Wednesday, November 05, 2008

Supremes docket new military cert petition

On 3 November, the Supremes docketed a cert petition in Seawell v. United States, No. 08-588. Seawell arises from a 5 August 2008 summary affirmance by CAAF. United States v. Seawell, __ M.J. ___, No. 06-0502/AF (C.A.A.F. Aug. 5, 2008) (summary disposition). AFCCA's unpublished opinion in the case is available here. United States v. Seawell, No. ACM 35531 (f rev) (A.F. Ct. Crim. App. Dec. 28, 2007).

The cert petition, filed by my colleague Capt Jen Raab, offers this QP:

Does a mandatory supervised release program violate the Fifth and Eighth Amendments, where the program allows the Government to revoke earned credit against an adjudged sentence without due process thereby resulting in an increase in punishment?


Cloudesley Shovell said...

Fat chance on this one, I think. One wonders what Cadet Seawell did to bust his parole. Sounds like it's been a long fall from the Air Force Academy for this guy.

I'm also wondering what "f rev" denotes. Can anyone enlighten this old sailor?

Dwight Sullivan said...

Sir Cloudesley,

"Further review." Here's AFCCA Rule 2.2:

Rule 2.2. Cases upon Further Review.
(a) Types. Cases upon further review include cases remanded to the Court by a superior court and cases returned to the convening authority for corrective action, a rehearing, or other trial that are again before the Court for review.

(b) Procedure. Cases upon further review will be referred to the same numbered panel that originally decided the case, without regard to the composition of the panel, unless the Chief Judge decides otherwise.

Cloudesley Shovell said...

Thank you kind sir. Pretty nifty little abbreviation actually, once you know what it means.

Dew_Process said...

I agree with the Admiral's ghost... fat chance. If he had a parole revocation hearing - which the AF CCA opinion implies, he's had DP. The better issue, at least from reading the less than enlightening CCA opinion would seem to be focused on: 1) Did he have a choice as to "supervised release?" 2) if yes (meaning, he had to "volunteer" or agree to it), is that a waiver? and 3) if not, meaning he had no choice in the MSR, any increase in his maximum confinement [which is his true bitch here] would seem to be the logical point of attack.

Not being privy to the Briefs, and the usual factual vacuum in the CCA decision, it's hard to evaluate whether or not there was a bona fide issue here or not, e.g., WHY wasn't he in "substantial compliance" with the terms of his MSR?

Another good reason to advise clients to reject supervised relief!