
a uniform fashion, thereby lessening the need for
military accused to bring Federal civilian courts into the
matter through collateral legal action.
54 M.J. 613, 615 (N-M. Ct. Crim. App. 2000) (Citing McPhail, 1 M.J. at 461-62
(quoting Schlesinger, 420 U.S. at 758)); see also United States v. Bevilacqua, 39
C.M.R. 10, 12 (C.M.A. 1968) (military accused need not go outside military justice
system to Federal civilian judiciary for protection of legal rights).
The rationales articulated in Dew and Ponder are no less true today. Simply
put, Congress intended that military courts address complaints by military members
confined in military facilities and still subject to military justice. And given that
civilian courts are not beholden to precedent established by their sister circuits, and
that their jurists are frequently unaccustomed to and unfamiliar with specialized
military claims, it cannot be assumed that an Article III court will vindicate a
military member’s constitutional rights nor ensure the uniformity of treatment
explicitly envisioned by Congress. Accordingly, military courts should and must
act on extraordinary writs filed by military confinees, regardless of finality under
Article 76.
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(2)
THE SECRETARY’S PURPORTED ACTION UNDER ARTICLE
71, UCMJ, WAS A NULLITY BECAUSE IT OCCURRED WHILE
THE LEGALITY OF PETITIONER’S COURT-MARTIAL
PROCEEDINGS WAS ACTIVELY UNDER CHALLENGE.
Prior to the Secretary of the Air Force’s (SecAF) final action under Article
71, Petitioner sought the lower court’s relief from the Government’s ex post facto
application of confinement credits (hereinafter Case 2017-04). See Richards v.
James, 2018 CCA LEXIS 507 (A.F. Ct. Crim. App. October 19, 2018) (unpub. op.).
Although this claim challenged the appropriateness of Petitioner’s sentence, and
thus under Denedo represented a continuation of Petitioner’s direct appeal under
Article 66, UCMJ,2 the SecAF purported to finally and irrevocably sever Petitioner’s
ties to the military by ordering the execution of his adjudged dismissal. Respondents
then used the Secretary’s premature execution as a sword to cut short Petitioner’s
request for relief in the present case—despite the fact that the legality of Petitioner’s
sentence had not yet been determined. Allowing Respondents to divest the lower
court of jurisdiction (after that jurisdiction had already attached) contravenes the
purpose of Article 71’s finality rule.
2
In Denedo, the Supreme Court held that because the petitioner challenged the
validity of his conviction, the Court of Criminal Appeals (CCA) had jurisdiction to
entertain the petition under its authority to act on the “findings and sentence”
pursuant to Article 66, UCMJ, and that this Court, in turn, had jurisdiction “to
entertain [the petitioner’s] appeal from the [CCA’s] judgment.” 556 U.S. at 915-16.
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It is well-settled that a Service Secretary cannot lawfully execute a dismissal
while an accused’s case is pending appellate review under Article 66, 67, or 67a.
See, e.g., United States v. Therasse, 17 M.J. 1068, 1069 (AFCMR 1984); United
States v. Kennedy, 12 M.J. 620, 624 (NMCMR 1980)). Any action taken in
contravention of this prohibition is ultra vires and a nullity that does not require
correction. United States v. Bailey, 68 M.J. 409 (C.A.A.F. 2009). In other words,
if this Court determines that the AFCCA correctly considered Case 2017-04 “in aid
of” its statutory review authority under Article 66, then necessarily the SecAF was
precluded from taking action on Petitioner’s case until the requirements of Article
71(c)(1) had occurred with respect to that action. Clearly, on August 27, 2018, while
review was pending before the AFCCA under Article 66 on Case 2017-04, the
requirements of Article 71 had not been met, making the action a nullity. In fact, as
Case 2017-04 is still in review before the Supreme Court, under Article 71(c)(1)(C),
even today, the SecAF could not lawfully take action on the Petitioner’s case.
