Petition for Writ of Certiorari — Houston v. United States

90-7 99

‘\

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1990

CHARLES HOUSTON, PETITIONER

V.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

RICHARD W. ALDRICH

Captain, Office of the Judge

Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

Counsel for Petitioner

PAUL M. DANKOVICH

Captain, Office of the Judge

Advocate General

United States Air Force

November 1990 Counsel for Petitioner

78

QUESTION PRESENTED

Whether a brief filed pursuant to United States v.

Grostefon, 12 M.J. 431 (C.M.A. 1982), constitutes a

denial of due process since this practice Operates to effec-

tively redefine and abrogate the attorney-client relation-

ship.

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TABLE OF CONTENTS

Page

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REASONS FOR GRANTING THE WRIT .......... 3

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TABLE OF AUTHORITIES

CASES:

Anders v. California, 386 U.S. 738 (1967) ........ 4,5, 6

Penson v. Ohio, 488 U.S. 75 (1988) ............. 5

Powell v. Alabama, 287 U.S. 45 (1932) 2.0.0.2... 6

United Staies v. Grostefon, 12 M.J. 431 (C.M.A.

os wae 2.3.4 3.6

United States v. Healy, 26 M.J. 394 (C.M.A.

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STATUTORY AUTHORITIES:

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(in)

Jn the Supreme Court of the Cinited States

OCTOBER TERM, 1990

No.

CHARLES HOUSTON, PETITIONER

V.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

The petitioner, Charles Houston, respectfully prays that

a writ of certiorari issue to review the judgment of the

United States Court of Military Appeals entered in his case

on August 23, 1990.

OPINIONS BELOW

The United States Air Force Court of Military Review

issued an unreported decision on March 9, 1989 (Appen-

dix A). This same court issued a subsequent decision on

May 10, 1990 (Appendix B). The second decision was

issued in response to a remand from the United States

Court of Military Appeals. The order for the remand is

reported at 30 M.J. 21 (C.M.A. 1990) (Appendix C). On

August 23, 1990 the United States Court of Military Ap-

peals issued a short form decision that is reported at ____

M.J. — (C.M.A. 1990) (Appendix D).

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JURISDICTION

The fina. rder of the United States Court of Military

Appeals was entered on August 23, 1990. The jurisdiction

of this Court is invoked under 28 U.S.C. § 1259(3) (Supp

1989) and 10 U.S.C. § 867(h) (Supp. !989).

STATEMENT OF THE CASE

The petitioner, an Air Force master sergeant (E-7), was

tried by a general court-martial on August 19, 1988, at

Spangdahlem Air Base, Germany. Pursuant to his pleas,

he was convicted of multiple sexual offenses against his

teenage daughter. The petitioner was sentenced to a

dishonorable discharge, confinement for 13% years, anda

reduction to airman basic (E-1).

After trial the petitioner exercised his statutory right to

appellate review and appellate representation. Thereafter,

appellate defense counsel was appointed, and filed a brief

with the United States Air Force Court of Military

Review. Appellate defense counsel asserted that the peti-

tioner was sentenced on the basis of erroneous informa-

tion concerning the length of his military service. The

United States Air Force Court of Military Review at-

firmed the petitioner’s case.

The petitioner subsequently petitioned the United States

Court of Military Appeals. This time appellate defense

counsel filed a “Grostefon briet.” ' This brief was based

upon three new errors that were personally assigned by the

petitioner. The petitioner asserted these errors in an at-

fidavit that accompanied appellate detense counsel’s briet.

Appellate defense counsel briefed these issues by way of

summarizing the petitioner’s assignment of errors. Pur-

suant to a Government motion, the petitioner’s case was

remanded to the United States Air Force Court of Military

Review. Once again, the petitioner’s case was affirmed.

' United States v. Grostefon, 12 M.J. 431 (C.MLA. 1982).

Appellant defense counsel subsequently filed another

“Grostefon brief” with the United States Court of Military

Appeals. Once again, the same format was utilized for

raising the petitioner’s contentions. The United States

Court of Military Appeals affirmed without discussion.

REASONS FOR GRANTING THE WRIT

I

The role of appellate defense counsel and the United

States Court of Military Appeals must be analyzed in ac-

cordance with United States v. Grostefon, 12 M.J. 431

(C.M.A 1982).? This decision provides as follows:

Thus, the proper procedure for appellate defense

counsel, after consultation with the accused, is to

identify the issue to the appellate court and to supply

such briefs and argument as he feels will best advance

his client’s interest . . . Appellate defense counsel may

Well wish to restate issues in a manner they believe will

be more responsive to the courts before which they

practice. However, we do not believe that appellate

defense counsel can ignore the issues urged from

below without the express consent of the accused,

after proper advice.

United States v. Grostefon, 12 M.J. at 435-436.

> The pethiioner is not attacking or otherwise challenging appellate

defense counsel’s competence. Instead, this petition is aimed at the ar-

litical constraints that Crostefon imposed upon appellate defense

counsel. In this regard, i should be recognized that “[a]ppellate

detense counsel should not seek to withdraw trom a case solely on the

basis of his or her own determination that the appeal lacks merit.”

Standard 4-8.3, Rules of Professional Responsibility and Air Force

Standards for the Administration of Criminal Justice (1989). In-

terestingly, the accompanying discussion cites United States y.

Grostefon, in support of this ethical standard. See Discussion to Stan-

dard 4-8.3.

4

The Court of Military Appeals stressed that the “iden-

tification of the issue does not necessitate extensive brief-

ing.” Jd. at 437. However, appellate defense counsel is

obligated to advance Grostefon issues until such time as

the accused consents to the withdrawal or abandons the

same. Jd. Finally, Grostefon held that “the Court of

Military Review will, at a minimum, acknowledge that it

has considered those issues enumerated by the accused and

its disposition of them.” /d. at 436.

The Grostefon decision was revisited in United States v.

Healy, 26 M.J. 394 (C.M.A. 1988). The Court emphasized

that “the purpose of our holding in Grostefon was to

assure that an accused had the opportunity to bring to the

attention of the appellate court any issue he wished to have

considered. . . .” Jd. at 397. The Court reiterated that ap-

pellate defense counsel merely had to “identify” issues. /d.

That is, “if the issue has been identified as possibly

meritorious, the Court may require briefs thereon.” /d.

In Anders v. California, 386 U.S. 738 (1967), this Court

addressed appellate counsel’s role in relation to frivolous

issues. In Anders the petitioner was represented by a

court-appointed appellate counsel. Counsel determined

that there was no merit to the appeal, and as such, he so

advised the petitioner and the court. Counsel also advised

the petitioner about filing a brief on his own behalf. The

court granted counsel’s motion to withdraw. When the

court refused the petitioner’s request for another attorney,

the petitioner proceeded on a pro se basis. In condemning

these procedures this Court noted the following:

The constitutional requirement of substantia!

equality and fair process can only be attained where

counsel acts in the role of an active advocate in behalf

of his client, as opposed to that of amicus curiae.

Id. at 744.

This Court held that counsel should either “support his

client’s appeal to the best of his ability” or if he finds the

case is “wholly frivolous” he should request permission to

withdraw. /d. Of course, the request to withdraw must be

“accompanied by a brief referring to anything in the

record that might arguably support the appeal.” /d.

Logically, this approach would “induce the court to pur-

sue all the more vigorously its own review because of the

ready reterences . . . to the legal authorities as furnished it

by counsel.” Jd. at 745.

In Penson v. Ohio, 488 U.S. 75 (1988), a court-

appointed appellate counsel made a motion to withdraw

because he assessed the petitioner's appeal as meritless.

While the state court granted counsel’s motion to

withdraw, the court refused to appoint new counsel. In-

stead, the court held that it would conduct its own in-

dependent review of the petitioner’s record. Ultimately,

the court granted the petitioner some relief.

This Court rejected the state’s approac.. being contrary

to the Anders decision. Namely, counsel’s conclusory

statements provided an inadequate basis for evaluating

counsel’s performance and for evaluating the potential ap-

pellate issues. Accordingly, this Court held that the peti-

tioner was denied assistance of counsel on his appeal.

Moreover, this error was treated as presumptively preju-

dicial.

The instant case engenders the same vexing concerns

that were expressed in Anders and Penson. That is,

Grostefon, as applied, amounts to nothing more than

6

pro se advocacy. First, appellate defense counsel is only

obligated to “identify” issues. United States v. Healy, 26

M.J. at 397. Obviously, this is not consistent with notions

ot forceful advocacy. Moreover, this practice does

nothing to advance the cause of marshalling arguments on

a chient’s behalf. Anders v. California, 386 U.S. at 741. In-

terestingly, no offsetting restrictions are placed on the

Government’s response. In the instant case, the Govern-

ment torpedoed the petitioner’s “Grostefon brief’ with an

authoritative reply. See Gov’t Briet of April 23, 1990.

Second, Grostefon charges the client with the respon-

sibility of identifying his own issues. United States vy.

Healy, 26 M.J. at 397. Consequently, this practice ignores

the reality that “fe]ven the intelligent and educated layman

has small and sometimes no skill in the science of law.”

Powell v. Alabama, 287 U.S. 45, 69 (1932). Yet, this is the

very lay analysis upon which Grostefon rests.

Finally, the Court of Military Appeals is not even

obligated to conduct its own searching review of the

record. Instead, this responsibility has been shifted to the

various Courts of Military Review. United States vy.

