Loving v. United States , 2005 CAAF LEXIS 1464 ( 2005 )


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  •                       Dwight J. LOVING, Private
    U.S. Army, Petitioner
    v.
    UNITED STATES, Respondent
    Nos. 03-8007 and 04-8013
    Crim. App. No. 8901123
    United States Court of Appeals for the Armed Forces
    Argued January 14, 2004, and December 8, 2004
    Decided December 20, 2005
    GIERKE, C.J., delivered the opinion of the Court, in which
    EFFRON, BAKER, and ERDMANN, JJ., joined. CRAWFORD, J., filed a
    separate opinion concurring in the result.
    Counsel
    For Petitioner: John H. Blume, Esq., and Teresa L. Norris, Esq.
    (argued); Colonel Robert D. Teetsel (on brief); Lieutenant
    Colonel Mark Tellitocci.
    For Respondent: Major Mark A. Visger and Captain Magdalena A.
    Przytulska (argued); Colonel Lauren B. Leeker, Lieutenant
    Colonel Margaret B. Baines, Major Theresa A. Gallagher, Major
    Jennifer H. McGee, and Captain Matthew J. MacLean (on brief);
    Colonel Steven Salata.
    Amicus Curiae: Lieutenant Michael J. Navarre, JAGC, USNR
    (argued); Commander George F. Reilly, JAGC, USN, and Lieutenant
    Colonel Eric B. Stone, USMC (on brief); Commander Pamela A.
    Holden, JAGC, USN, for the United States Navy-Marine Corps
    Appellate Defense Division.
    Amicus Curiae: Eugene R. Fidell, Esq., Kevin J. Barry, Esq.,
    Stephen A. Saltzburg, Esq., and Philip D. Cave, Esq., for the
    National Institute of Military Justice.
    This opinion is subject to revision before final publication.
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    Chief Judge GIERKE delivered the opinion of the Court.
    I. INTRODUCTION
    There are two issues before this Court now:           (1) whether we
    have jurisdiction to entertain Petitioner’s assertions of error
    as to the legality of his death sentence; and (2) if so, whether
    his two petitions seeking a writ of coram nobis properly present
    these challenges here.         More precisely, the first critical
    question is whether this Court has jurisdiction over this
    military death penalty case in the period after “there is a
    final judgment as to the legality of the proceedings” under
    Article 71(c)(1),1 but before the case is “final” under Article
    76.2     The second critical question is whether our collateral
    review of this case during this period extends to a writ of
    coram nobis or is limited to a writ of habeas corpus.
    As to the first issue, we hold this Court has jurisdiction
    to entertain Petitioner’s challenges because this Court has
    collateral review jurisdiction over this case during this
    period.      The Supreme Court has recognized that this Court has
    collateral review jurisdiction, and we find no authority
    inconsistent with our present exercise of this collateral review
    jurisdiction.
    1
    Uniform Code of Military Justice (UCMJ), 
    10 U.S.C. § 871
    (c)(1) (2000).
    2
    UCMJ, 
    10 U.S.C. § 876
     (2000).
    2
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    As to the second issue, we hold that the present petitions
    do not present legal challenges properly here because coram
    nobis is not available.      At this point in the case, a petition
    for a writ of habeas corpus is the only pleading available to
    raise the substantive issues before this Court.           So for the
    reasons stated below, we dismiss both petitions without
    prejudice to Petitioner to refile a writ of habeas corpus with
    this Court.
    Although we do not address the merits of these petitions
    now, the circumstance of this being a capital case is constantly
    before us.    But some principles related to the resolution of
    these issues apply to all military justice cases.
    “Death is different” is a fundamental principle of Eighth
    Amendment law.3     This legal maxim reflects the unique severity
    and irrevocable nature of capital punishment, infuses the legal
    process with special protections to insure a fair and reliable
    verdict and capital sentence, and mandates a plenary and
    meaningful judicial review before the execution of a citizen.4
    All three branches of government are involved in a dynamic and
    3
    See Ring v. Arizona, 
    536 U.S. 584
    , 605-06 (2002)(“[T]here is no doubt that
    ‘death is different.’”)(citation omitted); United States v. Curtis, 
    32 M.J. 252
    , 255 (C.M.A. 1991)(recognizing that “The Supreme Court, however, has made
    clear the Eighth Amendment requires a different treatment of death-penalty
    cases.”).
    4
    See Gilmore v. Taylor, 
    508 U.S. 333
    , 342 (1993)(“[T]he Eighth Amendment
    requires a greater degree of accuracy and factfinding than would be true in a
    noncapital case.”); California v. Ramos, 
    463 U.S. 992
    , 998-99 (1983)(stating
    “[T]he qualitative difference of death from all other punishments requires a
    correspondingly greater degree of scrutiny of the capital sentencing
    determination.”).
    3
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    developing process of addressing issues related to capital
    punishment.5
    Both changes in capital punishment law and greater
    understanding in the application of established legal principles
    result in new issues being identified and presented almost as
    quickly as other issues are resolved.          The impact of this
    constantly evolving body of capital punishment law is compounded
    as legal precedent from Article III federal courts relating to
    capital punishment is applied to military justice jurisprudence.6
    This case illustrates these observations.           In two separate
    petitions for extraordinary relief in the nature of writs of
    error coram nobis, Petitioner requests this Court to apply to
    5
    See 151 Cong. Rec. H340, H342 (daily ed. Feb. 2, 2005)(State of the Union
    Address by President George W. Bush)(“Soon I will send to Congress a proposal
    to fund special training for defense counsel in capital cases, because people
    on trial for their lives must have competent lawyers by their side.”); Exec.
    Order No. 12,460, 
    49 Fed. Reg. 3169
     (Jan. 26, 1984) (establishing a new
    military death penalty system that eventually with some modifications became
    Rule for Courts-Martial (R.C.M.) 1004); National Defense Authorization Act
    for Fiscal Year 2002, Pub. L. No. 107-107, § 582(a), 
    115 Stat. 1012
    , 1124
    (2001)(enacting Article 25a, UCMJ, which requires a capital trial panel of
    “not less than 12” members unless that number is “not reasonably available
    because of physical conditions or military exigencies . . . .”); United
    States v. Loving, 
    41 M.J. 213
     (C.A.A.F. 1994)(addressing constitutional
    challenges to the military death penalty); United States v. Matthews, 
    16 M.J. 354
     (C.M.A. 1983)(invalidating the military death penalty); United
    States v. Curtis, 
    32 M.J. 252
     (C.M.A. 1991) (resolving systemic challenges to
    the military death penalty).
    6
    Recently this Court reaffirmed that “[c]onstitutional rights generally apply
    to members of the armed forces unless by their express terms, or the express
    language of the Constitution, they are inapplicable.” United States v.
    Marcum, 
    60 M.J. 198
    , 199 (C.A.A.F. 2004). But we also recognized that “these
    constitutional rights may apply differently to members of the armed forces
    than they do to civilians. . . . Thus, when considering how the [Bill of
    Rights] appl[ies] in the military context, this Court has relied on Supreme
    Court civilian precedent, but has also specifically addressed contextual
    factors involving military life.” 
    Id. at 205
    . See generally H. F. “Sparky”
    Gierke, The Use of Article III Case Law in Military Jurisprudence, Army Law.
    Aug. 2005, at 33, 37-46.
    4
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    his military justice capital case the authority of two recent
    Supreme Court cases -- Ring v. Arizona7 and Wiggins v. Smith.8
    This Court’s consideration of these cases raises both
    threshold legal issues as well as delicate issues on the merits.
    The threshold issues relate to this Court’s jurisdiction to
    consider these petitions, the appropriateness of the writ of
    error coram nobis at this Court, and the applicability --
    including the retroactive application -- of this recent legal
    precedent to the present proceedings.9
    7
    
    536 U.S. 584
     (2002). In Apprendi v. New Jersey, 
    530 U.S. 466
     (2000), the
    Supreme Court interpreted the constitutional due process and jury trial
    guarantees to require that, “[o]ther than the fact of a prior conviction, any
    fact that increases the penalty for a crime beyond the prescribed statutory
    maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
    
    Id. at 490
    . Applying this principle to the Arizona capital sentencing
    proceedings that required the finding of an aggravating factor, Ring required
    that a jury, rather than a judge, find the existence of the aggravating
    factor. 
    536 U.S. at 603-09
    . In this opinion, Petitioner’s pleading
    addressing this issue is referred to as the Ring Writ. See infra note 21 and
    accompanying text.
    8
    
    539 U.S. 510
     (2003). Applying the “clearly established” precedent of
    Strickland v. Washington, 
    466 U.S. 668
     (1984), that governs claims of
    ineffective assistance of counsel, the Supreme Court found ineffective
    representation by a defense counsel in a capital case who failed to pursue
    leads and to expand the mitigation investigation into the defendant’s
    traumatic life history. Wiggins, U.S. 539 at 519-20, 523-38. In this
    opinion, Petitioner’s pleading addressing this issue is referred to as the
    Wiggins Writ. See infra note 23 and accompanying text.
    9
    More precisely, the petitions present five threshold issues: (1) Does this
    Court have jurisdiction to consider Petitioner’s two writs?; (2) If there is
    a basis for this Court’s jurisdiction, is it both necessary and proper in
    light of alternate remedies available for him to present his legal
    challenges?; (3) Is a petition for a writ of error coram nobis the correct
    procedural tool to raise these issues?; (4) Are the latest petitions an abuse
    of the writ?; and (5) In light of the unique procedural posture of this case,
    can Petitioner avail himself of any of the legal holdings in Ring, Apprendi,
    and Wiggins to support his claims? Answering these five questions will
    determine whether and how this Court should proceed to the merits of any of
    the issues presented in the two petitions for extraordinary relief. Our
    disposition in this case requires us to address only the first four of these
    threshold issues. These four issues are subsumed in the two decisional
    issues stated at the outset of this opinion.
    5
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    On the other hand, the issues relating to the merits of
    these two writs question the authority of the President to
    promulgate aggravating factors, the reliability of the capital
    sentencing weighing process, and the effectiveness of counsel in
    making decisions relating to investigating the background of
    Petitioner.10
    We acknowledge the tension that arises from the extended
    time involved in the appellate litigation of this capital case
    and the precise application of legal principles that operate to
    insure a fair and reliable adjudication of a capital sentence.
    But the commitment to justice in this capital case requires a
    patient and solemn resolve to proceed prudently, because “death
    11
    is different.”
    II. APPELLATE HISTORY
    This is a capital case that this Court affirmed on direct
    appeal.12   Afterwards, this Court granted a petition for
    reconsideration in part by deleting an inaccurate factual
    10
    The Ring Writ raises these two questions: (1) Did the President exceed his
    authority by promulgating aggravating factors if these aggravating factors
    are “functional elements” of a crime? and (2) Are court members required to
    find beyond a reasonable doubt that any mitigating circumstances are
    outweighed by the aggravating factors? The Wiggins Writ presents the final
    question: Did trial defense counsel perform an adequate investigation as a
    necessary predicate for the tactical decision not to request funding for a
    mitigation specialist? Again, because of our disposition in this case, we do
    not address any of the issues related to the merits.
    11
    Ring, 
    536 U.S. at 605-06
    ; see Kyles v. Whitley, 
    514 U.S. 419
    , 422
    (1995)(quoting Burger v. Kemp, 
    483 U.S. 776
    , 785 (1987)(“[O]ur duty to search
    for constitutional error with painstaking care is never more exacting than it
    is in a capital case.”)(quotation marks omitted).
    12
    United States v. Loving, 
    41 M.J. 213
     (C.A.A.F. 1994).
    6
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    statement from our opinion.13       Later the Supreme Court granted
    certiorari and affirmed this Court’s decision.14
    After the Supreme Court decision, Petitioner filed a
    petition for extraordinary relief in the nature of mandamus at
    the Court of Criminal Appeals, asserting that felony murder
    under Article 118(4)15 is constitutionally infirm because it
    permits a death sentence but does not require an intent to kill.
    The lower court denied the petition.          Petitioner filed a writ
    appeal petition, and this Court affirmed the lower court’s
    decision.16   That opinion documents the prior appellate history
    of this case.17
    While the writ appeal petition was pending, Petitioner
    filed another petition for reconsideration with this Court,
    asserting an instructional error by the military judge.              This
    Court denied the petition for reconsideration.18
    Petitioner later filed a third petition for
    reconsideration, asserting that this Court applied an incorrect
    legal test in its evaluation of his claim of ineffective
    assistance of counsel.       This Court denied the petition for
    13
    United States v. Loving, 
    42 M.J. 109
     (C.A.A.F. 1995)(summary disposition).
    14
    Loving v. United States, 
    517 U.S. 748
     (1996).
    15
    UCMJ, 
    10 U.S.C. § 918
    (4)(2000).
    16
    Loving v. Hart, 
    47 M.J. 438
     (C.A.A.F.)(holding that felony murder under
    Article 118(4), UCMJ, 
    10 U.S.C. § 918
    (4), passes constitutional muster as a
    capital offense in this case because the panel found Petitioner was the
    “actual perpetrator of the killing” -- acting personally and intentionally),
    cert. denied, 
    525 U.S. 1040
     (1998).
    17
    47 M.J. at 440.
    18
    United States v. Loving, 
    49 M.J. 387
     (C.A.A.F. 1998)(summary disposition).
    7
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    reconsideration.19      The case has been forwarded to the President
    for action under Article 71(a),20 but he has not yet acted.
    III. BACKGROUND OF
    TWO PETITIONS FOR EXTRAORDINARY RELIEF
    IN THE NATURE OF A WRIT OF ERROR CORAM NOBIS
    A. The Ring Writ
    On April 15, 2003, this Court received a petition for
    extraordinary relief in the nature of a writ of error coram
    nobis21 -- the Ring22 Writ.      This Court issued a show cause order,
    the Government responded, and Petitioner filed a reply brief.
    On July 21, 2003, Petitioner requested oral argument.             This
    Court granted the request and heard oral argument on this writ
    on January 14, 2004.
    B. The Wiggins Writ
    On February 17, 2004, another petition for extraordinary
    relief in the nature of a writ of error coram nobis was filed in
    this Court23 -- the Wiggins24 Writ.        This Court again issued a
    show cause order, the Government responded, and on May 10, 2004,
    Petitioner filed a reply brief and requested oral argument.
    19
    United States v. Loving, 
    54 M.J. 459
     (C.A.A.F.) (summary disposition),
    cert. denied, 
    534 U.S. 949
     (2001).
    20
    
    10 U.S.C. § 871
    (a) (2000).
    21
    Petition for Extraordinary Relief in the Nature of a Writ of Coram Nobis,
    Loving v. United States, No. 03-8007 (C.A.A.F. Apr. 15, 2003) [hereinafter
    Ring Writ].
    22
    See Ring, 
    536 U.S. at 605-06
    .
    23
    Petition for Extraordinary Relief in the Nature of a Writ of Error Coram
    Nobis, Loving v. United States, No. 04-8015 (C.A.A.F. Feb 17, 2004)
    [hereinafter Wiggins Writ].
    24
    See Wiggins, 
    539 U.S. 510
    .
    8
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    This Court again granted this request and heard oral argument on
    December 8, 2004.
    IV.    DISCUSSION OF THE THRESHOLD ISSUES
    A.    Does this Court have jurisdiction to
    consider Petitioner’s two writs?
    We approach this issue knowing that “every federal
    appellate court has a special obligation to ‘satisfy itself . .
    . of its own jurisdiction . . . .’”25         The primacy of the issue
    of subject matter jurisdiction here is reaffirmed by the
    position of the Government that this Court has no jurisdiction
    to address Petitioner’s attack on his conviction and sentence
    because they became final after the Supreme Court’s decision on
    review of his direct appeal.
    First, the Government asserts that “[a]lthough this
    Honorable Court once had jurisdiction to review this case, there
    is simply no basis for continuing jurisdiction.”26           Second,
    following this Court’s prior decision denying a writ appeal
    petition in Loving v. Hart,27 the Government asserted in its
    opposition to Petitioner’s certiorari petition to the Supreme
    Court that this Court “erred in exercising jurisdiction over the
    claim [writ appeal petition] under 
    28 U.S.C. § 1651
    (a)[2000]
    25
    Bender v. Williamsport Area Sch. Dist., 
    475 U.S. 534
    , 541 (1986)(quoting
    Mitchell v. Maurer, 
    293 U.S. 237
    , 244 (1934)).
    26
    Answer to Petition for Extraordinary Relief in the Nature of a Writ of
    Error Coram Nobis at 6, Loving v. United States, No. 03-8007 (C.A.A.F. June
    16, 2003)[hereinafter Answer to Ring Writ].
    27
    
    47 M.J. 438
    .
    9
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    [the All Writs Act].”28      In this pleading the Government reasoned
    as follows:
    Petitioner’s current challenge is a collateral
    attack on his conviction and sentence, which
    became final upon this Court’s decision on
    review of his direct appeal. . . . The United
    States Court of Appeals for the Armed Forces .
    . . does not have jurisdiction to grant [habeas
    corpus relief under 
    28 U.S.C. § 2241
     or] the
    equivalent relief in this case under the All
    Writs Act . . . . Therefore that court had no
    jurisdiction under 
    28 U.S.C. § 1651
    (a) to grant
    a petition for extraordinary relief “in aid of
    [its] jurisdiction[].”29
    Our evaluation of the Government argument that this Court
    has no jurisdiction must begin with the Constitution.             Acting
    under Article I, Congress established this Court.30            As an
    Article I court, this is a Court of limited jurisdiction.
    In Clinton v. Goldsmith,31 the Supreme Court reaffirmed that
    our “independent statutory jurisdiction is narrowly
    circumscribed.”32     This statement reflects the longstanding rule
    that, “Article I courts are courts of special jurisdiction
    created by Congress that cannot be given the plenary powers of
    Article III courts.      The authority of the Article I court is not
    only circumscribed by the [C]onstitution, but limited as well by
    28
    Brief for Respondents in Opposition at 10-11, Loving v. Hart, 
    525 U.S. 1040
    (1998)(No. 98-251).
    29
    
    Id. at 11
     (citations omitted).
    30
    Article 141, UCMJ, 
    10 U.S.C. § 941
     (2000) (“There is a court of record
    known as the United States Court of Appeals for the Armed Forces. The court
    is established under article I of the Constitution.”).
    31
    
    526 U.S. 529
     (1999).
    32
    
    Id. at 535
    .
    10
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    the powers given to it by Congress.”33         As we may not act unless
    Congress has given us the authority to do so, we must examine
    the statute that gives this Court jurisdiction.
    Article 67(a),34 states in part:        “The Court of Appeals for
    the Armed Forces shall review the record in -- (1) all cases in
    which the sentence, as affirmed by a Court of Criminal Appeals,
    extends to death[.]”      This statute expressly and unequivocally
    establishes the subject matter jurisdiction of this Court over
    death penalty cases on direct appeal.          The narrower issue is
    whether this Court’s jurisdiction continues after completion of
    the direct review by the Supreme Court and during the period in
    which the case is pending presidential action under Article
    71(a).   This issue invites the Court to consider two questions
    of first impression:      (1) when a capital case becomes final in
    the military justice system and (2) what impact finality has on
    this Court’s jurisdiction.
    Before explaining our reasoning, we think it prudent to
    answer these questions.       A capital case is final with the
    meaning of Article 76 only after the President, acting under
    Article 71(a), approves it.        As finality under Article 76 is the
    terminal point for proceedings within the court-martial and
    military justice system, this Court’s jurisdiction continues
    until a case is final.       We proceed to our analysis appreciating
    33
    In re United Missouri Bank of Kansas City, N.A., 
    901 F.2d 1449
    , 1451-52
    (8th Cir. 1990) (internal citation omitted).
    34
    UCMJ, 
    10 U.S.C. § 867
    (a) (2000).
    11
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    the distinction between “finality” under Article 76 as the
    terminal point in the proceedings and “a final judgment as to
    the legality of the proceedings” under Article 71(c)(1) that
    establishes the point of completion of the direct legal review.
    As will be presented below, these are the foundational concepts
    that reflect the primary responsibility of this Court for the
    supervision of the military justice system through appellate
    review.   These concepts also invite a continuation of
    discretionary, but certainly not mandatory, judicial deference
    to this Court by Article III courts, as seen in judicial
    doctrines of abstention and exhaustion, and reaffirm this
    Court’s jurisdiction thereby supporting this Court’s exercise of
    powers under the All Writs Act, 
    28 U.S.C. § 1651
    (a) (2000).
    1.   When a capital case becomes final
    In deciding the issue of finality, this Court must
    initially consider Article 76, which states:
    § 876. Art. 76. Finality of proceedings, findings, and
    sentences
    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
    12
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    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.35
    For our purposes, we focus on the plain words of this statute,
    which states that only “the proceedings, findings, and sentences
    of courts-martial as approved, reviewed, or affirmed as required
    by this chapter . . . are final and conclusive.”36
    It is a fundamental tenet of statutory construction to
    construe a statute in accordance with its plain meaning.37             On
    its face, Article 76 expressly requires that sentences be
    “approved . . . as required by this chapter” before they are
    final.
    We next consider Article 71(a), which states:
    If the sentence of the court-martial extends to
    death, that part of the sentence providing for
    death may not be executed until approved by the
    President. In such a case, the President may
    commute, remit, or suspend the sentence, or any
    part thereof, as he sees fit. That part of the
    sentence providing for death may not be
    suspended.38
    35
    
    10 U.S.C. § 876
     (citations added).
    36
    
    Id.
    37
    See Lamie v. United States Trustee, 
    540 U.S. 526
    , 534 (2004) (“It is well
    established that when the statute’s language is plain, the sole function of
    the courts -- at least where the disposition required by the text is not
    absurd -- is to enforce it according to its terms.”) (citations and internal
    quotation marks omitted); Connecticut Nat’l Bank v. Germain, 
    503 U.S. 249
    ,
    253-54 (1992)(“[I]n interpreting a statute a court should always turn first
    to one cardinal canon before all others. We have stated time and again that
    courts must presume that a legislature says in a statute what it means and
    means in a statute what it says there.”); see also Norman J. Singer, 2A
    Sutherland Statutory Construction §§ 45.02, 46.01 (6th ed. 2000).
    38
    
    10 U.S.C. § 871
    (a).
    13
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    From the plain language of this statute, it is clear and
    undisputed that the President must “approve” a sentence of death
    before it is executed.       It is equally clear from the plain words
    of Articles 71(a) and 76 that the President must “approve” a
    sentence of death before a capital case is final within the
    meaning of Article 76.       Furthermore, this reading of the plain
    text is supported by the legislative history of Article 76.
    At the time of enactment of the UCMJ, both Armed Services
    Committees said of Article 76:        “This article is derived from AW
    [Article of War] 50(h) and is modified to conform to terminology
    used in this code.      Subject only to a petition for a writ of
    habeas corpus in Federal court, it provides for the finality of
    court-martial proceedings and judgments.”39          We, therefore,
    examine Article of War (AW) 50(h)40 to better understand the
    operation of Article 76.
    AW 50(h) states:
    h. FINALITY OF COURT-MARTIAL JUDGMENTS. --
    The appellate review of records of trial
    provided by this article, the confirming action
    taken pursuant to articles 48 or 49, the
    proceedings, findings, and sentences of courts-
    martial as heretofore or hereafter approved,
    reviewed, or confirmed as required by the
    Articles of War and all dismissals and
    discharges heretofore or hereafter carried into
    execution pursuant to sentences by courts-
    martial following approval, review, or
    confirmation as required by the Articles of
    War, shall be final and conclusive, and orders
    39
    H.R. Rep. No. 81-491, at 35 (1949); S. Rep. No. 81-486, at 32 (1949)
    reprinted in 1980 U.S.C.C.A.N. 2222, 2258.
    40
    
    62 Stat. 627
    , 635-38, 
    10 U.S.C. § 1521
     (1948).
    14
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    publishing the proceedings of courts-martial
    and all action taken pursuant to such
    proceedings shall be binding upon, all
    departments, courts, agencies, and officers of
    the United States, subject only to action upon
    application for a new trial as provided in
    article 53.41
    As to AW 50(h), we again focus on the plain words of this
    statute that only “findings, and sentences of courts-martial as
    heretofore or hereafter approved, reviewed, or confirmed as
    required by the Articles of War . . . shall be binding . . . .”
    This statute expressly requires sentences be “confirmed as
    required by the Articles of War . . . .”
    The requirement that a death sentence be “confirmed” is
    addressed in AW 48 that states in part:
    Art. 48. CONFIRMATION. -- In addition to the
    approval required by article 47, confirmation is
    required as follows before the sentence of a court-
    martial may be carried into execution, namely:
    a. By the President, with respect to any
    sentence --
    (1) of death, or
    (2) involving a general officer;
    Provided, That when the President has already acted as
    approving authority, no additional confirmation by him
    is necessary[.]42
    So it is clear that under AW 48 and 50(h), a death sentence
    was not final until the President had “confirmed” it.             As the
    legislative history of Article 76 states that the only change
    between it and AW 50(h) was “terminology,” it is apparent that
    the word “confirmed” was deleted from Article 76 because it is
    41
    We note that almost identical language is used in AW 53 to address finality
    of proceedings relating to a petition for new trial.
    42
    
    62 Stat. 627
    , 635, 
    10 U.S.C. § 1519
     (1948).
    15
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    unnecessary in light of the Article 71(a) requirement that the
    President “approve” a death sentence.         Article 76 read in
    conjunction with this insight into and understanding of the
    legislative history of Article 76 reaffirms the correctness of
    our reliance of plain words of Article 76 to require “approval”
    by the President before a death sentence is final under the
    UCMJ.
    We observe that neither the Supreme Court nor this Court
    has addressed the issue as to whether presidential action under
    Article 71(a) is a prerequisite for a case being final in the
    context of addressing the jurisdiction of this Court over a
    capital case.       Petitioner cited two Supreme Court cases to
    support the position that Presidential action under Article
    71(a) is a prerequisite for finality in the context of this
    Court’s jurisdiction.         Dynes v. Hoover,43 recites that a court-
    martial sentence “had it extended to a loss of life” becomes
    “final” after it is “confirmed” by the President.         But we note
    that Dynes was a non-capital case, and the statement related to
    the then-existing rules under the Articles for the Governing of
    the Navy with no established connection to Article 76.         Also in
    Schick v. Reed,44 there are two statements relating to finality:
    the capital case was “forwarded [to the President] for final
    43
    
    61 U.S. 65
    , 81 (1857).
    44
    
    419 U.S. 256
     (1974).
    16
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    review as required by Art. 71(a)”45 and “the death sentence was .
    . . valid . . . subject only to final action by the President.”46
    But the issue in Schick was the validity of the President’s
    conditional commutation of a death sentence under Article II, §
    2, clause 1, of the Constitution, and the decision did not
    address the issue of finality.        We find language in both these
    cases consistent with our construction of “finality” for a
    capital case under the UCMJ, but of little assistance in
    resolving this issue.      So we decline to rely on either Dynes or
    Schick to support our conclusion.
    2.Distinction between “finality”
    and
    “a final judgment as to the legality of the proceedings”
    The Supreme Court has made clear that finality under
    Article 76 “only defines the point at which military court
    judgments become final and requires that they be given res
    judicata effect.”47     In Gusik v. Schilder,48 the Supreme Court
    addressed the effect of AW 53,49 an immediate statutory
    45
    Id. at 257.
    46
    Id. at 259.
    47
    Schlesinger v. Councilman, 
    420 U.S. 738
    , 749 (1975).
    48
    
    340 U.S. 128
     (1950).
    49
    
    62 Stat. 627
    , 639, 
    10 U.S.C. § 1525
     (1948). Under the Articles of War, AW
    50(h) was the primary statute that addressed “finality of the court-martial.”
    But, notwithstanding this provision, AW 53 authorized the Judge Advocate
    General to grant a petition for new trial, filed within rigid time
    limitations, that otherwise could have been final under AW 50(h). So AW 53
    also contained a finality provision, repeating with almost identical language
    the rule of finality stated in AW 50(h). The Supreme Court in Gusik,
    addressed AW 53 rather than AW 50(h), as the Court opined that the petitioner
    was obligated to avail himself of a potential new trial remedy before seeking
    habeas review. 
    340 U.S. at 130-34
    . As the language of AW 50(h) and AW 53
    relating to finality are so similar, the Gusik discussion of Article 53 does
    not impact the Supreme Court’s discussion in Schlesinger of Article 76.
    17
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    predecessor of the present Article 76, and stated similarly, “We
    read the finality clause of Article 53 as doing no more than
    describing the terminal point for proceedings within the court-
    martial system.”50
    Understanding the distinction between “finality” as to the
    terminal point in the proceedings and “a final judgment as to
    the legality of the proceedings” in the unique military justice
    system is important.       Article 76 addresses the former, and
    Article 71(c)(1) addresses the latter.
    Article 71(c)(1) provides:
    If a sentence extends to death, dismissal, or a
    dishonorable or bad-conduct discharge and if
    the right of the accused to appellate review is
    not waived, and an appeal is not withdrawn,
    under section 861 of this title (article 61),
    that part of the sentence extending to death,
    dismissal, or a dishonorable or bad-conduct
    discharge may not be executed until there is a
    final judgment as to the legality of the
    proceedings (and with respect to death or
    dismissal, approval under subsection (a) or
    (b), as appropriate). A judgment as to
    legality of the proceedings is final in such
    cases when review is completed by a Court of
    Criminal Appeals and –-
    (A) the time for the accused to file a
    petition for review by the Court of Appeals for
    the Armed Forces has expired and the accused
    has not filed a timely petition for such review
    and the case is not otherwise under review by
    that Court;
    (B) such a petition is rejected by the
    Court of Appeals for the Armed Forces; or
    50
    
    340 U.S. at 132-33
    .
    18
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    (C) review is completed in accordance with
    the judgment of the Court of Appeals for the
    Armed Forces and –-
    (i) a petition for a writ of
    certiorari is not filed within the time limits
    prescribed by the Supreme Court;
    (ii) such a petition is rejected by
    the Supreme Court; or
    (iii) review is otherwise completed
    in accordance with the judgment of the Supreme
    Court.51
    The focus of Article 71 is on the execution of certain
    sentences -- those relating to death, dismissal, or punitive
    discharges.     Only certain civilian leaders can execute these
    sentences:    the President alone can execute a death sentence and
    a service Secretary or designated Under Secretary or Assistant
    Secretary can execute a dismissal or punitive discharge.              None
    of these persons may execute these particular sentences prior to
    a certain identified event occurring -- “a final judgment as to
    the legality of the proceedings.”52
    Only after there is “a final judgment as to the legality of
    the proceedings” is a sentence ripe for execution -- that is
    ripe for “approval” under either Article 71(a)(as to a death
    sentence) or Article 71(b)(as to dismissal or punitive
    discharge).53    Moreover, as we stated earlier in this opinion, as
    to a death sentence, only after the President “approves” a death
    51
    
    10 U.S.C. § 871
    .
    52
    
    Id.
    53
    See Krause v. United States, 
    7 M.J. 427
     (C.M.A. 1979)(per Cook, J., with
    Fletcher, C.J., concurring in the result).
    19
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    sentence is it final.      From this statutory scheme of Article 71,
    it is obvious that these specified sentences of a court-martial,
    including a death sentence, even when affirmed in direct
    appellate review, are not self-executing.
    In defining a “final judgment as to the legality of the
    proceedings,” Article 71(c) states that such a judgment occurs
    only when the case is complete on direct review -- including
    review by a Court of Criminal Appeals and this Court, as well as
    possible review by the Supreme Court.         We need not address here
    the impact a “final judgment as to the legality of the
    proceedings,” may have upon the legal authority that pertains to
    any further legal proceedings challenging the conviction and
    sentence.54   But, from the plain language of Articles 71 and 76
    and the Supreme Court’s construction of Article 76, we conclude
    this important point:      a “final judgment as to the legality of
    the proceedings” under Article 71(c) does not result in a case
    being final for the purposes of Article 76.
    Having established this point, we are compelled to comment
    on Rule for Courts-Martial (R.C.M.) 1209.          This provision is an
    apparent attempt to blend both Articles 71(c) and 76.            To define
    when “[a] court-martial is final,”         R.C.M. 1209(a) uses language
    nearly identical to that in Article 71(c) defining “a final
    54
    Compare Griffith v. Kentucky, 
    479 U.S. 314
     (1987)(establishing the legal
    principle that a decision of the Supreme Court that announces a “new rule”
    applies to all criminal cases still pending on direct review) with Teague v.
    Lane, 
    489 U.S. 288
     (1989)(plurality opinion)(clarifying and modifying
    previous decisions regarding retroactivity of new constitutional rules).
    20
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    judgment as to the legality of the proceedings.”            But R.C.M.
    1209(b) adds the requirement that only a so-defined final court-
    martial that is “approved, reviewed, or affirmed as required by
    the code,” has the effects of finality under Article 76.            R.C.M.
    1209(a) and (b) read together, reflecting the authority of both
    Articles 71 and 76, declare the binding effect of a court-
    martial findings and sentence only after it is “approved” as
    required by these two statutes.
    In summary, we proceed appreciating that there is an
    important distinction between two fundamental concepts in the
    UCMJ.    Article 71(c) requires “a final judgment as to the
    legality of the proceedings” to render a death sentence ripe for
    approval by the President.       Article 76 requires that the
    President approve a death sentence before the sentence is final,
    thereby describing the terminal point for proceedings within the
    court-martial system.      We next consider what impact these two
    concepts have on the jurisdiction of this Court.55
    3.   The impact of finality on this Court’s jurisdiction
    Article 67(a) vests this Court with subject matter
    jurisdiction over this capital case.         But this case is not final
    55
    The recent Supreme Court case of Bell v. Thompson, 
    125 S. Ct. 2825
     (2005),
    does not address the present jurisdictional issue before this Court. In
    Bell, the Supreme Court held that the Sixth Circuit abused its discretion in
    authorizing a stay of its mandate following a denial of certiorari by the
    Supreme Court thereby violating Fed. R. App. P. 41. In the present case,
    this Court has issued the mandate. United States v. Loving, 
    42 M.J. 111
    (1995). Also, the procedural context of Bell is distinct from that of the
    present case. Bell addressed the termination of federal habeas corpus
    proceedings in an Article III court. The present case is not final under the
    UCMJ and has not entered collateral Article III review.
    21
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    under Article 76 because the President has not ordered the
    sentence executed.     So we conclude that this Court’s subject
    matter jurisdiction continues even after the Supreme Court’s
    decision affirming Petitioner’s death sentence.
    This conclusion is supported by two important points:
    first, the plain language and legislative history of Article
    67(a)(1) and Article 76, and second, the rich history of this
    Court’s exercise of jurisdiction after completion of direct
    review.   The previous discussion focuses on the first point
    relating to statutory interpretation.         But as that authority is
    just one part of the support for this Court’s jurisdiction, it
    is appropriate now to focus on the second.
    Acting under Article I of the Constitution, Congress has
    established military law as “a jurisprudence which exists
    separate and apart from the law which governs in our federal
    judicial establishment.”56      A cornerstone principle of military
    law was to vest the United States Court of Appeals for the Armed
    Forces, with jurisdiction “to assure direct civilian review over
    military justice.”57     The Supreme Court has recognized that it
    was in this Court that “Congress has confided primary
    responsibility for the supervision of military justice in this
    56
    Burns v. Wilson, 
    346 U.S. 137
    , 140 (1953)(plurality opinion); see also
    Parker v. Levy, 
    417 U.S. 733
    , 744 (1974).
    57
    Noyd v. Bond, 
    395 U.S. 683
    , 694 (1969); see also S. Rep. No. 101-81 at 171
    (1989)(“As the highest court within the military justice system, [this Court]
    performs the same function as the highest appellate court within the
    jurisdiction of a state or the District of Columbia.”).
    22
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    country and abroad.”58      Our exercise of this responsibility
    through our judicial review of cases invites a continuation of
    discretionary, but certainly not mandatory, judicial deference
    to our judgments.59     Considering the Court’s mandatory
    jurisdiction over a capital case in Article 67(a)(1) and this
    Court’s pivotal role in the military justice system, it is
    consistent with congressional intent that this Court retains
    jurisdiction at least until a case is “approved” and “final”
    under Article 76.60
    We consider helpful, but not dispositive, the history of
    this Court’s exercise of jurisdiction after completion of direct
    review.61    In Frischholz, this Court, before addressing a
    petition for a post-conviction writ in a case that was final,
    stated:     “[Article 76] does not insulate a conviction from
    subsequent attack in an appropriate forum.          At best it provides
    finality only as to interpretations of military law by this
    58
    Noyd, 
    395 U.S. at 695
    .
    59
    Schlesinger, 
    420 U.S. at 753
    .
    60
    Let there be no doubt that we do not rely on the supervisory authority of
    this Court to establish this Court’s jurisdiction. That is done by the plain
    language of Articles 67, 71, and 76. Also, we are mindful of the general
    principle of statutory construction that “jurisdiction of courts is neither
    granted nor assumed by implication.” Singer, supra note 37, § 67.3. That
    maxim is particularly apt in the case of an Article I court whose
    jurisdiction “must be strictly construed.” Northrop Grumman Corp. v. United
    States, 
    47 Fed. Cl. 20
    , 40 (2000).
    61
    See, e.g., Garrett v. Lowe, 
    39 M.J. 293
     (C.M.A. 1994); Del Prado v. United
    States, 
    23 C.M.A. 132
    , 
    48 C.M.R. 748
     (1974); United States v. Frischholz, 
    16 C.M.A. 150
    , 
    36 C.M.R. 306
     (1966). We do not now address whether this Court
    has jurisdiction after a case is final under Article 76 because that issue is
    not raised in the present case, which involves our review only before a case
    is final under Article 76.
    23
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    Court.”62       We note that the Supreme Court stated its approval of
    this Court’s construction of Article 76 in Frischholz.63
    Arguably the Supreme Court’s reaffirmation of the holding in
    Frischholz supports the position that this Court’s jurisdiction
    is not terminated once the case has completed direct review.
    This Court reaffirmed this important point in Del Prado,
    stating:      “Nor is the possibility for relief terminated by the
    exhaustion of all appellate rights and procedures established by
    the Uniform Code of Military Justice.”64
    But we observe that all these cases predate Goldsmith65 and
    most predate the congressional attention to finality in the 1983
    legislative amendments to Article 71.             Also neither Frischholz
    nor earlier Supreme Court cases that discuss Article 76, such as
    Schlesinger, address the terminal point of this Court’s
    jurisdiction.         So we must examine the impact of both Clinton v.
    Goldsmith66 and the Congressional attention to finality in the
    1983 legislative amendments to Article 71.
    The Supreme Court’s opinion in Goldsmith67 helped define the
    limits of our jurisdiction.            In Goldsmith, the Supreme Court
    held that this Court exceeded its jurisdiction by enjoining
    executive action to administratively drop an Air Force officer
    62
    16 C.M.A. at   151, 36 C.M.R. at 307.
    63
    Schlesinger,   
    420 U.S. at 753
    .
    64
    23 C.M.A. at   133, 48 C.M.R. at 749.
    65
    
    526 U.S. 529
       (1999).
    66
    
    Id.
    67
    
    Id.
    24
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    from the rolls of the Air Force.             The Supreme Court stated that
    Congress:
    confined th[is] court’s jurisdiction to review
    of specified sentences imposed by courts-
    martial: the CAAF has the power to act “only
    with respect to the findings and sentence as
    approved by the [court-martial’s] convening
    authority and as affirmed or set aside as
    incorrect in law by the Court of Criminal
    Appeals.” 
    10 U.S.C. § 867
    (c).68
    The Supreme Court explicitly rejected this Court’s
    reliance on the All Writs Act,69 as a basis for the
    Court’s jurisdiction to address the Air Force’s action to
    drop an officer from the rolls.70            The Supreme Court
    explained that “[w]hile the All Writs Act authorizes
    employment of extraordinary writs, it confines the
    authority to the issuance of process ‘in aid of’ the
    issuing court’s jurisdiction. . . . [T]he Act does not
    enlarge that jurisdiction[.]”71          As the executive action
    at issue was not a “finding” or “sentence” under 
    10 U.S.C. § 867
    (c), “the elimination of Goldsmith from the
    68
    
    Id. at 534
    .
    69
    
    28 U.S.C. § 1651
    (a).
    70
    Goldsmith 
    526 U.S. at 534
    .
    71
    
    Id.
     Goldsmith expressly does not attempt to provide a comprehensive
    analysis of this Court’s writ authority. The Supreme Court stated:
    We have already seen that the CAAF’s independent statutory
    jurisdiction is narrowly circumscribed. To be more specific,
    the CAAF “is accorded jurisdiction by statute (so far as it”
    concerns us here) to “review the record in [specified] cases
    reviewed by” the service courts of criminal appeals, 
    10 U.S.C. § 867
    (a)(2), (3), which in turn have jurisdiction to “review
    court-martial cases,” § 866(a).
    Id. at 535.
    25
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    rolls appears straightforwardly to have been beyond the
    CAAF’s jurisdiction to review and hence beyond the ‘aid’
    of the All Writs Act in reviewing it.”72
    Unlike Goldsmith, the present capital case arises from and
    relates to both a “finding” and “sentence” that was imposed in a
    court-martial proceeding.          As we have stated, pursuant to the
    authorization of Congress, this Court is the only federal
    civilian court with the jurisdiction to accomplish mandatory
    review of this capital case.73         So the concerns raised by the
    Supreme Court in Goldsmith are not in play in the present case.
    This jurisdiction of this Court is compatible with the
    final limitation in Goldsmith that the Supreme Court identified
    when it stated:
    [T]he CAAF 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. Simply stated, 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.74
    Consistent with this precedent, in the present case this
    Court does not address any issues relating to the “actions
    administering sentences that [this Court] at one time had the
    power to review.”        On the contrary, the present issues implicate
    72
    Id.
    73
    See Article 67(a).
    74
    Goldsmith, 
    526 U.S. at 536
    .
    26
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    the validity and integrity of this Court’s prior judgment in
    this capital case.
    Because this capital case is not yet final under Article
    76, we conclude that this Court has subject matter jurisdiction
    to address Petitioner’s two writs.75        So we turn from the power
    of this Court to act to the question of whether it should
    entertain either of Petitioner’s present writs.
    B.    Is Petitioner’s Writ of Coram Nobis an
    Appropriate Pleading to Request this
    Court to Consider the Issues
    Presented in These Two Petitions?
    1.   This Court has power to issue extraordinary writs “in aid
    of” its jurisdiction
    The All Writs Act authorizes “all courts established by Act
    of Congress [to] issue all writs necessary or appropriate in aid
    of their respective jurisdictions.”76 It is well established that
    “the All Writs Act authorizes employment of extraordinary writs,
    [and] it confines the authority to the issuances of process ‘in
    75
    Moreover, assuming that the provisions of Article 71(c) relating to “a
    final judgment as to the legality of the proceedings” operates to render this
    death sentence “final,” we also conclude that this Court retains subject
    matter jurisdiction over this capital case. Simply stated, whether this case
    is “final” under Article 71(c) or not, this Court has subject matter
    jurisdiction under Article 67(a)(1), over this capital case. On this point,
    we state that there is nothing in the legislative history of Article 71(c)
    that indicates the congressional purpose to terminate this Court’s
    jurisdiction over a capital case. Also it is important to note that Congress
    made no changes to Article 76 when it amended Article 71(c). Had Congress
    intended to deprive this Court of all jurisdiction after complete review by
    the Supreme Court, we believe in light of this Court’s mandatory jurisdiction
    over every capital case in Article 67(a)(1), Congress would have made its
    purpose clear and unequivocal. In summary, even after “a final judgment as
    to the legality of the proceedings,” Petitioner may collaterally attack his
    conviction and sentence, and this Court has judicial power to entertain
    Petitioner’s later challenges.
    76
    
    28 U.S.C. § 1651
    (a).
    27
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    aid of’ the issuing court’s jurisdiction.”77          The Supreme Court
    has recognized this Court’s power to issue extraordinary writs
    under the All Writs Act.78       So having established this Court’s
    statutory subject matter jurisdiction in this capital case, this
    Court may invoke the All Writs Act.
    The Supreme Court has also made clear that our power under
    the All Writs Act is “essentially equitable and, as such, not
    generally available to provide alternatives to other adequate
    remedies at law.”79     The Supreme Court also has stated that “a
    writ may not be used . . . when another method of review will
    suffice.”80   This statement reaffirmed the Supreme Court’s
    earlier statement in Carlisle v. United States81 that:             “The All
    Writs Act is a residual source of authority to issue writs that
    are not otherwise covered by statute.          Where a statute
    specifically addresses the particular issue at hand, it is that
    authority, and not the All Writs Act that is controlling.”82
    So our considering these two writs pursuant to the
    authority of the All Writs Act must be consistent with these
    limitations -- that it is “necessary or appropriate” to address
    77
    Goldsmith, 
    526 U.S. at 534
    .
    78
    See 
    id.
     (citing Noyd, 
    395 U.S. at
    695 n.7).
    79
    Id. at 537.
    80
    Id. (quoting 9 Moore’s Federal Practice § 201.40).
    81
    
    517 U.S. 416
     (1996).
    82
    
    Id. at 429
     (quoting Pennsylvania Bureau of Corr. v. United States Marshals
    Service, 
    474 U.S. 34
    , 43 (1985)). The Court explained that Fed. R. Crim. P.
    29 provides the applicable law governing motions for judgment of acquittal.
    
    Id.
     Although Carlisle could not take advantage of Rule 29’s protections
    because he filed his motion out of time, the Court held that coram nobis was
    nonetheless unavailable to him. 
    Id.
    28
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    the unique issues relating to the capital sentence in this case
    and that the authority to issue the requested writs is not
    otherwise covered by another statute.         These fundamental
    principles relating to our power under the All Writs Act require
    us to consider several issues:        first, whether the Article 71(a)
    requirement for presidential action prior to execution of the
    death sentence constitutes an adequate remedy under law thereby
    rendering present review unnecessary and inappropriate; second,
    whether possible review by an Article III court constitutes an
    adequate remedy under law, thereby rendering present review
    unnecessary and inappropriate; and third, whether there are
    other adequate remedies at law available before this Court --
    specifically whether a writ of habeas corpus is available for
    Petitioner here and now.
    2.   Later presidential action does not render this Court’s
    present review either unnecessary or inappropriate
    We conclude that presidential action is not an adequate
    remedy at law.     Presidential action is akin to a state
    governor’s action, and as such, is not part of the direct
    judicial review of the case.       Article 71 requires, prior to an
    action by the President regarding a death sentence, that this
    Court complete judicial review and that the Supreme Court
    resolve any petition for a writ of certiorari filed with it.
    29
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    This construction is supported by the legislative history of the
    1983 amendments of Article 71 that suggests that they were
    intended to separate the executive clemency powers of the
    President from the judicial review of the proceedings.             The
    Senate Report on Article 71 explains:
    This legislation continues the present
    requirement that death sentences receive
    Presidential approval and that dismissal of an
    officer be approved by the Secretary of the
    Military Department concerned before such
    sentences are executed under Article 71. Such
    reviews are conducted after all legal reviews
    are completed, and do not involve a review of
    the legality of the proceedings; rather, they
    are conducted as a matter of clemency.83
    Indeed, as the President’s action takes place within the
    framework of the findings and sentence approved during the
    judicial review, it is both “necessary” and “appropriate” for
    this Court to resolve any post-conviction and legal issues
    before the President acts under Article 71(a).            Our construction
    of the executive clemency powers of the President contained in
    the UCMJ, as separate from the judicial review of the
    proceedings by this Court, also makes clear that later
    Presidential action does not provide a substitute for our
    judicial review.84
    83
    S. Rep. No. 98-53, at 24 (1983), reprinted in Index and Legislative
    History, Uniform Code of Military Justice 550 (1984).
    84
    In this regard, we are mindful of the guidance as to the exercise of our
    power under the All Writs Act in Goldsmith. In addition to holding that this
    Court had no jurisdiction to issue a writ, the Supreme Court held in
    Goldsmith that even if it was within the jurisdiction of this Court to review
    the underlying issue, “resort to the All Writs Act would still be out of
    bounds, being unjustifiable either as ‘necessary’ or as ‘appropriate’ in
    30
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    3.    Possible review by an Article III court does not render this
    Court’s present review either unnecessary or inappropriate
    Neither do we find that possible or eventual review by
    Article III Courts is an adequate remedy at law.           We reach this
    conclusion only after carefully examining the question of
    whether an Article III court can exercise collateral review
    after there is “a final judgment as to the legality of the
    proceedings” pursuant to Article 71(c) but before there is
    executive action taken on the findings and sentence under
    Article 71(a) and the case becomes final under Article 76.             In
    addressing this issue, we find solid guidance and persuasive
    reasoning in Blair-Bey v. Quick.85
    In Blair-Bey, the United States Court of Appeals for the
    District of Columbia Circuit addressed the jurisdiction of the
    federal courts to entertain a habeas petition challenging the
    procedures by which the petitioner was denied parole in the
    District of Columbia.       The district court had dismissed the
    petition after finding that the federal courts were precluded by
    a provision of the D.C. Code, § 16-1901, from entertaining
    light of alternative remedies available to a servicemember demanding to be
    kept on the rolls.” 
    526 U.S. at 537
    . The Court then outlined “alternative
    statutory avenues of relief” that prevented the All Writs Act from coming
    into play. The Supreme Court concluded that an injunction was not allowed
    under the All Writs Act “since other administrative bodies in the military,
    and the federal courts, have authority to provide administrative or judicial
    review of the action challenged by respondent.” 
    Id. at 537-38
    . We conclude
    that the clemency action by the President under Article 71 does not provide
    the administrative or judicial review sufficient to address Petitioner’s
    present challenges to his death sentence.
    85
    
    151 F.3d 1036
     (D.C. Cir. 1998).
    31
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    petitions filed by D.C. prisoners.        But the appellate court held
    that it had jurisdiction to entertain the petition and stated:
    In deciding whether Congress intended to
    restrict the availability of federal habeas
    corpus when it enacted the present section 16-
    1901, we tread carefully. As reviewed above,
    there is a “long tradition of ready access of
    prisoners to federal habeas corpus,” Anderson
    [v. Singletary], 111 F.3d [801, 805 (11th Cir.
    1997)], and we are most reluctant to find that
    Congress has deprived an entire category of
    prisoners of access to an Article III habeas
    remedy without very clear evidence of
    congressional intent.86
    Applying this same reasoning in the present case, we also
    are reluctant to, and do not, conclude that Congress deprived
    servicemembers of the right to seek Article III habeas review
    after there is “a final judgment as to the legality of the
    proceedings” pursuant to Article 71(c) but before there is
    executive action taken on the findings and sentence under
    Article 71(a) and the case becomes final under Article 76.             We
    find no statute expressing clear congressional intent to
    establish exclusivity of judicial power in either this Court or
    any other federal courts in this situation.          Also it does not
    appear that there is a published Article III court case
    addressing this issue.87
    86
    
    Id. at 1043-44
    .
    87
    Goldsmith discussed the relationship between review within the military
    system and collateral review by the Article III courts, but this opinion did
    not focus on the timing of when a decision becomes final in the military
    justice system. The Goldsmith Court noted:
    [O]nce a criminal conviction has been finally reviewed within
    the military system, and a servicemember in custody has
    32
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    But our concluding that Article III courts have the power
    to entertain a writ of habeas corpus or other petitions does not
    necessarily mean that this eventual review is an adequate remedy
    at law.   The mere possibility of eventual habeas corpus review
    in federal civil courts prior to presidential action regarding
    the death sentence under Article 71(a), is unlikely because of
    other federal courts’ application of the doctrines of
    exhaustion88 or abstention.89
    Earlier in this opinion we rejected the Government
    assertion that this Court does not have jurisdiction over these
    two petitions for extraordinary relief.90         Similarly we have
    recognized the power of Article III courts to entertain a writ
    exhausted other avenues provided under the UCMJ to seek relief
    from his conviction, he is entitled to bring a habeas corpus
    petition, see 
    28 U.S.C. § 2241
    (c), claiming that his
    conviction is affected by a fundamental defect that requires
    that it be set aside.
    
