UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES, ) Misc. Dkt. No. 2013

- 30

Respondent ) )

v. ) ) ORDER Lieutenant Colonel ( O

- 5 ) ) MARK K. ARNESS , ) USAF, )

Petitioner ) Panel No. 2

WEBER, Judge:

T he petitioner requested extraordinary relief on 19 December 2013 in the nature of

a w rit of e rror c oram n obis

. The petitioner asks this Court to grant relief based on 13 alleged errors or issues regarding his 2009 court

- martial.

Background

The petitioner was convicted at a general court

- martial in November 2009 of
14 specifications of leaving his place of duty or absence from his unit, 10 sp ecifications of false official statements, and 2 specifications of conduct unbecoming an officer and a gentleman, in violation of Articles 86, 107

, and 133, UCMJ, 10 U.S.C. §§ 886, 907, 933. The military judge sentenced the petitioner to confinement for 1 1 months and a reprimand, and the convening authority approved the sentence as adjudged.

Review by the Office of The Judge Advocate General under Article 69, UCMJ, 10 U.S.C. § 869, determined the findings and sentence were supported in law. The petition er then asked The Judge Advocate General to reconsider this decision, alleging three errors were committed in his court

- martial that warranted relief. This request for reconsideration was denied on 15 September 2011, on the basis that the petitioner’s

con viction was final under Article 76, UCMJ, 10 U.S.C. § 876. The petitioner now seeks

a w rit of e rror c oram n obis from this Court, citing 13 alleged errors or other considerations arising from his conviction.

Law

“Courts

- martial

. . . are subject to colla teral review within the military justice system.” Denedo v. Unite d States

, 66 M.J. 114, 119 (C.A.A.F. 2008), aff’d and
remanded

, 556 U.S. 904 (2009). This Court is among the courts authorized under the AllMisc. Dkt. No. 2013

- 30 2 Writs Act to issue “ all writs necessary or appro priate in aid of their respective jurisd ictions. ” 28 U.S.C. § 1651(a) ; LRM v. Kastenberg , 72 M.J. 364, 367 (C.A.A.F. 2013)

.

A petition for extraordinary relief under the All Writs Act requires this Court to make two determinations: (1) whether the reque sted writ is “in aid of” this Court’s existing jurisdiction; and (2) whether the requested writ is “necessary or appropriate. ”
LRM , 72 M.J. at 367

- 68

. Concerning the first determination, “ t he express terms of the [ All Writs ] Act confine [our] power to is suing process ‘ in aid of ’ [ our ] existing statutory jurisdiction; the Act does not enlarge that jurisdiction.” Clinton v. Goldsmith

, 526 U.S. 529, 534

- 35 (1999) (citations omitted). Therefore, the All Writs Act is not an independent grant of appellate ju risdiction and it cannot enlarge a court’s jurisdiction. Id. Likewise, the Act does not grant this Court authority “to oversee all matters arguably related to military justice, or to act as a plenary administrator even of criminal judgments
it has affirm ed.” Id. at 536. Nevertheless:

[W] hen a petitioner seeks collateral relief to modify an action that was taken within the subject matter jurisdiction of the military justice system, such as the findings or sentence of a court

- martial, a writ that is nece ssary or appropriate may be issued under the All Writs Act ‘in aid of’ the court’s existing jurisdiction.

De nedo , 66 M.J. at 120.

Concerning the second determination, a writ is not “necessary or appropriate” if another adequate legal remedy is availabl e. See Goldsmith

, 526 U.S. at 537 (holding that even if the Court of Appeals for the Armed Forces had some jurisdictional basis to issue a writ of mandamus, such writ was unjustified as necessary or appropriate in light of alternative remedies available t o a servicemember demanding to be kept on the rolls). See also Denedo , 66 M.J. at 121 (citing Loving v. United States , 62 M.J. 235, 253

- 54 (C.A.A.F. 2005))

.

