U.S. v. Tamez, 63 M.J. 201

First Principles: Jurisdiction: Of U.S. Court of Appeals for the Armed Forces

1. jurisdiction is the power of a court to try and determine a case and to render a valid judgment; the time limits in Article 67, UCMJ, for filing a petition for review with CAAF are not jurisdictional
2. CAAF has consistently permitted appellants to file petitions for grant of review out of time for good cause shown; such a practice is consistent with Congress’s intent that servicemembers have the opportunity to obtain appellate review in an independent civilian court; were the sixty-day timeline jurisdictional, an appellant might be without appellate recourse in CAAF regarding claims such as ineffectiveness of counsel or complaints under Article 13, UCMJ

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. by Article 67(b), UCMJ, Congress has granted an accused the statutory right to petition CAAF for review within sixty days from the earlier of: (1) the date on which the accused is notified of the decision of the court of criminal appeals; or (2) the date on which a copy of the decision of the court of criminal appeals, after being served on appellate counsel of record for the accused (if any), is deposited in the United States mails for delivery by first-class certified mail to the accused at an address provided by the accused or, if no such address has been provided by the accused, at the latest address listed for the accused in his official service record
2. good cause for CAAF to consider appellant’s petition for review eight days out of time was shown where appellate defense counsel had the misapprehension that the decision below had not been served on counsel, appellant had been represented by four different appellate counsel, and his current counsel did not assume the position until after the sixty-day filing period had run

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. jurisdiction is a legal question that an appellate court reviews de novo
2. an appellant bears the burden of demonstrating to CAAF good cause for considering a petition out of time; good cause in this context does not lend itself to precise definition; rather good cause represents a discretionary judgment on the part of CAAF that an appellant can establish some reasonable basis justifying his relief from that default; as part of this showing of good cause, counsel should assign some meritorious issue; of course, the showing of good cause for the untimely filing of a petition is distinct from the showing of good cause required to grant a petition for review