Petition for Writ of Certiorari — Zhuo H. Zhong, Petitioner v. United States

No. ______

IN THE

Supreme Court of the United States

__________

ZHUO H. ZHONG,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

__________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Armed Forces

__________

PETITION FOR A WRIT OF CERTIORARI

__________

FREDERICK J. JOHNSON

Counsel of Record

United States Air Force

Appellate Defense Division

1500 West Perimeter Road

Suite 1100

Joint Base Andrews, MD 20762

(240) 612-4770

frederick.johnson.11@us.af.mil

Counsel for Petitioner

QUESTIONS PRESENTED

1. In 2021, Congress added a new subsection to

Article 67(c), Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 867(c). The new language

incorporated factual sufficiency review into the

portion of the statute pertaining to the review

authority of the United States Court of Appeals for the

Armed Forces (CAAF). In United States v. Csiti, 85

M.J. 414 (C.A.A.F. 2025), the CAAF concluded that

the new language did not allow it to conduct factual

sufficiency review.

The first question presented is:

Whether the United States Court of Appeals for

the Armed Forces has statutory authority to hold that

a conviction is factually insufficient under 10 U.S.C.

§ 867(c)(1)(C).

2. In courts-martial, the entry of judgment (EOJ)

under 10 U.S.C. § 860c is the final judgment, marking

the beginning of the post-trial process. In the Air

Force, a First Indorsement memorandum summarizes

criminal indexing requirements. It reflects a legal

determination about whether 18 U.S.C. § 922 applies

to the convicted servicemember and effectuates a

restriction of their Second Amendment rights. Despite

statutory authority under Article 66(d)(2), UCMJ, 10

U.S.C. § 866(d)(2), to correct post-judgment

processing errors, the CAAF decided that military

courts cannot correct indicated firearms prohibitions.

The second question presented is:

Whether military courts of criminal appeals have

authority under 10 U.S.C. §§ 860c and 866(d)(2) to

correct an unconstitutional firearms ban annotated

after entry of judgment.

ii

PARTIES TO THE PROCEEDING

All parties to this proceeding appear in the caption

on the cover page of this petition.

CORPORATE DISCLOSURE STATEMENT

No nongovernmental corporations are parties to

this proceeding.

RELATED PROCEEDINGS

Other than the direct appeals that form the basis

for this petition, there are no related proceedings for

the purposes of Rule 14.1(b)(iii).

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ................................................ i

PARTIES TO THE PROCEEDING ...................................... ii

CORPORATE DISCLOSURE STATEMENT.......................... ii

RELATED PROCEEDINGS ............................................... ii

TABLE OF CONTENTS ................................................... iii

TABLE OF AUTHORITIES ............................................... vi

INTRODUCTION ............................................................. 1

PETITION FOR A WRIT OF CERTIORARI .......................... 3

DECISIONS BELOW ........................................................ 3

JURISDICTION ............................................................... 3

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED ..................................................................... 4

STATEMENT OF THE CASE ............................................. 8

REASONS FOR GRANTING THE PETITION ..................... 10

I. The CAAF’s conclusion that it cannot conduct

factual sufficiency review is incorrect. .......... 11

A. The plain language of Article

67(c)(1)(C), UCMJ, is unambiguous. ........ 12

B. Article 67(c)(1)(C) is an exception to

Article 67(c)(4)........................................... 13

C. The CAAF improperly rendered

Congress’s amendment to Article

67(c), UCMJ, meaningless. ....................... 15

D. Factual sufficiency review is a

crucial safeguard against wrongful

convictions in courts-martial. ................... 17

iv

II. The CAAF erred when it found the Air Force

Court did not have authority to correct the

firearm prohibition......................................... 18

A. The CAAF’s holding is contrary to

the plain text of the controlling

statutes, rules, and regulations. .............. 19

B. The CAAF’s flawed decision in

Johnson singles out the Air Force for

unique treatment under the UCMJ. ........ 22

C. The CAAF’s conclusion eliminated

possible relief under Article 66(d)(2),

UCMJ. ....................................................... 25

D. There was post-trial error because

Petitioner was improperly indexed

under 18 U.S.C. § 922. This violated

his Second Amendment Rights. ............... 26

E. Correcting the First Indorsement

would restore Petitioner’s Second

Amendment rights. ................................... 30

CONCLUSION .............................................................. 31

APPENDIX

Court of Appeals for the Armed Forces

Opinion, United States v. Zhong, No.

25-0011 (July 25, 2025) ....................................... 1a

Court of Appeals for the Armed Forces

Order, United States v. Zhong, No.

25-0011 (Dec. 16, 2024) ....................................... 3a

Air Force Court of Criminal Appeals

Opinion, United States v. Zhong, No.

ACM 40441 (Aug. 21, 2024) ................................ 6a

v

Department of the Air Force Regulations

Department of the Air Force Instruction

51-201, Administration of Military

Justice (Apr. 14, 2022) ....................................... 23a

Department of the Air Force Instruction

51-201, Administration of Military

Justice (Apr. 14, 2022) (incorporating

Guidance Memorandum (Sep. 28,

2023)) ................................................................... 36a

Department of the Air Force Instruction

51-201, Administration of Military

Justice (Jan. 24, 2024) ........................................ 51a

Air Force Manual 71-102, Air Force

Criminal Indexing (July 21, 2020) ..................... 65a

Entry of Judgment Template ................................. 73a

vi

TABLE OF AUTHORITIES

Cases

Busic v. United States,

446 U.S. 398 (1980) ............................................... 14

Connecticut Nat’l Bank v. Germain,

503 U.S. 249 (1992) ......................................... 12, 19

Davis v. Michigan Dept. of Treasury,

489 U.S. 803 (1989) ............................................... 22

District of Columbia v. Heller,

554 U.S. 570 (2008) ............................................... 27

Edmond v. United States,

520 U.S. 651 (1997) ............................................... 14

Harding v. VA,

448 F.3d 1373 (Fed. Cir. 2006) ............................. 15

Jimenez v. Quarterman,

555 U.S. 113 (2009) ............................................... 11

Konigsberg v. State Bar of Cal.,

366 U.S. 36 (1961) ................................................. 27

Lamie v. United States Trustee,

540 U.S. 526 (2004) ............................................... 11

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) ............................................... 30

N.Y. State Rifle & Pistol Ass’n v. Bruen,

597 U.S. 1 (2022) ..................................... 2, 9, 27, 28

Patterson v. Independent Sch. Dist.,

742 F.2d 465 (8th Cir. 1984) ................................. 15

RadLAX Gateway Hotel, LLC v.

Amalgamated Bank,

566 U.S. 639 (2012) ............................................... 14

vii

Range v. United States,

124 F.4th 218 (3d Cir. 2024) ..................... 27, 28, 29

Riley v. Bondi,

145 S. Ct. 2190 (2025) ........................................... 23

Rubin v. United States,

449 U.S. 424 (1981) ............................................... 12

Smith v. Berryhill,

587 U.S. 471 (2019) ............................................... 23

Stone v. INS,

514 U.S. 386 (1995) ......................................... 16, 17

United States v. Anderson,

83 M.J. 291 (C.A.A.F. 2023) .................................. 17

United States v. Clark,

75 M.J. 298 (C.A.A.F. 2016) .................................. 16

United States v. Csiti,

85 M.J. 414 (C.A.A.F. 2025) . i, 10, 11, 12, 13, 14, 16

United States v. Diaz,

116 F.4th 458 (5th Cir. 2024) ................... 27, 28, 29

United States v. Duarte,

137 F.4th 743 (9th Cir. 2025) ......................... 27, 29

United States v. Dubois,

139 F.4th 887 (11th Cir. 2025) ....................... 27, 29

United States v. Hunt,

123 F.4th 697 (4th Cir. 2024) ......................... 27, 29

United States v. Jackson,

110 F.4th 1120 (8th Cir. 2024) ....................... 27, 29

United States v. Jackson,

138 F.4th 1244 (10th Cir. 2025)............................ 27

viii

United States v. Johnson,

2025 CAAF LEXIS 499 (C.A.A.F. Jun.

24, 2025) .................2, 3, 9, 10, 19, 22, 23, 24, 25, 26

United States v. Leak,

61 M.J. 234 (C.A.A.F. 2005) .................................. 16

United States v. Rahimi,

602 U.S. 680 (2024) ......................................... 28, 29

United States v. Williams,

113 F.4th 637 (6th Cir. 2024) ................... 27, 28, 29

United States v. Williams,

85 M.J. 121 (C.A.A.F. 2024) .................................. 21

Vincent v. Bondi,

127 F.4th 1263 (10th Cir. 2025)............................ 29

Zherka v. Bondi,

140 F.4th 68 (2d Cir. 2025) ............................. 27, 28

Statutes and Constitutional Provisions

10 U.S.C. § 802(a)(1) ................................................... 9

10 U.S.C. § 854 ............................................................ 5

10 U.S.C. § 860c ....................................... i, 2, 5, 18, 19

10 U.S.C. § 866 .................................................... 2, 3, 6

10 U.S.C. § 866(d)(1) ................................................. 17

10 U.S.C. § 866(d)(1)(B) ........................................ 4, 12

10 U.S.C. § 866(d)(1)(B)(ii)(I) ................................... 18

10 U.S.C. § 866(d)(2) .......... i, 18, 19, 24, 25, 26, 30, 31

10 U.S.C. § 867(a)(3) ................................................... 3

10 U.S.C. § 867(c) ..................................................... i, 4

10 U.S.C. § 867(c)(1)(A) ............................................ 24

ix

10 U.S.C. § 867(c)(1)(C) ..................................... i, 1, 12

10 U.S.C. § 867(c)(4) ................................................. 13

10 U.S.C. § 920c .......................................................... 9

18 U.S.C. § 922 ................................................. i, 10, 20

18 U.S.C. § 922(g) ....................................................... 2

18 U.S.C. § 922(g)(1) ................................. 7, 27, 28, 29

18 U.S.C. § 922(g)(8)(C)(i)......................................... 28

18 U.S.C. § 922(s)...................................................... 30

18 U.S.C. § 922(t)(1)(A)............................................. 30

28 U.S.C. § 1259(3) ..................................................... 3

U.S. Const. amend. II ..................................... 5, 27, 30

William M. (Mac) Thornberry National

Defense Authorization Act (NDAA) for

Fiscal Year 2021, Pub. L. No. 116-283,

134 Stat. 3388 (2021) .................................. 1, 11, 17

Rules and Regulations

28 C.F.R. § 25.6 ......................................................... 30

28 C.F.R. § 25.6(c) ................................................. 6, 30

Federal Rule of Criminal Procedure

32(k)(1)................................................................... 26

R.C.M. 1111 ........................................................... 7, 19

R.C.M. 1111(a)(2) ........................................................ 2

R.C.M. 1111(b)(3)(F) ..................................... 19, 20, 25

R.C.M. 1112(d)(2) ...................................................... 26

x

Other Authorities

ANTONIN SCALIA & BRYAN A. GARNER,

READING LAW: THE INTERPRETATION OF

LEGAL TEXTS (2012) ............................................... 14

Brief for the United States in Opposition

at 32, Martinez, et al. v. United States,

cert. denied, 144 S. Ct. 1000 (2024)

(No. 23-242) (filed Dec. 27, 2023).......................... 17

1

INTRODUCTION

Petitioner is a United States Air Force

servicemember who was convicted at a general courtmartial. He sought relief on appeal based on the

factual insufficiency of his conviction. Factual

sufficiency review is a unique right afforded

servicemembers convicted of crimes in the military

justice system. While a 2021 statute curtailed the

availability and robustness of factual sufficiency

review conducted by military Courts of Criminal

Appeals, it simultaneously expanded factual

sufficiency review authority to the CAAF. William M.

(Mac) Thornberry National Defense Authorization Act

(NDAA) for Fiscal Year 2021, Pub. L. No. 116-283,

§ 542(b), 134 Stat. 3388, 3611 (2021). Specifically,

Congress amended Article 67, UCMJ, to grant the

CAAF the authority to review and act on the factual

sufficiency rulings of the Courts of Criminal Appeals.

10 U.S.C. § 867(c)(1)(C). But the CAAF incorrectly

concluded that it does not have the authority to

conduct its own factual sufficiency review, depriving

Petitioner—and other convicted servicemembers—of

the unique right to factual sufficiency review

expressly bestowed upon them by Congress.

The Court should grant certiorari and provide

necessary clarity that Congress granted factual

sufficiency review authority to the CAAF when it

amended Article 67, UCMJ, in 2021. Without this

clarification, servicemembers will continue to be

deprived of this significant review that is intended to

protect criminal defendants from wrongful convictions

in a system that does not afford them the right to

unanimous verdicts.

Additionally, following Petitioner’s conviction, a

2

single military attorney wrongly indicated on a posttrial document that petitioner should be permanently

deprived of his Second Amendment rights. The Air

Force Court of Criminal Appeals (Air Force Court) has

statutory authority to provide relief for this

constitutional violation. But the CAAF determined

that neither it nor the Air Force Court had statutory

authority to act on the firearm prohibition and

declined to provide relief.

Final judgment in military courts-martial is

complete when the military judge signs the EOJ. 10

U.S.C. § 860c; Rule for Courts-Martial (R.C.M.)

1111(a)(2). The Air Force requires that a memo, called

a “First Indorsement,” be attached to the EOJ.

Pet.App. 58a. Part of the First Indorsement is the

criminal indexing portion. Id. Here, the Government

indexed Petitioner for a firearms prohibition under 18

U.S.C. § 922(g), likely because the offense of which he

was convicted is punishable by confinement exceeding

one year. That indexing was erroneous because it is

inconsistent with the Nation’s history and tradition of

firearms regulation. N.Y. State Rifle & Pistol Ass’n v.

Bruen, 597 U.S. 1, 19 (2022).

Under 10 U.S.C. § 866(d)(2), the Air Force Court

“may provide appropriate relief if the accused

demonstrates error . . . in the processing of the courtmartial after the judgment was entered into the

record.” Despite clear statutory language, the CAAF

held that the Air Force Court lacks authority to

provide relief for erroneous indexing. United States v.

Johnson, __ M.J. __, No. 24-0004/SF, 2025 CAAF

LEXIS 499 (C.A.A.F. June 24, 2025).

The CAAF’s holding is inconsistent with the text of

10 U.S.C. § 860c and the statutory and regulatory

3

scheme of the UCMJ and R.C.M.s. The Air Force’s

unique post-trial processing renders the firearm

prohibition an “error” that occurs after the entry of

judgment for which the Air Force Court could provide

appropriate relief. Therefore, this Court should grant

review to overrule the CAAF’s determination to the

contrary. Johnson, 2025 CAAF LEXIS 499, at *10–13.

PETITION FOR A WRIT OF CERTIORARI

Staff Sergeant Zhuo H. Zhong, United States Air

Force, respectfully petitions for a writ of certiorari to

review the decision of the United States Court of

Appeals for the Armed Forces.

DECISIONS BELOW

The decision of the Air Force Court is not reported.

