Dew v. United States

OPINION OF THE COURT AND ACTION ON PETITION FOR EXTRAORDINARY RELIEF IN THE NATURE OF A WRIT OF MANDAMUS AND A WRIT OF ERROR CORAM NOBIS CAIRNS, Judge: In a Petition for Extraordinary Relief in the Nature of a Writ of Mandamus and a Writ of Error Coram Nobis, petitioner asks this court to: (1) issue a writ of mandamus ordering The Judge Advocate General to set aside the findings and sentence or, alternatively, ordering him to send petitioner’s court-martial to this court in accordance with Article 69(d), Uniform Code of Military Justice, 10 U.S.C. § 869(d)(1989) [hereinafter UCMJ], for further review under the provisions of Article 66, UCMJ, 10 U.S.C.A. § 866; or, (2) issue a writ of error coram nobis setting aside the findings and sentence.1 Petitioner asserts she is entitled to extraordinary relief because: (1) the military judge erred by accepting her guilty plea in contravention of the public policy against enforcing gambling obligations as set forth in United States v. Wallace, 15 U.S.C.M.A. 650, 36 C.M.R. 148, 1966 WL 4432 (1966); and (2) The Judge Advocate General abused his discretion when reviewing petitioner’s court-martial under Article 69, UCMJ. Because the court is evenly divided on whether to grant relief, we deny the petition. I. History of the Case a. Factual Background On 6 March 1995, a general court-martial found petitioner guilty, pursuant to her pleas, of five specifications of making and uttering worthless checks by dishonorably failing to maintain funds in violation of Article 134, UCMJ. A panel of officer and enlisted members sentenced her to be reduced from master sergeant, E8, to the grade of E4. On 16 July 1995, the convening authority approved only so much of the sentence as provided for reduction to the grade of E6. The summarized record of trial appended to the petition reflects that petitioner was addicted to slot machine gambling. She cashed thirty-seven bad checks at the Fort Clayton, Panama, Noncommissioned Officer’s (NCO) Club and Bowling Center and used all the proceeds from the bad checks to gamble in the slot machines. In her unsworn statement during the sentencing phase of her trial, petitioner stated that she gambled in the slot machines located in the NCO Club and the Bowling Center. Of the thirty-seven bad checks, petitioner wrote thirty-five, for a total of $7,000.00, to the NCO Club over the course of thirty-five days. She cashed the other two checks at the Bowling Center. Although the NCO Club check-cashing facility which accepted petitioner’s checks usually adhered to a $300.00 per day limit applicable to all patrons, petitioner cashed three checks at the NCO Club for a total of $450.00 on one date and two checks for a total of $600.00 on another date. While the record does not specifically address whether the cashier knew the petitioner had exceeded the limit on these two days, presumably they did not because petitioner stated under oath that only “[o]n a rare occasion, if I knew the teller at the NCO Club, sometimes I was able to — 643 — cash an additional check beyond the $300.00 limit, but they would always limit the amount of the check to approximately $25.00.” b. Appellate History On 30 August 1995, the record of trial was examined in the Office of The Judge Advocate General under the provisions of Article 69(a), UCMJ.2 Pursuant to that review, the findings of guilty and the sentence were found to be supported in law.3 According to petitioner, sometime in 1996, she requested The Judge Advocate General to grant her relief under Article 69(b), UCMJ, but that request was denied because her case had been previously reviewed under Article 69(a), UCMJ.4 On 12 December 1996, petitioner requested The Judge Advocate General to refer her case under Article 69(d), UCMJ,5 to this court for appellate review of the providence of her pleas of guilty. Prom what we can determine, the crux of her request for relief was that, in view of United States v. Allbery, 44 M.J. 226 (1996) — a case decided after The Judge Advocate General’s original Article 69(a) review — petitioner’s guilty pleas were not provident because her bad checks were “written to an on-site gambling enterprise for the purpose of gambling there [and therefore] are not criminally enforceable as a matter of public policy.”6 In an action dated 4 September 1997, The Judge Advocate General stated, “[B]oth the Petition and the original record of trial having been carefully reviewed, said Petition is hereby denied.” Petitioner then filed her Petition for Extraordinary Relief in the Nature of a Writ of Mandamus and a Writ of Error Coram No-bis with our court on 21 November 1997. Petitioner presented two issues to this court: I. WHETHER EXTRAORDINARY RELIEF IS WARRANTED IN LIGHT OF THE JUDGE ADVOCATE GENERAL’S INCORRECT LEGAL REVIEW OF PETITIONER’S COURT-MARTIAL UNDER ARTICLE 69(A), UCMJ, OR HIS FAILURE TO REFER PETITIONER’S COURT-MARTIAL TO THE ARMY COURT OF CRIMINAL APPEALS UNDER ARTICLE 69(D), UCMJ, OR BOTH. II. WHETHER EXTRAORDINARY RELIEF IS WARRANTED IN A CASE NOT SUBJECT TO REVIEW UNDER ARTICLE 66(B), UCMJ, IN LIGHT OF POST-TRIAL CASE LAW ESTABLISHING THAT FACTS RAISED BY PETITIONER DURING THE FACTUAL IN — 644 — QUIRY AND STIPULATED TO BY THE GOVERNMENT WERE INCONSISTENT WITH HER GUILTY PLEA. After reviewing the petition for extraordinary relief filed in our court, including pertinent portions of the record of trial, a panel of this court ordered the government to show cause why the extraordinary relief sought should not be granted. Counsel for the government filed a brief in opposition. A panel of this court heard oral argument on 3 December 1997. On 30 January 1998, the court, on its own motion, decided to consider en banc the petition in this case. We specified three issues as follow: I. WHETHER THIS COURT HAS JURISDICTION TO ENTERTAIN PETITIONER’S REQUEST FOR EXTRAORDINARY RELIEF. SEE UNIFORM MILITARY CODE [sic] OF JUSTICE art. 69(a) AND (d) AND UCMJ art. 76, 10 U.S.C. § 869 AND 876 (1988) [HEREINAFTER UCMJ]; 28 U.S.C. § 1651(a) (1997); UNGER v. ZIEMNIAK, 27 M.J. 349 (C.M.A.1989); DETTINGER v. UNITED STATES, 7 M.J. 216 (C.M.A.1979); McPHAIL v. UNITED STATES, 1 M.J. 457 (C.M.A.1976); UNITED STATES v. FRISCHHOLZ, 16 U.S.C.M.A. 150, 36 C.M.R. 306, [1966 WL 4467] (1966); DAVIS v. UNITED STATES, 35 M.J. 640 (A.C.M.R.1992). SEE ALSO [UNITED STATES v.] STEWART v. STEVENS, 5 M.J. 220 [210] (C.M.A.1978); LITTLETON v. PERSONS, 7 M.J. 582 (A.C.M.R.1979); SMITHEE v. VORBACH, 25 M.J. 561 (C.G.C.M.R.1987); ROGERS v. ST. GEORGE, 6 M.J. 558 (N.M.C.M.R.1978). II. IF THIS COURT HAS JURISDICTION TO ENTERTAIN PETITIONER’S REQUEST FOR EXTRAORDINARY RELIEF, WHAT IS THE STANDARD OF REVIEW? SEE GARRETT v. LOWE, 39 M.J. 293 (C.M.A.1994); UNGER, 27 M.J. 349 (C.M.A.1989); UNITED STATES v. LABELLA, 15 M.J. 228 (C.M.A.1983); DETTINGER, 7 M.J. 216 (C.M.A.1979); McPHAIL, 1 M.J. 457 (C.M.A.1976); DAVIS, 35 M.J. 640 (A.C.M.R.1992); UNITED STATES v. MONTCALM, 2 M.J. 787 (A.C.M.R.1976). III. IF THIS COURT HAS JURISDICTION, DOES THIS CASE WARRANT RELIEF UNDER THE APPLICABLE STANDARD OF REVIEW? SEE UCMJ art. 45, 10 U.S.C. § 845 (1988); UNITED STATES v. PRATER, 32 M.J. 433 (C.M.A.1991); UNITED STATES v. CARE, 18 U.S.C.M.A. 535, 40 C.M.R. 247 [1969 WL 6059] (1969); UNITED STATES v. WALLACE, 15 U.S.C.M.A. 650, 36 C.M.R. 148 [1966 WL 4432] (1966); UNITED STATES v. LENTON, 8 U.S.C.M.A. 690, 25 C.M.R. 194 [1958 WL 3111] (1958). SEE ALSO UNITED STATES v. FAIRCLOTH, 45 M.J. 172 (1996); UNITED STATES v. ALLBERY, 44 M.J. 226 (1996); UNITED STATES v. GREENLEE, [47] M.J. [613] (ARMY CT. CRIM. APP. 20 OCT 1997); UNITED STATES v. GREEN, 44 M.J. 828 (Army Ct.Crim.App. 1996); UNITED STATES v. SLAUGHTER, 42 M.J. 680 (Army Ct.Crim.App. 1995). After filing additional briefs, the parties presented oral argument before the court sitting en banc on 4 March 1998. The government contends that we may not issue the writ because Congress has given jurisdiction over petitioner’s case to The Judge Advocate General exclusively. Government counsel assert that the jurisdiction of our court extends only to the cases we review under Article 66, UCMJ, and to courts-martial sent to us by The Judge Advocate General pursuant to Article 69(d), UCMJ. The government further contends that the case is final within the meaning of Article 76, UCMJ, and may not be further reviewed. II. Whether this Court has Jurisdiction. The court unanimously rejects the government’s assertion that we have no jurisdiction to entertain this collateral attack by petition — 645 — er of her final general court-martial conviction. Our jurisdiction is predicated upon the All Writs Act and our supervisory responsibility in the military justice system. a. Extraordinary Writ Authority Congress established this court’s appellate jurisdiction over cases in which the approved sentence extends to death, dismissal of a commissioned officer, cadet, or midshipman, dishonorable or bad-conduct discharge, or confinement for one year or more.7 Article 66(b), UCMJ. As a consequence, based upon petitioner’s approved sentence, this court never acquired appellate jurisdiction to hear this case on direct review. In addition to our ordinary appellate jurisdiction, however, it has been long recognized that this court has the authority to issue extraordinary writs under the All Writs Act when “necessary or appropriate in aid of [our] jurisdiction and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a); Dettinger v. United States, 7 M.J. 216 (C.M.A.1979); Kelly v. United States, 1 M.J. 172 (C.M.A.1975); Henderson v. Wondolowski, 44 C.M.R. 117, 1971 WL 12462 (1971); McKinney v. Jarvis, 46 M.J. 870 (Army Ct. Crim.App.1997); United States v. Draughon, 42 C.M.R. 