Saturday, October 04, 2008

Ryan cert petition redocketed

We previously discussed the cert petition in Ryan v. United States, which challenged the Navy-Marine Corps Appellate Defense Division counsel's refusal to file a cert petition on behalf of a Marine corporal whose court-martial results were affirmed by NMCCA and CAAF. We later noted that the cert petition had been returned to counsel to correct some formatting errors.

The Ryan cert petition has now been refiled and docketed by the Court. Ryan v. United States, No. 08-422. I haven't seen the actual cert petition, so I don't know to what extent it departs from the original petition, which is available here.


Dew_Process said...

"Bad advocacy generally produces bad results."

There are numerous considerations - some competing - in Ryan, but let's look at the more fundamental one raised, i.e., the statutory requirement of Art. 70(c), UCMJ, which mandates representation at SCOTUS "when requested by the accused. . . ." Thus, there is a statutory "duty" involved and therefore, how does one "enforce" compliance?

There's no apparent discretion in the rather clear statutory language, so Ryan's appellate counsel had a duty [ignoring ethical standards for a moment] to pursue the appeal to SCOTUS via a cert petition, once the accused requested" such. Seeking a Writ of Mandamus to compel compliance with a clear statutory duty was the obvious procedural device.

Ryan's cert petition is unsettling in a substantive setting because it neither cites nor discusses Roe v. Flores-Ortega, 528 U.S. 470 (2000). The opinion notes: "We have long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable." Id., 477. The cert petition is the functional equivalent of a notice of appeal, albeit far more labor-intensive. So, now Strickland is entwined in the appellate fog of Ryan.

"If counsel has consulted with the defendant, the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal." Id, 478.

"Today's case is unusual in that counsel's alleged deficient performance arguably led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself. According to respondent, counsel's deficient performance deprived him of a notice of appeal and, hence, an appeal altogether. Assuming those allegations are true, counsel's deficient performance has deprived respondent of more than a fair judicial proceeding; that deficiency deprived respondent of the appellate proceeding altogether." Id., 483

In the context of pro se cert petitions, this is a good question / issue. But, in Ryan, what is the prejudice to the client?

The claimed prejudice in Ryan's Petition is "This Honorable Court should grant review of Corporal Ryan’s case because he was denied the right to present a full and fair sentence appropriateness argument before this Court...." "Sentence appropriateness" is not something that's likely to interest the Supremes in this case, and since I'm not familiar with the appellate pleadings at CAAF, I don't know if there was "prejudice" that was within the parameters of certworthiness.

In the broader context, viz., outside of military practice, this is a contentious ethical issue. I was appointed appellate counsel in a state homicide case, and my ethical requirements are to pursue all "non-frivolous" issues consistent with the client's desires and my professional judgment. An interesting (and unresolved) Miranda issue was litigated at trial, and denied by the State Appellate courts, so preservation of a purely, federal issue and the application of Miranda is not at issue. When the client directed that I seek cert at SCOTUS, the assigned counsel's office advised me that they would neither pay me nor cover my expenses for the cert petition.

But, not getting paid, is not what I would want to argue to the Bar's Disciplinary Counsel when the inevitable Grievance from an incarcerated client came floating in. So, we filed the cert petition, and did not address the payment problem as we have alternate remedies if they actually deny payment on my voucher.

Returning to Ryan, I suspect that the SG's office will file a litany of things that Ryan [or his apparent pro bono counsel] could have done to ensure compliance with the statutory duty in Art. 70(c), and arguing the "exhaustion of remedies" failure, as the basis to deny cert. Different state Bars interpret this "duty" in different ways, and CAAF could indeed seek disciplinary action for members of its Bar.

Lastly, on one of the threads dealing with this issue, someone wondered about how a FSO - a US gov't employee - could represent a military defendant? 18 USC 207(a), raises an interesting issue in this regard, but CAAF has spoken on that issue in U.S. v. Nguyen, 56 M.J. 251 (2001)[Summary Disp.].

John O'Connor said...

"Returning to Ryan, I suspect that the SG's office will file a litany of things that Ryan [or his apparent pro bono counsel] could have done to ensure compliance with the statutory duty in Art. 70(c), and arguing the "exhaustion of remedies" failure, as the basis to deny cert."


Actually, the SG will waive a response and cert will be denied.

Anonymous said...

dew process, thanks on the FSO information but I can't find that summary disposition. If defense counsel works for a separate sector of the federal government with client that has a conflicting position that is in violation of federal law so i am wondering how a DC violating federal law can be tolerated. Thanks.

Gene Fidell said...

Readers may wish to be aware of D.C. Bar Ethics Opinion 313:

"A former defense lawyer with the Navy Judge Advocate General’s Corps may continue, in private practice, to represent in post-conviction proceedings the same criminal defendant whom he had represented as appointed counsel during the court martial. Even though his subsequent representation of the client is for the same matter in which he had participated personally and substantially while a public employee, he has not accepted “other employment” within the meaning of Rule 1.11 when he continues to represent the same client in the same matter after leaving military service."

Dew_Process said...

Gene is of course right, but the distinction here is that the DC does not appear to be in private practice, but is a FSO.

Anon - the cite comes up on Westlaw, but FYI, here it is:


No. 02-8006/MC. U.S., appellee, v. Vinh H. Nguyen, appellant. CCA 200101866. On consideration of the writ-appeal petition filed in the above-styled case which raises an issue as to legality of a civilian counsel representing appellant during post-trial proceedings after said counsel represented appellant during the trial proceedings while serving as an active duty officer of the United States Armed Forces and it appearing that said counsel has been advised by a member of the Office of the Judge Advocate General of the United States Navy that his continued representation of appellant would violate 18 U.S.C. § 207, it is ordered that said writ-appeal petition is hereby granted; that said civilian counsel may continue to represent appellant during further review of this court-martial under the Uniform Code of Military Justice. See United States v. Andrews, 21 USCMA 165, 44 CMR 219 (1972); and that the order of this Court dated November 29, 2001, staying further proceedings in this case is hereby vacated.

John, "upon further reflection" I suspect you are correct.

Marcus Fulton said...

I think part of the solution may be to change to the SCOTUS rules to permit IFP-style pleadings (8 1/2 x 11 with a staple) when filing receiving cert petitions to CAAF. This will be even more important if Congress opens the SCOTUS gate to cases CAAF denies. There is a lot of hassle associated with getting the pleadings in the right format and appellate codes aren't staffed for it.

For me, cert petitions involved wrestling with Microsoft Word for days and multiple drives through DC traffic to the printer. We just weren't staffed to take on a lot of cert petitions. I don't think I ever disagreed with a client about whether to file cert, but I can see how an attorney would want to resist a request, unless he or she was getting out and wanted a nicely bound writing sample for a firm. And if Grostefon were found to apply to representation at SCOTUS, (it predates 67a) the misery level would go to 11 unless they permit IFP-style filings.

Anonymous said...

Makes sense for a civilian to be able to continue to represent and appellant. However, a judge advocate that transitions to another federal position faces criminal sanctions under Title 18 and I believe there is a CFR as well.