Monday, October 27, 2008

Denedo opposition

In their opposition to cert, Denedo's counsel make two main points: (1) the Supremes don't have jurisdiction to grant cert in the case's current posture; and (2) CAAF was right. I agree with the first point even though I disagree with the second.

The opp observes that the SG invoked jurisdiction under 28 U.S.C. § 1259(4), which allows the Court to review "[c]ases, other than those described in paragraphs (1), (2), and (3) of this subsection, in which the Court of Appeals for the Armed Forces has granted relief." The opp notes that CAAF remanded to NMCCA for further proceedings with the direction that "[i]f prejudice is found, [that] court shall determine whether the requested relief should be granted." The opp argues: "A remand, without relief, is not 'relief.' It is merely a procedural step that may lead to adjudication of the merits. 'Relief' is the substance of what the moving party seeks and what the court finds he or she is entitled to. Health Cost Controls of Illinois, Inc. v. Washington, 187 F.3d 703, 706 (7th Cir. 1999)
(Posner, C.J.)." Opp at 5.

The opposition has a discussion of Clinton v. Goldsmith, 526 U.S. 529 (1999), that is sufficiently interesting, nuanced, and short to be best read in toto rather than summarized here. The opp also notes that the case presents no circuit split crying out for resolution. And the opp presents a compelling case that Denedo has nowhere else to turn if not to the military appellate courts. Finally, the opp calls attention to the "irony" that "in its effort to call into question the jurisdiction of the Court of Appeals the government has overlooked this Court's lack of jurisdiction over the petition." Opp. at 14. (Now THAT, Ms. Morissette, is ironic.)

But even if the Supremes did have jurisdiction, there is another good argument -- not included in the opp -- suggesting that cert is inappropriate. And that argument was made by, of all people, the Solicitor General. In his opp to a military cert petition earlier in the same month that he filed his Denedo cert petition, the SG argued that the personal jurisdiction issue presented by Stevenson v. United States, No. 07-1397, was "premature at this juncture." Brief for the United States in Opposition, Stevenson v. United States, No. 07-1397, at 9 (filed August 4, 2008). In Stevenson, the SG wrote:

The court below remanded this case for a factual determination whether a search warrant whose execution resulted in obtaining crucial evidence in this case was predicated upon tainted information. Resolution of that issue in petitioner's favor could result in the reversal of his conviction, thereby rendering the question presented by this petition moot. If petitioner does not prevail on the issue on remand, petitioner may then be able to present his contention to this Court in a petition for a writ of certiorari seeking review of a final judgment against him.
Id. (internal citation omitted).

Similarly, in Denedo, CAAF remanded the case for further proceedings by a lower court to determine whether to grant relief. Resolution of that issue in the United States' favor would moot the question presented by its cert petition. If the United States doesn't prevail in that litigation, then it can return to the Supremes with a ripe certiorari petition.

As troubling as CAAF's ruling in Denedo is, the case doesn't appear to fall within the Supremes' statutory cert jurisdiction and, even if it did, isn't ripe. Just like it passed on Stevenson, the Supremes should pass on Denedo.

10 comments:

Toussaint-Guillaume Picquet de la Motte said...

I think you'd have to go to London to find someone betting on this but I'd bet that SCOTUS takes the case.

Anonymous said...

Looks like relief to me - allowing a discharged serviceman a hearing that he isn't entitled to.

Nonetheless, this is one of those issues that is capable of repetition yet avoiding review.

Anonymous said...

It could be an opportunity for SCOTUS to tell the 7th Cir. they got the definition of "relief" wrong. I think it was mentioned last summer that CAAF could continue to remand a case to CCA with directions over and over and as such not "grant relief."

Anonymous said...

What is Denedo's status when going through a Dubay hearing? Is he magically back in the military? If he commits a crime does the military have UCMJ authority over him?

Cloudesley Shovell said...

Anon at 942am asks the million dollar question.

You can bet that if Denedo gets his conviction set aside and the military attempts to retry him, he'll insist the military has no jurisdiction.

"Heads I win, tails you lose."

Anonymous said...

Are the allegations of Denedo's counsel (i.e., trial DC was involuntarily committed, alcoholic, etc.) anywhere in the record or submitted by way of affidavit?

Dew_Process said...

Are the allegations of Denedo's counsel (i.e., trial DC was involuntarily committed, alcoholic, etc.) anywhere in the record or submitted by way of affidavit?
___________________________________

Yes - it's a pretty darn good record - I've read it. Had Denedo still been in custody, there would be no question that he could seek habeas relief - here, it's via Coram Nobis.

This is a VERY fact specific case, the original PTA was specifically negotiated to a SpCM to avoid all [then] deportation issues - of course, then they changed the law, and what was NOT a deportable offense, becomes one.

By seeking relief in the military justice system, Denedo waives any right to contest in personam should relief ultimately be granted.

The underlying problem is two-fold. In addition to the "intent to avoid deportation" issue in negotiating the PTA, there's a funky Care inquiry by the MJ that is also problematic. Indeed, the gov't's brief at the CAAF points out the problematic plea colloquay.

I must beg to differ with my learned "crony," Dwight, based upon the peculiarities of the jurisdictional posture of the writ appeal to CAAF. When Denedo filed in the N-MC CCA, the gov't moved to dismiss based upon the tired argument that the case was long "final" and thus, jurisdiction was terminated.

The CCA denied that motion, and then denied the Writ on the Merits. The gov't did not cross-petition to the CAAF on the issue, so what was before the CAAF, was a pure writ appeal under Art. 67(a)(3).

CAAF's remand needs to be considered in the context that Denedo appears to be inconsistent with a prior N-MC CCA case, Johnson 49 MJ 569, which addressed a "continuing civil disability" - the very thing Denedo is complaining about.

Finally, if Gene can chime in here [he represents Denedo along with Matt Freedus], I suspect that Councilman's exhaution requirements played a factor in the case.

Anonymous said...

This is a VERY fact specific case, the original PTA was specifically negotiated to a SpCM to avoid all [then] deportation issues - of course, then they changed the law, and what was NOT a deportable offense, becomes one.

This was a provision specifically negotiated in the PTA? If that's the case the immigration judge can stop deportation and the case is closed. All Denedo wants is to stop deportation. How is the record completed, were affidavits attached?

Dew_Process said...

Anon 802:
They tried getting immigration to drop it, but unfortunately the conviction now falls under the definition of an "aggravated felony" making him mandatorily deportable under 8 U.S.C. § 1227(a).

There are very detailed Affidavits in the Record, along with all of the documentation about Denedo's prior counsel's "problems."

Gene Fidell said...

Dew, because I'm co-counsel in the case, I'm going to pass on commenting.