It is available at 2024 CCA LEXIS 344, 2024 WL

3888108, and is reproduced at pages 6a–22a. The

CAAF’s decision is not yet reported. It is available at

2025 CAAF LEXIS 626, 2025 WL 2303340, and

reproduced at page 1a–2a.

JURISDICTION

The Air Force Court had jurisdiction over this

matter pursuant to Article 66, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 866. The CAAF

had jurisdiction pursuant to Article 67(a)(3), UCMJ,

10 U.S.C. § 867(a)(3). The CAAF granted review and

issued its decision without a published opinion on July

25, 2025. On October 15, 2025, the Chief Justice

extended the time in which to file a petition for

certiorari to December 22, 2025. This Court has

jurisdiction under 28 U.S.C. § 1259(3).

4

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article

66(d)(1)(B),

UCMJ,

10

§ 866(d)(1)(B), provides in relevant part:

U.S.C.

(B) Factual sufficiency review.—

(i) In an appeal of a finding of guilty under

subsection (b), the Court [of Criminal Appeals]

may consider whether the finding is correct in

fact upon request of the accused if the accused

makes a specific showing of a deficiency in

proof.

(ii) After an accused has made such a

showing, the Court may weigh the evidence and

determine controverted questions of fact

subject to—

(I) appropriate deference to the fact that

the trial court saw and heard the witnesses and

other evidence; and

(II) appropriate deference to findings of

fact entered into the record by the military

judge.

(iii) If, as a result of the review conducted

under clause (ii), the Court is clearly convinced

that the finding of guilty was against the

weight of the evidence, the Court may dismiss,

set aside, or modify the finding, or affirm a

lesser finding.

Article 67, UCMJ, 10 U.S.C. § 867(c), provides in

relevant part:

(c)(1) In any case reviewed by it, the Court

of Appeals for the Armed Forces may act only

with respect to—

5

(A) the findings and sentence set forth in

the entry of judgment, as affirmed or set aside

as incorrect in law by the Court of Criminal

Appeals;

(B) a decision, judgment, or order by a

military judge, as affirmed or set aside as

incorrect in law by the Court of Criminal

Appeals; or

(C) the findings set forth in the entry of

judgment, as affirmed, dismissed, set aside, or

modified by the Court of Criminal Appeals as

incorrect in fact under section 866(d)(1)(B) of

this title (article 66(d)(1)(B)).

....

(4) The Court of Appeals for the Armed

Forces shall take action only with respect to

matters of law.

The Second Amendment, in pertinent part,

provides: “A well regulated Militia, being necessary to

the security of a free State, the right of the people to

keep and bear Arms, shall not be infringed.” U.S.

Const. amend. II.

In relevant part, 10 U.S.C. § 854 (2018), Record of

Trial, provides: “(c) Contents of Record.-(1) Except as

provided in paragraph (2), the record shall contain

such matters as the President may prescribe by

regulation.”

In relevant part, 10 U.S.C. § 860c(a) (2018), Entry

of judgment, provides:

(1) In accordance with rules prescribed by

the President, in a general or special courtmartial, the military judge shall enter into the

6

record of trial the judgment of the court. The

judgment of the court shall consist of the

following:

(A) The Statement of Trial Results under

section 860 of this title (article 60).

(B) Any modifications of, or supplements

to, the Statement of Trial Results by reason of—

(i) any post-trial action by the

convening authority; or

(ii) any ruling, order, or other

determination of the military judge that affects

a plea, a finding, or the sentence.

In relevant part, 28 C.F.R. § 25.6(c) provides:

The

FBI

[National

Instant

Criminal

Background Check System (NICS)] Operations

Center, upon receiving an [Federal Firearm

Licensee (FFL)] telephone or electronic dial-up

request for a background check, will . . . .

Provide the following NICS responses based

upon the consolidated NICS search results to

the FFL that requested the background check:

. . . “Denied’’ response, when at least one

matching record is found in either the NICS

Index, NCIC, or III that provides information

demonstrating that receipt of a firearm by the

prospective transferee would violate 18 U.S.C.

922 or state law.

In relevant part, 10 U.S.C. § 866(d)(2) (2018)

provides: “In any case before the Court of Criminal

Appeals under subsection (b), the Court may provide

appropriate relief if the accused demonstrates error or

excessive delay in the processing of the court-martial

7

after the judgment was entered into the record under

section 860c of this title (Article 60c).” 1

In relevant part, 18 U.S.C. § 922(g)(1) states it is

unlawful for any person “who has been convicted in

any court of, a crime punishable by imprisonment for

a term exceeding one year . . . to . . . possess in or

affecting commerce, any firearm or ammunition; or to

receive any firearm or ammunition which has been

shipped or transported in interstate or foreign

commerce.”

In relevant part, R.C.M. 1111, 2 Entry of judgment,

provides:

(a) In general.

(1) Scope. Under regulations prescribed by

the Secretary concerned, the military judge of a

general or special court-martial shall enter into

the record of trial the judgment of the

court. . . .

(2) Purpose. The judgment reflects the result

of the court-martial, as modified by any posttrial actions, rulings, or orders. The entry of

judgment terminates the trial proceedings and

1 As codified in the 2018 edition of United States Code and as

amended by the William M. (Mac) Thornberry NDAA for Fiscal

Year 2021, Pub. L. No. 116-283, § 542(b), 134 Stat. 3388, 3611

(2021), and the James M. Inhofe NDAA for Fiscal Year 2023,

Pub. L. No. 117–263, § 544, 136 Stat. 2395, 2582 (2022).

2 R.C.M. 1111 was added to the Manual for Courts-Martial in

2018 to implement Articles 60c and 63, UCMJ, 10 U.S.C. §§ 860c,

863, as added by Sections 5324 and 5327 of the Military Justice

Act of 2016, Division E of the National Defense Authorization Act

for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016).

R.C.M. 1111 has not been amended since.

8

initiates the appellate process.

....

(b) Contents. The judgment of the court shall be

signed and dated by the military judge and

shall consist of—

....

(3) Additional information.

....

(F) Other information. Any additional

information that the Secretary concerned may

require by regulation.

Pertinent text of the following authorities is

reproduced in the Appendix: Department of the Air

Force Manual (DAFMAN) 71-102, Air Force Criminal

Indexing (Jul. 21, 2020), Department of the Air Force

Instruction (DAFI) 51-201, Administration of Military

Justice (Apr. 14, 2022), DAFI 51-201, Administration

of Military Justice (Apr. 14, 2022) (incorporating

Guidance Memorandum (Sep. 28, 2023)), and DAFI

51-201, Administration of Military Justice (Jan. 24,

2024).

STATEMENT OF THE CASE

Congress amended Article 67, UCMJ, granting

CAAF the authority to make factual sufficiency

determinations. Given this change to the statute,

multiple servicemembers brought timely appeals to

the CAAF requesting that the court conduct its own

9

independent factual sufficiency review in their cases. 3

One of those appellants is Petitioner here.

Additionally, following this Court’s decision in

Bruen, 597 U.S. 1, many servicemembers challenged

the constitutionality of the firearms prohibitions

indicated on the First Indorsements to their EOJs.

The CAAF held in United States v. Johnson that it and

the Air Force Court do not have the authority to

correct an erroneous indexing indication during posttrial processing. 2025 CAAF LEXIS 499, at *13–14. As

a result, numerous Air Force defendants were

unconstitutionally deprived of their Second

Amendment right to bear arms. 4 The Petitioner here

was one of those defendants.