Therefore, the action on Petitioner’s case is a nullity
Further, to consider this nullity as an effective divestment of jurisdiction not
only violates the principles underpinning Denedo, it ignores long-standing
principles that a Service Secretary or convening authority cannot divest this and the
military appellate courts of jurisdiction. See Boudreaux v. NMCMR, 28 M.J. 181,
182 (C.M.A. 1989).
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(3)
EVEN IF THE ACTION IS VALID UNDER ARTICLE 76, UCMJ,
THE FACTS OF THIS CASE WARRANT A FINDING OF
JURISDICTION UNDER THE PRINCIPLES OUTLINED BY
THIS COURT IN GARRETT AND THE SUPREME COURT IN
DENEDO.
Assuming arguendo the Secretary’s execution of Petitioner’s dismissal was
valid and Article 76 therefore applies, this Court has jurisdiction over the instant
writ in accordance with Garrett v. Lowe, 39 M.J. 293 (C.M.A. 1994). In Garrett,
the petitioner filed a petition for a writ of error coram nobis well after his direct
appellate review was final and seven years after his dishonorable discharge was
executed. 39 M.J. at 294. The Government argued Garrett’s petition—which
challenged a law—should be dismissed as “the writ of error coram nobis will not lie
to correct an error of law.” Id. at 294-95 (citation and grammatical alterations
omitted). This Court’s predecessor explained, however, that regardless of whether
coram nobis was available to Garrett, a writ of habeas corpus certainly was: “since
Garrett remains in confinement pursuant to the proceedings which he now
challenges, a petition for a writ of habeas corpus surely is available to him.” Id. at
295 (citation omitted). In other words, if Garrett had styled his writ as a petition for
a writ of habeas corpus, the military appellate courts would have had jurisdiction to
address it—despite the fact that the case was final under Articles 71 and 76. This
exception to the finality rules lied in the fact that Garrett still was in confinement
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due to the very proceedings he challenged via the writ. See Garrett, 39 M.J. at 295.
The same is true here: Petitioner remains in confinement due to the very proceedings
he challenges here.
Garrett implicitly raises another critical issue: the ability of a confined
petitioner to challenge an unlawful Article 71 action at all. Taken to its logical
conclusion, this Court’s invocation of Articles 71 and 76 as jurisdictional barriers
means confined petitioners could never challenge the legality of the execution of a
punitive discharge or dismissal while still imprisoned. This is because the writ of
error coram nobis is “unavailable as a matter of law” to petitioners who are “in
custody.” Loving v. United States, 62 M.J. 235, 254 (C.A.A.F. 2005). Applied to
the instant case, if the Secretary ordered the execution of a dishonorable discharge—
or ordered the execution of a dismissal before Article 71 applied, as actually
occurred here—then the Petitioner would have no recourse to challenge the action;
at least not while he was still confined. But he would also be precluded from filing
a petition for a writ of habeas corpus because direct appellate review is complete
and because the Secretary took action and thereby triggered Article 76. Such a result
directly contradicts Garrett, to say nothing of the fundamental principles underlying
Loving and the All Writs Act. This result also undermines the Supreme Court’s
recognition in Noyd that military appellate courts have primary responsibility for
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interpreting “extremely technical provisions” of military law.3 395 U.S. at 696.
Further, again assuming arguendo that the Secretary’s action was effective
under Article 71, Gray stands in direct contradiction to Denedo. In fact, in a filing
before the Supreme Court in the Gray case, the Solicitor General of the United States
conceded that, “the military courts have subject-matter jurisdiction to entertain such
requests for coram nobis relief and that the CAAF erred in concluding otherwise.”
See Appendix H at 12. Therefore, despite the holding in Gray, which clearly
articulates the general rule concerning jurisdiction (the finality rule), exceptions to
that general rule, such as recognized in Denedo, clearly exist to allow military courts
to entertain extraordinary writs post final action under Article 71.
