Denedo v. United States , 2008 CAAF LEXIS 320 ( 2008 )

Jacob DENEDO, Mess Management Specialist Second Class
U.S. Navy, Appellant
v.
United States, Appellee
Misc. No. 07-8012
Crim. App. No. 99-00680
United States Court of Appeals for the Armed Forces
Argued October 1, 2007
Decided March 11, 2008
EFFRON, C.J., delivered the opinion of the Court, in which Baker
and Erdmann, JJ., joined. Stucky and Ryan, JJ., each filed a
dissenting opinion.
Counsel
For Appellant: Matthew S. Freedus, Esq. (argued); Eugene R.
Fidell, Esq., Brent C. Harvey, Esq., and Lieutenant Brian L.
Mizer, JAGC, USN (on brief).
For Appellee: Lieutenant Commander Paul D. Bunge, JAGC, USN
(argued); Commander Paul C. LeBlanc, JAGC, USN (on brief); Major
Brian K. Keller, USMC.
Amicus Curiae for Appellant: Donald G. Rehkopf Jr., Esq. (on
brief) -- The National Association of Criminal Defense Lawyers.
Military Judge: Gerald E. Champagne
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION
Denedo v. United States, No. 07-8012/NA
Chief Judge EFFRON delivered the opinion of the Court.
Appellant filed a petition for extraordinary relief with
the United States Navy-Marine Corps Court of Criminal Appeals.
The court considered his petition and denied relief. Denedo v.
United States, No. NMCCA 9900680 (N-M. Ct. Crim. App. Mar. 26,
2007). Appellant then filed the present appeal.
For a writ appeal, we consider the record developed at
trial and on direct appeal. We also consider the materials
filed by the parties in the course of the writ proceedings at
the Court of Criminal Appeals and the appeal to our Court.
Based on the foregoing, we consider whether a decision on the
writ appeal can be reached on the record before us, or whether a
more fully developed factual record is required prior to
reaching a decision on the merits. See Section III.C.2., infra.
The Government contends that the Court of Criminal Appeals
erred by not dismissing the petition on jurisdictional grounds,
while Appellant contends that the court erred by not granting
relief. Appellant challenges his court-martial conviction,
asserting that his plea was not knowing or voluntary. Appellant
contends that he expressly requested guidance of counsel on the
immigration impact of his plea, that the advice provided by his
attorney was defective, and that he relied upon ineffective
assistance of counsel to his detriment in pleading guilty. He
further asserts that the defect in counsel’s advice was not
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known to him and could not have been known to him until eight
years after conviction when the United States Citizenship and
Immigration Services (USCIS) first sought to deport him based on
his court-martial conviction. Although judicial review of
immigration proceedings, including any use therein of a court-
martial conviction, is outside the jurisdiction of this Court,
the providence of a guilty plea at a court-martial is subject to
our review. See Section III.B., infra.
For the reasons set forth below, we conclude that the Court
of Criminal Appeals properly rejected the Government’s motion to
dismiss. We further conclude that a more fully developed record
is required prior to reaching a decision on the merits, and we
remand the case for further consideration by the Court of
Criminal Appeals.
Section I of this opinion outlines the procedural history
of the present case. Section II discusses collateral review
under the All Writs Act. Section III addresses Appellant’s
request for relief.
I. PROCEDURAL HISTORY
Appellant, who was born in Nigeria, came to the United
States in 1984. He enlisted in the Navy in 1989 and became a
lawful permanent resident in 1990.
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In 1998, the Government charged Appellant with conspiracy,
larceny, and forgery, alleging that he assisted a civilian
acquaintance in defrauding a community college. See Articles
81, 121, 123, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§§ 881, 921, 923 (2000). Appellant, who was represented by
civilian counsel and detailed military counsel, entered into a
pretrial agreement with the convening authority. In exchange
for Appellant’s agreement to enter a guilty plea, the convening
authority agreed to reduce the charges. The convening authority
also agreed to refer the case to a special court-martial, which,
at that time, could not impose a sentence of confinement in
excess of six months. See Article 19, UCMJ, 10 U.S.C. § 819(1994), amended by National Defense Authorization Act for Fiscal
Year 2000, Pub. L. No. 106-65, § 577, 113 Stat. 512, 625 (1999)
(prospectively providing a twelve-month maximum for periods of
confinement adjudged by special courts-martial).
Pursuant to the pretrial agreement, Appellant entered a
plea of guilty at a special court-martial composed of a military
judge sitting alone. In accordance with applicable law, the
military judge conducted an inquiry into the providence of the
plea. See Article 45, UCMJ, 10 U.S.C. § 845 (2000); Rule for
Courts-Martial (R.C.M.) 910; United States v. Care, 18 C.M.A.
535, 40 C.M.R. 247 (1969). After conducting the inquiry, the
military judge concluded that the plea was provident. The
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military judge entered findings of guilty for the charges of
conspiracy and larceny, as limited by the pretrial agreement.
The record contains no reference to the subject of the
deportation consequences of the pleas. Following the entry of
findings, the military judge conducted a sentencing proceeding.
On July 15, 1998, the military judge imposed a sentence that
included three months confinement, reduction to grade E-1, and a
bad-conduct discharge. The convening authority approved the
sentence on March 7, 1999. The Navy-Marine Corps Court of
Criminal Appeals affirmed on February 24, 2000. United States
v. Denedo, No. NMCA 99-00680 (N-M. Ct. Crim. App. Feb. 24,
2000). Appellant did not seek further review in our Court. The
Navy discharged Appellant on May 30, 2000.
On October 30, 2006, the Government, through USCIS,
initiated proceedings to deport Appellant, citing his 1998
special court-martial conviction.1 Subsequently, Appellant filed
a petition for extraordinary relief with the Navy-Marine Corps
Court of Criminal Appeals, requesting collateral review of his
court-martial for alleged ineffective assistance of counsel and
issuance of a writ of error coram nobis under the All Writs Act,
28 U.S.C. § 1651(a) (2000). Appellant’s petition alleged that
1
During the present writ appeal, USCIS filed an additional
deportation charge, also based upon Appellant’s special court-
martial conviction.
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he specifically told his counsel during plea negotiations that
“his primary concern and objective” was “to avoid the risk of
deportation,” and that he was “far more concerned about
deportation and being separated from his family, than the risk
of going to jail.” According to Appellant’s petition, his
counsel had assured him that “if he agreed to plead guilty at a
special-court-martial he would avoid any risk of deportation.”
At the Court of Criminal Appeals, the Government filed a
motion to dismiss on the grounds that the court lacked
jurisdiction to consider the writ. The Court of Criminal
Appeals denied the Government’s motion to dismiss. Denedo, No.
NMCCA 9900680. The court also considered and denied Appellant’s
petition for extraordinary relief in a summary decision. Id.Appellant filed a writ appeal with this Court. The
Government, in response, reiterated its jurisdictional
objection. In addition, the Government contended that Appellant
had been provided with the effective assistance of counsel at
his court-martial.
II. COLLATERAL REVIEW
A. BACKGROUND
In a court-martial of the type at issue in the present
case, the findings and sentence approved by the convening
authority are subject to direct review by the Court of Criminal
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Appeals of the military department concerned. Article 66(b),
UCMJ, 10 U.S.C. § 866(b) (2000); cf. Article 69, UCMJ, 10 U.S.C.
§ 869 (2000) (providing for review of other courts-martial in
the Office of the Judge Advocate General). In addition to
issues of law, the scope of review at the Court of Criminal
Appeals extends to factual sufficiency and sentence
appropriateness. See Article 66(c), UCMJ. The decisions of the
Court of Criminal Appeals are subject to direct review in this
Court on issues of law. Article 67(a), (c), UCMJ, 10 U.S.C. §
867(a), (c) (2000). Cases in which we have granted review or
have otherwise provided relief are subject to direct review in
the Supreme Court by writ of certiorari. Article 67a, UCMJ, 10
U.S.C. § 867a (2000); 28 U.S.C. § 1259 (2000).
A judgment as to the legality of the proceedings becomes
final upon the completion of direct review by the Court of
Criminal Appeals and (1) expiration of the time for filing a
petition for review with this Court without such a filing (and
without the case otherwise being under review at this Court);
(2) rejection of a petition for review by this Court; or (3)
completion of review by this Court, subject to requirements
regarding potential review by the Supreme Court. Article
71(c)(1), UCMJ, 10 U.S.C. § 871(c)(1) (2000). In addition,
various forms of executive action are required before the
results of a court-martial become final. See Article 71(a),
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(b), (c)(2), UCMJ. Once such action is taken, Article 76, UCMJ,
10 U.S.C. § 876 (2000), provides, in pertinent part, that
“[o]rders publishing the proceedings of courts-martial and all
action taken pursuant to those proceedings are binding upon all
departments, courts, agencies, and officers of the United
States,” subject to certain explicit exceptions.
The results of courts-martial are subject to collateral
review by courts outside the military justice system. See,
e.g., Burns v. Wilson, 346 U.S. 137 (1953) (plurality opinion)
(habeas corpus in Article III courts); Schlesinger v.
Councilman, 420 U.S. 738, 751 (1975) (noting that various forms
of collateral review historically have been available for
courts-martial convictions); United States ex rel. New v.
Rumsfeld, 448 F.3d 403, 406 (D.C. Cir. 2006 (federal question
under 28 U.S.C. § 1331); Matias v. United States, 923 F.2d 821,
823, 825 (Fed. Cir. 1990) (back pay litigation under the Tucker
Act, 28 U.S.C. § 1491). Courts-martial also are subject to
collateral review within the military justice system. See,
e.g., Loving v. United States, 62 M.J. 235, 246 (C.A.A.F. 2005);
cf. Schlesinger, 420 U.S. at 753 n.26 (describing collateral
review by extraordinary writs in the military justice system).
Appellant has requested collateral review under the All
Writs Act, which provides that “all courts established by Act of
Congress may issue all writs necessary or appropriate in aid of
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their respective jurisdictions and agreeable to the usages and
principles of law.” 28 U.S.C. § 1651(a). The Act requires two
separate determinations: first, whether the requested writ is
“in aid of” a court’s jurisdiction; and second, whether the
requested writ is “necessary or appropriate.”
B. COLLATERAL REVIEW IN AID OF THE JURISDICTION OF THE
COURTS OF CRIMINAL APPEALS
As the Supreme Court observed in Clinton v. Goldsmith, 526
U.S. 529, 534-35 (1999), “although military appellate courts are
among those empowered to issue extraordinary writs under the
Act,” the Act confines a court to issuance of process in aid of
“its existing statutory jurisdiction” and “does not enlarge that
jurisdiction.” The Supreme Court noted that this Court “is not
given authority, by the All Writs Act or otherwise, to oversee
all matters arguably related to military justice, or to act as a
plenary administrator even of criminal judgments it has
affirmed.” Id. at 536. The Court added that “there is no
source of continuing jurisdiction for the CAAF over all actions
administering sentences that the CAAF at one time had the power
to review.” Id.When courts within the military justice system lack subject
matter jurisdiction over an action, such as an administrative
separation, they cannot invoke the All Writs Act to enlarge
their jurisdiction to review the administrative action, even if
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it is based upon the results of a court-martial. Id. (noting
that “Goldsmith’s court-martial sentence has not been changed;
another military agency has simply taken independent action”).
However, when a petitioner seeks collateral relief to modify an
action that was taken within the subject matter jurisdiction of
the military justice system, such as the findings or sentence of
a court-martial, a writ that is necessary or appropriate may be
issued under the All Writs Act “in aid of” the court’s existing
jurisdiction. Loving, 62 M.J. at 245-46 (citing 28 U.S.C. §
1651(a), and Goldsmith, 526 U.S. at 534).
The existing statutory jurisdiction of the Navy-Marine
Corps Court of Criminal Appeals includes cases such as
Appellant’s, in which the sentence extends to a punitive
discharge. Article 66(b), UCMJ. On direct appeal, the Court of
Criminal Appeals conducts a de novo review of the findings and
sentence approved by the convening authority. Article 66(c),
UCMJ (providing for review of matters of fact and law, as well
as sentence appropriateness). Appellant’s request for coram
nobis relief is limited to the findings and sentence of the
court-martial reviewed by the Court of Criminal Appeals. He has
raised a claim -- ineffective assistance of counsel -- that goes
directly to the validity and integrity of the judgment rendered
and affirmed. As such, the petition was “in aid of” the
existing jurisdiction of the Court of Criminal Appeals.
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C. ARTICLE 76 AND COLLATERAL REVIEW
As noted in Section II.A., supra, Article 76 addresses the
completion of direct review, including executive action.
Article 76 provides in pertinent part:
The appellate review of records of trial provided by
this chapter, the proceedings, findings, and sentences
of courts-martial as approved, reviewed, or affirmed
as required by this chapter, and all dismissals and
discharges carried into execution under sentences by
courts-martial following approval, review, or
affirmation as required by this chapter, are final and
conclusive. Orders publishing the proceedings of
courts-martial and all action taken pursuant to those
proceedings are binding upon all departments, courts,
agencies, and officers of the United States, subject
only to action upon a petition for a new trial as
provided in section 873 of this title (article 73) and
to action by the Secretary concerned as provided in
section 874 of this title (article 74), and the
authority of the President.
In Schlesinger, 420 U.S. at 745, the Supreme Court
emphasized that Article 76 provides a prudential constraint on
collateral review, not a jurisdictional limitation. Article 76
“does not expressly effect any change in the subject-matter
jurisdiction of Article III courts.” Id. at 749. The Article
“only defines the point at which military court judgments become
final and requires that they be given res judicata effect.” Id.Similar considerations apply to the application of Article
76 within the military justice system. Although Schlesinger
involved a collateral challenge to a pending court-martial in an
Article III court, the Supreme Court’s analysis of the
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relationship between Article 76 and collateral review
specifically cited a post-Article 76 coram nobis case reviewed
by this Court. See Schlesinger, 420 U.S. at 753 n. 26 (quoting
United States v. Frischholz, 16 C.M.A. 150, 151, 36 C.M.R. 306,
307 (1966)); see also Noyd v. Bond, 395 U.S. 683, 695 n.7 (1969)
(observing that this Court in Frischholz “properly rejected” the
government’s argument that this Court lacked power to grant
writs under the All Writs Act); cf. Goldsmith, 526 U.S. at 537
n.11 (referring to the discussion in Noyd, 395 U.S. at 693-99,
of the various avenues of relief available within the military
justice system). In terms of timing, Article 76 serves as a
prudential restraint on collateral review of courts-martial
pending completion of direct review. When a coram nobis
petition is considered after completion of direct review,
finality of direct review enhances rather than diminishes
consideration of a request for collateral relief. See, e.g.,
United States v. Morgan, 346 U.S. 502, 511-12 (1954); see
Section III, infra. In terms of the scope of collateral review,
the res judicata effect of Article 76 means that the decision on
direct review will stand as final unless it fails to pass muster
under the highly constrained standards applicable to review of
final judgments, as discussed in the following sections.
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D. THE AVAILABILITY OF OTHER REMEDIES AS A
LIMITATION ON RELIEF UNDER THE ALL WRITS ACT
Because the All Writs Act serves as a residual authority, a
writ is not “necessary or appropriate” under the statute if
another adequate legal remedy is available. See Loving, 62 M.J
at 247, 253-54 (discussing Carlisle v. United States, 517 U.S.
416 (1996)). The determination of whether another remedy is
adequate requires a contextual analysis. The possibility of
executive clemency, for example, does not provide an adequate
remedy because the exercise of clemency powers does not ensure
judicial review of legal issues. See id. at 247. Likewise, a
motion for a new trial is not a remedy if the request for
extraordinary relief is based on developments occurring after
the two-year deadline in Article 74, UCMJ, 10 U.S.C. § 874(2000).
In view of the potential for collateral review by courts
outside the military justice system, see Section II.A., supra,
the question arises as to whether the availability of such
review renders review of a coram nobis petition by the Court of
Criminal Appeals unnecessary or inappropriate. In Loving, we
observed that Article III courts would be unlikely to exercise
jurisdiction over petitions for extraordinary relief during the
period between completion of final legal review under Article
71(c) and finality of proceedings on direct review under Article
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76 because of doctrines such as exhaustion and abstention,
reflecting the primary role of courts within the military
justice system in reviewing challenges to courts-martial. 62
M.J. at 248-51. In that context, we concluded that review was
available under the All Writs Act to consider a court-martial
conviction and sentence that was challenged during the period
between completion of final legal review under Article 71(c) and
the completion of final review, including executive actions,
under Article 76. Id. at 256. In the present case, we consider
the relationship between extraordinary writ proceedings within
the military justice system and the possibility of Article III
collateral review in a post-Article 76 setting, a matter that we
did not address in Loving. See id. at 245 n.61.
1. Constraints on collateral review by courts outside the
military justice system
The power of courts outside the military justice system to
engage in post-Article 76 collateral review is subject to
constraints on the exercise of that power. See Loving, 62 M.J.
at 248-49. A prominent theme running through the Supreme
Court’s consideration of military justice cases on collateral
review is that the system of courts established by Congress for
the military justice system should serve as the primary
mechanism for review of court-martial cases, and that the courts
within the military justice system should have an opportunity to
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consider challenges to court-martial proceedings prior to review
by courts outside the military system. This theme is reflected
in the Supreme Court’s emphasis on exhaustion of military
remedies, as well as the Court’s focus on full and fair
consideration by the courts within the military justice system.
a. Exhaustion of remedies
Under the exhaustion of remedies doctrine, courts outside
the military justice system normally refrain from collateral
review of courts-martial until all available military remedies
are exhausted. The doctrine reflects the Supreme Court’s view
of the pivotal role assigned by Congress to the courts in the
military justice system. As the Court stated in Schlesinger,
Congress enacted the UCMJ under its power to regulate the armed
forces in an effort “to balance . . . military necessities
against the equally significant interest of ensuring fairness to
servicemen charged with military offenses, and to formulate a
mechanism by which these often competing interests can be
adjusted.” 420 U.S. at 757-58. To address those competing
interests, “Congress created an integrated system of military
courts and review procedures.” Id. at 758.
The Supreme Court further observed that “implicit in the
congressional scheme embodied in the Code is the view that the
military court system generally is adequate to and responsibly
will perform its assigned task.” Id. Underscoring the need for
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other courts to refrain from review until all military remedies
have been exhausted, the Court stated “[w]e think this
congressional judgment must be respected and that it must be
assumed that the military court system will vindicate
servicemen’s constitutional rights.” Id.As a general matter, courts outside the military justice
system “will not entertain habeas petitions by military
prisoners until all available military remedies have been
exhausted.” Id. The exhaustion requirement is prudential
rather than jurisdictional, and the Supreme Court did not
preclude the possibility that the circumstances of a particular
case might warrant consideration of a habeas petition by an
Article III court prior to exhaustion. Id. at 761.
b. Full and fair consideration
Even when remedies have been exhausted, the scope of
collateral review outside the military justice system is
constrained by the requirement to consider whether the military
justice system has given full and fair consideration to the
claims at issue. Burns, 346 U.S. at 142-46. De novo review is
appropriate only if the military justice system “manifestly
refused to consider those claims.” Id. at 142. As recently
noted by the United States Court of Appeals for the District of
Columbia Circuit in New, 448 F.3d at 407-08, Article III courts
have utilized various standards in applying Burns. Compare,
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e.g., Dodson v. Zelez, 917 F.2d 1250, 1252-53 (10th Cir. 1990)
(applying the deference test articulated by the United States
Court of Appeals for the Fifth Circuit in Calley v. Callaway,
519 F.2d 184 (5th Cir. 1975)), with Brosius v. Warden, 278 F.3d
239, 245 (3d Cir. 2002) (applying the deference standard that
the court would have used in habeas review of a state court
conviction under 28 U.S.C. § 2254(d)). Irrespective of the
different approaches used by the Article III courts, they are
obligated to apply the exhaustion and review standards of
Schlesinger and Burns when considering claims raised by a
petitioner on collateral review.
2. The relationship between courts within and outside the
military justice system with respect to collateral review
As previously described, courts within the military justice
system conduct extraordinary writ review of courts-martial at a
variety of stages, including after completion of direct review
under Article 76. Although not prohibited from undertaking
collateral review at the post-Article 76 stage without
considering the availability of relief within the military
justice system, a number of Article III courts have deferred
action because of, or otherwise have taken into account, the
availability of post-Article 76 collateral review within the
military justice system.
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In Frischholz, 16 C.M.A. at 151, 36 C.M.R. at 307, the
petitioner’s conviction became final under Article 76 after we
denied his petition for direct review and he was dismissed from
the Air Force. Five years later, he sought collateral relief
from the United States District Court for the District of
Columbia. Id. at 151, 36 C.M.R. at 307. The district court
dismissed the petition, indicating that he should first seek
review on the merits from this Court, a suggestion apparently
initiated by the government. See id. at 151, 36 C.M.R. at 307.
When Frischholz followed the district court’s suggestion
and filed a petition for a writ of error coram nobis with this
Court, the government changed its position, contending that the
case was outside this Court’s statutory jurisdiction under
Article 67, and that we could not review a case after it became
final under Article 76, UCMJ. See id. at 151, 36 C.M.R. at 307.
We rejected the government’s position, concluding that we had
jurisdiction to review the case under the All Writs Act, and we
denied the application for relief on its merits. Id. at 152-53,
36 C.M.R. at 308-09.
The Supreme Court subsequently cited with approval the
conclusion in Frischholz that Article 76 does not bar
“subsequent attack in an appropriate forum” and that “[a]t best
it provides finality only as to interpretations of military law”
by this Court. See Schlesinger, 420 U.S. at 753 n. 26 (quoting
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Frischholz, 16 C.M.A. at 151, 36 C.M.R. at 307); see also Noyd,
395 U.S. at 695 n.7 (citing Frischholz as an example of the
availability of review by this Court under the All Writs Act).
In Del Prado v. United States, 23 C.M.A. 132, 133-34, 48
C.M.R. 748, 749-50 (1974) (collateral review where petitioner
was not in confinement), and Garrett v. Lowe, 39 M.J. 293, 294
(C.M.A. 1994) (collateral review where petitioner was in
confinement), petitioners first sought relief in federal
district court after their cases had become final under Article
76. In each case, the district courts withheld action pending
collateral review in this Court, and in both cases we undertook
review and granted relief. Del Prado, 23 C.M.A. at 134, 48
C.M.R. at 750; Garrett, 39 M.J. at 297.
More recently, a number of federal district courts have
continued to rely upon the availability of collateral review in
the military justice system to dispose of petitions seeking
collateral relief. See, e.g., Tatum v. United States, No. RDB-
06-2307, 2007 U.S. Dist. LEXIS 61947, at *12-*13, 2007 WL
2316275, at *6-*7 (D. Md. Aug. 7, 2007) (dismissing a request
for post-Article 76 collateral relief on the grounds that the
petitioner had not sought a writ of error coram nobis before
this Court); Fricke v. Sec’y of the Navy, No. 03-3412-RDR, 2006
U.S. Dist. LEXIS 36548, at *9-*11, 2006 WL 1580979, at *3-*5 (D.
Kan. June 5, 2006) (relying on this Court’s summary disposition
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of petitioner’s post-Article 76 request for coram nobis relief);
MacLean v. United States, No 02-CV-2250-K (AJB), 2003 U.S. Dist.
LEXIS 27219, at *13-*15 (S.D. Cal. June 6, 2003) (dismissing a
petition for coram nobis relief for lack of jurisdiction and
noting the availability of such relief before the Court of
Criminal Appeals); Parker v. Tillery, 1998 U.S. Dist. LEXIS
8399, at *3-*5, 1998 WL 295574, at *2 (D. Kan. May 22, 1998)
(post-Article 76 coram nobis review in the military justice
system demonstrated full and fair review of claim).
