Appeals Category Archives — Page 2 of 6 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Military ineffective assistance of counsel

February 21, 2023 | The Law Office of Philip D. Cave

In the context of a court-martial, ineffective assistance of counsel refers to a claim by a military defendant that their defense counsel provided them with legal representation that fell below an objective standard of reasonableness and that this deficient representation prejudiced the outcome of their case.

Under the Uniform Code of Military Justice (UCMJ), military defendants have the right to be represented by counsel at trial. If a defendant believes that their defense counsel provided them with ineffective assistance, they can raise this claim on appeal. The standard for evaluating claims of ineffective assistance of counsel in a court-martial is the two-part test established in Strickland v. Washington, a case decided by the U.S. Supreme Court in 1984.

Under the Strickland test, the defendant must show that their counsel’s performance was deficient and that this deficient performance prejudiced the outcome of the trial. Deficient performance means that the attorney’s representation fell below an objective standard of reasonableness, and prejudice means that there is a reasonable probability that, but for the deficient performance, the outcome of the trial would have been different.

Military Coram Nobis

February 17, 2023 | The Law Office of Philip D. Cave

A “coram nobis” appeal is a legal procedure used to challenge a criminal conviction or sentence after all other legal avenues for relief have been exhausted. It is a form of post-conviction relief available in some U.S. states and federal and military courts.

Coram nobis appeals are generally limited to situations where there is newly discovered evidence that was not available at the time of trial or sentencing or where there was a fundamental error in the original trial that has since been revealed. The appeal aims to correct errors that would have changed the outcome of the case if they had been known at the time of the original trial.

The jurisdiction for coram nobis appeals varies depending on the jurisdiction where the original conviction occurred. In some states, the appeals are filed in the same court that originally heard the case, while in other states, they are filed in a higher court. In federal court, coram nobis appeals are filed in the same court that originally heard the case, and the jurisdiction is determined by the location of that court. In courts-martial, a coram nobis petition is usually filed with the court of criminal appeals.

Double Jeopardy

February 6, 2023 | The Law Office of Philip D. Cave

A person being tried at court-martial may have their case dismissed before the members (jury) reach any findings. One way that can happen is when the military judge declares a mistrial. Your military defense lawyer should know what to do if the same charges are re-referred to a court-martial–the prosecution taking a second attempt to convict you.

In a recent case, we had that happen. Unlike uniformed defense counsel, we immediately filed a Writ of Mandamus and Prohibition to prevent the second trial. In Murillo, the Navy-Marine Corps Court of Criminal Appeals has agreed that (1) the court has jurisdiction to hear a Writ petition on this issue and (2) the military judge erred in declaring a mistrial. Thus, the court has dismissed the charges. (As of 5 Feb., we do have to wait to see if the prosecution will appeal that decision.)

The Double Jeopardy Clause‘s whole concept is to protect the accused from a second or subsequent trial on the same charges. The trial itself is what is prohibited. The case is United States v. Murillo, No. 202200132 (N-M Ct. Crim. App. Feb. 3, 2023) (unpub.). The Double Jeopardy Clause is in the Fifth Amendment to the US Constitution, which says, “No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . . ” The bar against double jeopardy comes from English common law, possibly from Roman law. See F. Ward, Double Jeopardy Clause of the Fifth Amendment. 26 Am. Crim. L. Rev. 1477 (1989). Ward points out that a double jeopardy challenge can be waived by a pretrial agreement because of a Supreme Court decision in United States v. Broce. The author suggests that the military judge should include in their inquiry about whether a waiver is knowing and intentional and whether the defendant understands that waiving the right to trial as part of a plea agreement is also waiving the double jeopardy claim.

Grazioplene redux

July 9, 2020 | The Law Office of Philip D. Cave

CNN reports,

See also, https://connectingvets.radio.com/articles/retired-army-general-james-grazioplene-stand-trial-rape-charges-army-dismissed

https://taskandpurpose.com/news/retired-army-general-rape-charges

Case of interest

November 28, 2019 | The Law Office of Philip D. Cave

From time to time I bring attention to a civilian case that may be of interest to practitioners. Mostly these are post-CAAF cases arising from the USDB. So today I have Coleman v. Commandant., decided 22 November 2019, in the USDC Kansas.

This matter is a pro se petition for habeas corpus filed under 28 U.S.C. § 2241. Petitioner was granted leave to proceed in forma pauperis. Because Petitioner is confined at the United States Disciplinary Barracks in Fort Leavenworth, Kansas, this matter was transferred to this Court from the District of North Dakota. Petitioner seeks to set aside his 2012 conviction by general court-martial, based on the holdings in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) and United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017).

Petitioner, a former active duty member of the United States Air Force, was tried in September 2012 by general court-martial at Minot Air Force Base, North Dakota. Contrary to his pleas, Petitioner was convicted of one specification of rape, three specifications of aggravated sexual assault, and one specification of forcible sodomy, in violation of Articles 120 and 125 of the Uniform Code of Military Justice (“UCMJ”), 10 U.S.C. §§ 920, 925. Petitioner was sentenced to a dishonorable discharge, confinement for twelve years, forfeiture of all pay and allowances, and a reduction to the grade of E-1. On March 1, 2013, the convening authority approved the sentence.

Nullification of PTC credit

June 16, 2019 | The Law Office of Philip D. Cave

An accused in pretrial confinement awaiting trial receives day for day credit toward any sentence to confinement. In the old days, we referred to that as “Allen credit.”

Note, an accused may not automatically get credit for time spent in civilian jail–that needs to be litigated at trial. See United States v. Harris, __ M.J. ___, 2019 CAAF LEXIS 361 (C.A.A.F. 2019).

Which brings us to United States v. Howell, NMCCA, 2019. On appeal, Howell argued that the prosecution wrongly argued to nullify his pretrial confinement credit.

Supreme events

September 18, 2018 | The Law Office of Philip D. Cave

SCOTUSBlog reminds us of some upcoming criminal law cases in the coming term. While generally interesting, the case to watch is:

In Gamble v. U.S., the court will consider whether to overrule the “separate sovereigns” exception to the double jeopardy clause of the Fifth Amendment, which provides that “[n]o person shall … be subject for the same offence to be twice put in jeopardy of life and limb.” The common understanding of this awkwardly written clause is that a person may not be tried twice for the same offense. But despite the absolute-sounding nature of the constitutional text, the Supreme Court has ruled for well over a century that the clause allows “separate sovereigns” to each try a single defendant for what sure sounds like the “same offense.”

Taking that Hills

August 29, 2018 | The Law Office of Philip D. Cave

This case is before us for a fourth time. The petitioner, a former service member, seeks extraordinary relief from this court in the nature of a writ of error coram nobis or, in the alternative, in the nature of a writ of audita querela, under the All Writs Act, 28 U.S.C. § 1651(a). The petitioner avers that his appellate defense counsel were ineffective in representing him by failing to raise as error Military Rule Of Evidence (Mil. R. Evid.)413, Manual for Courts-Martial, United States (2005 ed.) issues raised at trial. Alternatively, he asserts that even if his appellate defense counsel were not ineffective and no writ of error coram nobis should issue, a writ of audita querela should issue to prevent continued enforcement of his conviction—and the resulting sex offender registration requirements—in light of the Court of Appeals for the Armed Forces’s (CAAF) decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016). The petitioner claims Hills should apply retroactively to his case.

Burleson v. United States, No. 200700143, 2018 CCA LEXIS 87, at *1-2 (N-M Ct. Crim. App. Feb. 26, 2018).

Audita querela is a latin term meaning “the complaint having been heard.” A defendant can seek a rehearing of a decided matter due to the newly discovered evidence or newly existing legal defenses, through a writ of audita querela. A writ of audita querela attacks a judgment that becomes incorrect later because of circumstances that arose after the judgment was issued.

New page on CGCCA

August 2, 2018 | The Law Office of Philip D. Cave

The CGCCA is now posting appellate briefs in pending cases. An excellent additional resources for trial and appellate counsel.

https://www.uscg.mil/Resources/Legal/Court-of-Criminal-Appeals/Court-of-Criminal-Appeals-Appellate-Briefs/

Harmless error on appeal

June 8, 2018 | The Law Office of Philip D. Cave

Daniel Epps, Harmless Errors and Substantial Rights. 131 HARV. L. REV. 2117 (2018).

The harmless constitutional error doctrine is as baffling as it is ubiquitous. Although appellate courts rely on it to deny relief for claimed constitutional violations every day, virtually every aspect of the doctrine is subject to fundamental disagreement and confusion. Judges and commentators sharply disagree about which (and even whether) constitutional errors can be harmless, how to conduct harmless error analysis when it applies, and, most fundamentally, what harmless constitutional error even is — what source of law generates it and enables the Supreme Court to require its use by state courts. This Article offers a new theory of harmless constitutional error, one that promises to solve many of the doctrine’s longstanding mysteries.