Tuesday, January 13, 2009

Reconsideration petition filed in Rodriguez

On Friday, the defense filed a petition seeking reconsideration in United States v. Rodriguez, __ M.J. ___, No. 07-0900/MC (C.A.A.F. Jan. 6, 2009). I've posted a copy here.


Anonymous said...

Don't hold your breath.

Anonymous said...

I suggest holding your breath.

Anonymous said...

So what do all of you strict constructionist government hacks have to say about that??

Tell me, how do YOU like them apples?

Dew_Process said...

DuBay time = "stall time"

But, what about CAAF Rule 19(a)(1)(B)?

For Gene Fidell: Does the Rule of 2 apply to reconsiderations?

Phil Cave said...

I think this issue is worth following through.

[Disclosure, I write as a former deputy director of Navy Appellate Defense.]

I agree with appellant's argument about how "individual" the representation is within NAD. In fact we've had interesting discussions about how one member of the division must take a position in a case that ultimately will ruin the case of other clients of attorneys within the division.
This is a function I do not believed is experienced in the civilian community where conflict cases are contracted out (and the same at the various trial level offices throughout the services?).

If a decision is sent to a lawyer does it not usually go through the secretary or paralegal (if they have one)? And then does not the paralegal/secretary put it in the lawyers in-box? That lawyer has been "served," even though he or she has not been the one to open the envelope? I don't think that's based on any theory of constructive service? So, why is NAD different? There is a clerk/secretary/paralegal who gets the mail, that mail is then distributed to the persons in-box. So has that lawyer not been served?
So is the prior appellate counsel here now saying that the decision was not received at the division at all and therefore couldn't be distributed to the in-box (that has happened), or is the lawyer saying "his" secretary/paralegal failed to put the decision in his in-box (that has happened)?
Well, to quote Chief Inspector Wilkins, I'm not sanguine, not sanguine at all that the request for reconsideration will be granted and the decision reversed.

I know we've discussed this in other posts, but it seems to me that Rodriguez is unfairly treated when the "system" is built the way it is. I appreciate other commentators who argue that the court can't give a remedy where none is due and can't give an equitable vice legal ruling, but is this the "perception" of military justice we want. I fear this will be fodder for those who will see the insularity of the system as protecting itself at the expense of another "victim."

I use this argument from time to time at the trial level:
It is a bedrock principle of our military justice system that it not only be a fair system of criminal justice, but that it always be perceived as fair. “[J]ustice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 14 (1954)(Frankfurter, J.).

Regardless of the specific procedural issue or place in the process: if a specific action in a given case or set of cases creates a perception of unfairness or lowered standards, the institutional integrity of the system is a risk. The C.A.A.F. "appearance" doctrine was initially developed out of the UCI cases. United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), whether you like and agree with the opinion or not, devolved from the appearance doctrine. The appearance doctrine has expanded into many areas of trial practice. See e.g. United States v. Napolitano, 53 M.J. 162 (2000) (The general focus is "on the perception or appearance of fairness of the military justice system," in a members selection case). And so on.

Not sanguine, not sanguine at all.

Anonymous said...

But, given the way Code 45 operates -- and knowing how equally inefficient Code 46 has been in the past in documenting service -- why did appellate defense counsel ever notify the Court of his "late" filing and concede that it was actually "untimely"? Isn't the defense going to be bound by those concessions at this time, no matter how poorly founded in fact or law they may have been?

Dew_Process said...

Good Catch, ANON 2055:

While a client is generally bound by the admissions of counsel, the one major exception is jurisdiction. It may have been "untimely," but jurisdiction had not yet expired.

Anonymous said...

It seems to me that the court has a duty to determine whether or not it has jurisdiction in every case. I don't see how filing a petition "out of time" can somehow waive jurisdiction. Even if the appellate counsel made a mistake in how he styled the petition, that doesn't mean the court no longer has a duty to determine whether or not it has jurisdiction. I can't cite the case off the top of my head, but isn't it well-established precedent that you can't waive jurisdiction?

Anonymous said...

Anon 2102, I'm pretty sure that Bowles v. Russell says (at least there) that the untimely filing deprived the court of jurisdiction. That is, the time limit itself is jurisdictional.

I predict this petition for reconsideration will be granted. And I am right about 70% of the time.

Anonymous said...

Anon 2116:

Duh. The whole point of the petition for reconsideration is that the filing wasn't untimely.

Dew_Process said...

In Bowles, the time limit and hence, jurisdiction expired by statute, X days after the Court's Order.

Here the statute says the time starts upon service.

CAAF does the same thing. They'll issue an Order saying you have X days to respond, and then 3 or 4 days later, will snail mail a copy to you. So, if you're not careful and look at the date the order was signed versus date of receipt, you bite the BIG ONE.

Anonymous said...


Except that anytime CAAF gives a deadline in an order, it's not statutory (as in Bowles and Rodriguez) and therefore isn't jurisdictional.

Dew_Process said...

ANON 2134 - I know, but you then have to file a motion to file out of time... blah blah.

It used to be that way for Petitions!

Mike "No Man" Navarre said...

I think, to answer Phil's question, the key is that the prior appellate counsel was a Reservist (USCMR). Thus, as Phil knows, there was no box in Appellate Defense to serve. Someone needed to mail it to him. I am guessing he is contending that did not happen. This is the problem with reservist counsel. Unless someoen on active duty is also on the pleadings, and is tracking the decisions, these cases can get lost in the mix.

Dew_Process said...

No Man - doesn't someone have to sign a "Certificate of Service?" I realize that after all of this time, even if they locate them, who would remember?

I gave up trying to get people to annotate just who it was they served. Makes life SO much simpler.

Anonymous said...

Strict constructionism is a doctrine that only applies to pro-government rulings.

Now CAAF will have to use another interpretive doctrine to deal with this Motion to Reconsider.

Dew_Process said...

Meanwhile, out of SCOTUS yesterday:

"Finality is a concept that has been "variously defined; like many legal terms, its precise meaning depends on context." Clay v. United States, 537 U. S. 522, 527 (2003). But here, the finality of a state-court judgment is expressly defined by statute as "the conclusion of direct review or the expiration of the time for seeking such review." §2244(d)(1)(A)."

Jimenez v. Quarterman

Thomas, J, for a unanimous Court.

Check out fn. 4:

"[W]e merely hold that, where a state court has in fact reopened direct review, the conviction is rendered nonfinal for purposes of §2244(d)(1)(A) during the pendency of the reopened appeal."

How is that any different that the N-M CCA's "reopened" Deneod's direct review to see if there was IAC? And then decided that there wasn't?

Anonymous said...


I have been up late reading Jimenez v. Quarterman, 555 U. S. ____ (2009), too, the Supreme Court’s latest decision on timeliness of appeals.

Jimenez contended that his appeal was timely because the date on which his judgment became “final” could be postponed by a state court’s decision during collateral review to grant a defendant the right to file an out-of-time direct appeal. In Jimenez, the Supreme Court agreed, holding that where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not yet “final” for purposes of §2244(d)(1)(A).

I think this helps Denedo a lot and even helps Rodriguez a little.

Jimenez helps Denedo because the Supreme Court did not question the State Court's power to "reopen direct appeal."

Jimenez helps Rodriquez, too, because, even with a "statutorily defined" 1-year habeas time-limit, the SC still allows inferior courts to define their own terms, rules, and deadlines. Some of that time did not count, and Rodriquez could supplement his Motion to Reconsider by pointing to the flexibility demonstrated in Jimenez.

Dew_Process said...

I agree on both cases, especially on Denedo. If N-MCCA says, "hey, we're going to re-open Denedo's appeal to see if there was IAC and a provident plea," how's that different from here. Then they do and say, "nope, no IAC and no problems with the plea."

