Krause v. United States

7 M.J. 427, 1979 CMA LEXIS 8913

• Court: United States Court of Military Appeals
• Decided: October 22, 1979
• Docket: No. 78-20; CMR 761257
• Status: Published

Opinions

Opinion of the Court

COOK, Judge:

In August 1976, for lack of good cause shown, this Court denied the applicant’s petition for grant of review of his conviction on two specifications of robbery. See Article 67(b), Uniform Code of Military Justice, 10 U.S.C. § 867(b). As a result, the sentence was ripe for execution. Article 71(c), UCMJ, 10 U.S.C. § 871(c). Execution was ordered in October 1976. Thereupon, the findings of guilty and the sentence were “final and conclusive.” Article 76, UCMJ, 10 U.S.C. § 876. A year later, the petitioner filed, in the Navy Court of Military Review, his present application for extraordinary relief, in the nature of coram nobis, contending that, at the time of his trial, he was not subject to court-martial jurisdiction because of improprieties in his enlistment.

No evidence of wrongdoing in the enlistment process, or any other jurisdictional defect appears in the record of trial. In this respect, the case is different from Gallagher v. United States, 22 U.S.C.M.A. 191 n. 1, 46 C.M.R. 191 (1973). It is manifest, therefore, that the Court of Military Review did not misapprehend, or fail to give proper consideration to, any material fact affecting the jurisdiction of the court-martial at the time of its review of the accused’s conviction. Consequently, the present petition fails to make out a case for coram nobis relief. In McPhail v. United States, 1 M.J. 457, 459 (C.M.A.1976), we said:

Under coram nobis, a court can remedy an earlier disposition of a case that is flawed because the court misperceived or improperly assessed a material fact. . No such error appears in the Court’s denial of the original petition for a writ of prohibition. . . . Consequently, there is no basis for coram nobis relief [in the present application for relief].

Plainly, what the petitioner wants is the reopening of his case so that he can present matter that he did not offer before his conviction became final. Aside from a petition for a new trial, which can be filed within 2 years after the convening authority’s approval of the sentence, military practice does not sanction reopening a case for introduction of additional evidence or issues.¹ See Article 73, UCMJ, 10 U.S.C. § 873. The petitioner’s situation, therefore, is different from the imposition of a challenge to jurisdiction during the course of a regular appeal. See paras. 67a and 68b, Manual for Courts-Martial, United States, 1969 (Revised edition). Moreover, nothing in the record indicates, and the petitioner does not contend, that, on the evidence before it, the trial court could not properly find him guilty and sentence him as it did. The petitioner may, perhaps, challenge the validity of his conviction in one or another of the collateral proceedings available to him in the civilian courts,² but he cannot seek to overturn his final conviction by the present proceeding, whatever name he may give to the relief he seeks. We, therefore, affirm the decision of the United States Navy Court of Military Review.

1 . In his separate opinion, Chief Judge Fletcher disagrees with my perception of the availability of coram nobis relief. However, my interpretation of the authorities cited at footnotes 2 and 3 of his separate opinion is consistent therewith. In Del Prado v. United States, 23 U.S.C.M.A. 132, 48 C.M.R. 748 (1974), the Court granted relief to an accused whose conviction had previously become final, within the meaning of Article 76, Uniform Code of Military Justice, 10 U.S.C. § 876. The Court observed that evidence of the circumstance that precluded court-martial jurisdiction was present in the record but “we failed to recognize the absence of jurisdiction.” Id. at 134, 48 C.M.R. at 750. The effect of this failure on our decision was explained by the following quotation from Gallagher v. United States, 22 U.S.C.M.A. 191, 194, 46 C.M.R. 191, 194 (1973):

[Ojur failure to note the absence of jurisdiction in petitioner’s case is legally indistinguishable from our failure to appreciate the significance of an assignment raising the issue.

In Hendrix v. Warden, 23 U.S.C.M.A. 227, 49 C.M.R. 146 (1974), the Court dismissed an application for habeas corpus after the conviction had become final. In its memorandum opinion, the Court noted that the petitioner contended that certain pretrial proceedings in connection with a psychiatric examination and the conduct of his counsel and the military judge deprived him of effective assistance of counsel and due process. In considering these factors, the Court made the following pertinent remarks:

Petitioner very candidly — and accurately— recognizes that the “errors raised (in his petition) have not been substantively raised in either Petitioner’s trial or his formal appellate hearings.” Moreover, he concedes that all appellate rights provided for by the Uniform Code have terminated. However, he predicates the relief sought solely on the basis that “[s]uch relief would be in the interest of this Court’s jurisdiction insofar as one of the overriding purposes of this Court is to assure every accused serviceman convicted by general court-martial a fair trial.”

As applied to the present petitioner, our jurisdiction under Article 67(b)(3), UCMJ, ended upon publication of the order of June 14, 1972, denying the petition for grant of review. The matters now brought forward by petitioner in this action cannot serve to revive that jurisdiction, and, necessarily, the relief sought is not, as 28 U.S.C. § 1651(a) requires, “in aid of the exercise of our jurisdiction.” United States v. Snyder, . [18 U.S.C.M.A. 480 (1969)], at 483, 40 CMR at 192. See also Allen v. United States, . [21 U.S.C.M.A. 288, 45 C.M.R. 62 (1972)], note 4.

[Footnote omitted.]

Id. at 228, 49 C.M.R. at 147. Finally, the Court in Allen v. United States, 21 U.S.C.M.A. 288, 45 C.M.R. 62 (1972), cited Article 76, UCMJ, in denying a Petition for Extraordinary Relief where the petitioner asserted a lack of jurisdiction.

2 . Augenblick v. United States, 377 F.2d 586, 180 Ct.Cl. 131 (1967), rev’d. on other grounds, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969) (action in the Court of Claims); Noyd v. Bond, 395 U.S. 683, 89 S.Ct. 1876, 23 L.Ed.2d 631 (1969); O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969) (habeas corpus proceeding initiated in U. S. District Court); Homcy v. Resor, 147 U.S.App.D.C. 277, 455 F.2d 1345 (D.C.Cir.1971) (declaratory judgment proceeding to declare invalidity of the conviction and for related relief.)