Grostefon, 12 M.J. at 436. Obviously, this approach is in-

apposite with the “full examination” that is contemplated

by this Court. -lnders v. California, 386 U.S. at 744.

CONCLUSION

This case warrants Supreme Court intervention. That is,

the Grostefon practice, as crafted by the nation’s highest

military court, amounts to a systematic denial of due proc-

ess. By redefining the role of the attorney-client relation-

ship, Grostefon ettectively left this petitioner to shift for

himself. In the tinal analysis, Grostefon amounts to

nothing more than pro se advocacy under the guise of ap-

pellate representation. Surely, such a practice is at sharp

odds with our treasured notions of American due process.

Theretore, his Petition for Writ of Certiorari should be

granted.

Respectfully submitted,

RiCHARD Wo ALDRICH

Cuptain, Office of the Judge

Advocate General

United States Aw borce

HO USAE JAJD

Bide 5683

Bolling ARB, DC 20332-6128

Counsel for Petitioner

Pati M. DANKOVICH

Cuptain, Office of the Judge

Advocate General

United States Air Force

November 1990

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APPENDICES

APPENDIX A

UNITED STATES AIR FORCE COURT OF

MILITARY REVIEW

ACM 27357

UNITED STATES

y.

MASTER SERGEANT CHARLES HOUSTON, FR 346-42-2592

UNITED STATES AIR FORCE

9 MARCH 1989

Sentence adjudged 19 August 1988 by GCM convened at

Spangdahlem Air Base, Federal Republic of Germany.

Military Judge: Edward M. Starr (sitting alone).

Approved Sentence: Dishonorable discharge, confinement

for one hundred sixty-two (162) months and reductiomto

airman basic.

Appellate Counsel for the Appellant: Colonel Richard F.

O’Hair and Captain Darla G. Orndortt. Appellate

Counsel for the United States: Colonel Joe R. Lamport;

Lieutenant Colonel Robert) E. Giovagnoni; Major

Kathryn I. Taylor; Major Terry M. Petrie and Major

Mark C. Ramsey, USAFR.

Betore

HobGson, Hottt and PRATI

Appellate Military Judges

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2a

DECISION

PER CURIAM:

The appellant pleaded guilty to repeatedly sexually

abusing his daughter over a period of several years. His

acts Of rape, anal sodomy, carnal knowledge, and indecent

acts began when she was 13 years old ard continued until

she was almost 17.

During the sentencing portion of the proceedings the

assistant trial counsel incorrectly informed the trial judge,

who was sitting alone, that the appellant had 17 years,

three months and three days of active military service. The

truth being that the appellant had over 20 years of active

duty.

Appellate defense cotinsél suggest that “the twenty year

mark is a significant anniversary in the military for years

of service [as] it marks the time when a member becomes

eligible to retire.” They argue that this misstatement as to

the appellant’s length of service may have mislead [sic] the

military judge to adjudge a more severe sentence than he

would have otherwise done.

In our view counsel’s misstatement as to the appellant’s

time in the military had no impact whatever [sic] on the

announced sentence for two reasons: First, the trial judge

had considerable evidence before him that the appellant

was retirement eligible—the Stipulation of Fact outlining

the circumstances of the offenses stated in the opening

paragraph that the appellant had been on active duty since

14 February 1968. The appellant, in his unsworn state-

ment, twice informed the judge he had over 20 years serv-

ice. Finally, in his closing argument, the trial defense

counsel reminded the judge that the appellant had been in

the Air Force “for more than 20 years;” and, Second, the

sentence is entirely appropriate for the appellant’s offenses

3a

regardless of his length of service. The findings of guilty

and the sentence are

AFFIRMED.

OFFICIAL:

/s/ Mary V. Fillman

Mary V. Fini MAN

Captain, USAF

Chief Commissioner

da

APPENDIX B

UNITED STATES AIR FORCE COURT OF

MILITARY REVIEW

ACM 27357 (f rev)

UNITED SLATES

vy.

MASTER SERGEANT CHARLES HOUSTON, FR 346-42-259?

UNITED STATES AIR FORCE

10 MAY 1990

Sentence adjudged 19 August 1988 by GCM convened at

Spangdahlem Air Base, Federal Republic of Germany.

Military Judge: Edward M. Starr (silting alone).

Approved Sentence: Dishonorable discharge, confinement

for one hundred sixty-two (162) months and reduction to

airman basic.

Appellate Counsel for the Appellant: Colonel Richard F.

O’Hair and Captain Darla G. Orndorff. Appellate

Counsel for the United States: Colonel Joe R. Lamport;

Colonel Robert E. Giovagnoni:; Major Kathryn I. Taylor;

Major Terry M. Petrie; Major Paul H. Blackwell, Jr.;

Captain Leonard R. Rippey and Major Mark C. Ramsey,

USAER.