A military judge sitting as a general court-martial

convicted Petitioner Zhuo H. Zhong, a Staff Sergeant

(E-5) in the U.S. Air Force, contrary to his pleas, of

indecent visual recording in violation of Article 120c,

UCMJ, 10 U.S.C. § 920c. EOJ. The court of first

instance exercised federal jurisdiction pursuant to

Article 2(a)(1), UCMJ, 10 U.S.C. § 802(a)(1). The

military judge sentenced Petitioner to reduction to the

3 The first question presented has been raised in a petition for a

writ of certiorari currently pending before the Court. United

States v. McLeod, No. 24-0189, 2025 CAAF LEXIS 454 (C.A.A.F.

June 11, 2025), petition for cert. filed, No. 25-563 (U.S. Nov. 6,

2025). The Court requested a response to this petition from the

United States. McLeod v. United States, No. 25-563 (U.S. Dec. 8,

2025),

https://www.supremecourt.gov/search.aspx?filename=/

docket/docketfiles/html/public/25-563.html.

4 The second question presented has been raised in a petition for

a writ of certiorari currently pending before the Court. United

States v. Schneider, No. 24-0228, 2025 CAAF LEXIS 605

(C.A.A.F. July 22, 2025), petition for cert. filed, No. 25-865 (U.S.

Dec. 9, 2025) (consolidating thirteen cases for review).

10

grade of E-1, confinement for two months, and a badconduct discharge. EOJ. On January 20, 2023, the

convening authority took no action on the findings or

sentence. Convening Authority Decision on Action.

The First Indorsement to Petitioner’s EOJ stated

that he is subject to a “Firearm Prohibition Triggered

Under 18 U.S.C. § 922.” EOJ, First Indorsement,

February 1, 2023. The Air Force Court provided

neither discussion nor relief on the raised issue

regarding this prohibition, and it further found

Petitioner’s convictions factually sufficient and

affirmed the findings and sentence. Pet.App. 8a, 22a.

Petitioner requested that the CAAF review his

case to determine whether his conviction was

factually sufficient and whether 18 U.S.C. § 922 is

unconstitutional as applied to him. The CAAF granted

review of seven questions related to these issues,

including whether the CAAF has statutory authority

to decide whether a conviction is factually sufficient

and whether military appellate courts can provide

appropriate relief for erroneously indicated firearms

prohibitions. Pet.App. 3a–5a. The CAAF summarily

affirmed the Air Force Court’s decision in light of

United States v. Csiti, 85 M.J. 414 (C.A.A.F. 2025),

and United States v. Johnson, __ M.J. __, No. 24-0004,

2025 CAAF LEXIS 499 (C.A.A.F. June 24, 2025).

Pet.App. 1a.

REASONS FOR GRANTING THE PETITION

This case presents two instances of lower courts

improperly interpreting their statutory authorities. In

both instances, the courts incorrectly limited their

reviews,

denying

Petitioner

and

other

servicemembers the opportunity to remedy errors in

convictions and the processing of courts-martial.

11

These statutory interpretations go against the plain

language of the statutes, departing from this Court’s

interpretive precedents. E.g., Jimenez v. Quarterman,

555 U.S. 113, 118 (2009) (citing Lamie v. United States

Trustee, 540 U.S. 526, 534 (2004)) (“As with any

question of statutory interpretation, our analysis

begins with the plain language of the statute.”). These

flawed interpretations merit review by this Court.

I. The CAAF’s conclusion that it cannot

conduct factual sufficiency review is

incorrect.

The CAAF has the statutory authority to decide

whether an appellant’s conviction is factually

insufficient. The plain language of Article 67(c)(1)(C),

UCMJ, as amended by the FY 2021 NDAA, supports

this conclusion. Accordingly, the CAAF may act with

respect to any findings reviewed by a Court of

Criminal Appeals under Article 66, UCMJ, and

affirmed as factually sufficient.

The CAAF summarily affirmed the lower court’s

decision in Petitioner’s case. It stated that it did so “in

the light of United States v. Csiti,” in which it held

that it did not have the statutory authority to decide

whether a conviction is factually insufficient. 85 M.J.

at 416.

In Csiti, the CAAF interpreted the changes

Congress made to Article 67, UCMJ, as part of the

FY 2021 NDAA. The CAAF found that Article

67(c)(1)(C), UCMJ, does not “expressly address”

whether the CAAF may act with respect to matters of

fact. Csiti, 85 M.J. at 418. And relying on Article

67(c)(4), UCMJ—“The Court of Appeals for the Armed

Forces shall take action only with respect to matters

of law”—the CAAF held that it “does not have

12

authority to conduct a factual sufficiency review.”

Csiti, 85 M.J. at 418. This misapprehension of the

statute’s plain, unambiguous language rendered the

amended provision effectively meaningless.

A. The plain language of Article 67(c)(1)(C),

UCMJ, is unambiguous.

Determining the meaning of Article 67(c)(1)(C),

UCMJ, starts and stops with the unambiguous plain

language. See Connecticut Nat’l Bank v. Germain, 503

U.S. 249, 254 (1992) (quoting Rubin v. United States,

449 U.S. 424, 430 (1981)) (“When the words of a

statute are unambiguous, then [the] first canon [of

statutory construction] is also the last: ‘judicial

inquiry is complete.’”). The language expresses

Congress’s intent to give the CAAF the authority to

conduct factual sufficiency review.

Article 67(c)(1)(C), UCMJ, provides: “[T]he Court

of Appeals for the Armed Forces may act . . . with

respect to . . . the findings set forth in the entry of

judgment, as affirmed, dismissed, set aside, or

modified by the Court of Criminal Appeals as incorrect

in fact under section 866(d)(1)(B) of this title (article

66(d)(1)(B)).” 10 U.S.C. § 867(c)(1)(C). Article

66(d)(1)(B), UCMJ, specifies the authority of Courts of

Criminal Appeals to engage in factual sufficiency

review. 10 U.S.C. § 866(d)(1)(B).

“[C]ourts must presume that a legislature says in

a statute what it means and means in a statute what

it says there.” Connecticut Nat’l Bank, 503 U.S. at

253–54. Congress’s inclusion of the language “under

section 866(d)(1)(B)” indicates that section (c)(1)(C) is

specifically referring to findings that are either correct

or incorrect in fact, since a lower court’s review under

section (d)(1)(B) is limited to factual sufficiency. The

13

words “incorrect in fact” must only refer to findings

that are dismissed, set aside, or modified, and not to

findings that are affirmed. To read the statute as

authorizing CAAF to act with respect to findings “as

affirmed . . . as incorrect in fact” would be

nonsensical—a court cannot affirm findings it

determines are incorrect in fact.

The CAAF bypassed this argument, relegating its

discussion to a footnote without reaching a conclusion.

Csiti, 85 M.J. at 418 n.3. But this point should not be

ignored. It is this language—the CAAF “may

act . . . with respect to . . . findings . . . as affirmed by

the Court of Criminal Appeals”—that gives the CAAF

the authority to review a lower court’s factual

sufficiency determination and conduct its own

independent factual sufficiency review regardless of

whether the lower court found the evidence factually

sufficient or insufficient.

In Petitioner’s case, the Air Force Court found his

conviction factually sufficient. Pet.App. 16a. The

change in the law gave the CAAF the authority to

conduct its own factual sufficiency review. The CAAF

was wrong to conclude otherwise.

B. Article 67(c)(1)(C) is an exception to

Article 67(c)(4).

To ensure Article 67(c)(1)(C), UCMJ, has meaning,

it is logical to read this subsection as an exception to

the older portion of the statute—Article 67(c)(4),

UCMJ.