3
Here, Petitioner alleges unlawful command influence at his court-martial—a
concept that (1) has no analog to the civilian system, and (2) involves extremely
technical provisions of the UCMJ and military regulations. Another technical rule
unique to the military that a civilian court would need to review and interpret is
Article 71. As recognized by Congress in creating the UCMJ, “military justice is a
field of the law which requires not only a thorough familiarity with criminal law –
but also experience and training in military matters.” 95 Congr. Rec. at 165.
Congress further observed that “military law in itself embodies hundreds of
complicated problems of status arising out of customs of the service as well as
statute and regulation.” Id. Those very concerns were the driving force behind the
creation of an “integrated” system of military justice – and those concerns are
highlighted in the substance of Petitioner’s claim for relief.
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(4)
THIS COURT SHOULD RECOGNIZE AN EXCEPTION TO THE
FINALITY RULE FOR CASES IN WHICH GOVERNMENT
MISCONDUCT IS A MATERIAL FACTOR IN THE
APPLICATION OF THE FINALITY RULE.
This Court has consistently held that the Government has a statutory duty
under Article 70 to provide an appellant with counsel who is able to provide
representation in “both a competent and timely manner.” Diaz v. Judge Advocate
General of the Navy, 59 M.J. 34, 38 (C.A.A.F. 2003); see also United States v.
Moreno, 63 M.J. 129 (C.A.A.F. 2006). This duty is derived from the Government’s
statutory responsibility “to establish a system of appellate review . . . that preserves
rather than diminishes the rights of convicted servicemembers.” Moreno, 63 M.J. at
137 (quoting Diaz, 59 M.J. at 38).
As applicable here, Petitioner requested the assistance of his detailed appellate
counsel in filing a writ of habeas corpus with the AFCCA. A question of whether
the ADD was required to provide such assistance became moot once ADD agreed
to take on this responsibility. As such, the Petitioner’s appellate defense counsel
instructed him to mail the brief in question directly to counsel for filing. From that
point forward, ADD had a legal and ethical obligation to act in a competent and
timely manner with respect to the filing of the writ petition.
The facts as alleged herein and articulated in the affidavit of Petitioner clearly
show that the actions of ADD personnel were nether competent nor timely with
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respect to this filing before the AFCCA. After detailed appellate counsel instructed
Petitioner to send the writ petition to him, on 21 May 21, 2018, the Petitioner mailed
the writ petition, via USPS certified mail, directly to appellate counsel as instructed.
ADD received the package on May 24, 2018. On June 5, 2018, Petitioner spoke
with his detailed appellate counsel who verified the brief had been received and
would be filed immediately. As such, had ADD been acting in a competent and
timely manner, the brief should have been filed no later than June 12, 2018. But that
did not happen. Despite detailed appellate counsel repeatedly assuring Petitioner
that the writ had been filed, Petitioner learned from new detailed counsel in
September 2018 that the writ had, in fact, not been filed.
The timing of the filing is critical to evaluating the materiality and prejudice
associated with the Government’s inaction and the Petitioner’s standing before the
AFCCA. Had the writ been filed in June 2018, two months before Petitioner’s case
became final under Article 76, the AFCCA’s jurisdiction would have been
indisputable. Indeed, the AFCCA has previously held that Article 76 did not divest
it of its jurisdiction to review an extraordinary writ filed after finality. Richards,
2018 CCA LEXIS 507. The Petitioner’s writ of habeas corpus, had it been timely
filed, would have received similar treatment.
There can be no question that the SecAF bears the ultimate responsibility for
ensuring that the requirements imposed by Congress on the Air Force under Article
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70 are met. In other words, the SecAF is responsible for the actions of ADD
personnel. If the SecAF is allowed to obstruct the litigation of an appellate issue
before a court of competent jurisdiction and this Court declines to hold the SecAF
accountable for that obstruction, then the laws applicable to appellate procedure
under the UCMJ as a whole are fundamentally undermined and called into question
in much the same way as two Justices of the Supreme Court questioned the standing
of military courts-martial in their dissenting opinion in Ortiz v. United States, 138 S.
Ct. 2165, 2189-2206 (2018).
