UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before the Court Sitting En Banc1

Private RONALD GRAY, 

United States Army, Petitioner 

v. 

UNITED STATES, Respondent2

ARMY MISC 20160775 

For Petitioner: Mr. Shawn Nolan, Esquire; Mr. Timothy Kane, Esquire; Mr. 

Jonathan Jeffress, Esquire (on brief and reply brief). 

For Respondent: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie 

III, JA; Lieutenant Colonel Karen J. Borgerding, JA; Major Michael E. Korte, JA; 

Captain Samuel E. Landes (on brief). 

9 May 2017 

--------------------------------------------------------------------------------- OPINION OF THE COURT AND ACTION ON PETITION FOR 

EXTRAORDINARY RELIEF IN THE NATURE OF A WRIT OF CORAM NOBIS

--------------------------------------------------------------------------------- 

PENLAND, Judge: 

Ronald Gray (Petitioner) is confined and awaiting imposition of a death 

sentence adjudged by a general court-martial on 12 April 1988, approved by the 

convening authority on 29 July 1988, affirmed by this court and our superior 

 

1

 Senior Judge MULLIGAN is taking no part in this case as a result of his 

disqualification. 

2

 Petitioner named the Commandant of Fort Leavenworth’s Disciplinary Barracks as 

respondent, but the parties to this case are the United States and Ronald Gray. His 

petition for coram nobis relief is “a step in the criminal case and not, like habeas 

corpus where relief is sought in a separate case and record, the beginning of a 

separate [] proceeding.” United States v. Denedo, 556 U.S. 904, 912 (2009) (Denedo 

II) (quoting United States v. Morgan, 346 U.S. 502, 505, n.4 (1954)). 
GRAY—ARMY MISC 20160775 

2

appellate court on 15 December 1992,3 9 June 1993,4 and 28 May 1999,5

respectively, and approved by the President on 28 July 2008. In Gray v. Belcher, 70 

M.J. 646 (Army Ct. Crim. App. 2012), we denied coram nobis relief, in light of 

petitioner’s concurrent pursuit of habeas relief in an Article III court. However, that 

Article III court ultimately dismissed the habeas petition, reasoning petitioner had 

not exhausted his military-specific claims within the military justice system. Gray 

v. Belcher, No. 5:08-cv-03289-JTM (D. Kan. 26 Oct. 2016) (memorandum and order 

dismissing without prejudice). Petitioner returns to us again,6 enumerating seven 

claims that, in his view, justify coram nobis relief in the form of vacating the 

findings and sentence.7

Petitioner alternatively seeks a writ of habeas corpus. We will not evaluate 

the petition in this alternative manner. In United States v. Loving, 68 M.J. 1, 4 

(C.A.A.F. 2009) (Loving III), our superior court considered a petition for such a 

writ, noting: 

While the case remained pending within the military 

justice system, [petitioner] had a number of options, 

including filing a habeas petition in our court or awaiting 

action by the president before seeking judicial review. He 

elected to file a petition for writ of habeas corpus in our 

court. 

(citing Loving v. United States, 64 M.J. 132, 134 (C.A.A.F. 2006) (Loving II) 

(emphasis added). 

 For the reasons below, we consider the instant petition as one seeking coram 

nobis relief. However, this case has departed the military justice system as 

 

3 United States v. Gray, 37 M.J. 730 (A.C.M.R. 1992) (Gray ACCA I). 

4 United States v. Gray, 37 M.J. 751, 761 (Army Ct. Crim. App. 1993), (Gray ACCA II) 

5 United States v. Gray, 51 M.J. 1 (C.A.A.F. 1999) (Gray CAAF) (cert. denied). 

6

 In 2016, petitioner sought coram nobis relief from us for the second time, but we 

dismissed his petition without prejudice, pending federal district court action on his 

habeas petition. United States v. Gray, ARMY MISC 20160086 (Army Ct. Crim. 

App. 10 May 2016)(order). 

7

 Petitioner also requests “appropriate discovery and [] a Dubay hearing at which 

proof may be offered concerning the allegations contained in [his] Petition.” (Pet’r 

Br. 120). 
GRAY—ARMY MISC 20160775 

3

described in Loving v United States, 62 M.J. 235, 240 (C.A.A.F. 2005) (Loving I) 

and Loving II. Therefore, following the majority’s logic8

 in those cases, we lack 

jurisdiction to grant a writ of habeas corpus. 

BACKGROUND 

 Previous opinions of this court and our superior court have ably summarized 

the facts that led to petitioner’s general court-martial; we need not restate them. 

However, given the issues raised in this petition, it is appropriate to summarize 

certain events from the case’s pretrial, trial, and direct appellate history. 

A large part of this petition involves petitioner’s competency during trial and 

during direct appellate review. Based on their interactions with petitioner, trial 

defense counsel sought a professional assessment of his capacity to stand trial. See

Rule for Courts-Martial [hereinafter R.C.M.] 909.9

 Dr. Selwyn Rose addressed the 

 

8

 Judge Ryan’s dissent in Loving II is also informative, for it addresses the different 

jurisdictional considerations regarding coram nobis and habeas corpus relief. 

Loving II, 68 M.J. at 25 (“unlike a writ of coram nobis, habeas corpus is not a 

‘belated extension’ of the original court-martial proceeding.”) (quoting Denedo II, 

556 U.S. at 912-13). 

9

 In the Manual for Courts-Martial, United States (1984 ed.) [hereinafter MCM, 

1984], R.C.M. 909 was shorter than the current version; it stated: 

(a) In general. No person may be brought to trial by 

court-martial unless that person possesses sufficient 

mental capacity to understand the nature of the 

proceedings against that person and to conduct or 

cooperate intelligently in the defense of the case. 

(b) Presumption of capacity. A person is presumed to 

have the capacity to stand trial unless the contrary 

appears. 

(c) Determination at trial. 

(1) Nature of the issue. The mental capacity of the 

accused is an interlocutory question of fact. 

(2) Standard. When the issue of the accused’s 

capacity to stand trial is raised, trial may not 

(continued . . .) 
GRAY—ARMY MISC 20160775 

4

matter of “competence” in a 4 November 1987 letter to Captain (CPT) MPB, trial 

defense counsel, reporting his assessment after examining petitioner three days 

earlier: 

Throughout the interview, [petitioner] was posturing, 

staring, darting his eyes from place to place, and he 

maintained a suspicious, paranoid look. He responded 

slowly, often repeating questions and seemed to be lost in 

his own thoughts which were not in contact with what was 

being discussed. 

