United States v. LaBella , 2015 CAAF LEXIS 1135 ( 2015 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Sebastian P. LaBELLA, Airman First Class
United States Air Force, Appellant
No. 15-0413
Crim. App. No. 37679
Argued October 28, 2015—Decided December 11, 2015
Military Judge: W. Thomas Cumbie
For Appellant: Major Ja Rai A. Williams (argued).
For Appellee: Gerald R. Bruce, Esq. (argued); Colonel
Katherine E. Oler (on brief).
Amicus Curiae for Appellant: Colonel Patrick J. Wells, Ma-
jor Isaac C. Kennen, and Brian L. Mizer, Esq. (on brief)—
for the United States Air Force Appellate Defense Division.
Judge STUCKY delivered the opinion of the Court, in
which Chief Judge ERDMANN, Judges RYAN and
OHLSON, and Senior Judge LAMBERTH joined.
_______________
Judge STUCKY delivered the opinion of the Court. 1
After the United States Air Force Court of Criminal Ap-
peals (CCA) affirmed the findings and sentence in Appel-
lant’s case, he failed to file a timely petition with this Court.
He moved the CCA to grant his petition for reconsideration
out of time. The CCA granted his motion but denied the pe-
tition. Appellant appealed to this Court. We specified an is-
sue, questioning whether this Court has jurisdiction to re-
view Appellant’s case. We hold that the CCA lacked
jurisdiction to grant the motion for reconsideration. Conse-
quently, this Court lacks jurisdiction to hear Appellant’s ap-
peal, which is dismissed.
1 Senior Judge Royce C. Lamberth, of the United States Dis-
trict Court for the District of Columbia, sat by designation, pursu-
ant to Article 142(f), Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 942(f) (2012).
United States v. LaBella, No. 15-0413/AF
Opinion of the Court
I. Procedural History
A general court-martial composed of members convicted
Appellant, contrary to his pleas, of two specifications of
knowingly and wrongfully possessing child pornography in
violation of Article 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 934 (2012). Appellant was sentenced to
a dishonorable discharge, confinement for six months, forfei-
ture of $447 pay per month for three months, and reduction
to the lowest enlisted grade. The convening authority substi-
tuted a bad-conduct discharge for the dishonorable discharge
but otherwise approved the adjudged sentence.
It appears that Appellant was first contacted by appel-
late defense counsel in December 2010, at which time Appel-
lant indicated that he wished to appeal his case to the CCA
and, eventually, to this Court. The CCA affirmed the find-
ings and sentence in his case. United States v. LaBella, ACM
No. 37679, 2013 CCA LEXIS 126, at *17–18, 2013 WL
932328, at *5–6 (A.F. Ct. Crim. App. Feb. 15, 2013).
Appellant’s appellate defense counsel filed a petition for
review with this Court on Appellant’s behalf. United States
v. LaBella, 72 M.J. 387 (C.A.A.F. 2013). Before acting on the
petition, we granted her motion to withdraw from the case
in light of her reassignment and the appointment of new
counsel for Appellant. United States v. LaBella, 72 M.J. 437
(C.A.A.F. 2013) (order). Thereafter, we granted review, set
aside the judgment of the CCA, and remanded the case for
the CCA to review in light of this Court’s opinion in United
States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012). United States
v. LaBella, 72 M.J. 471 (C.A.A.F. 2013) (order granting re-
view).
The newly appointed counsel filed a brief with the CCA
in September 2013. Sometime during the summer of 2014,
apparently before the CCA acted on the remand, he notified
Appellant that he was separating from the Air Force and
that an incoming attorney would represent him. There is no
evidence in the record, however, that the CCA ever granted
this request to withdraw.
The CCA again held that the findings and sentence were
correct in law and fact. United States v. LaBella, ACM No.
37679 (rem), 2014 CCA LEXIS 385, at *25–26, 2014 WL
4803813, at *8 (A.F. Ct. Crim. App. July 2, 2014). That deci-
sion was provided to the Appellate Defense Division and de-
posited in the mail—first class, certified—on July 7, 2014, to
2
United States v. LaBella, No. 15-0413/AF
Opinion of the Court
the last address provided by Appellant. Appellant acknowl-
edged personal receipt of the CCA’s decision on July 27,
2014.
The letter notifying Appellant of the CCA’s decision
warned that he had sixty days from the date of the letter to
petition this Court for review. He was advised that an appel-
late defense counsel had been assigned to assist him and
was provided a telephone contact number.
In October 2014, Appellant telephoned the Appellate De-
fense Division to inquire as to the status of his case. He was
informed that no one in that office had filed a petition with
this Court.
In an undated memorandum, the Judge Advocate Gen-
eral of the Air Force thereafter appointed Appellant’s origi-
nal appellate counsel, who was no longer assigned to the
Appellate Defense Division, to again represent Appellant.
She was directed to operate outside the functional supervi-
sion of the Appellate Defense Division because of a conflict of
interest.
On December 3, 2014, Appellant’s counsel moved on be-
half of Appellant for the CCA to reconsider its opinion out of
time. The United States opposed Appellant’s motion for
leave to file the motion for reconsideration out of time and
the petition for reconsideration, arguing that Appellant’s
case had become final when he failed to file a timely petition
for review at this Court and, therefore, the CCA lacked ju-
risdiction to consider the case on direct review.
Nevertheless, the CCA granted the motion to file the mo-
tion for reconsideration out of time, noting that Article 66,
UCMJ, 10 U.S.C. § 866 (2012), its jurisdictional statute,
does not provide a time limitation on petitions for reconsid-
eration. The Judge Advocates General had imposed a thirty-
day limitation period for such petitions, 2 but the CCA con-
cluded it was subject to equitable tolling. United States v.
LaBella, ACM No. 37679 (rem), slip op. at 2 (A.F. Ct. Crim.
App. Jan. 9, 2015) (order). Although the court granted Ap-
pellant’s motion to file the petition out of time, it denied the
motion for reconsideration. Id., slip op. at 3.
2 Courts of Criminal Appeals Rule of Practice and Procedure
19(b).
3
United States v. LaBella, No. 15-0413/AF
Opinion of the Court
On March 10, 2015, Appellant filed a petition for grant of
review before this Court. United States v. LaBella, 74 M.J.
319 (C.A.A.F. 2015). The Government moved to dismiss the
petition for lack of jurisdiction. The Government argues
that Appellant had until September 5, 2014, to file his peti-
tion at this Court and, as he failed to do so, this Court is
without jurisdiction to hear his appeal on direct review. This
Court specified the jurisdictional issue for briefing and ar-
gument. United States v. LaBella, __ M.J. __ (C.A.A.F. 2015)
(order granting review).
II. Discussion
“‘Federal courts are courts of limited jurisdiction. They
possess only that power authorized by Constitution and
statute….’” United States v. Daly, 69 M.J. 485, 486 (C.A.A.F.
2011) (quoting Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994)). “[E]very federal appellate court
has a special obligation to satisfy itself not only of its own
jurisdiction, but also that of the lower courts in a cause un-
der review.” Bender v. Williamsport Area Sch. Dist., 475 U.S.
534, 541 (1986) (internal quotation marks and citations
omitted). The burden to establish jurisdiction rests with the
party invoking the court’s jurisdiction. Kokkonen, 511 U.S.
at 377.
An appellant must file his petition for review at this
Court within sixty days from the date he is notified of the
decision of the CCA, or the date on which a copy of that deci-
sion, “after being served on appellate counsel of record for
the accused (if any), is deposited in the United States mails
for delivery by first class certified mail to the accused,”
whichever is earlier. Article 67(b)(2), UCMJ, 10 U.S.C.
§ 867(b)(2) (2012); United States v. Rodriguez, 67 M.J. 110,
116 (C.A.A.F. 2009) (holding that the sixty-day statutory
limitation is jurisdictional and mandatory). If during that
sixty-day period, an appellant files a motion for reconsidera-
tion at the CCA, there is “no CCA decision for this Court to
review.” United States v. Smith, 68 M.J. 445, 446–47
(C.A.A.F. 2010). In such a case, the sixty-day statutory filing
period at this Court begins to run anew, following the CCA’s
disposition of the motion. See id.
Appellant failed to file either a petition for review at this
Court or a petition for reconsideration at the CCA within the
statutory filing period, which expired on September 5, 2014.
As a result, his conviction became final as to the legality of
the proceedings on that date. See Articles 71(c)(1)(A), 76,
4
United States v. LaBella, No. 15-0413/AF
Opinion of the Court
UCMJ, 10 U.S.C. §§ 871(c)(1)(A), 876 (2012); Clinton v.
Goldsmith, 526 U.S. 529, 532 (1999); Loving v. United
States, 64 M.J. 132, 137 (C.A.A.F. 2006). Therefore, the CCA
lacked jurisdiction to grant Appellant’s petition for reconsid-
eration out of time and, consequently, this Court lacks juris-
diction to consider Appellant’s petition for review. 3
III. Judgment
The judgment of the United States Air Force Court of
Criminal Appeals granting Appellant’s motion to consider
his petition for reconsideration out of time is vacated. The
Government’s motion to dismiss Appellant’s petition for re-
view by this Court for lack of jurisdiction is granted.
3 This result is consistent with joint rules governing the
Courts of Criminal Appeals, which prohibit the grant of extensions
of time under those rules for filing a petition for reconsideration
after the expiration of the statutory period. See Courts of Criminal
Appeals Rule of Practice and Procedure 19(d).
5