This Court has an obligation as the supreme court of the military justice
system to act in accordance with Congressional intent and interpret the UCMJ in
such a manner that falls in line with that intent. Congress mandated that the SecAF
create a system of appellate review that “preserves rather than diminishes” rights
afforded to convicted servicemembers. This Court’s interpretation of Article 70 and
Article 76 are critical to preserving the rights of convicted servicemembers within
that system of appellate review. There can be no greater assault on the integrity of
a criminal justice system than when the Government is allowed to obstruct an
appellant from appealing a conviction. Therefore, given the unique facts presented
herein, this Court should recognize an exception to the finality rule for those cases
in which Government misconduct directly led to the application of the finality rule.
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(5)
THE APPEARANCE OF UNLAWFUL INFLUENCE (UCI)
INFECTED THE PRETRIAL, TRIAL, AND POST-TRIAL
PHASES OF PETITIONER’S COURT-MARTIAL, DEPRIVING
HIM OF HIS FIFTH AMENDMENT RIGHTS TO DUE PROCESS.
Through a writ of habeas corpus filed with the AFCCA (detailed in Appendix
A), Petitioner alleged that his court-martial was tainted by the appearance of UCI
due to the actions of the former Judge Advocate General (TJAG) of the Air Force
and the former commander of the Air Force Legal Operations Agency
(AFLOA/CC). Petitioner maintains that these unlawful actions, standing alone,
warrant reversal of his conviction and sentence. However, subsequent to his filing
at the AFCCA, Petitioner obtained additional evidence of UCI through materials he
obtained pursuant to FOIA. Appendix N. This information not only supports
Petitioner’s previous UCI contentions, it raises a new specter of UCI based on the
conduct of General Mark Welsh (the former Chief of Staff of the Air Force) and
General Edward Rice, the General Court-Martial Convening Authority (GCMCA)
for Petitioner’s case.
The appearance of UCI by Gen Welsh stems from his testimony before
Congress in April 2012, mere months before charges were preferred against
Petitioner. Specifically, Gen Welsh called for “stiffer penalties” in all sexual assault
cases. Appendix N at 12-13. A year later, Gen Welsh was back before Congress
and issued a warning to all Air Force members: “You are either part of the solution
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or part of the problem; there is no middle ground.” Id. at 154. Notably, Gen Welsh
was accompanied during this trip by Gen Rice, who just three months earlier took
action in Petitioner’s case. With the public well aware of how another GCMCA
(Lieutenant General Craig Franklin) was castigated for his decision to overturn a
sexual assault conviction (see, e.g., id. at 23-24), Gen Rice’s appearance with and
support of Gen Welsh sent a clear message that he would not make himself “part of
the problem” by granting Petitioner clemency.
As demonstrated by Petitioner’s request for clemency and parole (Appendix
O), the sentence he received was disproportionate to the sentences of other military
members who committed similar offenses around the same time but prior to Gen
Welsh’s congressional testimonies. An objective, disinterested observer would
easily see the obvious connection between Gen Welsh’s call for “stiffer penalties”
and the severe sentence Petitioner received less than a year later. This same observer
would also see the connection between Gen Rice’s denial of Petitioner’s request for
clemency and Gen Welsh’s warning about taking the “middle ground.” Based on
these facts, this observer would question the fairness of the sentencing process in
Petitioner’s court-martial as well as whether Petitioner received a fair chance at
clemency. These questions, due to the appearance of UCI in Petitioner’s case, would
place an intolerable strain on the public’s perception of the military justice system,
and thus warrant redress.
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As clearly established by the documents contained in Appendix N, during the
time Petitioner’s case was tried and the convening authority took action, the military
justice system as a whole was “rife with bias and conflict of interest.” Appendix N
at 14, 17. The conflict of interest referred to in article after article was between a
military member’s duty to act impartially and the fear of negative repercussions to
their own careers. That conflict of interest is not speculation or conjecture. As
reported by Congress, military justice officials identified the same conflict to
congressional investigators.
Appendix A, Subappendix V.
