Lead Opinion
Aрpellant filed a petition for extraordinary relief with the United States Navy-Marine Corps Court of Criminal Appeals. The court considered his petition and denied relief. Denedo v. United States, No. NMCCA 9900680 (N.M.Ct.Crim.App. Mar. 26, 2007). Appellant then filed the present appeal.
For a writ appeal, we consider the record developed at trial and on direct appeal. We also consider the materials filed by the parties in the course of the writ proceedings at the Court of Criminal Appeals and the appeal to our Court. Based on the foregoing, we consider whether a decision on the writ appeal can be reached on the record before us, or whether a more fully developed factual record is required prior to reaching a decision on the merits. See Section III.C.2., infra.
The Government contends that the Court of Criminal Appeals erred by not dismissing the petition on jurisdictional grounds, while Appellant contends that the court erred by not granting relief. Appellant challenges his court-martial conviction, asserting that his plea was not knowing or voluntary. Appellant contends that he expressly requested guidance of counsel on the immigration impact of his plea, that the advice provided by his attorney was defective, and that he relied upon ineffective assistance of counsel to his detriment in pleading guilty. He further asserts that the defect in counsel’s advice was not known to him and could not have been known to him until eight years after conviction when the United States Citizenship and Immigration Services (USCIS) first sought to deport him based on his court-martial conviction. Although judicial review of immigration proceedings, including any use therein of a court-martial conviction, is outside the jurisdiction of this Cоurt, the providence of a guilty plea at a court-martial is subject to our review. See Section III.B., infra.
For the reasons set forth below, we conclude that the Court of Criminal Appeals properly rejected the Government’s motion to dismiss. We further conclude that a more
Section I of this opinion outlines the procedural history of the present case. Section II discusses collateral review under the All Writs Act. Section III addresses Appellant’s request for relief.
I. PROCEDURAL HISTORY
Appellant, who was born in Nigeria, came to the United States in 1984. He enlisted in the Navy in 1989 and became a lawful permanent resident in 1990.
In 1998, the Government charged Appellant with conspiracy, larceny, and forgery, alleging that he assisted a civilian acquaintance in defrauding a community college. See Articles 81, 121, 123, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 921, 923 (2000). Appellant, who was represented by civilian counsel and detailed military counsel, entered into a pretrial agreement with the convening authority. In exchange for Appellant’s agreement to enter a guilty plea, the convening authority agreed to reduce the charges. The convening authority also agreed to refer the case to a special court-martial, which, at that time, could not impose a sentence of confinement in excess of six months. See Article 19, UCMJ, 10 U.S.C. § 819 (1994), amended by National Defense Authorization Act for Fiscal Year 2000, Pub.L. No. 106-65, § 577, 113 Stat. 512, 625 (1999) (prospectively providing a twelve-month maximum for periods of confinement adjudged by special courts-martial).
Pursuant to the pretrial agreement, Appellant entered a plea of guilty at a special court-martial composed of a military judge sitting alone. In accordance with applicable law, the military judge conducted an inquiry into the providence of the plea. See Article 45, UCMJ, 10 U.S.C. § 845 (2000); Rule for Courts-Martial (R.C.M.) 910; United States v. Care,
On October 30, 2006, the Government, through USCIS, initiated proceedings to deport Appellant, citing his 1998 special court-martial conviction.
At the Court of Criminal Appeals, the Government filed a motion to dismiss on the grounds that the court lacked jurisdiction to consider the writ. The Court of Criminal
Appellant filed a writ appeal with this Court. The Government, in response, reiterated its jurisdictional objection. In addition, the Government contended that Appellant had been provided with the effective assistance of counsel at his court-martial.
II. COLLATERAL REVIEW
A. BACKGROUND
In a court-martial of the type at issue in the present case, the findings and sentence approved by the convening authority are subject to direct review by the Court of Criminal Appeals of the military department concerned. Article 66(b), UCMJ, 10 U.S.C. § 866(b) (2000); cf. Article 69, UCMJ, 10 U.S.C. § 869 (2000) (providing for review of other courts-martial in the Office of the Judge Advocate General). In addition to issues of law, the scope of review at the Court of Criminal Appeals extends to factual sufficiency and sentence appropriateness. See Article 66(c), UCMJ. The decisions of the Court of Criminal Appeals are subject to direct review in this Court on issues of law. Article 67(a), (c), UCMJ, 10 U.S.C. § 867(a), (c) (2000). Cases in which we have granted review or have otherwise provided relief are subject to direct review in the Supreme Court by writ of certiorari. Article 67a, UCMJ, 10 U.S.C. § 867a (2000); 28 U.S.C. § 1259 (2000).
A judgment as to the legality of the proceedings becomes final upon the completion of direct review by the Court of Criminal Appeals and (1) expiration of the time for filing a petition for review with this Court without such a filing (and without the case otherwise being under review at this Court); (2) rejection of a petition for review by this Court; or (3) completion of review by this Court, subject to requirements regarding potential review by the Supreme Court. Article 71(c)(1), UCMJ, 10 U.S.C. § 871(c)(1) (2000). In addition, various forms of executive action are required before the results of a court-martial become final. See Article 71(a), (b), (c)(2), UCMJ. Once such action is taken, Article 76, UCMJ, 10 U.S.C. § 876 (2000), provides, in pertinent part, that “[ojrders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States,” subject to certain explicit exceptions.
The results of courts-martial are subject to collateral review by courts outside the military justice system. See, e.g., Burns v. Wilson,
Appellant has requested collateral review under the All Writs Act, which provides that “all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). The Act requires two separate determinations: first, whether the requested writ is “in aid of’ a court’s jurisdiction; and second, whether the requested writ is “necessary or appropriate.”
B. COLLATERAL REVIEW IN AID OF THE JURISDICTION OF THE COURTS OF CRIMINAL APPEALS
As the Supreme Court observed in Clinton v. Goldsmith,
When courts within the military justice system lack subject matter jurisdiction over an action, such as an administrative separation, they cannot invoke the All Writs Act to enlarge their jurisdiction to review the administrative action, even if it is based upon the results of a court-martial. Id. (noting that “Goldsmith’s court-martial sentence has not been changed; another military agency has simply taken independent action”). However, when a petitioner seeks collateral relief to modify an action that was taken within the subject matter jurisdiction of the military justice system, such as the findings or sentence of a court-martial, a writ that is necessary or appropriate may be issued under the All Writs Act “in aid of’ the court’s existing jurisdiction. Loving,
The existing statutory jurisdiction of the Navy-Marine Corps Court of Criminal Appeals includes cases such as Appellant’s, in which the sentence extends to a punitive discharge. Article 66(b), UCMJ. On direct appeal, the Court of Criminal Appeals conducts a de novo review of the findings and sentence approved by the convening authority. Article 66(e), UCMJ (providing for review of matters of fact and law, as well as sentence appropriateness). Appellant’s request for coram nobis relief is limited to the findings and sentence of the court-martial reviewed by the Court of Criminal Appeals. He has raised a claim — ineffective assistance of counsel — that goes directly to the validity and integrity of the judgment rendered and affirmed. As such, the petition was “in aid of’ the existing jurisdiction of the Court of Criminal Appeals.
C. ARTICLE 76 AND COLLATERAL REVIEW
As noted in Section II.A,, supra, Article 76 addresses the completion of direct review, including executive action. Article 76 provides in pertinent part:
The appellate review of records of trial provided by this chapter, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this chapter, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by this chapter, are final and conclusive. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States, subject only to action upon a petition for a new trial as provided in section 873 of this title (article 73) and to action by the Secretary concerned as provided in section 874 of this title (article 74), and the authority of the President.
In Schlesinger,
Similar considerations apply to the application of Article 76 within the military justice system. Although Schlesinger involved a collateral challenge to a pending court-martial in an Article III court, the Supreme Court’s analysis of the relationship between Article 76 and collateral review spe
D. THE AVAILABILITY OF OTHER REMEDIES AS A LIMITATION ON RELIEF UNDER THE ALL WRITS ACT
Because the All Writs Act serves as a residual authority, a writ is not “necessary or appropriate” under the statute if another adequate legal remedy is available. See Loving, 62 M.J at 247, 253-54 (discussing Carlisle v. United States,
In view of the potential for collateral review by courts outside the military justice system, see Section II.A., supra, the question arises as to whether the availability of such review renders review of a coram nobis petition by the Court of Criminal Appeals unnecessary or inappropriate. In Loving, we observed that Article III courts would be unlikely to exercise jurisdiction over petitions for extraordinary relief during the period between completion of final legal review under Article 71(c) and finality of proceedings on direct review under Article 76 because of doctrines such as exhaustion and abstention, reflecting the primary role of courts within the military justice system in reviewing challenges to courts-martial.
1. Constraints on collateral review by courts outside the military justice system
The power of courts outside the military justice system to engage in post-Article 76 collateral review is subject to constraints on the exercise of that power. See Loving,
a. Exhaustion of remedies
Under the exhaustion of remedies doctrine, courts outside the military justice system normally refrain from collateral review of courts-martial until all available military remedies are exhausted. The doctrine reflects the Supreme Court’s view of the pivotal role assigned by Congress to the courts in the military justice system. As the Court stated in Schlesinger, Congress enacted the UCMJ under its power to regulate the armed forces in an effort “to balance ... military necessities against the equally significant interest of ensuring fairness to servicemen charged with military offenses, and to formulate a mechanism by which these often competing interests can be adjusted.”
The Supreme Court further observed that “implicit in the congressional scheme embodied in the Code is the view that the military court system generally is adequate to and responsibly will perform its assigned task.” Id. Underscoring the need for other courts to refrain from review until all military remedies have been exhausted, the Court stated “[w]e think this congressional judgment must be respected and that it must be assumed that the military court system will vindicate servicemen’s constitutional rights.” Id.