The foregoing cases illustrate the care taken by Article
III courts to ensure that an issue has been considered by the
courts within the military justice system established by
Congress prior to outside collateral review. These cases
reflect the Supreme Court’s recognition that the military is an
institution with distinct traditions and disciplinary concerns,
and that Congress has given the military justice system a
particular role to play in the maintenance of the traditions and
discipline essential to the national defense, as balanced
against the individual rights of servicemembers. See Section
II.D.1., supra. Particularly where a collateral challenge
requires interpretation of the UCMJ, the Manual for Courts-
Martial, or military law precedents, courts outside the military
justice system have endeavored to ensure that an issue has
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received full and fair consideration by courts within the
military justice system before undertaking their own review.
3. Requirement to bring a coram nobis petition before the
court that rendered the judgment
The likelihood that outside courts will defer taking action
on a coram nobis petition pending consideration within the
military justice system is increased by the well-recognized
principle that a writ of error coram nobis should be brought
before the court that rendered the judgment. See Loving, 62
M.J. at 251 (citing Steven J. Mulroy, The Safety Net: Applying
Coram Nobis Law to Prevent the Execution of the Innocent, 11 Va.
J. Soc. Pol’y & L. 1, 9 (2003); 2 Steven Childress & Martha
Davis, Federal Standards of Review, § 13.01, at 13-4 (3d ed.
1999)). This requirement reflects the importance of providing
the court that made the decision with the opportunity to
consider any subsequent developments and to correct any
resulting error in its original judgment. See, e.g., Lowery v.
McCaughtry, 954 F.2d 422, 422-23 (7th Cir. 1992) (discussing the
rationale underlying the principle and noting that “[c]oram
nobis arose as a device to extend the period . . . in which the
judge who rendered a decision could reexamine his handiwork”).
Many courts have disposed of writs of error coram nobis on this
basis. See id. (noting that counsel in that case “conceded that
she had not found even one decision in the history of the United
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States using coram nobis to set aside a judgment rendered by
another court”); see also United States v. Sawyer, 239 F.3d 31,
37 (1st Cir. 2001); Sinclair v. Louisiana, 679 F.2d 513, 514-15
(5th Cir. 1982); Mustain v. Pearson, 592 F.2d 1018, 1021 (8th
Cir. 1979); MacLean, 2003 U.S. Dist. LEXIS 27219, at *15; Carter
v. Attorney General of the United States, 782 F.2d 138, 141
(10th Cir. 1986).
In the military justice system, the trial court -- the
court-martial -- does not have independent jurisdiction over a
case after the military judge authenticates the record and the
convening authority forwards the record after taking action.
See R.C.M. 1102(d); R.C.M. 1107(f)(2); United States v. DuBay,
17 C.M.A. 147, 149, 37 C.M.R. 411, 412 (1967). Because the
trial court is not available for collateral review under the
UCMJ or the Manual for Courts-Martial, collateral review within
the military justice system does not occur at the trial court
level. See United States v. Murphy, 50 M.J. 4, 5-6 (C.A.A.F.
1998).2
2
Several Article III courts, citing Murphy, have noted the
unavailability of collateral review at the trial court as a
reason for concluding that court-martial convictions may not be
reviewed under 28 U.S.C. § 2255 (providing for collateral review
by “the court which imposed the sentence”). Witham v. United
States, 355 F.3d 501, 505 (6th Cir. 2004); Gilliam v. Bureau of
Prisons, No. 99-1222, 2000 U.S. App. LEXIS 3684, at *3, 2000 WL
268491, at *1 (8th Cir. Mar. 3, 2000) (unpublished); see Loving,
62 M.J. at 254-55. In Witham, the court considered the case
22
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In that context, the Courts of Criminal Appeals, the first-
level standing courts in the military justice system, provide an
appropriate forum for consideration of coram nobis petitions
regarding courts-martial. During the initial consideration of a
case, such as the case now before us, they engage in de novo
consideration of the record and expressly act on the findings
and sentence. Article 66(c), UCMJ. With respect to collateral
review of the present case, they are well-positioned to
determine whether corrective action on the findings and sentence
is warranted, including ordering any factfinding proceedings
that may be necessary.
4. The sequence of review in the present case
The Courts of Criminal Appeals have the authority,
expertise, and case-specific knowledge appropriate to conduct
the initial review of coram nobis petitions, particularly in
under the general habeas statute, 28 U.S.C. § 2241, and denied
relief on the grounds that three of the petitioner’s claims had
been considered fully and fairly in the military justice system
and the remaining two claims were procedurally defaulted. 355
F.3d at 506. In that context, the court did not address
exhaustion of other remedies, such as review under the All Writs
Act, 28 U.S.C. § 1651(a). In Gilliam, the court concluded that
the district court had erred in treating a petition under § 2241
as a claim for relief under § 2255. 2000 U.S. App. LEXIS 3684,
at *5-*6, 2000 WL 268491, at *2-*3. The court remanded the case
to the district court for further proceedings, including
consideration of whether the petitioner had exhausted his
remedies in the military justice system. 2000 U.S. App. LEXIS
3684, at *7, 2000 WL 268491, at *3.
23
Denedo v. United States, No. 07-8012/NA
view of the principle that coram nobis petitions should be
brought before the court that rendered the judgment. An Article
III court, when asked to consider a court-martial conviction on
an issue that has not been fully and fairly reviewed within the
military justice system and has not been defaulted procedurally,
is likely to defer action pending review by the court that
approved the conviction. The sequence of review -- collateral
review in the military justice system prior to review by the
Article III courts -- reflects adherence to the concept that the
primary responsibility for addressing challenges to courts-
martial resides with the courts in the military justice system
established by Congress.
Our conclusion -- that the Court of Criminal Appeals
provides an appropriate forum for coram nobis review -- takes
into account that the present case does not involve the
propriety of jurisdiction to convene a court-martial. The
present case involves the jurisdiction to review a case properly
referred to a court-martial, unlike, for example, United States
ex rel. Toth v. Quarles, 350 U.S. 11 (1955), which addressed the
question of jurisdiction to try a person by court-martial. In
Toth, the Supreme Court held that a court-martial may not be
convened to try a former servicemember who had no relationship
with the military at the time of trial. Id. at 23. The present
case involves a different question: whether a court-martial
24
Denedo v. United States, No. 07-8012/NA
conviction, imposed on a servicemember while in military status,
is subject to collateral review under the All Writs Act by the
court that approved the conviction. When court-martial
jurisdiction has been invoked properly at the time of trial, the
jurisdiction of the Court of Criminal Appeals to review the case
does not depend on whether a person remains in the armed forces
at the time of such review. See United States v. Davis, 63 M.J.
171, 176-77 (C.A.A.F. 2006) (citing cases). In the present
case, the court-martial that convicted Appellant had
jurisdiction over both the person and the offense. The Court of
Criminal Appeals had jurisdiction to review and approve the
findings and sentence on direct review. As such, the Court of
Criminal Appeals is an appropriate forum to receive and consider
a writ of coram nobis that involves a collateral challenge to
the court’s approval of the findings and sentence.
The Court of Criminal Appeals did not err by reviewing
Appellant’s petition under the All Writs Act. We consider next
whether Appellant’s petition meets the criteria for issuance of
a writ of error coram nobis.
III. CORAM NOBIS
A writ of error coram nobis requests the court that imposed
the judgment to consider exceptional circumstances, such as new
facts or legal developments, that may change the result. See
25
Denedo v. United States, No. 07-8012/NA
Loving, 62 M.J. at 252. Appellant’s coram nobis petition asked
the Court of Criminal Appeals to take corrective action with
respect to the findings and sentence that had been approved by
the court on direct review. The decision of the Court of
Criminal Appeals on a writ petition is subject to appellate
review. See, e.g., Dettinger v. United States, 7 M.J. 216, 222-
24 (C.M.A. 1979); C.A.A.F. R. 4.(b)(2); R.C.M. 1204(a)
Discussion.
Subsection A discusses the limitations on issuance of a
coram nobis writ. Subsection B addresses the application of the
threshold limitations to the circumstances of the present
appeal. Subsection C considers whether a writ of error coram
nobis is necessary or appropriate with respect to Appellant’s
claim that he was denied his constitutional right to the
effective assistance of counsel.
A. LIMITATIONS ON THE AVAILABILITY OF CORAM NOBIS
The Supreme Court, in Morgan, 346 U.S. at 511, observed
that coram nobis permits “[c]ontinuation of litigation after
final judgment and exhaustion or waiver of any statutory right
of review,” but only under very limited circumstances. Although
a petition may be filed at any time without limitation, a
petitioner must meet stringent threshold requirements: (1) the
alleged error is of the most fundamental character; (2) no
remedy other than coram nobis is available to rectify the
26
Denedo v. United States, No. 07-8012/NA
consequences of the error; (3) valid reasons exist for not
seeking relief earlier; (4) the new information presented in the
petition could not have been discovered through the exercise of
reasonable diligence prior to the original judgment; (5) the
writ does not seek to reevaluate previously considered evidence
or legal issues; and (6) the sentence has been served, but the
consequences of the erroneous conviction persist. See id. at
512-13; Loving, 62 M.J. at 252-53; 28 James Wm. Moore et al.,
Moore’s Federal Practice § 672.02[2][c], at 672-43-46 (3d ed.
2007); 3 Charles Alan Wright et al., Federal Practice and
Procedure: Criminal § 592 (3d ed. 2004); 6 Wayne R. LaFave et
al., Criminal Procedure § 28.9(a), at 121-22 (2d ed. 2004).
This Court has not previously identified the standards
applicable to review of an ineffective assistance of counsel
claim raised via a coram nobis petition. At a minimum, such
standards must ensure that relief is limited to circumstances in
which the requested writ is “necessary or appropriate” within
the meaning of the All Writs Act.” Loving v. United States, 64
M.J. 132, 145 (C.A.A.F. 2006). To implement that admonition, we
adopt the two-tiered evaluation used by Article III courts for
coram nobis review of ineffective assistance of counsel claims.
In the first tier, the petitioner must satisfy the threshold
requirements for a writ of coram nobis, as described above. If
the petitioner does so, the court then analyzes, in the second
27
Denedo v. United States, No. 07-8012/NA
tier, the ineffective assistance of counsel claim under
Strickland v. Washington, 466 U.S. 668 (1984). See, e.g.,
United States v. Bejacmar, 217 F. App’x 919, 922-23 (11th Cir.
2007) (petitioner did not satisfy coram nobis threshold
requirements because he failed to explain why he did not include
his ineffective of counsel claim in his prior request for habeas
relief); Evola v. Attorney General of the United States, 190 F.
App’x 171, 174-76 (3d Cir. 2006) (assuming petitioner met coram
nobis threshold requirements, the claim failed to demonstrate
prejudice under Strickland); United States v. Kwan, 407 F.3d
1005, 1017-18 (9th Cir. 2005) (petitioner satisfied coram nobis
threshold requirements and demonstrated that counsel’s erroneous
advice on immigration consequences of guilty plea was both
deficient and prejudicial); United States v. Castro, 26 F.3d
557, 559-63 (5th Cir. 1994) (petitioner satisfied coram nobis
threshold requirements and his claim that counsel failed to
inform him, prior to guilty plea, of opportunity to request a
judicial recommendation against deportation remanded to district
court for determination of whether it constituted ineffective
assistance of counsel). Because the claim arises under the All
Writs Act, the petitioner must establish a clear and
indisputable right to the requested relief. Cheney v. United
States Dist. Court, 542 U.S. 367, 381 (2004).
28
Denedo v. United States, No. 07-8012/NA
B. APPLICATION OF THE CORAM NOBIS THRESHOLD CRITERIA
Appellant’s writ petition meets the threshold criteria for
coram nobis review. First, the alleged error, denial of the
Sixth Amendment right to the effective assistance of counsel, is
of the most fundamental character. See, e.g., Kwan, 407 F.3d at
1018; Castro, 26 F.3d at 559; cf. Morgan, 346 U.S. at 512-13(coram nobis appropriate to remedy denial of Sixth Amendment
right to the assistance of counsel).
Second, there is no other adequate remedy, other than
consideration of coram nobis by the Navy-Marine Corps Court of
Criminal Appeals, to rectify the consequences of the alleged
error. Appellant is not in custody, so he cannot obtain relief
through a writ of habeas corpus. Morgan, 346 U.S. at 510
(rejecting the contention that the federal habeas corpus statute
should be construed “to cover the entire field of remedies in
the nature of coram nobis”).
The pending deportation hearings do not provide Appellant
with an adequate remedy. The proper forum for post-conviction
review of a court-martial proceeding is a collateral review
proceeding, see Section II.A., supra, not an administrative
proceeding in which the proposed agency action is a collateral
consequence of the conviction. In an administrative forum
addressing the collateral consequences of a conviction, such as
deportation, the hearing officer and any subsequent reviewing
29
Denedo v. United States, No. 07-8012/NA
court would be obligated to give res judicata effect to the
court-martial conviction. See Section II.C., supra. Because
Appellant’s claim did not receive full and fair consideration
within the military justice system on direct review, an outside
court is unlikely to review his writ petition prior to such
consideration by the Court of Criminal Appeals, the first-level
standing court that approved the findings and sentence at issue,
as discussed supra in Section II.D.
Third, valid reasons exist for not seeking relief earlier.
Appellant’s claim is that his counsel misinformed him as to the
immigration consequences of his guilty plea and that avoiding
deportation was the primary motivation for his guilty plea. His
conviction became final when it was affirmed by the Court of
Criminal Appeals on February 24, 2000, because Appellant did not
seek further review. However, the immigration consequences did
not become known to him until the Government initiated
deportation proceedings in 2006 and Appellant sought coram nobis
relief at the lower court within a few months of being notified
of those proceedings.
Fourth, the new information (the immigration consequences)
could not have been discovered through the exercise of
reasonable diligence prior to the original judgment. Appellant
retained civilian counsel to represent his interests in the
court-martial proceedings. Assuming, for purposes of the
30
Denedo v. United States, No. 07-8012/NA
threshold inquiry that his unrebutted allegations are true, he
exercised reasonable diligence by retaining counsel, calling
counsel’s attention to his concern about immigration
consequences, and relying on counsel’s advice assuring him that
he would not be deported on the basis of a special court-martial
conviction.
Fifth, the writ does not seek to reevaluate previously
considered evidence or legal issues. The appellate proceedings
on direct review did not consider whether Appellant’s plea was
compromised by misleading advice from counsel.
Sixth, the sentence has been served, but serious
consequences persist. The Government, through USCIS, has
initiated deportation proceedings that rely primarily on
Appellant’s court-martial conviction as the basis for
deportation.
The threshold criteria establish eligibility for review,
not the propriety of the requested writ. We consider next
whether the court below erred in denying relief with respect to
Appellant’s ineffective assistance of counsel claim
C. INEFFECTIVE ASSISTANCE OF COUNSEL
1. Applicable standards
A military accused is entitled under the Constitution and
Article 27(b), UCMJ, 10 U.S.C. § 827(b) (2000), to the effective
assistance of counsel. United States v. Scott, 24 M.J. 186,
31
Denedo v. United States, No. 07-8012/NA
187-88 (C.M.A. 1987) (citing Strickland, 466 U.S. 668). An
accused making a claim of ineffective assistance “must surmount
a very high hurdle.” United States v. Perez, 64 M.J. 239, 243
(C.A.A.F. 2006) (citation and quotation marks omitted). Courts
reviewing such a claim “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689. The
presumption of competence will not be overcome unless the
accused demonstrates: first, a deficiency that is “so serious
that counsel was not functioning as the counsel guaranteed the
defendant by the Sixth Amendment”; and second, that the accused
was prejudiced by errors “so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.” United
States v. Moulton, 47 M.J. 227, 229 (C.A.A.F. 1997) (quoting
Strickland, 466 U.S. at 687 ) (quotation marks omitted). When
challenging the effectiveness of counsel in a guilty plea case,
the accused must also “show specifically that ‘there is a
reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to
trial.’” United States v. Alves, 53 M.J. 286, 289 (C.A.A.F.
2000) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
The burden of establishing the truth of factual matters
relevant to the claim of ineffective assistance rests with the
accused. See United States v. Polk, 32 M.J. 150, 153 (C.M.A.
32
Denedo v. United States, No. 07-8012/NA
1991). If there is a factual dispute on a matter pertinent to
the claim, the determination as to whether further factfinding
will be ordered is resolved under United States v. Ginn, 47 M.J.
236 (C.A.A.F. 1997).
2. Appellant’s Claim of Ineffective Assistance of Counsel
Appellant’s Sixth Amendment claim focuses on the advice he
received from counsel prior to trial regarding the deportation
consequences of a guilty plea. The declaration accompanying
Appellant’s coram nobis petition states that: (1) he retained
Mr. C as civilian counsel to represent him at his court-martial
in 1998; (2) he told Mr. C that he was a permanent resident
alien who had been living in the United States for fourteen
years, that he intended to remain indefinitely, that his primary
concern was to avoid the risk of deportation, and that he was
more concerned about deportation and separation from his family
than the risk of going to jail; (3) Mr. C advised Appellant that
if he contested the charges, he would likely face a general
court-martial, and that an acquittal would avoid deportation
consequences; but a conviction at a general court-martial would
constitute a felony that could be used as a basis for
deportation; (4) Mr. C further advised him that a special court-
martial would constitute a misdemeanor and could not be used as
a basis for deportation; (5) Appellant entered into a pretrial
agreement that provided for referral of charges to a special
33
Denedo v. United States, No. 07-8012/NA
court-martial; and (6) Mr. C advised him of the specific words
that he would have to use in the plea colloquy to ensure that
the military judge did not reject the plea.
With respect to Appellant’s plea, we note that there are
specialized requirements for a guilty plea in the military
justice system. See Article 45, UCMJ. The military judge must
engage in a specific dialogue with the accused, in which the
accused addresses the voluntariness of the plea, describes the
factual basis for guilt, and demonstrates an understanding of
any pretrial agreement. R.C.M. 910(d)-(f). The record reflects
that Appellant had considerable difficulty in acknowledging
guilt during the military judge’s plea inquiry. The inquiry in
Appellant’s case extended over a two-day period before the
military judge finally accepted the plea.
Appellant was convicted, served his time in confinement,
and returned to civilian life. On two occasions, he applied to
the Immigration and Naturalization Service for naturalization.
On both occasions, his application was rejected, citing his
court-martial conviction. Each time, however, he was informed
that the rejection was based on conduct within the five-year
period prior to his application and was “without prejudice” to a
future application. In neither instance did the Government
suggest that he would face deportation.
34
Denedo v. United States, No. 07-8012/NA
In late 2006, however, six years after his conviction was
affirmed on direct appeal, the Government initiated deportation
proceedings against him. The deportation charges filed on
October 30, 2006 and April 12, 2007 are based on his 1998
conviction by special court-martial.
Appellant’s declaration states that Mr. C’s advice
regarding deportation consequences was the “decisive factor” in
his decision to plead guilty, and that he would have insisted on
going to trial had he been advised that a guilty plea could have
resulted in deportation. Appellant contends that the
deportation proceedings demonstrate that his counsel was
ineffective because the very consequence that counsel assured
him could be avoided by a guilty plea at a special court-martial
is now being pursued by the Government.
An attorney’s failure to advise an accused of potential
deportation consequences of a guilty plea does not constitute
deficient performance under Strickland. See, e.g., United
States v. Fry, 322 F.3d 1198, 1200 (9th Cir. 2003). An
affirmative misrepresentation about such consequences, however,
can constitute deficient performance, particularly when the
client requests the information and identifies the issue as a
significant factor in deciding how to plead. See, e.g., Kwan,
407 F.3d at 1015-16; United States v. Couto, 311 F.3d 179, 187-
88 (2d Cir. 2002); Qiao v. United States, No. 07 Civ. 3727
35
Denedo v. United States, No. 07-8012/NA
(SHS), 98 Cr. 1484 (SHS), 2007 U.S. Dist. LEXIS 87934, at *8,
2007 WL 4105813, at *3 (S.D.N.Y. Nov. 15, 2007); United States
v. Khalaf, 116 F. Supp. 2d 210, 217 (D. Mass. 1999); United
States v. Mora-Gomez, 875 F. Supp. 1208, 1213 (E.D. Va. 1995).
But see Commonwealth v. Padilla, No. 2006-SC-000321-DG, 2008 Ky
LEXIS 3, at *7, 2008 WL 199818, at *3 (Ky. Jan. 24, 2008).
Although occurring in a different context, the Supreme Court has
noted the importance of immigration consequences to a defendant
who is considering whether to plead guilty. INS v. St. Cyr, 533
U.S. 289, 322-23 (2001), superseded by statute on other grounds,
REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005).
To show prejudice from ineffective assistance of counsel in
a guilty plea case, an accused must show “that there is a
reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to
trial.” Hill, 474 U.S. at 59; Alves, 53 M.J. at 289. The focus
is not on the outcome of a potential trial, but on “whether
counsel’s constitutionally ineffective performance affected the
outcome of the plea process.” Hill, 474 U.S. at 59; cf. id. at
60 (finding no prejudice where petitioner neither alleged that
he would not have pleaded guilty absent counsel’s erroneous
advice, nor any special circumstances “that might support the
conclusion that he placed particular emphasis” on the subject of
the erroneous advice).
36
Denedo v. United States, No. 07-8012/NA
Appellant, noting that the Government has not rebutted his
declaration, asserts that we should treat the matters stated
therein as accurate and decide the legal issue of whether his
counsel was ineffective. See Ginn, 47 M.J. 236. In the current
posture of the case, we decline to do so. The case before us is
a writ appeal of a decision from the Court of Criminal Appeals,
not an original writ petition. At the Court of Criminal
Appeals, the Government filed a motion to dismiss and reserved
the right to file an answer addressing the substance of the
petition if ordered to do so by the court. The court below
denied the Government’s motion to dismiss, but also summarily
denied Appellant’s petition on the merits without ordering a
Government response. As a result, the Government did not have
the opportunity before the Court of Criminal Appeals to obtain
affidavits from the counsel who represented Appellant at trial
and to submit such other matter as might have a bearing on the
merits of Appellant’s claim.
The court below should not have dismissed Appellant’s
petition without obtaining and assessing such information. The
matter set forth in Appellant’s declaration, if true, warranted
consideration under Strickland, particularly in light of other
aspects of the trial and appellate record, including the nature
of the providence inquiry, Appellant’s apparent belief that he
could apply for naturalization without facing deportation
37
Denedo v. United States, No. 07-8012/NA
consequences, and the subsequent deportation proceedings. Until
the Government is required to respond on the merits, however, it
would be inappropriate to render a judgment on the merits of his
petition. At this stage, Appellant’s petition facially
establishes a sufficient basis for coram nobis review, but a
ruling on his petition would be premature without a Government
response, consideration by the Court of Criminal Appeals as to
whether counsel’s performance was deficient and, if so, whether
Appellant was prejudiced thereby. See United States v. Castro,
26 F.3d at 563; Downs-Morgan v. United States, 765 F.2d 1534,
1541-42 (11th Cir. 1985). In that regard, we note that the high
hurdles established in Strickland and Hill, both of which
involved collateral review, establish the appropriate standards
for assessing the Sixth Amendment claim in the present case,
both in terms of allegations of deficiency and prejudice. See
Khalaf, 116 F. Supp. 2d at 216 and cases cited therein.
IV. DECISION
Accordingly, we remand Appellant’s petition to the United
States Navy-Marine Corps Court of Criminal Appeals for further
proceedings, where the Government will have the opportunity to
obtain affidavits from defense counsel and submit such other
matter as the court deems pertinent. The Court of Criminal
Appeals will then determine whether the merits of Appellant’s
38
Denedo v. United States, No. 07-8012/NA
petition can be resolved on the basis of the written
submissions, or whether a factfinding hearing is required under
United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).
The court will determine whether Appellant’s counsel rendered
deficient performance and, if so, whether such deficiency
prejudiced Appellant under Strickland v. Washington, 466 U.S.
668 (1984). If prejudice is found, the court shall determine
whether the requested relief should be granted.
39
Denedo v. United States, No. 07-8012/NA
STUCKY, Judge (dissenting):
I find myself in agreement with many of the points made by
Judge Ryan in her able and scholarly dissenting opinion. I
consider it established that we have coram nobis jurisdiction in
cases in which the jurisdiction of the court-martial is at
issue. The extent of our jurisdiction beyond this very limited
area is questionable. However, even assuming that we have such
jurisdiction, this is not a proper case for coram nobis relief.
I would, therefore, deny the petition and do not find it
necessary now to determine the extent, if any, of our
jurisdiction beyond the circumscribed area set out above. See,
e.g., United States v. Tavares, 10 C.M.A. 282, 283, 27 C.M.R.
356, 357 (1959) (assuming without deciding that Court had
jurisdiction, “this case presents no grounds for invoking such
extraordinary relief”).
The majority opinion cites United States v. Frischholz, 16
C.M.A. 150, 36 C.M.R. 306 (1966), as authority for exercising
jurisdiction under the All Writs Act, 28 U.S.C. § 1651(a) (2000)
after Appellant’s conviction became final under Article 76,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 876.
Denedo v. United States, __ M.J. __ (18) (C.A.A.F. 2008). In
Frischholz, the government argued that the All Writs Act was
intended to apply only to Article III courts and at least
implied that our location “for administrative purposes” in the
Denedo v. United States, No. 07-8012/NA
Department of Defense made us something other than a “court” for
the purposes of the Act. Id. at 308 n.1. This Court properly
rejected those arguments, holding that the Act’s application to
“courts established by Act of Congress” was not limited to
courts established by Act of Congress pursuant to Article III of
the Constitution. Id. at 307-08. However, it is one thing to
state that this Court has authority to issue writs under the All
Writs Act and quite another to conclude that that authority
includes a general mandate to correct errors in cases that are
final by means of coram nobis. It is established that a writ
issued under the Act must be in aid of this Court’s existing
jurisdiction and may not be a vehicle for expanding it. Clinton
v. Goldsmith, 526 U.S. 529, 534-35 (1999); Font v. Seaman, 20
C.M.A. 387, 390, 43 C.M.R. 227, 230 (1971); United States v.
Snyder, 18 C.M.A. 480, 482-83, 40 C.M.R. 192, 194-95 (1969).
In Del Prado v. United States, 23 C.M.A. 133, 48 C.M.R. 749(1974), and Gallagher v. United States, 22 C.M.A. 191, 46 C.M.R.
191, (1973), we granted relief in cases in which direct review
was no longer available or had been completed. However, both of
these cases involved fundamental and inherent problems of
jurisdiction. In Del Prado, the accused was tried by a military
judge alone although he had not requested in writing that he be
so tried, Del Prado, 23 C.M.A. at 133, 48 C.M.R. at 749, while
in Gallagher, enlisted members sat on the accused’s court-
2
Denedo v. United States, No. 07-8012/NA
martial although he had not personally submitted a written
request for enlisted representation.1 Gallagher, 22 C.M.A. at
192, 46 C.M.R. at 192. Of course, a federal court always has
jurisdiction to determine its own jurisdiction. United States
v. United Mine Workers of America, 330 U.S. 258, 292 n.57
(1947); Mansfield, Coldwater & Lake Michigan Railway Company v.
Swan, 111 U.S. 379, 382 (1884). The expansive statements as to
jurisdiction in Del Prado and Gallagher, particularly the
assertion in Gallagher that the filing of a petition alone vests
jurisdiction in this Court, 22 C.M.A. at 193, 46 C.M.R. at 193,
must be read in that context. Neither Del Prado nor Gallagher
is authority for a general superintendency over cases in which
Article 67, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §
867 (2000), jurisdiction is otherwise absent. Goldsmith, 526
U.S. at 536.2
While I consider our authority to grant the requested
relief questionable, I need not reach that issue here, because
1
See United States v. Dean, 20 C.M.A. 212, 215, 43 C.M.R. 52, 55
(1970), and United States v. White, 21 C.M.A. 583, 584, 588-89,
45 C.M.R. 357, 358, 362-63 (1972), for the jurisdictional nature
of those errors.
2
In Garrett v. Lowe, 39 M.J. 293 (C.M.A. 1994), we granted
relief in a case in which fundamental jurisdiction was not at
issue, based upon an instructional error. However, this case is
distinguishable because, although Appellant styled his request
for relief as one for coram nobis, he was still in confinement
at the time and therefore habeas corpus was available. Id. at
295. We granted sentence relief without stating which
prerogative writ was the basis of the action. Id. at 297.
3
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Appellant has not made out a case for relief on the merits.
This is not a case in which there existed any fundamental
jurisdictional impediment to Appellant’s original trial by
court-martial, and indeed none is alleged. Rather, what we have
here is a case, like many others, in which the complaint is
ineffective assistance of counsel. Moreover, the claim of
ineffective assistance relates not to the conduct, findings, or
sentence of the court-martial, but purely to a collateral
consequence thereof.
Appellant asserts that his primary concern in his court-
martial was avoiding deportation; that he was erroneously
advised by his civilian counsel that a conviction by a special
court-martial would not subject him to deportation, but a
conviction by a general court-martial would; that he was advised
that the Government would take the case to a general court-
martial unless he pled guilty; that, in reliance upon this
advice, he pled guilty before a special court-martial; that
eight years later, the Department of Homeland Security initiated
deportation proceedings against him on the basis of the
conviction; and that, had he known of the possibility of
deportation, he would have pled not guilty and taken his chances
with the general court-martial.
Assuming, without deciding, that Appellant’s counsel
incorrectly advised him as to the state of the law, this alone
4
Denedo v. United States, No. 07-8012/NA
does not entitle him to coram nobis relief. Deportation is not
only a collateral consequence of a court-martial conviction, but
a consequence entirely outside the purview of the armed forces
and the system of military justice. As a general rule, this
Court has concerned itself with the collateral consequences of
court-martial convictions only in very limited circumstances.
United States v. Miller, 63 M.J. 452, 457 (C.M.A. 2006) (sex
offender registration); United States v. Boyd, 55 M.J. 217, 221
(C.A.A.F. 2001) (retirement benefits); United States v. Hall, 46
M.J. 145, 146 (C.A.A.F. 1997) (dependent benefits); United
States v. McElroy, 40 M.J. 368, 371-72 (C.M.A. 1994) (veterans’
benefits); United States v. Griffin, 25 M.J. 423, 424 (C.M.A.
1988) (retirement benefits); United States v. Bedania, 12 M.J.
373, 374-75 (C.M.A. 1982) (administrative separation resulting
from guilty plea). In Miller, we established a prospective
prophylactive rule that, while not per se ineffective
assistance, defense counsel’s failure to advise the accused of
possible sex offender requirements for offenses to which he is
pleading guilty will be “one circumstance this Court will
carefully consider in evaluating allegations of ineffective
assistance of counsel.” Miller, 63 M.J. at 459. In Boyd, we
established a prospective rule requiring military judges to
instruct on the effect of a punitive discharge on retirement
5
Denedo v. United States, No. 07-8012/NA
benefits, if requested by the defense and supported by the
evidence. Boyd, 55 M.J. at 221.
Coram nobis is an “extraordinary remedy” limited to “errors
of the most fundamental character, that is, such as rendered the
proceeding itself irregular and invalid.” United States v.
Morgan, 346 U.S. 502, 509 n.15 (1954) (quotation marks and
citation omitted); United States v. Mayer, 235 U.S. 55, 69
(1914). In Hirabayashi v. United States, 828 F.2d 591, 604 (9th
Cir. 1987), the Court of Appeals for the Ninth Circuit set out
four criteria for the issuance of the writ: (1) a more usual
remedy is not available; (2) valid reasons exist for not
attacking the conviction earlier; (3) sufficient adverse
consequences exist to satisfy the case or controversy
requirement; and (4) the error is of the most fundamental
character.
The third criterion applies to the Article III courts, not
to a court of purely statutory jurisdiction like this one. The
second criterion admittedly favors Appellant, since the
deportation proceedings were instituted years after the court-
martial. However, neither the first nor the last supports the
requested relief.
With regard to the first criterion, the lack of a more
usual remedy, Appellant has not yet been deported. As a lawful
permanent resident, he has a statutory right to notice and a
6
Denedo v. United States, No. 07-8012/NA
hearing before an immigration judge, as well as appellate rights
both within the executive branch and to the Article III courts.
Indeed, it appears that Appellant’s counsel intends to argue
that his special court-martial conviction does not constitute an
“aggravated felony” within the meaning of the immigration laws
-- the very question that is the gravamen of this ineffective
assistance of counsel claim. Writ-Appeal Petition at 18, n.11,
Denedo v. United States, No. 07-8012 (C.A.A.F. Mar. 30, 2007).3
In any event, the availability of meaningful direct review of
his immigration proceeding, in the venue and according to the
procedures set out by Congress for such matters, significantly
undercuts any argument for extraordinary relief in the military
justice system.
The fourth Hirabayashi criterion, that the error be of “the
most fundamental character,” is not met either. There was no
jurisdictional defect in Appellant’s court-martial; his sole
complaint is the alleged ineffective assistance of counsel which
admittedly did not manifest itself until years after the court-
martial, when the deportation proceeding was instituted.
Generally, failure to advise a client in a criminal trial of the
potential adverse immigration effects, including deportation, of
a guilty plea or conviction has not been held to constitute
3
If Appellant’s conviction is not an “aggravated felony,” then
it would appear that the advice given by his counsel at the
court-martial was legally correct.
7
Denedo v. United States, No. 07-8012/NA
ineffective assistance of counsel. This is because deportation,
or other immigration consequences, are collateral to the
criminal conviction and are thus not covered by the Sixth
Amendment in the criminal context. See, e.g., Varela v. Kaiser,
976 F.2d 1357, 1358 (10th Cir. 1992); Santos v. Kolb, 880 F.2d
941, 944-45 (7th Cir. 1989), superseded by statute on other
grounds, Immigration Act of 1990, Pub. L. No. 101-649, § 505(b),
104 Stat. 5050 (1990), as recognized in Rodriguez v. United
States, No. 92-3163, 1995 U.S. App. LEXIS 7920, at *3, 1995 WL
156669, at *1 (7th Cir. Apr. 6, 1995); United States v. George,
869 F.2d 333, 337 (7th Cir. 1989); United States v. Yearwood,
863 F.2d 6, 7-8 (4th Cir. 1988); United States v. Gavilan, 761
F.2d 226, 228-29 (5th Cir. 1985). The 1996 amendments to the
Immigration and Nationality Act relating to “aggravated
felonies” did not change the collateral nature of immigration
proceedings. El-Nobani v. United States, 287 F.3d 417, 421 (6th
Cir. 2002); United States v. Armador-Leal, 276 F.3d 511, 513
(9th Cir. 2002); United States v. Gonzalez, 202 F.3d 20, 26-27
(1st Cir. 2000).
Appellant, relying on United States v. Kwan, 407 F.3d 1005,
1015 (9th Cir. 2005) and United States v. Couto, 311 F.3d 179,
188 (2d Cir. 2002), attempts to draw a distinction between
failure to advise as to the potential immigration consequences
of a conviction and incorrect advice on the subject. But a
8
Denedo v. United States, No. 07-8012/NA
defendant in a criminal trial who alleges ineffective assistance
of counsel must show more than incorrect advice; he must show
prejudice. To meet this standard, he must show that, absent the
errors, the outcome of the trial would have been different, and
that the result of the trial was fundamentally unfair or
unreliable. Strickland v. Washington, 466 U.S. 668, 687 (1984);
accord Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). Here,
all we are presented with is the bald assertion that, had the
advice been correct, Appellant would not have pled guilty, but
would have taken his chances before a general court-martial,
where a conviction would have exposed him to a considerably
harsher sentence and, in any event, still would have subjected
him to deportation. This is insufficient. Parry v. Rosemeyer,
64 F.3d 110, 118 (3d Cir. 1995); Armstead v. Scott, 37 F.3d 202,
210 (5th Cir. 1994); Key v. United States, 806 F.2d 133, 139
(7th Cir. 1986); see also State v. Sabillon, 622 S.E.2d 846,
848-49 (2005). It is questionable whether Appellant has even
made out a case for prejudice under applicable ineffective
assistance of counsel law; in any event, he has not met the far
higher standard -- error “of the most fundamental character” --
necessary for coram nobis relief.4
4
Whether any nonjurisdictional error can meet the “fundamental
character” standard is a question that need not be reached in
this case. I am satisfied that on these facts, Appellant has
not met that standard.
9
Denedo v. United States, No. 07-8012/NA
I respectfully dissent.
10
Denedo v. United States, No. 07-8012/NA
RYAN, Judge (dissenting):
“Courts created by statute can have no jurisdiction but
such as the statute confers.” Christianson v. Colt Indus.
Operating Corp., 486 U.S. 800, 818 (1988) (quoting Sheldon v.
Sill, 49 U.S. 441, 449 (1850)). There is no statutory basis for
jurisdiction in this Court in this case: The petitioner is a
civilian, lawfully discharged from military service pursuant to
a court-martial conviction. And the case has been final, for
purposes of both Articles 71 and 76, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 871, 876 (2005), for seven years.
Indeed, the statutory limits of this Court’s jurisdiction are
precisely to the contrary. See Articles 2, 3, 66, 67, 73, and
76, UCMJ, 10 U.S.C. §§ 802, 803, 866, 867, 873, 876 (2005).
Although we have no jurisdiction over Denedo and final
cases fall outside our statutory mandate, the majority
nonetheless concludes today that this Court has jurisdiction.
This is perplexing. In addition to being contrary to the
statutory scheme, this Court’s assertion of jurisdiction flies
in the face of Supreme Court precedent, the decisions of at
least two federal circuit courts of appeal, and the position,
for the past fifty-seven years, of the solicitors general of the
United States as agents of the President, commander in chief of
the armed forces. See Solorio v. United States, 483 U.S. 435,
439-40 (1987) (recognizing that military jurisdiction is tied to
1
Denedo v. United States, No. 07-8012/NA
military status, i.e., U.S. Const. art. I, § 8, cl. 14 –- a
person within the “land and naval Forces”); United States ex
rel. Toth v. Quarles, 350 U.S. 11, 14-15 (1955) (holding that
Article I military jurisdiction could not be “extended to
civilian ex-soldiers who had severed all relationship with the
military and its institutions”); Gusik v. Schilder, 340 U.S.
128, 132 (1950) (interpreting the predecessor to Article 76 --
Article 53 of the Articles of War, 62 Stat. 639, 10 U.S.C. §
1525 (1950) -- and concluding that finality “describe[es] the
terminal point for proceedings within the court-martial
system”); see also Witham v. United States, 355 F.3d 501, 505
(6th Cir. 2004) (stating that “neither the Uniform Code of
Military Justice nor the Manual for Courts-Martial provides for
collateral review within the military courts”); Gilliam v.
Bureau of Prisons, No. 99-1222, 2000 U.S. App. LEXIS 3684, at
*4, 2000 WL 2684919, at *2, (8th Cir. Mar. 10, 2000) (“Unlike
the practice in the United States Circuit Courts of Appeal and
District Courts, neither the UCMJ . . . nor the Manual for
Courts-Martial . . . provides procedures for collateral, post-
conviction attacks on guilty verdicts.”) (quoting United States
v. Murphy, 50 M.J. 4, 5 (C.A.A.F. 1998) (quotation marks
omitted)); Brief for Petitioners on the Jurisdictional Issues at
7, Schlesinger v. Councilman, 420 U.S. 738 (1975) (No. 73-662)
(stating that the legislative history of Article 76, UCMJ shows
2
Denedo v. United States, No. 07-8012/NA
that Article III court collateral review was expected to be “the
sole exception to the finality of actions within the military
court system”); Brief for Respondent at 3-4, Gusik, 340 U.S. 128(No. 110) (stating that the exception to finality for a motion
for new trial in the Articles of War provided the sole
collateral remedy within the courts-martial system). I agree
with the Supreme Court, the Sixth and Eighth Circuits, the
solicitors general, and the Government’s position in this case:
we have no jurisdiction over a discharged civilian’s case that
is final under Article 76, UCMJ.
The majority conclusorily asserts that it has jurisdiction,
grounded in the fact that Denedo was once in the military, and
his case once fell within the statutory jurisdiction of the
military justice system. See Denedo v. United States, __ M.J.
__ (10) (C.A.A.F. 2008) (“The existing statutory jurisdiction of
the Navy-Marine Corps Court of Criminal Appeals includes cases
such as Appellant’s, in which the sentence extends to a punitive
discharge.”). It does not explain how jurisdiction follows in
this case. As the Supreme Court reminded this Court not so very
long ago, we are “not given authority, by the All Writs Act [28
U.S.C. § 1651(a) (2000)] or otherwise, to oversee all matters
arguably related to military justice, or to act as a plenary
administrator even of criminal judgments [we have] affirmed.”
Clinton v. Goldsmith, 526 U.S. 529, 536 (1999).
3
Denedo v. United States, No. 07-8012/NA
It is unclear to me why the Court charts this course today.
Denedo’s claim –- ineffective assistance of counsel, based on
newly discovered evidence, after his case is final under Article
76, UCMJ -- would be cognizable immediately in federal court but
for this Court’s refusal to state that it lacks jurisdiction.
Massaro v. United States, 538 U.S. 500, 504 (2003) (stating that
ineffective assistance may be raised on collateral review
irrespective of whether petition could have raised it on direct
appeal); Dobbs v. Zant, 506 U.S. 357, 358-60 (1993) (holding
that courts should consider newly discovered evidence regarding
ineffective assistance of counsel on collateral review). I do
not question that the military justice system can fairly assess
Denedo’s claim. But the majority’s suggestion that the military
system is somehow better able to assess his claim in this case,
a fact-bound question involving a civilian and a civilian
attorney and grounded in part in assessment of immigration law,
is unfounded.
I. Absent Jurisdiction No Writ May Issue
The Court provides relief today by remanding the case for
additional action by the Court of Criminal Appeals (CCA), in
reliance on the All Writs Act. But in the absence of
jurisdiction, a writ may not issue. Marbury v. Madison, 5 U.S.
137, 173 (1803). Most recently the Supreme Court reaffirmed
this longstanding principle as it relates to the jurisdiction of
4
Denedo v. United States, No. 07-8012/NA
this Court, stating that, “the express terms of the [All Writs]
Act confine the power of the CAAF to issuing process ‘in aid of’
its existing statutory jurisdiction; the Act does not enlarge
that jurisdiction.” Goldsmith, 526 U.S. at 534-35. The All
Writs Act is a mechanism for exercising power a court already
has. The starting point of the analysis must always be whether
a court has jurisdiction before proceeding to the question
whether a writ should issue. See 28 U.S.C. § 1651(a) (2000).
This Court, as a legislatively created Article I court, is
a court of limited jurisdiction. Our limited powers are defined
entirely by statute. See generally Articles 2-3, 66-76, UCMJ,
10 U.S.C. §§ 802-03, 866-76 (2005). Despite the majority’s
holding to the contrary, under those Articles no jurisdiction
exists in this case.
A. This Court Does Not Have Jurisdiction Over
Discharged Civilians Who Have Severed
Their Connection With the Military
Article I, § 8, cl. 14 of the U.S. Constitution empowers
Congress “[t]o make Rules for the Government and Regulation of
the land and naval Forces.” Articles 2 and 3, UCMJ, reflect the
considered judgment of Congress as to those classes of persons
who fall within that constitutional grant. Article 2, UCMJ,
delineates jurisdiction over “[p]ersons subject to this
chapter.” Persons discharged from the armed forces, other than
retired members under Article 2(a)(4) and (5), UCMJ, or persons
5
Denedo v. United States, No. 07-8012/NA
in custody of the armed forces serving a sentence imposed by
court-martial under Article 2(a)(7), UCMJ, are not included
within Article 2, UCMJ. Article 3, UCMJ, entitled
“[j]urisdiction to try certain personnel,” sets forth, inter
alia, the limited circumstance in which a discharged
servicemember is not relieved from military jurisdiction: a
person charged with fraudulently obtaining his discharge or who
has deserted.1 Article 3(b) and (c), UCMJ. Articles 2 and 3,
UCMJ, are consonant with the considered view that the military
justice system does not have jurisdiction over civilians, and
that there is a military community, a civilian community, and
“no third class which is part civil and part military.” William
Winthrop, Military Law and Precedents 106 (2d. ed. 1920).
The Supreme Court has not hesitated to invalidate any
efforts by Congress or the military to sweep civilians
unattached to a military unit within the jurisdiction of the
military justice system. See, e.g., McElroy v. United States ex
rel Guagliardo, 361 U.S. 281, 284-87 (1960) (holding that a
provision of the UCMJ extending jurisdiction to persons
accompanying the armed forces outside the continental limits of
the United States could not be constitutionally applied to
civilian employees in time of peace); Reid v. Covert, 354 U.S.
1Article 3(a), UCMJ, relates to persons currently in a status
covered by Article 2, UCMJ.
6
Denedo v. United States, No. 07-8012/NA
1, 30-35 (1957) (invalidating the same provision as applied to
civilian dependents of members of the armed forces in time of
peace); Toth, 350 U.S. at 14 (recognizing that Article I
military jurisdiction could not be “extended to civilian ex-
soldiers who had severed all relationship with the military and
its institutions”). I fear that today the majority invites the
Supreme Court to issue another decision reaffirming the holdings
of this line of cases.
B. Denedo is a Civilian Who Has Severed All
Relationship With the Military
Denedo is a former servicemember lawfully discharged from
military service pursuant to a court-martial conviction. He has
no current relationship with the military –- at least no more of
a relationship than any other civilian who was formerly in the
military might have if he had filed a writ of coram nobis here
-- which is to say, no legally cognizable relationship with the
military justice system under the UCMJ.
The majority acknowledges that Denedo was discharged from
the Navy on May 30, 2000. On that day, the bad-conduct
discharge adjudged at his court martial and approved by the
convening authority was effective, and Denedo was a civilian,
completely detached from the military and the military justice
system. And, as stated above, Article 2, UCMJ does not provide
jurisdiction over military personnel who have been discharged
7
Denedo v. United States, No. 07-8012/NA
from the military service and have no remaining connection to
the military. Toth, 350 U.S. at 14 (“[i]t has never been
intimated by [the Supreme] Court . . . that Article I military
jurisdiction could be extended to civilian ex-soldiers who had
severed all relationship with the military and its
institutions”). It is contrary to the limited nature of a
legislatively created Article I court to exercise jurisdiction
over a person not specifically prescribed by statute. The
majority opinion fails to explain how we have jurisdiction over
Denedo, given his discharge.
C. Collateral Review is Outside Article 67, UCMJ
Article 67, UCMJ, provides jurisdiction for this Court to
“review the record” in specified cases reviewed by the CCA. The
fact that Denedo’s case was such a case is a truism that
provides no legal authority or logical support for collateral
review now that his case is final. The majority’s reasoning
from true premises to unrelated conclusions without statutory or
other authority is unsound.
Moreover, it is not at all clear how Article 66 or 67,
UCMJ, supports an assertion of jurisdiction to conduct
collateral review. The CCAs have jurisdiction to act on “the
findings and sentence as approved by the convening authority.”
Article 66(c), UCMJ. In undertaking this review, a CCA may only
affirm such parts of the findings and sentence “as it finds
8
Denedo v. United States, No. 07-8012/NA
correct in law and fact and determines, on the basis of the
entire record, should be approved.” Id. While reasonable
minds may differ as to what is included in “the record,” matters
that have not been reviewed by the convening authority are not
part of the record of trial, and therefore are unreviewable by
the CCA or this Court. See United States v. Beatty, 64 M.J.
456, 458 (C.A.A.F. 2007) (discussing what constitutes the
“entire record” for purposes of Article 66(c), UCMJ, review).
Articles 66 and 67, UCMJ are statutes governing direct
review of courts-martial2 because the jurisdictional grants under
Articles 66 and 67, UCMJ are tied to “the record.” See Beatty,
64 M.J. at 458. It is not surprising that collateral review is
not provided for within those statutes. Collateral review most
often requires, by its terms, development and consideration of
something outside “the record.” See Parke v. Raley, 506 U.S.
20, 30 (1992) (citing Black’s Law Dictionary 261 (6th ed.
1990)); see also John McKee VanFleet, The Law of Collateral
2
This does not rule out jurisdiction in the limited exception
recognized by the Supreme Court in Goldsmith, 526 U.S. at 536
to “compel adherence to its own judgment.” See also United
States v. United States District Court, 334 U.S. 258, 263-64
(1948) (discussing the power of federal courts of appeals to
issue mandamus). And, as always, a court may question whether
its initial judgment was void in the first instance for want of
jurisdiction. United States v. Ruiz, 536 U.S. 622, 628 (2002)
(citing United States v. United Mine Workers, 330 U.S. 258, 291
(1947)).
9
Denedo v. United States, No. 07-8012/NA
Attack on Judicial Proceedings 5-6 (1892) (defining a collateral
attack).
In those instances where cases on direct review require
additional fact finding, we have an unwieldy and imperfect
system in place to facilitate inclusion of those facts in the
record: new factual matters must be developed at a court-
martial, revisited by the convening authority, and “included” in
the record for review.3 United States v. DuBay, 17 C.M.A. 147,
149; 37 C.M.R. 411, 413 (1967). Additional awkward constructs
were created to determine the threshold question whether
additional facts were needed. United States v. Ginn, 47 M.J.
236, 248 (C.A.A.F. 1997). But the fact that these procedures
may apply on direct review is not relevant to whether this Court
has the power to employ them on collateral review. Moreover, it
is untenable to suggest that jurisdiction for collateral review
of final cases is clear under Articles 66 and 67, UCMJ, in
instances where collateral review of the issue necessarily
requires the development of facts outside the statutory grant.
And this Court has no mechanism for doing so. See United States
v. Walters, 45 M.J. 165, 167 (C.A.A.F. 1996) (Cox, C.J., and
Sentelle, J., United States Court of Appeals for the District of
3
The permutations and legal gymnastics necessary to bring cases
on direct review within our statutory grant in the limited
circumstances where new facts must be brought within “the
record” are challenging enough for any justice system.
10
Denedo v. United States, No. 07-8012/NA
Columbia, sitting by designation, concurring in the result)
(urging “the Joint-Service Committee on Military Justice to
consider and recommend to the President a procedure by which
collateral attacks on courts-martial might be litigated”).4
There is no mention of, and thus no provision for, post-finality
collateral review anywhere within Article 66 or 67, UCMJ.
D. Denedo Seeks Collateral Review
In this case Denedo filed a writ coram nobis at the CCA
seeking to challenge his court-martial conviction on the grounds
that his Sixth Amendment right to counsel was violated because
his counsel was ineffective. Denedo alleges that his civilian
counsel told him that if he pled guilty he would not be
deported. He alleges that he recently discovered that this was
not true. Obviously, this privileged conversation was not
included in the record of trial. For Denedo to have any hope of
prevailing, evidence extrinsic to the record must be developed.
See Massaro, 538 U.S. at 505 (stating the advantages of
collateral review in developing the factual predicate for an
ineffective assistance of counsel claim); see also DuBay, 17
C.M.A. at 149, 37 C.M.R. at 413. As the case is final, and no
4
Chief Judge Cox’s observation is relevant to this case. I note
that military counsel has entered an appearance before this
Court on behalf of Denedo. I question whether, under the
reasoning of the majority opinion, Article 70(a) and (c), UCMJ,
would require that Denedo, and all other similarly situated
litigants whose cases are final, be afforded military counsel as
their cases proceed.
11
Denedo v. United States, No. 07-8012/NA
convening authority or court-martial has jurisdiction over a
discharged servicemember, we have no mechanism for developing
these extrinsic facts.5
II. The Effect of Finality Under Article 76, UCMJ
In addition to lacking statutory jurisdiction over a
civilian’s writ seeking collateral review of a court-martial,
today the Court acts on a case that has been “final” for seven
years.
Denedo’s bad-conduct discharge was capable of execution on
May 30, 2000, because appellate review was completed and the
findings and sentence were approved, reviewed, and affirmed as
required by the UCMJ. Execution of the bad-conduct discharge
returned Denedo to civilian status. Completion of appellate
review also meant his case was “final” for purposes of Article
76, UCMJ. See Rule for Courts-Martial (R.C.M.) 1209. As
expressed in Article 76, UCMJ, this means the same proceedings,
findings, and sentence Denedo complains of here are “final and
conclusive” within the court-martial system, subject to specific
exceptions.
Article 76, UCMJ, states that:
5
Even if the CCA or this Court acts on Denedo’s claims of
ineffective assistance of counsel, it is unclear how that
necessarily grants the relief he truly requests. He wishes to
stop the deportation proceedings that stem from his conviction.
But neither this Court nor the CCA has the power to prevent the
Department of Homeland Security, Immigration and Customs
Enforcement division, from exercising its deportation powers.
12
Denedo v. United States, No. 07-8012/NA
The appellate review of records of trial
provided by this chapter, the proceedings,
findings, and sentences of courts-martial as
approved, reviewed, or affirmed as required by
this chapter, and all dismissals and discharges
carried into execution under sentences by courts-
martial following approval, review, or
affirmation as required by this chapter, are
final and conclusive. Orders publishing the
proceedings of courts-martial and all action
taken pursuant to those proceedings are binding
upon all departments, courts, agencies, and
officers of the United States, subject only to
action upon a petition for a new trial as
provided in section 873 of this title (article
73) and to action by the Secretary concerned as
provided in section 874 of this title (article
74), and the authority of the President.
(emphases added).
The language of the statute suggests that once appellate
review is complete, the findings and sentence are “final and
conclusive,” subject only to action upon a petition for a new
trial pursuant to Article 73, UCMJ, remission and suspension
actions by the service secretaries, pursuant to Article 74,
UCMJ, or presidential action.6 No exception is listed for writs
of coram nobis or other collateral review.
6
Despite this clear statutory limitation the majority cites
United States v. Davis, 63 M.J. 171, 176-77 (C.A.A.F. 2006), for
the proposition that “[w]hen court-martial jurisdiction has been
invoked properly at the time of trial, the jurisdiction of the
Court of Criminal Appeals to review the case does not depend on
whether a person remains in the armed forces at the time of such
review.” Denedo, ___ M.J. ___ (25). In Davis, unlike the
current case, direct review had not been completed; therefore
the case was not yet final. 63 M.J. at 176. Nothing in Davis
or the cases cited therein serves as precedent for the concept
13
Denedo v. United States, No. 07-8012/NA
A. Finality Does Not Preclude Collateral
Review by Article III Courts
It was soon recognized that applying the literal language
of Article 76, UCMJ, raised constitutional concerns because it
would, implicitly, conflict with the Suspension Clause. See
U.S. Const. art. I, § 9, cl. 2; Schlesinger v. Councilman, 420
U.S. at 751. Consequently the Supreme Court interpreted the
finality provision to not deprive Article III courts of
collateral review authority. But the Supreme Court did note
that Article 76, UCMJ, “describe[s] the terminal point for
proceedings within the court-martial system.” Schlesinger, 420
U.S. at 750 (quoting Gusik, 340 U.S. at 132). And no one
suggests that the Court of Appeals of the Armed Forces is not
part of the “court-martial system.” See Article 67, UCMJ
(describing this Court’s subject-matter jurisdiction over
courts-martial).
Instead of taking the Supreme Court’s opinion in
Schlesinger at face value, the majority claims it supports the
proposition that Article 76, UCMJ, is merely a “prudential bar”
to review of final decisions. This is clearly so for an Article
III court. But the majority does not recognize that there is a
difference between what is “prudential” for an Article III
court, and what is a statutory directive for an Article I,
that there is “continuing jurisdiction” over cases that are
final under Article 76, UCMJ.
14
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legislatively created court. While an Article III court may, if
it wishes, step into the breach whenever constitutional
justiciability requirements are satisfied, this Court is limited
to acting only when our statutory grant so allows. Goldsmith,
526 U.S. at 535.
Schlesinger is not to the contrary. The statutory
framework, as drafted by Congress, signed into law by the
President, and interpreted by the Supreme Court, counsels that
we yield to the Article III courts once we have reached the
“terminal point,” as described by the finality provision in
Article 76, UCMJ. That collateral review is so circumscribed is
neither surprising nor unjust given the reality that, where a
case is final for purposes of Article 76, UCMJ, the individual
will almost certainly no longer be a servicemember.7
B. Ignoring the Effect of Article 76, UCMJ,
Eviscerates the Statutory Scheme
The majority cites the text of Article 76, UCMJ, but avoids
discussing the specific exceptions to finality listed therein.
7
That Article 76, UCMJ, is bypassed by the majority as
irrelevant to jurisdiction is surprising. Two years ago this
Court, in response to the Government’s argument that the Court
did not have jurisdiction because a case was final, did not say
that finality was irrelevant to its review. Loving v. United
States, 62 M.J. 235, 240-45 (C.A.A.F. 2006). Instead, it went
through a lengthy analysis to explain why the case was not, in
fact, final under Article 76, UCMJ, although it ultimately
concluded that it need not address whether this Court has
jurisdiction after a case is final. Id.15
Denedo v. United States, No. 07-8012/NA
Having avoided the listed exceptions, it suggests that Article
76, UCMJ, is wholly “prudential” for both Article I and Article
III courts. Given the holdings of the Supreme Court and the
language of the statute, this interpretation is perplexing. The
only exception to Article 76, UCMJ, finality recognized by the
Supreme Court is Article III collateral review –- i.e., review
outside the military justice system. Schlesinger, 420 U.S. at
749. And the only exceptions to finality contained within
Article 76, UCMJ, itself are petitions for a new trial under
Article 73, UCMJ, remission or suspension under Article 74,
UCMJ, or presidential action.
Article 73, UCMJ, allows for collateral review within two
years of convening authority action. Tellingly, this “special
post-conviction remedy,” Burns v. Wilson, 346 U.S. 137, 141
(1953), is vested not in this Court, but in the judge advocates
general of each branch unless the case is pending before this
Court or the CCA at the time the petition is made. An Article
73, UCMJ, petition for new trial, is the sole statutory
provision for collateral review of final judgments by a court
within our system. See Article 76, UCMJ. The decisions of at
least two federal courts of appeal confirm this point, and
today’s decision creates a circuit split. See Witham, 355 F.3d
at 505; Gilliam, 2000 U.S. App. LEXIS 3684, at *5, 2000 WL
268491, at *2. The position of these courts is consistent with
16
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the position of the solicitors general of the United States in
Gusik and Schlesinger. Brief for Petitioners on the
Jurisdictional Issues at 7, Schlesinger, 420 U.S. 738 (No. 73-
662); Brief for Respondent at 3-4, Gusik, 340 U.S. 128 (No.
110).
The majority opinion’s contrary interpretation ignores both
the language of the statute and the statutory limitations placed
on claims for a new trial. Denedo’s claim is nothing more than
a petition for a new trial, dressed up as a writ of coram nobis.8
For this Court to permit a petition for a new trial to escape
the statutory limitations placed upon it by Congress and allow
this petition to proceed as a writ of coram nobis eviscerates
Article 73, UCMJ, and renders Article 76, UCMJ’s, finality
provision meaningless. See Reiter v. Sonotone Corp., 442 U.S.
330, 339 (1979) (citing United States v. Menasche, 348 U.S. 528,
538-539 (1955)) (“In construing a statute we are obliged to give
effect, if possible, to every word Congress used.”).
8
A writ coram nobis must be directed at the court that issued
the decision. Lowery v. McCaughtry, 954 F.2d 422, 423 (7th Cir.
1992); see generally Abraham L. Freedman, The Writ of Error
Coram Nobis, 3 Temple L.Q. 365 (1929); Note, 37 Harv. L. Rev.
744 (1924). Because we do not have standing courts, the
military justice system appears ill-suited to this form of
relief, as this Court recently acknowledged. See Loving, 62
M.J. at 251-55. The majority’s attempt to transmogrify the CCA
into a trial court for the purpose of the analysis in this case
is unfounded. The CCA is in no better position to rule on a
writ coram nobis than the federal courts or we are. None were
the original trial court.
17
Denedo v. United States, No. 07-8012/NA
Today’s decision is disturbing. By asserting it can act on
a final case involving a person who is not within Article 2,
UCMJ, and ignoring the clear language of the statutory scheme,
the Court effectively asserts that it can review any case, at
any time. There is now no terminal point for this Court’s
jurisdiction.
III. Clinton v. Goldsmith Redux?
The justification for today’s opinion rests on tautologies,
such as “Congress enacted the UCMJ under its power to regulate
the armed forces,” and “the military is an institution with
distinct traditions and disciplinary concerns.” These are
truisms, and thus no doubt true. Of course, it is also true
that Denedo is lawfully discharged from the military and that
the Constitution only grants Congress the power, vis-à-vis this
Court, to “make Rules for the Government and Regulation of the
land and naval Forces.” U.S. Const. art. I, § 8, cl. 14.
But the majority’s justification is troubling not so much
because it is misplaced, but because it is highly reminiscent of
the position of this Court prior to the Supreme Court’s decision
in Clinton v. Goldsmith. At that time this Court, without
statutory authority, asserted it had collateral review power
over cases that were final.9 Garrett v. Lowe, 39 M.J. 293, 295
9
Goldsmith was a final case heard on collateral review. 526 U.S.
at 532-33. While the Supreme Court could have decided Goldsmith
18
Denedo v. United States, No. 07-8012/NA
(C.M.A. 1994); Del Prado v. United States, 23 C.M.A. 132, 133-
34, 48 C.M.R. 748, 749-50 (1974); United States v. Frischholz,
16 C.M.A. 150, 151-53, 36 C.M.R. 306, 307-09 (1966).
It was upon those decisions, and the analysis that underlay
them, that this Court’s decision in Goldsmith rested. See,
e.g., Goldsmith v. Clinton, 48 M.J. 84, 86 n.3 (C.A.A.F. 1998)
(citing Frischholz, 16 C.M.A. at 151-52, 36 C.M.R. at 308
(stating that Article 67, UCMJ, does not describe the full
powers of this Court; rather, the Court also possesses
incidental powers as part of its responsibility under the UCMJ
to protect the constitutional rights of members of the armed
forces), and Gale v. United States, 17 C.M.A. 40, 42, 37 C.M.R.
304, 306 (1967) (stating that Congress intended to grant this
Court “supervisory power over the administration of military
justice”)). Those decisions, contrary to the well-established
principle of expressly limited jurisdiction of Article I courts,
were based on the notion that this Court had plenary power over
the administration of military justice and all things over which
it once had jurisdiction. See Goldsmith, 48 M.J. at 86-87
based on finality, that issue was not raised, and it decided the
case based on an arguably more important jurisdictional theory –
- that this Court does not have plenary power over everyone and
everything that has, at some point, touched the military justice
system. Id. at 536. Applying the logic of the Court’s opinion
in Goldsmith –- a strict interpretation of this Court’s
legislative grant of authority –- to Articles 2, 67, and 76,
UCMJ, yields a result opposite to the conclusion reached by the
majority in this case.
19
Denedo v. United States, No. 07-8012/NA
(stating that “Congress intended for this Court to have broad
responsibility with respect to the administration of military
justice”). Given that this analytic framework was expressly
rejected by the Supreme Court when it reversed our decision in
Goldsmith, it is both significant and surprising that the
majority relies upon these cases today.
When the Supreme Court overturned this Court’s Goldsmith
opinion, it made it clear that this Court occupied only a small
plot of the judicial landscape, and that that plot was
circumscribed by statute. Goldsmith, 526 U.S. at 533-35.
Inexplicably, this Court appears determined not to heed the
Supreme Court’s unequivocal directive that it stay squarely
within the express limits of statutory jurisdiction.10
IV. Denedo’s Claims Are Not Uniquely Military
in Nature, and Collateral Review is
Not Foreclosed in an Article III Court
Today’s decision is particularly odd given the facts of
this case. The majority appears to argue that this Court must
review Denedo’s case because it involves unique aspects of
10
The majority’s reliance on footnote eleven of Goldsmith is
misplaced. There, the Supreme Court cited, inter alia, Noyd v.
Bond, 395 U.S. 683, 693-99 (1969), and Burns v. Wilson, 346 U.S.
at 142, for the proposition that once a servicemember had
exhausted his military remedies, final decisions of the military
justice system could be collaterally reviewed under 28 U.S.C. §
2241(c) (2000), by Article III courts. In Goldsmith, the
Supreme Court said nothing about collateral review of final
judgments by this Court after a petitioner had exhausted the
remedies outlined in Article 76, UCMJ.
20
Denedo v. United States, No. 07-8012/NA
military justice. If we do not review, the argument goes, no
one can or will. This logic is flawed, as both premises are
unsound.
First, there is nothing uniquely military about this case.
While this case, or any case for that matter, can be cloaked in
military justice rhetoric, this is essentially a garden variety
claim of ineffective assistance of counsel, coupled with an
argument regarding an immigration problem.
Denedo, who is a civilian, claims he could not have raised
his Sixth Amendment claim before now. This constitutional claim
is grounded in conversations that transpired between Denedo and
his civilian defense counsel and the intricacies of federal
immigration law. Neither this Court nor the CCA has a record of
Denedo’s conversation with his civilian lawyer, special
knowledge beyond that of an Article III court of the myriad ways
to prove ineffective assistance under Strickland v. Washington,
466 U.S. 668 (1984), or any expertise with respect to
immigration law. There is no colorable argument that this Court
is in a better position to review this claim than an Article III
court.
Nor is it correct that this Court is the sole option on
collateral review if the correct standard is applied. The fact
that this Court had not weighed in on Denedo’s claim would not
have been dispositive of whether an Article III court would
21
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address the merits of his claim, because he claims that he only
recently learned of violation of his constitutional rights,
i.e., after direct review was completed. Roberts v. Callahan,
321 F.3d 994, 995 (10th Cir. 2003) (citing Lips v. Commandant,
United States Disciplinary Barracks, 997 F.2d 808, 811 (10th
Cir. 1993)) (stating that there is an exception to exhaustion
and waiver requirements on collateral review when the petitioner
can show actual prejudice and good cause why the petition had
not been previously brought); Hatheway v. Sec’y of Army, 641
F.2d 1376, 1380 (9th Cir. 1981), abrogated on other grounds by
High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d
563 (9th Cir. 1990) (Article III courts will collaterally review
a final court-martial when the military courts have not given
“full and fair consideration” to the petitioner’s claim); Calley
v. Callaway, 519 F.2d 184, 203 (5th Cir. 1975) (“Military court-
martial convictions are subject to collateral review by federal
civil courts . . . where . . . exceptional circumstances have
been presented which are so fundamentally defective as to result
in a miscarriage of justice.”). A federal court may or may not
determine that Denedo’s claim constitutes a serious
constitutional claim warranting collateral review of a final
judgment. See Matias v. United States, 923 F.2d. 821, 825 (Fed.
Cir. 1990). But if it determines review is warranted, there is
nothing to prevent its review or development of facts not
22
Denedo v. United States, No. 07-8012/NA
resolved by military courts because they arose after the case
was final and the military justice system had no jurisdiction
under the UCMJ.
The majority’s discussion of the collateral review
exhaustion requirement ignores the point that the exhaustion
problem is one that it creates today. The majority opinion
relies on four federal district court cases for the proposition
that an Article III Court will not entertain Denedo’s writ.
Tatum v. United States, No. RDB-06-2307, 2007 U.S. Dist. LEXIS
61947, at *12-*13, 2007 WL 2316275 at *7 (D. Md. Aug. 7, 2007);
Fricke v. Sec’y of the Navy, No. 03-3412-RDR, 2006 U.S. Dist.
LEXIS 36548, at *9-*14, 2006 WL 1580979 at *2-*5 (D. Kan. June
5, 2006); MacLean v. United States, No. 02-CV-2250-K, 2003 U.S.
Dist. LEXIS 27219, at *13-*15 (S.D. Cal. June 6, 2003); Parker
v. Tillery, No. 95-3342-RDR, 1998 U.S. Dist. LEXIS 8399, at *3-
*5, 1998 WL 295574 at *1-*2 (D. Kan. May 22, 1998). But none of
those cases addresses evidence discovered after the petitioner’s
case was final, and each assumes that the petitioner could have
brought an extraordinary writ in the military justice system.
If this Court had held that no jurisdiction exists over either a
civilian with no relationship to the military or a case once it
is final under Article 76, UCMJ, Denedo would have been able to
file his claim in an Article III court without fear of a
dismissal based on exhaustion.
23
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V. Conclusion
There is no question that Congress intended this Court to
be the final court of review within the military justice system
and to review those cases and matters it placed within our
limited grant of jurisdiction. Those judgments are entitled to
deference by the Article III Courts, which generally will not
conduct de novo review of claims we have considered or permit
collateral review of questions of fact we resolved. United
States ex rel. New v. Rumsfeld, 448 F.3d 403, 409 (D.C. Cir.
2006); Witham, 355 F.3d at 505; McElhaney v. Erker, 98 Fed.
Appx. 417, 418 (6th Cir. 2004); Roberts, 321 F.3d at 995;
Brosius v. Warden, 278 F.3d 239, 245 (3d Cir. 2002); Matias, 923
F.2d. at 826; Hatheway, 641 F.2d at 1379; Allen v. VanCantfort,
436 F.2d 625, 629 (1st Cir. 1971); Harris v. Ciccone, 417 F.2d
479, 481 (8th Cir. 1969); see also 129 Cong. Rec. 24, 34,312-13
(1983).
But the statutory scheme does not permit this Court to
exercise jurisdiction over a civilian’s case that is final, in
derogation of Articles 2, 67, 69, 73, and 76, UCMJ, and in the
absence of a specific legislative grant of authority. On the
contrary, the scheme suggests that in the absence of a military
remedy, a petitioner may seek relief from an Article III court.
As the statutory scheme does not confer jurisdiction over a
civilian who has severed all connection to the military or allow
24
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for review once a decision is final under Article 76, UCMJ, I
believe the Court should dismiss Denedo’s petition, thereby
allowing him to pursue his claim in an Article III court.11
“Every extension of military jurisdiction is an encroachment on
the jurisdiction of the civil courts.” Reid, 354 U.S. at 21.
Today we encroach on Article III jurisdiction without reason. I
respectfully dissent.
11
Because I conclude that the Court does not have jurisdiction,
I would not reach the substantive issue in this case. I do
note, however, that the majority appears to ignore the most
recent precedent on the intersection of ineffective assistance
of counsel and the collateral consequences of a court-martial,
United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006), as well as
precedents that are contrary to United States v. Kwan, 407 F.3d
1005 (9th Cir. 2005). See Jiminez v. United States, 154 Fed.
Appx. 540, 541 (7th Cir. 2005); Broomes v. Ashcroft, 358 F.3d
1251, 1257 (10th Cir. 2004); United States v. Gonzalez, 202 F.3d
20, 25-28 (1st Cir. 2000).
25