No objective,
disinterested observer could read that congressional report and not believe the
military justice system was tainted, at the very least, by the appearance of UCI. As
this Court itself recognized in United States v. Barry, “these concepts appear to be
both shared by others in the military justice system, and reasonably grounded in
fact.” 78 M.J. 70, 80-81 (C.A.A.F. 2018) (citations omitted).
Whether or not the appearance of UCI placed an intolerable strain on the
public perception of the military justice system requires an examination of not just
Petitioner’s case, but the military justice system as a whole during the time period
in question. Whether the source of the UCI was Gen. Welsh, Gen. Rice, Lt Gen
Harding, or Brig Gen. Fincher, the documents provided in the Appendices clearly
establish the reality that existed within the Air Force. According to a Stars & Stripes
article, “the strain on the system…would be too much to sustain public confidence.”
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Appendix N at 34. Similarly, Gen. Welsh in his testimony before Congress sent a
clear message to Petitioner’s judge and Convening Authority that he expected a
certain outcome in cases like Petitioner’s, and that those individuals would be held
accountable if they acted otherwise. The appearance of UCI in this case is
unmistakable and the Government should be called upon to answer these facts.
VII. RESPONDENTS’ ADDRESSES, TELEPHONE,
AND FACSIMILE NUMBERS.
Respondent Hon. Barbara Barrett:
Respondent Colonel Caroline Horton:
1670 Air Force
Pentagon
Washington, DC 20330
Telephone: Unlisted
Fax Number: Unlisted
1301 N. Warehouse Road
Ft. Leavenworth, KS 66027
Telephone: 913-758-3591
Fax Number: Unlisted
Respondent Colonel Brian Greenroad:
Air Force Security Forces Center
1517 Billy Mitchell Blvd.
JBSA-Lackland, TX 78236
Telephone: 402-925-7077
Fax Number: Unlisted
Respectfully submitted for Petitioner,
MARK C. BRUEGGER
Senior Counsel
Air Force Appellate Defense Division
1500 West Perimeter Road, Suite 1100
Joint Base Andrews NAF, MD 20762-6604
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Office: (240) 612-4770
E-Mail: mark.c.bruegger.civ@mail.mil
Appendices:
A. Petition for Writ of Extraordinary Relief Due to Unlawful Command
Influence (UCI) (with subappendices A through QQ)
B. Government’s Motion to Dismiss UCI Petition
C. Petitioner’s Reply to Motion to Dismiss UCI Petition
D. The AFCCA’s Decision Granting Motion to Dismiss UCI Petition
E. Petitioner’s Motion for Reconsideration
F. Government’s Answer to Petitioner’s Motion for Reconsideration
G. The AFCCA’s Decision Denying Reconsideration
H. Brief for the United States in Opposition, Gray v. United States
I. Petitioner’s Request to this Court for Enlargement of Time to File WritAppeal
J. Government’s Opposition to Requested Enlargement of Time
K. Petitioner’s Writ-Appeal Petition
L. Government’s Response to Writ-Appeal Petition
M. This Court’s Denial of Writ-Appeal Petition
N. New Supporting Materials from FOIA Request
O. Petitioner’s Clemency and Parole Request
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CERTIFICATE OF COMPLIANCE, FILING AND SERVICE
This petition complies with the type-volume limitation of Rule 24(c)
because: This petition contains 5,995 words.
This petition complies with the typeface and type style requirements of Rule
37.
I certify that a copy of the foregoing was electronically sent to this Court and
served on the Appellate Government Division and the Air Force Court of Criminal
Appeals on April 21, 2020, with the Appendices delivered separately to all parties
on the same day. A copy of the foregoing and its appendices were also sent through
the United States Postal Service via first class mail to all named Respondents on
April 21, 2020.
MARK C. BRUEGGER
Senior Counsel
Air Force Appellate Defense Division
1500 West Perimeter Road, Suite 1100
Joint Base Andrews NAF, MD 20762-6604
Office: (240) 612-4770
E-Mail: mark.c.bruegger.civ@mail.mil
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