## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before the Court Sitting En Banc 1

Private RONALD GRAY, United States Army, Petitioner

v. UNITED STATES, Respondent 2

ARMY MISC 20160775

For Petitioner: Mr. Shaw n Nolan, Esquire; Mr. Timo thy Kane, Esquire; Mr. Jonathan Jeffress, Esquire (on brief and reply brief).

For Respondent: Col onel Mark H. Sydenham, JA; Lieu tenant Colonel A.G. Courie III, JA; Lieutenant Colonel Karen J. Borgerding, JA; Ma jor 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-ma rtial 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 th e Commandant of Fort Leavenwo rth’s Disciplinary Barracks as respondent, but the parties to this case ar e the United States a nd 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 ca se and record, th e 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 th e 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 relie f in an Article III court. However, that Article III court ultimately dismissed the habeas petit ion, 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 prej udice). Petitioner re turns 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 seek s 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 re mained pending within the military justice system , [petitioner] had a number of options, including filing a habe as petition in our court or awaiting action by the presid ent before seeking ju dicial 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, pe titioner sought coram nobis relief from us for the second time, but we dismissed his petition withou t prejudice, pendi ng federal district court action on his habeas petition. United States v. Gray , ARMY MISC 20160086 (Army Ct. Crim. App. 10 May 201 6)(order).

7 Petitioner also requests “appropriate discovery and [] a Dubay hearing at which proof may be offered concerning the allegati ons 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, followin g the majority’s logic 8 in those cases, we lack jurisdiction to grant a wr it of habeas corpus.

BACKGROUND

Previous opinions of this court and our superior court ha ve ably summarized the facts that led to petiti oner’s general cour t-martial; we need not restate them. However, given the issues raised in this petition, it is appr opriate to summarize certain events from the case’s pretrial, trial, and direct appellate history.

A large part of this petiti on involves petitioner’s co mpetency during trial and during direct appellate review. Based on their intera ctions with petitioner, trial

defense counsel s ought a professional as sessment 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 co rpus relief. Loving II , 68 M.J. at 25 (“un like a writ of coram nobis , habeas corpus is not a

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

, 556 U.S. at 912-13).

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

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

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

court-martial unless that person possesses sufficient mental capacity to unders tand the natu re of the proceedings against that person and to conduct or cooperate intelligen tly 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 ca pacity of the

accused is an interlocut ory 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 Captai n (CPT) MPB, trial defense counsel, repo rting his assessment after examining petitioner three days

earlier:

Throughout the inte rview, [petitioner] was posturing, staring, darting his eyes fro m place to place, and he maintained a suspicious, para noid look. He responded slowly, often repeating questions and seemed to be lost in his own thoughts whic h were not in cont act with what was being discussed.

Religious ideation pervaded all of his comments. He

announced that he could walk ou t of the jail if God wanted

him to. He refused to discuss the criminal charges with

me. He talked ab out his “visions” as a child and recent ones, which were re ligious 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 belie ves 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 di saster. He ta lked a great

deal about the mean ing of the number seven since there were seven people in the space shuttle.

When I led the discus sion back to the ki llings 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 posses ses sufficient mental capacity to unders tand the natu re of the proceedings against the accused and to conduct or cooperate intelligen tly in the defense of the case.

R.C.M. 909, MCM , 1984. The curr ent rule is worded slight ly differently and also

addresses determinations of mental competence be fore 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. Gr ay is not presently mentally competent to stand trial. I can’t determine whether he

knows the nature of the char ges 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 wo uld be important that the [petitioner] be treated with major tran quilizers, but he will not cooperate in the jail and take the medication.

I am unable to procee d with my evaluati on because of the severity of his present ment al illness and my inability to

force treatment. Mr . Gray needs to be in a psychiatric setting where he can be observe d over a period of time and given appropriate chemotherapy to see if his competence

can be restored.

On 10 November 1987, CPT MPB reques ted the convening au thority direct a sanity board under R.C.M. 706. Petitioner’s mental capacity was one of the

numerous matters tria l defense counsel requested the board evaluate: “Does SP4 Gray have sufficient mental capacity to un derstand the na ture of the pr oceedings and to conduct and/or cooperate intelligently in his defense?”

On 23 November 1987, th e convening authority gran ted the defense request and according to the trial defense team during a 21 De cember 1987 Article 39a,

Uniform Code of Milit ary Justice, 10 U.S. C. § 839a [hereinaft er UCMJ], session, “appointed a board with Colone l Armitage, who is a forensic psychiat rist, as head of

that board.” At a later pretrial sess ion on 8 February 198 8, 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. Th e motion averred, inter alia:

As set forth in the defe nse motion for an inquiry 10 into the mental capacity an d mental responsib ility of the accused under the provisions of R.C.M. 706, ther e is substantial

reason to believe that th e accused lacked mental responsibility at the time of the al leged offenses (R.C.M.

10 There is no separate “motion” in the r ecord of trial; defe nse 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 accu sed is not capable of standing trial . . . . But our problem is we have no money to ge t him into this courtroom since we have an indigent accu sed.” Defense c ounsel continued, “[O]ur preparation is really stymied with respect to mental responsibility, capacity, and pa rtial mental responsibility until we can get a psychiatrist to help us prepare th at defense.”

Defense counsel also provided the military judge with Dr. Rose’s 4 November 1987 assessment, which opin ed petitioner was not “presently competent to stand trial.” (App. Ex. XXIII at 1).

On 14 March 1988, after th e panel had been sworn, the military judge sought to resolve any outstanding pre liminary matters in an Article 39a se ssion. Counsel

for both sides confirmed “the defense request for a forensic psychi atrist has been granted.” The m ilitary judge also revi ewed the results of pe titioner’s sanity board, which stated the following:

SP4 Gray presently suffers from a mental disease or defict [sic] but it does no t render him mental ly 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 advi sed petitioner of hi s rights to submit

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

evidence in extenuati on 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 ca lled numerous sentencing witnesses, including DF, the chief jailor for Cumberland County Ja il, where petitioner was confined before

his court-martial. DF desc ribed petitioner as “very hostile” and “v ery distan t” when he initially arrived on 7 January 1987. After a th ree-month stay in isolated confinement, imposed as a result of his near-rage, petitioner was hous ed with others charged with first-degree mu rder. DF testified about pe titioner’s beha vior 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 attit ude problems or anything?

A: No. Like I sa id, after -- after the initial episode and his stay in isolation, it seemed like he just resolved

himself to where he was at an d was going to go along with the program, not fi ght the problem.

[. . .]

DC: What’s Ronald’s reput ation been am ong the other jailors, the other inmates, as far as being cooperative, being pleasant, things like that?

A: Now, that -- that I ca n’t address. I didn’t ask anybody’s opinion.

DC: Okay. You re ceive incident re ports if anything negative happens, is that correct?

A: Correct.

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

A: Anything out of the ordina ry 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 sentenci ng witness, and he

described his evaluati on of petitioner:

His thinking is very strange at times, it seems -- psychotic, to be delusional, ca ught up in these fals e beliefs that have

no basis in fact. At other times it seems quite realistic and he switches back and forth, an d 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 wa nt 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, se parate directions.

DC: What’s your opinion of Specialist Gray’s ability to follow directions, to respect authority, thin gs like that?

A: Generally, quite good. Ce rtainly, in hi s service career, [] during his childhood [he] fo llowed directions, did what was expected of him. So ge nerally, it’s qu ite good. And

even when Colonel Armitage meets with him and says,

“This is what I’d like to talk about,” he focuse s real well. So he’s capable of fo llowing commands.

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

competence:

MJ: [A]s [petitioner] s its before you today, by the defense, sitting by the de fense counse ls, 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. Aske d if he had any ques tions regarding them, petitioner said, “No, sir.”

