Still more thoughts about today's ruling in Rodriguez

Sometimes CAAF petitions are untimely filed because the appellate defense counsel has dropped the ball. What then?

Some commentators have opined that the servicemember could seek collateral relief for IAC. But not so fast. Putting aside procedural questions about how an appellant who is neither confined nor on parole could bring such a claim, the Supreme Court-recognized right to effective assistance of counsel applies only to the first-level appeal as of right. Evitts v. Lucey, 469 U.S. 387 (1985). Lucey doesn't cover petitioning CAAF because that's a discretionary second-level appeal. Nor have lower courts been eager to find a constitutional right to effective assistance of counsel in a second-level appeal. The Ninth Circuit has flat-out stated that it "is well-established that criminal defendants have no constitutional right to counsel beyond their first appeal as of right, and hence no right to counsel in a discretionary appeal to the State's highest court." Smith v. Idaho, 392 F.3d 350, 356-57 (9th Cir. 2004). So if an appellant who is confined at, say, Naval Consolidated Brig, Miramar has an appellate defense counsel who drops the ball on filing a timely petition at CAAF, he or she is unlikely to prevail in an appellate IAC habeas action.

Nor is the Ninth Circuit alone in this view. The Second Circuit, for example, has observed that Supreme Court dicta "suggest that there is no right to counsel on any appeal beyond a first-level appeal as of right, whether the second-level appeal is discretionary or even of right. That appears to be the way our Circuit has understood Lucey: 'The [Supreme] Court has stated that the right to counsel extends only to a first appeal as of right.' Chalk v. Kuhlmann, 311 F.3d 525, 528 (2d Cir. 2002) (citing Lucey)." Hernandez v. Greiner, 414 F.3d 266, 269 (2d Cir. 2005) (alteration in original).

Nevertheless, a successful habeas challenge isn't completely unthinkable. A federal court can sometimes issue a writ of habeas corpus due to the violation of a federal statute in addition to the violation of the United States Constitution. 28 U.S.C. § 2241(c)(3). A good argument could be made that a military appellate defense counsel dropping the ball in filing a petition at CAAF violates the client's rights under Article 70. And there would certainly be good cause in such a case for not having pursued the claim before the military appellate courts, thus potentially removing such a habeas petition from the normal waiver/full-and-fair-review Catch-22 in which military habeas petitioners generally find themselves. But it still seems like quite an uphill battle.

Nor could the client successfully sue either the counsel or the service for monetary damages since any such suit would be Feres barred.

The majority's opinion did point to one potential escape hatch: in a case where an injustice might arise due to a petition's untimeliness, the relevant Judge Advocate General could ask CAAF for permission to certify an issue out of time. See Rodriguez, slip op. at 16 n.11. Since the 30-day certified issue deadline is rule-based rather than statute-based, Bowles v. Russell would allow CAAF to suspend its rules to authorize an untimely certified issue.

Is that a sufficient escape hatch? Or is more needed? Should Congress expressly amend Article 67 to authorize CAAF to accept an untimely petition for good cause shown? (In footnote 10, the CAAF majority notes a potential discrepancy between civilian criminal appellants' ability to pursue untimely appeals and military justice appellants' ability to do so and observes, "[T]hat apparent inconsistency is an issue for congressional consideration." Rodriguez, slip op. at 16 n.10.) If Congress were to authorize CAAF to accept untimely petitions, should there be any hard time limit beyond which CAAF couldn't exercise jurisdiction? These questions don't suggest any obvious answer to me.