United States v. Diggs, 200300527

Background

In July 2001 petitioner pleaded guilty (pursuant to a PTA) to two specifications of indecent assault (Art. 134) and one specification of assault (Art. 128); sentenced to BCD, confinement, forfeitures, and reduction.
On direct appeal the court set aside the simple assault guilty finding but affirmed the indecent assault convictions and some sentence components; convictions became final in 2005.
At trial the parties and the MCM (2000 ed.) treated indecent assault as a lesser‑included offense (LIO) of rape, and the petitioner pleaded to the LIO in exchange for plea benefits.
In 2010 CAAF decided United States v. Jones, adopting an elements test for LIOs; shortly thereafter Burleson held indecent assault is not an LIO of rape under that test.
Petitioner filed a coram nobis petition arguing Jones should apply retroactively, his indecent assault pleas were improvident because indecent assault is not an LIO of rape, and convictions should be set aside and converted to assault by battery (Art. 128).
The court denied coram nobis relief, finding petitioner failed to meet the stringent requirements for extraordinary relief and that Jones announced a procedural change that did not warrant retroactive relief here.

Issues

Issue	Petitioner’s Argument	Government’s Argument	Held
Whether Jones should be applied retroactively to invalidate pleas to indecent assault that were accepted pre‑Jones	Jones creates the elements test; because indecent assault is not an LIO of rape under Jones, Diggs pleas were improvident and must be set aside	Jones announced a procedural rule, not substantive; retroactive application is inappropriate and petitioner received adequate notice and plea benefits	Denied — Jones is procedural and not retroactive here
Whether the acceptance of pleas to a non‑Jones LIO is a structural or fundamental error requiring coram nobis	Plea to non‑LIO is fundamentally defective and undermines voluntariness	No structural error; providence inquiry and PTA show plea was knowing, voluntary, and benefited petitioner	Denied — no structural error or prejudice; plea stands
Whether extraordinary coram nobis relief is available when new case law would change LIO status after finality	New legal development (Jones) qualifies as new factual/legal basis warranting coram nobis	Coram nobis requires exceptional circumstances and six threshold showings petitioner cannot meet	Denied — petitioner failed to show a clear and indisputable right to relief
Whether petitioner lacked notice of the offense he pleaded to because parties incorrectly believed indecent assault was an LIO	Lack of LIO status meant petitioner pleaded to an offense he did not understand	Trial record (providence inquiry, PTA, meeting of the minds) provided sufficient notice of the elements and the legal theory of the plea	Denied — providence inquiry and plea colloquy provided sufficient notice

Key Cases Cited

United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) (adopts elements test for lesser‑included offenses)
United States v. Burleson, 69 M.J. 165 (C.A.A.F. 2010) (applies Jones to hold indecent assault is not an LIO of rape)
United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012) (pre‑Jones providence inquiry can suffice to confirm plea knowing and voluntary)
United States v. McMurrin, 70 M.J. 15 (C.A.A.F. 2011) (defines structural error and when it undermines trial framework)
Denedo v. United States, 556 U.S. 904 (2009) (recognizes coram nobis jurisdiction to correct fundamental errors)
Bousley v. United States, 523 U.S. 614 (1998) (retroactivity limits: new rules substantive vs. procedural)
Schriro v. Summerlin, 542 U.S. 348 (2004) (procedural changes generally not retroactive unless affecting fundamental fairness)
Morgan v. United States, 346 U.S. 502 (1954) (coram nobis available only for errors of the most fundamental character)