Religious ideation pervaded all of his comments. He 

announced that he could walk out of the jail if God wanted 

him to. He refused to discuss the criminal charges with 

me. He talked about his “visions” as a child and recent 

ones, which were religious in nature and dealt with 

powerful lights and movement through space. He 

interpreted these visions to mean that “the Lord is 

coming.” 

He referred to the night he came here (to jail) and was 

“hearing” things, “like a hand touching and going through 

my skin.” He believes that God pulled his soul out. He 

claims to have made a joke that the space shuttle would 

blow up either saw himself as prescient or believed that 

his statement had caused the disaster. He talked a great 

deal about the meaning of the number seven since there 

were seven people in the space shuttle. 

When I led the discussion back to the killings with which 

he is charged, he talked about a “gathering” and not a 

 

(. . . continued) 

proceed unless it is established by a preponderance 

of the evidence that the accused possesses sufficient 

mental capacity to understand the nature of the 

proceedings against the accused and to conduct or 

cooperate intelligently in the defense of the case. 

R.C.M. 909, MCM, 1984. The current rule is worded slightly differently and also 

addresses determinations of mental competence before and after referral, 

incompetence determination hearings in more depth, and hospitalization of the 

accused. R.C.M. 909, MCM, 2016. 
GRAY—ARMY MISC 20160775 

5

“hating.” His comments had autistic meanings that were 

unclear to me. 

It is my opinion that Mr. Gray is not presently mentally 

competent to stand trial. I can’t determine whether he 

knows the nature of the charges against him, but I am 

convinced he is unable to cooperate with counsel in a 

rational manner. My present diagnosis is Schizophrenia, 

Paranoid type. I think it would be important that the 

[petitioner] be treated with major tranquilizers, but he will 

not cooperate in the jail and take the medication. 

I am unable to proceed with my evaluation because of the 

severity of his present mental illness and my inability to 

force treatment. Mr. Gray needs to be in a psychiatric 

setting where he can be observed over a period of time and 

given appropriate chemotherapy to see if his competence 

can be restored. 

 On 10 November 1987, CPT MPB requested the convening authority direct a 

sanity board under R.C.M. 706. Petitioner’s mental capacity was one of the 

numerous matters trial defense counsel requested the board evaluate: “Does SP4 

Gray have sufficient mental capacity to understand the nature of the proceedings and 

to conduct and/or cooperate intelligently in his defense?” 

 On 23 November 1987, the convening authority granted the defense request 

and according to the trial defense team during a 21 December 1987 Article 39a, 

Uniform Code of Military Justice, 10 U.S.C. § 839a [hereinafter UCMJ], session, 

“appointed a board with Colonel Armitage, who is a forensic psychiatrist, as head of 

that board.” At a later pretrial session on 8 February 1988, government counsel 

informed the military judge that the board had found petitioner “competent to stand 

trial,” and trial defense counsel acknowledged “that’s the preliminary indication that 

we got.” The military judge then addressed a defense motion to employ Dr. Rose as 

a forensic psychiatrist. The motion averred, inter alia: 

As set forth in the defense motion for an inquiry10 into the 

mental capacity and mental responsibility of the accused 

under the provisions of R.C.M. 706, there is substantial 

reason to believe that the accused lacked mental 

responsibility at the time of the alleged offenses (R.C.M. 

 

10 There is no separate “motion” in the record of trial; defense counsel may have 

been referring to their 10 November 1987 request to the convening authority. 
GRAY—ARMY MISC 20160775 

6

916(k)) and lacks capacity to stand trial at this time 

(R.C.M. 909). 

(App. Ex. XXI at 1) (emphasis added). 

 Defense counsel told the military judge “Dr. Rose would certainly come in 

and testify that [] in his opinion, this accused is not capable of standing trial . . . . 

But our problem is we have no money to get him into this courtroom since we have 

an indigent accused.” Defense counsel continued, “[O]ur preparation is really 

stymied with respect to mental responsibility, capacity, and partial mental 

responsibility until we can get a psychiatrist to help us prepare that defense.” 

Defense counsel also provided the military judge with Dr. Rose’s 4 November 1987 

assessment, which opined petitioner was not “presently competent to stand trial.” 

(App. Ex. XXIII at 1). 

On 14 March 1988, after the panel had been sworn, the military judge sought 

to resolve any outstanding preliminary matters in an Article 39a session. Counsel 

for both sides confirmed “the defense request for a forensic psychiatrist has been 

granted.” The military judge also reviewed the results of petitioner’s sanity board, 

which stated the following: 

SP4 Gray presently suffers from a mental disease or defict 

[sic] but it does not render him mentally incompetent to 

the extent that he is unable to understand the nature of the 

proceedings or to conduct or cooperate intelligently in his 

defense. 

(App. Ex. XXXIII at 2). 

 On 6 April 1988, the military judge advised petitioner of his rights to submit 

matters if the trial moved to a sentencing phase, including his rights to offer 

evidence in extenuation and mitigation, and to testify or make an unsworn statement. 

Petitioner responded, “I understand.” The panel announced findings on 7 April 

1988. 

 Trial defense counsel called numerous sentencing witnesses, including DF, 

the chief jailor for Cumberland County Jail, where petitioner was confined before 

his court-martial. DF described petitioner as “very hostile” and “very distant” when 

he initially arrived on 7 January 1987. After a three-month stay in isolated 

confinement, imposed as a result of his near-rage, petitioner was housed with others 

charged with first-degree murder. DF testified about petitioner’s behavior for the 

“nine to ten months” thereafter: 
GRAY—ARMY MISC 20160775 

7

DC: During that time did you have conversations with 

him also? 

A. Several times. 

DC: Any recurrence of rage? Any attitude problems or 

anything? 

A: No. Like I said, after -- after the initial episode and 

his stay in isolation, it seemed like he just resolved 

himself to where he was at and was going to go along with 

the program, not fight the problem. 

[. . .] 

DC: What’s Ronald’s reputation been among the other 

jailors, the other inmates, as far as being cooperative, 

being pleasant, things like that? 

A: Now, that -- that I can’t address. I didn’t ask 

anybody’s opinion. 

DC: Okay. You receive incident reports if anything 

negative happens, is that correct? 

A: Correct. 

DC: All right. Had you received ---- 

A: Anything out of the ordinary would require an incident 

report. 

DC: What kind of incident reports did you receive on 

Specialist Gray then? 

A: There haven’t been any incident reports on him. 

DC: Has Specialist Gray been cooperative since he’s been 

in E-block? 

A: Yes. 

DC: Been able to talk to him? Any problem? 

A: I’ve been able to communicate fine with him. 
GRAY—ARMY MISC 20160775 

8

 Trial defense counsel also called Dr. Rose as a sentencing witness, and he 

described his evaluation of petitioner: 

His thinking is very strange at times, it seems -- psychotic, 

to be delusional, caught up in these false beliefs that have 

no basis in fact. At other times it seems quite realistic and 

he switches back and forth, and I can’t predict when he’s 

going to switch. I think it’s important that, as Doctor 

Armitage says, when he told him, “I want to talk about a 

certain thing,” and he nailed him down -- that Ron can do 

that. That is under a given set of restrictions. He can 

hold his thinking together. But when you let him go on 

his own, he tends to drift in a lot of -- a lot of different 

unique directions, separate directions. 

DC: What’s your opinion of Specialist Gray’s ability to 

follow directions, to respect authority, things like that? 

A: Generally, quite good. Certainly, in his service career, 

[] during his childhood [he] followed directions, did what 

was expected of him. So generally, it’s quite good. And 

even when Colonel Armitage meets with him and says, 

“This is what I’d like to talk about,” he focuses real well. 

So he’s capable of following commands. 

 Later, the military judge specifically asked Dr. Rose about petitioner’s 

competence: 

MJ: [A]s [petitioner] sits before you today, by the 

defense, sitting by the defense counsels, in your 

considered opinion, does he have the mental capacity to 

understand the nature of these proceedings and conduct or 

cooperate intelligently in that defense? 

A: Yes, he does. 

 After the panel announced its sentence, the military judge advised petitioner 

of his post-trial and appellate rights. Asked if he had any questions regarding them, 

petitioner said, “No, sir.” 

 On 22 December 1989, with his case on direct appeal, petitioner’s three 

appellate defense counsel, CPT MJB, CPT CGW, and CPT JJF, moved this court to: 
GRAY—ARMY MISC 20160775 

9

direct the convening of a sanity board to inquire into 

appellant’s mental responsibility at the time of his 

offenses and his mental capacity to assist in his defense at 

his court-martial; further to inquire into the present 

capacity of appellant to understand the nature of or to 

cooperate intelligently in these proceedings. 

 Appellate defense counsel criticized Dr. Armitage’s and Dr. Rose’s previous 

evaluations, describing them as “cursory,” “inaccura[te] and inadequa[te].” 

Included with the motion was a psychological evaluation prepared by CPT William 

Kea, Ph.D., a clinical psychologist (Dr. Kea). Dr. Kea wrote that petitioner “was 

referred for a psychological evaluation at the request of Mr. [JL], and inmate’s 

Appellate Defense Attorney, CPT [JS].”11 After “a clinical interview conducted over 

a period of five days,”12 Dr. Kea issued a fourteen-page report, which concluded: 

[. . . A]t the time of the alleged criminal conduct, the 

accused did have a severe mental disease or defect. 

[. . .] 

[. . . T]he accused, at the time of the alleged criminal 

conduct and as a result of such severe mental disease or 

defect, was unable to appreciate the nature and quality or 

wrongfulness of his conduct. 

[. . . T]he accused, at the time of trial in 1988, did not 

have sufficient mental capacity . . . to cooperate 

intelligently in the defense. 

[. . . T]he accused does not now have sufficient mental 

capacity . . . to cooperate intelligently in the defense. 

(Internal line markings omitted; ellipses in original). 

 Presented with this development, on 13 February 1990, this court directed a 

sanity board to inquire “into the appellant’s mental responsibility at the time of the 

offenses, [his] mental capacity at the time of his court-martial, and [his] present 

 

11 Captain JS was petitioner’s initial appellate defense counsel. The evaluation 

refers to CPT JS’s 8 August 1989 written request. 

12 23, 25, 28 and 29 August 1989, and 1 September 1989. 
GRAY—ARMY MISC 20160775 

10

mental capacity. . . .” United States v. Gray, ARMY 8800807 (A.C.M.R. 13 Feb. 

1990) (order). We specifically directed findings regarding: 

whether [petitioner] had sufficient mental capacity to 

understand the nature of the court-martial proceedings and 

to conduct or cooperate intelligently in his defense at the 

time of trial; 

[petitioner’s] present clinical diagnosis; and, 

whether [petitioner] presently possesses sufficient mental 

capacity to understand the nature of the pending appellate 

proceedings and to conduct or cooperate intelligently in 

his appeal. 

Id. (internal line markings omitted). 

 On 3 August 1990, this court received the results of this evaluation, which 

was conducted “between 03 April and 29 June 1990.” The board consisted of Dr. 

Kea, CPT Sandra Edwards, M.D. (Dr. Edwards), and CPT Michael Marceau, M.D. 

(Dr. Marceau). The board included, inter alia, “a review of available psychological 

reports.” 

The board found: 

[. . . T]he appellant has sufficient mental capacity to 

understand the nature of the court-martial proceedings and 

to conduct or cooperate intelligently in his defense at the 

time of trial. 

For appellant’s present clinical psychiatric diagnosis refer 

to Section 11-3. 

[. . .T]he appellant presently possesses sufficient mental 

capacity to understand the nature of the pending appellate 

proceedings and to conduct or cooperate intelligently in 

his appeal. 

Memorandum, Subject: Findings of a psychiatric evaluation of Ronald A. Gray, 

SSN [] Reg. #73786; ACMR 8800807 (30 Jun. 1990) (internal line markings 

omitted). 

 The “available psychological reports,” to which the board referred and 

appended to its report, consisted of two evaluations. The first, bearing the signature 
GRAY—ARMY MISC 20160775 

11

blocks of Dr. Kea and Dr. Marceau but only Dr. Kea’s signature, was virtually 

identical to the one previously requested by CPT JS, but unlike the report that 

appellate defense counsel submitted with their motion, it did not include findings 

regarding petitioner’s mental responsibility or competence.13 The second report, 

again prepared by Dr. Kea who described it as a supplemental report based on 

“comprehensive neuropsychological testing conducted between 19 and 22 June 

1990,” concluded: 

The results of the examination suggest that the patient 

suffers from some diffuse and undifferentiated brain 

damage that could possibly be of a long standing nature. 

Although the find[ing]s are positive, they do not appear to 

account for the magnitude that would compromise any 

legal/criminal responsibility. 

Memorandum, Subject: Medical Consultation Report Neuropsychological 

Evaluation (undated). 

