UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

JOHNSON, COOK, and BURTON 

Appellate Military Judges 

Private E1 RONALD GRAY 

United States Army, Petitioner 

v. 

Colonel ERIC BELCHER, 

Commandant, United States Disciplinary Barracks 

and 

THE UNITED STATES, Respondents 

ARMY MISC 201100931

For Petitioner: Colonel Mark Tellitocci, JA; Captain Stephen J. Rueter, JA; 

Timothy P. Kane, Esq.; Shawn Nolan, Esq.; Billy H. Nolas, Esq. (on brief). 

For Respondents: Colonel Michael E. Mulligan, JA; Major Amber J. Williams, JA; 

Major Adam S. Kazin, JA (on brief). 

26 January 2012 

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OPINION OF THE COURT AND ACTION 

ON PETITION FOR EXTRAORDINARY RELIEF 

IN THE NATURE OF A WRIT OF CORAM NOBIS 

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JOHNSON, Senior Judge: 

This is a petition for extraordinary relief in the nature of a writ of coram 

nobis based on several alleged errors discovered after petitioner’s court-martial and 

appellate proceedings. We hold that petitioner cannot meet the threshold criteria for 

coram nobis review. Petitioner has other remedies available to him as a matter of 

law, but not within the military justice system. 

I 

In 1988, petitioner was tried by a general court-martial composed of officer 

and enlisted members. Contrary to his pleas, petitioner was convicted of the 

premeditated murder of Ms. KAR and Private LLV, as well as the attempted murder 

of Private MALN, in violation of Articles 118, and 80, Uniform Code of Military 

Justice, 10 U.S.C. §§ 918, and 880 (1982) [hereinafter UCMJ, 1982]. Petitioner 

was also convicted of rape (3 specifications), robbery (2 specifications), and sodomy 

 

1

 The docket number for petitioner’s direct appeal is ACMR 8800807. 
GRAY—ARMY MISC 20110093 

2

(2 specifications) with respect to the above victims, as well as burglary and larceny 

of another person, in violation of Articles 120, 122, 125, 129, and 121, UCMJ, 1982, 

respectively. The convening authority approved his sentence to death, a 

dishonorable discharge, total forfeitures and reduction to E1. 

The petitioner’s conviction and sentence were affirmed by both the Army 

Court of Military Review, which is this court’s predecessor, and the United States 

Court of Appeals for the Armed Forces. United States v. Gray, 37 M.J. 730 

(A.C.M.R. 1992); United States v. Gray, 51 M.J. 1 (C.A.A.F. 1999), aff’g 37 M.J. 

751 (A.C.M.R. 1993), cert. denied, 532 U.S. 919 (2001). On 28 July 2008, the 

President of the United States approved petitioner’s sentence to death and ordered it 

executed. The Secretary of the Army scheduled petitioner’s execution for 10 

December 2008; however, before it could be carried out, the United States District 

Court for the District of Kansas granted a stay of execution in anticipation of 

petitioner filing a petition for extraordinary relief in the nature of a writ of habeas 

corpus. Thereafter, petitioner filed a writ of habeas corpus, which is still pending 

before that court. 

On 11 February 2011, petitioner filed with this court the instant petition for 

extraordinary relief in the nature of a writ of coram nobis. We then ordered the 

government to show cause why the writ should not issue, and it filed an answer brief 

on 14 March 2011. Petitioner filed a reply brief on 13 June 2011. Petitioner is 

currently in confinement at the United States Disciplinary Barracks, Fort 

Leavenworth, Kansas. 

II 

In this case, 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. See 

Loving v. United States (Loving I), 62 M.J. 235, 244 (C.A.A.F. 2005). Therefore, 

this court is without jurisdiction to entertain collateral review under a writ of habeas 

corpus. Loving v. United States (Loving II), 64 M.J. 132, 135 (C.A.A.F. 2006) 

(quoting Loving I, 62 M.J. at 236).2

 See H.R. Rep. No. 81-491, at 35 (1949) 

(“Subject only to a petition for a writ of habeas corpus in Federal court, [Article 76] 

provides for the finality of court-martial proceedings and judgments”). Although a 

case is final pursuant to Article 76, UCMJ, a service court may nonetheless entertain 

a writ of coram nobis “in aid of” its jurisdiction. Denedo II, 556 U.S. at ___, 129 S. 

Ct. at 2223–24; Denedo I, 66 M.J. at 120–21, 125; 28 U.S.C. § 1651(a) (2010).

 

2

 Although the reasoning in Denedo v. United States (Denedo I), 66 M.J. 114 

(C.A.A.F. 2008), and United States v. Denedo (Denedo II), 556 U.S. 904, 129 S. Ct. 

2213 (2009), could be construed to reach all forms of collateral review, their mutual 

holding is much more limited. Those cases extended collateral review beyond 

Article 76 only for writs of coram nobis. 
GRAY—ARMY MISC 20110093 

3

In the military justice system, a petitioner must satisfy several, stringent 

threshold requirements in order to obtain coram nobis relief: 

(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 I, 66 M.J. at 126 (citing United States v. Morgan, 346 U.S. 502, 512–13 

(1954), and Loving I, 62 M.J. at 252–53). Here, petitioner cannot traverse these 

threshold requirements because there is, as a matter of law, a remedy other than 

coram nobis available to him.3 Although in our view petitioner’s right to habeas 

corpus in the military justice system has ended, this is not so for Article III courts. 

In fact, petitioner has filed a writ of habeas corpus in federal district court and the 

government does not dispute the jurisdictional basis for doing so. The merits of 

petitioner’s claims are now for the federal district court, rather than this court, to 

decide. 

 We are cognizant of the preference for military courts to hear issues 

potentially of first impression,4 but we are also mindful of clear constraints imposed 

on this court by statute and our superior court. 

III 

The Petition for Extraordinary Relief in the Nature of a Writ of Error Coram 

Nobis is DENIED. 

 

3

 Where a petitioner is in custody, he or she can obtain relief through a writ of 

habeas corpus and, therefore, cannot establish that no remedy other than coram 

nobis is available. See Denedo I, 66 M.J. at 126 (noting that the petitioner in that 

case did not have habeas corpus available to him because he was not in custody). 

4 See generally Denedo I, 66 M.J. at 121–122 (stating that “courts within the military 

justice system should have an opportunity to consider challenges to court-martial 

proceedings prior to review by courts outside the military justice system”). 
GRAY—ARMY MISC 20110093 

4

 Judges COOK and BURTON concur. 

FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: