Denedo v. U.S., 66 M.J. 114

First Principles: Jurisdiction: Generally

1. courts-martial are subject to collateral review within the military justice system
2. the All Writs Act provides that all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law; the Act requires two separate determinations: first, whether the requested writ is in aid of a court’s jurisdiction; and second, whether the requested writ is necessary or appropriate
3. although military appellate courts are among those empowered to issue extraordinary writs under the All Writs Act, the Act confines a court to issuance of process in aid of its existing statutory jurisdiction and does not enlarge that jurisdiction
4. when courts within the military justice system lack subject matter jurisdiction over an action, such as an administrative separation, they cannot invoke the All Writs Act to enlarge their jurisdiction to review the administrative action, even if it is based upon the results of a court-martial
5. when a petitioner seeks collateral relief to modify an action that was taken within the subject matter jurisdiction of the military justice system, such as the findings or sentence of a court-martial, a writ that is necessary or appropriate may be issued under the All Writs Act in aid of the court’s existing jurisdiction
6. in terms of timing, Article 76, UCMJ, addressing the finality of a court-martial conviction after completion of direct review, serves as a prudential restraint on collateral review of courts-martial pending completion of direct review; when a coram nobis petition is considered after completion of direct review, finality of direct review enhances rather than diminishes consideration of a request for collateral relief
7. in terms of the scope of collateral review, the res judicata effect of Article 76, UCMJ, addressing the finality of a court-martial conviction after completion of direct review, means that the decision on direct review will stand as final unless it fails to pass muster under the highly constrained standards applicable to review of final judgments
8. under the exhaustion of remedies doctrine, courts outside the military justice system normally refrain from collateral review of courts-martial until all available military remedies are exhausted
9. as a general matter, courts outside the military justice system will not entertain habeas petitions by military prisoners until all available military remedies have been exhausted; however, the exhaustion requirement is prudential rather than jurisdictional; the circumstances of a particular case might warrant consideration of a habeas petition by an Article III court prior to exhaustion
10. even when remedies have been exhausted, the scope of collateral review outside the military justice system is constrained by the requirement to consider whether the military justice system has given full and fair consideration to the claims at issue; de novo review is appropriate only if the military justice system manifestly refused to consider those claims
11. when court-martial jurisdiction has been invoked properly at the time of trial, the jurisdiction of the court of criminal appeals to review the case does not depend on whether a person remains in the armed forces at the time of such review

First Principles: Jurisdiction: Of Courts of Criminal Appeals

1. although military appellate courts are among those empowered to issue extraordinary writs under the All Writs Act, the Act confines a court to issuance of process in aid of its existing statutory jurisdiction and does not enlarge that jurisdiction
2. on direct appeal in courts-martial in which the sentence extends to a punitive discharge, the CCA conducts a de novo review of the findings and sentence approved by the convening authority; any request for coram nobis relief is limited to the findings and sentence of the court-martial reviewed by the CCA; where, as in this case, appellant has raised a claim of ineffective assistance of counsel that goes directly to the validity and integrity of the judgment rendered and affirmed, a petition for writ of error coram nobis was in aid of the existing jurisdiction of the CCA
3. when court-martial jurisdiction has been invoked properly at the time of trial, the jurisdiction of the court of criminal appeals to review the case does not depend on whether a person remains in the armed forces at the time of such review

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

1. although judicial review of immigration proceedings, including any use therein of a court-martial conviction, is outside the jurisdiction of the CAAF, the providence of a guilty plea at a court-martial is subject to its review
2. although military appellate courts are among those empowered to issue extraordinary writs under the All Writs Act, the Act confines a court to issuance of process in aid of its existing statutory jurisdiction and does not enlarge that jurisdiction
3. the CAAF is not given authority, by the All Writs Act or otherwise, to oversee all matters arguably related to military justice, or to act as a plenary administrator even of criminal judgments it has affirmed; there is no source of continuing jurisdiction for the CAAF over all actions administering sentences that it at one time had the power to review

First Principles: Constitutional Matters: Right to Counsel

1. a military accused is entitled under the Constitution and Article 27(b), UCMJ, to the effective assistance of counsel

Military Justice Personnel: Defense Function: Effective / Ineffective Assistance of Counsel

1. when reviewing an ineffective assistance of counsel claim raised via a coram nobis petition, petitioner must first satisfy the threshold requirements for a writ of coram nobis; if the petitioner does so, the court then analyzes, in the second tier, the ineffective assistance of counsel claim under Strickland v. Washington, 466 US 668 (1984)
2. appellant’s coram nobis petition challenging his court-martial conviction on the ground that his counsel was ineffective for failing to inform him of the immigration consequences of his guilty pleas met the threshold requirements of coram nobis review; although appellant had served his sentence, the alleged error was of the most fundamental character, there was no other adequate remedy because appellant was not in custody and could not obtain relief through a writ of habeas corpus, appellant did not seek earlier relief because the immigration consequences of his pleas did not become known to him until the government initiated deportation proceedings, the new information about the immigration consequences could not have been discovered through the exercise of reasonable diligence prior to the original judgment, the writ does not seek to reevaluate previously considered evidence or legal issues, and the sentence has been served, but serious consequences persist – the initiation of deportation proceedings that rely primarily on appellant’s court-martial conviction as the basis for deportation
3. a military accused is entitled under the Constitution and Article 27(b), UCMJ, to the effective assistance of counsel
4. an accused making a claim of ineffective assistance must surmount a very high hurdle; courts reviewing such a claim must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; the presumption of competence will not be overcome unless the accused demonstrates: first, a deficiency that is so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment; and second, that the accused was prejudiced by errors so serious as to deprive the defendant of a fair trial, a trial whose result is reliable; when challenging the effectiveness of counsel in a guilty plea case, the accused must also show specifically that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial
5. the burden of establishing the truth of factual matters relevant to the claim of ineffective assistance rests with the accused; if there is a factual dispute on a matter pertinent to the claim, the determination as to whether further factfinding will be ordered is resolved under United States v. Ginn, 47 MJ 236 (CAAF 1997)
6. an attorney’s failure to advise an accused of potential deportation consequences of a guilty plea does not constitute deficient performance under Strickland
7. an attorney’s affirmative misrepresentation about the potential deportation consequences of a guilty plea can constitute deficient performance, particularly when the client requests the information and identifies the issue as a significant factor in deciding how to plead
8. to show prejudice from ineffective assistance of counsel in a guilty plea case, an accused must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial; the focus is not on the outcome of a potential trial, but on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process
9. appellant’s claim that he received ineffective assistance of counsel in a court-martial proceeding when his counsel told him that he would not face deportation if he pleaded guilty at a special court-martial facially established a sufficient basis for coram nobis review, but a ruling on his petition would be premature without a government response and consideration by the court of criminal appeals as to whether his counsel’s performance was deficient and, if so, whether appellant was prejudiced thereby

Trial Stages: Merits: Guilty Pleas

1. there are specialized requirements for a guilty plea in the military justice system; the military judge must engage in a specific dialogue with the accused, in which the accused addresses the voluntariness of the plea, describes the factual basis for guilt, and demonstrates an understanding of any pretrial agreement

Trial Stages: Writs and Interlocutory Appeals: Generally

1. for a writ appeal, the CAAF considers the record developed at trial and on direct appeal; it also considers the materials filed by the parties in the course of the writ proceedings at the court of criminal appeals and the appeal to the CAAF; based on the foregoing, the CAAF considers whether a decision on the writ appeal can be reached on the record before it, or whether a more fully developed factual record is required prior to reaching a decision on the merits
2. under the exhaustion of remedies doctrine, courts outside the military justice system normally refrain from collateral review of courts-martial until all available military remedies are exhausted
3. as a general matter, courts outside the military justice system will not entertain habeas petitions by military prisoners until all available military remedies have been exhausted; however, the exhaustion requirement is prudential rather than jurisdictional; the circumstances of a particular case might warrant consideration of a habeas petition by an Article III court prior to exhaustion
4. even when remedies have been exhausted, the scope of collateral review outside the military justice system is constrained by the requirement to consider whether the military justice system has given full and fair consideration to the claims at issue; de novo review is appropriate only if the military justice system manifestly refused to consider those claims
5. a writ of error coram nobis requests the court that imposed the judgment to consider exceptional circumstances, such as new facts or legal developments, that may change the result
6. the decision of the court of criminal appeals on a writ petition is subject to appellate review
7. coram nobis permits continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review, but only under very limited circumstances; although a petition may be filed at any time without limitation, a petitioner must meet stringent threshold requirements: (1) the alleged error is of the most fundamental character; (2) no remedy other than coram nobis is available to rectify the consequences of the error; (3) valid reasons exist for not seeking relief earlier; (4) the new information presented in the petition could not have been discovered through the exercise of reasonable diligence prior to the original judgment; (5) the writ does not seek to reevaluate previously considered evidence or legal issues; and (6) the sentence has been served, but the consequences of the erroneous conviction persist

Trial Stages: Writs and Interlocutory Appeals: Collateral Attack

1. the results of courts-martial are subject to collateral review by courts outside the military justice system; courts-martial also are subject to collateral review within the military justice system
2. when a petitioner seeks collateral relief to modify an action that was taken within the subject matter jurisdiction of the military justice system, such as the findings or sentence of a court-martial, a writ that is necessary or appropriate may be issued under the All Writs Act in aid of the court’s existing jurisdiction
3. Article 76, UCMJ, addressing the finality of a court-martial conviction after completion of direct review, provides a prudential constraint on collateral review, not a jurisdictional limitation; Article 76 does not expressly effect any change in the subject-matter jurisdiction of Article III courts; the Article only defines the point at which military court judgments become final and requires that they be given res judicata effect
4. in terms of timing, Article 76, UCMJ, addressing the finality of a court-martial conviction after completion of direct review, serves as a prudential restraint on collateral review of courts-martial pending completion of direct review; when a coram nobis petition is considered after completion of direct review, finality of direct review enhances rather than diminishes consideration of a request for collateral relief
5. in terms of the scope of collateral review, the res judicata effect of Article 76, UCMJ, addressing the finality of a court-martial conviction after completion of direct review, means that the decision on direct review will stand as final unless it fails to pass muster under the highly constrained standards applicable to review of final judgments
6. under the exhaustion of remedies doctrine, courts outside the military justice system normally refrain from collateral review of courts-martial until all available military remedies are exhausted
7. as a general matter, courts outside the military justice system will not entertain habeas petitions by military prisoners until all available military remedies have been exhausted; however, the exhaustion requirement is prudential rather than jurisdictional; the circumstances of a particular case might warrant consideration of a habeas petition by an Article III court prior to exhaustion
8. even when remedies have been exhausted, the scope of collateral review outside the military justice system is constrained by the requirement to consider whether the military justice system has given full and fair consideration to the claims at issue; de novo review is appropriate only if the military justice system manifestly refused to consider those claims
9. a writ of error coram nobis should be brought before the court that rendered the judgment
10. in the military justice system, the trial court - the court-martial - does not have independent jurisdiction over a case after the military judge authenticates the record and the convening authority forwards the record after taking action; because the trial court is not available for collateral review under the UCMJ or the MCM, collateral review within the military justice system does not occur at the trial court level
11. the courts of criminal appeals, the first-level standing courts in the military justice system, provide an appropriate forum for consideration of coram nobis petitions regarding courts-martial; during the initial consideration of a case, they engage in de novo consideration of the record and expressly act on the findings and sentence; with respect to collateral review of the present case, they are well-positioned to determine whether corrective action on the findings and sentence is warranted, including ordering any factfinding proceedings that may be necessary
12. the court of criminal appeals is an appropriate forum to receive and consider a writ of coram nobis that involves a collateral challenge to that court’s approval of the findings and sentence in a court-martial, where the court-martial that convicted appellant had jurisdiction over both the person and the offense and the court of criminal appeals had jurisdiction to review and approve the findings and sentence on direct review
13. a writ of error coram nobis requests the court that imposed the judgment to consider exceptional circumstances, such as new facts or legal developments, that may change the result
14. the decision of the court of criminal appeals on a writ petition is subject to appellate review
15. coram nobis permits continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review, but only under very limited circumstances; although a petition may be filed at any time without limitation, a petitioner must meet stringent threshold requirements: (1) the alleged error is of the most fundamental character; (2) no remedy other than coram nobis is available to rectify the consequences of the error; (3) valid reasons exist for not seeking relief earlier; (4) the new information presented in the petition could not have been discovered through the exercise of reasonable diligence prior to the original judgment; (5) the writ does not seek to reevaluate previously considered evidence or legal issues; and (6) the sentence has been served, but the consequences of the erroneous conviction persist
16. when reviewing an ineffective assistance of counsel claim raised via a coram nobis petition, petitioner must first satisfy the threshold requirements for a writ of coram nobis; if the petitioner does so, the court then analyzes, in the second tier, the ineffective assistance of counsel claim under Strickland v. Washington, 466 US 668 (1984)
17. appellant’s coram nobis petition challenging his court-martial conviction on the ground that his counsel was ineffective for failing to inform him of the immigration consequences of his guilty pleas met the threshold requirements of coram nobis review; although appellant had served his sentence, the alleged error was of the most fundamental character, there was no other adequate remedy because appellant was not in custody and could not obtain relief through a writ of habeas corpus, appellant did not seek earlier relief because the immigration consequences of his pleas did not become known to him until the government initiated deportation proceedings, the new information about the immigration consequences could not have been discovered through the exercise of reasonable diligence prior to the original judgment, the writ does not seek to reevaluate previously considered evidence or legal issues, and the sentence has been served, but serious consequences persist – the initiation of deportation proceedings that rely primarily on appellant’s court-martial conviction as the basis for deportation
18. appellant’s claim that he received ineffective assistance of counsel in a court-martial proceeding when his counsel told him that he would not face deportation if he pleaded guilty at a special court-martial facially established a sufficient basis for coram nobis review, but a ruling on his petition would be premature without a government response and consideration by the court of criminal appeals as to whether his counsel’s performance was deficient and, if so, whether appellant was prejudiced thereby

