Lucas v. United States

19 C.M.A. 625

• Court: United States Court of Military Appeals
• Decided: January 16, 1970
• Docket: No. 70-5
• Status: Published

Opinion

On consideration of the “Affidavit of Indigence Requesting Leave to Appeal in Forma Pauperis”, construed by the Court as a Motion for Appropriate Relief, the following appears:

On October 14, 1952, petitioner was convicted by special court-martial of assault with a dangerous weapon and of wrongful discharge of a firearm, violations respectively of Articles 128 and 134, Uniform Code of Military Justice, 10 USC §§ 928 and 934, allegedly committed in Japan. He was sentenced to confinement at hard labor for six months, with partial forfeitures for a like period.

By his present application petitioner seeks review of his conviction by this Court, alleging he was heretofore denied an impartial review because of his inability to produce sufficient documentation of his contention. He does not identify the tribunal which he alleges denied impartial review.

Article 67, Uniform Code, supra, 10 USC § 867, empowers this Court to review the record of a court-martial in three categories of cases:

“. . . (1) all cases in which the sentence as affirmed by a Court of Military Review, affects a general or flag officer or extends to death;

(2) all cases reviewed by a Court of Military Review which the Judge Advocate General orders sent to the Court of Military Appeals for review; and

(3) all cases reviewed by a Court of Military Review in which, upon petition of the accused and on good cause shown, the Court of Military Appeals has granted a review.”

In view of the sentence imposed and the type of court-martial which imposed it, the record of trial in petitioner’s case was not reviewable by a Court of Military Review (then a Board of Review), nor was it reviewable by this Court. Action by the Officer Exercising General Court-martial Jurisdiction terminated the appellate processes. Under these circumstances, resort to the special powers conferred by the All Writs Act, 28 USC § 1651, may not be had. United States v Snyder, 18 USCMA 480, 40 CMR 192.

Accordingly, it is, by the Court, this 16th day of January, 1970,

ORDERED:

That said Motion be, and the same hereby is, dismissed for lack of jurisdiction.