Mastropietro v. Nix

12 M.J. 759, 1981 CMR LEXIS 598

• Court: U.S. Army Court of Military Review
• Decided: November 23, 1981
• Docket: Misc. Docket No. 1981/1
• Status: Published

Opinion

OPINION OF THE COURT ON PETITION FOR EXTRAORDINARY ' RELIEF

PER CURIAM:

Petitioner asks this Court to direct his release from confinement at the United States Disciplinary Barracks and dismiss the charges against him because his record of trial by general court-martial has not reached this Court, five months after the convening authority took his action.

* Petitioner maintains he has been denied his “... right to timely proceedings in the appellate process ...” and that “[t]he relief sought cannot be obtained during the ordinary course of appellate review because the basis of this petition is the fact that appellate review has not commenced in a timely manner.”

Extraordinary relief, as the words indicate, is a special remedy to be exercised only in the unusual or exceptional case. It is not a substitute for an appeal and the petitioner must demonstrate that he will be unable to obtain adequate relief in the ordinary course of appellate review. West v. Samuel, 21 U.S.C.M.A. 290, 45 C.M.R. 64 (1972); Gale v. United States, 17 U.S.C.M.A. 40, 37 C.M.R. 304 (1967). In the instant case, the Petitioner has asserted that his right to timely appellate proceedings has been violated but he has not demonstrated how such a violation could not be remedied during the course of normal appellate review. Consideration of such an error is, in fact, appropriate during appellate review and it can be addressed at that time. United States v. Green, 4 M.J. 203 (C.M.A.1978); Rhoades v. Haynes, 22 U.S.C.M.A. 189, 46 C.M.R. 189 (1973).

The normal appellate review of Petitioner’s case before this Court should be initiated momentarily. The Court received a letter from the Assistant Staff Judge Advocate of the general court-martial jurisdiction concerned on the same day this petition was filed, explaining that the record of trial had been “misrouted to the Philadelphia Naval Brig.” The record had been returned to the convening authority and the command had mailed it to this Court on 3 November 1981.

Accordingly, the Petition for Extraordinary Relief is dismissed.

The general court-martial promulgating order attached to the petition indicates Petitioner pleaded guilty to possessing and selling heroin. He was sentenced on 13 March 1981 to a dishonorable discharge, confinement at hard labor for six years, and forfeiture of all pay and allowances. On 12 June 1981 the convening authority reduced the period of confinement to 18 months and approved the remainder of the sentence.