As a general matter, courts outside the military justice system “will not entertain habeas petitions by military prisoners until all available military remedies have been exhausted.” Id. The exhaustion requirement is prudential rather than jurisdictional, and the Supreme Court did not preclude the possibility that the circumstances of a particular case might warrant consideration of a habeas petition by an Article III court prior to exhaustion. Id. at 761,
b. Full and fair consideration
Even when remedies have been exhausted, the scope of collateral review outside the military justice system is constrained by the requirement to consider whether the military justice system has given full and fair consideration to the claims at issue. Burns,
2. The relationship between courts within and outside the military justice system with respect to collateral review
As previously described, courts within the military justice system conduct extraordinary writ review of courts-martial at a variety of stages, including after completion of direct review under Article 76. Although not prohibited from undertaking collateral review at the post-Article 76 stage without considering the availability of relief within the military justice system, a number of Article III courts have deferred action because of, or otherwise have taken into account, the availability of
In Frischholz,
When Frischholz followed the district court’s suggestion and filed a petition for a writ of error coram nobis with this Court, the government changed its position, contending that the case was outside this Court’s statutory jurisdiction under Article 67, and that we could not review a case after it became final under Article 76, UCMJ. See id. at 151,
The Supreme Court subsequently cited with approval the conclusion in Frischholz that Article 76 does not bar “subsequent attack in an appropriate forum” and that “[a]t best it provides finality only as to interpretations of military law” by this Court. See Schlesinger,
In Del Prado v. United States,
More recently, a number of federal district courts have continued to rely upon the availability of collateral review in the military justice system to dispose of petitions seeking collateral relief. See, e.g., Tatum v. United States, No. RDB-06-2307,
The foregoing cases illustrate the care taken by Article III courts to ensure that an issue has been considered by the courts within the military justice system established by Congress prior to outside collateral review. These cases reflect the Supreme Court’s recognition that the military is an institution with distinct traditions and disciplinary concerns, and that Congress has given the military justice system a particular role to play in the maintenance of the traditions and discipline essential to the national defense, as balanced against the individual rights of servieemembers. See Section II.D.l., supra. Particularly where a collateral challenge requires interpretation of the UCMJ, the Manual for Courts-Martial, or military law pree
3. Requirement to bring a coram nobis petition before the court that rendered the judgment
The likelihood that outside courts will defer taking action on a coram nobis petition pending consideration within the military justice system is increased by the well-recognized principle that a writ of error co-ram nobis should be brought before the court that rendered the judgment. See Loving,
In the military justice system, the trial court — the court-martial — does not have independent jurisdiction over a case after the military judge authenticates the record and the convening authority forwards the record after taking action. See R.C.M. 1102(d); R.C.M. 1107(f)(2); United States v. DuBay,
In that context, the Courts of Criminal Appeals, the first-level standing courts in the military justice system, provide an appropriate forum for consideration of coram nobis petitions regarding courts-martial. During the initial consideration of a case, such as the case now before us, they engage in de novo consideration of the record and expressly act on the findings and sentence. Article 66(c), UCMJ. With respect to collateral review of the present case, they are well-positioned to determine whether corrective action on the findings and sentence is warranted, including ordering any factfinding proceedings that may be necessary.
The Courts of Criminal Appeals have the authority, expertise, and case-specific knowledge appropriate to conduct the initial review of eoram nobis petitions, particularly in view of the principle that coram nobis petitions should be brought before the court that rendered the judgment. An Article III court, when asked to consider a court-martial conviction on an issue that has not been fully and fairly reviewed within the military justice system and has not been defaulted procedurally, is likely to defer action pending review by the court that approved the conviction. The sequence of review — collateral review in the military justice system prior to review by the Article III courts — reflects adherence to the concept that the primary responsibility for addressing challenges to courts-martial resides with the courts in the military justice system established by Congress.
Our conclusion — that the Court of Criminal Appeals provides an appropriate forum for coram nobis review — takes into account that the present case does not involve the propriety of jurisdiction to convene a court-martial. The present case involves the jurisdiction tо review a case properly referred to a court-martial, unlike, for example, United States ex rel. Toth v. Quarles,
The Court of Criminal Appeals did not err by reviewing Appellant’s petition under the All Writs Act. We consider next whether Appellant’s petition meets the criteria for issuance of a writ of error coram nobis.
III. CORAM NOBIS
A writ of error coram nobis requests the court that imposed the judgment to consider exceptional circumstances, such as new facts or legal developments, that may change the result. See Loving,
Subsection A discusses the limitations on issuance of a coram nobis writ. Subsection B addresses the application of the threshold limitations to the circumstances of the present appeal. Subsection C considers whether a writ of error coram nobis is necessary or appropriate with respect to Appellant’s claim that he was denied his constitutional right to the effective assistance of counsel.