 Despite this result, petitioner’s appellate defense counsel continued to press 

for resources in order to evaluate his mental condition.14 On 31 December 1991, 

appellate defense counsel filed with this court a motion to compel additional medical 

and neurological testing of petitioner. Appellate defense counsel wrote, “the mental 

evaluations that have been performed on appellant to date have been fundamentally 

defective in several ways.” 

 This court granted the motion and directed four additional tests: 1) a 

Magnetic Resonance Imaging (MRI) scan of petitioner’s brain; 2) a twenty-channel, 

scalp electrode, sleep-deprived electroencephalogram (EEG); 3) a positron emission 

tomography (PET) scan, or if impossible to perform, a single-photon emission 

computed tomography (SPECT) scan of petitioner’s brain; and, 4) a complete battery 

 

13 The appellate record before this court also contains yet another version of the 

report requested by CPT JS, this time signed by both Dr. Kea and Dr. Marceau. This 

version stated “further evaluation is necessary” to determine whether petitioner 

lacked mental responsibility for his crimes and continued, “[i]t is unclear whether 

the accused, at the time of trial in 1988, did not have sufficient mental capacity . . . 

to cooperate intelligently in the defense.” (Ellipses in original). This version of the 

report concluded, “[t]he results of the neurological examination will be useful to 

determine whether the accused now has sufficient mental capacity . . . to cooperate 

intelligently in the defense.” (Ellipses in original). 

14 For an able summary of some of appellate defense counsel’s efforts, see United 

States v. Gray, ARMY 8800807 (A.C.M.R. 12 Nov. 1991) (order). 
GRAY—ARMY MISC 20160775 

12

of intellectual, neuropsychological, academic, psychological, and personality tests 

performed by a fully qualified and credentialed neuropsychologist to determine the 

presence and/or extent of intellectual or neuropsychological deficits and any 

psychological or personality disorder.15

 In a 23 March 1992 affidavit, Major (MAJ) Fred Brown, Ph.D. (Dr. Brown), a 

clinical neuropsychologist, described his evaluation of petitioner. 

In January, 1992 the Chief of Psychology [] at the United 

States Disciplinary Barracks, Fort Leavenworth, Kansas, 

contacted me regarding a court ordered 

neuropsychological evaluation on [petitioner]. I agreed to 

perform the evaluation which took place during the week 

of 27 January, 1992 through 1 February, 1992. I was 

introduced to [petitioner] on 27 January, 1992 [] but did 

not initiate the evaluation until following a joint meeting 

with [petitioner], his [appellate defense counsel], and 

myself. Including the time spent interviewing, testing, 

and interpreting I spent a total of about 30 hours with 

[petitioner]. 

(Gov’t App. Ex. 1 at 2). 

 Dr. Brown indicated petitioner possessed an “organic brain syndrome” that 

resulted in “only mild inefficiency of brain functioning.” (Gov’t App. Ex. 1 at 4). 

He wrote that, at the time of his evaluation, petitioner was “able to fully appreciate 

the nature and quality or the wrongfulness of his acts.” (Gov’t App. Ex. 1 at 4). He 

further wrote, “If, at the time of his offenses, Mr. Gray’s brain functioning was the 

same as it is currently, I believe that he would have possessed mental responsibility 

as defined above.” (Gov’t App. Ex. 1 at 4). 

 This court affirmed the findings and sentence on 15 December 1992, Gray 

ACCA I, 37 M.J. at 749, again affirmed them on 9 June 1993, Gray ACCA II, 37 M.J. 

at 761),16 and denied petitioner’s motion for reconsideration. The case was docketed 

 

15 For more detailed description of ordered testing, see United States v. Gray, ARMY 

8800807 (A.C.M.R. 31 Dec. 1991) (order). 

16 Appellate defense counsel filed a motion to abate the proceedings on direct appeal 

following petitioner’s drug overdose, asserting petitioner was unable to assist in his 

appeal as a result. This court denied the motion on 30 December 1992. Gray ACCA 

II, 37 M.J. at 753. 
GRAY—ARMY MISC 20160775 

13

with the Court of Appeals for the Armed Forces17 (CAAF) on 2 July 1993. United 

States v. Gray, 38 M.J. 305 (C.M.A. 2 Jul. 1993). The CAAF affirmed this court’s 

decision on 28 May 1999 (Gray CAAF), and denied two petitions for 

reconsideration, the later of the two on 26 June 2000.18 The United States Supreme 

Court denied a petition for a writ of certiorari and petition for rehearing on 19 

March 2001 and 14 May 2001, respectively. 19 

 On 4 August 2008, approximately one week after the President approved the 

death sentence in this case, the Chief, Defense Appellate Division, United States 

Army Legal Services Agency, requested via memorandum that The Judge Advocate 

General appoint him and additional counsel as necessary to assist petitioner “with 

his pending habeas corpus action.” The memorandum explained: 

[Petitioner] is currently represented by civilian counsel; 

however, the Defense Appellate Division has represented 

[petitioner], along with civilian counsel, since his original 

court-martial. 

 On 14 August 2008, The Judge Advocate General signed a memorandum 

appointing the Chief, Defense Appellate Division, and “such additional or other 

military counsel as you deem necessary, to represent [petitioner] in filing postconviction habeas corpus petitions in Federal civilian courts.” 

LAW AND ANALYSIS 

Part I - Jurisdiction to Issue and Requirements for a Writ of Coram Nobis 

 Article 66, UCMJ, confers our jurisdiction to consider all but one of 

petitioner’s claims20 and issue a writ of coram nobis if necessary and appropriate in 

 

17 Formerly the United States Court of Military Appeals (name change effective 5 

October 1994; see Act of Oct. 5, 1994, Pub. L. No. 103-337, § 924(a)(c)(1), (2), 

(4)(B), 108 Stat. 2831, 32 (1994) (Amending provisions of the UCMJ to rename the 

United States Court of Military Appeals as the United States Court of Appeals for 

the Armed Forces). 

18 United States v. Gray, ARMY 8800807, 2000 CAAF LEXIS 358 (6 Apr. 2000); 

United States v. Gray, ARMY 8800807, 2000 CAAF LEXIS 677 (26 Jun. 2000). 

19 Gray v. United States, 532 U.S. 919 (2001); Gray v. United States, 532 U.S. 1035 

(2001). 