Trial Stages: Writs and Interlocutory Appeals: Appropriateness of Forum

1. under the exhaustion of remedies doctrine, courts outside the military justice system normally refrain from collateral review of courts-martial until all available military remedies are exhausted
2. as a general matter, courts outside the military justice system will not entertain habeas petitions by military prisoners until all available military remedies have been exhausted; however, the exhaustion requirement is prudential rather than jurisdictional; the circumstances of a particular case might warrant consideration of a habeas petition by an Article III court prior to exhaustion
3. even when remedies have been exhausted, the scope of collateral review outside the military justice system is constrained by the requirement to consider whether the military justice system has given full and fair consideration to the claims at issue; de novo review is appropriate only if the military justice system manifestly refused to consider those claims
4. a writ of error coram nobis should be brought before the court that rendered the judgment
5. in the military justice system, the trial court - the court-martial - does not have independent jurisdiction over a case after the military judge authenticates the record and the convening authority forwards the record after taking action; because the trial court is not available for collateral review under the UCMJ or the MCM, collateral review within the military justice system does not occur at the trial court level
6. the courts of criminal appeals, the first-level standing courts in the military justice system, provide an appropriate forum for consideration of coram nobis petitions regarding courts-martial; during the initial consideration of a case, they engage in de novo consideration of the record and expressly act on the findings and sentence; with respect to collateral review of the present case, they are well-positioned to determine whether corrective action on the findings and sentence is warranted, including ordering any factfinding proceedings that may be necessary
7. the court of criminal appeals is an appropriate forum to receive and consider a writ of coram nobis that involves a collateral challenge to that court’s approval of the findings and sentence in a court-martial, where the court-martial that convicted appellant had jurisdiction over both the person and the offense and the court of criminal appeals had jurisdiction to review and approve the findings and sentence on direct review

Trial Stages: Writs and Interlocutory Appeals: All Writs Act

1. the All Writs Act provides that all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law; the Act requires two separate determinations: first, whether the requested writ is in aid of a court’s jurisdiction; and second, whether the requested writ is necessary or appropriate
2. although military appellate courts are among those empowered to issue extraordinary writs under the All Writs Act, the Act confines a court to issuance of process in aid of its existing statutory jurisdiction and does not enlarge that jurisdiction
3. the CAAF is not given authority, by the All Writs Act or otherwise, to oversee all matters arguably related to military justice, or to act as a plenary administrator even of criminal judgments it has affirmed; there is no source of continuing jurisdiction for the CAAF over all actions administering sentences that it at one time had the power to review
4. when courts within the military justice system lack subject matter jurisdiction over an action, such as an administrative separation, they cannot invoke the All Writs Act to enlarge their jurisdiction to review the administrative action, even if it is based upon the results of a court-martial
5. when a petitioner seeks collateral relief to modify an action that was taken within the subject matter jurisdiction of the military justice system, such as the findings or sentence of a court-martial, a writ that is necessary or appropriate may be issued under the All Writs Act in aid of the court’s existing jurisdiction
6. on direct appeal in courts-martial in which the sentence extends to a punitive discharge, the CCA conducts a de novo review of the findings and sentence approved by the convening authority; any request for coram nobis relief is limited to the findings and sentence of the court-martial reviewed by the CCA; where, as in this case, appellant has raised a claim of ineffective assistance of counsel that goes directly to the validity and integrity of the judgment rendered and affirmed, a petition for writ of error coram nobis was in aid of the existing jurisdiction of the CCA
7. because the All Writs Act serves as a residual authority, a writ is not necessary or appropriate under the statute if another adequate legal remedy is available; the determination of whether another remedy is adequate requires a contextual analysis
8. a writ of error coram nobis should be brought before the court that rendered the judgment
9. in the military justice system, the trial court - the court-martial - does not have independent jurisdiction over a case after the military judge authenticates the record and the convening authority forwards the record after taking action; because the trial court is not available for collateral review under the UCMJ or the MCM, collateral review within the military justice system does not occur at the trial court level
10. the courts of criminal appeals, the first-level standing courts in the military justice system, provide an appropriate forum for consideration of coram nobis petitions regarding courts-martial; during the initial consideration of a case, they engage in de novo consideration of the record and expressly act on the findings and sentence; with respect to collateral review of the present case, they are well-positioned to determine whether corrective action on the findings and sentence is warranted, including ordering any factfinding proceedings that may be necessary
11. the court of criminal appeals is an appropriate forum to receive and consider a writ of coram nobis that involves a collateral challenge to that court’s approval of the findings and sentence in a court-martial, where the court-martial that convicted appellant had jurisdiction over both the person and the offense and the court of criminal appeals had jurisdiction to review and approve the findings and sentence on direct review
12. a writ of error coram nobis requests the court that imposed the judgment to consider exceptional circumstances, such as new facts or legal developments, that may change the result
13. the decision of the court of criminal appeals on a writ petition is subject to appellate review
14. coram nobis permits continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review, but only under very limited circumstances; although a petition may be filed at any time without limitation, a petitioner must meet stringent threshold requirements: (1) the alleged error is of the most fundamental character; (2) no remedy other than coram nobis is available to rectify the consequences of the error; (3) valid reasons exist for not seeking relief earlier; (4) the new information presented in the petition could not have been discovered through the exercise of reasonable diligence prior to the original judgment; (5) the writ does not seek to reevaluate previously considered evidence or legal issues; and (6) the sentence has been served, but the consequences of the erroneous conviction persist
15. when reviewing an ineffective assistance of counsel claim raised via a coram nobis petition, petitioner must first satisfy the threshold requirements for a writ of coram nobis; if the petitioner does so, the court then analyzes, in the second tier, the ineffective assistance of counsel claim under Strickland v. Washington, 466 US 668 (1984)
16. where a claim arises under the All Writs Act, the petitioner must establish a clear and indisputable right to the requested relief
17. appellant’s coram nobis petition challenging his court-martial conviction on the ground that his counsel was ineffective for failing to inform him of the immigration consequences of his guilty pleas met the threshold requirements of coram nobis review; although appellant had served his sentence, the alleged error was of the most fundamental character, there was no other adequate remedy because appellant was not in custody and could not obtain relief through a writ of habeas corpus, appellant did not seek earlier relief because the immigration consequences of his pleas did not become known to him until the government initiated deportation proceedings, the new information about the immigration consequences could not have been discovered through the exercise of reasonable diligence prior to the original judgment, the writ does not seek to reevaluate previously considered evidence or legal issues, and the sentence has been served, but serious consequences persist – the initiation of deportation proceedings that rely primarily on appellant’s court-martial conviction as the basis for deportation
18. appellant’s claim that he received ineffective assistance of counsel in a court-martial proceeding when his counsel told him that he would not face deportation if he pleaded guilty at a special court-martial facially established a sufficient basis for coram nobis review, but a ruling on his petition would be premature without a government response and consideration by the court of criminal appeals as to whether his counsel’s performance was deficient and, if so, whether appellant was prejudiced thereby

Trial Stages: Appeals: Generally

1. in a BCD special court-martial, the findings and sentence approved by the convening authority are subject to direct review by the court of criminal appeals of the military department concerned; in addition to issues of law, the scope of review at the court of criminal appeals extends to factual sufficiency and sentence appropriateness; the decisions of the court of criminal appeals are subject to direct review in the CAAF on issues of law; cases in which the CAAF have granted review or have otherwise provided relief are subject to direct review in the Supreme Court by writ of certiorari; a judgment as to the legality of the proceedings becomes final upon the completion of direct review by the court of criminal appeals and (1) expiration of the time for filing a petition for review with the CAAF without such a filing (and without the case otherwise being under review at the CAAF), (2) rejection of a petition for review by the CAAF, or (3) completion of review by the CAAF, subject to requirements regarding potential review by the Supreme Court; in addition, various forms of executive action are required before the results of a court-martial become final; once such action is taken, Article 76, UCMJ, provides, in pertinent part, that orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States, subject to certain explicit exceptions
2. under the exhaustion of remedies doctrine, courts outside the military justice system normally refrain from collateral review of courts-martial until all available military remedies are exhausted
3. as a general matter, courts outside the military justice system will not entertain habeas petitions by military prisoners until all available military remedies have been exhausted; however, the exhaustion requirement is prudential rather than jurisdictional; the circumstances of a particular case might warrant consideration of a habeas petition by an Article III court prior to exhaustion
4. even when remedies have been exhausted, the scope of collateral review outside the military justice system is constrained by the requirement to consider whether the military justice system has given full and fair consideration to the claims at issue; de novo review is appropriate only if the military justice system manifestly refused to consider those claims
5. a writ of error coram nobis requests the court that imposed the judgment to consider exceptional circumstances, such as new facts or legal developments, that may change the result
6. the decision of the court of criminal appeals on a writ petition is subject to appellate review
7. coram nobis permits continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review, but only under very limited circumstances; although a petition may be filed at any time without limitation, a petitioner must meet stringent threshold requirements: (1) the alleged error is of the most fundamental character; (2) no remedy other than coram nobis is available to rectify the consequences of the error; (3) valid reasons exist for not seeking relief earlier; (4) the new information presented in the petition could not have been discovered through the exercise of reasonable diligence prior to the original judgment; (5) the writ does not seek to reevaluate previously considered evidence or legal issues; and (6) the sentence has been served, but the consequences of the erroneous conviction persist

