Diaz v. The Judge Advocate General of the Navy ( 2003 )

IN THE CASE OF
Salvador DIAZ, Petitioner
v.
THE JUDGE ADVOCATE GENERAL OF THE NAVY, Respondent
No. 03-8014
Crim. App. No. 200200374
United States Court of Appeals for the Armed Forces
Decided August 5, 2003
Counsel
For Petitioner: Lieutenant Colin A. Kisor, JAGC, USNR.
For Respondent: Lieutenant Frank L. Gatto, JAGC, USNR, and
Commander R. P. Taishoff, JAGC, USN.
Amicus Curiae: Kevin J. Barry, Esq., Eugene R. Fidell, Esq.,
and Stephen A. Saltzburg, Esq., for the National Institute of
Military Justice.
This opinion is subject to editorial correction before final publication
Diaz v. The Judge Advocate General of the Navy, No. 03-8014/NA
PER CURIAM:
The Petitioner, Navy Firecontrolman Chief Salvador Diaz,
initiated this proceeding by filing a Motion for Appropriate
Relief which raised issues concerning the timeliness of the
appellate process being afforded him as well as potential issues
of ineffective assistance of appellate defense counsel. In
response, this Court ordered the Respondent Judge Advocate
General of the Navy (Government) to show cause why appropriate
relief should not be granted. The Government’s Answer in
response to these serious issues is not persuasive. We conclude
that the Navy-Marine Corps Court of Criminal Appeals should have
taken action to ensure the protection of Petitioner’s rights
when he sought relief from that court. We therefore remand this
matter to the Court of Criminal Appeals to take appropriate
action and issue such orders as are necessary to ensure the
timely filing of an Assignment of Errors and Brief on behalf of
Petitioner, and we order such further action as directed in this
opinion.
Background
Petitioner was tried by a general court-martial on June 14,
October 30, and November 27 – December 1, 2000. Contrary to his
pleas of not guilty, he was convicted of multiple charges of
rape and indecent acts with his 12-year-old daughter. On
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December 1, 2000 (day zero),1 Petitioner was sentenced to a
dishonorable discharge, confinement for nine years, total
forfeiture of all pay and allowances, and reduction to E-1. The
convening authority approved the sentence without modification
on December 21, 2001 (day 385).2
The Navy-Marine Corps Appellate Review Activity received
Petitioner’s case on February 25, 2002 (day 451), and it was
docketed with the Navy-Marine Corps Court of Criminal Appeals on
February 28, 2002 (day 454). Petitioner’s first appellate
defense counsel filed ten requests for enlargement of time to
file an assignment of errors. On December 3, 2002 (day 732),
Petitioner filed a pro se petition for a Writ of Habeas Corpus
with the Court of Criminal Appeals requesting release from
confinement pending appeal. This request was based on an
assertion that Petitioner’s appellate defense counsel had not
even commenced an initial review of the record of trial because
of an excessive caseload. The court denied the writ petition on
1
As Petitioner’s primary allegation is that his appellate review
has not been processed in a timely manner, we will note the
number of days from sentencing upon which each significant event
in the post-trial process occurred.
2
The Government notes in a footnote that the post-trial delay
from sentencing to action “was not unreasonable under the
circumstances.” Because the reasonableness of any delay between
sentencing and the convening authority’s action is a matter for
consideration initially by the Court of Criminal Appeals, see
United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), that issue
is not before us at this time.
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December 4, 2002 (day 733), though it did note that Petitioner
“expressed concern with post-trial and appellate delay in his
case.” Petitioner filed for reconsideration, which was denied
on February 11, 2003 (day 802).
Petitioner then filed a Motion for Appropriate Relief with
this Court. We construed his motion as a Petition for
Extraordinary Relief, and on June 16, 2003 (day 927), we ordered
the Government to show cause why relief should not be granted.
The Government filed an Answer to the Show Cause Order on June
26, 2003 (day 937). Represented by a new appellate defense
counsel, Petitioner filed his Reply to Respondent’s Answer on
July 3, 2003 (day 944).
The Government’s Answer
Although the Government acknowledges that the Due Process
and Equal Protection Clauses of the Constitution apply to review
of a case before the service Courts of Criminal Appeals, and
that “[d]elays caused by Government or State paid attorneys
representing an accused on appeal have been held attributable to
the Government[,]” the Government broadly asserts that “[t]he
appellate delay in this case was neither excessive nor has it
amounted to a prejudicial violation of Petitioner’s due process
rights.”
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Despite the fact that Petitioner’s appellate defense
counsel have had this case since late February 2002, the
Government argues that Petitioner has failed to show that this
delay, “in and of itself, is sufficient to characterize the
delay as inordinate and excessive giving rise to a due process
claim.” The Government also notes that Petitioner “has not even
served one-third of his nine year sentence,” although this fact
would seem to underscore rather than excuse the failure to
initiate a legal and factual review that could conceivably alter
Petitioner’s conviction, sentence, or both.
The Government makes several specific arguments why the
delay should not be considered excessive:
• Due to the unique rights accorded servicemembers in our court-
martial system, this Court should acknowledge that a detailed
appellate counsel’s caseload can be an appropriate factor in
deciding when the length of appellate delay becomes inordinate
and excessive;
• This Court should not judge the length of time it takes a
detailed military counsel to perfect an appeal in relation to
the time it takes to perfect such an appeal when an appellant
decides to hire his own private civilian counsel;
• This Court should not judge the length of time it takes a
detailed military counsel to perfect an appeal in relation to
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civilian “public defenders” who are required to represent only
indigent defendants, not all defendants, before the court;
• The military justice system requires the mandatory review of a
vast number of court-martial cases regardless of whether the
servicemember files a notice of appeal, and it is therefore
reasonable and not a violation of due process when an appeal
takes longer to perfect and decide in the military justice
system than in the civilian justice system;
• This delay is not inordinate or excessive because of the size
of the record of trial, the seriousness of the charges, the
number of issues identified by Petitioner, and the “high
volume of cases submitted to the lower Court.”
The Government summarizes that “the advocacy of the parties, the
institutional vigilance of both the lower Court and the
Government, as well as the reasons for the delay all justify the
delay in this case.”
Even if this Court were to find a violation of due process,
the Government argues that Petitioner is not entitled to relief,
because he has not established substantial prejudice. The
Government urges that the factors to be used in determining
substantial prejudice in a case of speedy appellate review are
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similar to those used to determine prejudice for lack of a
speedy trial3 and that Petitioner has not met his burden.
Petitioner’s Reply
Petitioner argues in his Reply that the delay has been
inordinate and excessive. Petitioner focuses primarily on the
root problem that caused the delay but also addresses the
various rationalizations offered by the Government for the
delay.
Petitioner notes that his case is currently on its eleventh
period of enlargement. He points out that his case has yet to
receive any substantive review by his appellate counsel, even
though counsel has had his case since February 28, 2002. He has
been confined post-trial for more than two and one-half years;
he has asserted his right to speedy appellate review; and his
case is now in the hands of a second detailed appellate defense
counsel. In her tenth request for enlargement, Petitioner’s
first appellate defense counsel cited her “caseload commitments”
as cause for the requested relief. That “commitment” included
“sixty-six cases on her docket totaling more than 16,000 pages
3
“1) preventing oppressive incarceration pending appeal; 2)
minimizing anxiety and concern of those convicted awaiting the
outcome of their appeal; and 3) limiting of the possibility that
Petitioner’s grounds for appeal or, in the event of reversal,
his defense in the case on retrial might be impaired.”
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[of trial transcript,] eleven [cases] in thirteenth enlargement
or higher.”
Now on an eleventh enlargement, Petitioner’s case is in the
hands of a new appellate defense counsel. That new counsel
notes that there is “little hope of [Petitioner’s] case being
exhaustively read and the appellate issues briefed anytime soon
given the present workload of the current Appellate Defense
Counsel.”
Petitioner’s counsel also informs us that there are 1,463
cases pending initial review and filing by Navy-Marine Corps
appellate defense counsel, and the average caseload, per
counsel, in the Navy-Marine Corps Appellate Defense Division is
“70 cases comprising [an] average total of 18,100 pages of trial
transcript.” Petitioner asserts that the increasingly long
period of “continuing” appellate delay, during which he has
actively pursued his appeal, is grounds for extraordinary
relief.
In contending that he is being denied speedy appellate
review, Petitioner takes specific issue with several of the
Government’s arguments. Petitioner disputes the suggestion that
he should seek civilian counsel. Petitioner asserts that he is
indigent, was sentenced to total forfeitures, has gone through
bankruptcy, has no property, and has only about $3,200 in
various accounts. Additionally, Petitioner notes that the
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suggestion that he should protect his right to a speedy
appellate review by hiring civilian counsel “is entirely
spurious insofar as it amounts to an assertion that a timely
appeal under Article 66, UCMJ, is available only to those who
can pay for it.”
Petitioner next disputes the Government’s claim that the
issues Petitioner identified for review do not make a “colorable
claim of any possibility or probability of relief on Appeal.”
Petitioner notes that he has identified 14 issues in pro se
pleadings filed at the Court of Criminal Appeals. These issues
include “ineffective assistance of counsel, unlawful command
influence, and other procedural and evidentiary errors” which
have yet to be reviewed or ruled upon by any appellate court.
Petitioner questions the soundness of the Government’s claim
that, in order to be entitled to relief from this delay, he must
show that his direct appeal has merit, when he “has not had the
assistance of an appellate defense attorney in identifying,
researching, and briefing the legal issues which he has
identified.”
Petitioner further asserts that he is anxiously languishing
in prison, a fact evidenced by his detailed pro se pleadings and
his efforts to prosecute his appeal even though his appellate
defense counsel have been unable to provide him professional
assistance.
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Discussion
This Court has long recognized that an accused has the
right to a timely review of his or her findings and sentence.
See United States v. Williams, 55 M.J. 302, 305 (C.A.A.F. 2001).
That review spans a continuum of process from review by the
convening authority under Article 60, Uniform Code of Military
Justice [hereinafter UCMJ], 10 U.S.C. § 860 (2000), to review by
a Court of Criminal Appeals under Article 66, UCMJ, 10 U.S.C. §
866 (2000), to review, in appropriate cases, by this Court under
Article 67, UCMJ, 10 U.S.C. § 867 (2000). An accused has the
right to effective representation by counsel through the entire
period of review following trial, including representation
before the Court of Criminal Appeals and our Court by appellate
counsel appointed under Article 70, UCMJ, 10 U.S.C. § 870
(2000). See United States v. Palenius, 2 M.J. 86 (C.M.A. 1977).
We have had repeated opportunities to address issues of
delay in the various stages of that review process. See, e.g.,
United States v. Tardif, 57 M.J. 219, 220 (C.A.A.F. 2002)(13-
month delay between sentencing and referral to Court of Criminal
Appeals); United States v. Hock, et al., 31 M.J. 334 (C.M.A.
1990)(delay of several years between service of lower court
decisions and petitions for review at this Court); United States
v. Dunbar, 31 M.J. 70 (C.M.A. 1990)(three-year delay between
trial date and docketing at the service court); United States v.
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Clevidence, 14 M.J. 17 (C.M.A. 1982)(313-day delay between
sentence and final action by supervisory authority); United
States v. Green, 4 M.J. 203 (C.M.A. 1978)(nine-month delay in
transmission of appeal from service court to this Court); United
States v. Timmons, 22 C.M.A. 226, 46 C.M.R. 226 (1973)(six-month
delay between sentencing and action by convening authority). We
are, for present purposes, concerned with the delay in the
processing of Petitioner’s case under Article 66. See __ M.J.
(3 n.2).
Petitioner’s right to a full and fair review of his
findings and sentence under Article 66 embodies a concomitant
right to have that review conducted in a timely fashion.
Additionally, Petitioner has a constitutional right to a timely
review guaranteed him under the Due Process Clause. Harris et
al. v. Champion et al., 15 F.3d 1538 (10th Cir. 1994)(quoting
Evitts v. Lucey, 469 U.S. 387, 393 (1985)(where state has
created appellate process as integral part of criminal justice
system, procedures used in deciding appeal must comport with
demands of due process and equal protection)); United States v.
Antoine, 906 F.2d 1379 (9th Cir. 1990); United States ex rel.
Green v. Washington, 917 F. Supp. 1238 (N.D. Il. 1996).
The Government has advanced several arguments as to why the
period of delay should not be considered as excessive or
inordinate and should, in fact, be condoned by this Court as a
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part of the normal appellate process. We will address the
Government’s major arguments:
1. The Government argues that due to the unique rights
afforded servicemembers by Congress, this Court should
take the caseload of a detailed appellate defense
counsel into account when determining whether an
appellate delay is excessive. The Government, however,
has not identified support in the applicable
legislation or legislative history for the proposition
that Congress intended that the rights afforded
servicemembers under the UCMJ should be used as a basis
to diminish their right to timely appellate review.4
Appellate counsel caseloads are a result of management
and administrative priorities and as such are subject
4
The American Bar Association’s Model Rules of Professional
Conduct (2003 ed.) require that counsel “shall act with
reasonable diligence and promptness in representing a client.”
Model Rules of Prof’l Conduct R. 1.3. “A lawyer’s work load
must be controlled so that each matter can be handled
competently.” Id. at cmt. 2. Article 70(a), Uniform Code of
Military Justice, 10 U.S.C. 870(a) (2000), places the
responsibility for detailing appellate counsel on the
Government. If an onerous caseload hinders the timely
processing of appeals or infringes on the effective assistance
of counsel, then it is the Government, not an appellant, who
bears the responsibility to take corrective action. See, e.g.,
Green, 917 F. Supp. 1238, 1250 (N.D. Il. 1996)(finding, based on
expert testimony, that assignment of significantly more than 25
cases of average complexity to one appellate attorney in a
single calendar year would create unacceptably high risk that
the attorney would be unable to brief the cases competently
within a reasonable period of time).
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to the administrative control of the Government. To
allow caseloads to become a factor in determining
whether appellate delay is excessive would allow
administrative factors to trump the Article 66 and due
process rights of appellants. To the contrary, the
Government has a statutory responsibility to establish
a system of appellate review under Article 66 that
preserves rather than diminishes the rights of
convicted servicemembers.5 In connection with that
responsibility, the Government has a statutory duty
under Article 70 to provide Petitioner with appellate
defense counsel who is able to represent him in both a
competent and timely manner before the Court of
Criminal Appeals.
2. The Government suggests that Petitioner should retain
private counsel, but also argues that this Court should
not compare the length of time it takes a detailed
military counsel to perfect an appeal to the length of
time that it takes a privately retained civilian
5
This Court has recognized that Congress, when defining the
rights of servicemembers, was not limited to the minimum
requirements established by the Constitution, and in many
instances provided safeguards unparalleled in the civilian
sector. United States v. McGraner, 13 M.J. 408, 414 (C.M.A.
1982). The appellate rights afforded to servicemembers is but
one example where Congress has provided greater rights than
found in the civilian sector.
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counsel. This argument first assumes that Petitioner
has the resources to retain a civilian counsel, which
he has asserted that he does not. It further assumes
that there are two standards in military justice – a
standard for detailed military counsel and a standard
for privately retained civilian counsel – and that the
standards for the military counsel are lower than what
is expected of a civilian counsel. In fact, the
standards for representation of servicemembers by
military or civilian counsel in military appellate
proceedings are identical.
3. The Government argues that the length of time it takes
detailed military appellate defense counsel to perfect
an appeal should not be compared to public defenders in
the public sector. The duty of diligent representation
owed by detailed military counsel to servicemembers is
no less than the duty of public defenders to indigent
civilians. Courts have not hesitated to take action
when public defender programs fail to represent their
clients in a timely manner. See, e.g., Harris, 15 F.3d
at 1538; Green, 917 F. Supp. at 1238; In re Order On
Prosecution of Criminal Appeals by the Tenth Judicial
Circuit Public Defender, 561 So. 2d 1130 (Fla. 1990)(per
curiam). The military appellate courts should be no
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less diligent in protecting the rights of convicted
servicemembers.
4. The Government argues that the military justice system
requires that a “vast number” of court-martial cases be
reviewed regardless of whether the servicemember files
a notice of appeal, and that as a result the appellate
process in the military necessarily takes longer than
in the civilian justice system. In making this
argument, the Government does not give appropriate
consideration to the “awesome, plenary, de novo” nature
of the review by the Courts of Criminal Appeals under
Article 66. United States v. Cole, 31 M.J. 270, 272
(C.M.A. 1990). Unlike the civilian criminal justice
system, the Courts of Criminal Appeals have unique fact
finding authority, and that aspect of a servicemember’s
case is not concluded until that review is completed.
The nature of this review calls for, if anything, even
greater diligence and timeliness than is found in the
civilian system.
5. The Government argues that the “institutional
vigilance” present in this and other cases ensures that
there can be no due process violations. In making this
argument, the Government asserts that Petitioner’s
first appellate defense counsel worked diligently,
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prioritized her cases, was available to Petitioner and
guaranteed his access to appellate courts. The fact
remains, however, that after February 28, 2002, through
ten enlargements of time, Petitioner’s first appellate
defense counsel did not look at the substance of
Petitioner’s case and did not know when she would be
able to do so. The appointment of a new appellate
defense counsel did not rectify this problem, because
that attorney concedes that he will not be able to look
at the case in the foreseeable future. We reject any
suggestion that “institutional vigilance” is evident in
this case or that vigilance has been applied to ensure
that Petitioner receives the rights he is entitled to
under Article 66 and Article 70.
6. The Government argues that Petitioner cannot establish
“prejudice” from the delays, but its argument is
circular. It is disingenuous for the Government to
argue that Petitioner has not made a “colorable claim
of any possibility of relief,” when the system that the
Government controls has to date deprived Petitioner of
the timely assistance of counsel that would enable him
to perfect and refine the legal issues he has asserted.
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Given the current posture of Petitioner’s case as outlined
above, Petitioner is not being afforded an appellate review of
his findings and sentence that comports with the requirements of
Article 66 and Article 70. These rights must be recognized,
enforced and protected by the Government, by the appellate
attorneys, by the Court of Criminal Appeals, and by this Court.
We reject any suggestion that continued delay or less
diligence in completing appellate review of a criminal
conviction should be tolerated under the UCMJ. We are confident
that the right to a timely appellate review in the military
justice system is no less important and no less a protection
than its counterpart in the civilian criminal justice system.
As noted, we reject any suggestion that institutional vigilance
is evident in Petitioner's case. The Government’s general
proposition that "so far" there is no showing of excessive or
inordinate delay warranting remedial action by this Court is not
accurate. Instead, Petitioner's case illustrates that nothing
has been done "so far" to respect or ensure Petitioner’s right
to timely review of his findings and sentence.
We are therefore returning this case to the Navy-Marine Corps
Court of Criminal Appeals, as it is that court which is directly
responsible for exercising “institutional vigilance” over this
and all other cases pending Article 66 review within the Navy-
Marine Corps Appellate Review Activity.
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Decision and Order
The Petition for Extraordinary Relief is granted as follows:
1. This case is remanded to the Navy-Marine Corps
Court of Criminal Appeals. That court shall
expeditiously review the processing and status of
Petitioner’s Article 66 appeal.
2. The Court of Criminal Appeals shall take
appropriate action to ensure that Petitioner
receives the rights he is entitled to under
Article 66 and Article 70, and issue such orders
as are necessary to ensure timely filing of an
Assignment of Errors and Brief on behalf of
Petitioner and the timely filing of an Answer to
the Assignment of Errors on behalf of the
Government.
3. It is further directed that within 60 days of the
date of this opinion, the Navy-Marine Corps Court
of Criminal Appeals shall submit a report to this
Court which specifies the steps taken to comply
with the provisions of this opinion in regard to
Petitioner and other appellants awaiting appellate
review under Article 66 before the Navy-Marine
Corps Court of Criminal Appeals.
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4. This order is entered without prejudice to
Petitioner’s right to assert a violation of his
statutory and constitutional rights to speedy
appellate review in the ordinary course of appeal.
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