A writ of error coram nobis may be utilized to “ remedy an earlier disposition of a
case that is f

lawed because the court misperceived or improperly assessed a material fact.” McPhail v. United States

, 1 M.J. 457, 459 (C.M.A. 1976 ). Coram nobis encompasses constitutional and other fundamental errors, including the denial of fundamental rights accorde d by the UCMJ. Garrett v. Lowe , 39 M.J. 293, 295 (C.M.A. 1994); United States v. Bevilacqua , 39 C.M.R. 10, 11

- 12 (C.M.A. 1968). This writ authority extends past the point at which a court

- martial conviction becomes final under Article 76 , UCMJ

. Denedo

, 66 M.J. at 121

- 25

. However, coram nobis “should only be used to remedy errors of the most fundamental character.” Loving , 62 M.J. at 252

- 53 (quoting United States v. Morgan , 346 U.S. 502, 512 (1954)) (internal quotation marksMisc. Dkt. No. 2013

- 30 3 omitted) . I n order to obtai n a writ of error coram nobis, a petitioner must meet the following “stringent threshold requirements”:

(1) the alleged error 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 , 66 M.J. at 126. If the petitioner meets these threshold requirements for a writ of error coram nobis, this Court analyzes the underlying basis for the writ, keeping in mind “the petitioner must establish a clear and indisputable right to the requested relief.” Id. (citing Cheney v. United States Dist. Court for D.C. , 542 U.S. 367, 381 (2004)).

Discussi on

We find the requested writ is “in aid of” our existing jurisdiction. The petitioner’s
sentence at his court

- martial did not entitle him to review by this Court under Article 66, UCMJ, 10 U.S.C. § 866. Instead, T he Judge Advocate General reviewed his conviction under Article 69(a), UCMJ. Under Article 69(d)(1), UCMJ, The Judge Advocate General could have referred the case to this Court for review. In addition, Article 69(d)(2), UCMJ, authorizes this Court to review “any action taken by the Judge Advo cate General under this section” in a court

- martial. An application for a writ of error coram nobis is “properly viewed as a belated extension of the original proceeding during which the error occurred.” Denedo , 556 U.S. at 913. Since we could have prop erly reviewed the original proceeding under Article 69, UCMJ, w e adopt the position of our fellow service court
that a court of criminal appeals retains authority to issue extraordinary writs in cases reviewed under Article 69 , UCMJ

. See Dew v. United Sta tes , 48 M.J. 639 (Army Ct. Crim. App. 1998). We also find that the requested writ is “necessary or appropriate,” as there are no adequate alternative remedies available to the petitioner.

Having concluded that we may review the petition, we hold that the petitioner is
not entitled to relief

. We have fully analyzed the petitioner’s 13 bases for the requested
relief. In several instances, the petitioner seek s to reevaluate previously considered legal issues. For example, issues such as trial counsel ’s alleged exposure to privileged sanity board information, an alleged speedy trial violation in bringing the petitioner’s case to trial, and a multiplicity issue were all the subject of motion practice at trial

. Other issues the petitioner raises do not ri se to the level of being “of the most fundamental character,” such as his contention that trial counsel made disparaging comments about him during
the court

- martial or his commander’s comments in the first indorsement to the chargeMisc. Dkt. No. 2013

- 30 4 sheet. The petitioner a lso argues his conviction was factually insufficient and his sentence was inappropriately severe. As this is not a review under Article 66, UCMJ, we lack authority to make factual sufficiency and sentence appropriateness determinations.
We see no legal e rror in the Office of The Judge Advocate General’s finding that the petitioner’s conviction is supported in law.

As to the remaining issues , the petitioner provides no meritorious grounds for
relief. We find it appropriate to comment on four of the petit ioner’s claims , allegations of the most fundamental character that were not litigated at trial : ( 1) The military judge admitted P rosecution Exhibits 3 and 7 despite an alleged Fourth or Fifth Amendment 1 violation in procuring these documents; ( 2) The peti tioner received ineffective assistance of counsel; ( 3) The military judge abandoned his role as an impartial and neutral arbiter in questioning a defense witness; and ( 4) The petitioner’s due process rights were violated when it took 153 days from the date the court

- martial concluded for him to receive the convening authority’s action.

1

. Prosecution Exhibits 3 and 7

Prosecution Exhibit 3 consists of airline records demonstrating the petitioner’s
travel. The Government used these records at trial to de monstrate the petitioner travelled

cross

- country during periods when he was not authorized leave . Prosecution Exhibit 7 consists of an invoice and receipt for repair work on the petitioner’s automobile. The
Government used this evidence to demonstrate th e petitioner falsely told his supervisor he was having repair work done on his car on a different date than that reflected on the invoice and receipt. The petitioner claims the Government obtained these documents throug h an illegal search and seizure and/ or improper subpoena s

. Trial defense counsel did not object to the admission of either exhibit, and the petitioner does not claim his trial defense counsel were ineffective in failing to so object. We also see nothing in the record of trial that would pr ovide any basis to believe the documents were improperly obtained.

