## UNITED STATES ARMY COUR T 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 20110093 1

For Petitioner: Co lonel Mark Tellitocci , JA; Captain Stephen J. Rueter, JA; Timothy P. Kane, Esq.; Shawn Nolan, Es q.; Billy H. Nolas, Esq. (on brief).

For Respondents: Colonel Michael E. Mulligan, JA; Ma jor Amber J. Williams, JA; Major Adam S. Kazin, JA (on brief).

26 January 2012

------------------------------------------------------------- OPINION OF THE COURT AND ACTION
ON PETITION FOR EXTRAORDINARY RELIEF
IN THE NATURE OF A WRIT OF CORAM NOBIS

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

JOHNSON, Senior Judge:

This is a petition for ex traordinary relief in the nature of a writ of coram nobis based on several alleged errors discovered af ter petitioner’s court-martial and appellate proceedings. We ho ld that petitioner cannot meet th e threshold cr iteria for
coram nobis review. Petitioner has other remedies av ailable to him as a matter of law, but not within the military justice system.

I

In 1988, petitioner was trie d by a general court-mar tial composed of officer and enlisted members. Contrary to hi s pleas, petitioner wa s convicted of the premeditated murder of Ms. KAR and Private LLV, as well as the atte mpted murder of Private MALN, in violat ion of Articles 118, and 80, Uniform Code of Military Justice, 10 U.S.C. §§ 918, and 880 (1982) [herei nafter UCMJ, 1 982]. Petitioner
was also convicted of rape (3 specifications ), robbery (2 specifi cations), 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 viol ation of Articles 120, 122, 125, 12 9, and 121, UCMJ, 1982, respectively. The conveni ng authority approved hi s sentence to death, a dishonorable discharge, total fo rfeitures and reduction to E1.

The petitioner’s conviction and sentence were affirmed by both the Army Court of Military Review, wh ich 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 pe titioner’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, th e United States District
Court for the District of Ka nsas granted a stay of ex ecution in anticipation of petitioner filing a petiti on for extraordinary re lief in the nature of a writ of habeas corpus. Thereafter, petitioner filed a writ of habeas corpus, wh ich is still pending
before that court.

On 11 February 2011, petitioner filed wi th this court the in stant petition for extraordinary relief in th e nature of a writ of coram nobis . We then ordered the government to show caus e 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. Pe titioner 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 Artic le 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 collatera l review under a writ of habeas

corpus. Loving v. United St ates (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. 81-4 91, at 35 (1949) (“Subject only to a petiti on for a writ of hab eas corpus in Federal court, [Article 76] provides for the finality of court-martial procee dings and judgment s”). 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 construe d to reach all forms of coll ateral review, their mutual holding is much more limi ted. Those cases extended collateral review beyond Article 76 only for writs of coram nobis

.GRAY—ARMY MISC 20110093

3 In the military just ice system, a petiti oner must satisfy several, stringent threshold requirements in order to obtain coram nobis relief:

(1) the alleged error is of the mo st fundamental ch aracter; (2) no remedy other than coram nobis is available to rectify the consequences of the error; (3) valid re asons exist for not seeking relief earlier; (4) the new information presented in th e petition could not have been discovered through the exercise of reasonable diligence prior to the original judgment; (5) the writ does not seek to reeval uate previously considered evidence or legal issu es; and (6) the sentence has been served, but the co nsequences of the errone ous 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 cann ot 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 pe titioner’s right to habeas corpus in the military justice system has ende d, this is not so for Article III courts. In fact, petitioner has filed a writ of habeas corp us in federal district court and the government does not dispute the jurisdiction al basis for doing so. The merits of petitioner’s claims are now fo r the federal district court, rather than this court, to
decide.

We are cogni zant of the preferen ce for military courts to hear issues potentially of first impression, 4 but we are also mindful of clear constraints imposed on this court by stat ute and our superior court.

III

The Petition for Extraordin ary Relief in the Nature of a Writ of Error Coram
Nobis is DENIED.

3 Where a petitioner is in cu stody, he or she can obtain relief through a writ of habeas corpus and, therefore, cannot establish th at no remedy other than coram nobis is available. See Denedo I , 66 M.J. at 126 (noting that the pe titioner in that case did not have habeas corpus availabl e to him because he was not in custody).

4 See generally Denedo I , 66 M.J. at 121–122 (s tating 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: