UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

Airman Basic STEVEN M. CHAPMAN
United States Air Force
, Petitioner

v.

UNITED STATES
, Respondent

Misc. Dkt. No. 2014

- 16

__ M.J. __

18 February 2016

Sentence adjudged 15 July 2002 by GCM convened at Cannon Air Force Base, New Mexico. Military Judge: Patrick M. Rosenow.

Approved sentence: Dishonorable discharge, confinement for life with the possibility of parole, forfeiture of all pay and allowances, and reduction to

E

- 1.

Before

MITCHELL, DUBRISKE

, and BROWN Appellate Military Judges

OPINION OF THE COURT

PUBLISHED DECISION

MITCHELL, Senior Judge:

P etitioner filed a petition for a writ of habeas corpus. We conclude we do not have jurisdiction for the writ of habeas corpus and deny the petition. Although we do have jurisdiction for a writ of error coram nobis, w e determine P etitioner has not met the threshold requirements and deny the writ

.

Background

Petitioner was convicted, contrary to his pleas, by a general court

- martial composed of officer members

, of attempted premeditated murder, rape, sodomy, andMisc. Dkt. No. 2014

- 16 2 burglary, in violation of Articles 80, 120, 125, and 129, UCMJ, 10 U.S.C. §§ 880, 920, 925, 929. The convening authority approved the a djudged sentence of a dishonorable discharge, confinement for life with the possibility of parole, forfeiture of all pay and allowances, and reduction to E

- 1. On 14 July 2006, we affirmed the findings and

sentence. U

nited States v. Chapman , ACM 35564 (A.F. Ct. Crim. App. 14 July 2006) (unpub. op). O ur superior court affirmed our decision in a summary disposition

. United
States v. C

hapman , 65 M.J. 289 (C.A.A.F. 2007) (mem.)

, cert

. denied , 552 U.S. 952 (2007). On 28 November 2007 , a final court

- martial order executed the dishonorable discharge. Consequently, there is a final judgment as to the legality of the proceedings and all portions of the sentence have been ordered executed under Article 71(c)(1), UCMJ, 10 U.S. C. § 871(c)(1)

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

.

Prior Writ Petitions to T his Court

In 2012, P etitioner filed a writ petition for extraordinary relief seeking the appointment of appellate counsel to represent him in filing a writ of habeas corpus

. W e do not have the authority under Article 70(c), UCMJ, 10 U.S.C. 870(c), to appoint appellate defense counsel ; the authority to appoint appellate defense counsel was vested with The Judge Advocate General. We denied the petition without prejudice to refiling. United States v. Chapman , misc. dkt. No. 2012

- 03 (A.F. Ct. Crim. App. 28 September 2012)

.

In 2013

, P etitioner filed another writ with this court. The writ was in two parts: a writ of mandamus seeking this court to requi re The Judge Advocate General to appoint appellate defense counsel for the purpose of filing writ petitions and a writ of habeas

corpus for failure of the military judge to sua sponte instruct on false confession and
ineffective assistance of co unsel durin g trial and appeal. We again denied the petition for the appointment of counsel without prejudice to P etitioner refiling with the assistance of his personally

- procured counsel. United States v. Chapman , misc. dkt. No. 2013

- 31 (A.F. Ct. Crim. App. 25 February 201 4 )

.

P etitioner has now filed a pro

- se writ of habeas corpus for failure of the military judge to sua sponte instruct on false confession and ineffective assistance of counsel

.

Writ of Habeas Corpus

The All Writs Act, 28 U.S.C. § 1651(a) , grants this court authority to issue extraordinary writs necessary or appropriate in aid of its jurisdiction

. Loving v. United
States , 62 M.J. 235, 246 (C.A.A.F. 2005) (citing Clinton v. Goldsmith , 526 U.S. 529, 534 (1999)). However, the Act does not e nlarge our jurisdiction

, and the writ must be in aid of our existing statutory jurisdiction. Clinton

, 526 U.S. at 534

– 35

. “The courts of criminal appeals are courts of limited jurisdiction, defined entirely by statute.”Misc. Dkt. No. 2014

- 16 3 United States v. Arness

, 74 M.J. 441

, 442 (C.A.A.F. 2015). Therefore

, the preliminary question is whether this court has jurisdiction to consider a writ petition from a petitioner
who se court

- martial conviction is final but is continuing to serve his term of confinement.
We conclude we do not have jurisdiction and deny the writ.

In Loving

, the petitioner had been sentenced to death but the sentence had not been approved by the President ; our superior court determined that the military courts had jurisdiction over habeas corpus petitions when there is a final judg ment as to the legality of the proceedings under Article 71(c)(1), UCMJ, but before the case is final under Article 76, UCMJ

. Loving, 62 M.J. at 2 46

. Implicit in this conclusion was that if the proceedings were final under Article 76, UCMJ, the military courts would not have jurisdiction. In the petition before us, direct review of P etitioner’s court

- martial was completed when the Supreme Court denied the cert iorari petition and was final shortly thereafter when the convening authority ordered the dishonorable discharge executed.

P etitioner’s court

- martial

, therefore

, has both a final judgment as to the legality of the proceedings under Article 71, UCM J, and is final under Article 76, UCMJ.

We agree with our sister service court that military courts do not have jurisdiction over habeas corpus petitions when a court

- martial has completed direct review under Article 71, UCMJ, and is final under Article 76, UCMJ. Gray v. Belcher , 70 M.J. 646

, 647 (A rmy Ct. Crim. App. 2012) ; see also United States v. Denedo , 556 U.S. 904, 9 20
n.1 (2009) (Roberts, C.J., dissenting) (noting that the Supreme Court has never questioned that Article 76, UCMJ, limits the jurisdiction of military courts). *

We find additional support for this conclusion in the Supreme Court’s rationale when they concluded that military court s ha ve jurisdiction over coram nobis petitio ns even after the proceedings are final under Article 76, UCMJ. Denedo , 556 U.S. at 916

– 17

. In doing so, they relied upon a coram nobis petition being an extension of the original proceeding. Denedo , at 9 12

– 13. Habeas corpus, conversely, is considered a separate civil case and record. See United States v. Morgan , 346 U.S. 502, 505 n .4 (1954). Consequently, a habeas corpus petition is not an extension of the direct appeal

, and the rationale in Denedo does not apply to extend jurisdiction beyond the fin ality of
Article 76 , UCMJ

.

Furthermore, the Supreme Court has stated that the federal district courts have jurisdiction over habeas corpus petitioners who are imprisoned as a result of court

- martial
convictions. “ The federal civil courts have jurisdicti on over such applications. By statute, Congress has charged them with the exercise of that power .” Burns v. Wilson , 346 U.S. 137, 139 (1953)

.

* The Navy

- Marine Corps Court of Criminal Appeals reached a different conclusion in Fisher v. Commander , 56 M.J. 691 (N

- M

. Ct. Crim. App. 2001). However, th at court relied on Dew v. United States , 48 M.J. 639 (Army Ct. Crim. App. 1998), which was repudiated in United States v. A rness , 74 M.J. 441, 443 (C.A.A.F. 2015). Because the underlying rationale has been rejected, we conclude Fisher is no longer persuasive authority on this issue.Misc. Dkt. No. 2014

- 16 4 Writ of Error Coram Nobis

Although framed by the pro

- se P etitioner as a writ of habeas corpus, we also
address whether we can consider the petition for a writ of error coram nobis. “The label placed on a petition for extraordinary relief is of little significance

. ” Nkosi v. Lowe, 38 M.J. 552, 553 (A.F.C.M.R. 1993)

.

Appellate military courts have jurisdiction ov er “ coram nobis petitions to consider allegations that an earlier judgment of conviction was flawed in a fundamental respect.”
Denedo , 556 U.S. at 917. The writ of coram nobis is an extraordinary writ and an extraordinary remedy. Id. It should not be granted in the ordinary case; rather, it should be granted only in extraordinary cases under circumstances compelling such action to achieve justice. Id. ; Morgan , 346 U.S. at 511; Correa

- Negron v. United States , 473 F.2d 684, 685 (5th C ir. 1973).

Although a petitioner may file a writ of coram nobis at any time, to be entitled to
the writ he must meet the fo llowing 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 v. United States , 66 M.J. 114, 126 (C.A.A.F. 2008 )

, aff’d and remanded

, 556 U.S. 904 (2009 )

.

This court uses a two

- tier approach to evaluate claims raised via a writ of coram nobis. First, the petitioner must meet the aforementioned threshold requirements for a
writ of coram nobis. Id. If the petitione r meets the threshold requirements

, his claims are then evaluated under the standards applicable to his issues. Id. Evaluating P etitioner’s case under the coram nobis threshold requirements, we find that P etitioner has failed to satisfy several threshold requirements

— the failure to meet any one alone warrants a
denial of P etitioner’s writ.

First, a writ of coram nobis is not the only remedy available as P etitioner may seek relief through a writ of habeas corpus in an Article III court. See Denedo , 556 U .S. at 9 11 ( “[ A ] n extraordinary remedy may not issue when alternative remedies, such a s habeas corpus, are available .” ) ; s ee also Loving v. United States , 68 M.J. 1, 26

– 27Misc. Dkt. No. 2014

- 16 5 (C.A.A.F. 2009) (Ryan, J. dissenting) (“[A] n Article III court could properly consid er a military prisoner ’ s habeas corpus petition and the All Writs Act does not allow this Court
to act in the fac e of another, specific statute.”)

. Additionally, P etitioner has not served his sentence; he was sentenced to confinement for life with the pos sibility of parole and
the sentence was affirmed. Chapman, unpub. op. at 1

. His own pleadings identify that
he is still confined

. Furthermore

, i n regards to the claim of error in the military judge’s instructions, P etitioner has not set forth valid reasons why he did not seek relief earlier. On direct appeal, P etitioner asserted several errors and an additional 13 errors pursuant to his rights under United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982 ). Chapman

, unpub. op. at 2

. P e titioner provides no explanation as to why the military judge’s failure to provide an instruction was not challenged during direct appeal.

Conclusion

This court does not have jurisdiction over habeas corpus petitions when there is a final judgment as to the legality of the proceedings and all portions of the sentence have been ordered executed under Article 71(c)(1), UCMJ, and the case is final under Article 76, UCMJ

. P etitioner has also not carried his burden to demonstrate that his case
presents extraordinary circumstances warranting issua nce of the writ of error coram

n obis. Accordingly, it is by the court on this 1 8th day of February 2016

,

ORDERED:

That the petition for extraordinary relief in the nature of a writ of habeas corpus
and writ o f error cora m nobis is hereby DENIED

.

FOR THE COURT

LEAH M. CALAHAN
Clerk of the Court