20 See Part III (Claim 3), infra. 
GRAY—ARMY MISC 20160775 

14

aid thereof. See United States v. Denedo, 66 M.J. 114, 123 (C.A.A.F. 2008) 

(Denedo I); Denedo II, 556 U.S. at 917; 28 U.S.C. § 1651(a) (All Writs Act). The 

All Writs Act does not expand our underlying jurisdiction to consider “the findings 

and sentence as approved by the convening authority.” UCMJ, art. 66(c); Denedo I,

66 M.J. at 120; Denedo II, 556 U.S. at 914. 

 The United States Supreme Court established the landscape of our inquiry in 

Denedo II. “Because coram nobis is but an extraordinary tool to correct a legal or 

factual error, an application for the writ is properly viewed as a belated extension of 

the original proceeding during which the error allegedly transpired.” Denedo II, 556 

U.S. at 912-13. 

 In Denedo I, which involved a post-conviction attack after the petitioner had 

served his sentence, our superior court established six prerequisites for a meritorious 

coram nobis claim: 

(1) the alleged error21 is of the most fundamental 

character; 

(2) no remedy other than coram nobis is available to 

rectify the consequences of the error; 

(3) valid reasons exist for not seeking relief earlier; 

(4) the new information presented in the petition could not 

have been discovered through the exercise of reasonable 

diligence prior to the original judgment; 

(5) the writ does not seek to reevaluate previously 

considered evidence or legal issues; and 

(6) the sentence has been served, but the consequences of 

the erroneous conviction persist. 

Denedo I, 66 M.J. at 126 (citing Morgan, 346 U.S. at 512-13; United States v. 

Loving I, 62 M.J. at 252-53) (remaining citations omitted). 

 

21 Because the standard for granting extraordinary relief requires a petitioner to 

establish that issuance of the requested writ is “necessary and appropriate,” we 

interpret this first prerequisite to mean a petitioner must do more than merely allege

error. See 28 U.S.C. § 1651(a); Denedo I, 66 M.J. at 126. He has the burden to 

establish the error occurred. 
GRAY—ARMY MISC 20160775 

15

Part II - Petitioner’s Claims Generally

 Before analyzing the claims more specifically, we consider whether the 

second, third and sixth Denedo I factors control the claims identically. 

 The second Denedo I factor requires us to assess whether an alternate remedy 

is available. As stated above, we lack jurisdiction to grant habeas relief in this postfinality case; therefore no remedy other than coram nobis is available to petitioner in 

this court. We decline to conclude whether, as a matter of law, an alternative 

remedy is available to petitioner in a civilian federal court, for to make such a 

conclusion—one way or the other—would require us to consider, inter alia, another 

court’s jurisdictional reach. We shall not stray into such an assessment. We do 

note, however, that Department of Justice counsel argued with persuasive effect in 

the United States District Court for the District of Kansas that petitioner should have 

litigated the instant claims in the military justice system before raising them in a 

habeas corpus action in an Article III court. In an interesting turn of advocacy 

within the executive branch, the Army’s government appellate counsel now insist we 

should “dismiss the petition with prejudice” because “whether or not any Article III 

litigation is currently pending, it is available to [petitioner].” The United States 

cannot have it both ways, at least not in the context of this petition, and create a 

“Catch-22” that avoids matters properly before us. 

 We resolve the third Denedo I factor against petitioner, for we perceive no 

valid reason for his failure to seek relief earlier. Each of petitioner’s claims over 

which we have jurisdiction was ripe for his complaint as soon as the Supreme Court 

denied his petition for certiorari sixteen years ago.22 Petitioner’s counsel urge that 

conflict-of-interest considerations render it unreasonable to expect previous 

appellate defense counsel to raise ineffective appellate assistance issues against 

themselves. This argument is meritless, for petitioner makes no showing and—based 

on the record before us can make none—that his appellate defense counsel before 

this court on direct appeal continued to represent him afterward. In other words, 

after this court rendered its decisions on direct appeal, petitioner’s new appellate 

and post-conviction relief counsel were not burdened by any conflict-of-interest 

considerations that would have hampered criticism of their predecessors. 

 Citing Loving I, 62 M.J. at 240, petitioner’s counsel also address the Supreme 

Court’s certiorari denial: “At the time, the law recognized no mechanism for postconviction review pending presidential approval of a military death sentence.” 

(Pet’r Reply Br. 29). This passage causes us to recall our superior court’s 

 

22 It would have been inappropriate for this court to consider, much less grant, coram 

nobis relief while our superior court was in the midst of its own mandatory review, 

or while his certiorari petition was under advisement at the Supreme Court. 
GRAY—ARMY MISC 20160775 

16

observation regarding jurisdiction to consider a petition for a writ of coram nobis

after completion of Article 67(a), UCMJ, review but before finality under Article 76, 

UCMJ. 

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. 

Loving I, 62 M.J. at 240 (emphasis added). 

 Because such petition for review opened new questions about military 

appellate jurisdiction, it follows that no jurisdictional obstacle prevented petitioner 

from bringing the instant claims before Loving I was decided in 2005. It also 

follows that the jurisdictional question was settled for over five years—only to be 

cemented by Denedo I and Denedo II during that period—before petitioner filed his 

first coram nobis petition with this court on 11 February 2011.23

 We also resolve the sixth Denedo I factor against petitioner with respect to all 

of his claims over which we have jurisdiction, for his sentence has not been served. 

From our plain reading of Denedo I—including its reliance on Loving, a capital 

case—we conclude the sixth factor applies in all cases, including those involving a 

sentence to death. Petitioner correctly notes that, in Denedo II, the United States 

Supreme Court did not specifically adopt the six-factor test established by the 

CAAF. However, the Supreme Court also did not disturb the six-factor test in 

affirming our superior court; both decisions jointly and severally bind us. 

 Beyond the claim-transcendent and dispositive third and sixth factors, it is 

also appropriate to more specifically address petitioner’s claims. With respect to 

each of his claims that we possess jurisdiction to consider—and for reasons specific 

to each—we find petitioner has failed to establish the existence of error. 

Part III - Petitioner’s Claims Specifically

1.24 PETITIONER WAS DENIED HIS RIGHTS UNDER THE SIXTH AND 

EIGHTH AMENDMENTS WHEN HE WAS TRIED WHILE INCOMPETENT TO 

PROCEED AND WHEN HE WAS INCOMPETENT DURING PORTIONS OF THE 

APPELLATE PROCEEDINGS; THE TRIAL COURT AND THE APPELLATE 

COURTS ERRED IN NOT CONDUCTING COMPETENCY PROCEEDINGS; AND 

 

23 Gray v. Belcher, 70 M.J. at 647. 

24 Numbers adopted from instant petition. 
GRAY—ARMY MISC 20160775 

17

PRIOR COUNSEL WERE INEFFECTIVE FOR FAILING TO LITIGATE 

PETITIONER’S INCOMPETENCE.25

 The United States Supreme Court established the temporal landscape of our 

current inquiry in Denedo II as “a belated extension of the original proceeding 

during which the error allegedly transpired.” Denedo II, 556 U.S. at 913. With this 

view in mind, we shall only address relevant aspects of the previous proceedings at 

this court and below. We shall not assess appellate defense counsel’s effectiveness 

at our superior court and beyond, for doing so would exceed our limited statutory 

jurisdiction. 

 The Sixth Amendment guarantees the effective assistance of counsel at trial. 

Strickland v. Washington, 466 U.S. 668, 685 (1984) (“The right to counsel plays a 

crucial role in the adversarial system embodied in the Sixth Amendment, since 

access to counsel’s skill and knowledge is necessary to accord defendants the ‘ample 

opportunity to meet the case of the prosecution’ to which they are entitled.”); 

R.C.M. 506 (Accused’s Rights to Counsel). Our superior court has also held that the 

UCMJ provides a military accused with the right to effective assistance of counsel 

on appeal. United States v. Palenius, 2 M.J. 86, 90 (C.M.A. 1977); see also Evitts v. 

Lucey, 469 U.S. 387, 392 (1985) (the Due Process Clause of the Fourteenth 

Amendment entitles a criminal appellant to effective assistance of counsel during an 

appeal of right). 

 Applying this legal framework against the facts above and matters currently 

averred by petitioner, we find petitioner’s counsel at trial and on direct appeal 

before this court competently, diligently, and zealously sought to determine whether 

he possessed the necessary capacity to participate in the defense and appeal of his 

case. Trial defense counsel obtained a determination of the question from a sanity 

board. Beyond this, the military judge asked a defense expert whether petitioner 

was competent and was told yes. Then, on multiple occasions, appellate defense 

counsel sought, and ultimately received, the same conclusion from a sanity board 

composed of different members. Finally, appellate defense counsel prevailed in 

obtaining a separate neuropsychological examination, which yielded no conclusions 

to undermine the previous competence determinations. 

 Petitioner’s counsel aver, inter alia, “[t]rial and appellate counsel were 

ineffective for failing to challenge the erroneous conclusions of the boards that 

Petitioner was competent.” (Pet’r Reply Br. 29). Beyond our conclusion that 

 

25 Based on our review of petitioner’s instant submissions, the trial record, and the 

appellate record before this court, his multiple claims of ineffective assistance of 

counsel are demonstrably improbable, which enables us to resolve them without an 

evidentiary hearing. United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997). 
GRAY—ARMY MISC 20160775 

18

defense counsel at trial and on direct appeal before this court did not “fail” and that 

they instead were competent, diligent, and zealous, we additionally note that this 

quoted passage asserts facts that are only partly accurate. As described previously 

in the background section, the record makes it abundantly clear that appellate 

defense counsel conveyed, through tenacious advocacy, their dissatisfaction with the 

trial-and-appellate-level evaluations. 

 We find no deficiency in trial and appellate counsel’s not seeking the 

“adversarial” competency hearing petitioner’s counsel now urge was indicated, for a 

viable basis to do so simply did not exist. 

2. PETITIONER WAS DENIED DUE PROCESS WHEN MILITARY 

AUTHORITIES FAILED TO DISCLOSE EVIDENCE REGARDING PETITIONER’S 

INCOMPETENCY DURING APPELLATE PROCEEDINGS. 

Of this claim, petitioner’s counsel write: 

Citing Brady v. Maryland, 373 U.S. 83 (1963), and related 

cases, petitioner argues his constitutional due process 

rights were violated in the following manner: 

the findings by the chief psychologist at the Disciplinary 

Barracks that petitioner suffered from several mental 

defects and lacked the mental capacity to assist his 

counsel;26

evidence reflecting how and by whom those formal 

findings were altered to indicate that they were only 

“initial draft findings,” Answer [government brief] at 13, 

and; 

evidence that military authorities pressured the sanity 

board to ultimately find petitioner competent despite his 

actual incompetency. 

(Pet’r. Br. 30-34) (internal subparagraph markings omitted). 

The petition further alleges that the government’s failure to disclose such 

evidence materially affected the outcome of the appeal, by inter alia, causing 

petitioner to be deemed competent when he was not, and by inducing appellate 

counsel to rely on inaccurate and misleading information in determining whether to 

 

26 Dr. Kea’s individual evaluation, previously described in the background section. 
GRAY—ARMY MISC 20160775 

19

formally challenge petitioner’s competency and in determining the scope of their 

own mental health investigation. (Pet’r. Br. 30-34). 

We addressed the issue of post-trial discovery rights in United States v. 

Hawkins, 73 M.J. 640 (Army Ct. Crim. App. 2014), pet. den., 75 M.J. 319 (C.A.A.F. 

2016), but, as that case involved discovery rights before convening authority action, 

we did not conclude whether an appellant continues to enjoy those rights on direct 

appeal. We need not decide that question now,27 because the facts make clear that at 

least one of petitioner’s appellate defense counsel was provided Dr. Kea’s initial 

report. In light of the fact that the initial report was disclosed to petitioner’s 

appellate defense counsel and appended to their motion to this court to order a sanity 

board, we need not decide whether, under the facts and circumstances of this case, 

the report was in the prosecution’s actual or constructive control. See United States 

v. Stellato, 74 M.J. 473 (C.A.A.F. 2015) and United States v. Shorts, 76 M.J. 523 

(Army Ct. Crim. App. 2017). 

At the request of CPT JS, petitioner’s first appellate defense counsel, Dr. Kea 

performed the initial evaluation. Seizing on CPT JS’s 11 December 2009 

declaration that he completed his Army service before receiving it, petitioner’s 

counsel conflate that specific fact into a wider-ranging allegation that the evaluation 

was not provided to “appellate defense counsel.” This averment is fundamentally 

incorrect, for as a matter of fact obvious from the appellate record, Dr. Kea’s 

evaluation, including his individual conclusions regarding petitioner’s mental 

responsibility and competence, were provided to CPT MJB, CPT CGW, and CPT 

JJF, who succeeded CPT JS as petitioner’s appellate defense counsel and submitted 

the same evaluation in support of their motion for another sanity board. 

Petitioner also argues his due process rights were violated because Dr. Kea 

did not provide the initial report to Dr. Edwards, another member of the appellate 

sanity board. In his 25 November 2009 affidavit, Dr. Kea writes, inter alia: 

Prior to the actual convening of the sanity board, Dr. 

Marceau and I had met to review my findings from my 

original evaluations of [petitioner], which were in 

response to the lawyer’s [CPT JS’s] request for a sanity 

inquiry. Dr. Marceau would not agree to my findings and 

insisted that we rewrite the conclusions of my report. His 

position was that we needed further testing before drawing 

 

27 The Supreme Court addressed the matter in a civilian criminal case, District 

Attorney’s Office for Third Judicial District v. Osborne, 557 U.S. 52 (2009). See 

also United States v. Webb, 66 M.J. 89, 92 (C.A.A.F. 2008) (re-stating constitutional 

and statutory rights to discovery and disclosure). 
GRAY—ARMY MISC 20160775 

20

the conclusions that I had drawn - that [petitioner] was 

incompetent and suffered severe mental defects - from the 

clinical interviews and testing I had already done. Since 

Dr. Marceau was a psychiatrist, i.e., a medical doctor, and 

therefore considered more authoritative in the military 

setting, I agreed to change the conclusions while we did 

further evaluations and testing. We changed the report to 

reflect that “at the time of the alleged criminal conduct, 

the accused may have had a severe mental disease or 

defect” and that it was unclear whether [petitioner] was 

competent to cooperate with the defense. We both signed 

the report, which was submitted in response to the initial 

request for a sanity inquiry. Although the history and 

findings of my initial evaluation were included with the 

board’s final report, the last page of my initial findings 

was not included. 

[....] 

We conducted an interview of [petitioner] in the 

Discipline and Adjustment Board room at the Disciplinary 

Barracks. Immediately after the interview, he was 

removed from the room. Dr. Edwards, Dr. Marceau and I 

began deliberations, which lasted about an hour or so. We 

basically sat in the room and discussed what our final 

findings should be. For a sanity board report, it was my 

understanding at the time that all findings must be 

unanimous. I still agreed with my original assessments as 

laid out above. However, I was persuaded to agree with 

Dr. Marceau’s conclusions. I felt pressure to agree to Dr. 

Marceau’s conclusions that [petitioner] did not suffer 

mental disease or defect at the time of the crimes and that 

he was competent. Dr. Edwards, who is a medical doctor, 

played little part in our ultimate conclusions regarding Mr. 

Gray’s mental status. Ultimately, we prepared a final 

sanity board report that altered the conclusions that I had 

reached on my own. 

In Dr. Edwards’s 25 September 2009 affidavit, she writes she was unaware of 

Dr. Kea’s initial individual report regarding petitioner’s mental responsibility and 

competence. She further states, “I would have found it absolutely appropriate to 

reconsider the final findings at the time in light of the original, undisclosed report of 

Dr. Kea.” 
GRAY—ARMY MISC 20160775 

21

Dr. Kea was clearly able to share his initial report with Dr. Marceau, and he 

did so. Nothing in his affidavit indicates he was unable to share it with Dr. Edwards 

once the sanity board convened. We also note that while Dr. Kea did not 

specifically write whether he verbalized his initial conclusions during the sanity 

board’s deliberations, he did write: “I still agreed with my original assessments [].” 

Finally, contrary to inferences urged by petitioner, nothing from Dr. Kea’s affidavit 

raises concern that he was improperly influenced in his apparent decision not to 

provide his initial report to Dr. Edwards. 

Noting that a sanity board “is a creature not of statute, but of executive order 

and long-standing military practice,” our superior court described their non-judicial 

nature in United States v. Best, 61 M.J. 376, 382 (C.A.A.F. 2005): 

As an administrative board, whose members are typically 

appointed by a medical commander and not by the 

convening authority, and whose findings do not bind the 

court-martial in its determination of either competence 

(R.C.M. 909(e)) or mental responsibility (R.C.M. 

916(k)(3)(C) and 921 (c)(4)), a board convened under 

R.C.M. 706 cannot be analogized to a court of members. 

For example, doctors serving on an R.C.M. 706 board 

would not only be granted access to an appellant’s prior 

medical records, including previous diagnoses by other 

doctors, but would be encouraged to read those prior 

records to develop a full picture of an appellant’s mental 

history. 

 Consistent with the majority in Best28 and similarly mindful of the “important 

protections afforded by R.C.M. 706,” we perceive no constitutional due process right 

governing the methods with which a sanity board performs its work. Assuming 

arguendo such a right does extend to such administrative evaluations, we perceive 

no due process violation here. The multiple boards in this case were conducted by 

neutral and independent professionals, and neither Dr. Kea’s nor Dr. Edwards’s 

affidavits disturb our confidence that the sanity board on which they served rendered 

a fair and impartial assessment of petitioner. 

3. PETITIONER WAS DENIED HIS RIGHTS TO DUE PROCESS, TO A FAIR 

SENTENCING PROCEEDING, TO A PUBLIC TRIAL, AND AGAINST CRUEL 

AND UNUSUAL PUNISHMENT, AS GUARANTEED BY THE FIFTH, SIXTH, 

AND EIGHTH AMENDMENTS, WHERE THE PRESIDENT, ACTING IN A 

JUDICIAL ROLE, APPROVED PETITIONER’S DEATH SENTENCE IN 

 

28 But see Best, 61 M.J. at 390 (Baker, J., concurring). 
GRAY—ARMY MISC 20160775 

22

RELIANCE UPON CONFIDENTIAL REPORTS THAT WERE NOT DISCLOSED 

TO PETITIONER. 

 As described above, we may only consider coram nobis relief based upon 

alleged errors in the trial of the case and our own previous direct review. Denedo II, 

556 U.S. at 912-13. Petitioner’s complaint here focuses on an event occurring years 

after this court affirmed the findings and sentence. We lack jurisdiction under 

Article 66, UCMJ, and authority under The All Writs Act to assess the legal 

sufficiency of the President’s action in this case. 28 U.S.C. § 1651(a). While we 

are thus precluded from considering what appears to be the sine qua non of 

petitioner’s claim—that the President’s approval of the death sentence was a judicial 

action—this characterization further illustrates our jurisdictional limit, for we have 

no authority to render judgment on a superior court’s decision. 

4. PETITIONER WAS DENIED HIS SIXTH AMENDMENT RIGHT TO 

EFFECTIVE ASSISTANCE OF COUNSEL AT HIS CAPITAL SENTENCING. 

 

 For reasons that this and our superior court have previously provided, 

petitioner has failed to establish existence of the claimed error. Gray CAAF, 51 M.J. 

at 19; Gray ACCA I, 37 M.J. at 745-47. We additionally resolve the fifth Denedo I

factor against petitioner, for this claim seeks to re-litigate an issue previously 

decided against him by this and our superior court. Id. 

5. APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE. 

 Petitioner’s counsel describe this claim as: 

incorporat[ing] the allegations in Claim 4 and provid[ing] 

an alternate ground for relief - that appellate counsel were 

ineffective in failing to present the results of a thorough 

mitigation and mental health investigation to establish 

defense counsel’s ineffectiveness at trial. 

 Elevating his previously unsuccessful claims of ineffective assistance at trial 

to ineffective assistance on appeal, petitioner avers his appellate defense counsel 

were deficient by not providing background biographical information sufficient for 

his appellate-level R.C.M. 706 board to make a reasoned decision regarding his 

mental responsibility and capacity. We have fully considered petitioner’s 

submissions, including an affidavit from Dr. Kea, who wrote in 2009, after 

reviewing matters later provided to him by petitioner’s current counsel: 

[M]y original findings were largely correct. Indeed, 

[petitioner] did suffer from severe mental disease at the 

time of the criminal conduct. Moreover, it is equally clear 
GRAY—ARMY MISC 20160775 

23

that, as I stated in my initial report, [petitioner] was 

unable to appreciate the nature and quality or 

wrongfulness of his conduct, and did not have the mental 

capacity to cooperate intelligently with the defense at 

either the time of trial or at the time of the sanity board 

and appellate proceedings. 

 Even assuming Dr. Kea gathered insufficient information to reliably diagnose 

petitioner, such a shortcoming does not mean appellate defense counsel were 

deficient—and, we perceive no deficiency otherwise. We additionally note that in 

the neuropsychological evaluation ordered by this court and conducted by Dr. 

Brown, appellate counsel appears to have actively facilitated sharing petitioner’s life 

history with the diagnostician in order to obtain a well-informed result. 

6. PETITIONER’S DEATH SENTENCE MUST BE REVERSED BECAUSE THE 

MILITARY DEATH SENTENCING SYSTEM AS APPLIED IS 

UNCONSTITUTIONAL AND HIS SENTENCE WAS THE RESULT OF RACIAL 

DISCRIMINATION, IN VIOLATION OF ARTICLE 66 AND THE FIFTH, SIXTH, 

EIGHTH, AND FOURTEENTH AMENDMENTS. 

We are keenly aware of our duty to remain vigilant in “eradicat[ing] racial 

prejudice from our criminal justice system.” McCleskey v. Kemp, 481 U.S. 279, 309 

(1987) (citing Batson v. Kentucky, 476 U.S. 79, 85 (1986)). Petitioner relies on 

McCleskey, in which the Supreme Court addressed a habeas claim that petitioner’s 

death sentence was the result of racial discrimination in violation of the 

Constitution’s Equal Protection Clause and Eighth Amendment. The petitioner in 

that case cited a statistical study led by Professor David Baldus, offering it to show 

disparities in capital sentencing outcomes based on defendants’ and victims’ races. 

Denying relief, the Supreme Court summarized petitioner’s effort to meet his burden 

to establish an equal protection violation: 

[T]o prevail under the Equal Protection Clause, 

[petitioner] must prove that the decisionmakers in his case 

acted with discriminatory purpose. He offers no evidence 

specific to his own case that would support an inference 

that racial considerations played a part in his sentence. 

Instead, he relies solely on the Baldus study. 

McCleskey, 481 U.S. at 292-93. 

 Petitioner bears the same burden here, and he too relies upon a study prepared 

by Professor Baldus—albeit a different one based on selected military justice 

cases—offered to show disparate outcomes in capital cases based on accuseds’ and 
GRAY—ARMY MISC 20160775 

24

victims’ races. Assuming arguendo29 the study is statistically sound, it falls far 

short of proving that “the decisionmakers in his case acted with discriminatory 

purpose.” We find no other support for his claim that his sentence was motivated by 

racial discrimination and therefore constitutionally or statutorily infirm. 

7. THE MILITARY DEATH PENALTY VIOLATES EVOLVING STANDARDS OF 

DECENCY UNDER THE EIGHTH AMENDMENT. 

Petitioner bases this claim upon alleged racial disparities in military capital 

cases, excessive delays between sentence and execution, and the decreased use of 

capital punishment nationwide. His claim merits neither additional discussion nor 

relief. See United States v. Loving, 41 M.J. 213 (C.A.A.F. 1994); United States v. 

Gray, 51 M.J. 1, 11 (C.A.A.F. 1999); United States v. Akbar, 74 M.J. 364 (C.A.A.F. 

2015); and United States v. Hennis, 75 M.J. 796 (Army Ct. Crim. App. 2016). 

NOW, THEREFORE, IT IS ORDERED: 

1. Petitioner’s motion for oral argument is DENIED. 

2. With respect to Claims 1, 2, 4, 5, 6, and 7, the petition is DENIED. 

3. With respect to Claim 3, the petition is DISMISSED for lack of 

jurisdiction. 

4. Respondent’s motion to dismiss is DENIED as moot. 

 

29 Table 1 of the study provides “Thumbnail Sketches” of “Death Sentenced Accused 

Listed by Year of Sentence and Type of Offense: United States Armed Forces 

(1984-2005).” Certain cases are described as “brutal.” For reasons unknown to us, 

petitioner’s is not so described. Petitioner raped, forcibly sodomized, and murdered 

two people, stabbing one multiple times and shooting the other four times. Gray 

ACCA I, 37 M.J. at 736. 

The study purports to implement “Criminal Culpability” controls, with no 

meaningful explanation of their provenance. However, a footnote at Table 12 of the 

study does offer some insight into the method involved: “The accused culpability 

levels reflect law student rank order scores based on their evaluation of detailed 

narrative summaries of the cases.” 
GRAY—ARMY MISC 20160775 

25

Chief Judge RISCH, Senior Judge TOZZI, Senior Judge CAMPANELLA, 

Judge HERRING, Judge CELTNIEKS, Judge FEBBO, Judge BURTON, and Judge 

WOLFE concur. 

 FOR THE COURT: 

 JOHN P. TAITT 

 Chief Deputy Clerk of Court 

JOHN P. TAITT 

Chief Deputy Clerk of Court 

FOR THE COURT: