Friday, March 13, 2009

SG's reply in Denedo

Here, courtesy of the ABA, is a link to the SG's reply brief in Denedo.
Posted by Dwight Sullivan at 5:08 PM
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8 comments:

Publius said...

No matter which side you come out on, you have to admit that this is one awesome brief.

Sat Mar 14, 09:18:00 AM EDT
Anonymous said...

This case reminds me of the space shuttle Challenger Disaster: All that technology and engineering hinging on a simple rubber O-ring. This case has awesome briefs on both sides, but comes down to a seemingly simple, yet suprisingly ill-defined term, "relief." Ironically, when the dust settles, Denedo might be most remembered not for the MILJUS or immigration collateral, but for defining the term "relief."

Sat Mar 14, 05:12:00 PM EDT
Dew_Process said...

Well, regardless of which way the Supreme's swing, Denedo still has federal court "relief" available to him. If they are going to shut the door to collateral relief for military defendants, then fine. Do it so we can go to federal court and not hear the "exhaustion" argument the government makes.

Sun Mar 15, 05:41:00 PM EDT
Anonymous said...

Dew...what was the last collateral attack or request for relief of a court martial sentence (where the accused had been discharged and no longer in confinement) in an Art III court where the court dismissed for failure of exhaustion?

Sun Mar 15, 06:29:00 PM EDT
Dew_Process said...

About a year and a half ago, in U.S. District Court in Boston, in a habeas case that I had. We were challenging the Army's in personam jurisdiction - we had exhausted our Admin remedies, and argued that Goldsmith precluded anything else. Case got dismissed on exhaustion grounds because the court bought the gov'ts argument that we could have sought habeas relief at ACCA. But, charges had not yet been filed - which was what we were trying to avoid. Case got mooted when Army "reconsidered" and agreed that my client was now a civilian.

Yes, I know, that's not "post-conviction" collateral attack, but my point is that the government uses "exhaustion" both as a sword and a shield.

I have 2 military "actual innocence" habeas actions waiting to be filed - only where is the question, pending Denedo.

Sun Mar 15, 07:27:00 PM EDT
Anonymous said...

In Denedo's case, and others similarly situated, I don't believe the federal district courts have jurisidiction because the former servicemember is no longer in the military and is not in custody. How can you statisify the custody prong of habeas? CAAF's majority opinion in Denedo also pointed that there hasn't been a case in U.S. history where one court took action on a judgment from another court in coram nobis proceedings. I don't think error coram nobis jurisdiction can be invoked in a U.S. district court on a court-martial conviction. It's passed the six year statute of limitations to file a Little Tucker or Tucker Act claim. Moreover the Federal Circuit has declined to apply equitable tolling to the six year statute of limitations. Finally, in 1984 Congress took away the jurisdiction of the various military correction boards when it enacted 10 USC 1552(f) (That provision was in the Military Justice Act of 1983.) So if the Supreme Court rules a military court cannot correct its errors under the All Writs Act in an arror coram nobis case because the court-martial is final under UCMJ art. 76. What court does Denedo turn to? None? And if he can turn to a court what is the basis for the jurisdiction given that he is no longer in the service, not in custody and more than six years has elapsed since his dicharge?

Mon Mar 16, 02:01:00 AM EDT
Anonymous said...

NBM3 - well, you pretty much summed up Denedo's dilemma. If anyone reading does immigration law, does a Notice Deportation where he was out on his own recognizance pending a hearing, rise to the level of triggering "custody" for habeas purposes?

If that doesn't rise to the level of "custody," you're right, no federal habeas would lie, and I guess his only recourse would be under the Declaratory Judgment Act.

Otherwise, he's left with seeking a Presidential pardon to avoid being deported!

Mon Mar 16, 02:55:00 AM EDT
Anonymous said...

SCOTUSBLOG has previewed the Denedo argument

http://www.scotusblog.com/wp/

Tue Mar 17, 03:01:00 PM EDT

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