On 22 December 1989, wi th his case on direct appeal, petitioner’s three appellate defense counsel, CPT MJB, CPT CG W, and CPT JJF, m oved this court to:GRAY—ARMY MISC 20160775

9 direct the convening of a sa nity 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 under stand the nature of or to cooperate intelligently in these proceedings.

Appellate defense counsel criticized Dr. Ar mitage’s and Dr. Rose’s previous evaluations, describing them as “cursory,” “inaccura[te] and inadequa[te].”

Included with the motion was a psychological evaluati on prepared by CPT William Kea, Ph.D., a clinical psyc hologist (Dr. Kea). Dr. Kea wrote that petitioner “was referred for a psychological evaluation at the request of Mr. [JL], and inmate’s Appellate Defense At torney, CPT [JS].” 11 After “a clinical interview conducted over a period of five days,” 12 Dr. Kea issued a fourteen-p age report, whic h concluded:

[. . . A]t the time of the al leged 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 resu lt of such severe mental disease or defect, was unable to appreciate the nature an d quality or wrongfulness of his conduct.

[. . . T]he accused, at the ti me of trial in 1988, did not have sufficient mental cap acity . . . to cooperate intelligently in the defense.

[. . . T]he accused does not now have sufficient mental capacity . . . to cooperate in telligently in the defense.

(Internal line markings omitted; ellipses in original).

Presented with this deve lopment, on 13 February 199 0, this court directed a sanity board to in quire “into the ap pellant’s mental responsibility at the time of the offenses, [his] mental capaci ty at the time of his cour t-martial, and [his] present

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

refers to CPT JS’s 8 A ugust 1989 writte n 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 sp ecifically directed findings regarding:

whether [petitioner] had sufficient ment al capacity to

understand the nature of the court-mart ial proceedings and to conduct or cooper ate intelligently in his defense at the time of trial;

[petitioner’s] present clin ical diagnosis; and,

whether [petitioner] presently posse sses sufficient mental capacity to understand the natu re of the pending appellate proceedings and to conduct or cooperate inte lligently 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 CP T Michael Marceau, M.D. (Dr. Marceau). The board included, inter alia , “a review of ava ilable psychological reports.”

The board found:

[. . . T]he appellant has su fficient mental capacity to

understand the nature of the court-mart ial proceedings and to conduct or cooper ate 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 natu re of the pending appellate proceedings and to conduct or cooperate inte lligently in his appeal.

Memorandum, Subject: Findi ngs of a psychiatric evalua tion of Ronald A. Gray, SSN [] Reg. #73786; ACMR 8800807 (30 Jun. 1990) (i nternal line markings omitted).

The “available psychologi cal reports,” to which the board referred and appended to its report , consisted of two evaluations. The first, bearin g the signatureGRAY—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 th eir motion, it did no t include findings regarding petitioner’s mental responsibility or competence. 13 The second report, again prepared by Dr. Kea who described it as a su pplemental report based on “comprehensive neuropsychological testin g conducted betwee n 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 po ssibly be of a long standing nature. Although the find[ing]s are positi ve, they do no t appear to account for the magnitude that would compromise any legal/criminal responsibility.

Memorandum, Subject: Me dical Consultation Report Neuropsychological

Evaluation (undated).

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

for resources in order to ev aluate his mental condition. 14 On 31 December 1991, appellate defense counsel filed with this court a motion to comp el additional medical and neurological testing of pe titioner. Appellate defense counsel wr ote, “the mental

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

defective in se veral ways.”

This court granted the motion and dire cted four additiona l tests: 1) a Magnetic Resonance Imaging (M RI) scan of petitioner’s br ain; 2) a twenty-channel, scalp electrode, sleep-deprived electroencephalogram (EEG); 3) a positron emission tomography (PET) scan, or if impossibl e to perform, a si ngle-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, th is time signed by both Dr . Kea and Dr. Ma rceau. This

version stated “further eval uation is necessary” to determine whet her petitioner lacked mental responsibility fo r his crimes and co ntinued, “[i]t is unclear whether the accused, at the time of tr ial in 1988, did not have sufficient ment al capacity . . . to cooperate intelligently in th e defense.” (Ellipses in orig inal). This version of the report concluded, “[t]he re sults of the neurol ogical examination will be useful to

determine whether the accused now has sufficient mental ca pacity . . . to cooperate intelligently in th e defense.” (Ellipses in original).

14 For an able summary of some of appellate defense c ounsel’s efforts, see United States v. Gray , ARMY 8800807 (A.C.M.R. 12 Nov. 1991 ) (order).GRAY—ARMY MISC 20160775

12 of intellectual, neuropsychol ogical, academic, psychological, and personality tests performed by a fully qualified and credentialed neuropsych ologist to determine the presence and/or exte nt of intellectual or neuropsychological deficits and any psychological or pe rsonality disorder. 15

In a 23 March 1992 affidavit, Major (MAJ) Fred Brown, Ph.D. (Dr. Brown), a clinical neuropsychologist , described his evaluati on of petitioner.

In January, 1992 th e Chief of Psycholo gy [] at the United States Disciplinary Barracks , Fort Leavenworth, Kansas, contacted me regard ing 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 Februar y, 1992. I was introduced to [petitioner] on 27 January, 1992 [] but did

not initiate the eval uation until follow ing a joint meeting with [petitioner], his [appel late defense counsel], and myself. Including the time spent interv iewing, testing, and interpreting I spent a to tal of about 30 hours with [petitioner].

(Gov’t App. Ex. 1 at 2).

Dr. Brown indicated petiti oner possessed an “organ ic brain syndrome” that resulted in “only mild inefficiency of brain functioni ng.” (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 ti me of his offenses, Mr. Gray ’s brain functi oning was the

same as it is cu rrently, I believe that he would have possessed mental responsibility as defined above.” (G ov’t App. Ex. 1 at 4).

This court affirmed the findings and senten ce 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 petition er’s motion for reconsideratio n. The case was docketed

15 For more detailed descri ption of ordered testing, see United States v. Gray , ARMY 8800807 (A.C.M.R. 31 De c. 1991) (order).

16 Appellate defense co unsel filed a motion to abate th e proceedings on direct appeal following petitioner’s drug overdose, assert ing 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 Appe als for the Armed Forces 17 (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 petiti on for a writ of cert iorari and petition for rehearing on 19

March 2001 and 14 Ma y 2001, respectively. 19

On 4 August 2008, approxi mately one week after the President approved the

death sentence in this case , the Chief, Defense Appellat e Division, United States Army Legal Services Agency, requested vi a memorandum that The Judge Advocate General appoint him an d additional co unsel as necessary to assist petiti oner “with his pending habeas corpus action.” The memorandum explained:

[Petitioner] is current ly represented by civilian counsel; however, the Defense Appellate Division has represented [petitioner], along wi th civilian counsel, since his original

court-martial.

On 14 August 2008 , The Judge Advocate Gene ral signed a memorandum appointing the Chief, Defens e Appellate Division, and “s uch additional or other military counsel as you deem necess ary, to represent [petiti oner] 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, confer s our jurisdiction to co nsider all but one of petitioner’s claims 20 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) (Amendin g provisions of the UCMJ to rename the

United States Court of Military Appeals as the Unite d States Court of Appeals for the Armed Forces).

18 United States v. Gray , ARMY 8800807, 2000 CAAF LEX IS 358 (6 Apr. 2000); United States v. Gray , ARMY 8800807, 20 00 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 Stat es 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 “t he findings and sentence as approved by the conven ing authority.” UC MJ, art. 66(c); Denedo I

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

The United States Supreme Court establ ished the landscape of our inquiry in

Denedo II . “Because coram nobis is but an extraordinary t ool 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 a llegedly transpired.” Denedo II , 556

U.S. at 912-13.

In Denedo I , which involved a post -conviction attack af ter the petitioner had served his sentence, our supe rior court establis hed six prerequisite s for a meritorious

coram nobis claim:

(1) the alleged error 21 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 re lief earlier;

(4) the new info rmation 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 serv ed, but the cons equences 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) (rem aining citations omitted).

21 Because the standard for granting extraordinary re lief requires a petitioner to

establish that issuance of the requested writ is “neces sary and appr opriate,” we interpret this fi rst prerequisite to m ean 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 sp ecifically, we consider whether the second, thir d and sixth Denedo I factors control the claims identically.

The second Denedo I factor requires us to asse ss whether an a lternate remedy

is available. As stated abov e, we lack jurisdiction to gran t 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 matte r of law, an alternative remedy is availa ble 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 su ch an assessment. We do note, however, that Department of Justice counsel argued wi th persuasive effect in

the United States Dist rict Court for th e 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 Ar ticle III court. In an interesting turn of advocacy within the executive branch, the Army’s g overnment appellate c ounsel now insist we should “dismiss the pe tition with prejudice” because “whether or not any Article III litigation is currently pendin g, it is available to [pet itioner].” The United States

cannot have it bo th ways, at least not in the context of this petiti on, and create a

“Catch-22” that avoids matte rs 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 pe titioner’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 co unsel urge that conflict-of-interest considerations render it unreasonable to expect previous appellate defense counsel to raise ineffec tive appellate assistance issues against themselves. This argument is meritless, for petitioner makes no show ing and—based

on the record before us can make none—that his appe llate defense counsel before this court on direct appeal continued to repres ent him afterward. In other words,

after this court rendered it s decisions on dir ect appeal, petitioner ’s new appellate and post-conviction relief c ounsel 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, pet itioner’s counsel also address the Supreme Court’s certiorari denial: “At the time, th e law recognized no mechanism for postconviction review pending pr esidential approval of a m ilitary death sentence.” (Pet’r Reply Br. 29). This passage ca uses us to recall ou r 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 th e Supreme Court.GRAY—ARMY MISC 20160775

16 observation regarding juri sdiction to consider a petition for a writ of coram nobis after completion of Article 67(a), UCMJ, review but befo re 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 Cour t’s jurisdiction.

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

Because such petition for review opened new questions about military appellate jurisdiction, it follo ws that no jurisdictional obstacle prevented petitioner from bringing the in stant claims before Loving I was decided in 2005. It also follows that the jurisd ictional question was settled for over five ye ars—only to be cemented by Denedo I and Denedo II during that period—before petitioner filed his

first coram nobis petition with this cour t 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 se ntence has not been served. From our plai n reading of Denedo I —including its reliance on Loving , a capital

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

sentence to death. Petition er 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 Suprem e Court also did no t disturb the six-factor test in affirming our superior court; both decisions jointly and severally bind us.

Beyond the claim-transcende nt and dispositive third an d sixth factors, it is also appropriate to more specifically addr ess petitioner’s claims . With respect to

each of his claims that we possess jurisdiction to consider—and for reasons specific to each—we find petiti oner has failed to establis h 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 fro m instant petition.GRAY—ARMY MISC 20160775

17 PRIOR COUNSEL WERE INEFFECTIVE FOR FAILING TO LITIGATE

PETITIONER’S INCOMPETENCE. 25

The United States Supreme Court establ ished 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 as pects of the prev ious 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 ou r limited statutory jurisdiction.

The Sixth Amendment guarantees the effect ive assistance of co unsel 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 sk ill and knowledge is ne cessary to acco rd defendants the ‘ample opportunity to meet the case of the prosecutio n’ to which they are entitled.”); R.C.M. 506 (Accused ’s Rights to Counsel). Our superior court ha s also held that the UCMJ provides a military accu sed with the right to effe ctive 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 Proces s 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 fi nd petitioner’s c ounsel at trial and on direct appeal

before this cour t competently, diligent ly, and zealousl y sought to dete rmine whether he possessed the necessary capa city to participate in the defense and ap peal of his

case. Trial defense c ounsel obtained a dete rmination of the ques tion from a sanity board. Beyond this, th e military judge asked a defens e expert whethe r petitioner was competent and was told yes. Then, on multiple occasions, appellate defense counsel sought, and ultimatel y received, the same conclu sion from a sanity board composed of different member s. Finally, appellate de fense counsel prevailed in obtaining a separate neuropsychological ex amination, 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 er roneous conclu sions of the boards that Petitioner was competen t.” (Pet’r Reply Br. 29). Beyond our conc lusion that

25 Based on our review of pe titioner’s instant su bmissions, the tria l record, and the appellate record before this court, his mu ltiple 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 tria l 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 fa cts that are only partly accura te. As descri bed previously in the background section, the record makes it abundantly clear that appellate

defense counsel c onveyed, through tenacious advocacy, their diss atisfaction with the trial-and-appellate- level evaluations.

We find no deficiency in trial and appellate counsel’s not seeking the “adversarial” competency hearing petitione r’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, petitio ner’s counsel write:

Citing Brady v. Maryland , 373 U.S. 83 (1 963), and related cases, petitioner argues hi s constitutiona l due process rights were violated in the following manner:

the findings by the chief psyc hologist at the Disciplinary Barracks that petiti oner 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,” Answ er [government brief] at 13, and;

evidence that military author ities pressured the sanity board to ultimately find petitioner comp etent despite his actual incompetency.

(Pet’r. Br. 30-34) (int ernal subparagra ph 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 mislea ding information in determining whether to

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

19 formally challenge pe titioner’s competency and in determ ining the scope of their own mental health investigat ion. (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 ca se involved discovery rights before conven ing authority action, we did not conclude whether an appellant continues to enjoy th ose rights on direct appeal. We need not de cide that question now, 27 because the facts ma ke clear that at least one of petitioner’s ap pellate defense counsel was provided Dr. Kea’s initial report. In light of the fa ct that the initial report was disclo sed to petitioner’s appellate defense counsel and appended to thei r motion to this cour t to order a sanity board, we need not de cide whether, under the facts a nd 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 appell ate defense counsel, Dr. Kea performed the initial eval uation. Seizing on CPT JS’s 11 December 2009 declaration that he comple ted his Army service before receiving it , petitioner’s counsel conflate that specific fact into a wider-ranging alle gation that th e evaluation was not provided to “a ppellate defense counsel.” Th is averment is fundamentally incorrect, for as a matter of fact obvious from the appellate record, Dr. Kea’s evaluation, including his in dividual 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 c ounsel and submitted

the same evaluation in s upport of their motion fo r 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 memb er of the appellate sanity board. In his 25 November 2009 affidavit, Dr. Kea writes, inter alia :

Prior to the actua l convening of the sanity board, Dr.

Marceau and I had met to revi ew my findings from my original evaluation s of [petitioner], which were in response to the lawy er’s [CPT JS’s] re quest for a sanity inquiry. Dr. Marceau would no t agree to my findings and

insisted that we rewrite the c onclusions of my report. His position was that we needed further test ing before drawing

27 The Supreme Court addressed the ma tter in a civilian criminal case, District Attorney’s Office for Third Judicial Dist rict v. Osborne , 557 U.S. 52 (2009). See

also United States v. Webb , 66 M.J. 89, 92 (C.A.A.F. 20 08) (re-stating constitutional and statutory rights to di scovery and disclosure).GRAY—ARMY MISC 20160775

20 the conclusions that I had drawn - that [petitioner] was incompetent and suffe red severe mental defects - from the

clinical interviews and testin g I had already done. Since Dr. Marceau was a psychiatrist , i.e., a medical doctor, and

therefore considered more au thoritative 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 th e alleged criminal conduct, the accused may have had a severe mental disease or

defect” and that it was unclear whethe r [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. Althoug h the history and findings of my ini tial evaluation were included with the board’s final report, the last page of my initial findings

was not included.

