United States v. Tamez ( 2006 )

UNITED STATES, Appellee
v.
Edward TAMEZ, Aviation Ordnanceman Third Class
U.S. Navy, Appellant
No. 05-0382
Crim. App. No. 200401361
United States Court of Appeals for the Armed Forces
Argued January 10, 2006
Decided May 24, 2006
PER CURIAM
Counsel
For Appellant: Captain Richard A. Viczorek, USMC (argued).
For Appellee: Lieutenant Craig A. Poulson, JAGC, USNR (argued);
Commander Charles N. Purnell, JAGC, USNR (on brief); Major
Raymond E. Beal II, USMC.
Military Judge: R. N. Johnson
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Tamez, No. 05-0382/NA
PER CURIAM:
On December 28, 2004, Appellant submitted his case to the
United States Navy-Marine Corps Court of Criminal Appeals on its
merits without specific assignments of error. That court handed
down its decision in Appellant’s case on January 12, 2005.
United States v Tamez, No. NMCCA 200401361 (N-M. Ct. Crim. App.
Jan. 12, 2005) (unpublished). A copy of the court’s decision in
the record contains the following stamped and signed
certification from the docket clerk of the Court of Criminal
Appeals:
I certify that, pursuant to Rule 19, [Court of Criminal
Appeals] Rules of Practice and Procedure, a copy of this
decision was served on appellate defense counsel on the
decision date appearing thereon.
The record also contains a certified mail receipt indicating
that a copy of the decision was mailed to Appellant on January
19, 2005, to an address provided by him, i.e., constructive
notice. Counting from the date the decision was mailed by
certified mail to Appellant in accordance with Article 67(b)(2),
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(b)(2)
(2000), Appellant’s petition was due not later than March 20,
2005. Appellant petitioned this Court for grant of review on
March 28, 2005, but did not move to file out of time. That same
day, a docketing notice was issued by the Clerk of this Court
ordering Appellant to file a supplement by April 27, 2005.
On March 29, 2005, the Government moved to dismiss the
petition as untimely and as having been filed without a showing
of good cause for the late filing. The Government also argued
that Appellant had failed to show good cause for granting the
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petition, because Appellant had submitted his case on its merits
to the court below.
Appellant responded to the Government’s motion arguing that
there had been no constructive service of the lower court’s
opinion on him because the Judge Advocate General had only sent
Appellant a letter dated January 14, 2005, with a copy of the
lower court’s opinion enclosed. According to Appellant, this
notification was defective on its face. Appellant contends that
the Government mailed the decision to the last address he
provided when it was aware that he was confined at the
Charleston Consolidated Brig. He further argues that in view of
the Government’s knowledge of his location, the transmission of
the notice to another location did not fulfill the requirements
for constructive service. Thus, Appellant’s position was that
because the notification was not in compliance with Article 67,
UCMJ, the sixty-day time requirement of the statute had not
begun and his petition was not untimely.
On April 27, 2005, Appellant submitted his supplement
stating that the case was being submitted on its merits without
specific assignments of error. On May 6, 2005, this Court
issued an order requiring Appellant to show cause by May 13,
2005, why the Government’s motion to dismiss should not be
granted. In his response to this order, Appellant reiterated
his position that there had been no constructive service under
Article 67, UCMJ. Subsequently, this Court specified certain
issues pertaining to the special power of attorney executed in
this case and ordered briefs. In Appellant’s brief on these
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issues, his tack shifted slightly on the issue of constructive
service, and he asserted that “[t]here is no evidence in the
record of trial that the NMCCA decision was ever actually served
on [any of the three appellate defense counsel].”
DISCUSSION
Congress has granted an accused the statutory right to
petition this Court for review within sixty days from the
earlier of:
(1) the date on which the accused is notified of the
decision of the Court of Criminal Appeals; or
(2) the date on which a copy of the decision of the Court
of Criminal Appeals, after being served on appellate
counsel of record for the accused (if any), is
deposited in the United States mails for delivery by
first-class certified mail to the accused at an
address provided by the accused or, if no such address
has been provided by the accused, at the latest
address listed for the accused in his official service
record.
Article 67(b), UCMJ.
As a threshold matter, the Government argues that an
Appellant’s failure to meet the time limits in Article 67(b),
UCMJ, deprives this Court of jurisdiction to subsequently grant
a petition for review. “Jurisdiction is the power of a court to
try and determine a case and to render a valid judgment.
Jurisdiction is ‘a legal question which we review de novo.’”
United States v. Harmon, 63 M.J. __ (8) (C.A.A.F. 2006). This
Court has long held that the time limits in Article 67, UCMJ,
are not jurisdictional. United States v. Byrd, 53 M.J. 35, 38
(C.A.A.F. 2000); United States v. Ponds, 1 C.M.A. 385, 386, 3
C.M.R. 119, 120 (1952). Indeed, this Court has consistently
permitted appellants to file petitions for grant of review out
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of time for good cause shown. United States v. Sumpter, 22 M.J.
33, 34 (C.M.A. 1986); Ponds, 1 C.M.A. at 386, 3 C.M.R. at 120.
See also United States v. Ortiz, 24 M.J. 323, 324 (C.M.A. 1987).
Such a practice is consistent with Congress’s intent that
servicemembers have the opportunity to obtain appellate review
in an independent civilian court.1 Were the sixty-day timeline
jurisdictional, an appellant might be without appellate recourse
in this Court regarding claims such as ineffectiveness of
counsel or complaints under Article 13, UCMJ, 10 U.S.C. § 813(2000). This was not Congress’s intent.
Appellant bears the burden of demonstrating good cause for
considering a petition out of time. Ponds, 1 C.M.A. at 386, 3
C.M.R. at 120. “Good cause” in this context does not lend
itself to precise definition. Rather good cause represents a
discretionary judgment on the part of this Court that an
appellant can “establish some reasonable basis justifying his
relief from that default.” Id. at 386, 3 C.M.R. at 120. We
have also said that as part of this showing of good cause
counsel should assign some meritorious issue. Ortiz, 24 M.J. at
324; Sumpter, 22 M.J. at 33. Of course, the showing of good
cause for the untimely filing of a petition is distinct from the
showing of good cause required to grant a petition for review.
In this case, appellate defense counsel’s position, both in
the brief and during oral argument, is based on the argument
that there was no constructive service because appellate defense
1
Since the advent of this Court, this Court’s application of Article 67(b),
UCMJ, as well as this Court’s rules, have permitted consideration of
petitions out of time if good cause for the late filing is shown.
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counsel were never served with the decision, and because the
decision was mailed to Appellant’s permanent address instead of
his place of confinement. However, as stated earlier, the
record demonstrates that the lower court’s decision was
constructively served on Appellant in accordance with Article
67(b)(2), UCMJ. The docket clerk of the Court of Criminal
Appeals certified that appellate defense counsel were served on
the date of decision, and the record contains a certified mail
receipt indicating that the decision was mailed to Appellant’s
address of record on January 19, 2005. Thus, the notice
requirements of Article 67(b)(2), UCMJ, were met and Appellant’s
petition was filed eight days out of time. Nonetheless, based
on the particular circumstances of this case, we find good cause
to consider Appellant’s petition out of time.
First, appellate defense counsel appear to have argued this
motion on the misapprehension that the decision below was not
served on them. At oral argument, appellate defense counsel
acknowledged that he had not seen the copy of the lower court’s
decision certified by the docket clerk of the court.
Second, we are not in a position to explain or address this
apparent confusion absent further factfinding by the court
below, additional briefs, or the submission of affidavits.
Moreover, there is no indication that this error is anything
that should be attributed personally to Appellant. As a matter
of fairness, we should consider Appellant’s petition in light of
this error before closing the courtroom door to him.
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United States v. Tamez, No. 05-0382/NA
Third, the record reflects that Appellant has been
represented by four different appellate counsel and Appellant’s
current counsel did not assume this position until after the
sixty-day filing period had run. Further, the record and allied
papers do not reflect at what stage in the appellate proceedings
before this Court, if at all, appellate defense counsel
consulted with Appellant regarding the timing of the appeal or
the substance of his petition.2
Finally, in this appellate context, Appellant filed his
petition. In light of these factors, we conclude that there is
good cause shown to entertain Appellant’s petition eight days
out of time. True, we could remand for further factfinding or
we could request additional briefs to address the factors
identified above. In this case, however, the interests in
timely review and judicial economy are better served by
considering Appellant’s petition without further debate over the
reasons for, and the effect of, the eight-day filing delay.
DECISION
The Government’s motion to dismiss the petition as untimely
under Article 67, UCMJ, is denied.
2
In light of the fact that Article 67, UCMJ, allows for constructive service,
counsel should consider the wisdom of relying solely on a special power of
attorney without also consulting with the client on the decision to submit
the case on its merits. Assuming, without deciding, that there are
circumstances in which counsel may be granted a valid power of attorney, we
note that the relevant regulations on professional conduct in this case
require counsel to keep the client “reasonably informed” of the status of the
case. See Dep’t of the Navy, Judge Advocate General Instr. 5803.1C,
Professional Conduct of Attorneys Practicing Under the Cognizance and
Supervision of the Judge Advocate General Rule 1.4, at 12 (Nov. 9, 2004).
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