A. LIMITATIONS ON THE AVAILABILITY OF CORAM NOBIS
The Supreme Court, in Morgan,
This Court has not previously identified the standards applicable to review of an ineffective assistance of counsel claim raised via a coram nobis petition. At a minimum, such standards must ensure that relief is limited to circumstances in which the requested writ is ‘“necessary or appropriate’ within the meaning of the All Writs Act.” Loving v. United States,
B. APPLICATION OF THE CORAM NOBIS THRESHOLD CRITERIA
Appellant’s writ petition meets the threshold criteria for coram nobis review. First, the alleged error, denial of the Sixth Amendment right to the effective assistance of counsel, is of the most fundamental character. See, e.g., Kwan,
Second, there is no other adequate remedy, other than consideration of coram nobis by the Navy-Marine Corps Court of Criminal Appeals, to rectify the consequences of the alleged error. Appellant is not in custody, so he cannot obtain relief through a writ of habeas corpus. Morgan,
Third, valid reasons exist for not seeking relief earlier. Apрellant’s claim is that his counsel misinformed him as to the immigration consequences of his guilty plea and that avoiding deportation was the primary motivation for his guilty plea. His conviction became final when it was affirmed by the Court of Criminal Appeals on February 24, 2000, because Appellant did not seek further review. However, the immigration consequences did not become known to him until the Government initiated deportation proceedings in 2006 and Appellant sought coram nobis relief at the lower court within a few months of being notified of those proceedings.
Fourth, the new information (the immigration consequences) could not have been discovered through the exercise of reasonable diligence prior to the original judgment. Appellant retained civilian counsel to represent his interests in the court-martial proceedings. Assuming, for purposes of the threshold inquiry that his unrebutted allegations are true, he exercised reasonable diligence by retaining counsel, calling counsel’s attention to his concern about immigration consequences, and relying on counsel’s advice assuring him that he would not be deported on the basis of a special court-martial conviction.
Fifth, the writ does not seek to reevaluate previously considered evidence or legal issues. The appellate proceedings on direct review did not consider whether Appellant’s plea was compromised by misleading advice from counsel.
Sixth, the sentence has been served, but serious consequences persist. The Government, through USCIS, has initiated deportation proceedings that rely primarily on Appellant’s court-martial conviction as the basis for deportation.
The thrеshold criteria establish eligibility for review, not the propriety of the requested writ. We consider next whether the court below erred in denying relief with respect to Appellant’s ineffective assistance of counsel claim.
C. INEFFECTIVE ASSISTANCE OF COUNSEL
1. Applicable standards
A military accused is entitled under the Constitution and Article 27(b), UCMJ, 10 U.S.C. § 827(b) (2000), to the effective assistance of counsel. United States v. Scott,
The burden of establishing the truth of factual matters relevant to the claim of ineffective assistance rests with the accused. See United States v. Polk,
2. Appellant’s Claim of Ineffective Assistance of Counsel
Appellant’s Sixth Amendment claim focuses on the advice he received from counsel prior to trial regarding the deportation consequences of a guilty plea. The declaration accompanying Appellant’s coram nobis petition states that: (1) he retained Mr. C as civilian counsel to represent him at his court-martial in 1998; (2) he told Mr. C that he was a permanent resident alien who had been living in the United States for fourteen years, that he intended to remain indefinitely, that his primary concern was to avoid the risk of deportation, and that he was more concerned about deportation and separation from his family than the risk of going to jail; (3) Mr. C advised Appellant that if he contested the charges, he would likely face a general court-martial, and that an acquittal would avoid deportation consequences; but a conviction at a general court-martial would constitute a felony that could be used as a basis for deportation; (4) Mr. C further advised him that a special court-martial would constitute a misdemeanor and could not be used as a basis for deportation; (5) Appellant entered into a pretrial agreement that provided for referral of charges to a special court-martial; and (6) Mr. C advised him of the specific words that he would have to use in the plea colloquy to ensure that the military judge did not reject the plea.
With respect to Appellant’s plea, we note that there are specialized requirements for a guilty plea in the military justice system. See Article 45, UCMJ. The military judge must engage in a specific dialogue with the accused, in which the accused addresses the voluntariness of the plea, describes the factual basis for guilt, and demonstrates an understanding of any pretrial agreement. R.C.M. 910(d)-(f). The record reflects that Appellant had considerable difficulty in acknowledging guilt during the military judge’s pleа inquiry. The inquiry in Appellant’s case extended over a two-day period before the military judge finally accepted the plea.
Appellant was convicted, served his time in confinement, and returned to civilian life. On two occasions, he applied to the Immigration and Naturalization Service for naturalization. On both occasions, his application was rejected, citing his court-martial conviction. Each time, however, he was informed that the rejection was based on conduct within the five-year period prior to his application and was “without prejudice” to a future application. In neither instance did the Government suggest that he would face deportation.
In late 2006, however, six years after his conviction was affirmed on direct appeal, the Government initiated deportation proceedings against him. The deportation charges filed on October 30, 2006 and April 12, 2007 are based on his 1998 conviction by special court-martial.
Appellant’s declaration states that Mr. C’s advice regarding deportation consequences was the “decisive factor” in his decision to plead guilty, and that he would have insisted on going to trial had he been advised that a guilty plea could have resulted in deportation. Appellant contends that the deportation proceedings demonstrate that his counsel was ineffective because the very consequence that counsel assured him could be avoided by a guilty plea at a special court-martial is now being pursued by the Government.
