Petition for Writ of Certiorari — Jose Antonio Cossio, Jr., Petitioner v. Air Force Court of Criminal Appeals, et al.

APPENDIX A

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The Air Force Court of Criminal Appeals, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. l:22-cv-00110 — Hany D. Leinenweber, Judge.

Argued September 19,2024 — Decided February 27,2025

Before Rovner, Hamilton, and Kirsch, Circuit Judges.

Hamilton, Circuit Judge. This appeal presents a relatively

rare collateral challenge to military court convictions in

civilian courts. Plaintiff-appellant Jose Antonio Cossio, Jr.,

seeks reconsideration of his bad-conduct discharge from the

Air Force stemming from court-martial convictions in 2004.

The discharge resulted from a prank gone sideways.

According to Cossio, he learned that another airman had

stolen money from Cossio's friend. Cossio used his access to

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an Air Force computer system to obtain the other airman's

social security number. He then altered the airman's payroll

information to route his next paycheck to an orphanage in

Siberia. In December 2004, a military court convicted Cossio

of larceny under 10 U.S.C. § 921 and of violating the

Computer Fraud and Abuse Act under 18 U.S.C. § 1030, as

well as other charges. He was sentenced to ten months'

confinement, a demotion, and a fine, and he received a badconduct discharge from the Air Force. The convictions and

sentence were affirmed on direct appeal in the military courts.

For nearly twenty years, Cossio has repeatedly challenged

his convictions and sentence. In this case, he petitioned for

writs of habeas corpus and mandamus, asking the district

court to order the Air Force to resentence him or to change his

discharge status. He argues that his conduct did not meet the

required elements of larceny because he never possessed the

other airman's paycheck and his pay never took the form of

tangible property. He also argues that the Supreme Court's

decision in Van Buren v. United States, 593 U.S. 374 (2021),

shows his conviction under the Computer Fraud and Abuse

Act should be deemed invalid because he "did not exceed his

authorized computer access" when he retrieved the other

airman's personal information. Consistent with other courts'

treatment of Cossio's post-appeal challenges, the district

court here granted the Air Force's motion to dismiss and

denied both writs. Cossio has appealed.

We affirm. As we explain below, the district court properly

determined that Cossio did not meet the requirements for

habeas corpus jurisdiction because he is not "in custody" as

required under 28 U.S.C. § 2241(c). Cossio was released from

prison nearly two decades ago. The present-day

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consequences of his convictions are collateral to his criminal

punishment and do not restrain his physical liberty of

movement. Cossio's petition for a writ of mandamus also fails

because he does not meet several essential elements. Cossio

has not shown the Secretary of the Air Force has a clear,

nondiscretionary duty to grant the requested relief, and more

generally, Cossio has not shown a clear right to issuance of

the writ.

I. Factual and Procedural History

Cossio served in the United States Air Force from July 2000

to November 2008. While working in a helicopter-mainte­

nance squadron, Cossio accessed an internal software system

to locate the social security number of another airman. Cossio

used this information to route the other airman's next

paycheck to a Siberian orphanage.

After Cossio's action was discovered, he faced trial by

general court-martial in December 2004. Cossio was charged

with larceny in violation of Article 121 of the Uniform Code

of Military Justice ("UCMJ"), 10 U.S.C. § 921 Art. 121, and

three counts of violating Article 134 of the UCMJ, 10 U.S.C.

§ 934 Art. 134 (granting military jurisdiction over "crimes and

offenses" besides those otherwise enumerated in the UCMJ).

The first count under Article 134 concerned Cossio's use of the

other airman's social security number with intent to commit

larceny in violation of 18 U.S.C. § 1028, a federal statute

governing fraud in connection with identity theft. The second

count charged Cossio with exceeding his authorized

computer access to obtain a social security number of another

airman in violation of 18 U.S.C. § 1030, the Computer Fraud

and Abuse Act. The third count charged communication of a

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threat to injure another person. The court-martial convicted

Cossio on all counts.

Cossio was sentenced to a bad-conduct discharge,

reduction to the lowest enlisted grade, confinement for ten

months, and a fine. As a result of his discharge status, Cossio

says, he has struggled to stay employed and is ineligible for

education, housing, and healthcare assistance through the

Department of Veterans Affairs. In this appeal, Cossio

challenges his convictions for larceny and for computer fraud

and abuse.

We must review the long history of Cossio's appellate and

post-conviction litigation to highlight the prior reviews of his

case. First, on direct appeal in 2006, Cossio challenged his con­

victions for computer fraud and abuse and communication of

a threat to injure. United States v. Cossio, No. ACM 36206, 2006

WL 2550233, at *1 (A.F. Ct. Crim. App. Aug. 24, 2006). The

court affirmed, finding "overwhelming evidence in the record

of trial to support the court-martial's findings of guilty" on

both charges. Id. In January 2007, the United States Court of

Appeals for the Armed Forces denied Cossio's petition for

further review. United States v. Cossio, 64 MJ. 401 (C.A.A.F.

Jan. 30, 2007).

In November 2007, Cossio, alleging a Brady violation in his

prosecution, unsuccessfully sought a writ of coram vobis.1

United States v. Cossio, No. ACM 36206 PET, 2008 WL 513520,

at *3 (A.F. Ct. Crim. App. Feb. 15, 2008). In denying the writ,

1 A writ of error coram vobis is a writ of error sent by an appellate

court to a trial court for correction of the trial court's error. A writ of error

coram nobis is a writ of error issued by a court to correct an error in its

own judgment. Cossio has petitioned for both writs.

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the court wrote that Cossio's "guilt to the offenses is over­

whelming." Id. at *2. In August 2008, Cossio filed a petition for

extraordinary relief in the nature of a writ of prohibition to

stay execution of his bad-conduct discharge, which was de­

nied. United States v. Cossio, Misc. Dkt. No. 2008-02 (formerly

ACM 36206), 2008 CCA LEXIS 687, at 1 (A.F. Ct. Crim. App.

Sept. 15, 2008).

In June 2010, Cossio filed another petition for extraordi­

nary relief in the nature of a writ of coram vobis, alleging that

a witness at his trial "may have committed perjury, further

acts of larceny, and conspired with another witness to hide

such conduct from the court." United States v. Cossio, Misc.

Dkt. No. 2010-10, 2010 CCA LEXIS 320, at 2 (A.F. Ct. Crim.

App. July 1, 2010) (internal quotations marks omitted). The

court denied Cossio's petition because he failed to meet sev­

eral threshold requirements for the writ he sought. Id. at 4-5.

Cossio then filed a petition challenging his larceny

conviction and seeking reinstatement or, alternatively,

honorable discharge, back pay, and other relief pursuant to

the Little Tucker Act, 28 U.S.C. § 1346(a)(2). See Cossio v.

Donley, 527 F. App'x 932, 933-34 (Fed. Cir. 2013). The Federal

Circuit affirmed the district court's dismissal of that petition

because Cossio had failed to raise his constitutional issues in

the military justice system and had received full and fair

consideration of his claims in prior actions. Id. at 935-37.

In October 2014, Cossio again petitioned for extraordinary

relief in the nature of a writ of coram vobis, seeking reversal

of his 2004 larceny conviction. See United States v. Cossio, Misc.

Dkt. No. 2014-14, 2015 WL 5138626, at *3 (A.F. Ct. Crim. App.

Aug. 17, 2015). Again, the petition was denied because Cossio

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failed to meet several threshold requirements for the writ. Id.

at *3-*4.

In June 2021, Cossio filed a petition for writs of coram vobis and mandamus challenging his conviction under the

Computer Fraud and Abuse Act on the basis of the Supreme

Court's decision in Van Buren. In re Cossio, Misc. Dkt. No. 202104, 2021 WL 6105497, at *3 (A.F. Ct. Crim. App. Dec. 20, 2021).

The Air Force Court of Criminal Appeals denied his petition,

finding that Cossio did not meet the threshold elements for

issuance of the writs and that his various challenges did not

warrant setting aside his convictions. Id. at *4-*5.

Then, in January 2022, Cossio filed this action in the North­

ern District of Illinois. Cossio filed the complaint pro se, but

the district court recruited counsel for him.2 The district court

ultimately granted the Air Force's motion to dismiss and en­

tered a judgment dismissing the case "with prejudice" for lack

of subject matter jurisdiction and failure to state a claim. This

appeal followed.

We address first Cossio's petition for a writ of habeas cor­

pus and then his petition for a writ of mandamus, reviewing

de novo the district court's order dismissing both petitions.

See E.F.L. v. Prim, 986 F.3d 959, 962 (7th Cir. 2021) (affirming

dismissal of a habeas petition after de novo review of subject

matter jurisdiction).

2 The law firm of Akerman LLP and attorneys Joel D. Bertocchi, Jani

K. Mikel, and Mark S. Bernstein have ably represented Cossio in the dis­

trict court and in this appeal. They have the thanks of this court for their

assistance to their client and the courts.

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II. Habeas Corpus

The district court properly dismissed Cossio's petition for

a writ of habeas corpus. The habeas statute under which

Cossio proceeds, 28 U.S.C. § 2241(c), requires that the

petitioner be “in custody." A habeas petitioner is in custody if

"his physical liberty of movement is limited in a nonnegligible way, and that limitation is a direct consequence of

the challenged conviction." Stanbridge v. Scott, 791 F.3d 715,

719 (7th Cir. 2015) (emphasis in original). We affirmed

dismissal of a habeas petition in Stanbridge because the habeas

petitioner was not "in custody." That petitioner was subject to

restraints on his physical liberty of movement as a result of

civil confinement, but that civil confinement was "clearly a

collateral consequence of his criminal conviction, as it was not

part of the judgment in the criminal case." Id. at 721, citing

George v. Black, 732 F.2d 108,110-11 (8th Cir. 1984).

To seek habeas relief, Cossio must be subject to non-negligible restrictions on his physical liberty or movement result­

ing directly from the judgment he challenges, his convictions

and sentence in the 2004 court-martial. Stanbridge, 791 F.3d at

719-20. What might count as such restrictions? One well es­

tablished example would be a petitioner on parole or super­

vised release, who would be "in custody" for purposes of the

habeas statute. See Jones v. Cunningham, 371 U.S. 236, 242-43

(1963) (conditions and restrictions of parole "significantly re­

strain [a] petitioner's liberty to do those things which in this

country free men are entitled to do. Such restraints are

enough to invoke the help of the Great Writ."); see also Clarke

v. United States, 703 F.3d 1098, 1101 (7th Cir. 2013) ("super­

vised release is classified as a form of custody"). The same is

true for a petitioner sentenced to 500 hours of community

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service. See Barry v. Bergen County Probation Dep't, 128 F.3d

152, 161-62 (3d Cir. 1997) ("[A]n individual who is required

to be in a certain place—or in one of several places—to attend

meetings or to perform services, is clearly subject to restraints

on his liberty not shared by the public generally."). Similarly,

petitioners released on their own recognizance while await­

ing sentencing are also deemed "in custody." See Hensley v.

Municipal Court, 411 U.S. 345,351 (1973) (finding petitioner re­

leased on own recognizance "in custody" because "[h]is free­

dom of movement rests in the hands of state judicial officers,

who may demand his presence at any time and without a mo­

ment's notice").

A. Restraints on Physical Liberty of Movement.

Now, so long after Cossio's release from military prison,

the consequences of his convictions no longer restrain his

physical liberty of movement so as to satisfy the "in custody"

requirement for habeas relief. Cossio claims that, as a result of

his convictions and bad-conduct discharge, he has had

difficulty obtaining and keeping a job, is unable to receive VA

benefits, education, or housing assistance, and has endured

ongoing harm and stigma. While courts "have very liberally

construed the 'in custody' requirement for purposes of

federal habeas," a petitioner must still face a present restraint

from a conviction. See Maleng v. Cook, 490 U.S. 488, 492 (1989)

(habeas petitioner was not "in custody" when prison sentence

had expired despite "possibility that the prior conviction will

be used to enhance the sentences imposed for any subsequent

crimes of which he is convicted").

Not every loss of a privilege resulting from a criminal con­

viction places a petitioner "in custody" under § 2241(c). For

example, a suspension of driving privileges is not the sort of

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"severe restraint" on liberty for which habeas corpus relief

may be available. Harts v. Indiana, 732 F.2d 95, 96-97 (7th Cir.

