Tuesday, January 06, 2009

Still more thoughts about today's ruling in Rodriguez

Sometimes CAAF petitions are untimely filed because the appellate defense counsel has dropped the ball. What then?

Some commentators have opined that the servicemember could seek collateral relief for IAC. But not so fast. Putting aside procedural questions about how an appellant who is neither confined nor on parole could bring such a claim, the Supreme Court-recognized right to effective assistance of counsel applies only to the first-level appeal as of right. Evitts v. Lucey, 469 U.S. 387 (1985). Lucey doesn't cover petitioning CAAF because that's a discretionary second-level appeal. Nor have lower courts been eager to find a constitutional right to effective assistance of counsel in a second-level appeal. The Ninth Circuit has flat-out stated that it "is well-established that criminal defendants have no constitutional right to counsel beyond their first appeal as of right, and hence no right to counsel in a discretionary appeal to the State's highest court." Smith v. Idaho, 392 F.3d 350, 356-57 (9th Cir. 2004). So if an appellant who is confined at, say, Naval Consolidated Brig, Miramar has an appellate defense counsel who drops the ball on filing a timely petition at CAAF, he or she is unlikely to prevail in an appellate IAC habeas action.

Nor is the Ninth Circuit alone in this view. The Second Circuit, for example, has observed that Supreme Court dicta "suggest that there is no right to counsel on any appeal beyond a first-level appeal as of right, whether the second-level appeal is discretionary or even of right. That appears to be the way our Circuit has understood Lucey: 'The [Supreme] Court has stated that the right to counsel extends only to a first appeal as of right.' Chalk v. Kuhlmann, 311 F.3d 525, 528 (2d Cir. 2002) (citing Lucey)." Hernandez v. Greiner, 414 F.3d 266, 269 (2d Cir. 2005) (alteration in original).

Nevertheless, a successful habeas challenge isn't completely unthinkable. A federal court can sometimes issue a writ of habeas corpus due to the violation of a federal statute in addition to the violation of the United States Constitution. 28 U.S.C. § 2241(c)(3). A good argument could be made that a military appellate defense counsel dropping the ball in filing a petition at CAAF violates the client's rights under Article 70. And there would certainly be good cause in such a case for not having pursued the claim before the military appellate courts, thus potentially removing such a habeas petition from the normal waiver/full-and-fair-review Catch-22 in which military habeas petitioners generally find themselves. But it still seems like quite an uphill battle.

Nor could the client successfully sue either the counsel or the service for monetary damages since any such suit would be Feres barred.

The majority's opinion did point to one potential escape hatch: in a case where an injustice might arise due to a petition's untimeliness, the relevant Judge Advocate General could ask CAAF for permission to certify an issue out of time. See Rodriguez, slip op. at 16 n.11. Since the 30-day certified issue deadline is rule-based rather than statute-based, Bowles v. Russell would allow CAAF to suspend its rules to authorize an untimely certified issue.

Is that a sufficient escape hatch? Or is more needed? Should Congress expressly amend Article 67 to authorize CAAF to accept an untimely petition for good cause shown? (In footnote 10, the CAAF majority notes a potential discrepancy between civilian criminal appellants' ability to pursue untimely appeals and military justice appellants' ability to do so and observes, "[T]hat apparent inconsistency is an issue for congressional consideration." Rodriguez, slip op. at 16 n.10.) If Congress were to authorize CAAF to accept untimely petitions, should there be any hard time limit beyond which CAAF couldn't exercise jurisdiction? These questions don't suggest any obvious answer to me.


Anonymous said...

Dwight, us v Luke is pending at NMCCA remanded from Caaf, its the UISACIL CASE, where CAAF granted an untimely petition for a new trial as a result of newly discovered evidence, Mill's indiscretions. The case was then remanded for Dubay hearing, then remanded to NMCCA, from NMCCA REMANDed for another Dubay hearing into USACIL's TArdy investigation of Mills work? Judge Erdman, I believe dissented when caaf granted relief back in august 2006. Do you believe this ruling(Rodriguez) was precipitated by Erdman's dissent?. Since the petition for a new trial in luke is presented on a on Murphy footing, do you see code 46 moving for reconsideration in light of Murphy as a viable option?

Let me admit I am a non-lawyer here, so please if you would expound upon Bowles, after reading Bowles extensively. I concluded that it addresses civil litigation (appeals)as it relates to its acceptance by art 111 courts when the petition is untimely. Is'nt there a distinction between an untimely appeal and a Murphy petetion for a new trial based on newly discovered eveidence?

Anonymous said...

Regarding the potential for collateral appeal or TJAG certification- it has been my experience that when there are substantive issues to be raised, appellate counsel are aggressive in filing. The cases that linger are those that will be filed at CAAF pro forma. If no issues to be raised, nothing but the clients Grosty matters are lost. Not much harm there.

Anonymous said...

I think this opinion will have little, if any, negative effect on appellants because I think the ones with meritorious issues will be diligent in their pursuit of the appeal or their attorneys will be. For the handful (maybe) of meritorious cases that get caught up with this case, I think the TJAG certification option will work if the appellate attorney raises the issue in the proper manner, i.e., not sending a terse request directly to the TJAG.

My big picture thought: this decision is a GOOD thing for appellate practice b/c (hopefully) it will clean up some of the sloppiness I think all the services engage in. A deadline is a deadline is a deadline. Treat it as such and SET UP SYSTEMS TO AVOID PROBLEMS WITH DEADLINES. As much blame as we want to place on the O-3's who handle these cases, I place equally as much on the leadership in each of the appellate shops for not developing adequate systems to prevent these lapses. When I was in an appellate shop, I was constantly amazed at some attorneys' attitudes regarding deadlines. They thought it was no big deal if they asked for multiple extensions or missed a deadline - just file a "motion to file out of time" and all is forgiven. No, no, no! Such actions should be the rare exception.

Anonymous said...

I whole-heartedly agree with Anon 0748 hours' take on the importance of meeting deadlines. While there are sometimes legitimate reasons for asking for enlargements of time, expecting routine approval of enlargement requests shouldn't be the default. The Air Force's Appellate Government office went something like 18 months without asking for a single enlargement of time just a few years ago. That included filing briefs of over 100 pages (before the imposition of page limits), covering a dozen or more issues in attempted murder cases. When the boss sets the standard that the office will file timely briefs, absent some highly unusual circumstances, the worker bees take note and deliver.

Anonymous said...

I'm done with Grostefon CAAF petitions then. Screw them.

Dew_Process said...

Dwight - if there's no "restraint" sufficient to authorize a habe, you can seek a writ of error Coram Nobis for IAC of Appellate Counsel.

Our esteemed Phil Cave, in Fischer v. Commander, RCF, 56 MJ 691 (NM CCA 2001), attempted just that, but lost on the merits. In another Navy case, then SJ DeCicco authored the opinion in Ross v. US, 43 MJ 770 (NM CCA 1995), granting Coram Nobis:

"RMSN Ross has waited 10 years to have his case reviewed on appeal, and now it is clear that it will never be reviewed. He has not waived or withdrawn his appeal. These are exceptional circumstances which require extraordinary relief. We know of no other appellate process or administrative action he can pursue to address this matter."

Anonymous said...

Ama Goste,

That may or may not be impressive depending on the caseload of each counsel at the time.

Care to elaborate?

Dew_Process said...

PS - Tillman v. US, 32 MJ 962 (Army CMR 1991), is actually a better case.

"He contends that the ineffective assistance of appellate counsel deprived him of a proper review before this court . . . We agree, and grant appropriate relief."

"The original appellate defense counsel, CPT X, did not personally contact the petitioner during the pendency of the appeal before this Court. CPT X sent all correspondence as a matter of routine to the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, and submitted the case to this court “upon its merits.” This court affirmed the findings and sentence."

"It is inconceivable to us that CPT X could attempt to represent an accused on appeal without taking reasonable steps to discuss the case with his client and notifying him that the case would be heard before this court. See Dep't of Army, Pam. 27-26, Rules for Professional Conduct for Lawyers, Rules 1.3-1.4 and accompanying comments (31 Dec. 1987); see also ABA Standards for Criminal Justice, Standard 21-3.2(b)(i) (2d ed. 1980 & Supp.1986), concerning discussions between appellate defense counsel and their clients."

"The failure to receive a full review before this court with the effective assistance of appellate defense counsel deprived the petitioner of a substantial right. See United States v. Hullum, 15 M.J. 261, 268 (C.M.A.1983) (ineffective assistance of appellate counsel is not an inconsequential deprivation of a right; failure to brief and argue sentence appropriateness before the Navy-Marine Court of Military Review was ineffective assistance of counsel where the accused had a nonfrivolous issue that had been asserted at trial)..."

Dwight Sullivan said...


Assume that the US wins Denedo. I think that would cut off the inter-service error coram nobis route. What routes would then be available to an unconfined, not-on-parole former servicemember whose appellate defense counsel dropped the ball?

Dew_Process said...

The US could "win" Denedo in a couple of different ways - expansively by them saying that under federal jurisdictional statutes and F.R.Civ.P. that they are no longer going to recognize the Writ of Error Coram Nobis, and thus the NM CCA didn't have jurisdiction to entertain the writ. That would really screw up federal procedures - but the federal case law on that, to include SCOTUS cases is probably too great to ignore.

Rather, it could be as I predict the SG's office will argue, that non-criminal collateral consequences do not trigger "extraordinary relief" in the military a la Goldsmith, even though the issue is the IAC of counsel at trial.

That's their obvious goal, to curtail "relief" by the military courts even though the Legislative History of the UCMJ at some point, specifically discusses coram nobis.

The effect if they just take the more limited route will force anyone in that position to seek relief in the federal courts - something that is hardly in line with CJ Roberts, we need more judges, request due to case loads, etc.

The case could also be mooted if the policy is changed so as not to apply the changes in immigration law that triggered Denedo's problems, retroactively.

Paul said...

I really don't see a spike in federal collateral attacks post finality as the cost would be prohibitive to many appellants. THat and the fact that federal courts are much less likely to open the door to such attacks in general.

Anonymous said...

Toussaint - they do it pro se and if there's any merit the Court assigns counsel. Most Districts have a "Pro Se" clerk who "assists" them in filling out the pre-printed forms. And, there are various legal aid types of resources for post-conviction relief around.