Richards IV v. Wilson, el al.

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
James W. RICHARDS, IV ) Misc. Dkt. No. 2018–07
Lieutenant Colonel (O-5) )
U.S. Air Force )
Petitioner )
)
v. ) ORDER
)
Heather WILSON )
Secretary of the Air Force )
)
Brian S. GREENROAD )
Colonel (O-6) )
Commander )
Air Force Security Forces Center )
)
D. L. HILTON )
Colonel (O-6) )
Commandant )
United States Disciplinary )
Barracks )
Respondents ) Special Panel 2
Petitioner’s court-martial has had a lengthy appellate history, and it is un-
necessary to recount the details here. The following summary is sufficient for
present purposes. On 21 February 2013, a general court-martial sentenced Pe-
titioner to a dismissal, confinement for 17 years, and forfeiture of all pay and
allowances. This court affirmed the findings and sentence of Petitioner’s court-
martial on 2 May 2016; the United States Court of Appeals for the Armed
Forces (CAAF) affirmed our decision on 13 July 2017; and the United States
Supreme Court denied Petitioner’s petition for a writ of certiorari on 28 June
2018. United States v. Richards, No. ACM 38346, 2016 CCA LEXIS 285 (A.F.
Ct. Crim. App. 2 May 2016) (unpub. op.), aff’d, 76 M.J. 365 (C.A.A.F. 2017),
cert. denied, ___U.S.___, 138 S. Ct. 2707 (2018). On 4 June 2018, while Peti-
tioner’s certiorari petition was pending, Petitioner docketed a Petition for Ex-
traordinary Relief in the Nature of a Writ of Mandamus (Mandamus Petition)
with this court. On 27 August 2018, after certiorari was denied but while the
Mandamus Petition was pending, the Secretary of the Air Force ordered Peti-
tioner’s dismissal executed.
Richards v. Wilson, et al., Misc. Dkt. No. 2018–07
Petitioner filed the instant Petition for Extraordinary Relief: Writ of Ha-
beas Corpus (Habeas Petition) and several related motions pro se on 13 Sep-
tember 2018. On 17 September 2018, the Government moved to dismiss the
Habeas Petition for lack of jurisdiction, and to dismiss Petitioner’s associated
motions as moot. After receiving an extension of time, Petitioner—now repre-
sented by counsel—responded to the motion to dismiss on 14 October 2018.
On 19 October 2018, this court denied the Mandamus Petition. Richards v.
James, et al., Misc. Dkt. 2017–04, ____ CCA LEXIS ___ (A.F. Ct. Crim. App. 19
Oct. 2018) (unpub. op.).
In the instant Habeas Petition, Petitioner relies on United States v. Boyce,
76 M.J. 242 (C.A.A.F. 2017), to contend that his court-martial and subsequent
review by the convening authority were contaminated by unlawful command
influence, and requests that we order his release from confinement. We agree
with the Government that we lack jurisdiction.
In United States v. Chapman, 75 M.J. 598, 600 (A.F. Ct. Crim. App. 2016),
we held that this court does not have jurisdiction over habeas petitions where
direct appellate review is complete under Article 71, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 871, and the case is final under Article 76, UCMJ,
10 U.S.C. § 876. Direct appellate review of Petitioner’s court-martial was com-
plete when the Supreme Court denied certiorari on 28 June 2018. See 10 U.S.C.
§ 871(c)(1)(C)(ii). Petitioner’s court-martial result became final on 27 August
2018 when the Secretary of the Air Force ordered the dismissal executed. See
10 U.S.C. § 876. Accordingly, under Chapman, we lack jurisdiction over the
Habeas Petition. See also Sutton v. United States, 78 M.J. 537, 541 (A.F. Ct.
Crim. App. 2018) (relying on Chapman to hold this court also lacks jurisdiction
over writs of prohibition or mandamus where a case is final under Article 76,
UCMJ).
Petitioner virtually ignores the controlling decision in Chapman and in-
stead relies on United States v. Denedo, 556 U.S. 904 (2009), for the proposition
that finality under Article 76, UCMJ, does not terminate the authority of a
court of criminal appeals to issue extraordinary writs. However, Petitioner
fails to recognize the fundamental distinction between the petition for a writ
of coram nobis at issue in Denedo and the petition for a writ of habeas corpus
that he now seeks. Unlike a habeas petition, a petition for writ of coram nobis
is “a belated extension of the original proceeding during which the error alleg-
edly transpired,” and therefore our review of such a petition is a continuation
of our original review on direct appeal under Article 66, UCMJ. Id. at 913–14;
see also Chapman, 75 M.J. at 600–01 (distinguishing Denedo); but cf. United
States v. Gray, 77 M.J. 5, 6 (C.A.A.F. 2017), cert. denied, ___U.S.___, 138 S. Ct.
2709 (2018) (holding the CAAF lacks jurisdiction over a petition for coram
nobis where the case is final under Article 76, UCMJ). Unlike coram nobis, “a
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Richards v. Wilson, et al., Misc. Dkt. No. 2018–07
habeas corpus petition is not an extension of the direct appeal, and the ra-
tionale in Denedo does not apply to extend jurisdiction beyond the finality of
Article 76, UCMJ.” Chapman, 75 M.J. at 601.
Petitioner further argues other circumstances in his case provide us with
jurisdiction. He contends his direct review is in fact not final because his Man-
damus Petition was still pending with this court when his dismissal was or-
dered executed, and therefore the execution order was unlawful. Relatedly, he
contends that even if the execution order were otherwise lawful, the pending
Mandamus Petition itself continues our jurisdiction over his case. We disagree.
Under Article 71, UCMJ, a judgment as to the legality of the proceedings is
final when “review is completed by a Court of Criminal Appeals” * and, inter
alia, the CAAF has completed its review and the Supreme Court has denied
certiorari. These criteria have been met with respect to Petitioner’s case, as
summarized above. Accordingly, the judgment on the legality of the proceed-
ings was final as of 28 June 2018 and Petitioner’s sentence to dismissal was
ripe to be “carried into execution” when the Secretary ordered it executed on
27 August 2018. See 10 U.S.C. § 876. We are not persuaded that a petitioner
may indefinitely forestall finality of a judgment by continuing to submit peti-
tions for extraordinary writs to a court of criminal appeals.
Finally, we note Petitioner contends that, due to circumstances beyond his
control, he erroneously believed the instant Habeas Petition had been filed
with this court on his behalf before 27 August 2018. However, Petitioner’s ex-
planations for why the petition was not filed sooner cannot create jurisdiction
where it does not exist.
Accordingly, it is by the court on this 22nd day of October, 2018,
ORDERED:
Respondents’ Motion to Dismiss dated 17 September 2018 is GRANTED.
Petitioner’s pending Motion for Leave to File, Motion to Compel Discovery, and
Motion to Stay, all dated 13 September 2018, are DENIED AS MOOT.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
*We find this language in Article 71, UCMJ, specifically refers to review under Article
66, UCMJ, 10 U.S.C. § 866, Review by Court of Criminal Appeals.
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