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Monday, November 10, 2008
Cert petition in Seawell
We previously discussed the recent military cert petition in Seawell v. United States, No. 08-588, here. Here's a link to the petition (minus tables and appendices).
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This is a troubling case - did Seawell have counsel at the revocation hearing? It's not clear whether or not he did.
Second, I think that there's going to be a problem with the "Record" here - saying [in conformity with what the regs say] that he had no choice in MSR really is not accurate - he could have "refused" to sign the conditions of release paperwork on the grounds that they impose overbroad and unconstitutional conditions.
What can the gov't do? Deny release from confinement is basically it - you cannot "punish" someone for simply asserting their rights, even if ultimately it is decided against you. Especially in this case, by the time that the Admin appeals re: the MSR issue would have been accomplished, he would have reached his ME date.
For those handling post-conviction issues, and for those doing cert petitions, this case could have been made much stronger, had there been a cadre of Amici, noting that the exact "process" used against Seawell, is a common way to increase sentences illegally, and everyone in parole knows that.
There is another - and apparently unlitigated - issue, he could have refused MSR on a different ground, i.e., as long as his direct appeal was still "alive" he could have refused to register as a sex-offender, because the conviction was not final. I litigated that 2 years ago, twice, and won both cases thanks to Art. 76.
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