CAAF clearly has jurisdiction under Art. 67 to review that decision.

If I'm Denedo, I'm thinking I would make a Motion to "remand" Denedo back to the CAAF to have them consider Jimenez and its effect if any on Denedo. They may not grant the Motion, but it will at least get them thinking about it.

Rodrieguez needs to cite Jimenez ASAP as "supplemental authority."

Anonymous said...

Why weren't any of the facts or arguments presented in the motion for consideration presented in the original motion to file out of time or, at least, the appellant's brief -- and why doesn't the motion for reconsideration address this question?

Anonymous said...

Anon 0829, why should the petition address that question? Does any CAAF rule or case law require that a petition for reconsideration include that info? What difference does it make why it wasn't previously raised?

Anonymous said...

0840 Anon,

The Court's rules 31 and 32 do place on the movant the burden of stating "with particularity the points of law or fact which, in the opinion of the party seeking reconsideration, the Court has overlooked or misapprehended...."

When all the facts or arguments relied upon by the petition were in existence at the time of the original brief, if not even the time of the original motion to file out of time, I think it's only natural to ask why they weren't submitted earlier -- and, in my opinion, it's a mistake not to address that question upfront in the petition for reconsideration.

For what it's worth, I'm not getting a good overall impression of the defense in this case. Understanding that there may be constraints of which I'm not aware, I think there's an unfavorable appearance of the defense that's emerging: ineptitude, or even (I regret to say) disingenousness.

I do not intend this to be an aspersion against the character or motives of the defense; it's intended only to be a comment on an appearance which I believe has been created by the defense's choice of strategies and tactics.

I think this appearance could be addressed by trying harder to bring more order and clarity to the defense's advocacy. Even at this late point, I'm not at all sure what the defense is actually alleging. It seems to have gone from a concession that the petition (factually and legally) was "untimely", to an argument that the government has never sustained its burden of proving that it was "untimely, bordering maybe even on an allegation that the petition all along has actually been "timely".

Anon 0829

Anonymous said...

Anon 0829:

"Even at this late point, I'm not at all sure what the defense is actually alleging."

It seems pretty straightforward to me. The defense is saying the government hasn't shown that appellate counsel was served in accordance with Article 67. Your only confusion seems to be a curiosity why this wasn't raised earlier. And since the rules you cited, 31 and 32, clearly don't limit reconsiderations to situations dealing with newly-discovered information, I can't see why the defense should care about satisfying your curiosity.

Anonymous said...

Anon 1225:

It's not a matter of satisfying my curiousity, it's a matter of addressing issues raised by the conduct of the defense itself which I believe affects the coherence and, frankly, the credibility of its claims and which ultimately could undermine the effectiveness of its advocacy.

For example, I know appellate DC has disagreed with the accuracy of CAAF's opinion, but the opinion nonetheless states that there "is no dispute in this case that the petition for grant of review was filed outside the sixty-day period". Not even the dissenting opinions seem to take exception to that statement in the majority opinion.

Assuming the Court was actually mistaken, how could each of the judges apparently make that same mistake, without some reasonable basis in the record? Isn't it just possibly because defense did not present the facts and arguments upon which are now relied upon to support the motion for reconsideration?

Also, the defense itself apparently represented to the court that the "petition for grant of review [was] out of time by thirteen days" because "Appellant did not contact the Appellate Defense Division of the Navy-Marine Corps Appellate Review Activity until September 27, 2007 in order to express his desire to appeal his case to this Court."

But, if defense counsel or the accused did not know whether or not they had been properly served, how could they have known the petition was 13 days out of time, i.e. how could they have known how late it was, if they didn't even know even whether the clock had started yet?

Was it because the defense had not fully investigated the matter at the time the motion to file out of time was submitted? Fine, but what when the brief was filed? When argument was made?

There may be all kinds of good explanations -- including the possibility that the defense just screwed up -- but the defense hasn't proffered a single one, as far as I can tell.

Again, given the prior history, I think it's a mistake now not to address these questions upfront, and I suspect it won't be just me who's curious about the answers, but the Court as well.

Anon 0829

Anonymous said...

Ultimately none of that matters. Either the petition was or was not untimely, and the court either had or didn't have jurisdiction. WHY this wasn't raised earlier is irrelevant. It doesn't affect the analysis of this issue. So why should the defense offer an explanation?

Anonymous said...

I agree the only thing that matters (in light of the majority opinion) is whether the petition was timely or not. But why did the defense ever concede it was untimely, when now they're claiming it was untimely? It's the "elephant in the room", and I've never found it effective at trial or on appeal to just ignore these things.

Anonymous said...

Dew, under Rule 31(d), "[a] petition for reconsideration shall be granted with the concurrence of a majority of the judges who participated in the original decision." See generally CAAFR Guide 180, 183 (12th ed. 2006).

Dew_Process said...

Thanks Gene - good point. Always start with the Rules themselves. Duh, mea culpa.

Anonymous said...

First, there may be a difference between the defense “conceding” that that the petition was received on Day-73, counting from government delivery – and “conceding” that the government delivery was done correctly. Therefore, the purported “concession” may come down to a misunderstanding, where the court (and other observers) is coloring-in a subtle point.

Second, and this is admittedly a guess, but I suspect that the appellate defense counsel in this case was stuck between zealously representing his client and not throwing his division under the bus. There are probably some administrative holes in the appellate defense system, especially when it comes to case turnover, and it’s likely that Rodriquez fell between one of these cracks. So my guess is that the ADC tried to “split the difference” in his first argument by glossing over the administrative flaws…which are arguably attributable to the big-G government anyway…but are definitely attributable to the leaders who write his Fitness Report. It’s not easy for a Lieutenant to say that his O-6 or O-5 bosses, who write his Fitness Report, are not good case managers – or at least do not proactively think through their case management system. (I’ve heard from a secretary at Code 45 that the division tries to run its letter-writing program on auto-pilot, with little attorney participation in the process, despite the frequent “crashes” – a greater than 20% postage return rate) But after CAAF’s decision, the ADC had to choose: client or Navy? He chose right and his motion states his role correctly.

But here’s the problem – the ADC can’t pull-his-punches anymore. His motion to reconsider is too weak. Its “defensive” in nature – “don’t blame me, I’m just the ADC.” He needs to come out on the offense and aggressively indict the case management system of appellate defense (whining and complaining as his client would) and attribute the bad case management to the Government – a la Diaz, Moreno, etc. If necessary, the current ADC will even have to IAC the prior ADC for failing to sever his relationship with Rodriquez; failing to monitor N-MCCA decisions – especially when he had outstanding cases at-panel; or failure to communicate with his client about court timelines, status of the appeal, etc.

Third, I tend to agree with those who see a problem in re-casting this argument so late in the process. The suggested response that CAAF “rules” don’t require a new discovery of fact or law is a bit too trite.

Eugene R. Fidell said...

It's admittedly an awkward situation to raise the issue after the Court has gone on record on the larger question of whether the time limit is jurisdictional, and hence the earlier ruling may prove to be good only for the future. But if there is an issue, as there seems to be, when applying the now-recognized strict limit to this particular case, I would think the Court would entertain the petition for reconsideration and rule on whether this petition was timely. The burden of showing untimeliness would typically be on the government, raised by motion to dismiss, although the Court itself could note apparent untimeliness from the record and enter an order to show cause, putting the burden on the defense. But whether reconsideration should be granted should not turn on who had/has the burden of proof; the Court is on notice that there's a substantial issue and it ought to hear fully from both sides before deciding the timeliness-in-fact question. A good case for reargument.