1984), quoting Hensley, 411 U.S. at 351. Neither is a loss of a

medical license. Lefkowitz v. Fair, 816 F.2d 17,20 (1st Cir. 1987)

(holding that revocation of medical license upon petitioner's

conviction "does not constitute the type of grave restraint on

liberty or the sort of ongoing governmental supervision

which are unavoidable prerequisites of actionable 'custody'").

Nor is required registration as a sex offender, at least when

not accompanied by restrictions on movement. Virsnieks v.

Smith, 521 F.3d 707, 719-20 (7th Cir. 2008) (holding that regis­

tration requirement did not support habeas claim because

statute did not impose "any significant restriction on a regis­

trant's freedom of movement").

The consequences of Cossio's convictions are more like the

collateral ones in Harts, Lefkowitz, and Virsnieks than the direct

restraints in Jones, Barry, and Hensley. Like the driving

privileges forfeited by the petitioner in Harts, Cossio's loss of

VA benefits "may entail hardship" but does not "significantly

restrain [his] liberty to do those things which in this country

free men are entitled to do...." 732 F.2d at 96, quoting Jones,

371 U.S. at 243. Similar to the loss of a medical license in

Lefkowitz, Cossio's "[a]dverse occupational and employment

consequences are a frequent aftermath of virtually any felony

conviction." 816 F.2d at 20. And like the registration

requirement in Virsnieks, the stigma associated with Cossio's

discharge is a collateral consequence "of a conviction that

do[es] not impose a severe restriction on [his] freedom of

movement." 521 F.3d at 720.

Cossio does not face restrictions like those faced by parol­

ees. He is not "confined by the parole order to a particular

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community, house, and job at the sufferance of his parole of­

ficer." Jones, 371 U.S. at 242. He does not "live in constant fear

that a single deviation [from the conditions of parole], how­

ever slight, might be enough to result in his being returned to

prison to serve out the very sentence he claims was imposed

upon him in violation of the United States Constitution." Id.

Cossio also has no community service obligation that he must

complete to avoid further punishment. Cf. Barry, 128 F.3d at

161-62. And Cossio's freedom of movement is not determined

by "judicial officers, who may demand his presence at any

time and without a moment's notice." Hensley, 411 U.S. at 351.

In short, Cossio's convictions have not for many years im­

posed any court-ordered restrictions or obligations on his

movement.

We recognize that a bad-conduct discharge is no mere slap

on the wrist. We accept for purposes of argument Cossio's ac­

count of the struggles he has faced because of his bad-conduct

discharge. But adopting Cossio's interpretation of the "in cus­

tody" requirement of the federal habeas statute "would read

the 'in custody' requirement out of the statute...." Maleng, 490

U.S. at 492.

To avoid this "in custody" problem, Cossio relies on

Kauffman v. Sec'y of the Air Force, 415 F.2d 991,994-95 (D.C. Cir.

1969), to argue that the stigma associated with his badconduct discharge should be sufficient to obtain collateral

review of his military convictions and sentence. Kauffman

does not help Cossio satisfy the in-custody requirement. In

Kauffman, the D.C. Circuit affirmed dismissal of a civil action

brought as a collateral challenge to an airman's convictions

stemming from alleged improper contacts with East German

intelligence agents. Id. at 992. To secure a conviction, United

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States authorities resorted "to means which the Court of

Military Appeals described as 'massive and deliberate

violations of appellant's constitutional rights.'" Id. These

violations included multiple warrantless and unjustified

searches of Kauffman's home, as well as covert monitoring of

his conversations with his counsel. Id. at 992-93.

The D.C. Circuit recognized that habeas corpus review

was not available to Kauffman because he was no longer in

custody when he filed his civil action: "Appellant lost his op­

portunity to obtain civilian review by writ of habeas corpus

because he had completed his two-year term of confinement

at hard labor before he had exhausted his military remedies."

Id. at 996. The Kauffman opinion then went on to consider

whether habeas offered the only path to collateral civilian re­

view of a military conviction or whether other avenues might

be available. Without specifying another statutory path, the

D.C. Circuit assumed that such collateral review should be

available for constitutional challenges (even when habeas is

unavailable because the petitioner is not in custody), appar­

ently without deference to military courts at least on ques­

tions of constitutional law. Id. at 997. On the merits, the court

then concluded that Kauffman's convictions were not tainted

by any violations of his constitutional rights, so that his case

was properly dismissed. Id. at 998-1000.

In concluding that some form of non-habeas collateral

review should be available for constitutional challenges even

by a defendant who was not in custody, the Kauffman court

wrote that "a military discharge under other than honorable

conditions imposes a lifelong disability of greater

consequence [than a loss of liberty] for persons unlawfully

convicted by courts martial." Id. at 995. Cossio quotes this

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comment to urge this court to find that his discharge status

renders him in custody for habeas relief.

One basic problem with this theory is that Kauffman

assumed that physical confinement was required for habeas

relief, id. at 996, which is the relief Cossio seeks. Although

more recent decisions have expanded custody to petitioners

released from physical confinement, Kauffman did not.

Therefore, Kauffman did not address whether stigma

associated with a bad-conduct discharge is sufficient to meet

the in-custody requirement of federal habeas. Nor did

Kauffman actually identify an alternative basis for collateral

relief, other than perhaps a claim directly under the

Constitution. More broadly, to the extent that Kauffman may

have authorized any other avenues for collateral relief from

military convictions under the Constitution—a point on

which we express no opinion—Cossio's situation is different

in three critical ways. First, he is relying on the habeas statute

that includes the custody requirement. Second, his challenges

are not constitutional but statutory. Third, unlike Kauffman,

Cossio has previously sought and obtained both direct and

collateral review of his statutory challenges in civilian courts,

and he has repeatedly lost on those challenges. Accordingly,

Kauffman does not provide a basis to grant Cossio's petition

for a writ of habeas corpus.

