Thursday, January 22, 2009

Government moves to strike Rodriguez recon petition

Yesterday the Government asked CAAF to strike the defense's reconsideration petition in United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009). Here's a copy of that motion.


Anonymous said...

You expect CAAF to follow a waiver rule? Or any other rule of appellate practice that is standard throughout appellate courts? Good luck. CAAF picks and chooses the rules they follow and thumb their noses at the rules. When it is convenient for CAAF to follow procedure they will.

Dew_Process said...

ANON 1931- the alternative is for the Appellant to file a Writ of Error Coram Nobis, for appellate IAC.

And, the Gov't's pleading, sure helps out Denedo, especially their "forfeiture" argument. First, if CAAF is like "every other federal circuit" something disputed by the Gov't in Denedo, then CAAF arguably has the same "options" as "every other federal circuit."

Second, the Navy moved to Dismiss at the NMCCA, which was denied by the Court - under the rationale of THIS pleading, by not cross-appealing that denial to the CAAF, the Gov't "forfeited" its right to litigate the jurisdictional issue in Denedo.

And lastly, procedural rules can be waived or suspended "in the interests of justice" something else overlooked by this pleading.

Anonymous said...

How would the government cross appeal a motion to dismiss at NMCCA?

John O'Connor said...

"And, the Gov't's pleading, sure helps out Denedo."


Do you really think that the Supreme Court gives two whits about what some government appellate division said in some motion to strike filed in CAAF? I highly doubt the result in Denedo will rise and fall by what Code 46 says in some pleading.

Anonymous said...


While the Supremes will surely never read this pleading, this appellate counsel represents the US government the same as the SG. He should be more careful about what he says.

John O'Connor said...

Anon 2240:

I agree that appellate counsel need to consider that they represent the whole United States, but I don't see anything in the motion to strike that makes me think counsel needed to "be more careful about what he says."

It does not undermine the government's position in Denedo to argue that CAAF should use the reconsideration ruls that are used by every Article III appellate court. The argument that CAAF generally should use the same jurisprudential conventions used in Article III courts is not inconsistent with simultaneously arguing that because CAAF is an Article I court, its writ power is necessarily different and narrower than an Article III court. The idea that CAAF should use ordinary appellate court conventions WITHIN THE CONFINES OF ITS ARTICLE I JURISDICTION strikes me as a perfectly defensible position.

In any event, my point was simply that the government's brief here will have zero effect on Denedo, something with which you agree.

Anonymous said...


Can you cite me the case that states challenges to a court's jurisdiction can be forfeited or waived? I am unaware of that new development in the law that, according to you, now states should a party fail to challenge the court's jurisdiction, the opportunity to do so is now waived or forfeited and the court will enjoy jurisdiction even if the challenge would have been successful.

Anonymous said...

Gov't can't cross appeal to CAAF in this case.