Before

HODGSON, SPILLMAN and PRAtI

Appellate Military Judges

DECISION UPON FURTHER REVIEW

PER CURIAM:

On 9 March 1989, we affirmed the appellants’s guilty

plea conviction for rape, anal sodomy, carnal knowledge,

and indecent acts with his teenage daughter. These of-

fenses took place over approximately three years. We also

affirmed a sentence that included a_ dishonorable

discharge, 13 years and six months confinement, and

reduction to airman basic.

On 8 January 1990, the Court of Military Appeals

remanded the appellant’s record of trial to this Court tor

further review based upon his Grosrefon* submission that

his appointed defense counsel only “half-heartedly repre-

sent{ed]” him and were lacking in “basic ethics and com-

petence.” United States v. Houston, 30 M.J. 21 (C.M.A.

1990). In the same document, he claims that the govern-

ment was guilty of “gross negligence” in 1972, when it

erroneously certified him to be medically qualified for Air

Trattic Controller duties even though he had an “abnor-

mal heart condition.” He also asserts that in 1980, the Air

Force caused his wife to undergo two painful and un-

necessary back operations. Additionally, he maintains he

was given incorrect advice in 1972, which cost him over

$18,000.00 in a re-enlistment bonus over the next 12 years.

Finally, he urges that his “daughter was misued by the

government” prior to trial and her “emotional,

psychological, medical and security needs [during this

period] were neglected.” In summary, the appellant con-

tends that his incestuous relationship with his daughter

was the result of stress brought about by the government's

“oross negligence” in assigning him Air Trattic Controller

duties, making his wife submit to two unnecessary opera-

* United States v. Grostefon, 12 Mid. 4310 (CMA. 1982).

6a

tions, and creating a financial hardship by giving him im-

proper advice about his re-enlistment bonus.

We have said it before, but it bears repeating —in-

dividuals convicted of crimes tend to blame their lawyers

and others for their misfortune. The law presumes that

counsel are effective and act in their client’s best interests.

Accordingly, the burden of establishing otherwise is

placed on the person who claims he was not properly de-

fended. To rebut this presumption, an individual who

maintains he was not adequately represented must identify

specific conduct which was unreasonable under acceptable

professional siandards. United States v. Washington, 29

M.J. 536 (A.F.C.M.R. 1989); pert. denied, 30 M.J. 38

(C.M.A,. 1990).

The appellant has assigned a litany of complaints

against his assigned counsel which we have examined in

conjuction with an affidavit from his trial defense counsel.

We consider the appellant’s assertions of ineffective

assistance Of counsel to be devoid of merit and totally un-

founded.

One of the appellant’s claims was that his counsel were

“timid” and “didn’t want to make the government angry.”

Trial defense counsel agreed that he did not want to

“throw stones” as there was no reason “to pick a fight”

with the prosecution since it had the “[appellant’s} confes-

sion, a willing witness, and medical evidence to support

their case.” By reasonable discussions with the govern-

ment, the defense was able to get four specifications

dismissed.

In sum, we conclude that the appellant’s counsel acted

in a professional and effective manner which provided the

7a

appellant vigorous representation. Upon further review,

the findings of guilty and the sentence are again

AFFIRMED

OFFICIAL:

s/ Mary V. Fillman

MARY V. FIbLMAN

Captain, USAF

Chief Commissioner

8a

APPENDIX C

UNITED STATES COURT OF MILITARY APPEALS

No. 63512/AF

CMR 27357

UNITED SLATES

Vv.

CHARLES HOUSTON

PETITIONS FOR GRANT OF REVIEW — OTHER

SUMMARY DISPOSITION

On consideration of appellant’s motion to file affidavit

and appellee’s motion to remand case to the United States

Air Force Court of Military Review, it is ordered that said

motions are hereby granted; that the decision of the

United States Air Force Court of Military Review is set

aside; and that the record of trial is returned to the Judge

Advocate General of the Air Force for remand to that

court for further review.

Ya

APPENDIX D

JINITED STATES COURT OF MILITARY APPEALS

USCMA Dkt. No. 63512/AFr

CMR Dkt. No. 27357

UNITED STATES, APPELLEE

Vv.

CHARLES HOUSTON, (346-42-2592), APPELLANI

On consideration of the petition for grant of review of

the decision of the United States Air Force Court of

Military Review on remand, we conclude that the action

taken by that court was adequate as a matter of law. Ac-

cordingly, it is, by the Court, this 23rd day of August,

1990

ORDERED:

That said petitien is granted; and

That the decision of the United States Air Force Court

of Military Review on remand ts affirmed.

For the Court,

‘s/ John A. Cutts, II

Deputy Clerk of the Court

eer The Judge Advocate General of the Air Force

Appellate Defense Counsel (ORNDOREF)

Appellate Government Counsel (BLACKWELL)

U GOVERNMENT PRINTING OFF t 344 274 234 B28