Monday, August 04, 2008

SG's opposition to Stevenson cert petition

Here's a link to the SG's opposition to the cert petition in Stevenson v. United States, No. 07-1397.


John O'Connor said...

I've only skimmed this, but the most interesting thing to me is the SG's argument that the Court has good reason to deny the petition because the CAAF's decision is essentially interlocutory in that CAAF remanded the case for further findings on the Fourth Amendment issue.

That sounds like a situation analogous to Denedo, where the CAAF's decision does not finally resolve the court-martial proceedings. Might this suggest the SG will take a pass on Denedo because that case has been remanded for further proceedings?

Anonymous said...

The argument is CAAF never had jurisdiction to hear Denedo's Writ. It had jurisdiction in Stevenson.

Cloudesley Shovell said...

Anon at 502pm--One of the arguments Stevenson has been making for nearly 10 years is that military courts have no jurisdiction to try him. The sole issue on the present cert petition regards jurisdiction.

Jurisdiction was one of the many assigned errors in Stevenson's petition to CAAF. CAAF refused to grant that particular error and did not even mention jurisdiction in its latest opinion in this case.

Cloudesley Shovell said...

OBTW--it is interesting that the SG advances the argument that because CAAF did not grant the specific jurisdiction issue, the SC has no jurisdiction. This despite the fact that both Art. 67a and 28 USC 1259 talk only of "cases" reviewed by CAAF. Nothing in either statute supports the idea that CAAF can prevent review of specific issues by cherry-picking the issues it grants. Rather, if CAAF reviews a case, then the SC has jurisdiction.

Besides, jurisdiction is always at issue, and is never waived, so it would be truly extraordinary if CAAF could foreclose SC review in a case where jurisdiction obviously does not exist by simply not granting that specific issue.