Tuesday, June 24, 2008

Denedo presents yet another jurisdictional question

Upon reading Mr. MacLean's comments below, it occurred to me to wonder whether the Supremes even have jurisdiction to review CAAF's decision in Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008). My tentative answer is it doesn't look like they do.

When Congress extended the Supremes' cert jurisdiction over CMA decisions in 1983, it did so in a very limited fashion. 28 U.S.C. § 1259 provides that the Supremes can review CAAF decisions: (1) of affirmed military death sentences, (2) issued in response to a JAG's certified issue, (3) issued after granting a direct review petition, and (4) in other cases "in which the Court of Appeals for the Armed Forces granted relief."

That final subsection is what gave the Supremes jurisdiction to review CAAF's issuance of a writ that led to Clinton v. Goldsmith, 526 U.S. 529 (1999). But in Denedo, has CAAF "granted relief"? Here's Denedo's decretal paragraph:

Accordingly, we remand Appellant's petition to the United States Navy-Marine Corps Court of Criminal Appeals for further proceedings, where the Government will have the opportunity to obtain affidavits from defense counsel and submit such other matter as the court deems pertinent. The Court of Criminal Appeals will then determine whether the merits of Appellant's petition can be resolved on the basis of the written submissions, or whether a factfinding hearing is required under United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). The court will determine whether Appellant's counsel rendered deficient performance and, if so, whether such deficiency prejudiced Appellant under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). If prejudice is found, the court shall determine whether the requested relief should be granted.
Denedo v. United States, 66 M.J. 114, 128 (C.A.A.F. 2008).

That doesn't look like "relief"; it looks like kicking the can before deciding whether to grant relief. And if no relief, then no Supreme Court jurisdiction.


Anonymous said...

Based on the language of 28 USC 1259(4) I agree with CAAFlog's tentative analysis that SCOTUS does not have jurisdiction. I think "relief" is the key word here. And as CAAFlog pointed out, CAAF did not grant any relief to Denedo; it just remanded to the lower court for more fact finding. I think the Government is going to have to wait on Denedo - it's not ripe for SCOTUS review yet.

Cloudesley Shovell said...

According to CAAF, NMCCA had jurisdiction to review Denedo's petition under Art. 66. After NMCCA denied relief, Denedo appealed to CAAF, and CAAF granted review.

CAAF never says in its opinion upon what statute it relied to review the case. However, the only way CAAF has jurisdiction to hear a case is via one of the three mechanisms in Article 67. It wasn't a death penalty case, the JAG did not certify anything, so CAAF must necessarily have been acting under Art. 67(a)(3). Denedo's writ was a "case reviewed by a CCA"; Denedo petitioned CAAF for review, and CAAF granted review.

28 USC 1259 expressly gives the Supreme Court jurisdiction to hear cases under Art. 67(a)(3).

There is nothing in the language of either Art. 67(a)(3) or 28 USC 1259 that limits jurisdiction to cases heard on "direct review". That phrase appears nowhere in either statute.

The Supreme Court's jurisdiction to hear Denedo (if it gets there) is clear.

Anonymous said...

Cloudesley Shovell: I don't believe SCOTUS jurisdiction rests under 28 USC 1259(3) as it was a writ appeal and not a petition for review. I cannot find any cases where an extraordinary writ appeal was treated as a petition for review. Does anybody know of any such cases?

Dwight Sullivan said...

Sir Cloudesley,

SCOTUS's jurisdiction to hear Denedo isn't clear at all. As Mr. MacLean points out, 28 U.S.C. § 1259(3), gives SCOTUS jurisdiction to review "Cases in which the Court of Appeals for the Armed Forces granted a petition for review under section 867(a)(3) of title 10." 10 U.S.C. § 867(a)(3) provides (at least according to the MCM -- the final "a" seems a bit strange) that "The Court of Appeals for the Armed Forces shall review the record in . . . all cases reviewed by a Court of Criminal Appeals in which, upon petition of the accused and on good cause shown, the Court of Appeals for the Armed Forces has granted a review."

Denedo doesn't appear to be such a case. Instead, on 30 March 2007, CAAF docketed the case with this notice: "Misc. No. 07-8012/NA. Jacob DENEDO, Appellant v. United States, Appellee. CCA 99-00680. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on application for extraordinary relief in the nature of a writ of error coram nobis was filed under Rule 27(b) on March 29, 2007, and placed on the docket this 30th day of March, 2007."

28 U.S.C. § 1259(4) appears to have been expressly designed to provide SCOTUS jurisdiction over CAAF decisions granting extraordinary relief while withholding SCOTUS jurisdiction over CAAF cases denying extraordinary relief. It appears that Denedo isn't yet in that first category.

Cloudesley Shovell said...

I understand your point, but respectfully disagree, out of stubbornness if nothing else. I guess we'll have to wait and see. Consider me disgusted by the whole affair.

Laws and sausages and all that.

Anonymous said...

I would think SCOTUS has jurisdiction for the limited purpose of deciding whether a lower appellate court had jurisdiction to even hear the case. Am I missing something?

John O'Connor said...

Am I looking at it too simplistically to think that Denedo got "relief" because the Court's decision gave him a hearing before the CCA to which he otherwise would not have been entitled? I haven't done any research, but that seems rational to me.

Anonymous said...

Agree with J O'C. Denedo has his relief - a hearing.

Anonymous said...

I agree with cloudesley and jo'c. Denedo clearly was a case "reviewed by a CCA in which, upon petition of the accused and on good cause shown, the CAAF has granted review." Art. 67(a)(3). Also, relief was granted in the form of a hearing. This case is a "must review" by the Supremes.

Dwight Sullivan said...

1815 Anon,

Can you provide ANY "Denedo clearly was a case 'reviewed by a CCA in which, upon petition of the accused and on good cause shown, the CAAF has granted review.' Art. 67(a)(3)."?

I think it would stretch the normal meaning of the word "relief" to say that it includes a hearing. Does that mean that any time a civil litigant survives a motion for summary judgment and gets a jury trial, the client has received "relief" and the attorney should be eligible for attorney's fees under any applicable fee-shifting statute? Of course not. Would we say a death row inmate received "relief" because a U.S. district court held a hearing on a habeas petition before denying it? Of course not. Nor does CAAF grant "relief" by docketing a case and holding an oral argument. Nor does CAAF grant "relief" by ordering a DuBay hearing.

It would be supremely ironic if SCOTUS were to torture its jurisdiction-granting statute in order to hold that CAAF overreached its jurisdiction-granting statute.

Dwight Sullivan said...

Let's try a thought experiment divorcing the relief question from the Denedo context.

Hypothesize that a convicted servicemember on appeal alleges IAC. Hypothesize further that CAAF orders a DuBay hearing which makes factual findings. CAAF then rules that there was no IAC and affirms the findings and sentence and the Supremes deny cert.

Has the servicemember received relief?

I would certainly answer that question in the negative. That being so, I think it would be an exercise in outcome oriented analysis for me to argue that Denedo received relief merely because CAAF ordered further proceedings in his case without purporting to affect the findings or sentence. As much as I disagree with the majority opinion's jurisdiction analysis in Denedo, I would not advance that outcome-oriented interpretation of 28 U.S.C. § 1259(4).

Anonymous said...

caaflog, aside from the relief issue, i don't see any stretching to say that denedo petitioned caaf to review a cca decision and on good cause shown, caaf granted review. Just following the plain language. anon 1815

John O'Connor said...

CAAFlog, not all differences in statutory construction are "outcome-oriented" just because they differ from your construction (wink).