UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

Airman Basic SEBASTIAN P. LABELLA,

United States Air Force

v.

UNITED STATES

Misc. Dkt. No. 2016-05

7 July 2016

Sentence adjudged 9 April 2010 by GCM convened at Keesler Air Force 

Base, Mississippi. Military Judge: W. Thomas Cumbie.

Approved sentence: Bad-conduct discharge, confinement for 6 months, 

forfeiture of $477.00 pay per month for 3 months, and reduction to E-1.

Counsel for Petitioner: Major Ja Rai A. Williams

Counsel for the United States: Gerald R. Bruce, Esquire.

Before

MITCHELL, DUBRISKE, and BROWN

Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent 

under AFCCA Rule of Practice and Procedure 18.4.

BROWN, Judge:

Petitioner filed a petition for a writ of coram nobis alleging that his appellate counsel 

provided ineffective assistance by failing to submit a timely appeal to the United States 

Court of Appeals for the Armed Forces (CAAF). We conclude that Petitioner was not 

prejudiced by his prior counsel’s performance as he would not prevail under the issues he 

sought to appeal. Thus, the petition for extraordinary relief in the nature of error coram 

nobis is hereby denied.
2 Misc. Dkt. No. 2016-05

Background

Contrary to Petitioner’s pleas, a panel of officers sitting as a general court-martial 

convicted him of one specification of wrongful and knowing possession of visual 

depictions of minors engaging in sexually explicit conduct and one specification of 

wrongful and knowing possession of “what appear to be” minors engaging in sexually 

explicit conduct, both in violation of Clause 1 or 2 of Article 134, UCMJ, 10 U.S.C. § 934. 

The members sentenced Petitioner to a dishonorable discharge, confinement for 6 months, 

forfeiture of $447.00 pay per month for 3 months, and reduction to E-1. The convening 

authority approved a bad-conduct discharge instead of the adjudged dishonorable 

discharge; otherwise, the remainder of the sentence was approved as adjudged.

On appeal, this court affirmed the approved findings and sentence. United States v. 

Labella, ACM 37679, (A.F. Ct. Crim. App. 15 February 2013) (unpub. op.). Our superior 

court, however, granted review, set aside our earlier decision, and remanded the case to 

this court to consider the following two issues raised by Petitioner: 

I. WHETHER APPELLANT’S CONVICTION FOR 

SPECIFICATION 1 OF THE ARTICLE 134 CLAUSE 1 AND 

2 CHARGE MUST BE SET ASIDE BECAUSE THE 

VERDICT OF GUILT RESTED ON CONDUCT THAT WAS 

CONSTITUTIONALLY PROTECTED BECAUSE AT 

LEAST 6 OF THE IMAGES DID NOT DEPICT A 

LASCIVIOUS EXHIBITION OF THE GENITALS OR 

PUBIC AREA.

II. WHETHER THE MILITARY JUDGE ERRED IN 

INSTRUCTING THE MEMBERS THAT IN ORDER TO 

FIND APPELLANT GUILTY OF POSSESSION OF 

VISUAL DEPICTIONS OF MINORS ENGAGING IN 

SEXUALLY EXPLICIT CONDUCT IN VIOLATION OF 

ARTICLE 134, CLAUSE 1 AND 2, THE IMAGES MUST BE 

OF A CHILD UNDER THE AGE OF 18, INSTEAD OF 

UNDER THE AGE OF 16 AS THE UCMJ DEFINES A 

CHILD.

United States v. Labella, 72 M.J. 471 (C.A.A.F. 2013) (mem.). 

We resolved both of these issues adversely to Petitioner. United States v. Labella, 

ACM 37679 (rem), (A.F. Ct. Crim. App. 2 July 2014) (unpub. op.). In considering the first 

issue, this court determined that 5 of the 32 images that formed the basis for Petitioner’s 

conviction of Specification 1 did not meet the legal definition of sexually explicit conduct. 

Id. at 5. Nevertheless, we did not set aside the verdict as to that specification because we 
3 Misc. Dkt. No. 2016-05

determined that, based on the quantitative strength, qualitative nature, and surrounding 

circumstances of the remaining 27 images, that the error as to the 5 images was harmless 

beyond a reasonable doubt. Id. at 8. As to the second issue, we concluded that the military 

judge did not abuse his discretion in defining a minor, for purposes of possessing visual 

depictions of a minor engaged in sexually explicit conduct in violation of clause 1 and 2 of 

Article 134, UCMJ, as a person less than 18 years. Id. at 11. This definition was consistent 

with how a minor is defined by federal law criminalizing possession of this material and 

this federal law provided fair notice to Appellant. Id. 

After issuance of our opinion, Petitioner had 60 days to either request 

reconsideration of our decision or file an appeal with our superior court. Article 67(b)(2), 

UCMJ, 10 U.S.C. § 867(b)(2). Petitioner’s counsel failed to file a motion for 

reconsideration or an appeal within this 60-day statutory window. Petitioner’s conviction 

became final as to the legality of the proceedings when the 60-day statutory window 

expired. Article 71(c)(1)(A), UCMJ, 10 U.S.C. § 871(c)(1)(A).

Several months later, however, Petitioner requested to file a motion for 

reconsideration out of time. Although we granted the motion to file out of time, we denied 

the motion for reconsideration. Petitioner then filed a petition for review to our superior 

court. The CAAF dismissed the petition after concluding we lacked jurisdiction to grant 

the petition to file an out of time request for reconsideration and that, consequently, our 

superior court also lacked jurisdiction. United States v. Labella, 75 M.J. 52 (C.A.A.F. 

2015). 

The convening authority promulgated General Court-Martial Order Number 9 and 

ordered Petitioner’s bad-conduct discharge to be executed on 15 January 2016. Petitioner’s 

case is final under Article 76, UCMJ, 10 U.S.C. § 876.

Discussion

There is a final judgment as to the legality of the proceedings under Article 71(c)(1), 

UCMJ, and the case is final under Article 76, UCMJ. Despite this finality, this court has 

the authority to consider a petition for writ of error coram nobis. United States v. 

Frischholz, 36 C.M.R. 306 (C.M.A. 1966). 

We derive this authority from the All Writs Acts, 28 U.S.C. § 1651(a). Loving v. 

United States, 62 M.J. 235, 245 (C.A.A.F. 2005) (citing Clinton v. Goldsmith, 526 U.S. 

529, 534 (1999)). The All Writs Act does not enlarge our jurisdiction. Clinton, 526 U.S. 

at 534–35. Rather, it confines our authority to issuing writs necessary or appropriate in aid 

of our jurisdiction. Id. Our jurisdiction to review the findings and sentence of courtsmartial is defined in Article 66(c), UCMJ, 10 U.S.C. § 866(c). This notwithstanding, the 

Supreme Court has noted that “judgment finality is not to be lightly cast aside; and courts 
4 Misc. Dkt. No. 2016-05

must be cautious so that the extraordinary remedy of coram nobis issues only in extreme 

cases.” United States v. Denedo, 556 U.S. 904, 916 (2009).

Our superior court has identified standards applicable to review an ineffective 

assistance of counsel claim raised via an error coram nobis petition. Denedo v. United 

States, 66 M.J. 114, 126 (C.A.A.F. 2008), aff’d and remanded by 556 U.S. 904 (2009). It

adopted “the two-tiered evaluation used by Article III courts for coram nobis review of 

ineffective assistance of counsel claims.” Id. 

In the first tier, Petitioner must meet the following threshold requirements for a writ 

of coram nobis:

(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.

Id. The threshold requirements on the alleged error of ineffective assistance of counsel by 

appellate counsel are satisfied in this case.

We must next conduct the second-tier analysis of the ineffective assistance of 

counsel claim applying the principles set out in Strickland v. Washington, 466 U.S. 668 

(1984). Denedo, 66 M.J. at 126. “A military accused is entitled under the Constitution 

and Article 27(b), UCMJ, 10 U.S.C. § 827(b) (2000), to the effective assistance of 

counsel.” Denedo, 66 M.J. at 127 (citing United States v. Scott, 24 M.J. 186, 187–88 

(C.M.A. 1987)). This applies both at the trial and appellate levels. See United States v. 

Van Hullum, 15 M.J. 261, 268 (C.M.A. 1983) (failing to brief and argue an issue before

the service court was ineffective assistance of counsel where the accused had a nonfrivolous issue that had been asserted at trial). However, Petitioner must still “surmount a 

very high hurdle” when making an ineffective assistance of counsel claim. Denedo, 66 

M.J. at 127 (quoting United States v. Perez, 64 M.J. 239, 243 (C.A.A.F. 2006)).

“To prevail on a claim of ineffective assistance of counsel, [Petitioner] must 

demonstrate both (1) that his counsel’s performance was deficient, and (2) that this 

deficiency resulted in prejudice.” United States v. Green, 68 M.J. 360, 361–62 (C.A.A.F. 

2010) (citing Strickland, 466 U.S. at 687). In reviewing for ineffectiveness, the court 

“looks at the questions of deficient performance and prejudice de novo.” United States v. 

Gutierrez, 66 M.J. 329, 330–31 (C.A.A.F. 2008). “[I]f it is easier to dispose of an 

ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will 
5 Misc. Dkt. No. 2016-05

often be so, that course should be followed.” Id. at 331 (quoting Strickland, 466 U.S. at 

697). To demonstrate prejudice, the petitioner must show that “there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding would 

have been different.” Id. (quoting Strickland, 466 U.S. at 694). 

We hold that Petitioner has failed to meet his burden. As Petitioner’s alleged 

deficient performance was the failure of counsel to file a timely appeal to the CAAF, to 

demonstrate prejudice, Petitioner must be able to demonstrate a reasonable probability that 

our superior court would have provided relief if the petition was submitted within the 

statutory window. For the reasons set forth in our prior opinion, we remain unpersuaded 

that Appellant is entitled to relief. See Labella, ACM 37679 (rem); see also United States 

v. Piolunek, 74 M.J. 107 (C.A.A.F. 2015) (affirming a general verdict of possessing and 

receipting child pornography when only 19 of the 22 images admitted by the government 

as evidence as to this offense constituted child pornography).*

Petitioner, in his writ to this court, has not identified, and we have not found, any 

additional basis for relief as to the issues that he desired our superior court consider on 

further appeal.

Conclusion

After considering the pleadings of the parties, we conclude Petitioner has failed to 

demonstrate that he was prejudiced by the failure of his counsel to timely appeal our prior 

decision to the CAAF. Accordingly, it is by the court on this 7 day of July, 2016,

ORDERED:

That the petition for extraordinary relief in the nature of a coram nobis is hereby DENIED.

FOR THE COURT

LEAH M. CALAHAN

Clerk of the Court

 

*

In so concluding, however, we understand that Petitioner may now appeal this writ to the United States Court of 

Appeals for the Armed Forces (CAAF). Compare Denedo, 556 U.S. 904, 915 (2009) (“Because the [service court] 

had jurisdiction over respondent’s petition for coram nobis, the CAAF had jurisdiction to entertain respondent’s appeal 

from the [service court]’s judgment.”) with Rittenhouse v. United States, 69 M.J. 174 (C.A.A.F. 2010) (declining a 

writ of error coram nobis submitted directly to the CAAF).