Wednesday, January 23, 2008

Perplexing petition

The Supremes yesterday docketed a new military cert petition: United States v. Almejo, No. 07-955. But this is strange -- CAAF denied Petty Officer Almejo's petition for grant of review. United States v. Almejo, __ M.J. ___, No. 07-0237/NA (C.A.A.F. Oct. 18, 2007).

In a sharply worded opinion (as usual, unavailable online but available on NKO; here's a link), the Navy-Marine Corps Court denounced Almejo's first two issues as "frivolous" and the third as "meritless." United States v. Almejo, No. NMCCA 200501051 (N-M. Ct. Crim. App. Nov. 29, 2006) (per curiam). As noted above, CAAF then denied his petition for grant of review.

Almejo then filed a cert petition. Of course, the Supremes have no statutory cert jurisdiction in such a case. "The Supreme Court may not review by a writ of certiorari under this section any action of the Court of Appeals for the Armed Forces in refusing to grant a petition for review." UCMJ art. 67a, 10 U.S.C. § 867a.

Now here's the even stranger part. Almejo is represented by a civilian counsel -- J. Byron Holcomb. Why would a civilian counsel file a cert petition in a case where the Supremes have no jurisdiction? (For that matter, why would any counsel file a cert petition in a case where the Supremes have no jurisdiction?)


CJ Easterbrook said...

Hmmm. Frivolous issues. That raises a question: do the service courts (or CAAF) have the authority to sanction attorneys for such conduct?

Phil Cave said...

The same civilian counsel who filed frivolous appellate issues, for case in which he was trial defense counsel.

Could this have been a mistaken failure to cite Grostefon? If so, where was military counsel to point out Grostefon?

Anonymous said...

Because he doesn't know any better.

Anonymous said...

Mr. Holcomb has apparently had his license to practice suspended in at least one jurisdiction, though the reasons for such are not stated:

Anonymous said...

I don't know, does he maybe have an argument under 28 U.S.C. 1254 that "court of appeals" includes CAAF (notwithstanding other express provisions related to CAAF that seem to suggest that only petition grants can be reviewed), and, furthermore, that review is not precluded under 10 U.S.C. 867a(a), because he's not asking them to review CAAF's denial of the petition -- but rather the resolution of the appellate issues before the service court?

Yes, we all know that Congress only meant 28 U.S.C. 1254 to apply to the Circuit court of appeals, but they didn't exactly specific the circuit courts.

I'm not defending the attorney's actions. But I'm also not saying that the filing, in and of itself, would be frivolous given the argument I've noted above (a non-winner does not mean it is frivolous)