Actual v. Supervisory Jurisdiction; the All Writs Act and Goldsmith
Real Costs of a COURT MARTIAL Conviction and Discharge
Background: Pre-Goldsmith Case Law
- ABC Inc. v. Powell, 47 M.J. 363 (1997). Absent “good cause,” petitions for extraordinary relief should be submitted initially to the Court of Criminal Appeals. The CAAF exercised supervisory jurisdiction under the All Writs Act to grant relief during an Article 32(b) Investigation.
- Loving v. Hart, 47 M.J. 438 (1998). The CAAF has jurisdiction to issue a writ under the All Writs Act even after
the case has been affirmed by the Supreme Court of the United States Supreme Court. The accused sought extraordinary relief because his death sentence was based in part on a conviction of felony murder that was unsupported by a unanimous finding of intent to kill or reckless indifference to human life. This was an issue raised by Justice Scalia during oral argument before the Supreme Court. The CAAF heard the petition but denied relief.
- United States v. Dowty, 48 M.J. 102 (1998). The CAAF has authority under the All Writs Act to exercise jurisdiction over issues arising from proceedings where the Court would not have had direct review.
- Dew v. United States, 48 M.J. 639 (A. Ct. Crim. App. 1998). Under the All Writs Act, the Army Court has supervisory jurisdiction to consider, on the merits, a writ challenging the action taken by The Judge Advocate General pursuant to Article 69(a), UCMJ. The accused was convicted of making and uttering worthless checks by dishonorably failing to maintain funds. The Office of the
- Morgan v. Mahoney, 50 M.J. 633 (A.F. Ct. Crim. App. 1999). The government involuntarily recalled the accused (a member of the retired reserves) to active duty to face a court-martial. At trial, the accused challenged the jurisdiction of the court-martial. The military judge denied the accused’s motion, and the accused petitioned the Air Force Court seeking an extraordinary writ ordering the military judge to dismiss all charges and specifications. The service court held that it had jurisdiction under the All Writs Act to hear the issue and denied the accused’s relief. In denying the writ, the court found that the accused was a member of retired reserves, which made him part of the reserve component and subject to lawful orders to return to active duty. Since the accused was in an active duty status at the time of trial, the court- martial did not lack
in personam jurisdiction.
Clinton v.Goldsmith, 119 S.Ct. 1538 (1999)
The CAAF exercised supervisory jurisdiction under the All Writs Act to stop the government from dropping the accused from the rolls of the Air Force. The Supreme Court held that the CAAF lacked jurisdiction, under the All Writs Act, to issue the injunction in question because, (1) the injunction was notin aid ofthe CAAF’s strictly circumscribed jurisdiction to review court-martial findings and sentences; and (2) even if the CAAF might have had some arguable basis for jurisdiction, the injunction was neithernecessarynorappropriate,in light of the alternative federal administrative and judicial remedies available, under other federal statutes, to a service member demanding to be kept on the rolls. In a unanimous decision, the Supreme Court held that CAAF exceeded its supervisory jurisdiction under the All Writs Act.
Case Law (Post-Goldsmith)
- United States v. Byrd, 53 M.J. 35 (2000). In October 1996, the Navy Marine Corps Court affirmed the accused’s conviction and sentence, which included a punitive discharge. The accused did not petition CAAF for review until 22 January 1997. On 2 January 1997 the convening authority executed his sentence under Article 71. The service court held that since the accused did not petition CAAF for review within 60 days, the intervening discharge terminated jurisdiction. CAAF vacated the lower court’s decision on the grounds that the Govt. failed to establish the petition for review as being untimely and, therefore, the sentence had been improperly executed. CAAF also stated it has jurisdiction to review such a case under the All Writs Act, notwithstanding execution of the punitive discharge, but declined to decide which standard of review was more appropriate, direct or collateral.
- United States v. King, No. 00-8007/NA, 2000 CAAF LEXIS 321 (Mar. 16, 2000). Accused filed a motion to stay Article 32 proceedings but was denied relief by the NMCCA under Clinton v. Goldsmith. CAAF disagreed and granted the motion to stay under the All Writs Act. In a concurring opinion, Judge Sullivan stated,this Court clearly has the power to supervise criminal proceedings under Article 32, UCMJ.
See also King v. Ramos, No. NMCM 200001991 (Jan. 26, 2001).
- Ponder v. Stone, 54 M.J. 613 (N-M. Ct. Crim. App. 2000). Accused refused order to receive anthrax vaccination and submitted a request for a stay of proceedings by way of a writ of mandamus. Government argued that the Navy court lacked jurisdiction to entertain the petition under Goldsmith, because the court could only grant extraordinary relief on matters affecting the findings and sentence of a court-martial. NMCCA disagreed, stating that review of the petition under the All Writs Act was properly a matter in aid of its jurisdiction.
- Fisher v. United States,56 M.J. 691 (N-M. Ct. Crim. App. 2001). Accused filed petition for extraordinary relief. The government argued that the appellate court had no jurisdiction to consider the petition because the accused’s court-martial was final under Article 76. The NMCCA disagreed and considered the petition but denied it.
- United States v. Denedo,129 S. Ct. 2213 (2009). The accused filed an extraordinary writ in the Navy-Marine Court, alleging ineffective assistance of counsel almost ten years after his case had become final under Article 71. The Navy-Marine Court denied relief. The CAAF granted review of the accused’s extraordinary writ. The government appealed the CAAF’s decision to the Supreme Court, asserting that neither the Navy-Marine Court nor the CAAF had jurisdiction in this case. Without overturning Goldsmith, the Supreme Court ruled that the CAAF and the Navy-Marine Court did, in fact, have jurisdiction. The Supreme Court reasoned that jurisdiction was proper since the accused’s petition directly challenged the validity of his conviction.