447, 1970 WL 7129 (A.C.M.R. 1970). The All Writs Act “expressly declares and recognizes the existence of ancillary authority which all courts possess as an incident of their existence as a court to protect then- respective jurisdictions otherwise conferred.” Draughon, 42 C.M.R. at 450-51. Since Congress conferred our appellate jurisdiction in Articles 62, 66, and 69, UCMJ, the All Writs Act explicitly recognizes our authority to grant extraordinary relief “in aid” of that statutory jurisdiction.8 This court may exercise extraordinary writ authority in aid of our actual or potential jurisdiction. Under Article 69, UCMJ, certain cases are reviewed within the Office of The Judge Advocate General, and Congress has specifically provided for our appellate review of these eases under circumstances prescribed by Article 69, UCMJ. Our potential jurisdiction over this type of case provides a basis for entertaining a writ “in aid of jurisdiction” under the All Writs Act. Addis v. Thorsen, 32 M.J. 777 (C.G.C.M.R.1991).9 b. Supervisory Jurisdiction Our authority to issue extraordinary writs “in aid of jurisdiction” under the All Writs Act is not limited to our actual or potential appellate jurisdiction defined in Articles 62, 66, and 69, UCMJ, 10 U.S.C.A. §§ 862, 866, 869. See McPhail v. United States, 1 M.J. 457, 462 (1976). These statutory provisions do not encompass our entire authority as a court. As the highest judicial tribunal in the Army’s court-martial system, we are expected to fulfill an appropriate supervisory function over the administration of military justice. Noyd v. Bond, 395 U.S. 683, 693-98, 89 S.Ct. 1876, 1882-85, 23 L.Ed.2d 631 (1969). The concept of supervisory jurisdiction as support for extraordinary writ authority under the All Writs Act has developed primarily in cases decided by our superior court, the United States Court of Military Appeals (now the United States Court of Appeals for the Armed Forces) [hereinafter Court of Appeals]. In McPhail, Judge Cook, writing for a unanimous Court of Appeals, observed: In Gale v. United States, 17 U.S.C.M.A. 40, 43, 37 C.M.R. 304, 307 [1967 WL 4245] (1967), the Court remarked that its earlier — 646 — opinion in United States v. Frischholz, 16 U.S.C.M.A. 150, 36 C.M.R. 306 [1966 WL 4467] (1966), “unequivocally declared our jurisdiction extended beyond the ordinary appellate review of courts-martial.” Without reference to the kinds of courts-martial involved in its appellate jurisdiction, the Court went on to say that, as the supreme civilian court of the military justice system, it could not imagine that it lacked authority to grant “relief on an extraordinary basis, when the circumstances so require.” 1 M.J. at 460 (quoting Gale, 17 U.S.C.M.A. at 43, 37 C.M.R. at 307). Concluding that its authority to issue writs in aid of its jurisdiction was not limited to the appellate jurisdiction defined in Article 67, UCMJ, the McPhail court stated: [T]his Court is the supreme court of the military judicial system. To deny that it has authority to relieve a person subject to the Uniform Code of the burdens of a judgment by an inferior court that has acted contrary to constitutional command and decisions of this Court is to destroy the ‘integrated’ nature of the military court system and to defeat the high purpose Congress intended this Court to serve. Reexamining the history and judicial applications of the All Writs Act, we are convinced that our authority to issue an appropriate writ in “aid” of our jurisdiction is not limited to the appellate jurisdiction defined in Article 67. 1 M.J. at 462. Thus, the court exercised its writ authority over a case which, based upon the approved sentence, could not have been considered under the court’s ordinary appellate jurisdiction under Article 67, UCMJ.10 In Unger v. Ziemniak, 27 M.J. 349 (1989), the Court of Appeals exercised its extraordinary writ authority when it considered a petition brought by an officer who faced trial by special court-martial. Because a special court-martial has no authority to dismiss an officer or sentence an officer to confinement, “there would seem to be no way that a conviction of an officer by a special court-martial would qualify for review by [the United States Court of Military Appeals] under Article 67(b), UCMJ.” Unger, 27 M.J. at 351. In an opinion that chronicles the development of extraordinary writ jurisdiction in the military justice system, the court confirmed its “All-Writs-Act supervisory jurisdiction” over cases outside its actual or potential appellate jurisdiction when the court-martial proceedings violate the rights of service personnel under the Constitution or Uniform Code of Military Justice. “Congress never intended that this Court sit by helplessly while courts-martial are misused in disregard of an accused servicemember’s rights under the Constitution or the Uniform Code.” Unger, 27 M.J. at 355. Some years ago, the Court of Appeals sustained the jurisdiction of the service Courts of Military Review to issue extraordinary writs under the All Writs Act based upon their supervisory authority “over the actions of trial judges in cases that may potentially reach the appellate courtfs].” Dettinger, 7 M.J. at 220. More recently, in a ease strikingly similar to the case at bar, we relied upon our supervisory jurisdiction when we entertained a petition for extraordinary relief in a general court-martial that had been reviewed in the Office of The Judge Advocate General under Article 69(a), UCMJ. Davis v. United States, 35 M.J. 640 (A.C.M.R.1992). Although we denied the writ, we concluded that the Court of Appeals’ decision in Unger had overruled the line of cases that held authority under the All Writs Act did not extend to Article 69, UCMJ, cases. See, e.g., Littleton v. Persons, 7 M.J. 582 (A.C.M.R.1979); Barnett v. Persons, 4 M.J. 934 (A.C.M.R.1978).11 — 647 — In applying McPhail, Unger, Dettinger, Davis, and related cases, we need not define the outer limits of our supervisory jurisdiction in order to dispose of the petition before us. Certainly, we will not force soldiers to bring collateral attacks of their courts-martial in the civilian federal courts or the U.S. Court of Appeals for the Armed Forces. We hold that this court has “All-Writs-Aet supervisory jurisdiction” to consider, on the merits, a writ challenging the action taken under Article 69, UCMJ, in the Office of The Judge Advocate General with regard to this general court-martial. Unger, 27 M.J. at 353. c. Finality The government contends that the petitioner’s court-martial was “final and conclusive” under the provisions of Aticle 76, UCMJ,12 once it was reviewed under Article 69(a), UCMJ. Consequently, it may not be further reviewed. The finality provisions contained in Aticle 76, UCMJ, were never intended to preclude all collateral attacks.13 The Court of Appeals in Frischholz, 36 C.M.R. at 307, stated that A’ticle 76 “does not insulate a [court-martial] conviction from subsequent attack in an appropriate forum.” In Hendrix v. Warden, the court said: Finalization of proceedings under Aticle 76, UCMJ, not only terminates the appellate processes of courts-martial, it also terminates this Court’s jurisdiction of the case, except in circumstances contemplated by 28 U.S.C. § 1651(a) [i.e., The All Writs Act]. 23 U.S.C.M.A. 227, 228, 49 C.M.R. 146, 147, 1974 WL 14026 (1974) (footnotes omitted) (emphasis added). Collateral attack has long been available to review military judgments to ensure they pass constitutional muster. See Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975) (judgments of the military court system remain subject in proper cases to collateral impeachment). A the United States Supreme Court stated, “it must be assumed that the military court system will vindicate servicemen’s constitutional rights.” See Schlesinger, 420 U.S. at 758, 95 S.Ct. at 1313. Athough additional review of a general court-martial examined under Article 69(a), UCMJ, may raise issues concerning finality, further action on a case by The Judge Advocate General in accordance with Aticle 69, UCMJ, has long been regarded as an exception to finality under Aticle 76, UCMJ.14 A specific exception to finality was provided by Congress in the 1989 amendments to Aticle 69, UCMJ. That legislation created Aticle 69(d), UCMJ, a section that provides for appellate review by our court of courts-martial normally reviewed by The Judge Advocate General, including cases already reviewed by him. That provision is explicit legislative recognition that Aticle 76, UCMJ, does not preclude additional review. Lastly, we note that a writ of error coram nobis is a longstanding exception to the finality rule contained in Aticle 76, UCMJ. See Garrett v. Lowe, 39 M.J. 293 (C.M.A.1994); Del Prado v. United States, 23 U.S.C.M.A. 132, 48 C.M.R. 748, 1974 WL 13907 (C.M.A.1974); Tillman v. United States, 32 M.J. 962 (A.C.M.R.1991); Chapel v. United States, 21 M.J. 687 (A.C.M.R.1985). Thus, we hold that Aticle 76, UCMJ, does not preclude our examination of petitioner’s court-martial to determine whether the issues she has raised in her petition received full and fair consideration at trial and during review in the Office of The Judge Advocate General. — 648 — III. What Criteria are Required for Extraordinary Relief? Although we have concluded that the court has jurisdiction to consider the petition, we must decide what criteria apply in determining whether extraordinary relief should be granted.15 At the outset, we believe it is axiomatic that one who seeks a writ must present truly extraordinary matters justifying the requested extraordinary relief. See McKinney, 46 M.J. 870. Under our All-Writs-Act supervisory jurisdiction, a petitioner must present compelling reasons why it is “necessary and appropriate” that we grant relief. Issuance of a writ constitutes a “drastic instrument which should be invoked only in truly extraordinary situations.” United States v. Labella, 15 M.J. 228, 229 (C.M.A.1983). See generally Murray v. Haldeman, 16 M.J. 74 (C.M.A.1983); Aviz v. Carver, 36 M.J. 1026, 1028 (N.M.C.M.R.1993); Pearson v. Bloss, 28 M.J. 764, 766 (A.F.C.M.R.1989). Because of their extraordinary nature, writs are issued sparingly, and a petitioner bears an extremely heavy burden to establish a clear and indisputable entitlement to extraordinary relief. McKinney, 46 M.J. at 873. See also Bankers Life and Casualty Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148-49, 98 L.Ed. 106 (1953). With these general principles in mind, we will examine what criteria justify extraordinary relief under each theory— mandamus and eoram nobis — and whether the petitioner has met the prerequisites for relief under either writ. a. Writ of Mandamus Mandamus is a preemptory writ traditionally used “to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Roche v. Evaporated Milk Association, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943). Mandamus does not provide this court with unbridled authority “to do justice”- — as we might perceive it — by ordering inferior courts, officers, and commanders to conform their actions to our opinion of how they should perform their respective duties. Quoting Supreme Court precedent, our superior court has observed, “Mandamus ... does not ‘run the gauntlet of reversible errors.’ ... Its office is not ‘to control the decision of the trial court,’ but ... to confine ... [it] to the sphere of its discretionary power.” Dettinger, 7 M.J. at 218 (emphasis added). Mandamus is a drastic remedy that should only be invoked in truly exceptional circumstances. Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273-74, 19 L. Ed.2d 305 (1967); Labella, 15 M.J. 228; Porter v. Eggers, 32 M.J. 583 (A.C.M.R.1990). We are not free to substitute our own judgment for that of the trial judge or The Judge Advocate General. Porter, 32 M.J. at 584. Instead, we may only decide whether either erred by exceeding its authority in a ruling or decision that is contrary to statute, settled case law, or valid regulation. McKinney, 46 M. J. at 874; Porter, 32 M.J. at 584. If we conclude there was error, before granting such drastic relief as mandamus we must be satisfied that the erroneous discretionary decision amounted “to more than even ‘gross error’; it must amount to ‘a judicial “usurpation of power,” ’ ... or be ‘characteristic of an erroneous practice which is likely to recur.’ ” Murray, 16 M.J. at 76 (citations omitted); Labella, 15 M.J. at 229. See also Will, 389 U.S. at 95, 88 S.Ct. at 273-74. At least two federal circuits have synthesized guidelines designed to frame the boundaries of their mandamus power. The guidelines, referred to as the “Bauman factors,” are as follows: (1) The party seeking relief has no other adequate means, such as direct appeal, to attain the relief desired; (2) The petitioner will be damaged or prejudiced in a way not correctable on appeal; — 649 — (3) The lower court’s order is clearly erroneous as a matter of law; (4) The lower court’s order is an oft-repeated error, or manifests a persistent disregard of federal rules; (5) The lower court’s order raises new and important problems, or issues of law of first impression. In re American Medical Systems, Inc., 75 F.3d 1069, 1078 (6th Cir.1996); Bauman v. United States District Court, 557 F.2d 650, 654-55 (9th Cir.1977). Petitioners need not satisfy all the Bauman factors; rather, they are intended to be balanced by the courts. Consequently, their application will not always yield definitive results. Not all the factors are relevant in every case, and rarely will they all point to the same conclusion. However, they provide a framework for principled analysis beyond the generally accepted criteria set forth in the previous paragraph. b. Coram Nobis The petitioner requests that the findings and sentence be set aside pursuant to her writ of error coram nobis. Coram nobis is neither a substitute for ordinary appeal nor a device to restart the appellate process. Nkosi v. Lowe, 38 M.J. 552 (A.F.C.M.R.1993). It is an extraordinary remedy predicated on exceptional circumstances not apparent to the court in its original consideration of the case. Frischholz, 36 C.M.R. at 309. Under long-standing precedent of this court, coram nobis “involves no more than a court reconsidering its own acts to avoid a miscarriage of justice.” Draughon, 42 C.M.R. at 453. “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.” McPhail, 1 M.J. at 459. The burden is upon the petitioner to establish that the matter was unknown to him, and not