B. Direct Consequences.

To meet the custody requirement of federal habeas, the

consequences of Cossio's conviction must be direct. Stanbridge, 791 F.3d at 719. Direct consequences include parole or

community service imposed "as part of the authorized pun­

ishment, and included in the court's judgment." Id., quoting

User Guide Frequently Asked Questions, Natl Inventory of

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Collateral Consequences, https://perma.cc/NZ2V-2QTJ at 5 (last

visited February 26, 2025); see also Jones, 371 U.S. at 242-43

(order placed petitioner "under the custody and control of the

Virginia Parole Board"); Barry, 128 F.3d at 161 (order man­

dated community service under direction of local community

service program). Here, the military court did not directly im­

pose Cossio's employment struggles, loss of benefits, and

stigma. Instead, the law treats these consequences as inci­

dental results of Cossio's discharge.

We assume that Cossio, like countless others with criminal

records, suffers from stigma and other collateral

consequences that complicate his life. However, adopting

Cossio's view of "custody" would seem to expand habeas

jurisdiction to every person ever convicted of a federal

offense. The result would be both unworkable and

inconsistent with the important but limited role of habeas

corpus. See Lefkowitz, 816 F.2d at 20 ("To hold that the custody

requirement is so elastic as to reach such sequellae would be

to stretch the concept of custody out of all meaningful

proportion, to render it limp and shapeless...."). The district

court correctly dismissed Cossio's petition for a writ of habeas

corpus.

III. Mandamus

The district courts have "original jurisdiction of any action

in the nature of mandamus to compel an officer or employee

of the United States or any agency thereof to perform a duty

owed to the plaintiff." 28 U.S.C. § 1361. Courts have inter­

preted this to mean that § 1361 "is intended to provide a rem­

edy for a plaintiff only if he has exhausted all other avenues

of relief and only if the defendant owes him a clear nondiscretionary duty." Center for Dermatology & Skin Cancer, Ltd. v.

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Burwell, 770 F.3d 586, 589 (7th Cir. 2014) (internal quotation

marks omitted), quoting Heckler v. Ringer, 466 U.S. 602, 616

(1984). Then, "[i]f a plaintiff's allegations survive Ringer's ju­

risdictional threshold, three elements must be met for the

court to issue a writ: '(1) a clear right in the plaintiff to the

relief sought; (2) a plainly defined and peremptory duty on

the part of the defendant to do the act in question; (3) no other

adequate remedy available.'" Id., quoting Burnett v. Bowen, 830

F.2d 731, 739 (7th Cir. 1987).

Section 1552(a)(1) of Title 10 of the United States Code pro­

vides that the Secretary of a military department, such as the

Secretary of the Air Force, "may correct any military record of

the Secretary's department when the Secretary considers it

necessary to correct an error or remove an injustice." Most

such corrections are to be made through boards of civilians of

the executive part of the relevant military departments. Id.

Cossio argues that 10 U.S.C. § 1552 establishes a duty to

issue a writ here. As we explain below, however, § 1552 does

not impose on any Air Force official a nondiscretionary duty

to provide the relief Cossio seeks. Nor has Cossio shown a

clear and indisputable right to the writ. The district court cor­

rectly denied a writ of mandamus on the merits.3

3 Our decision in Center for Dermatology could be read to interpret the

Ringer requirement of a "clear nondiscretionary duty" as jurisdictional.

This interpretation might allow us to bypass the issue of exhaustion of ad­

ministrative remedies, which the government asserts is also jurisdictional.

There would be two problems with treating the nondiscretionary duty el­

ement as jurisdictional. First, the blending of jurisdiction and merits on

the duty question in both Ringer and Center for Dermatology was based on

the exclusive path for judicial review under the Social Security Act set

forth in 42 U.S.C. § 405(g).

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Second, more generally, we recognize that this court and others have

not always been entirely clear in distinguishing between jurisdictional re­

quirements and the merits of a mandamus petition under 28 U.S.C. § 1361.

See, e.g., In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005) (en banc) ("But if

there is no clear and compelling duty under the statute as interpreted, the

district court must dismiss the action. To this extent, mandamus jurisdic­

tion under § 1361 merges with the merits."); City of Milwaukee v. Saxbe, 546

F.2d 693, 700 (7th Cir. 1976) (referring to merger of jurisdiction and merits

in mandamus cases); see generally 14 Wright, Miller, & Hershkoff, Federal

Practice & Procedure § 3655 (4th ed. 2024) ("[W]hether jurisdiction exists

under Section 1361 is intertwined with the merits because the existence of

a legal duty owed to the plaintiff is critical to whether adjudicative power

is present.") (internal quotation marks omitted).

We addressed this problem squarely in Ahmed v. Dep't of Homeland Se­

curity, holding that under § 1361, the nondiscretionary duty element goes

to the merits, not subject matter jurisdiction:

[U]nless the claim is so frivolous that it fails the Bell v.

Hood test, the district court has jurisdiction under § 1361

to determine whether the prerequisites for mandamus re­

lief have been satisfied: does the plaintiff have a clear

right to the relief sought; does the defendant have a duty

to perform the act in question; and is there no other ade­

quate remedy available. See Iddir [». INS, 301 F.3d 492,499

(7th Cir. 2002).] A conclusion that any one of those pre­

requisites is missing should lead the district court to deny

the petition, not because it now realizes that it had no

power to be thinking about the case in the first place, but

because the plaintiff has not demonstrated an entitlement

to this form of extraordinary relief.

328 F.3d 383,386-87 (7th Cir. 2003), citing Coal Operators & Assoc, v. Babbitt,

291 F.3d 912, 915 (6th Cir. 2002). We follow that approach here and treat a

nondiscretionary duty as a merits question that we will reach only after

addressing the government's challenge to subject matter jurisdiction.

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A. Failure to Exhaust Administrative Remedies

As a preliminary matter, we address the Air Force's argu­

ment that the district court lacked jurisdiction over Cossio's

§ 1361 mandamus petition on the theory that Cossio failed to

petition a military board of civilians under § 1552 before pro­

ceeding in the district court. Administrative exhaustion

through the board is not required in this case, though our rea­

sons for this conclusion also show on the merits why Cossio

is not entitled to a writ of mandamus.

First, § 1552 does not impose such an exhaustion require­

ment, at least on a person seeking nondiscretionary relief

from a conviction imposed by a court-martial. Subsection

(a)(1) of § 1552 provides:

The Secretary of a military department may cor­

rect any military record of the Secretary's de­

partment when the Secretary considers it neces­

sary to correct an error or remove an injustice.

Except as provided in paragraph (2), such cor­

rections shall be made by the Secretary acting

through boards of civilians of the executive part

of the military department.

Neither subsection (a)(1) nor any other part of § 1552 ex­

pressly requires that a decision be sought or obtained from

such a civilian board before judicial review of a court-martial

conviction can be pursued. Cf. Wilhelm v. Caldera, 90 F. Supp.

2d 3, 7 (D.D.C. 2000) ("The relevant language under section

1552 states that the Secretary, acting though the [civilian

board], may correct any error or injustice. This language

shows that administrative review is possible, but does not

show that it is required."); see also St. Clair v. Sec'y of Navy,

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970 F. Supp. 645, 648 (C.D. Ill. 1997) ("[N]either the applicable

statute, 10 U.S.C. § 1552, nor regulations, 32 C.F.R. Part 72324, expressly require appeal to the [civilian board] before ju­

dicial review.").

Second, and even more to the point, the civilian board

would be unable to grant the relief Cossio seeks. Section 1552

limits the purview of civilian boards acting under their

authority regarding records of courts-martial:

With respect to records of courts-martial and re­

lated administrative records pertaining to

court-martial cases tried or reviewed under

chapter 47 of this title (or under the Uniform

Code of Military Justice (Public Law 506 of the

81st Congress)), action under subsection (a)

may extend only to—

(1) correction of a record to reflect actions taken

by reviewing authorities under chapter 47 of

this title (or under the Uniform Code of Military

Justice (Public Law 506 of the 81st Congress));

or

(2) action on the sentence of a court-martial for

purposes of clemency.

10 U.S.C. § 1552(f).

Cossio seeks a court decision that his larceny and com­

puter fraud and abuse convictions are invalid. He does not

request that his discharge status be updated in accordance

with the actions of another reviewing agency, see § 1552(f)(1),

nor does he ask for clemency, see § 1552(f)(2).

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Cossio is not required to petition a board that would be

incapable of granting the relief he seeks. See Martinez v. United

States, 914 F.2d I486,1488 (Fed. Cir. 1990) (affirming dismissal

of collateral challenge to court-martial conviction;

recognizing that under § 1552(f), the civilian board "has no

authority to void court-martial convictions"); see also Jorden

v. Natl. Guard Bureau, 799 F.2d 99, 102 n.5 (3d Cir. 1986)

(rejecting government's argument that plaintiff failed to

exhaust remedies under § 1552 as defense in Bivens case:

"[Exhaustion depends on the potential adequacy of that

remedy in the particular case."); Nelson v. Miller, 373 F.2d 474,

479 (3d Cir. 1967) (§ 1552 "was intended to supplant private

bills in Congress for the correction of military records, and

was not intended to affect judicial jurisdiction," affirming

denial of preliminary injunction where military record board

could provide meaningful relief under § 1552, and no courtmartial conviction was at issue).

Requiring exhaustion in this case would also be

impractical and inconsistent with § 1552(f). The issues

involved are purely legal. Because resolution of this case

requires "no exercise of military discretion or expertise," the

federal courts are better positioned to evaluate Cossio's

arguments than the civilian boards. See Committeefor GI Rights

v. Callaway, 518 F.2d 466, 474 (D.C. Cir. 1975) (holding that

exhaustion under § 1552 was not required in challenge to

military policies regarding drug abuse; constitutional issues

involved were "purely legal," and as a result, "no significant

interest is served" by requiring exhaustion). We see no

indication that Congress intended these civilian boards to

adjudicate the merits of legal arguments like those Cossio

presents here. Instead, "[t]he legislative history of § 1552, as

well as the provisions of the statute, indicate that the basic

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purpose of the statute was to relieve Congress from

consideration of private bills to correct injustices, usually of

the type involving an appropriation of money ..." United

States ex rel. Brooks v. Clifford, 412 F.2d 1137, 1139-40 (4th Cir.

1969) (holding that board review under § 1552 was not

required for district court to adjudicate military member's

conscientious objection claim because "§ 1552 was not

intended to affect judicial jurisdiction").

Boards under § 1552 are composed of civilian employees

of the military who are not required to have legal training and

who would not be equipped to perform the district court's job

in this case. Congress did not provide or intend for these

boards to interpret criminal statutes and evolving Supreme

Court precedent. Requiring exhaustion here would force ci­

vilian boards to act as judges of federal criminal and constitu­

tional law.

The Air Force's arguments in favor of an exhaustion re­

quirement are not persuasive. First, the Air Force concedes in

its brief that "under § 1552, military corrections boards cannot

overturn court-martial convictions or sentencing judgments."

According to the Air Force, "[i]t is evident that the procedure

set forth by [§ 1552] has no bearing on his case." In essence,

we agree. That's why we reject the failure-to-exhaust defense

but affirm on the merits: Cossio is not required to exhaust any

supposed administrative remedies by petitioning a board that

could not grant him the relief he seeks, but the corollary of

this point for the merits of the mandamus petition is that no

official was subject to a mandatory duty to provide him that

relief. Further, the Air Force's reliance on Shurland v. Air Force

Bd. for Correction of Military Records, No. 3:18CV770 (REP),

2019 WL 5410064 (E.D. Va. Sept. 24, 2019), report and

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recommendation adopted, No. 3:18CV770, 2019 WL 5395410

(E.D. Va. Oct. 22, 2019), aff'd, 791 F. App'x 416 (4th Cir. 2020),

and Shaw v. Austin, No. CV 20-2036 (RDM), 2023 WL 1438394

(D.D.C. Jan. 31, 2023), is misplaced. Neither case held that ap­

peal to a civilian board is required under 10 U.S.C. § 1552 be­

fore seeking mandamus in a district court.

In Shurland, the court's decision centered on the timeliness

of the petition. 2019 WL 5410064, at *2-*3. Exhaustion through

the civilian board was not at issue because, unlike Cossio, the

plaintiff in Shurland petitioned the board multiple times

before filing in the district court (albeit 35 years after the

complained-of discharge). Id. at *8. Shaw is similarly

inapposite. After lodging a whistleblower complaint alleging

illicit gambling among instructors in a Navy training

program, the Shaw plaintiff's promotion was delayed pending

the outcome of an investigation into his unrelated activities.

2023 WL 1438394 at *l-*2. Following a finding by the Navy

Inspector General that the investigation of the plaintiff “was

initiated in retaliation for Shaw's protected, whistleblower

activities," the Assistant Secretary of the Navy for Manpower

and Reserve Affairs ordered the Chief of Navy Personnel to

“determine whether Lt. Shaw's professional or promotion

opportunities may have been impacted as a result of reprisal,

retaliation and restriction ... and[,] if so, ... to take remedial

action." Id. at *2 (alterations in original; internal quotation

marks omitted). The assistant secretary, however, permitted a

second investigation of Shaw to continue. Id.

Believing the delay in his promotion caused by the inves­

tigations was unjust, Shaw asked the court to order "the Sec­

retary of the Navy to adhere to [his] obligations pursuant to

10 U.S.C. § 624, which establishes procedures for military

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promotions, and the Military Whistleblower Protection Act of

1988 ('MWPA'), 10 U.S.C. § 1034, which requires the Secretary

to take corrective action following a finding of retaliatory per­

sonnel action by the Inspector General." Id. at *4 (internal quo­

tation marks omitted). After reviewing the plaintiff's com­

plaint, the court reasoned that the "only relief that Shaw plau­

sibly seeks in this case is the correction of his military rec­

ords." Id. at *7.

The reasoning in Shaw does not require Cossio to petition

the civilian board in this case. First, the court in Shaw chose

not to address the parties' "battle over whether Shaw was

required to exhaust his administrative remedies" because that

dispute "misses the point." Id. at *9. The court concluded that

the issue was whether Shaw's claims were final, allowing for

review under the Administrative Procedure Act, and

accordingly declined to address the exhaustion issue. Id.

Next, unlike Cossio, the plaintiff in Shaw accused the Navy of

violating 10 U.S.C. § 1552. The court explained: "Regardless

of whether exhaustion [was] invariably required ... a plaintiff

cannot plausibly allege that a military department has

violated § 1552 by failing to correct his military record when

that plaintiff failed even to initiate the § 1552 process by filing

a request for correction with the relevant board." Id. Unlike

the plaintiff in Shaw, Cossio does not allege that the Air Force

violated § 1552(a). Instead, he argues that § 1552 imposes a

duty on the Secretary to void his court-martial conviction.

The Air Force does not argue that Cossio failed to exhaust

under § 1552(b). It also does not argue that the waivable threeyear limit on a request for correction under § 1552(a)(1)

applies, so we do not address how that provision may bear on

Cossio's case. Nor does the Air Force argue that Cossio failed

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to file a request with anyone other than the board. We thus do

not consider whether a service member may satisfy § 1552(b)

by filing a request with another entity and do not decide

whether Cossio failed to exhaust by failing to file a request

with some non-board entity. We hold that Cossio did not need

to petition the civilian board before filing this action. His

petition fails instead on the merits, as we explain next.

B. Nondiscretionary Duty

Cossio's mandamus claim fails because the Secretary of

the Air Force has no nondiscretionary duty to provide the

relief he seeks. "It is manifest that the judiciary cannot compel

through a writ of mandamus a federal official to perform any

function unless the official is clearly directed by law to

perform such a duty." Save the Dunes Council v. Alexander, 584

F.2d 158, 162 (7th Cir. 1978). Nothing in § 1552 or in the case

law applying it compels the Air Force to change Cossio's

discharge status.

The statute provides that the Secretary "may correct any

military record" when "the Secretary considers it necessary to

correct an error or remove an injustice." 10 U.S.C. § 1552(a)(1).

Courts have interpreted this language to allow the Secretary

to exercise "his discretion not to correct an error upon which

nothing turns by reason of mootness, lack of harm to the

person in question, or inability by such correction to redress

the harm claimed." Kreis v. Sec'y of Air Force, 866 F.2d 1508,

1514 (D.C. Cir. 1989). There may be instances in which "the

alteration of a record may correct one injustice only to commit

another, or perhaps only to incur some other equally

significant institutional cost." Id. The critical point is that this

balancing "is to be done by the Secretary, free of judicial

second-guessing" because "[s]uch determinations are well

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within his discretion." Id. Certainly, the Secretary "may

correct any military record" when "necessary to correct an

error or remove an injustice." 10 U.S.C. § 1552(a)(1). But the

Secretary is not required to do so. "[W]here there is discretion

... even though its conclusion be disputable, it is impregnable

to mandamus." United States ex rel. Alaska Smokeless Coal Co. v.

Lane, 250 U.S. 549, 555 (1919) (affirming denial of petition for

mandamus that sought to order approval of coal claims

because Land Office exercised statutorily prescribed

discretion in rejecting claims).

To highlight the weakness of Cossio's mandamus claim,

consider the relief he seeks. Cossio argues that the Secretary

has a duty to grant him a resentencing or a change in

discharge status under § 1552(a). But regarding courtsmartial, the Secretary's discretion under § 1552(a) "may

extend only to—(1) correction of a record to reflect actions

taken by reviewing authorities under chapter 47 of this title

(or under the Uniform Code of Military Justice (Public Law

506 of the 81st Congress)); or (2) action on the sentence of a

court-martial for purposes of clemency." 10 U.S.C.

§ 1552(f)(1)—(2). Cossio does not argue that § 1552(f)(1)

applies. Nor does he seek clemency under § 1552(f)(2). Not

only is there no nondiscretionary duty to provide Cossio with

the relief he seeks, as explained above, Cossio's requested

relief is not even available under § 1552. In sum: Cossio has

no nondiscretionary right to relief under 10 U.S.C. § 1552(a)

and any wrong is not redressable under 10 U.S.C § 1552(f), so

he is not entitled to a writ of mandamus under 28 U.S.C.

§1361.

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C. Clear and Indisputable Right to the Writ

Even if the Secretary were to have a nondiscretionary duty

to provide Cossio with the relief he seeks, Cossio's claims

would still fail because he was given full constitutional pro­

tection and has no clear and indisputable right to a writ of

mandamus. Cossio has challenged his convictions many

times, and courts have fairly reviewed his claims. Courts have

declined to issue writs of mandamus even when confronting

allegations of grave constitutional violations. See e.g., Smith v.

McNamara, 395 F.2d 896, 900 (10th Cir. 1968) (affirming dis­

trict court's denial of mandamus under theory of constitution­

ally inadequate counsel because petitioner received full con­

stitutional protection "when the prosecuting officer was ap­

parently also untrained in the law" and petitioner was "rep­

resented by legally trained counsel on his petition for new

trial and all issues relevant to the conduct of the court martial

were then raised, considered and decided"); cf. Ashe v.

McNamara, 355 F.2d 277, 282 (1st Cir. 1965) (vacating denial of

mandamus where "the record established very clearly that

due process of law had been denied" because petitioner's

counsel was ordered to represent co-defendant against inter­

ests of petitioner).

Unlike the petitioners in Smith and Ashe, Cossio does not

argue that some procedural infirmity offended his

constitutional rights. Also, unlike the comparatively sparse

procedural history in Smith and Ashe, Cossio has had access

to many prior avenues to seek relief. See Smith, 395 F.2d at 898

n.3 (petitioner "did not seek review of the Board's action by

the U.S. Court of Military Appeals"); see also Ashe, 355 F.2d at

278 (discussing procedural history). This case is only Cossio's

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most recent of many attempts to have courts reweigh the legal

and factual sufficiency of his convictions.

He argues that his larceny conviction is "void" because no

evidence was introduced to show either that Cossio or the

other airman ever possessed the paycheck or that it was

tangible property. This argument was available to Cossio at

every step of the extensive litigation, including his original

trial in 2004 and his direct appeal. He did not raise it until

almost two decades after his trial. Cossio also fails to

acknowledge that the definition of larceny under 10 U.S.C.

§ 921(a) includes theft of "money."

Given the ubiquity of digital transfers of money today,

Cossio is asking this court to adopt—in this belated collateral

review, no less—an extreme interpretation of 10 U.S.C. § 921

that would limit its application to only physical checks or

cash. The cases Cossio cites do not support this implausible

interpretation. None involved digital transfers of funds. See

United States v. Firth, 64 M.J. 508, 512-13 (A. Ct. Crim. App.

2006) (reversing larceny conviction under Article 121, UCMJ,

when defendant copied fellow service member's debit card

number but did not take the debit card itself); United States v.

Holley, 42 M.J. 779, 780-82 (N-M Ct. Crim. App. 1995) (revers­

ing larceny conviction because defendant's "mere recording

of the numbers without taking physical possession of the

cards did not constitute larceny or wrongful appropriation

within the meaning of Article 121, UCMJ"); United States v.

Stevens, 75 M.J. 548, 550-51 (N-M. Ct. Crim. App. 2015) (re­

versing larceny conviction because digital music, online vid­

eogames, and virtual goods purchased by defendant did not

constitute "property" under Article 121, UCMJ).

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other airman's pay to the Siberian orphanage was criminal

under the relevant statutes.

Cossio's arguments against his conviction under the Com­

puter Fraud and Abuse Act are not frivolous, but none cure

the defects in his petitions for writs of habeas corpus and

mandamus. Further, his challenge under Van Buren has al­

ready been addressed and rejected. See In re Cossio, Misc. Dkt.

No. 2021-04, 2021 WL 6105497, at *5 (A.F. Ct. Crim. App. Dec.

20, 2021) (denying Cossio's petition for mandamus: "This

court has consistently found over the course of the extended

litigation on this case that there was overwhelming evidence

in the record of trial to support the court-martial's findings of

guilty for computer fraud and abuse.") (internal quotation

marks omitted).

Cossio does not address the required elements of

mandamus. He does not argue, nor could he, that the

Secretary owes him a nondiscretionary duty to provide the

relief he seeks. He has received full constitutional protection

at every turn of this litigation and has no clear right to relief.

In this case, Cossio asks yet another court to reweigh evidence

and to reconsider rejected legal theories. This is not the

domain of mandamus. Mandamus is "an extraordinary

remedy, reserved only for extraordinary circumstances." In re

Bluewater Network, 234 F.3d 1305,1316 (D.C. Cir. 2000) (issuing

a writ of mandamus to compel the Coast Guard after more

than ten years of non-compliance to promulgate

congressionally mandated regulations). This is not such a

circumstance.

The district court's judgment is AFFIRMED.

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Both Firth and Holley distinguished between copying card

numbers and theft of the physical form of payment. See Firth,

64 MJ. at 512-13; see also Holley, 42 MJ. at 780-81. Cossio's

act—rerouting electronic transfer of his colleague's pay to a

Siberian orphanage—is more akin to theft of physical forms

of payment, which courts have routinely found criminal un­

der Article 121. See United States v. Cohen, 12 MJ. 573, 575

(A.F.C.M.R. 1981) (affirming larceny conviction under Article

121, UCMJ, for stealing government checks and giving them

to a third party); see also United States v. Christy, 18 MJ. 688,

690 (N-M. C.M.R. 1984) (affirming larceny conviction under

Article 121, UCMJ, where defendant made personal purchase

with government credit card and government disbursed

funds); United States v. Lepresti, 52 MJ. 644, 648-49 (N-M. Ct.

Crim. App. 1999) (affirming larceny conviction under Article

121, UCMJ, where defendant stole checks and used another

service member's credit card to make purchases).

Articles 121 and 134 of the UCMJ cover charges stemming

from identity theft and wire fraud, which may fit more closely

Cossio's actions here. See United States v. Smith, No.

201600417, 2017 WL 3225010, at *l-*2 (N-M. Ct. Crim. App.

July 31, 2017) (affirming convictions under Articles 121 and

134 where Marine accessed recruits' "personal information,

including social security numbers, birth dates, and [bank]

account numbers" and "used that information to gain access

to 15 recruits' [bank] accounts and electronically transferred

over $13,000.00 from their accounts into his own [bank]

account"). Whether under a theory of larceny, wire fraud, or

identity theft, Cossio's actions clearly violated Articles 121

and 134 of the UCMJ. Even if we were to address the merits

of Cossio's arguments at this late stage, his diversion of the

App. 26 of 42

APPENDIX B

Case: l:22-cv-00110 Document#: 58 Filed: 09/29/23 Page 1 of 4 PagelD#:458

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOSE ANTONIO COSSIO, JR.,

Plaintiff,

Case No. 22 C 110

v.

Judge Harry D. Leinenweber

THE AIR FORCE COURT OF

CRIMINAL APPEALS; THE

DEPARTMENT OF THE AIR FORCE;

and FRANK KENDALL, Secretary

of the Air Force,

Defendants.

ORDER

Defendants' Motion to Dismiss [Dkt. No. 44] is granted with

prejudice.

STATEMENT

The Plaintiff., an Air Force enlistee, after what appears to

have been a prank gone awry,

seeks to get out from under a bad

conduct discharge classification handed down by a Court Martial.

He was convicted of threatening physical injury to a co-worker,

accessing

an Air

Force

computer

system to

obtain

the

social

security number of the co-worker without authorization, and using

the

information

obtained

to

commit

larceny

causing

by

the

coworker's salary check to be sent to an orphanage in Siberia. He

has filed a Complaint seeking Mandamus (Count I) or habeas corpus

(Count II) to force the Secretary of the Air Force to resentence

him, hopefully without a bad conduct discharge.

The

Air

Force

Court of Criminal Appeals, the Department of the Air Force, and

Secretary

of

the

Air

Force

Frank

Kendall

(collectively,

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"Defendants") have moved to dismiss pursuant to Federal Rules of

Civil Procedure 12(b) (1) and 12(b) (6).

This suit results from a 2021 decision of the United States

Supreme Court in Van Buren v. United States, 141 U.S. 1648 (2021),

which Plaintiff argues voids his conviction of unauthorized access

to the Air Force's commuter system. Plaintiff also claims that his

larceny conviction should also be voided. The Defendants respond

arguing that the Court does not have jurisdiction to grant either

remedy: mandamus because the suit is brought against the Secretary

in his official capacity and there is no clearly defined duty to

be compelled;

or habeas corpus because the Plaintiff is not in

custody.

In

response,

the

Plaintiff

cites

28

U.S.C.

§

and 10

1361

U.S.C. § 1552. The Plaintiff is right that Section 1361 authorizes

federal courts to issue writs of mandamus and Section 1552 creates

a duty for the Secretary to revise records to correct errors and

avoid injustices. Ashe v. McNamara, 355 F.2d 277

However,

Section 1361 has three threshold requirements

the issuance of a writ of mandamus:

sought,

adequate

(2)

(1st Cir. 1965).

(1) a clear right to the relief

there is no

the defendant has a duty to act, and (3)

at

American

jurisdictional.

law.

These

are

Hospital Ass'n v. Burwell,

812 F.

3d 183,

remedy

for

185

Moreover, the writ is "an extraordinary remedy,

(D.C. Cir.

2016) .

reserved for the

most transparent violations of a clear duty to act." Aljabaris v.

Mayorkas, 3033 WL 2073047 at *2

Ashe

clearly

authorizes

a

Ill.

(N.D.

District

Court

June 9,

to

2022) . While

issue

a

writ

mandamus in a proper case, Smith v. McNamara, 395 F.2d 896

Cir.

1968),

of

(10th

shows that the issuance of the writ is to be denied

where the defendant received full constitutional protection and

has not been subject to an injustice.

In Ashe,

the defendant's

lawyer had such a blatant conflict of interest so that the trial

- 2 -

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was "fundamentally unfair" while the situation in Smith did not

justify the issuance of the writ.

The situation in Plaintiff's case is similar to Smith. Despite

his protestation that his conviction of larceny was also void like

the computer count, it was not. First, Plaintiff admitted his guilt

at the sentencing. Second, the uncontested facts show that he is

in fact guilty of larceny. He admitted to accessing the Air Force

computer

colleague,

obtain

to

system

the

security

social

of

number

his

to be able to direct his paycheck to the children's

No evidence indicates an intention to have the

home in Siberia.

paycheck returned. Although Plaintiff disputes that he ever had

possession of the paycheck,

defines

law is

the

possession

of

an

clear that he did.

Our

"knowingly

as:

criminal

law

[having]

the ability and intention to exercise control over the

object,

either

directly

or

thought

object

others."

William J.

Pattern Criminal Jury Instructions of the Seventh Circuit

Bauer,

(2020

Ed. ) .

The case of United States v. Cohen, AFCMR 1981, 12 M.J. 573,

is on point. In Cohen the accused was charged with stealing checks

belonging to the United States and turning them over to a third

party.

He was,

argued

that

like Plaintiff,

the

government

charged with larceny.

lacked

proof

that

he

Defendant

intended

permanently to deprive the lawful owner of the checks. The court

rejected this contention holding that giving possession of stolen

property to a third party constitutes such an intent. Sending the

paycheck to Siberia as in this case likewise constitutes intent to

deprive permanently.

Plaintiff rests much of his claim on the fact that he was not

guilty

of

the

crime

of

unauthorized

access

to

the

Air

Force

computer system based on the Supreme Court decision in Van Buren.

While VanBuren causes the Computer Fraud and Abuse Act count to be

- 3 -

App. 30 of 42

Case: l:22-cv-00110 Document#: 58 Filed: 09/29/23 Page 4 of 4 PagelD #:461

subject to voiding,

situation

this does not change the Plaintiff's legal

sufficiently

to

warrant

the

issuance

of

a writ

of

mandamus. The substance of the criminal case against Plaintiff is

theft of the paycheck constitutes larceny.

merely

constituted

the

procedure

utilized

The computer charge

to

carry

out

the

substantive act of larceny. It is little different from a situation

where a murder is committed by a shooting using a legal weapon.

The fact that the murderer may have had the legal right to possess

the weapon does not change the substantive crime of murder. It is

clear, like in Smith, the case does not warrant a writ of mandamus.

The Plaintiff also seeks a writ of habeas corpus. Defendants

argue

that the Court

lacks jurisdiction to issue

such a writ

because the Plaintiff is not in custody and his complaints are

collateral

and

not

directly

resulting

from

an

alleged

constitutional violation. For the same reasons that Plaintiff is

not entitled to a writ of mandamus, he is not entitled to a writ

of habeas corpus, i.e., there is no constitutional violation.

The Motion to Dismiss is granted with prejudice.

Harry D. Leinenweber, Judge

United States District Court

Dated: 9/29/2023

- 4 -

App. 31 of 42

APPENDIX C

Additional material

from this filing is

available in the

Clerk's Office.