2

. Ineffective A ssistance of C ounsel

The petitioner claims he received ineffective assistance of counsel in two respects: ( 1) H is counsel failed to object to the introduction of two se ntencing exhibits he states were either too old to be properly introduced or represented evidence of uncharged misconduct; and ( 2) H is counsel improperly withdrew a motion to obtain sentencing credit for illegal pretrial punishment. The sentencing exhibit s of which the petitioner complains are a record of nonjudicial punishment proceedings from May 2005 and a memorandum for record indicating that

, in 2001, the petitioner’s commander relieved him of duties as flight commander. Trial defense counsel did not object to the
introduction of these exhibits. Rule for Courts

- Martial (R.C.M.) 1001(b)(2) allows the

1 U.S. C ONST . a mends. I V, V. The petitioner uses these two constitutional amendments interchangeably.Misc. Dkt. No. 2013

- 30 5 Government to introduce nonjudicial punishment records from the accused’s service
record with no distinction as to the date such action was issued. Air Force practice li mits the permissible age of non judicial punishment action introduced under R.C.M. 1001(b)(2) to five years prior to the date charges were referred. United States v. Edwards , 39 M.J. 528, 529 (A.F.C.M.R. 1994); Air Force Instruction 51

- 20 1, Administration of Military Justice , ¶ 8.13.1.2.2 (21 December 2007) . The petitioner’s

non judicial punishment record was within this five

- year window, and therefore there was no basis to object to its admission. As for the 2001 memorandum indicating th e petitioner was relieved from command, even assuming trial defense counsel was deficient in failing to object to it, we see no reasonable probability that but for the deficient performance, the result of the proceeding would have been different. Strickla nd v. Washington , 466 U.S. 668, 693

- 94 (1984). Finally, concerning the motion for illegal pretrial punishment, no explanation appears in the record why trial defense counsel withdrew the motion. However, our review of the motion convinces us the motion w ould

not offer the petitioner relief; therefore, there is no prejudice to the petitioner in trial defense counsel’s withdrawal of the motion.

3. Military J udge’s Q uestioning of a W itness

The petitioner alleges the military judge improperly questioned t wo witnesses, assuming the role of trial counsel rather than a neutral participant. We have examined the military judge’s conduct throughout the court

- martial, including the two instances the petitioner cites. We see no evidence of improper conduct or an y behavior that departs from the “wide latitude” a military judge is provided to ask questions of witnesses called by the parties. United States v. Acosta , 49 M.J. 14, 17 (C.A.A.F. 1998).

4. Time from Sentence to Action

The petitioner’s sentence was a djudged on 18 November 2009. The convening authority took action on 19 February 2010, 93 days later. The petitioner claims he did not receive the action until 19 April 2010, but he offers no evidence to support this
contention. 2 Our superior court estab lished a presumption of unreasonable delay where the action of the convening authority is not taken within 120 days of the completion of
trial. United States v. Moreno , 63 M.J. 129, 142 (C.A.A.F. 2006). If this standard is violated, this Court then exami nes the remaining due process considerations of Barker v. Wingo , 407 U.S. 514 (1972), including whether the petitioner suffered prejudice as a result of the delay. We find no due process violation in the time taken for the convening authority to take acti on in this case. The convening authority acted 93 days after sentence was announced, well within the Moreno standard. Even assuming a delay in an accused

2 His contention appear s improbable, as the Office of T he Ju dge Advocate General found the conviction legally supported on 25 March 2010, weeks before the petitioner claims he received the convening authority’s action. The record of trial also contains a 1 April 2010 petition for humanitarian release and clemency signed by the petitioner, a petition he would normally only file after receiving the action.Misc. Dkt. No. 2013

- 30 6 receiving action may constitute a due process violation

— something Moreno did not
hold

— there is no re ason to believe the petitioner was prejudiced by the delay in receiving action, particularly where such delay did not hold up the Article 69 , UCMJ, review of his case. The petitioner is entitled to no relief on this issue.

Conclusion

An extraordinary wr it is a drastic remedy that should be used only in extraordinary
circumstances. United States v. LaBella , 15 M.J. 228, 229 (C.M.A. 1983). T he petitioner has not carried his burden to demonstrate his case presents extraordinary circumstances warranting is suance of the writ of error coram nobis.

Accordingly, it is by the Court on this 1 1th day of March

, 2014

,

ORDERED:

T he Petition for Extraordinary Relief in the Nature of a Writ of Error Coram Nobis is hereby DENIED

.

HELGET, Senior Judge, and PELOQUIN, Ju dge

, concur.

FOR THE COURT

S TEVEN LUCAS
C lerk of the Court