Tuesday, January 06, 2009

BREAKING NEWS: Rodriguez is out

3-2 opinion holding no jurisdiction to consider untimely petition. Here's a link. More later.


Anonymous said...

OMG!!! CAAF restricting its own jurisdiction. Is the sky falling?

Cloudesley Shovell said...

I think the practical effect of this decision will be negligible. A petition for grant of review is a boilerplate one-page document, per CAAF Rule 20(b). Counsel can just file a petition within 60 days to preserve the client's rights, and if the client later decides to drop the appeal, the client can do so.

Whether this decision foreshadows a move away from from the paternalistic "supervision of military justice" approach is another matter. We shall see.

Footnote 11 seems to indicate that there is no time limit at all (other than Art. 71 and 76 finality) for a JAG certification per Art. 67(a)(2).

One wonders if a certain judge's view on mandatory time limits was presaged by the dissent in US v. Luke, 63 MJ 60 (CAAF 2005).

Anonymous said...

Cloudsley beat me to the punch regarding footnote 11. It is interesting to note that the Court Rules (which we now know are not jurisdictional) require certification by TJAG within 30 days of the CCA decision. Rule 19(b)(3). Footnote 11 seems to imply that the 30 day limit is not only irrelevant, but that an accused could circumvent the jurisdictional 60-day limit on his own appeal by convincing the TJAG to certify an issue (as unlikely as that will be to ever actually happen).

Dew_Process said...

This is a classic case to petition for reconsideration. There are several reasons, notably the major change in military practice that this case represents, as fairly documented by the Dissent.

I think that the CAAF should first remand back to find out the specific facts for the delay, first of all. Second, the prevailing "good cause" opinion of the Appellate Defense Counsel. Finally, to avoid a Writ of Error Coram Nobis and malpractice issues.

One issue that I personally have had is that ethically, as an attorney, I must preserve my client's options - and to insure no harm comes from my actions or omissions. In the State arena - for those of you in private practice, jurisdictions are all over the place. We are required to file a Notice of Appeal within 30 days - and that is jurisdictional. But, there's also a provision for seeking Permission to file a late NoA within one year, "for good cause." NOT being in communication with your client is NOT good cause under our jurisprudence. The rule is simple, you file the NoA and after filing if the Accused does not want to proceed with the appeal, you move to dismiss.

That having been said, I don't necessarily disagree with the majority - only that this is a drastic change in practice that I suspect "blind-sided" Appellate DC. But, it shouldn't have under CAAF Rule 19(a). And Cloudesley is exactly right. How difficult is it to file the petition?

Does anyone know why there was a communication problem? If the Appellant was in confinement, the federal courts have a different way of computing "time" and perhaps that may have been relevant here. Or, why isn't it presumptive that someone who appeals on the merits to a CCA, if they lose, isn't going to want to appeal to the CAAF if they can - especially if it's for free??

And, I suspect that the government will oppose cert if they seek "clarification" from the Supremes...

Anonymous said...

If Art 67 are personal rights of the accused and the petition is discretionary in nature, doesn't the attorney have an obligation to get the consent of the client before filing?

Anonymous said...

Appellants are often represented at CCA by reservists. When an appellant contacts Code 45 following notification of the CCA decision, he is then detailed active duty counsel. Chances are that in this case, Rodriguez's active duty appellate defense counsel wasn't even detailed to the case until after the 60 days had expired.

Dew_Process said...

Anon 1547: Good question and I'm gong to incorporate this into my Ethics lecture, but it's really apples and oranges.

When Appellate Defense Counsel is assigned (or retained), they have a general obligation to inform the client about the nature of the appellate process, i.e., how it works, and what rights the Accused-Appellant has during this process.

Counsel should also find out the client's "goals" to the extent that they may be relevant, e.g., get out of jail ASAP, or "bust the BCD" and act accordingly. And for those still claiming innocence, pursue those issues with vigor at the CCA's.

Time limits, such as the 60 day limit for Petitioning CAAF should also be noted and explained at the beginning of the process, not "down the road." You have an ETHICAL duty to protect the interests of your client, compare, ABA Standards, Defense Function, Std. 4-3.6, "Prompt Action to Protect the Accused."

You can then handle your perceived dilemma two ways: (1) tell the client that unless s/he "limits" your discretion in some way, that you will do "all things necessary" to perfect his appellate rights, and if the client agrees, there is your "consent." Or (2) consistent with ABA Standards, the Defense Function, Std. 4-8.2(b), there is "implied consent" to "take whatever steps are necessary to protect the defendant's rights of appeal."

All of that can easily be done on a Form that you have the client read, initial and sign and then put into your file.

Many States have ethical requirements mandating the above.

Code 45er - if that in fact is true (aside from being a major "management" problem), there's another reason to ask for reconsideration from CAAF. How many post-trial processing cases refer to "continuity of representation?"

The client "loses" because of INSTITUTIONAL failure? Congress surely did not intend THAT result!

The Genuis said...
This comment has been removed by the author.
The Genuis said...

Dew and 45er make great policy points. So, Congress should amend Article 67 in light of this opinion. But courts don't get to ignore SCOTUS precedent just because its faithful application leads to harsh results. We don't even get to the interesting policy and legislative history issues when the statutory text is unambiguous, as it is here. If the results that follow from applying the statute as written are unpalatable, it's Congress' place to react accordingly. CAAF found judicial restraint. What's the problem?

Anonymous said...

Re: The Genius, two pretty well-qualified judges disagree that the text is unambiguous. Perhaps they lack your genius.

The bigger picture -- CAAF's GOP bloc will insist on "plain language" text from Congress because they don't want to hear the cases and have found a questionable way to avoid them in a case about the Federal Rules of Civil Procedure (and all the accompanying politics about too much CIVIL LITIGATION), and if Baker/Effron are right about Congressional intent (and I wager that Democrats are right about Democrats), Congress will spell it out for them and render this decision a nullity.

The theoretical legal consequence, as Baker points out, is theoretically that the Article III courts will be jammed on collateral review and yielding inconsistent results. The real consequence for real people in real confinement is that there is no relief and the courthouse door is closed.

Dew_Process said...

Genius - I don't necessarily disagree. But, the problem is to Rodriguez, who gets screwed because his lawyers appear to have relied upon 50 years of "practice" allowing late filings and holding them non-jurisdictional.

As Judge Baker's dissent notes, "appellants will seek appellate review through the habeas Article III process, including any claims of IAC that might pertain to the failure to timely file a petition." I would say that it is per se IAC.

Having just re-read Bowles, there are at least two flaws in relying on it in the CAAF context. First and foremost, Bowles was a CIVIL appeal, not a criminal appeal. Second, the statute at issue in Bowles, 28 USC 2107, is the CIVIL appeals provision for direct appeals from District Courts to the Courts of appeal. But, even that statute has a provision to "extend the time for appeal upon a showing of excusable neglect or good cause." Sec. 2107(c).

The facts in Bowles were thus ignored by the Majority in Rodriguez, as Bowles FIRST missed his initial deadline, but then convinced the Court "good cause" existed and the Court granted it.

The problem in Bowles was that the Court's notice to Bowles as to his "new deadline" was erroneous - the date in the Court's letter was beyond the 14 days in the statute, e.g., 17 days. Thus, the statutory language is indeed important: i.e., the Court MAY

"reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal."

In view of the fact that Bowles had already blown the initial statutory time, but then convinced the court of his "good cause," SCOTUS in a 5-4 decision, said that "judicial error" [notably not error of counsel], could not serve to extend the clear 14 day limitation in the Statute.

Bowles was granted the very relief that Rodriguez was denied - "good cause" for a late filing.

The Genuis said...

Anon 17:02,
The "real consequence" from this opinion will be that the O-6 division directors at the service DAD's will take greater care that petitions are timely filed, rather than risking repeated visits to the TJAG asking for certification and having to explain why the attorney's under their care can't seem to file a one-paragraph document on time. The "real consequence" from this opinion will be that the current counsel assignment practices are modified, so that appellants' rights don't fall between the active duty/reserve counsel cracks. The "real consequence" of this opinion will be that military appellants' interests will be better served, starting today.

And if a Democratic Congress obviates the decision, so much the better. That's the system working.

Again, what's the problem?

Anonymous said...

At least now the CAAF can dismiss some improvidently granted cases and maybe even hack away at its massively overcrowded oral argument schedule. :-D :-D

Anonymous said...

Just to throw some gas on the flames here, Judge [Colonel, USAFR, JAGC] Stucky had a close relationship with now Colonel Fiscus! It's on the Fiscus website. What's not there is that "General" Fiscus re-appointed Judge Stucky to the AF CCA.

I mean, if politics have any meaning!

Jeff Stephens said...

I think that Judge Baker pointed to the big problem from this decision: appellants are going to be left with no recourse but Federal habeas suits for IAC of appellate defense counsel who fail to notify them in a timely manner of the outcome of their CCA appeal and fail to file petitions on time. In my first year at Code 45, I used to cringe when I got the NMCCA decision letter back due to a bad address for an appellant. I frequently got these letters back over a month after they were sent out and I would have to scramble to notify appellants by telephone to determine if they desired to petition their case to CAAF. Our system for tracking appellants was horrible, and many appellants would have their paperwork forwarded from a brig back to their original command, and then--if they were lucky--to their home address. Add to that the confusion that happens when counsel rotate out of appellate defense and you have unforeseen delays that may result in appellants not being informed of the results of their CCA appeal until after the 60 day time limit has expired.

More recently, we have had appellate defense counsel who told appellants that they would not file CAAF petitions on their behalf because the appellate defense counsel viewed the case to have no merit. Again, if they miss this 60 day window, appellants may have no recourse for this kind of IAC but Federal habeas suits. This seems to pull the teeth somewhat on U.S. v. Grostefon.

Anonymous said...

If the defense does not like the outcome they should approach Congress and have them clear it up. That is the advice the defense always seems to give the government.

Anonymous said...

The practical fallout will be sweeping changes (professionally and administratively, e.g. client tracking) at the appellate defense codes. That's not necessarily a bad thing.

Phil Cave said...

1. Navy TJAG has certified cases on behalf of appellants, although not many. CAAFLog should be able to confirm.

2. It's an (abhorrent) Navy practice at trial for the client to be counseled to, and to sign, a "power of attorney." There is a power of attorney, then should the appellate counsel file to preserve, even if it's a merits filing. Definitely if there were issues briefed at the CCA.

3. IAC of appellate counsel? Someone should have been watching the docket, regardless of reservist or active duty. "[W]e do not wish to make [an] appellant suffer for the omissions of the lawyer." United States v. Ortiz, 24 M.J. 323, 324 (C.M.A. 1987).

4. Why did it take that long for "appellant" to express his desire to appeal. Did he get properly notified of the decision? What steps were taken by appellate counsel to contact and consult with the client? I see counsel didn't have any problem throwing the client under the bus. See Effron's dissent.

5. Is this an impact of Diaz, appellate counsel so overloaded they can't track cases?

Anonymous said...

Was it unethical for appellate defense counsel to have alerted the Court and the government to the fact that he was filing out of time?

Anonymous said...

I don't think it was unethical for the DC to put that in his petition for grant of review. Nor do I think it made a difference in terms of alerting anyone. It is no secret all of the GADs and the Navy Marine Corps in particular have been seeking to narrow CAAFs jurisdiction. Code 46 had filed dozens of oppositions to untimely petitions.

Dew_Process said...

Anon 1948: No. You always have a duty of candor to a Court. Especially here, as there was going to be an almost certain government motion to dismiss because of the late filing.

Counsel took the better approach ethically by noting the lateness and then arguing "good cause," relying on the "non-jurisdictional" precedents.

Maybe he didn't argue "good" enough, but that's another issue, and should NOT be considered as an ad hominem attack on the poor Appellate Counsel.

Eugene R. Fidell said...

What are the implications of this decision for continuing to entertain petitions where the supplement identifies no issues? Will one of the appellate government divisions now [finally?] move to dismiss a "merits" petition?

Phil Cave said...

1. I think you have an ethical obligation to tell the court you are filing out of time. And then come forward with facts and argument as to why the court should accept the case.

2. My issue here is what appears to be a dearth of facts on why the case was filed late. I appreciate that appellate cases when published don't always put all of the facts in there. But getting a complete recitation of facts seems critical to deciding fault. All we know here is that the appellant didn't tell his counsel to file until a particular date. (And of course that might be there is.) If the appellant was timely notified and he sat on his "duff" and then got in late that might be one point. But if, as sometimes happens, the appellant was uninformed (let's say he had an accurate mailing address on file with NAMALA) and through no fault of his own he didn't get the mail (or phone calls from his appellate counsel), should that limit his access to the court? So what if he didn't get the mail until 27, or even 28 September (though no fault of his own) and immediately called and said file. Should that make a difference? Based on the grant it does appear he had at least one issue that was litigated before NMCCA. But see, the dissent on constructive notice.

3. And to go back to Cloudesley. Here the appellant had at least one issue he litigated before NMCCA. Not having received input from the client, and believing there was at least one non-frivolous issue, why did appellate counsel not file, just in case?

4. Could it help if the court had adopted Judge Bakers note that they are changing 50years of practice by taking Rodriguez's case, and those noted as currently pending, and then saying "no more, after 1 February 2009," or something similar?

Anonymous said...

Mr. Cave-I don't disagree with the approach "You are all on notice now so file timely." However, with this opinion the court had no jurisdiction to do that. In fact, there were several petitions filed post Bowels at CAAF. I am wondering if CAAF gave relief to any of those can the government move to vacate those decisions?

Phil Cave said...

Anon: touche, and I understand your point, but it would of been nice of them to try it my way? And the point you re-emphasize about pending or recently granted cases seems to warrant my approach because of the impact on more than one litigant. To go back to Cloudesley, it would appear the impact may be more than negligible. Did I see CAAF citing three or four pending cases, are you saying there are more lurking out there and they just chose a couple of examples? And do you think AG will go back and ask CAAF to vacate others as improvidently granted or something of that nature? Huuuuum.
I'm not sure, maybe CAAFLog has some case law on whether or not a court can take a case they aren't supposed to, say they've been doing it that way for so long in other cases, that they'll do it this one last time or so, and then we really will enforce the rule.?
I think the variety of responses on this post indicate nothing is as clear cut as people thought/think.
I guess part of my concern is one of perception. Like it or not people have gotten spoiled. It shouldn't be that way, but it became that way. Jerking Rodriguez up as the example, rather than the warning ... well I go back to my point, and respect and understand yours. Take care.

Phil Cave said...

BTW, did anyone notice when Gunnery Sergeant Rodriguez was FIRST convicted -- 1998.
Finality at last?

Publius said...

If a counsel filed a petition late, without asking for permission to do so, it would have been returned by the Clerk of Court.

Gene, as always,raises another interesting question. The CAAF "shall review the record in -- (3) 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." Article 67(a). Apparently, the first judges at CMA decided that to protect the accused they would review petitions submitted without any error alleged and decide if there was good cause somewhere in the record. Now that the system is up and running and it is pretty clear that appellate counsel on the whole do a good job of representing their clients, one wonders why it is necessary to keep reviewing the hundreds of petitions submitted each term without any issue identified by the appellate counsel or the accused.

Phil Cave said...

Publius, you're back.

Publius said...


I am very sympathetic to your suggestion. But how could a court say that it is without jurisdiction to hear a case that is filed late and then say, but we have jurisdiction to hear late cases until 30 days downs the road?

And Bowles was even a worse case. There, the judge told the petitioner he had so many days to file and the petitioner actually filed a day or two early, but outside the statutory period. The Supremes, or at least 5 of them, said "tough luck." The court did not have jurisdiction to hear the case.

Anonymous said...

Well, CAAF makes one step closer to acting like an Art III court. You can't have it both ways. Either CAAF is a court of equity or it is not. I agree that appellants are going to get screwed and doubly so since they can't civilly file a monetary IAC action. However, that appears to be the way Congress wants it.

Publius said...


I never left. I just couldn't take over for Sacramentum at Military Justice Blog-- I don't have the get and go of Colonel Sullivan.

Phil Cave said...

I guess this language from Bowles ought to put me in my place on the prospective rule change:

"If rigorous rules like the one applied today are thought to be inequitable, Congress may authorize courts to promulgate rules that excuse compliance with the statutory time limits. Even narrow rules to this effect would give rise to litigation testing their reach and would no doubt detract from the clarity of the rule. However, congressionally authorized rulemaking would likely lead to less litigation than court-created exceptions without authorization. And in all events, for the reasons discussed above, we lack present authority to make the exception petitioner seeks."
Bowles 127 S.Ct. at 2367.

Anonymous said...

While Bowles is a civil case, the idea that statutory filing periods are jurisdictional is not new, or limited to civil cases. In U.S. v. Robinson, 361 U.S. 220 (1960), a criminal case, the SC held that a 10-day filing period for a notice of appeal was jurisdictional. CAAF is an Article I court of limited jurisdiction. CAAF shall consider cases on petition of the accused, with good cause shown. When may the accused petition? Within 60 days. As Justice Harlan stated in his concurring opinion in Schaat, 398 U.S. 58 (1970), the courts have no authority to "waive" congressional enactments.
There is a legitimate purpose in limiting appeals, to establish finality. As Judge Baker observes in his dissent, appellants that fail to file within the window could petition the JAG or file in an Article III court. I would also note that appellants have the duty to keep their address up to date, so problems with decisions not reaching appellants lie with the appellants themselves.