To show prejudice from ineffective assistance of counsel in a guilty plea ease, an accused must show “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill,
Appellant, noting that the Government has not rebutted his declaration, asserts that we should treat the matters stated therein as accurate and decide the legal issue of whether his counsel was ineffective. See Ginn,
The court below should not have dismissed Appellant’s petition without obtaining and assessing such information. The matter set forth in Appellant’s declaration, if true, warranted consideration under Strickland, particularly in light of other aspects of the trial and appellate record, including the nature of the providence inquiry, Appellant’s apparent belief that he could apply for naturalization without facing deportation consequences, and the subsequent deportation proceedings. Until the Government is required to respond on the merits, however, it would be inappropriate to render a judgment on the merits of his petition. At this stage, Appellant’s petition facially establishes a sufficient basis for coram nobis review, but a ruling on his petition would be premature without a Government response, consideration by the Court of Criminal Appeals as to whether counsel’s performance was deficient and, if so, whether Appellant was prejudiced thereby. See United States v. Castro,
IV. DECISION
Accordingly, we rеmand Appellant’s petition to the United States Navy-Marine Corps Court of Criminal Appeals for further proceedings, where the Government will have the opportunity to obtain affidavits from defense counsel and submit such other matter as the court deems pertinent. The Court of Criminal Appeals will then determine whether the merits of Appellant’s petition can be resolved on the basis of the written submissions, or whether a factfinding hearing is required under United States v. DuBay,
Notes
. During the present writ appeal, USCIS filed an additional deportation charge, also based upon Appellant’s special court-martial conviction.
. Several Article III courts, citing Murphy, have noted the unavailability of collateral review at the trial court as a reason for concluding that court-martial convictions may not be reviewed under 28 U.S.C. § 2255 (providing for collateral review by "the court which imposed the sentence”). Witham v. United States,
Dissenting Opinion
(dissenting):
I find myself in agreement with many of the points made by Judge Ryan in her able and scholarly dissenting opinion. I consider it established that we have coram nobis jurisdiction in cases in which the jurisdiction of the court-martial is at issue. The extent of our jurisdiction beyond this very limited area is questionable. However, even assuming that we have such jurisdiction, this is not a proper case for coram nobis relief. I would, therefore, deny the petition and do not find it necessary now to determine the extent, if any, of our jurisdiction beyond the circumscribed area set out above. See, e.g., United States v. Tavares,
The majority opinion cites United States v. Frischholz,
In Del Prado v. United States,
While I consider our authority to grant the requested relief questionable, I need not reach that issue here, because Appellant has not made out a case for relief on the merits. This is not a case in which there existed any fundamental jurisdictional impediment to Appellant’s original trial by court-martial, and indeed none is alleged. Rather, what we have here is a case, like many others, in which the complaint is ineffective assistance of counsel. Moreover, the claim of ineffective assistance relates not to the conduct, findings, or sentence of the court-martial, but purely to a collateral consequence thereof.
Appellant asserts that his primary concern in his court-martial was avoiding deportation; that he was erroneously advised by his civilian counsel that a conviction by a special court-martial would not subject him to deportation, but a conviction by a general court-martial would; that he was advised that the Government would take the case to a general court-martial unless he pled guilty; that, in reliance upon this advice, he pled guilty before a special court-martial; that eight years later, the Department of Homeland Security initiated deportation proceedings against him on the basis of the conviction; and that, had he known of the possibility of deportation, he would have pled not guilty and taken his chances with the general court-martial.
Assuming, without deciding, that Appellant’s counsel incorrectly advised him as to the state of the law, this alone does not entitle him to coram nobis relief. Deportation is not only a collateral consequence of a court-martial conviction, but a consequence entirely outside the purview of the armed forces and the system of military justice. As a general rule, this Court has concerned itself with the collateral consequences of court-martial convictions only in very limited circumstances. United States v. Miller,
The third criterion applies to the Article III courts, not to a court of purely statutory jurisdiction like this one. The second criterion admittedly favors Appellant, since the deportation proceedings were instituted years after the court-martial. However, neither the first nor the last supports the requested relief.
With regard to the first criterion, the lack of a more usual remedy, Appellant has not yet been deported. As a lawful permanent resident, he has a statutory right to notice and a hearing before an immigration judge, as well as appellate rights both within the executive branch and to the Article III courts. Indeed, it appears that Appellant’s counsel intends to argue that his special court-martial conviction does not constitute an “aggravated felony” within the meaning of the immigration laws — the very question that is the gravamen of this ineffective assistance of counsel claim. Writ-Appeal Petition at 18, n. 11, Denedo v. United States,
The fourth Hirabayashi criterion, that the error be of “the most fundamental character,” is not met either. There was no jurisdictional defect in Appellant’s court-martial; his sole complaint is the alleged ineffective assistance of counsel which admittedly did not manifest itself until years after the court-martial, when the deportation proceeding was instituted. Generally, failure to advise a client in a criminal trial of the potential adverse immigration effects, including deportation, of a guilty plea or conviction has not been held to constitute ineffective assistance of counsel. This is because deportation, or other immigration consequences, are collateral to the criminal conviction and are thus not covered by the Sixth Amendment in the criminal context. See, e.g., Varela v. Kaiser,
Appellant, relying on United States v. Kwan,
I respectfully dissent.