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. in a BCD special court-martial, the findings and sentence approved by the convening authority are subject to direct review by the court of criminal appeals of the military department concerned; in addition to issues of law, the scope of review at the court of criminal appeals extends to factual sufficiency and sentence appropriateness
2. although military appellate courts are among those empowered to issue extraordinary writs under the All Writs Act, the Act confines a court to issuance of process in aid of its existing statutory jurisdiction and does not enlarge that jurisdiction
3. when courts within the military justice system lack subject matter jurisdiction over an action, such as an administrative separation, they cannot invoke the All Writs Act to enlarge their jurisdiction to review the administrative action, even if it is based upon the results of a court-martial
4. when a petitioner seeks collateral relief to modify an action that was taken within the subject matter jurisdiction of the military justice system, such as the findings or sentence of a court-martial, a writ that is necessary or appropriate may be issued under the All Writs Act in aid of the court’s existing jurisdiction
5. on direct appeal in courts-martial in which the sentence extends to a punitive discharge, the CCA conducts a de novo review of the findings and sentence approved by the convening authority; any request for coram nobis relief is limited to the findings and sentence of the court-martial reviewed by the CCA; where, as in this case, appellant has raised a claim of ineffective assistance of counsel that goes directly to the validity and integrity of the judgment rendered and affirmed, a petition for writ of error coram nobis was in aid of the existing jurisdiction of the CCA
6. in the military justice system, the trial court - the court-martial - does not have independent jurisdiction over a case after the military judge authenticates the record and the convening authority forwards the record after taking action; because the trial court is not available for collateral review under the UCMJ or the MCM, collateral review within the military justice system does not occur at the trial court level
7. the courts of criminal appeals, the first-level standing courts in the military justice system, provide an appropriate forum for consideration of coram nobis petitions regarding courts-martial; during the initial consideration of a case, they engage in de novo consideration of the record and expressly act on the findings and sentence; with respect to collateral review of the present case, they are well-positioned to determine whether corrective action on the findings and sentence is warranted, including ordering any factfinding proceedings that may be necessary
8. when court-martial jurisdiction has been invoked properly at the time of trial, the jurisdiction of the court of criminal appeals to review the case does not depend on whether a person remains in the armed forces at the time of such review
9. the court of criminal appeals is an appropriate forum to receive and consider a writ of coram nobis that involves a collateral challenge to that court’s approval of the findings and sentence in a court-martial, where the court-martial that convicted appellant had jurisdiction over both the person and the offense and the court of criminal appeals had jurisdiction to review and approve the findings and sentence on direct review
10. the decision of the court of criminal appeals on a writ petition is subject to appellate review
11. appellant’s claim that he received ineffective assistance of counsel in a court-martial proceeding when his counsel told him that he would not face deportation if he pleaded guilty at a special court-martial facially established a sufficient basis for coram nobis review, but a ruling on his petition would be premature without a government response and consideration by the court of criminal appeals as to whether his counsel’s performance was deficient and, if so, whether appellant was prejudiced thereby

Trial Stages: Appeals: Courts of Criminal Appeals › Factual sufficiency

1. in addition to issues of law, the scope of review at the court of criminal appeals extends to factual sufficiency and sentence appropriateness

Trial Stages: Appeals: Courts of Criminal Appeals › Sentence appropriateness

1. in addition to issues of law, the scope of review at the court of criminal appeals extends to factual sufficiency and sentence appropriateness

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

1. for a writ appeal, the CAAF considers the record developed at trial and on direct appeal; it also considers the materials filed by the parties in the course of the writ proceedings at the court of criminal appeals and the appeal to the CAAF; based on the foregoing, the CAAF considers whether a decision on the writ appeal can be reached on the record before it, or whether a more fully developed factual record is required prior to reaching a decision on the merits
2. although judicial review of immigration proceedings, including any use therein of a court-martial conviction, is outside the jurisdiction of the CAAF, the providence of a guilty plea at a court-martial is subject to its review
3. the decisions of the court of criminal appeals are subject to direct review in the CAAF on issues of law; cases in which the CAAF have granted review or have otherwise provided relief are subject to direct review in the Supreme Court by writ of certiorari
4. although military appellate courts are among those empowered to issue extraordinary writs under the All Writs Act, the Act confines a court to issuance of process in aid of its existing statutory jurisdiction and does not enlarge that jurisdiction
5. the CAAF is not given authority, by the All Writs Act or otherwise, to oversee all matters arguably related to military justice, or to act as a plenary administrator even of criminal judgments it has affirmed; there is no source of continuing jurisdiction for the CAAF over all actions administering sentences that it at one time had the power to review
6. when courts within the military justice system lack subject matter jurisdiction over an action, such as an administrative separation, they cannot invoke the All Writs Act to enlarge their jurisdiction to review the administrative action, even if it is based upon the results of a court-martial
7. when a petitioner seeks collateral relief to modify an action that was taken within the subject matter jurisdiction of the military justice system, such as the findings or sentence of a court-martial, a writ that is necessary or appropriate may be issued under the All Writs Act in aid of the court’s existing jurisdiction
8. appellant’s claim that he received ineffective assistance of counsel in a court-martial proceeding when his counsel told him that he would not face deportation if he pleaded guilty at a special court-martial facially established a sufficient basis for coram nobis review, but a ruling on his petition would be premature without a government response and consideration by the court of criminal appeals as to whether his counsel’s performance was deficient and, if so, whether appellant was prejudiced thereby

Trial Stages: Appeals: Scope of Review

1. although judicial review of immigration proceedings, including any use therein of a court-martial conviction, is outside the jurisdiction of the CAAF, the providence of a guilty plea at a court-martial is subject to its review
2. in addition to issues of law, the scope of review at the court of criminal appeals extends to factual sufficiency and sentence appropriateness
3. the decisions of the court of criminal appeals are subject to direct review in the CAAF on issues of law; cases in which the CAAF have granted review or have otherwise provided relief are subject to direct review in the Supreme Court by writ of certiorari
4. although military appellate courts are among those empowered to issue extraordinary writs under the All Writs Act, the Act confines a court to issuance of process in aid of its existing statutory jurisdiction and does not enlarge that jurisdiction
5. the CAAF is not given authority, by the All Writs Act or otherwise, to oversee all matters arguably related to military justice, or to act as a plenary administrator even of criminal judgments it has affirmed; there is no source of continuing jurisdiction for the CAAF over all actions administering sentences that it at one time had the power to review
6. when courts within the military justice system lack subject matter jurisdiction over an action, such as an administrative separation, they cannot invoke the All Writs Act to enlarge their jurisdiction to review the administrative action, even if it is based upon the results of a court-martial
7. when a petitioner seeks collateral relief to modify an action that was taken within the subject matter jurisdiction of the military justice system, such as the findings or sentence of a court-martial, a writ that is necessary or appropriate may be issued under the All Writs Act in aid of the court’s existing jurisdiction
8. on direct appeal in courts-martial in which the sentence extends to a punitive discharge, the CCA conducts a de novo review of the findings and sentence approved by the convening authority; any request for coram nobis relief is limited to the findings and sentence of the court-martial reviewed by the CCA; where, as in this case, appellant has raised a claim of ineffective assistance of counsel that goes directly to the validity and integrity of the judgment rendered and affirmed, a petition for writ of error coram nobis was in aid of the existing jurisdiction of the CCA
9. in terms of the scope of collateral review, the res judicata effect of Article 76, UCMJ, addressing the finality of a court-martial conviction after completion of direct review, means that the decision on direct review will stand as final unless it fails to pass muster under the highly constrained standards applicable to review of final judgments
10. even when remedies have been exhausted, the scope of collateral review outside the military justice system is constrained by the requirement to consider whether the military justice system has given full and fair consideration to the claims at issue; de novo review is appropriate only if the military justice system manifestly refused to consider those claims

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

1. on direct appeal in courts-martial in which the sentence extends to a punitive discharge, the CCA conducts a de novo review of the findings and sentence approved by the convening authority
2. an accused making a claim of ineffective assistance must surmount a very high hurdle; courts reviewing such a claim must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; the presumption of competence will not be overcome unless the accused demonstrates: first, a deficiency that is so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment; and second, that the accused was prejudiced by errors so serious as to deprive the defendant of a fair trial, a trial whose result is reliable; when challenging the effectiveness of counsel in a guilty plea case, the accused must also show specifically that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial
3. the burden of establishing the truth of factual matters relevant to the claim of ineffective assistance rests with the accused; if there is a factual dispute on a matter pertinent to the claim, the determination as to whether further factfinding will be ordered is resolved under United States v. Ginn, 47 MJ 236 (CAAF 1997)

Miscellaneous Matters: Judicial Review: Generally

1. the results of courts-martial are subject to collateral review by courts outside the military justice system; courts-martial also are subject to collateral review within the military justice system
2. when a petitioner seeks collateral relief to modify an action that was taken within the subject matter jurisdiction of the military justice system, such as the findings or sentence of a court-martial, a writ that is necessary or appropriate may be issued under the All Writs Act in aid of the court’s existing jurisdiction
3. Article 76, UCMJ, addressing the finality of a court-martial conviction after completion of direct review, provides a prudential constraint on collateral review, not a jurisdictional limitation; Article 76 does not expressly effect any change in the subject-matter jurisdiction of Article III courts; the Article only defines the point at which military court judgments become final and requires that they be given res judicata effect
4. in terms of timing, Article 76, UCMJ, addressing the finality of a court-martial conviction after completion of direct review, serves as a prudential restraint on collateral review of courts-martial pending completion of direct review; when a coram nobis petition is considered after completion of direct review, finality of direct review enhances rather than diminishes consideration of a request for collateral relief
5. in terms of the scope of collateral review, the res judicata effect of Article 76, UCMJ, addressing the finality of a court-martial conviction after completion of direct review, means that the decision on direct review will stand as final unless it fails to pass muster under the highly constrained standards applicable to review of final judgments
6. under the exhaustion of remedies doctrine, courts outside the military justice system normally refrain from collateral review of courts-martial until all available military remedies are exhausted
7. as a general matter, courts outside the military justice system will not entertain habeas petitions by military prisoners until all available military remedies have been exhausted; however, the exhaustion requirement is prudential rather than jurisdictional; the circumstances of a particular case might warrant consideration of a habeas petition by an Article III court prior to exhaustion
8. even when remedies have been exhausted, the scope of collateral review outside the military justice system is constrained by the requirement to consider whether the military justice system has given full and fair consideration to the claims at issue; de novo review is appropriate only if the military justice system manifestly refused to consider those claims
9. a writ of error coram nobis should be brought before the court that rendered the judgment
10. in the military justice system, the trial court - the court-martial - does not have independent jurisdiction over a case after the military judge authenticates the record and the convening authority forwards the record after taking action; because the trial court is not available for collateral review under the UCMJ or the MCM, collateral review within the military justice system does not occur at the trial court level
11. the courts of criminal appeals, the first-level standing courts in the military justice system, provide an appropriate forum for consideration of coram nobis petitions regarding courts-martial; during the initial consideration of a case, they engage in de novo consideration of the record and expressly act on the findings and sentence; with respect to collateral review of the present case, they are well-positioned to determine whether corrective action on the findings and sentence is warranted, including ordering any factfinding proceedings that may be necessary
12. when court-martial jurisdiction has been invoked properly at the time of trial, the jurisdiction of the court of criminal appeals to review the case does not depend on whether a person remains in the armed forces at the time of such review
13. the court of criminal appeals is an appropriate forum to receive and consider a writ of coram nobis that involves a collateral challenge to that court’s approval of the findings and sentence in a court-martial, where the court-martial that convicted appellant had jurisdiction over both the person and the offense and the court of criminal appeals had jurisdiction to review and approve the findings and sentence on direct review
14. a writ of error coram nobis requests the court that imposed the judgment to consider exceptional circumstances, such as new facts or legal developments, that may change the result
15. the decision of the court of criminal appeals on a writ petition is subject to appellate review
16. coram nobis permits continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review, but only under very limited circumstances; although a petition may be filed at any time without limitation, a petitioner must meet stringent threshold requirements: (1) the alleged error is of the most fundamental character; (2) no remedy other than coram nobis is available to rectify the consequences of the error; (3) valid reasons exist for not seeking relief earlier; (4) the new information presented in the petition could not have been discovered through the exercise of reasonable diligence prior to the original judgment; (5) the writ does not seek to reevaluate previously considered evidence or legal issues; and (6) the sentence has been served, but the consequences of the erroneous conviction persist