Tuesday, June 24, 2008

Acting SG asks for more time to file cert petition in Denedo

The Acting SG has asked the Chief Justice to extend the government's deadline for filing a cert petition in Denedo to 2 August. United States v. Denedo, No. 07A1027.

After making such requests, though, the SG has often declined to file a cert petition, so this doesn't make a cert petition in Denedo a sure bet.


Norbert Basil MacLean III said...

CAAFlog, FYI Rep. Wexler just signed on as a co-sponsor to the Equal Justice for Our Military Act of 2007, HR 3174. Rep. Wexler sits on the Subcommittee on Courts, Internet & Intellectual Property in the House Judiciary Committee where the bill is currently parked. Thomas has not updated as of this date.

Anonymous said...

The acting SG's decision does not automatically mean that he will take a cert petition to SCOTUS, but he does not, as routine, ask for additional time either. This does mean that he is seriously contemplating it. And I hope he does file for cert, and I hope SCOTUS accepts and then in another 9-0 decision spank the renegade CAAF. I mean not even Article III courts believe they have jurisdiction forever.

Norbert Basil MacLean III said...

Another co-sponsor to HR 3174: Rep. Frank is also signing on.

Ironically had just one judge in the majority sided with Judge Ryan's dissent, under current law, Denedo would be precluded from an appeal to SCOTUS. But HR 3174 (or S-2052), if passed and signed into law, would rectify the inequity in 28 USC 1259(3) and (4).

Norbert Basil MacLean III said...

3rd co-sponsor today for HR 3174: Rep. McDermott

This brings total to 12 co-sponsors for HR 3174. Thomas has not updated and only shows nine as of today. I do anticipate heaps more of co-sponsors when Congress returns from its recess.

Anon 4:37: What venue would you have Denedo file to redress his grievance, if not CAAF? Or would you have him left bereft without any venue to obtain a remedy? And if in another venue, what would be the statutory jurisdiction for seeking relief in another court other than a military court?

Anonymous said...

norbert: what do you mean what venue? How about NONE!!! He had his venues. EVEN A DEATH PENATLY DEFENDANT EVENTUALLY RUNS OUT OF APPEALS. But not military defendants, some how that jurisdiction runs forever. Denado had a court-martial, he had direct appeals, then he had habeas if filed in the correct time lines. I'm sorry, but DP does not require any more. In fact, SCOTUS has repeatedly stated that DP does not require any appeals no matter how serious the offense.

As I said before, even in Art. III courts there comes a time when jurisdiction ends. We don't say that it shouldn't because those defendants must have a forum to continually appeal the same things over and over again ad nauseum.

Norbert Basil MacLean III said...

Anon 6:33: I respectfully disagree. Article III courts have reviewed cases even after they were final. In fact, an exellent example is Korematsu. Even after that case concluded review in SCOTUS the district court reviewed the case 40 years later in an error coram nobis proceeding. And Korematsu prevailed.

With respect to Denedo. It's my understanding that he pled guilty based on advice from counsel that he would not be deported. It was only after the United States moved to deport him, some 8 years later solely based on his military conviction, that he then filed a claim of ineffective assistance of counsel. How is that arguing the same thing over and over again? And he did not raise the claim earlier because in the 8 years since his military conviction the United States had not tried to deport him. So according to you he is left bereft without any remedy?

Anonymous said...


SCOTUS case Carlisle v. United States, 517 U.S. 416 (1996) draws your Korematsu 9th Circus case into question. Of note the Supremes stated:

Petitioner's three remaining arguments need not detain us long. First, he argues that the District Court had power to enter a judgment of acquittal in this case under the All Writs Act, 28 U.S.C. § 1651, through the writ of coram nobis. Apart from the fact that the District Court was not asked to [*429] issue, and did not purport to be issuing, a writ of coram nobis, that writ would not have lain here, since it was traditionally available only to bring before the court factual errors "material to the validity and regularity of the legal proceeding itself," such as the defendant's being under age or having died before the verdict. See United States v. Mayer, 235 U.S. 55, 67-68, 59 L. Ed. 129, 35 S. Ct. 16 (1914). Moreover, "the All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling." Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34, 43, 88 L. Ed. 2d 189, 106 S. Ct. 355 (1985). As we noted a few years after enactment of the Federal Rules of [**1468] Criminal Procedure, "it is difficult to conceive of a situation in a federal criminal case today where [a writ of coram nobis] would be necessary or appropriate." United States v. Smith, 331 U.S. at 475, n. 4. In the present case, Rule 29 provides the applicable law.

SCOTUS has also recently reiterated that the all writs act is NOT a source of jurisdiction. And IAC is definitely not one of the "difficult cases to conceive" requiring coram nobis.

To CAAFLog's debate on SCOTUS jurisdiction: SCOTUS has jurisdiction to determine jurisdiction questions. Courts have inherent jurisdiction to decide if they have jurisdiction. Should a court decide it does, a necessary implication would be the superior court has inherent jurisdiction to decide if the lower court's decision on its jurisdiction is correct. I would argue that is inherent unless specifically taken away from Congress. Even our military courts enjoy inherent jurisdiction for the limited purpose of deciding if the military court has jurisdiction. Thus, CAAF has jurisdiction to determine if it has jurisdiction over Denado's coram nobis case. Likewise, SCOTUS, as the next superior court, has the inherent jurisdiction to decide if CAAF got that right. It's a question purely of jurisdiction and not to the merits of the action, so jurisdiction under the situation lies inherently.

Anonymous said...

The thing that still gets me and maybe norbert you can shed some light on this. If NMCCA says Denedo's plea was not voluntary b/c of the advice given and it orders a new trial, how does the government try Denedo? How do they have jurisdiction on him and if they can retry him (though I doubt they can as immediately upon referal he'll file habeas in District Court) can they say, "Hey Denedo, welcome back to the Navy, he's a uniform and here's weapon you are now IA to Iraq? Certainly of they can retry him they can require him to complete military duties.

Anonymous said...

CAAF is not deterred by reviewing only "findings and sentences" of courts-martial why would SCOTUS be deterred from the term "relief?" That would certainly be a victory for CAAF to be a court making decisions unencumbered by SCOTUS.

CAAFlog said...

1951 Anon --

You go a bridge too far. SCOTUS certainly has jurisdiction to determine its own jurisdiction. So let's say the SG seeks cert, the Supremes grant, and then Denedo's counsel file a cross-petition on the jurisdictional issue or simply argue on the merits that the Supremes have no jurisdiction. The Supremes then have jurisdiction to determine whether CAAF granted "relief," thus bringing the case within SCOTUS's jurisdiction under 28 U.S.C. § 1259(4). If the answer to that question is no, then the case is at an end. The Supremes certainly shouldn't overreach the bounds of their jurisdiction granting statute to rule that CAAF exceeded the bounds of its jurisdiction granting statute.

If a military appellate court were later to actually grant relief to Denedo -- or another civilian following in Denedo's footsteps -- then the Supremes would have jurisdiction under 28 U.S.C. § 1259(4).

Norbert Basil MacLean III said...

Anon 20:01 on Tues, 24 Jun 08:

Denedo’s discharge from military service was due to a court-martial sentence; and not due to an EAOS. If CAAF or NMCCA sets aside or vacates the court-martial conviction based upon Denedo’s petition then in my opinion the punitive discharge is null and void. As such he has not been discharged from military service. A consequence of Denedo challenging his conviction and prevailing is that he appears to be voluntarily consenting to military jurisdiction once again. I have not read the actual petition that counsel filed for Denedo so I don’t know what is contained in his prayer for relief. I have only read CAAF’s opinion and the well reasoned dissent by Judge Ryan.

If Denedo prevails on the merits, the Navy judge advocate, I believe has two options: (1) refer the case to a convening authority for referral to court-martial so that he can be re-tried (which I think is highly unlikely given the length of time that has elapsed) and he can be placed on administrative leave pending re-trial; or (2) direct that an honorable discharge be issued to Denedo. Whether Denedo is entitled to back pay and allowances is best left to the U.S. Court of Federal Claims under the Tucker Act.

You suggest that Denedo would file habeas in the event the military re-tried him. It would be disingenuous for Denedo to file habeas corpus in district court after re-referral of charges since it was he who initially filed a petition in the military courts. By virtue of his petition, he has implied consent once again to military jurisdiction for the limited purposes of re-trial and/or the issuance of a proper discharge certificate. Thus, if such was to arise, the heaps of attorneys at DOJ could argue equitable estoppel on behalf of the government.

Of course all this would be moot if the Government had not chosen eight years after Denedo’s military conviction to deport him solely based upon the court-martial.

Anonymous said...

Norbert B.M.III,

I am somewhat troubled by your "implied consent" to jurisdiction argument. While I understand the sugary attraction of this argument, do you have any authority to support its application in a choice of forums context?

I am not convinced that parties to litigation must be "ingenous" - nevermind avoid being "disingenous." Parties may take inconsistent positions in the same litigation. The government may prosecute two people for the same crime - when logically only one may have commited it.

And I think that the consitutional mandate that habeas shall not be curtailed yields no "good faith" exception, as you imply.

Again, we need to separate what the law SHOULD be with what it actually IS. I think Denedo has an open avenue for habeas at all times.

Some random observer said...

Mr. Maclean:

Referencing your closing comment at 1025 am--

All this would be moot, too, had Denedo not broken the law.

Don't lose focus on the responsible party here. Denedo is in his current predicament because of his actions, and for no other reason.

Anonymous said...

Thank you Nurse Ratchet.

You take blogging on military justice matters to new heights of intellectual rigor.

You see, we had all simply forgotten that underlying criminal law there is a criminal and a crime. But thanks for reminding us. I guess there is nothing left to blog about now.