Notwithstanding the addition of (c)(1)(C) to the

statute, Article 67, UCMJ, maintains section (c)(4),

which states that CAAF “shall take action only with

respect to matters of law.” 10 U.S.C. § 867(c)(4). This

creates a conflict within Article 67(c), UCMJ.

14

Two provisions of a statute that are in conflict can

be resolved by applying the specific-over-general

canon of statutory construction. “Ordinarily, where a

specific provision conflicts with a general one, the

specific governs.” Edmond v. United States, 520 U.S.

651, 657 (1997) (citing Busic v. United States, 446 U.S.

398 (1980)); ANTONIN SCALIA & BRYAN A. GARNER,

READING LAW: THE INTERPRETATION OF LEGAL TEXTS

183 (2012) (“If there is a conflict between a general

provision and a specific provision, the specific

provision prevails.”). When a “general permission or

prohibition is contradicted by a specific prohibition or

permission,” the contradiction is eliminated by

interpreting the specific provision as “an exception to

the general one.” RadLAX Gateway Hotel, LLC v.

Amalgamated Bank, 566 U.S. 639, 645 (2012).

Section (c)(1)(C) is specific. It explicitly grants the

CAAF the authority to review, and act, in cases where

a military Court of Criminal Appeals affirms,

dismisses, sets aside, or modifies the findings of a case

under Article 66(d)(1)(B) (the specific section that

grants a CCA the authority to conduct a factual

sufficiency review). It is more specific than (c)(4)—a

general prohibition on the CAAF acting with respect

to matters that are not law.

But the CAAF rejected the argument that Article

67(c)(1)(C), UCMJ, created an exception to (c)(4).

Csiti, 85 M.J. at 418. It saw no conflict and instead

relied on Article 67(c)(4), UCMJ, to effectively read

any meaning out of Article 67(c)(1)(C), UCMJ.

The conclusion that the newer Article 67(c)(1)(C),

UCMJ, prevails over the older Article 67(c)(4), UCMJ,

finds additional support in the legal maxim lex

posterior derogat legi priori—when two statutory

15

provisions conflict, the later in time prevails. See, e.g.,

Patterson v. Independent Sch. Dist., 742 F.2d 465, 468

(8th Cir. 1984); Harding v. VA, 448 F.3d 1373, 1376

n.2 (Fed. Cir. 2006). 5

When introducing new language in statutes,

drafters may overlook the need to modify the current

statute to align with the new language. 6 But that does

not invalidate the newly added language. This Court

should read section (c)(1)(C) as an exception to section

(c)(4) to resolve the conflict between the two

provisions.

C. The

CAAF

improperly

rendered

Congress’s amendment to Article 67(c),

UCMJ, meaningless.

“When Congress acts to amend a statute, [courts

must] presume it intends its amendment to have real

and substantial effect.” Stone v. INS, 514 U.S. 386,

5 See also United States v. Under Seal, 709 F.3d 257, 262 n.2 (4th

Cir. 2013) (referring to “leges posteriores priores contrarias

abrogant—the rule that the more recent of two conflicting

statutes shall prevail”); Southern Scrap Material Co. LLC v. ABC

Ins. Co., 541 F.3d 584, 593 (5th Cir. 2008) (referring to “the

longstanding principle that when two statutes irreconcilably

conflict, the more recent statute controls”); Union Iron Co. v.

Pierce, 24 F. Cas. 583 (C.C.D. Ind. 1869) (“when there are two

repugnant statutes of different dates, the latter repeals the

former to the extent of the repugnancy”).

6 See, e.g., United States v. Hirst, 84 M.J. 615, 617–20 (N-M Ct.

Crim. App. 2024) (summarizing how Congress amended Article

69, UCMJ, in the Military Justice Act of 2016, which, when read

in tandem with Article 65, UCMJ, “resulted in statutory

language that was meaningless nonsense,” and concluding the

amended Article 69, UCMJ, contained a scrivener’s error);

United States v. Parino-Ramcharan, 84 M.J. 445, 451 (C.A.A.F.

2024) (concluding that Article 69(c)(1)(A), UCMJ, 10 U.S.C.

§ 869(c)(1)(A) (2018), contained a scrivener’s error).

16

397 (1995). The CAAF in Csiti instead concluded that

the changes to Article 67(c), UCMJ, had no effect on

the law.

The CAAF avoided offering a clear interpretation

of the language of Article 67(c)(1)(C), UCMJ,

ultimately stating that “[w]hile Article 67(c)(1)(C),

UCMJ, may authorize this Court to act, it does not

expressly address the question of whether the Court

may act with respect to both matters of fact and

matters of law. Only Article 67(c)(4), UCMJ,

addresses that issue.” Csiti, 85 M.J. at 419 (emphasis

added). It is unclear what the CAAF concluded, if

anything, regarding the language of Article

67(c)(1)(C), UCMJ.

At worst, the CAAF improperly read the new

subsection added by Congress in 2021 entirely out of

the law, focusing solely on Article 67(c)(4) because

that portion predates the new language. Csiti, 85 M.J.

at 418–19.

At best, the CAAF believes subsection (c)(1)(C)

merely codified what was already established in the

law. Prior to the 2021 changes to Article 67, UCMJ,

the CAAF could review a lower court’s factual

sufficiency determination to ensure it had applied

“correct legal principles.” United States v. Clark, 75

M.J. 298, 300 (C.A.A.F. 2016) (quoting United States

v. Leak, 61 M.J. 234, 241 (C.A.A.F. 2005)) (“[W]e

retain the authority to review factual sufficiency

determinations of the [Courts of Criminal Appeals] for

the application of ‘correct legal principles,’ but only as

to matters of law.”). Reading the changes to Article

67(c), UCMJ, as merely codifying what was already

known to be true, renders Congress’s efforts

effectively meaningless.

17

Either way, the CAAF’s interpretation of the newly

added subsection (c)(1)(C) has no “real and substantial

effect.” See Stone, 514 U.S. at 397.

D. Factual sufficiency review is a crucial

safeguard against wrongful convictions in

courts-martial.

Both the Government and the CAAF have pointed

to factual sufficiency review as a safeguard against

the risk of wrongful conviction in military trials.

United States v. Anderson, 83 M.J. 291, 299 (C.A.A.F.

2023) (citing 10 U.S.C. § 866(d)(1) (2018)) (“Appellants

in the military justice system are also entitled to

factual sufficiency review on appeal, ensuring panel

verdicts are subject to oversight.”); Brief for the

United States in Opposition at 32, Martinez, et al. v.

United States, cert. denied, 144 S. Ct. 1000 (2024) (No.

23-242) (filed Dec. 27, 2023) (quoting Anderson, 83

M.J. at 299) (explaining that factual sufficiency is one

of the safeguards against wrongful conviction afforded

under the UCMJ).

But, as the CAAF acknowledged in Anderson, 83

M.J. at 299 n.9, the 2021 statute limited the

availability and robustness of factual sufficiency

review in the military justice system. See William M.

(Mac) Thornberry NDAA for FY 2021, Pub. L. No. 116283, § 542(b), 134 Stat. at 3611. Particularly

significant was an amendment of the statute

governing factual sufficiency review to eliminate the

Courts of Criminal Appeals’ sua sponte obligation to

conduct factual sufficiency review of every contested

conviction and, when they do conduct such review,

requiring them to afford “appropriate deference to the

fact that the trial court saw and heard the witnesses

and other evidence.” Id. (codified at Article

18

66(d)(1)(B)(ii)(I),

§ 866(d)(1)(B)(ii)(I)).

UCMJ,

10

U.S.C.

