Tuesday, October 30, 2007

New military pro se IFP cert petition

A new military pro se IFP cert petition showed up on the Supremes' electronic docket today. Garcia v. United States, No. 07-7342.

Garcia has an odd appellate history. On 6 September 2007, CAAF granted Garcia's supp and summarily affirmed. United States v. Garcia, __ M.J. ___, No. 03-0151/MC (C.A.A.F. Sept. 6, 2007) (summary disposition). BUT on 15 October 2007, CAAF granted Garcia's motion for leave to file a petition for reconsideration out of time. United States v. Garcia, __ M.J. ___, No. 03-0151/MC (C.A.A.F. Oct. 15, 2007) (order). It doesn't appear that CAAF has yet ruled on that reconsideration motion. Now how's this for bad timing? On 16 October, Garcia filed his pro se IFP cert petition. I don't have a copy of Stern & Gressman handy at the moment, but I assume that the filing of the cert petition divests CAAF of jurisdiction over the reconsideration motion rather than the reconsideration motion's pendancy depriving the Supremes of cert jurisdiction. Can anyone confirm or refute that? If not, I'll look it up tomorrow and post more about it tomorrow night, trick or treaters permitting.

Garcia's case was already something of an appellate yo-yo. NMCCA affirmed the findings and his 75-year approved sentence. United States v. Garcia, 57 M.J. 716 (N-M. Ct. Crim. App. 2002) (The members gave him 125 years. Egad.) CAAF then granted review and set aside the findings and sentence on IAC grounds. United States v. Garcia, 59 M.J. 447, 453 (C.A.A.F. 2004). When his case went back for retrial, he received a sentence that included confinement for only 35 years, with confinement in excess of 20 years suspended under a PTA. When the case returned to the Navy-Marine Corps Court, it affirmed. United States v. Garcia, No. NMCCA 9901513, 2007 CCA LEXIS 7 (N-M. Ct. Crim. App. Jan. 10, 2007).

Garcia's IFP cert petition obviously carries no hope of relief from the Supremes. I assume that his appellate defense counsel is now busily determining how to get the case back in front of CAAF to allow it to complete its reconsideration of the supp.


Phil Cave said...

My 7th edition, page 110, para. 3.9, seems to say that "the filing of a timely petition for rehearing defers the finality necessary for Supreme Court review until [action on the petition for rehearing].

Phil Cave said...

But . . .