    526 U.S. at
    537 n.11 (citations omitted). But this passage does not tell us
    whether, for purposes of Article III habeas corpus, a case is final when
    legal review is completed under Article 71 or when final action is taken on
    the findings and sentence by an executive branch official.
    88
    The exhaustion doctrine applies to both federal and state prisoners who
    seek to file an application for a writ of habeas corpus to an Article III
    court. See 
    28 U.S.C. §§ 2254
    , 2255 (2000).
    89
    At least one federal court has relied on the doctrine of abstention to
    avoid addressing issues pending completion of both judicial and
    administrative actions within the military. See Lawrence v. McCarthy, 
    344 F.3d 467
     (5th Cir. 2003). Lawrence involved an Article III challenge to
    activation of a reservist to face court-martial charges, which implicated the
    action of military officials and military courts. The Fifth Circuit, in
    holding that abstention was appropriate, said: “The application of Younger
    [v. Harris, 
    401 U.S. 37
     (1971)], in this case . . . promotes judicial
    efficiency and conservation of resources by avoiding duplicative proceedings.
    The need for federal intervention may be obviated entirely simply by allowing
    the military institution, both judicial and administrative, to run their
    course.” 
    344 F.3d at 474
    .
    90
    See supra pp. 11-12 (rejecting the position of the Government presented in
    Brief for Respondents in Opposition at 10-11, Loving v. Hart, 
    525 U.S. 1040
    (No. 98-251)).
    33
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    of habeas corpus or other petitions.         At this point we simply
    explain why Article III intervention presently is unlikely (in
    light of the application of doctrines of exhaustion or
    abstention) thereby rendering our continued involvement in this
    case as “necessary or appropriate” under the All Writs Act.
    Before a case is final under Article 76, Article III
    federal courts normally will not be available to consider
    Petitioner’s challenge to his death sentence.91          The Supreme
    Court has made clear that “federal courts typically will not
    entertain habeas petitions by military prisoners unless all
    available military remedies have been exhausted.”92
    In Noyd,93 the Supreme Court addressed the purposes of
    requiring exhaustion of military remedies prior to Article III
    collateral review.     The Court quoted Justice Douglas, speaking
    for a unanimous Court in Gusik, to explain some of the important
    reasons which require civilian courts to respect the integrity
    of the military system that Congress has established:
    91
    See generally Richard D. Rosen, Civilian Courts and the Military Justice
    System: Collateral Review of Courts-Martial, 
    108 Mil. L. Rev. 5
     (1985).
    92
    Schlesinger, 
    420 U.S. at 758
    . See also Gusik, 
    340 U.S. 128
     (establishing
    the general rule that habeas corpus petitions from military prisoners should
    not be entertained by federal civilian courts until all available remedies
    within the military court system have been invoked).
    93
    
    395 U.S. at 693
     (1969) (reaffirming Gusik’s exhaustion rule). The
    legislative history of the 1983 amendments to the UCMJ supports the Supreme
    Court’s reliance on the doctrine of exhaustion. See Revision of the Laws
    Governing the U.S. Court of Military Appeals and the Appeals Process:
    Hearings on H.R. 6406 and H.R. 6298 Before the Subcomm. on Military Personnel
    of the H. Comm. on Armed Forces, 96th Cong. 55 (1980), reprinted in Index and
    Legislative History, Uniform Code of Military Justice 82 (1984). (“The
    doctrine of exhaustion of remedies may require the accused to pursue further
    actions in the military system prior to obtaining review in a federal
    district court.”).
    34
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    “An analogy is a petition for habeas corpus in
    the federal court challenging the jurisdiction
    of a state court. If the state procedure
    provides a remedy, which though available has
    not been exhausted, the federal courts will not
    interfere. . . . The policy underlying that
    rule is as pertinent to the collateral attack
    of military judgments as it is to collateral
    attack of judgments rendered in state courts.
    If an available procedure has not been employed
    to rectify the alleged error which the federal
    court is asked to correct, any interference by
    the federal court may be wholly needless. The
    procedure established to police the errors of
    the tribunal whose judgment is challenged may
    be adequate for the occasion. If it is, any
    friction between the federal court and the
    military or state tribunal is saved. . . . Such
    a principle of judicial administration is in no
    sense a suspension of the writ of habeas
    corpus. It is merely a deferment of resort to
    the writ until other corrective procedures are
    shown to be futile.” 94
    The Noyd Court noted the need for “a substantial degree of
    civilian deference to the military tribunals” and specifically
    referenced our Court’s “primary responsibility” for the
    supervision of military justice.95        The Supreme Court stated that
    this deference to our Court was rooted in both judicial economy
    (avoiding needless civilian judicial intervention) and respect
    for our Court’s expertise in interpreting the technical
    provisions of the UCMJ.96
    Application of either the exhaustion or abstention doctrine
    by Article III courts is most appropriate in this capital case.
    94
    
    395 U.S. at 693-94
     (quoting Gusik, 
    340 U.S. at 131-32
    ).
    95
    Id. at 694-95.
    96
    Id. at 696 (“There seems little reason to blaze a trail on unfamiliar
    ground when the highest military court stands ready to consider petitioner’s
    arguments.”).
    35
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    Because there has not yet been presidential approval of the
    death sentence, an Article III court would likely view as
    premature any habeas corpus petition challenging a military
    death sentence.97     Until the President acts, there is the
    possibility that the issue could be mooted, so that Article III
    courts should not become involved.         This probable absence of an
    alternate forum to present his claim, before action by the
    President, invites this Court to be available to address issues
    that relate to the lawfulness of the capital sentence.98
    In addition there are four other important practical
    factors that support the application of the doctrine of
    exhaustion in the present situation.          First, Congress gave this
    Court the authority to conduct a mandatory review of death
    penalty cases.99     Under this authority, this Court remains the
    primary judicial body with jurisdiction over Petitioner’s case,
    and this Court has authority to reexamine its prior decision in
    this case.100    The factual history of this case, including the
    97
    See Gusik, 
    340 U.S. 128
    ; Rosen, supra note 91, at 67-76.
    98
    Again, this is not to say that the Article III courts do not have the power
    to entertain the habeas writ but only that these courts prudently have been
    reluctant to entertain the writ related to military justice issues because of
    the exhaustion doctrine. Of course, collateral review by an Article III is
    the only judicial forum to address matters outside the scope of military
    justice. See Goldsmith, 
    526 U.S. at
    534 (citing Parisi v. Davidson, 
    405 U.S. 34
    , 44 n.12 (1972), for the proposition that the “Court of Military Appeals
    lacked express authority over [a] claim for discharge based on conscientious
    objector status”).
    99
    Article 67(a)(1).
    100
    The primacy of this Court’s position has not been diminished by the
    establishment of immediate possible certiorari review by the Supreme Court.
    In fact, Congress, in establishing Supreme Court review of courts-martial and
    in later amending the UCMJ, repeatedly has emphasized that our Court would
    continue to exercise primary responsibility for the supervision of military
    36
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    decision by the Supreme Court in June of 1996 and no
    presidential action as to the death sentence, reveals that this
    case could otherwise remain in a legal vacuum for years.            We do
    not think this is what the Congress intended when it directed
    this Court to conduct a mandatory review of capital cases.
    Second, we note that the scope of federal habeas review is
    not certain, thereby raising questions as to the capability of
    federal habeas proceedings to safeguard servicemembers’
    constitutional rights.101      In light of these circumstances, it is
    our view that the mere possibility of eventual habeas corpus
    review of uncertain scope in federal civil courts, after the
    President’s action, is an inadequate substitute for this Court’s
    timely consideration of issues challenging the lawfulness of a
    capital sentence.
    Third, Congress has given this Court a mandate to provide
    direct civilian review over military justice and guidance to
    other military courts considering capital cases and federal
    courts with respect to the impact of the recent opinions in
    Ring, Apprendi, and Wiggins on the military’s death penalty
    law. See S. Rep. No. 98-53, at 33 (1983), reprinted in Index and Legislative
    History, Uniform Code of Military Justice 559 (1984)(“The Committee intends
    that the Court of Military Appeals will be the principal source of
    authoritative interpretations of the law.”); H.R. Rep. No. 98-549, at 17
    (1980), reprinted in Index and Legislative History, Uniform Code of Military
    Justice 664 (1984)(“The committee is of the opinion that . . . the Court of
    Military Appeals will remain the primary source of judicial authority under
    the Uniform Code of Military Justice.”).
    101
    See Rosen, supra note 91, at 57 n.13.
    37
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    scheme.102      This guidance is of some urgency as there are
    presently four death penalty cases under direct review at the
    Military Courts of Criminal Appeals, and other pending or
    potential capital cases in the offing.
    Finally, prior to the President acting on a sentence of
    death, pursuant to Article 71(a), the military justice system
    must present to the President a case where the findings and
    sentence are lawful and there is confidence in the reliability
    of the determination of a death sentence.          If legal issues arise
    between the conclusion of legal review and final executive
    action, it is best that the legal foundation for the President’s
    action be established by this Court with its expertise in
    military justice.103        This probable absence of an alternate forum
    for a servicemember to present his claim, before action by the
    President, invites this Court to be available to address issues
    that relate to the lawfulness of the capital sentence.
    In summary, these additional four points support our
    conclusion that present review by an Article III court is
    unlikely.       Accordingly, our review is necessary and proper
    because there is no viable alternate judicial forum available
    102
    See Noyd, 
    395 U.S. at 696
    .
    103
    Our present judicial review is consistent with our judicial “duty to
    search for constitutional error with painstaking care . . . .” Kyles, 
    514 U.S. at 422
     (quoting Burger, 
    483 U.S. at 785
    ). Our review effectuates the
    heightened reliability required in capital cases. See, e.g., Gilmore v.
    Taylor, 
    508 U.S. 333
     (1993); California v. Ramos, 
    463 U.S. 992
     (1983);
    Woodson v. North Carolina, 
    428 U.S. 280
     (1976).
    38
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    for Petitioner to present his legal challenges as to the
    lawfulness of a capital sentence prior to the President acting
    pursuant to Article 71(a).
    4. Consideration of other legal remedies that
    relate to the appropriateness of this Court’s
    present review of Petitioner’s claims
    In light of these conclusions, this Court must determine
    whether there are other adequate remedies at law available
    before this or any other Court.           This requires us to address
    both the propriety of filing a writ of coram nobis and other
    statutory authority that addresses the right of an incarcerated
    person to seek habeas relief.
    To support his claim for extraordinary relief, Petitioner
    presents constitutional challenges to the legality of his
    capital sentence:        the Ring Writ relates to the authority of the
    President to promulgate R.C.M. 1004 and the voting procedures
    for adjudging his capital sentence, and the Wiggins Writ makes a
    claim of ineffective assistance of Petitioner’s trial defense
    counsel.       Procedurally, Petitioner filed two petitions for
    extraordinary relief in the nature of a writ of error coram
    nobis.      In both of these writs, Petitioner seeks the relief of
    setting aside his death sentence, and in neither of these writs
    does Petitioner challenge his continued confinement nor seek to
    be released from confinement.104          In addressing the propriety of
    104
    Ring Writ, supra note 21, at 37; Wiggins Writ, supra note 23, at 45.
    39
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    the two petitions, we are obliged to address both the writ of
    coram nobis and the writ of habeas corpus, because the former is
    available only when the later is unavailable.
    “The ‘writ of error coram nobis,’ also referred to simply
    as a ‘writ of coram nobis,’ evolved in 16th century English
    common law as a procedural means to remedy judicial wrongs for
    which there was no other established remedy.”105          The writ of
    coram nobis (the Latin phrase literally translates “let the
    record remain before us”) is submitted to the court that imposed
    the original judgment.106
    A writ petition submitted to a superior court is a writ of
    error coram vobis (“before you”).107        But incorrectly describing
    the writ is not fatal to a petition, because courts look at the
    substance of the writ rather than the form.108
    “Historically, the writ of error coram nobis was distinct
    from the writ of habeas corpus in that the former dealt with
    factual errors and the latter with legal errors.”109           This
    distinction no longer pertains, as coram nobis has been expanded
    to encompass constitutional and other fundamental errors.110
    Reflecting its original purpose, a writ of error coram nobis
    105
    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).
    106
    Id.; 2 Steven Childress & Martha Davis, Federal Standards of Review, §
    13.01, at 13-4 (3d ed. 1999).
    107
    Ex Parte Lange, 
    85 U.S. 163
    , 196 (1873).
    108
    See Pyles v. Boles, 
    250 F. Supp. 285
    , 288 (N.D.W.V. 1966); see also
    Childress & Davis, supra note 106, at 13-8.
    109
    Mulroy, supra note 105, at 10.
    110
    Childress & Davis, supra note 106, at 13-2.
    40
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    remains appropriate when no other remedy is available.111             A
    distinctive feature of this writ is that it alleges no error by
    the original court or its findings, but invites the original
    court’s attention to new facts or law that were not known to the
    court at the time and that may change the result.112            It “permits
    a court to remedy errors not perceived or not fully assessed
    when the case was first before it.”113         “It may not be used to
    seek a reevaluation of the evidence or a reconsideration of
    alleged errors.”114     The writ encompasses the impact of new law
    on a decision.115
    Courts have imposed “a requirement that the movant show
    that he or she had exercised reasonable diligence in seeking a
    remedy . . . a requirement that the defendant, exercising
    reasonable diligence could not have discovered the evidence
    prior to the original judgment.”116        “Both at common law and in
    modern practice, the relief afforded [by the writ] is without
    limitation of time for facts affecting the validity and
    regularity of the judgment.”117       A writ of coram nobis differs
    111
    Id. at 13-7 (citing United States v. Morgan, 
    346 U.S. 502
    , 512 (1954)).
    112
    See Frischholz, 16 C.M.A. at 153, 36 C.M.R. at 309; Mulroy, supra note 105,
    at 10.
    113
    Del Prado, 23 C.M.A. at 133, 48 C.M.R. at 749.
    114
    Frischholz, 16 C.M.A. at 153, 36 C.M.R. at 309.
    115
    Childress & Davis, supra note 106, § 13.01 at 13-2.
    116
    Mulroy, supra note 105, at 11; see also Frischholz, 16 C.M.A. at 153, 36
    C.M.R. at 309.
    117
    Del Prado, 23 C.M.A. at 133, 48 C.M.R. at 749; see also Garrett, 39 M.J. at
    295 n.2 (“We are unaware that there are time limits for petitioning for a
    writ of error coram nobis.”)
    41
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    from a writ of habeas corpus in that it is available to
    petitioners who are not in custody.118
    The Supreme Court has had very little to say on coram nobis
    in the last fifty years.       But we do find helpful the substantive
    discussion of coram nobis in United States v. Morgan.119               In
    Morgan, the Court established the prevailing rule today --
    “Continuation of litigation after final judgment and exhaustion
    or waiver of any statutory right of review should be allowed
    through this extraordinary remedy only under circumstances
    compelling such action to achieve justice.”120            Coram nobis
    118
    See Garrett, 39 M.J. at 295; Morgan, 
    346 U.S. at 510
     (expressly rejecting
    the Government assertion that 
    28 U.S.C. § 2255
     “should be construed to cover
    the entire field of remedies in the nature of coram nobis in federal
    courts”).
    119
    