While narrowing the circumstances in which the

Courts of Criminal Appeals will conduct factual

sufficiency review and providing for greater deference

to trial-level determinations, Congress sensibly

enhanced the CAAF’s authority to conduct its own

factual sufficiency review. In doing so, Congress

protected

servicemembers

against

wrongful

convictions that might survive the Courts of Criminal

Appeals’ newly constrained review authority. The

CAAF frustrated Congress’s balanced approach by

repudiating the portion of the legislation designed for

servicemembers’ protection.

II. The CAAF erred when it found the Air

Force Court did not have authority to

correct the firearm prohibition.

The First Indorsement to the EOJ indexed

Petitioner in NICS, barring him from possessing

firearms. This was error because it violates the Second

Amendment, applicable statutes, and Air Force

regulations. Because there was an error in the First

Indorsement, the Air Force Court had authority under

Article 66(d)(2), UCMJ, to provide relief for that error.

Despite the plain text, the CAAF held that the Air

Force Court did not have that authority. The CAAF’s

decision is antithetical to the plain text of the statute

and results in the deprivation of Petitioner’s Second

Amendment rights. This Court should grant review to

fix these errors.

The CAAF incorrectly interpreted Articles 60c and

66(d)(2), UCMJ, stripping the Air Force Court of its

statutory authority to correct errors in post-trial

processing. The EOJ ends the court-martial and

19

begins the post-trial process. 10 U.S.C. § 860c. The

First Indorsement—which indexed Petitioner—comes

after the EOJ, making it part of the post-trial process.

Article 66(d)(2) authorizes the Air Force Court to

provide relief for post-trial errors. Therefore, the Air

Force Court can provide relief for an error in the First

Indorsement. The CAAF’s decision is contrary to the

plain text of applicable statutes, rules, and

regulations, and conflicts with the overall statutory

scheme.

A. The CAAF’s holding is contrary to the

plain text of the controlling statutes,

rules, and regulations.

“[C]ourts must presume that a legislature says in

a statute what it means and means in a statute what

it says there. When the words of a statute are

unambiguous, then, this first canon is also the last:

judicial inquiry is complete.” Connecticut Nat’l Bank,

503 U.S. at 253–54 (citations omitted) (internal

quotations marks omitted). Yet the CAAF ignored the

unambiguous words of 10 U.S.C. § 860c, R.C.M.

1111(b)(3)(F), and the Air Force’s regulations.

Article 60c, UCMJ, provides that “the military

judge shall enter into the record of trial the judgment

of the court.” 10 U.S.C. § 860c(a)(1). The President,

pursuant to Article 60c(a), UCMJ, prescribes rules for

the preparation and distribution of the EOJ. The

President has directed that “the EOJ ‘shall consist

of’—among

other

things—‘[a]ny

additional

information that the Secretary concerned may require

by regulation.’” Johnson, __ M.J. __, 2025 CAAF

LEXIS 499, at *11–12 (citing R.C.M. 1111(b)(3)(F))

(alteration in original).

20

Pursuant to R.C.M. 1111(b)(3)(F), the Secretary of

the Air Force outlines the “additional information” to

the EOJ through Department of the Air Force

Instruction (DAFI) 51-201. Under the applicable

versions of DAFI 51-201, “[t]he EOJ reflects the

results of the court-martial after all post-trial actions,

rulings, or orders, and serves to terminate trial

proceedings and initiate appellate proceedings.”

Pet.App. 24a, 39a, 52a. The “[m]inimum contents” of

the EOJ “must include the contents listed in R.C.M.

1111(b), and the [Statement of Trial Results] must be

included as an attachment.” Pet.App. 24a, 39a, 52a.

Notably, the “additional information that the

Secretary concerned may require by regulation” does

not include the First Indorsement. Pet. App. at 26a,

41a, 54a.

This makes sense considering the contents and

purpose of the First Indorsement. The First

Indorsement only indicates whether certain criminal

indexing is required. Pet.App. 25a, 40a, 53a. After the

First Indorsement is complete, it is sent to the

Department of the Air Force Criminal Justice

Information Center (DAF-CJIC) to criminally index

the convicted servicemember into NICS, which

records the restrictions. Pet.App. 34a–35a, 49a–50a,

63a, 67a. Indexing is not a “personnel or

administrative function,” but a law enforcement

function that occurs “after all post-trial actions,

rulings, or orders,” and the termination of trial

proceedings. Pet.App. 24a. Thus, the purpose of the

First Indorsement is to effectuate post-trial

processing and does not operate as part of the

judgment of the court.

If the Secretary of the Air Force intended to

include the 18 U.S.C. § 922 designator in the EOJ,

21

they would have done so. See, e.g., United States v.

Williams, 85 M.J. 121, 122–23 (C.A.A.F. 2024)

(explaining how the Army does its indexing before the

entry of judgment). 7 Instead, the Secretary of the Air

Force specifically delineated the EOJ from the First

Indorsement, making them distinct. Pet.App. 25a

(showing the First Indorsement is “sign[ed] and

attach[ed] to the EoJ” and “distributed with the EoJ”);

see also Pet.App. 40a, 53a (emphasis added) (showing

other versions of the DAFI with the same language).

The overall regulatory scheme prescribed by the

Secretary of the Air Force is contrary to the CAAF’s

holding: the EOJ and First Indorsement are not the

same.

The EOJ itself confirms this reading, stating

directly above the military judge’s signature: “[t]his

judgment reflects the result of the court-martial, as

modified by any post-trial actions, rulings, or orders,

if any, and is hereby entered into the record on (date).”

Pet.App. 74a. Moreover, the First Indorsement is clear

in its single sentence: “The following criminal

indexing is required, following Entry of Judgment.”

Pet.App. 75a (emphasis added). The First

Indorsement “follows,” “accompanies,” and “attaches

to” the EOJ; it is not the entry of judgment under

Article 60c, UCMJ.

7 The Air Force is the only service that accomplishes its firearm

prohibition reporting after the military judge signs the EOJ; the

other services complete criminal indexing prior to the military

judge signing the EOJ. See, e.g., id. at 122 (describing how in the

Army, the military judge makes the firearm prohibition before

entering the judgment into the record).

22

B. The CAAF’s flawed decision in Johnson

singles out the Air Force for unique

treatment under the UCMJ.

The CAAF’s holding that the entry of judgment

includes the First Indorsement distinguished the Air

Force from the other services, contrary to the intent of

the “uniform” code. Johnson, 2025 CAAF LEXIS 499,

at *11–12. “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.” Davis v. Michigan Dept. of

Treasury, 489 U.S. 803, 809 (1989). Here, the CAAF

read the Air Force’s regulations in a way that

undermines uniformity in the UCMJ. Johnson, __

M.J. __, 2025 CAAF LEXIS 499, at *16 n.3 (Johnson,

J., concurring). Under the CAAF’s reading, the Air

Force can alter the application of the MCM,

undermining the uniform execution of military

justice. See id. at *15–16 (Johnson, J., concurring)

(“[T]he Court’s decision . . . could potentially set the

Air Force and Space Force apart from the other

services for every provision of the UCMJ and the

R.C.M. that turns on the timing of the EOJ.”).

The CAAF arrived at this inconsistent outcome by

confusing the contents included in the Air Force

record of trial with the processing of military courtsmartial after judgment is entered into the record. To

support its conclusion, the CAAF said any other

interpretation would not make clear “what

authority—if any—would authorize [a judge advocate]

to supplement the record of trial with an additional

document after the entry of the EOJ into the record.”

Id. at *12. While the CAAF is correct that it is not

clear what authority allows the Staff Judge Advocate

to supplement the record of trial, hierarchy of laws

23

dictates that the statute and the R.C.M.s trump the

DAFI. But rather than finding the Air Force’s

regulations unlawful, the CAAF equated the First

Indorsement to the EOJ, contrary to the overall

statutory and regulatory scheme.

The military judge’s signature must “denote[] some

kind of terminal event.” Riley v. Bondi, 606 U.S. 259,

290–91 (2025) (quoting Smith v. Berryhill, 587 U.S.

471, 479 (2019)) (reviewing the statutory definition of

“final” for final judicial orders in 8 U.S.C.

§ 1252(b)(1)). The EOJ should “leave nothing to be

looked for or expected and leave no further chance for

action, discussion, or change.” Id. at 291 (cleaned up).

But, the CAAF’s holding leaves a single military

service waiting for action, discussion, or change by an

attorney after a military judge has already entered

judgment into the record.

The overall regulatory and statutory scheme

confirms the opposite of CAAF’s holding: the EOJ and

First Indorsement cannot be the same. The CAAF

confused entry of judgment into the record with the

document included in the record of trial. Merely

because the documents are attached to each other

does not mean that they serve the same purpose or

justify deviation from uniform application of military

justice. The overall context and scheme of the

applicable rules confirm the CAAF was wrong; the

First Indorsement has no bearing on when judgment

is entered into the record.

Applying its incorrect interpretation, the CAAF

assessed whether it or the Air Force Court had

jurisdiction to review the firearm prohibition in the

First Indorsement. Johnson, 2025 CAAF LEXIS 499.

The CAAF found that the reason it did not have

24

authority was because “the [Air Force Court] itself

also lacks authority.” Id. at *2.

The CAAF first concluded that the firearm

indexing requirement was not part of the findings or

the sentence. Id. at *9–10. Thus, the CAAF could not

alter the indexing requirement under its authority to

act upon the findings or the sentence. Id.; 10 U.S.C.

§ 867(c)(1)(A). Specialist 3 Johnson argued, though,

that the Air Force Court had authority under 10

U.S.C. § 866(d)(2). Id. at *10. This subsection provides

the Air Force Court with the authority to “provide

appropriate relief if the accused demonstrates error

. . . in the processing of the court-martial after the

judgment was entered into the record.” 10 U.S.C.

§ 866(d)(2). The CAAF rejected this because it found

that the “entry of judgment” included the “First

Indorsement.” Johnson, 2025 CAAF LEXIS 499, at

*11–12. This meant that the First Indorsement was

part of the judgment and, therefore, does not occur

“after,” during post-trial processing. This holding is

confounding. The CAAF’s decision means that an

attorney signing the First Indorsement “enters

judgment,” instead of a military judge, contrary to

Article 60c, UCMJ. Id. at *11–13.

The concurrence pointed out the pitfalls of the

majority’s logic, noting that “[t]he determination of

when the EOJ is entered into the record is not just an

academic exercise,” but has real world consequences.

Id. at *15 (Johnson, J., concurring in part and in the

judgment). Citing multiple statutory and R.C.M.

provisions, the concurrence highlighted how entry of

judgment effects numerous actions in the military

justice system. Id. at *14–16. If this “date-certain”

event can be manipulated by an attorney after the

military judge signs the EOJ, then that would affect

25

these other actions, rendering the “uniform” code

different for the Air Force than any other service. Id.

at *15.

Consistent with the statutory text, the concurrence

determined that entry of judgment occurs when the

military judge signs the EOJ, not when an attorney

signs the First Indorsement. The concurrence noted

that the “military judge makes any final ‘ruling, order

or other determination’ under Article 60c(a)(1)(B)(ii).”

Id. This is the “entry of judgment,” as referred to

under 10 U.S.C. § 866(d)(2). “Then, R.C.M. 1111(b)

requires that the judgment of the court be ‘signed and

dated by the military judge.’” Id. The concurrence

emphasized that “[t]his is important because Article

60c(a)(1), UCMJ, requires that ‘the military judge

shall enter into the record of trial the judgment of the

court.’ Therefore, the judgment is entered into the

record when the military judge signs it.” Id.

Under the majority’s approach, the Air Force has

someone other than the military judge enter

judgment. This “fractur[es] the very uniformity the

[UCMJ] sought to create.” Id. at *16 (Johnson, J.,

concurring in part and in the judgment).

C. The

CAAF’s

conclusion

eliminated

possible relief under Article 66(d)(2),

UCMJ.

By transforming the First Indorsement into the

“additional information” from R.C.M. 1111(b)(3)(F),

the CAAF twisted the plain language of the statute to

avoid error-correction on the First Indorsement.

Johnson, 2025 CAAF LEXIS 499, at *12–13. Under

the plain language of 10 U.S.C. § 866(d)(2), the Air

Force Court would have been able to address this posttrial processing error.

26

Article 66(d)(2), UCMJ, authorizes “the service

courts to correct errors that occur ‘after the judgment

was entered into the record under [Article 60c, UCMJ,

10 U.S.C. § 860c(a)].’” Johnson, 2025 CAAF LEXIS

499, at *11 (alteration in original). The First

Indorsement occurs after the military judge signs the

entry of judgment under Article 60c, UCMJ, thus

falling into the plain jurisdictional authority of Article

66(d)(2), UCMJ. See Johnson, 2025 CAAF LEXIS 499,

at *15 n.1 (Johnson, J., concurring in part and in the

judgment) (discussing the “civilian analogue,” Federal

Rule of Criminal Procedure 32(k)(1), which Article

60c, UCMJ, was modeled upon to show it is the judge’s

signature that enters judgment into the record).

Due to the Air Force’s unique post-trial processing

requirements, the Air Force Court could provide relief

to Petitioner under Article 66(d)(2), UCMJ. The Air

Force Court could review the unconstitutional firearm

prohibition and order a correction of the record of trial

pursuant to R.C.M. 1112(d)(2), which allows “a

superior competent authority to return a record of

trial to the military judge for correction.” The CAAF’s

holding in Johnson barred such a resolution.

D. There was post-trial error because

Petitioner was improperly indexed under

18 U.S.C. § 922. This violated his Second

Amendment Rights.

This Court has articulated the standard for

analyzing Second Amendment regulations:

When the Second Amendment’s plain text

covers an individual’s conduct, the Constitution

presumptively protects that conduct. The

government must then justify its regulation by

demonstrating that it is consistent with the

27

Nation’s historical tradition of firearm

regulation. Only then may a court conclude that

the individual’s conduct falls outside the

Second Amendment’s “unqualified command.”

Bruen, 597 U.S. at 24 (quoting Konigsberg v. State Bar

of Cal., 366 U.S. 36, 49 n.10 (1961)).

Petitioner, despite having a felony conviction, is

protected by the Second Amendment. District of

Columbia v. Heller, 554 U.S. 570, 581 (2008) (“the

Second Amendment right is exercised individually

and belongs to all Americans” (emphasis added)); see

Zherka v. Bondi, 140 F.4th 68, 77 (2d Cir. 2025)

(finding a felon is protected by the Second

Amendment); Range v. United States, 124 F.4th 218,

228 (3d Cir. 2024) (same); United States v. Diaz, 116

F.4th 458, 466 (5th Cir. 2024) (same); see also United

States v. Williams, 113 F.4th 637 (6th Cir. 2024);

United States v. Duarte, 137 F.4th 743 (9th Cir. 2025);

United States v. Jackson, 138 F.4th 1244 (10th Cir.

2025); but see United States v. Hunt, 123 F.4th 697

(4th Cir. 2024) (rejecting as-applied challenge to 18

U.S.C. § 922(g)(1)); United States v. Jackson, 110

F.4th 1120 (8th Cir. 2024) (affirming conviction for

violating 18 U.S.C. § 922(g)(1)); United States v.

Dubois, 139 F.4th 887 (11th Cir. 2025) (finding 18

U.S.C. § 922(g)(1) constitutional).

Petitioner’s conduct—“desire to possess firearms

only in a manner that the Second Amendment

protects”—is “clearly” conduct regulated by 18 U.S.C.

§ 922(g)(1) (prohibition applying to felons). 8 Zherka v.

While the Government does not denote which section of

18 U.S.C. § 922(g) applies to Petitioner in the First Indorsement,

he “has been convicted . . . of[] a crime punishable by

imprisonment for a term exceeding one year.” 18 U.S.C.

8

28

Bondi, 140 F.4th 68, 75 (2d Cir. 2025); Bruen, 597 U.S.

at 32 (explaining that carrying handguns for selfdefense is covered conduct); Range, 124 F.4th at 228

(explaining that it is an “easy question” to find

possessing a hunting rifle and shotgun for self-defense

as covered conduct).

“[T]he Constitution presumptively protects that

conduct” in which Petitioner desires to engage. Bruen,

597 U.S. at 24. Therefore, it falls to the Government

to prove why lifetime regulation of that conduct “is

consistent with the Nation’s historical tradition of

firearm regulation.” Id. The Government is unlikely to

meet its burden.

This Court recently applied its test from Bruen in

United States v. Rahimi. 602 U.S. 680 (2024). There,

this Court allowed disarmament under 18 U.S.C.

§ 922(g)(8), at least temporarily, when there is “a

finding that [the defendant] represents a credible

threat to [someone else’s] physical safety.” 18 U.S.C.

§ 922(g)(8)(C)(i); Rahimi, 602 U.S. at 685, 688, 693,

698–99.

Since Rahimi, Federal Courts of Appeals are split

on how to apply Bruen to felons under 18 U.S.C.

§ 922(g)(1). See Range, 124 F.4th at 228–31 (applying

Bruen and Rahimi anew to an as-applied challenge

and finding 18 U.S.C. 922(g)(1) unlawful); Diaz, 116

F.4th at 470–71 (same); Williams, 113 F.4th at 648–

61 (applying Bruen and Rahimi anew to an as-applied

challenge); Zherka, 140 F.4th at 77–96 (applying

Bruen and Rahimi anew to an as-applied challenge,

but finding all felon-based prohibitions are lawful);

§ 922(g)(1). None of the other subsections (18 U.S.C. §§ 922(g)(2)–

(9)) are applicable.

29

Duarte, 137 F.4th at 755–62 (applying Bruen and

Rahimi anew to an as-applied challenge, but finding

all felon-based prohibitions are lawful); Hunt, 123

F.4th at 707 (“no requirement for an individualized

determination of dangerousness as to each person in

a class of prohibited persons”); Jackson, 110 F.4th at

1125 (“there is no need for felony-by-felony litigation

regarding the constitutionality of § 922(g)(1)”);

Vincent v. Bondi, 127 F.4th 1263, 1266 (10th Cir.

2025) (“rejected the notion that Heller mandates an

individualized inquiry concerning felons pursuant to

§ 922(g)(1)”); Dubois, 139 F.4th at 894 (reaffirming

circuit precedent affirming felon-based restrictions

are presumptively lawful).

Because the Air Force Court and CAAF found they

were unable to address this issue, they have not

decided how to apply Bruen to servicemembers

disarmed under 18 U.S.C. § 922(g)(1). However,

precedent indicates that these evaluations are factspecific and require a review of the citizen’s entire

criminal records, the circumstances of their qualifying

conviction, and whether they “represent[ ] a credible

threat to [someone else’s] physical safety.” Rahimi,

602 U.S. at 685; see Range, 124 F.4th at 228–31; Diaz,

116 F.4th at 470–71; Williams, 113 F.4th at 648–61.

Should this Court reverse the CAAF’s holding in

Johnson and remand, the Air Force Court will need to

review the 18 U.S.C. § 922(g) indication on

Petitioner’s First Indorsement for error under Bruen’s

test. When the Air Force Court conducts this factspecific inquiry as-applied to Petitioner, it is likely to

find error and provide relief.

30

E. Correcting the First Indorsement would

restore Petitioner’s Second Amendment

rights.

Correcting the First Indorsement would redress the

constitutional deprivation of rights caused by the

erroneous indexing. See Lujan v. Defs. of Wildlife, 504

U.S. 555, 560–61 (1992) (outlining the requirements

for standing: injury, causation, redressability). As the

Air Force regulations state: “Reporting of persons

qualifying for NICS prohibition is an immediate

denial of the individual’s right to exercise his or her

constitutional right to possess a firearm.” Pet.App.

66a-67a. The injury is Petitioner’s loss of his Second

Amendment rights. The cause is due to the Air Force

indexing on the First Indorsement. And the remedy is

“appropriate relief” for this post-entry-of-judgment

error. 10 U.S.C. § 866(d)(2).

If Petitioner wants to purchase a firearm, a seller

must run a NICS background check. 18 U.S.C.

§§ 922(s), (t)(1)(A). NICS determines whether the

seller may proceed with the transaction. 28 C.F.R.

§ 25.6(c). As relevant here, a “proceed” response will

occur if no disqualifying information is found in the

NICS. 28 C.F.R. § 25.6. Because sellers must run a

NICS background check before lawfully transferring a

firearm, erroneous reporting during the Air Force

post-trial processing deprives an individual of their

right to bear arms. 9

9 Petitioner does not have to expose himself to criminal liability

before challenging this error. See Babbitt v. UFW Nat’l Union,

442 U.S. 289, 298 (1979) (quoting Doe v. Bolton, 410 U.S. 179,

188 (1973)) (noting that a plaintiff “should not be required to

await and undergo a criminal prosecution as the sole means of

seeking relief”).

31

Here, the DAF-CJIC is responsible for Air Force

criminal indexing. Pet.App. 67a. DAF-CJIC oversees

all Air Force NICS entries and removals. Id. To

effectuate reporting, the firearm prohibition is noted

on the First Indorsement to the EOJ, which is

distributed to “DAF-CJIC to ensure reporting

pursuant to 18 U.S.C. §§ 921–922 is appropriately

handled.” Pet.App. 34a, 49a. By indexing Petitioner

under 18 U.S.C. § 922, the Air Force entered

Petitioner into NICS. Any attempt to obtain a firearm

would trigger the required background check and a

denial of Petitioner’s rights.

Relief under 10 U.S.C. § 866(d)(2) is available to

Petitioner. This is because the error—the erroneous

indexing—happened after entry of judgement. 10

U.S.C. § 866(d)(2). Correcting the First Indorsement

would resolve the firearm prohibition because the Air

Force transmits “[a]ny actions taken as the result of

appellate review . . . to DAF-CJIC.” Pet.App. 67a.

Thus, any amended First Indorsement would be

transmitted to NICS. Removal from NICS would then

restore Petitioner’s ability to possess firearms.

CONCLUSION

By incorrectly interpreting their statutory review

authorities, military appellate courts have wrongfully

curtailed the scope of their reviews and the relief they

may grant. This forecloses the opportunities codified

in law for Petitioner, and similarly-situated

servicemembers, to seek relief for wrongful

convictions

and

erroneous

deprivations

of

constitutional rights. This Court should grant the

petition for certiorari.

32

Respectfully submitted,

FREDERICK J. JOHNSON

Counsel of Record

United States Air Force

Appellate Defense Division

1500 West Perimeter Road

Suite 1100

Joint Base Andrews, MD 20762

(240) 612-4770

frederick.johnson.11@us.af.mil

Counsel for Petitioner