United States v. Pierre ( 2018 )

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201300257
_________________________
LUIJI R. PIERRE
Petitioner
v.
UNITED STATES OF AMERICA
Respondent
_________________________
Review of Petition for Extraordinary Relief in the Nature of a Writ
of Error Coram Nobis
For Petitioner: Commander Brian L. Mizer, JAGC, USN.
For Respondent: Captain Brian L. Farrell, USMC; Lieutenant
Megan P. Marinos, JAGC, USN.
_________________________
Decided 8 March 2018
_________________________
Before M ARKS , J ONES , and W OODARD , Appellate Military Judges
_________________________
This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
_________________________
WOODARD, Judge:
Petitioner, a former service member, seeks extraordinary relief from this
court in the nature of a writ of error coram nobis under the All Writs Act, 28
U.S.C. § 1651(a). The petitioner avers that—in light of the Court of Appeals
for the Armed Forces’ (CAAF) decision in United States v. Hills, 75 M.J. 350
(C.A.A.F. 2016)1—his conviction was obtained through the use of
1 In Hills, the CAAF held that it was error for the finder of fact to consider
evidence of the accused’s commission of one charged sexual assault offense as
Pierre v. United States, No. 201300257
unconstitutional propensity evidence, and due process requires that he be
given a new trial.2 He claims Hills should apply retroactively to his case on
collateral review because Hills did not announce a new rule of criminal
procedure, but was applying an old law to new facts.3 Alternatively, he asks
that we order that his case be docketed for review pursuant to Article 66,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866 (2016).4
We find that the petitioner has not established a clear and indisputable
right to the relief requested. Accordingly, the petition for a writ of error
coram nobis is denied.
I. BACKGROUND
In February 2013, a military judge sitting as a general court-martial
convicted the petitioner, contrary to his pleas, of two specifications of
aggravated sexual assault and one specification of abusive sexual contact in
violation of Article 120, UCMJ, 10 U.S.C. § 920.5 He was sentenced to eight
years’ confinement, total forfeitures, reduction to paygrade E-1, and a
dishonorable discharge. The convening authority (CA) approved the sentence
as adjudged and, with the exception of the dishonorable discharge, ordered it
executed.
On direct appeal, after considering the assignment of errors raised on the
petitioner’s behalf by his appellate defense counsel—none of which addressed
Military Rule of Evidence 413 issues—and conducting our own review under
Articles 59(a) and 66(c), UCMJ, we affirmed the findings and sentence.
United States v. Pierre, No. 201300257, 2014 CCA LEXIS 708, unpublished
op. (N-M. Ct. Crim. App. 23 Sep 2014) (per curiam). The petitioner sought
review of his case at the CAAF, which was denied. United States v. Pierre, 74
M.J. 351 (C.A.A.F. 2015). On 1 May 2015, a final court-martial order
evidence of an accused’s propensity to commit another sexual assault, pursuant to
MILITARY RULE OF EVIDENCE 413, MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2016 ed.), if the alleged sexual assaults are charged at the same court-martial and
the accused has pled not guilty. Hills, 75 M.J. at 356. In United States v. Hukill, 76
M.J. 219 (C.A.A.F 2017), the CAAF clarified that “under Hills, the use of evidence of
charged conduct as [MIL. R. EVID.] 413 propensity evidence for other charged conduct
in the same case is error, regardless of the forum, the number of victims, or whether
the events are connected.” Id. at 222.
2 Petition of 8 Aug 2017 at 1-2.
3 Petitioner’s Reply Brief of 24 Aug 2017 at 4.
4 Petition at 16.
5 The aggraved assaults occurred before 28 June 2012, in violation of 10 U.S.C. §
920 (2006). The abusive sexual contact occurred after 29 June 2012, in violation of 10
U.S.C. § 920 (2012).
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executed the dishonorable discharge.6 Consequently, there is a final judgment
as to the legality of the proceedings, all portions of the sentence have been
ordered executed under Article 71(c)(1), UCMJ, and the case is final under
Article 76, UCMJ.
The CAAF decided Hills on 27 June 2016.7 The petitioner filed his
petition on 8 August 2017.
II. DISCUSSION
A. Jurisdiction
The All Writs Act states that “all courts established by Act of Congress
may issue all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. §
1651(a). See also United States v. Denedo, 556 U.S. 904, 911 (2009); RULE FOR
COURTS-MARTIAL (R.C.M.) 1203(b), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2012 ed.), Discussion. “‘[M]ilitary courts, like Article III tribunals,
are empowered to issue extraordinary writs under the All Writs Act.’” LRM v.
Kastenberg, 72 M.J. 364, 367 (C.A.A.F. 2013) (quoting Denedo, 556 U.S. at
911) (alteration in original). However, the All Writs Act does not serve as “an
independent grant of jurisdiction, nor does it expand [our] existing statutory
jurisdiction.” Id. (citation omitted).
In considering the petitioner’s prayer for relief we must be mindful that
“judgment finality is not to be lightly cast aside;” and we must be cautious
and grant extraordinary writ relief only in “extreme cases.” Denedo, 556 U.S.
at 916. The petitioner must establish a “clear and indisputable right to the
requested relief.” Denedo v. United States, 66 M.J. 114, 126 (C.A.A.F. 2008)
(citing Cheney v. United States Dist. Court, 542 U.S. 367, 381 (2004)).
B. Writ of error coram nobis
The petitioner seeks coram nobis relief. A writ of error coram nobis is
extraordinary relief available only under exceptional circumstances where an
error is based upon facts that were not apparent to the court during the
original consideration of the case and that may change the result. United
States v. Frischholz, 36 C.M.R. 306, 309 (C.M.A. 1966). The alleged factual
errors must be “of the most fundamental character, that is, such as rendered
6 General Court-Martial Supplemental Order No. LTP15-0110 of 1 May 2015.
7 We acknowledge that if the petitioner’s case were to come before us today on
direct review, we would be bound by our superior court’s holdings in Hills, as further
clarified in Hukill.
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the proceeding itself irregular and invalid.” United States v. Morgan, 346
U.S. 502, 509 n.15 (1954) (citations and internal quotation marks omitted).
The Supreme Court has declared that writs of coram nobis may be issued by
Article I courts to correct factual and legal errors of the most fundamental
character. Denedo, 556 U.S. at 911.
In Denedo, the CAAF adopted the two-tiered approach used by Article III
courts for evaluating claims raised by a writ of coram nobis. Denedo, 66 M.J.
at 126. First, the petitioner must satisfy the following six 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
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.
Id. Only if the petitioner satisfies all six threshold requirements do we then
turn to the second tier, the evaluation of the petitioner’s claim of factual or
fundamental legal error. Id.
In addressing the petitioner’s claim for relief, for ease of discussion we
will first address his current confinement status (requirement six), then
whether he has any alternative remedies available (requirement two), and
last whether he has presented any new information which we can properly
consider (requirement four).
As the petitioner is still serving his adjudged confinement sentence, we
find that the petitioner’s sentence has not been served (requirement six).
Because the petitioner is still serving his sentence to confinement, we find
that the petitioner has available to him the remedy of habeas corpus
(requirement two). Finally, even if the petitioner had completed his sentence
and therefore could not seek habeas corpus relief, because Hills announced a
new rule of criminal procedure that does not apply retroactively, we also
conclude that the petitioner has not presented any new information we can
properly consider in order to grant coram nobis review (requirement four).
Burleson v. United States, __M.J.__, No. 200700143, 2018 CCA LEXIS 87, *29
(N-M. Ct. Crim. App. 26 Feb 2018).
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1. The petitioner’s sentence has not been served (requirement six)
The petitioner’s sentence of 6 February 2013 included a term of
confinement for eight years. Although the petitioner was credited with 160
days of pretrial confinement credit, the petitioner has not yet completed
serving his sentence to confinement.8 Thus, the petitioner fails to satisfy the
sixth Denedo threshold requirement.
2. The petitioner has an alternative remedy (requirement two)
When a petitioner “is still in confinement, coram nobis relief is
unavailable.” United States v. Gray, 77 M.J. 5, 6 (C.A.A.F. 2017) (citing
Loving v. United States, 62 M.J. 235, 254 (C.A.A.F. 2005)). If a petitioner “has
a remedy other than coram nobis to rectify the consequences of the alleged
errors, namely a writ of habeas corpus in the Article III courts: ‘an
extraordinary remedy [such as coram nobis] may not issue when alternative
remedies, such as habeas corpus, are available.’” Id. (quoting Denedo, 556
U.S. at 911) (modification in original). Because the petitioner is still serving
his sentence to confinement he may seek habeas corpus relief. Thus, the
petitioner fails to satisfy the second Denedo threshold requirement.
3. No new information because Hills does not apply retroactively
(requirement four)
Even assuming, arguendo, that the petitioner had completed his sentence
to confinement, the petitioner still fails to provide any new information which
we can properly consider. We concede that the new information presented in
the petition—the Hills decision—could not have been discovered through the
exercise of reasonable diligence prior to his judgment. However, because Hills
announced a new rule of criminal procedure that does not apply retroactively
to his case, the petitioner cannot claim its benefit, and we cannot consider
this new information to grant coram nobis review. Burleson, 2018 CCA
LEXIS 87, at *29. Thus, he also fails to meet the fourth Denedo threshold
requirement.
Having concluded that the petitioner is still in confinement serving his
sentence and therefore has the alternative remedy of a habeas corpus petition
available, and observing that Hills announced a new rule of criminal
procedure that does not apply retroactively to the petitioner’s case, we find
that the petitioner has failed to satisfy the Denedo requirements for coram
nobis review.
8 The petitioner acknowledged that he was still serving his sentence to
confinement when his petition was filed. Petition at 11.
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III. CONCLUSION
The Petition for Extraordinary Relief in the Nature of a Writ of Error
Coram Nobis is denied as is the alternative relief requested.
Senior Judge MARKS and Judge JONES concur.
For the Court
R.H. TROIDL
Clerk of Court
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