[....]

We conducted an intervie w of [petitioner] in the Discipline and Adjustment Bo ard room at the Disciplinary Barracks. Immediately afte r 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 th e room and discusse d what our final findings should be. For a sanity board report, it was my understanding at th e time that all fi ndings must be unanimous. I still ag reed with my origin al assessments as

laid out above. Ho wever, I was persua ded to agree with

Dr. Marceau’s conclusi ons. 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. Edward s, who is a me dical doctor, played little part in our ulti mate conclusion s regarding Mr. Gray’s mental status. Ulti mately, we prepared a final sanity board report that alte red the conclusions that I had reached on my own.

In Dr. Edwards’s 25 September 2009 affi davit, she writes she was unaware of Dr. Kea’s initial individual report regard ing petitioner’s mental responsibility and competence. She further states, “I would have found it absolu tely appropriate to

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

Dr. Kea.”GRAY—ARMY MISC 20160775

21 Dr. Kea was clear ly able to share hi s initial report with Dr. Marceau, and he did so. Nothing in hi s affidavit indicates he was unabl e to share it wi th Dr. Edwards once the sanity board convened. We also note that while Dr. Kea did not specifically write whether he verbalized his in itial conclusions during the sanity board’s deliberations, he did wr ite: “I still agreed with my original assessments [].” Finally, contrary to inferenc es urged by petition er, nothing from Dr . Kea’s affidavit raises concern that he was improperly infl uenced in his appare nt decision not to provide his initial report to Dr. Edwards.

Noting that a sanity board “is a creature not of statute, bu t 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 co mmander 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 respon sibility (R.C.M. 916(k)(3)(C) and 921 (c)(4)), a board convened under

R.C.M. 706 cannot be analogized to a co urt of members. For example, doctors servin g on an R.C.M. 706 board would not only be granted acce ss to an appellant’s prior medical records, including pr evious diagnoses by other doctors, but would be encour aged to read those prior records to develop a full pict ure of an appellant’s mental history.

Consistent with the majority in Best 28 and similarly mindful of the “important protections afforded by R.C.M. 706,” we pe rceive no constitution al due proc ess right governing the meth ods with which a sani ty board performs its work. Assuming arguendo such a right does extend to such admi nistrative evaluati ons, we perceive no due process violation here. The multiple boards in this case were conducted by neutral and independent pr ofessionals, and neither Dr . Kea’s nor Dr. Edwards’s

affidavits disturb our confiden ce that the sanity board on which they served rendered a fair and impartial as sessment of petitioner.

3. PETITIONER WAS DENIED HIS RIGH TS TO DUE PROCESS, TO A FAIR SENTENCING PROCEEDING, TO A PU BLIC 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 PETITI ONER’S DEATH SENTENCE IN

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

22 RELIANCE UPON CONFIDENTIAL REPO RTS 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 focuse s on an event occurring years after this court affirmed the findings an d sentence. We lack jurisdiction under Article 66, UCMJ, and auth ority 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 consider ing what appear s to be the sine qua non of petitioner’s claim—that the President’s appr oval of the death se ntence was a judicial

action—this characterization fu rther illustrates our jurisdictional limit, for we have no authority to render judgment on a superior court’s decision.

4. PETITIONER WAS DENIED HI S SIXTH AMENDMENT RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL AT HIS CAPITAL SENTENCING.

For reasons that this and our superi or court have previously provided, petitioner has fa iled to establish existe nce of the claimed error. Gray CAAF , 51 M.J. at 19; Gray ACCA I , 37 M.J. at 745-47. We ad ditionally resolve the fifth Denedo I factor against petiti oner, for this claim seeks to re-litigate an issue previously decided against him by this and our superi or court. Id

.

5. APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE.

Petitioner’s counsel de scribe this claim as:

incorporat[ing] the allegation s in Claim 4 and provid[ing] an alternate ground for relief - that appellate counsel were ineffective in failing to pres ent the results of a thorough mitigation and mental health investigation to establish

defense counsel’s ineff ectiveness at trial.

Elevating his previously unsuccessful clai ms of ineffective assistance at trial to ineffective assistance on appeal, petiti oner avers his appellate defense counsel were deficient by not providing background biographical inform ation sufficient for his appellate-level R.C.M. 706 board to make a reason ed decision re garding his mental responsibility and capacity. We have full y considered petitioner’s submissions, including an affidavit from Dr. Kea, who wrote in 2009, after reviewing matters later pr ovided to him by petiti oner’s current counsel:

[M]y original findings were largely correct. Indeed, [petitioner] did suffer from se vere mental di sease at the

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

23 that, as I stated in my in itial report, [p etitioner] was unable to apprecia te 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 gath ered insufficient information to reliably diagnose petitioner, such a shortcoming does no t mean appellate defense counsel were deficient—and, we perceive no deficiency otherwise. We additi onally note that in the neuropsychological evaluation ordere d by this court and conducted by Dr. Brown, appellate counsel appear s to have acti vely facilitated sharing petitioner’s life history with the diagnostic ian 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 VI OLATION OF ARTICLE 66 AND THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS.

We are keenly aware of our duty to rema in vigilant in “eradicat[ing] racial prejudice from ou r criminal justice system.” McCleskey v. Kemp , 481 U.S. 279, 309 (1987) (citing Batson v. Kentucky , 476 U.S. 79, 85 (1986)). Pet itioner relies on McCleskey , in which the Supreme C ourt addressed a habeas cl aim that petitioner’s

death sentence was the result of racial discrimination in violation of the Constitution’s Equal Protecti on Clause and Eighth Ame ndment. The petitioner in

that case cited a sta tistical study led by Professor Davi d Baldus, offering it to show disparities in capital sentencing outcomes based on defendants’ and victims’ races. Denying relief, the Su preme Court summarized petitioner’s e ffort to meet his burden to establish an equal protection violation:

[T]o prevail under the Eq ual Protection Clause, [petitioner] must prove th at the decisionmakers in his case acted with discrimina tory purpose. He offers no evidence specific to his own case that would support an inference that racial considerations play ed 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 re lies 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 base d on accuseds’ andGRAY—ARMY MISC 20160775

24 victims’ race s. Assuming arguendo 29 the study is statistical ly sound, it falls far short of proving that “the decisionmakers in his case acted with di scriminatory purpose.” We find no other su pport for his claim that his sentence was motivated by

racial discriminati on 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 dispariti es in military capital cases, excessive delays between senten ce 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 or al argument is DENIED.

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

3. With respect to Claim 3, the pe tition is DISMI SSED for lack of jurisdiction.

4. Respondent’s motion to di smiss is DENIED as moot.

29 Table 1 of the study provi des “Thumbnail Sketches” of “Death Sentenced Accused Listed by Year of Sentence and Type of Offense: Un ited States Armed Forces (1984-2005).” Certain cases are described as “brutal.” For reasons unknown to us, petitioner’s is not so desc ribed. Petitioner raped, forc ibly sodomized, and murdered two people, stabbing one multiple times and shooti ng the other four times. Gray

ACCA I , 37 M.J. at 736.

The study purports to im plement “Criminal Culpab ility” controls, with no meaningful explanation of th eir provenance. However, a footnote at Ta ble 12 of the study does offer some insigh t into the method involved: “The accused culpability

levels reflect law student ra nk order scores based on th eir evaluation of detailed

narrative summarie s of the cases.”GRAY—ARMY MISC 20160775

25 Chief Judge RISCH, Se nior Judge TOZZI, Se nior Judge CAMPANELLA, Judge HERRING, Judge CELTNIEKS, Judg e 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: