Davis v. United States

35 M.J. 640, 1992 CMR LEXIS 645, 1992 WL 197382

• Court: U.S. Army Court of Military Review
• Decided: August 11, 1992
• Docket: ACMR MISC 9201338
• Status: Published

Opinions

OPINION OF THE COURT ON PETITION FOR EXTRAORDINARY RELIEF

De GIULIO, Senior Judge:

Petitioner was tried by a military judge sitting as a general court-martial. Pursuant to his pleas, he was found guilty of wrongful distribution and use of hashish, in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a [hereinafter UCMJ], He was sentenced to one month confinement, a reprimand, and reduction to Private E-l. The convening authority approved the sentence. As required by law, Petitioner’s case was reviewed under the provisions of Article 69(a), UCMJ, 10 U.S.C. § 869(a), and was found legally sufficient. Petitioner now asks this court for extraordinary relief to “vacate the findings, dismiss the charges and overturn the conviction.”

At petitioner’s trial, an issue of command influence was litigated. After hearing evidence on the issue, the military judge found no unlawful command influence and denied the motion. Petitioner’s request for extraordinary relief is based upon this issue. After receiving the petition, this Court specified the issue of whether this Court has jurisdiction to entertain the petition.¹ We conclude that we have jurisdiction but deny the requested relief.

In Littleton v. Persons, 7 MJ. 582 (A.C.M.R.1979), this Court held that it had no jurisdiction under the All Writs Act² to review a general court-martial which was reviewed under Article 69(a), UCMJ. Later, in determining “whether either the Court of Military Review or [the Court of Military Appeals] has jurisdiction to entertain [a] petition for extraordinary relief” in a special court-martial not qualifying for review under Article 66(b), UCMJ, the Court of Military Appeals held that it had jurisdiction. Unger v. Ziemniak, 27 M.J. 349, 351 (C.M.A.1989). The Court stated:

Our power to grant extraordinary relief in [these cases] allows the accused to obtain judicial review of constitutional claims without being required to undertake expensive collateral attack in the Article III courts. Availability of extraordinary judicial relief within the military justice system reinforces ‘the “integrated” nature of the military court system,’ see McPhail v. United States, 1 M.J. 457 at 462 (C.M.A.1976),____

Unger, 27 M.J. at 354. This same reasonjng appiies to this Court. We hold that we have jurisdiction to entertain the petition for extraordinary relief in the case before us.³

Having found jurisdiction to entertain the petition, we do not believe it should be exercised in this case. See Unger, 27 M.J. at 355 and 359 (Cox J., concurring). At trial the military judge heard evidence on the motion and made extensive findings of fact. He concluded that unlawful command influence did not affect petitioner’s case and denied the motion. We find no reason to disturb his ruling.

The Petition for Extraordinary Relief is dismissed.

Judge HAESSIG concurs.

1 . Article 66(b), UCMJ, 10 U.S.C. § 866(b), provides:

The Judge Advocate General shall refer to a Court of Military Review the record in each of trial by court-martial—

(1) in which the sentence, as approved, extends to death, dismissal of a commissioned officer, cadet, or midshipman, dishonorable or bad-conduct discharge, or confinement for one year or more; and

(2) except in the case of a sentence extending to death, the right to appellate review has not been waived or an appeal has not been withdrawn under section 861 of this title (article 61).

In the Army, other cases are reviewed in the Office of the Judge Advocate General by the Examinations and New Trials Division under the provisions of Article 69, UCMJ. Article 69(a) provides:

The record of trial in each general court-martial that is not otherwise reviewed under section 866 of this title (article 66) shall be examined in the office of the Judge Advocate General if there is a finding of guilty and the accused does not waive or withdraw his right to appellate review section 861 of this title (article 61)____

Article 69(b) provides for review of courts-martial not otherwise reviewed under Articles 66 and 69 upon application of the accused. Article 69(d) provides that the Court of Military Review may review cases reviewed under Article 66(a) and (b) when sent to the Court by the Judge Advocate General.

2 . 28 U.S.C. § 1651.

3 . Our concurring brother would impose limits on our jurisdiction to entertaining writs for extraordinary relief. In Unger the Court of Military Appeals interpreted its power to order extraordinary relief by stating that “Congress never intended that this Court sit by helplessly while courts-martial are misused in disregard of an accused servicemember’s rights under the Constitution or the Uniform Code." 27 M.J. at 355 (emphasis added). That language would apparently cover any prejudicial error. Although we believe that Unger overruled Littleton and that series of cases, we need not determine the outer limits of our jurisdiction to dispose of the case now before us. We leave that task for future cases.