. See United States v. Dean, 20 C.M.A. 212, 215,
. In Garrett v. Lowe, 39 MJ. 293 (C.M.A.1994), we granted relief in a case in which fundamental jurisdiction was not at issue, based upon an instructional error. However, this case is distinguishable because, although Appellant styled his request for relief as one for coram nobis, he was still in confinement at the time and therefore habeas corpus was available. Id. at 295. We granted sentence relief without stating which prerogative writ was the basis of the action. Id. at 297.
. If Appellant’s conviction is not an "aggravated felony," then it would appear that the advice given by his counsel at the court-martial was legally correct.
. Whether any nonjurisdictional error can meet the "fundamental character” standard is a question that need not be reached in this case. I am satisfied that on these facts, Appellant has not met that standard.
Dissenting Opinion
(dissenting):
“Courts created by statute can have no jurisdiction but such as the statute confers.” Christianson v. Colt Indus. Operating Corp.,
Although we have no jurisdiction over Denedo and final cases fall outside our statutory mandate, the majority nonetheless concludes today that this Court has jurisdiction. This is perplexing. In addition to being contrary to the statutory scheme, this Court’s assertion of jurisdiction flies in the face of Supreme Court precedent, the decisions of at least two federal circuit courts of appeal, and the position, for the past fifty-seven years, of the solicitors general of the United States as agents of the President, commander in chief of the armed forces. See Solorio v. United States,
The majority conclusorily asserts that it has jurisdiction, grounded in the fact that Denedo was once in the military, and his case once fell within the statutory jurisdiction of the military justice system. See Denedo v. United States,
It is unclear to me why the Court charts this course today. Denedo’s claim ineffective assistance of counsel, based on newly discovered evidence, after his ease is final under Article 76, UCMJ — would be cognizable immediately in federal court but for this Court’s refusal to state that it lacks jurisdiction. Massaro v. United States,
1. Absent Jurisdiction No Writ May Issue
The Court provides relief today by remanding the case for additional action by the Court of Criminal Appeals (CCA), in reliance on the All Writs Act. But in the absence of jurisdiction, a writ may not issue. Marbury v. Madison,
This Court, as a legislatively created Article I court, is a court of limited jurisdiction. Our limited powers are defined entirely by statute. See generally Articles 2-3, 66-76, UCMJ, 10 U.S.C. §§ 802-03, 866-76 (2005). Despite the majority’s holding to the contrary, under those Articles no jurisdiction exists in this case.
A. This Court Does Not Have Jurisdiction Over Discharged Civilians Who Have Severed Their Connection With the Military
Article I, § 8, cl. 14 of the U.S. Constitution empowers Congress “[t]o make Rules for the Government and Regulation of the land and naval Forces.” Articles 2 and 3, UCMJ, reflect the considered judgment of Congress as to those classes of persons who fall within that constitutional grant. Article 2, UCMJ, delineates jurisdiction over “[p]er-
The Supreme Court has not hesitated to invalidate any efforts by Congress or the military to sweep civilians unattached to a military unit within the jurisdiction of the military justice system. See, e.g., McElroy v. United States ex rel Guagliardo,
B. Denedo is a Civilian Who Has Severed All Relationship With the Military
Denedo is a former servicemember lawfully discharged from military service pursuant to a court-martial conviction. He has no current relationship with the military — at least no more of a relationship than any other civilian who was formerly in the military might have if he had filed a writ of coram nobis here — which is to say, no legally cognizable relationship with the military justice system under the UCMJ.
The majority acknowledges that Denedo was discharged from the Navy on May 30, 2000. On that day, the bad-conduct discharge adjudged at his court martial and approved by the convening authority was effective, and Denedo was a civilian, completely detached from the military and the military justice system. And, as stated above, Article 2, UCMJ does not provide jurisdiction over military personnel who have been discharged from the military service and have no remaining connection to the military. Toth,
C. Collateral Review is Outside Article 67, UCMJ
Article 67, UCMJ, provides jurisdiction for this Court to “review the record” in specified cases reviewed by the CCA. The fact that Denedo’s case was such a ease is a truism that provides no legal authority or logical support for collateral review now that his case is final. The majority’s reasoning from true premises to unrelated conclusions without statutory or other authority is unsound.
Moreover, it is not at all clear how Article 66 or 67, UCMJ, supports an assertion of jurisdiction to conduct collateral review. The CCAs have jurisdiction to act on “the findings and sentence as approved by the convening authority.” Article 66(c), UCMJ. In
Articles 66 and 67, UCMJ are statutes governing direct review of courts-martial
In those instances where cases on direct review require additional fact finding, we have an unwieldy and imperfect system in place to facilitate inclusion of those facts in the record: new factual matters must be developed at a court-martial, revisited by the convening authority, and “included” in the record for review.
D. Denedo Seeks Collateral Review
In this case Denedo filed a writ coram nobis at the CCA seeking to challenge his court-martial conviction on the grounds that his Sixth Amendment right to counsel was violated because his counsel was ineffective. Denedo alleges that his civilian counsel told him that if he pled guilty he would not be deported. He alleges.that he recently discovered that this was not true. Obviously,
II. The Effect of Finality Under Article 76, UCMJ
In addition to lacking statutory jurisdiction over a civilian’s writ seeking collateral review of a court-martial, today the Court acts on a case that has been “final” for seven years.
Denedo’s bad-conduct discharge was capable of execution on May 30, 2000, because appellate review was completed and the findings and sentence were approved, reviewed, and affirmed as required by the UCMJ. Execution of the bad-conduct discharge returned Denedo to civilian status. Completion of appellate review also meant his case was “final” for purposes of Article 76, UCMJ. See Rule for Courts-Martial (R.C.M.) 1209. As expressed in Article 76, UCMJ, this means the same proceedings, findings, and sentence Denedo complains of here are “final and conclusive” within the court-martial system, subject to specific exceptions.
Article 76, UCMJ, states that:
The appellate review of records of trial provided by this chapter, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this chapter, and all dismissals and discharges carried into execution under sеntences by courts-martial following approval, review, or affirmation as required by this chapter, are final and conclusive. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States, subject only to action upon a petition for a new trial as provided in section 873 of this title (article 73) and to action by the Secretary concerned as provided in section 87k of this title (article 7k), and the authority of the President.
(emphases added).
The language of the statute suggests that once appellate review is complete, the findings and sentence are “final and conclusive,” subject only to action upon a petition for a new trial pursuant to Article 73, UCMJ, remission and suspension actions by the service secretaries, pursuant to Article 74, UCMJ, or presidential action.
A. Finality Does Not Preclude Collateral Review by Article III Courts
It was soon recognized that applying the literal language of Article 76, UCMJ, raised constitutional concerns because it would, implicitly, conflict with the Suspension Clause. See U.S. Const, art. I, § 9, cl. 2; Schlesinger v. Councilman,
Instead of taking the Supreme Court’s opinion in Schlesinger at face value, the majority claims it supports the proposition that Article 76, UCMJ, is merely a “prudential bar” to review of final decisions. This is clearly so for an Article III cоurt. But the majority does not recognize that there is a difference between what is “prudential” for an Article III court, and what is a statutory directive for an Article I, legislatively created court. While an Article III court may, if it wishes, step into the breach whenever constitutional justiciability requirements are satisfied, this Court is limited to acting only when our statutory grant so allows. Goldsmith,
Schlesinger is not to the contrary. The statutory framework, as drafted by Congress, signed into law by the President, and interpreted by the Supreme Court, counsels that we yield to the Article III courts once we have reached the “terminal point,” as described by the finality provision in Article 76, UCMJ. That collateral review is so circumscribed is neither surprising nor unjust given the reality that, where a case is final for purposes of Article 76, UCMJ, the individual will almost certainly no longer be a servicemember.
B. Ignoring the Effect of Article 76, UCMJ, Eviscerates the Statutory Scheme
The majority cites the text of Article 76, UCMJ, but avoids discussing the specific exceptions to finality listed therein. Having avoided the listed exceptions, it suggests that Article 76, UCMJ, is wholly “prudential” for both Article I and Article III courts. Given the holdings of the Supreme Court and the language of the statute, this interpretation is perplexing. The only exception to Article 76, UCMJ, finality recognized by the Supreme Court is Article III collateral review — i.e., review outside the military justice system. Schlesinger,
Article 73, UCMJ, allows for collateral review within two years of convening authority action. Tellingly, this “special post-conviction remedy,” Burns v. Wilson,
The majority opinion’s contrary interpretation ignores both the language of the statute and the statutory limitations placed on claims for a new trial. Denedo’s claim is nothing more than a petition for a new trial, dressed
Today’s decision is disturbing. By asserting it can act on a final ease involving a person who is not within Article 2, UCMJ, and ignoring the clear language of the statutory scheme, the Court effectively asserts that it can review any case, at any time. There is now no terminal point for this Court’s jurisdiction.
III. Clinton v. Goldsmith Redux?
The justification for today’s opinion rests on tautologies, such as “Congress enacted the UCMJ under its power to regulate the armed forces,” and “the military is an institution with distinct traditions and disciplinary concerns.” These are truisms, and thus no doubt true. Of course, it is also true that Denedo is lawfully discharged from the military and that the Constitution only grants Congress the power, vis-a-vis this Court, to “make Rules for the Government and Regulаtion of the land and naval Forces.” U.S. Const, art. I, § 8, cl. 14.
But the majority’s justification is troubling not so much because it is misplaced, but because it is highly reminiscent of the position of this Court prior to the Supreme Court’s decision in Clinton v. Goldsmith. At that time this Court, without statutory authority, asserted it had collateral review power over eases that were final.
It was upon those decisions, and the analysis that underlay them, that this Court’s decision in Goldsmith rested. See, e.g., Goldsmith v. Clinton,
When the Supreme Court overturned this Court’s Goldsmith opinion, it made it clear that this Court occupied only a small plot of the judicial landscape, and that that plot was circumscribed by statute. Goldsmith,
IV. Denedo’s Claims Are Not Uniquely Military in Nature, and Collateral Review is Not Foreclosed in an Article III Court
Today’s decision is particularly odd given the faсts of this case. The majority appears to argue that this Court must review Denedo’s case because it involves unique aspects of military justice. If we do not review, the argument goes, no one can or will. This logic is flawed, as both premises are unsound.
First, there is nothing uniquely military about this case. While this case, or any ease for that matter, can be cloaked in military justice rhetoric, this is essentially a garden variety claim of ineffective assistance of counsel, coupled with an argument regarding an immigration problem.
Denedo, who is a civilian, claims he could not have raised his Sixth Amendment claim before now. This constitutional claim is grounded in conversations that transpired between Denedo and his civilian defense counsel and the intricacies of federal immigration law. Neither this Court nor the CCA has a record of Denedo’s conversation with his civilian lawyer, special knowledge beyond that of an Article III court of the myriad ways to prove ineffective assistance under Strickland v. Washington,
Nor is it correct that this Court is the sole option on collateral review if the correct standard is applied. The fact that this Court had not weighed in on Denedo’s claim would not have been dispositive of whether an Article III court would address the merits of his claim, because he claims that he only recently learned of violation of his constitutional rights, i.e., after direct review was completed. Roberts v. Callahan,
The majority’s discussion of the collateral review exhaustion requirement ignores the point that the exhaustion problem is one that it creates today. The majority opinion relies on four federal district court eases for the proposition that an Article III Court will not entertain Denedo’s writ. Tatum v. United States, No. RDB-06-2307,
V. Conclusion
There is no question that Congress intended this Court to be the final court of review within the military justice system and to review those cases and matters it placed within our limited grant of jurisdiction. Those judgments are entitled to deference by the Article III Courts, which generally will not conduct de novo review of claims we have considered or permit collateral review of questions of fact we resolved. United States ex rel. New v. Rumsfeld,
But the statutory scheme does not permit this Court to exercise jurisdiction over a civilian’s case that is final, in derogation of Articles 2, 67, 69, 73, and 76, UCMJ, and in the absence of a specific legislative grant of authority. On the contrary, the scheme suggests that in the absence of a military remedy, a petitioner may seek relief from an Article III court. As the statutory scheme does not confer jurisdiction over a civilian who has severed all connection to the military or allow for review once a decision is final under Article 76, UCMJ, I believe the Court should dismiss Denedo’s petition, thereby allowing him to pursue his claim in an Article III court.
. Article 3(a), UCMJ, relates to persons currently in a status covered by Article 2, UCMJ.
. This does not rule out jurisdiction in the limited exception recognized by the Supreme Court in Goldsmith,
. The permutations and legal gymnastics necessary to bring cases on direct review within our statutory grant in the limited circumstances where new facts must be brought within "the record” are challenging enough for any justice system.
. Chief Judge Cox's observation is relevant to this case. I note that military counsel has entered an appearance before this Court on behalf of Denedo. I question whether, under the reasoning of the majority opinion, Article 70(a) and (c), UCMJ, would require that Denedo, and all other similarly situated litigants whose cases are final, be afforded military counsel as their cases proceed.
. Even if the CCA or this Court acts on Denedo’s claims of ineffective assistance of counsel, it is unclear how that necessarily grants the relief he truly requests. He wishes to stop the deportation proceedings that stem from his conviction. But neither this Court nor the CCA has the power to prevent the Department of Homeland Security, Immigration and Customs Enforcement division, from exercising its deportation powers.
. Despite this clear statutory limitation the majority cites United States v. Davis, 63 MJ. 171, 176-77 (C.A.A.F.2006), for the proposition that [wjhen court-martial jurisdiction has been invoked properly at the time of trial, the jurisdiction of the Court of Criminal Appeals to review the case does not depend on whether a person remains in the armed forces at the time of such review. Denedo, 66 MJ. at 125. In Davis, unlike the current case, direct review had not been completed; therefore the case was not yet final. 63 MJ. at 176. Nothing in Davis or the cases cited therein serves as precedent for the concept that there is "continuing jurisdiction” over cases that are final under Article 76, UCMJ.
. That Article 76, UCMJ, is bypassed by the majority as irrelevant to jurisdiction is surprising. Two years ago this Court, in response to the Government’s argument that the Court did not have jurisdiction because a case was final, did not say that finality was irrelevant to its review. Loving v. United States,
. A writ coram nobis must be directed at the court that issued the decision. Lowery v. McCaughtry,
. Goldsmith was a final case heard on collateral review.
. The majority’s reliance on footnote eleven of Goldsmith is misplaced. There, the Supreme Court cited, inter alia, Noyd v. Bond,
. Because I conclude that the Court does not have jurisdiction, I would not reach the substantive issue in this case. I do note, however, that the majority appears to ignore the most recent precedent on the intersection of ineffective assistance of counsel and the collateral consequences of a court-martial, United States v. Miller,