    346 U.S. 502
    . The Supreme Court held that a state prisoner sentenced as a
    second offender because of a prior federal conviction could challenge his
    earlier conviction in the federal case through a writ of coram nobis. At the
    outset, the Court defined the issue before it as “whether a United States
    District Court has power to vacate its judgment of conviction and sentence
    after the expiration of the full term of service.” 
    Id. at 503
    . The Court
    concluded that federal courts have the power under the All Writs Act to issue
    writs of coram nobis in criminal cases and that the power extends to district
    courts. Having found the writ to be within the district court’s powers, the
    Supreme Court set out to limit the situations in which the writ should be
    granted.
    120
    
    Id. at 511
    . Applying the rule to the facts of Morgan’s case, the Supreme
    Court concluded:
    Where it cannot be deduced from the record whether counsel was
    properly waived, we think, no other remedy being then
    available and sound reasons existing for failure to seek
    appropriate earlier relief, this motion in the nature of the
    extraordinary writ of coram nobis must be heard by the federal
    trial court. Otherwise a wrong may stand uncorrected which
    the available remedy would right.
    
    Id. at 512
    . Giving some additional context to its holding, the Court added
    the following short paragraph to the end of the opinion:
    Although the term has been served, the results of the
    conviction may persist. Subsequent convictions may carry
    42
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    should only be used to remedy “errors ‘of the most fundamental
    character.’”121
    In a more recent case, Carlisle v. United States,122 the
    Supreme Court underscored the difficulty of successfully
    petitioning for a writ of coram nobis where a specific rule of
    criminal procedure provided the applicable law relating to an
    issue.   The Court stated, “As we noted a few years after the
    enactment of the Federal Rules of Criminal Procedure, ‘it is
    difficult to conceive of a situation in a federal criminal case
    today where [a writ of coram nobis] would be necessary or
    appropriate.’”123    But we find this guidance less than satisfying
    heavier penalties, civil rights may be affected. As the power
    to remedy an invalid sentence exists, we think, respondent is
    entitled to an opportunity to attempt to show that this
    conviction was invalid.
    
    Id. at 512-13
    . With this paragraph and the previous discussion of the writ
    coram nobis, we believe the Court is defining the more specific parameters
    that may permit the filing of a petition for coram nobis relief. The Court’s
    opinion can reasonably be read to say that coram nobis is safely available
    only: (1) after the term has been served, (2) there is an error of the most
    fundamental character, (3) the consequences or results of the erroneous
    conviction persist, (4) no other remedy is available to address the error,
    and (5) a writ of coram nobis could remedy those consequences or results. We
    note that Morgan addressed the availability of a writ of error coram nobis to
    vacate a conviction after the sentence had been served. But this decision is
    not clear about whether or not a petitioner who is in custody is barred from
    all coram nobis relief.
    121
    
    Id. at 512
     (quoting United States v. Mayer, 
    235 U.S. 55
    , 69 (1914)); see
    also United States v. Mandel, 
    862 F.2d 1067
     (1988)(granting of a writ of
    error coram nobis in light of a retroactive dispositive change in the law of
    mail fraud).
    122
    517 U.S. at 428-29. In Carlisle, the district court granted the
    defendant’s motion for judgment of acquittal even though it was filed out of
    time. The Sixth Circuit reversed, and the Supreme Court agreed that the
    district court had no authority to enter a post-verdict judgment of acquittal
    when the motion was untimely. Having thus disposed of the main issue in the
    case, the Supreme Court quickly dismissed Carlisle’s secondary claim -- that
    the district court had the power to enter a judgment of acquittal under the
    All Writs Act through the writ of coram nobis.
    123
    Id. at 429 (quoting United States v. Smith, 
    331 U.S. 469
    , 475, n.4 (1947)).
    43
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    in the present case, for “[u]nlike the practice in the United
    States Circuit Courts of Appeal and District Courts, neither the
    UCMJ nor the Manual for Courts-Martial, United States, 1984,
    provides procedures for collateral, post-conviction attacks on
    guilty verdicts.”124     So absent a specific rule or statute in the
    military justice system that pertains to this present situation,
    we next consider other statutory authority that might be
    available for Petitioner to obtain the relief that he now
    requests from this Court.
    In federal criminal practice, a motion to vacate the
    judgment under 
    28 U.S.C. § 2255
     has, for the most part, replaced
    the writ of coram nobis.       However, 
    28 U.S.C. § 2255
     did not
    abolish the common law writ of error coram nobis, and it is
    still available under the All Writs Act.125          For our purposes, it
    is sufficient to note that coram nobis is analogous to a motion
    under 
    28 U.S.C. § 2255
     and “the processes developed for treating
    Section 2255 motions apply as well to coram nobis
    applications.”126    Similarly, we view the scope of review for
    coram nobis as equivalent to that for habeas relief under 28
    124
    United States v. Murphy, 
    50 M.J. 4
    , 5 (C.A.A.F. 1998).
    125
    Morgan, 
    346 U.S. at 511
    .
    126
    Childress & Davis, supra note 106, at 13-7; see Morgan, 
    346 U.S. at
    506 n.4
    (stating that the writ of coram nobis “is of the same general character as
    one under 
    28 U.S.C. § 2255
    ”); see also United States v. Travers, 
    514 F.2d 1171
    , 1173 n.1 (2d Cir. 1974)(stating coram nobis and habeas corpus are
    roughly “similar” proceedings); United States v. Little, 
    608 F.2d 296
    , 299
    (8th Cir. 1979)(stating coram nobis and habeas corpus are “substantially
    equivalent” proceedings).
    44
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    U.S.C. § 2255.127    Although this scope is not altogether clear,
    it is important to note that coram nobis “usually does not
    include claims raised on direct appeal or habeas if the issues
    were decided on the merits there.”128
    In the wake of the Supreme Court’s holding in Morgan, the
    question remains as to whether coram nobis relief is available
    if the petitioner is “in custody” within the meaning of § 2255.
    This is important because if relief is available under § 2255,
    thereby making the statutory remedies of that section available
    to this Petitioner, coram nobis is not available.            The circuit
    courts are in complete agreement that if the petitioner is “in
    custody” within the meaning of § 2255, coram nobis relief is
    unavailable as a matter of law.129        This is true whether or not
    habeas relief is a realistic possibility.          In other words, even
    if the coram nobis petitioner will be barred from habeas relief
    127
    Childress & Davis, supra note 106, at 13-7.
    128
    Id. at 13-18.
    129
    See, e.g., United States v. Esogbue, 
    357 F.3d 532
    , 534 (5th Cir. 2004);
    Obado v. State of New Jersey, 
    328 F.3d 716
    , 718 (3d Cir. 2003); Matus-Leva v.
    United States, 
    287 F.3d 758
    , 761 (9th Cir. 2002); United States v. Torres,
    
    282 F.3d 1241
    , 1245 (10th Cir. 2002); United States v. Johnson, 
    237 F.3d 751
    ,
    755 (6th Cir. 2001); United States v. Barrett, 
    178 F.3d 34
    , 54-55 (1st Cir.
    1999); Fleming v. United States, 
    146 F.3d 88
    , 89-90 (2d Cir. 1998); United
    States v. Brown, 
    117 F.3d 471
    , 474-75 (llth Cir. 1997); United States v.
    Bush, 
    888 F.2d 1145
    , 1147 (7th Cir. 1989); United States v. Mandel, 
    862 F.2d 1067
    , 1075 (4th Cir. 1988); United States v. Little, 
    608 F.2d 296
    , 299 n.5
    (8th Cir. 1979); Clifton v. United States, 
    371 F.2d 354
    , 355 n.2 (D.C. Cir.
    1966), overruled on other grounds by Pea v. United States, 
    397 F.2d 627
     (D.C.
    Cir. 1967).
    45
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    due to time limits, the rules on successive petitions, or other
    limitations of § 2255, coram nobis is still not available.130
    Interestingly, military courts have not fully addressed or
    decided the “in custody” issue.131         This Court’s coram nobis
    decisions have involved petitioners both in and out of custody
    but it does not appear that there is any case where the “in
    custody issue” was treated as dispositive.132
    But we need not resolve whether coram nobis relief is
    available if the petitioner is “in custody” within the meaning
    of § 2255, for there is another basis for our concluding that
    the statutory remedies of that section are not available to this
    Petitioner.    The plain language of § 2255 does not speak to the
    power of this Court to address Petitioner’s challenges to his
    court-martial.133
    This statute states in part that “A prisoner . . . may move
    the court which imposed the sentence to vacate, set aside or
    130
    See, e.g., Matus-Leva, 
    287 F.3d. at 761
     (“Matus-Leva’s argument that a §
    2255 petition is not really available to him because it is time barred under
    the Antiterrorism and Effective Death Penalty Act [AEDPA], is unavailing. A
    petitioner may not resort to coram nobis merely because he has failed to meet
    the AEDPA’s gatekeeping requirements.”); Johnson, 
    237 F.3d at 755
     (denying
    coram nobis relief even though habeas relief was time-barred); Malave v.
    United States, 
    134 F. Supp. 2d 1019
    , 1021 (E.D. Wis. 2001) (“[C]oram nobis is
    not available as a ‘safety valve’ to relieve Section 2255 petitioners of the
    consequences of their procedural missteps.”).
    131
    Krause, 7 M.J. at 429 (Perry, J., dissenting) (expressing the view that
    this Court has authority under 
    28 U.S.C. § 2255
     to entertain a writ of coram
    nobis but the Court should treat it as a writ of habeas corpus).
    132
    A lower military court acknowledges that “the U.S. Supreme Court [has] held
    that the ancient writ of coram nobis [is] available in criminal cases . . .
    when the petitioner [has] completed his sentence and [is] no longer in
    custody for purposes of seeking habeas corpus relief.” Johnson v. United
    States, 
    49 M.J. 569
    , 571 (N-M. Ct. Crim. App. 1998).
    133
    But see Krause, 7 M.J. at 429 (Perry, J., dissenting).
    46
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    correct the sentence.”134      In the military justice system there
    are no standing courts, so the court that imposed Petitioner’s
    death sentence is no longer in existence.135          Also because this
    Court was not the sentencing court, it similarly is not a “court
    which imposed the sentence” within the meaning of § 2255.              Any
    attempt of a servicemember to avail himself of § 2255 in this
    Court is obviously futile because the statute permits the
    sentencing court to “make findings of fact” and this Court has
    no factfinding power.136      We decline any invitation to fit a 
    28 U.S.C. § 2255
     square peg into an Article 67 round hole.              We find
    that 
    28 U.S.C. § 2255
     is not pertinent.          Because Petitioner
    cannot presently obtain habeas review under this statute, we
    cannot rely on it to render his petition for a writ of coram
    nobis unavailable.
    Next we address whether Petitioner can seek habeas under 
    28 U.S.C. § 2241
    .     This statute states:
    Writs of habeas corpus may be granted by the
    Supreme Court, any justice thereof, the
    district courts and any circuit judge within
    their respective jurisdictions. The order of a
    circuit judge shall be entered in the records
    of the district court of the district wherein
    the restraint complained of is had.”137
    134
    
    28 U.S.C. § 2255
     (emphasis added).
    135
    Gilliam v. Bureau of Prisons, 
    208 F.3d 217
    , No. 99-1222, 
    2000 U.S. App. LEXIS 3684
    , at *3, 
    2003 WL 268491
    , at *1 (8th Cir. Mar. 10, 2000)(decision
    without published opinion, reported in full in electronic
    databases)(“Strictly speaking, a person convicted in a court-martial
    proceeding may not file a section 2255 challenge in the court of conviction
    because, following conviction, that court ceases to exist.”).
    136
    Article 67(c) states, “The Court of Appeals for the Armed Forces shall take
    action only with respect to matters of law.”
    137
    
    28 U.S.C. § 2241
     (2000).
    47
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    We conclude that the plain words of this statute also do
    not speak to the power of this Court to address Petitioner’s
    challenges to his court-martial.          By the plain words of this
    statute, neither this Court nor any judge of this Court is
    empowered to act.138     This Article I court is not mentioned by
    name, and the judges of this Article I court are not circuit
    judges.139
    Finally, any action by this Court or a judge of this Court
    directing any habeas petition to an Article III court pursuant
    to this statute would most likely not accomplish the purpose of
    the statute of obtaining habeas review because the district
    court would decline to proceed on exhaustion or abstention
    grounds pending the case becoming final within the military
    justice system.     Thus, we conclude that a petition before this
    Court for a writ of habeas corpus filed pursuant 
    28 U.S.C. § 138
    See Callwood v. Enos, 
    230 F.3d 627
    , 632-34 (3d Cir. 2000)(explaining how
    prior to a 1984 act of Congress the District Court of the Virgin Islands
    lacked 
    28 U.S.C. § 2241
     habeas corpus jurisdiction because it was not a
    “District Court” established under Article III); see also Joseph v. de
    Castro, 
    805 F. Supp. 1242
     (D.V.I. 1992)(holding that the District Court of
    the Virgin Islands may not entertain a habeas motion brought pursuant to 
    28 U.S.C. § 2241
    ), superseded by statute, 
    48 U.S.C. § 1613
    . The court in de
    Castro explained in part: “Because the District Court of the Virgin Islands
    is not an Article III court, but rather is established under Article IV, § 3
    of the United States Constitution which gives Congress plenary power to
    regulate [the Territory belonging to the United States], its general
    jurisdiction is congressionally mandated.” 
    805 F. Supp. at
    1248 n.6.
    139
    See 
    28 U.S.C. § 451
     (2000); United States Navy-Marine Corps Court of
    Military Review v. Cheney, 
    29 M.J. 98
     (C.M.A. 1989).
    48
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    2241 is not a viable remedy thereby rendering relief under coram
    nobis unavailable.140
    5. This Court may issue a writ of habeas corpus under the All
    Writs Act in this death penalty case; therefore a coram nobis
    writ is not appropriate
    Eliminating possible alternative relief under 
    28 U.S.C. §§ 2241
     and 2255 does not mean that the coram nobis pleading is
    proper.   Deciding that these two statutes are not pertinent to
    the power of this Court to issue writs, therefore, permits this
    Court to look to the All Writs Act -- our “residual source of
    authority to issue writs.”141       We conclude that there is a proper
    basis to permit Petitioner to file a writ of habeas corpus under
    
    28 U.S.C. § 1651
    (a).
    As stated earlier, there is no question that this Court is
    empowered under the All Writs Act to grant extraordinary relief
    where appropriate.      The writ of habeas corpus is available to
    the military accused and may be filed in this Court under the
    All Writs Act, 
    28 U.S.C. § 1651
    (a), because the Supreme Court
    140
    We note that the Government has previously asserted that this Court has no
    jurisdiction to act under 
    28 U.S.C. § 2241
    (a). See Jones v. Ignatius, 
    18 C.M.A. 7
    , 8, 
    39 C.M.R. 7
    , 8 (1968). This statute affords a servicemember who
    is “in custody” the right to seek Article III collateral review. See Witham
    v. United States, 
    355 F.3d 501
     (6th Cir. 2004); Gilliam, No. 99-122, 
    2000 U.S. App. LEXIS 3684
    , at *6-*7, 
    2000 WL 268491
    , at *3 (citing Goldsmith, 
    526 U.S. at
    527 n.11). A case illustrating the Article III collateral review is
    Monk v. Zelez, 
    901 F.2d 885
     (10th Cir. 1990). The case originated in the
    District of Columbia Circuit as a challenge to the discharge and deprivation
    of pay based upon an allegedly illegal court-martial conviction. The
    district court provided relief and the circuit court held that it should have
    been viewed as a habeas petition, and as such should have been brought in the
    jurisdiction in which the petitioner was confined. Monk v. Sec’y of the
    Navy, 
    793 F.2d 364
     (D.C. Cir. 1986). The case was filed in Kansas, and the
    Tenth Circuit provided habeas relief based upon an improper reasonable doubt
    instruction.
    141
    Carlisle, 
    517 U.S. at 429
    .
    49
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    has expressly addressed this issue and blessed our issuing the
    “Great Writ.”142     The Supreme Court stated, “[W]e do not believe
    that there can be any doubt as to the power of the Court of
    Military Appeals to issue an emergency writ of habeas corpus in
    cases, like the present one, which may ultimately be reviewed by
    the court.”143     This statement of the Supreme Court reaffirms the
    conclusion that a writ of habeas corpus is unavailable under 
    28 U.S.C. §§ 2241
     and 2255, because had either of these statutes
    authorized habeas relief, the Supreme Court would not have
    relied on the All Writs Act, 
    28 U.S.C. § 1651
    (a) to support this
    Court’s exercise of judicial power under Noyd.            With this clear
    precedent before us that this Court may grant a writ of habeas
    corpus to address the issues raised in the two extraordinary
    writs filed in the present case, we conclude that coram nobis is
    not appropriate.     Regarding the writ of habeas corpus, the
    Supreme Court has stated:
    [T]he scope and flexibility of the writ [of habeas
    corpus] -- its capacity to reach all manner of illegal
    detention -- its ability to cut through barriers of
    form and procedural mazes -- have always been
    emphasized and jealously guarded by courts and
    lawmakers. The very nature of the writ demands that it
    be administered with the initiative and flexibility
    essential to insure that miscarriages of justice
    within its reach are surfaced and corrected.144
    142
    Noyd, 
    395 U.S. at
    695 n.7 (1969); Courtney v. Williams, 
    1 M.J. 267
     (C.M.A.
    1976). See generally Daniel J. Wacker, The “Unreviewable” Court-Martial
    Conviction: Supervisory Relief under the All Writs Act from the United
    States Court of Military Appeals, 
    10 Harv. C.R.-C.L. L. Rev. 33
     (1975).
    143
    See Noyd, 
    395 U.S. at
    695 n.7.
    144
    Harris v. Nelson, 
    394 U.S. 286
    , 291 (1969).
    50
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    Because of the present availability of “the Great Writ”145
    under 
    28 U.S.C. § 1651
    (a), Petitioner cannot properly file a
    writ coram nobis here.
    6.    Petitioner has shown “good cause” for filing the present
    pleadings at this Court
    Although we have established that our issuing a writ of
    coram nobis presently is not appropriate, we must acknowledge
    that in Garrett,146 this Court recognized its power to entertain
    a writ of error coram nobis to address “constitutional and other
    fundamental errors.”147       But this Court did not discuss the
    relationship between habeas corpus and coram nobis.            Because of
    this omission, we decline to follow Garrett and perpetuate the
    life of a writ of coram nobis where the petitioner is “in
    custody” and a writ of habeas corpus is available to Petitioner
    to present issues to this Court.
    Also in light of the authority in Garrett and this Court’s
    long history of entertaining the distinctive coram nobis writ,148
    145
    
    Id. at 290
    .
    146
    
    39 M.J. 293
    .
    147
    
    Id. at 295
    . In this case we rejected the Government assertion that the
    writ of error coram nobis would not lie to correct an error of law.
    148
    See, e.g., Garrett, 
    39 M.J. 293
    ; Del Prado, 
    23 C.M.A. 132
    , 
    48 C.M.R. 748
    ;
    Frischholz, 
    16 C.M.A. 150
    , 
    36 C.M.R. 306
    . We note that the legislative
    history of the UCMJ reflects that the new trial provisions of Article 73,
    UCMJ, 
    10 U.S.C. § 873
     (2000), incorporated the writ of coram nobis to address
    a fraud on the court. In a hearing that examined Article 73, the Department
    of Defense witness, Felix Larkin explained, “What we did was to combine what
    amounts to a writ of error coram nobis with the motion for a new trial on
    newly discovered evidence. We have provided for both of them and to our
    51
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    we are not inclined to find any defect in Petitioner’s pleadings
    because Petitioner relied on our past practice and these
    pleadings to assert both constitutional and fundamental errors.
    Instead we must address whether Petitioner’s filing of these two
    additional writs at this Court was proper.
    The Government’s response to the Ring Writ asks this Court
    to exercise its discretion and dismiss the petition without a
    decision on its merits, because it was not first filed at the
    court below.149    The Government is correct that the decision of
    this Court to entertain these writs is a matter within our
    discretion.    Rules of Practice and Procedure, United States
    Court of Appeals for the Armed Forces (C.A.A.F. R.) 4(b)(1)
    provides:
    The Court may, in its discretion, entertain original
    petitions for extraordinary relief including, but
    not limited to, writs of mandamus, writs of
    prohibition, writs of habeas corpus, and writs of
    error coram nobis. See 
    28 USC § 1651
    (a) and Rules
    18(b), 27(a) and 28. Absent good cause, no such
    petition shall be filed unless relief has first been
    sought in the appropriate Court of Criminal Appeals.
    Original writs are rarely granted.
    minds they are the only additional circumstances over and above the appeal
    that need a remedy.” Uniform Code of Military Justice: Hearings on H.R.
    2498 Before a Subcomm. of the H. Comm. on Armed Forces, 81st Cong. 1211
    (1949), reprinted in Index and Legislative History, Uniform Code of Military
    Justice (1950) (not separately paginated). We do not read this history
    (reflecting the incorporation of a writ of coram nobis into Article 73, to
    address fraud on the court as the basis for a new trial), as excluding the
    writ of coram nobis as a means to raise other issues relating to
    “constitutional and other fundamental errors.”
    149
    Answer to Ring Writ at supra note 26, at 6-7.
    52
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    C.A.A.F. R. 18(b) repeats the first sentence of C.A.A.F. R.
    4(b)(1).      C.A.A.F. R. 33 permits this Court to suspend any of
    the other rules for good cause shown.
    In the present case, we find Petitioner has shown “good
    cause” for filing the two original petitions at this Court.              The
    issues raised by Petitioner go to the lawfulness of this Court’s
    prior judgment, raise important constitutional claims, and
    relate to this Court’s statutory duty to review a death
    sentence.     Also we have considered the futility of any filing at
    the lower court, as it would remain bound by the previous
    decisions of this Court and the Supreme Court.150           Nonetheless we
    also have found that the writ of coram nobis is an inappropriate
    procedural vehicle for petitioner to challenge the legality of
    his death sentence because a writ of habeas corpus is the proper
    pleading.     Because the writ of habeas corpus is available to
    Petitioner to address his challenges to his death sentence, we
    proceed to address the final threshold issue.
    C.    Are the latest petitions an abuse of the writ?
    “The doctrine of abuse of the writ defines the
    circumstances in which federal courts decline to entertain a
    claim presented for the first time in a second or subsequent
    150
    See ABC, Inc. v. Power, 
    47 M.J. 363
    , 364 (C.A.A.F. 1997); Garrett, 39 M.J.
    at 295 (deciding the merits of the petition and granting relief after earlier
    affirming the decision below, without specifically addressing the
    petitioner’s failure to seek relief from the court below). See also Eugene
    R. Fidell, Guide to the Rules of Practice and Procedure for the United States
    Court of Appeals for the Armed Forces, 28-29 (11th ed. 2003)(making several
    references to this Court’s willingness on occasion to consider writs not
    filed in the lower courts).
    53
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    petition for a writ of habeas corpus.”151          At common law,
    successive petitions raising the same issues were permitted.
    Res judicata did not attach to a court’s denial of habeas
    relief.152     By judicial decision153 and statutory enactment,154
    limits on successive petitions have now been imposed.
    This Court is not precluded from considering the present
    petitions under the abuse of the writ doctrine because the
    Government has not carried its burden of pleading abuse of the
    writ.155     In neither of the answers to the two petitions has the
    Government raised this issue.        Therefore, we will not apply it
    in this case.156
    151
    McCleskey v. Zant, 
    499 U.S. 467
    , 470 (1991).
    152
    See 
    id. at 478-89
     (tracing the history of federal habeas corpus law).
    153
    In McCleskey, the Supreme Court adopted a “cause and prejudice analysis.”
    The Court described that analysis as follows:
    When a prisoner files a second or subsequent application, the
    government bears the burden of pleading abuse of the writ. The
    government satisfies this burden if, with clarity and particularity, it
    notes petitioner’s prior writ history, identifies the claims that
    appear for the first time, and alleges that petitioner has abused the
    writ. The burden to disprove abuse then becomes petitioner’s. To
    excuse his failure to raise the claim earlier, he must show cause for
    failing to raise it and prejudice therefrom as those concepts have been
    defined in our procedural default decisions . . . . If petitioner
    cannot show cause, the failure to raise the claim in an earlier
    petition may nonetheless be excused if he or she can show that a
    fundamental miscarriage of justice would result from a failure to
    entertain the claim.
    
    499 U.S. at 494-95
    .
    154
    See 
    id.
     Sections 105 and 106 of the Antiterrorism and Effective Death
    Penalty Act amended 
    28 U.S.C. §§ 2255
     and 2244, respectively, and created a
    default rule requiring courts to dismiss second or successive petitions
    except in certain limited circumstances.
    155
    See McCleskey, 
    499 U.S. at 494-95
    .
    156
    Moreover, we observe that our decision not to apply the abuse of the writ
    doctrine in the present case is supported by two other reasons. First, abuse
    of the writ normally applies to petitions for a writ of habeas corpus. It is
    rooted in concerns for federalism and comity, neither of which are applicable
    to this Court’s review of its own prior decision in the context of a writ of
    54
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    But this conclusion does not terminate our consideration of
    the application of this doctrine.         We also must consider whether
    our present consideration of these petitions may result in a
    later application of the abuse of the writ doctrine by an
    Article III court.
    The Antiterrorism and Effective Death Penalty Act (AEDPA),
    codified at 28 U.S.C. 2244(b) (2000), is a “modified res
    judicata rule, a restraint on what is called in habeas corpus
    practice ‘abuse of the writ.’”157         AEDPA provides that “[a] claim
    in a second or successive habeas corpus application under
    Section 2254 that was presented in a prior application shall be
    dismissed.”158    It also provides that “[a] claim presented in a
    second or successive habeas corpus application under section
    2254 that was not presented in a prior application shall be
    dismissed” except in two circumstances.159         Although 
    28 U.S.C. § 2244
     applies to a “person in custody pursuant to the judgment of
    a State court,” the same general principles apply to applicants
    under 
    28 U.S.C. § 2255
     who are federal prisoners.160
    But it is uncertain whether the same general principles
    relating to abuse of the writ apply to applications under 
    28 U.S.C. § 1651
     to this Article I court.         We note that there is
    coram nobis before a capital case is final under Article 76. Second, the
    exhaustion doctrine that applies to court-martial proceedings as a
    prerequisite to filing a habeas corpus petition invites both of Petitioner’s
    present filings.
    157
    Felker v. Turpin, 
    518 U.S. 651
    , 664 (1996).
    158
    
    28 U.S.C. § 2244
    (b)(1).
    159
    
    28 U.S.C. § 2244
    (b)(2).
    160
    See Sanders v. United States, 
    373 U.S. 1
     (1963).
    55
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    authority that establishes that the “the gatekeeping provisions
    of AEDPA, as set forth in 
    28 U.S.C. § 2244
    , do not apply to all
    habeas petitions, nor are all multiple collateral attacks second
    or successive.”161    The application of these legal principles of
    abuse of the writ to military justice capital jurisprudence is
    an issue of first impression.
    Absent controlling legal authority on this issue, it is not
    clear whether our entertaining a petition for a writ of habeas
    corpus would trigger the AEDPA “second or successive writ”
    language and thereby preclude an Article III court collateral
    review under the doctrine of abuse of the writ.           Petitioner had
    no clear notice by controlling legal authority that the
    principles of abuse of the writ applied to his earlier filing of
    any writ petition at this Court or that his filing a writ
    petition at this Court could be considered the predicate for the
    Government later asserting abuse of the writ if Petitioner
    161
    Barapind v. Reno, 
    225 F.3d 1100
    , 1111 (9th Cir. 2000) (concluding that
    “[b]ecause § 2244(b) makes no reference to habeas petitions filed under §
    2241, but rather, applies only to petitions filed pursuant to 
    28 U.S.C. § 2254
    , the prior-appellate-review provisions of § 2244(b) do not apply to
    habeas petitions filed under § 2241”); see also Felker, 
    518 U.S. at 662
    ;
    Valona v. United States, 
    138 F.3d 693
    , 694 (7th Cir. 1998). By their terms
    neither of these “gatekeeping provisions” applies to petitions filed under §
    2241; In re Hanserd, 
    123 F.3d 922
    , 930 (6th Cir. 1997) (“A § 2241 motion
    would not be barred by the new restrictions on successive motions and
    petitions.”). Because § 2241 potentially allows a petitioner to evade these
    requirements, however, courts have attempted to define circumstances under
    which AEDPA’s new gatekeeping rules will bar a second or successive petition
    filed under § 2241. See, e.g., Charles v. Chandler, 
    180 F.3d 753
    , 757 (6th
    Cir. 1999) (holding that a petitioner will receive “only one bite at the
    post-conviction apple” unless he can show either that he has newly discovered
    evidence or that a new rule of constitutional law, made retroactive to
    cases on collateral review by the Supreme Court, that was previously
    unavailable applies); Barrett, 
    178 F.3d 34
     (allowing a petitioner asserting a
    claim of actual innocence to use § 2241 to circumvent the gatekeeping
    provisions).
    56
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    eventually seeks habeas review in an Article III court.             In
    light of this uncertainty, we are reluctant presently to
    entertain the present petitions.
    V.   Conclusion
    This Court has the option to treat Petitioner’s erroneously
    filed coram nobis petitions simply as petitions for habeas
    corpus.      This would afford us the opportunity to consider the
    essence of his complaints of error without controlling reference
    to the label or title of his pleadings.          But we decline to do
    so.
    First, we find the rationale of the Tenth Circuit
    persuasive because it concluded that it is error to treat an
    erroneously filed coram nobis petition as a petition for habeas
    corpus.162     In Carpenter, the court stated:
    [T]his Court, like many of our sister circuits,
    has held that a district court may only
    recharacterize a prisoner’s non § 2255 motion
    as a § 2255 petition if (1) the prisoner, “with
    knowledge of the potential adverse consequences
    of such recharacterization, agrees to have the
    motion so recharacterized,” or (2) the district
    court, having concluded that [a habeas
    petition] is the appropriate mechanism for
    asserting the claim, gives the prisoner “the
    162
    See United States v. Carpenter, 24 F. App’x 899, 901 (10th Cir.
    2001)(unpublished) (stating that the district court erred in recharacterizing
    a coram nobis petition as a habeas petition). But see Sinclair v. Louisiana,
    
    679 F.2d 513
    , 515 (5th Cir. 1982)(stating that the Court will treat the writ
    of error coram nobis as an application for writ of habeas corpus); Goldstein
    v. United States Parole Comm’n, 
    940 F. Supp. 1505
    , 1509 (D. Cal.
    1996)(acknowledging that because “federal courts have a responsibility to
    construe liberally pro se prisoners’ pleadings as habeas corpus petitions
    where the interests of justice demand[,] . . . this Court will treat
    petitioner’s motion for writ of error coram nobis as a petition for writ of
    habeas corpus.”)
    57
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    opportunity to withdraw the motion rather than
    have it so recharacterized.”163
    In the capital case presently before our Court, we will
    follow the prudent approach presented in Carpenter.             Presently
    there is no evidence in the record indicating that Petitioner
    was informed of the potential adverse consequences associated
    with recharacterizing his coram nobis petitions as habeas
    petitions nor has this Court previously offered Petitioner an
    opportunity to withdraw his petitions and present them as
    petitions for a writ of habeas corpus.          Our present decision and
    opinion serves both these purposes by simply following the
    guidance presented in Carpenter of denying the petition and
    advising Petitioner that he may file a habeas petition.164
    Second, our reluctance to recharacterize Petitioner’s
    pleadings acknowledges and respects Petitioner’s right to
    address with his counsel the option to file a habeas corpus
    petition at this Court and its potential consequences.              In this
    regard we consider this wise and prudent advice relevant to that
    discussion:    “The careful and effective litigator, on either
    side of postconviction litigation, measures the success of any
    maneuver at least in part by it tendency to hold open, rather
    163
    Carpenter, 24 F. App’x at 904 (citing United States v. Kelly, 
    235 F.3d 1238
    , 1242 (10th Cir. 2000)(citation and quotation marks omitted); United
    States v. Lowe, 6 F. App’x 832, 836 (10th Cir. 2001).
    164
    Carpenter, 24 F. App’x at 904; see, e.g., Birkett v. United States, No. 99
    CV 1729(RR), 
    1999 U.S. Dist. LEXIS 14660
    , at *7-*8, 
    1999 WL 754151
    , at *3
    (E.D.N.Y. Aug. 19, 1999).
    58
    Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
    than to close, the door to further arguments at later stages of
    the proceedings.”165
    We are mindful that a habeas petition filed before this
    Court could affect Petitioner’s right and strategy to raise both
    the issues currently presented and later identified issues that
    either were not or could not have been included in an earlier
    application.166       Our declining to recharacterize Petitioner’s
    coram nobis petitions as a habeas petition thereby avoids any of
    these problematic concerns that could have an effect upon a
    habeas petition if eventually filed in an Article III court.
    Decision
    Accordingly, this Court dismisses both petitions for a writ
    coram nobis without prejudice for Petitioner to refile a writ of
    habeas corpus with this Court.
    165
    Larry W. Yackle, Postconviction Remedies 528 (1981).
    166
    
    Id.
    59
    United States v. Loving, No. 03-8007/AR and 04-8013/AR
    CRAWFORD, Judge (concurring in the result):
    I agree that the writ of coram nobis should be dismissed.
    

Document Info

Docket Number: 03-8007-AR & 04-8013-AR

Citation Numbers: 62 M.J. 235, 2005 CAAF LEXIS 1464

Judges: Gierke

Filed Date: 12/20/2005

Precedential Status: Precedential

Modified Date: 11/9/2024

Authorities (53)

United States v. Brown , 117 F.3d 471 ( 1997 )

Loving v. United States , 116 S. Ct. 1737 ( 1996 )

Mitchell v. Maurer , 55 S. Ct. 162 ( 1934 )

Griffith v. Kentucky , 107 S. Ct. 708 ( 1987 )

McCleskey v. Zant , 111 S. Ct. 1454 ( 1991 )

Lamie v. United States Trustee , 124 S. Ct. 1023 ( 2004 )

Gilmore v. Taylor , 113 S. Ct. 2112 ( 1993 )

Solomon Monk, Also Known as David L. Martin v. Colonel ... , 901 F.2d 885 ( 1990 )

Alejandro Matus-Leva v. United States , 287 F.3d 758 ( 2002 )

Noyd v. Bond , 89 S. Ct. 1876 ( 1969 )

Kyles v. Whitley , 115 S. Ct. 1555 ( 1995 )

Carlisle v. United States , 116 S. Ct. 1460 ( 1996 )

Wiggins v. Smith, Warden , 123 S. Ct. 2527 ( 2003 )

California v. Ramos , 103 S. Ct. 3446 ( 1983 )

No. 96-2355 , 178 F.3d 34 ( 1999 )

Dennis Obado v. State of New Jersey Attorney General of the ... , 328 F.3d 716 ( 2003 )

United States v. Morgan , 74 S. Ct. 247 ( 1954 )

Harris v. Nelson , 89 S. Ct. 1082 ( 1969 )

Pennsylvania Bureau of Correction v. United States Marshals ... , 106 S. Ct. 355 ( 1985 )

Apprendi v. New Jersey , 120 S. Ct. 2348 ( 2000 )

View All Authorities »