apparent to the court, at the time the court first considered the case. Although at one time errors of law were thought not to be cognizable under coram nobis, the current view in military practice is that the writ “appears to encompass constitutional and other fundamental errors.” Garrett, 39 M.J. at 295 (citing S. Childress and M. Davis, Federal Standards of Review § 13.01 at 13-2 (2d ed. 1992) (emphasis in original)). The error must be so fundamental as to render the proceedings themselves irregular and invalid. Chapel, 21 M.J. 687. Because society has a strong interest in the finality of appeals, our superior court has stated: [T]he standard for obtaining relief through a writ of error eoram nobis is more stringent than the standard applicable on direct appeal. As a result, an error which would justify relief during normal appellate review will not necessarily trigger coram no-bis relief. Chapel, 21 M.J. at 689 (citations omitted). This court previously adopted the following criteria for coram nobis relief, and, in so doing, held that the petitioner bears the heavy burden to establish that: (1) an error had been made that was unknown to him during appeal; (2) a more usual remedy is unavailable; (3) valid reasons exist for not previously attacking the conviction; and (4) the error was of such a fundamental nature as to render the proceedings irregular and invalid. Tillman, 32 M.J. at 965 (citations omitted). IV. Whether Petitioner is Entitled to Relief. To decide whether petitioner is entitled to relief, we must first decide whether the military judge committed the error petitioner alleges. If the military judge erred, we must then evaluate the magnitude of the error, examine the actions of The Judge Advocate General, and apply the criteria for mandamus and coram nobis relief. Petitioner argues that her pleas of guilty to bad checks written to the NCO Club and the Bowling Center should not have been accepted because all proceeds were used to gamble at on-site slot machines.16 Petitioner — 650 — asserts that military case law precluded, as a matter of public policy, the imposition of criminal sanctions for checks issued in connection with gambling. We will first examine the substantive law that existed at the time of trial, as well as at the time critical decisions were made during post-trial review under Article 69, UCMJ. a. Substantive Law At the time this case was tried, military law held that public policy precluded the use of criminal sanctions to enforce gambling debts. United States v. Walter, 8 U.S.C.M.A. 50, 23 C.M.R. 274, 1957 WL 4479 (1957). Although the public policy protection has been applied to bad check offenses, not every cheek transaction between gambling participants can be considered to be part of the game. One player may ask another to cash a check, and when the request is honored he may pocket the proceeds without using any of it in the game.... In such a situation, the check transaction is entirely separate from the gambling activity. United States v. Lenton, 8 U.S.C.M.A. 690, 25 C.M.R. 194, 197, 1958 WL 3111 (1958). Therefore, “[t]he critical question in these cases is whether the alleged act of misconduct is part of, or separate from, participation in the ... game.” Id. In United States v. Wallace, the Court of Appeals applied the Walter and Lenton principles to a “record [that] diselose[d] a truly astonishing situation.” 15 U.S.C.M.A. 650, 36 C.M.R. 148, 149, 1966 WL 4432 (1966). Major Wallace purchased rolls of quarters by cash, check, or IOU from the Officer’s Club to play the club’s slot machines. Major Wallace was so fascinated with playing the slot machines that the club manager described his uncontrollable gambling as “donations” to the club. Major Wallace redeemed his outstanding IOUs at the end of each evening with a check. When his checks were dishonored, the club billed his monthly club account. Even when cheeks he wrote in payment of his bill were returned for insufficient funds, he was allowed simply to -write more checks. These circumstances continued with tile knowledge and approval of the Club’s Board of Governors, on which Major Wallace sat as a member. Concluding that the checks were written to facilitate the play of the club’s gambling devices, and therefore not entirely separate from the gambling activity, the court held: Whether gaming is legal or illegal, transactions involving the same or designed to facilitate it are against public policy, and the courts will not lend their offices to enforcement of obligations arising therefrom. Id. The degree of the club’s involvement in Major Wallace’s gambling activity was critical to the court’s conclusion that the checks were issued as part of a gambling transaction. The club’s involvement included providing rolls of quarters maintained on hand for patrons to use in the slot machines, as well as the knowledge and approval of the club’s management — which extended to loans by means of checks and otherwise — of Major Wallace’s use of cheeks for gambling. The principles established in Walter, Lenton, and Wallace applied at the time of petitioner’s trial and continue to be viable in military practice today. See Allbery, 44 M.J. 226 (1996); United States v. Woodcock, 39 M.J. 104 (1994). b. Providence of the Guilty Plea If an accused sets up a matter at trial that is inconsistent with his guilty plea, the military judge must inquire further and either resolve the inconsistency or reject the plea. UCMJ art. 45(a); United States v. Garcia, 44 M.J. 496 (1996).17 On direct appeal, unless the appellate court finds a substantial conflict between the plea and the asserted inconsistent matter, the court will not disturb the conviction. United States v. Prater, 32 M.J. 433 (1991). The “mere possibility” of a conflict between the matter and the guilty plea does not necessarily require rejection of the plea. Prater, 32 M.J. at 436; United States v. Logan, 22 U.S.C.M.A. 349, 47 C.M.R. 1, 1973 WL 14641 (1973). — 651 — c. The Summarized Record and Appellate Record Before we analyze whether petitioner has carried her extremely heavy burden to show by extraordinary circumstances why she is entitled to relief from what she argues is a flawed guilty plea inquiry, several points regarding the record are pertinent. First, we are considering a summarized record of trial which, by its very nature, deprives us of knowing with certainty what was or was not said at trial, although we accept the record as we find it. Given the posture of the case, we construe the record, including any factual gaps and ambiguities, in the light most favorable to the government. United States v. Hubbard, 28 M.J. 203 (C.M.A.1989) (Cox, J., concurring); United States v. Slaughter, 42 M.J. 680 (Army Ct.Crim.App., 1995). Second, the summarized record does not reflect a number of matters relevant to whether petitioner’s pleas were improvident based on a public policy violation. For example, the record summary does not indicate that petitioner received rolls of quarters or other coins suitable for slot machines in exchange for her checks. The record does not reveal that the club afforded petitioner credit in order to gamble, or that club management or other personnel knew petitioner would use the proceeds of the checks for gambling. There is no showing of where the cheek-cashing facility was located in relation to the slot machines, or the degree to which the cashier facilities were used by non-gambling patrons. The record is silent on any indicia of club involvement with petitioner’s gambling activity, aside from statements that she cashed checks to gamble in on-site slot machines. Third, by pleading guilty, petitioner voluntarily gave up her opportunity to litigate fully all the circumstances surrounding her conduct. Post-trial speculation regarding those circumstances is not appropriate. United States v. Faircloth, 45 M.J. 172, 174 (1996); United States v. Harrison, 26 M.J. 474, 476 (C.M.A.1988). See also United States v. Lark, 47 M.J. 435, 437 (1998) (Sullivan, J., concurring). Fourth, petitioner does not state what additional facts she would have told the military judge that would have required him to reject her pleas as improvident under Wallace. Finally, on the record before us, petitioner first complained that her pleas were improvident after completion of her Article 69(a), UCMJ, review — she failed to raise any issue at trial, in her otherwise extensive R.C.M. 1105 submissions to the convening authority, or in an Article 38(c), UCMJ, brief. d. Application of Criteria for Extraordinary Relief (1) Writ of Mandamus The petitioner has not satisfied the criteria for relief under a writ of mandamus. Regarding the trial court’s ruling that the petitioner’s plea was provident, we first observe — as well as we can from a summarized record — that the military judge conducted a thorough plea inquiry. We recognize that the summarized record does not reflect an inquiry into matters pertinent to whether the NCO Club and Bowling Center were participants in gambling transactions when petitioner cashed her worthless checks. When the petitioner advised the military judge that she used the proceeds of the checks to gamble in slot machines, we agree, at least as a matter of prudence, that he should have conducted an inquiry to decide whether the transactions were part of gambling activity. If the transactions were part of the gambling, of course, the military judge should have rejected the plea because of the public policy protections under Walter, Lenton, and Wallace. Petitioner has failed, however, to carry her burden to establish that such an inquiry did not take place — she did not even assert in her petition that the military judge failed to conduct the necessary inquiry. For purposes of analysis, -and since this summarized record appears well-prepared, we will assume- — but not hold — that the military judge did not conduct a “Wallace” inquiry. The first question then is whether it was error not to conduct such an inquiry. Some might reasonably argue that petitioner’s statements that she gambled with the proceeds of the checks were not per se inconsistent with her plea, and therefore, the military judge did not have a duty to inquire. The argument is that until she reasonably implicated the payee of the checks in the — 652 — gambling activity by virtue of cashing the checks, no inquiry was necessary. Most will agree, however, that the better practice, if not the legal requirement, would have been to conduct further inquiry to clarify whether these checks were part of a gambling transaction. In either event, we are satisfied that the military judge was acting well within “the sphere of his discretionary power” when he conducted the plea inquiry, even though he may be criticized for failing to conduct a fuller inquiry. Dettinger, 7 M.J. at 218. The military judge did not commit gross error or usurp his judicial power. Petitioner has failed to demonstrate clearly and indisputably that the writ is necessary “to confine a lower court to its prescribed jurisdiction” or to otherwise present extraordinary circumstances justifying relief. Roche, 319 U.S. at 26, 63 S.Ct. at 941-42. In analyzing petitioner’s request for relief from The Judge Advocate General’s decisions that the trial was legally sufficient, we will assume arguendo that the trial judge erred. Under the criteria for mandamus relief, the question is whether The Judge Advocate General’s decision affirming the legal sufficiency of the trial was more than gross error — that it amounted to a judicial usurpation of power. The answer is self-evident — the answer is “no.” In conducting his legal review of the providence inquiry, The Judge Advocate General should have analyzed whether the accused at trial had set up a matter substantially inconsistent with her guilty plea. Prater, 32 M.J. st 436. In reviewing this case, one could reasonably conclude there was not a substantial conflict between the petitioner’s guilty plea and her statements that the proceeds of these checks were used for gambling because there was no substantial matter indicating that by cashing the checks, the club was engaged in a gambling transaction. Furthermore, we observe that at the time of The Judge Advocate General’s decision, this court had issued its opinion in Slaughter:18 The Judge Advocate General could well have relied on Slaughter’s well-reasoned approach in a similar guilty plea case.19 In Slaughter, the court focused on the involvement of the club, through its check-cashing service, with the gambling activity and concluded that the appellant had “disclosed no facts showing the degree of active involvement of the Community Club in his gambling activities as was evident in Wallace.” Slaughter, 42 M.J. at 682. In a similar fashion, the facts disclosed by petitioner during the plea inquiry fall far short of the indicia of club involvement found in Wallace.20 The Judge Advocate General could have reasonably concluded that there was no substantial conflict between matters raised by petitioner and her pleas of guilty. Therefore, we conclude that The Judge Advocate General’s Article 69(a), UCMJ, review was well within reasonable bounds. More importantly, his decision does not even approach “gross error,” let alone a usurpation of power. — 653 — Applying the Bauman factors from the federal circuits, we find that the last three guidelines militate against granting relief: (1) we cannot say that the trial court or The Judge Advocate General were clearly erroneous as a matter of law; (2) petitioner has not demonstrated that there exists an oft-repeated error, in persistent disregard of the rules; and (3) the petitioner has not shown that the decisions below raise new important problems or legal issues of first impression. Bauman, 557 F.2d at 654-55. Although petitioner may argue that the first two guidelines favor relief (i.e., she has no other adequate means of relief, and she will endure irreparable damage), we would point out that petitioner had at least three opportunities to seek relief — at trial, in her R.C.M. 1105 submissions before the convening authority, and in an Article 38(c), UCMJ, brief. Under these circumstances, to argue in one breath that the public policy protection is well-settled and should have been applied to her, and in the next that she has no other adequate means to seek relief other than by extraordinary writ, is disingenuous. Petitioner’s failure to assert the error until after completion of ordinary appellate review diminishes the vitality of those two Bauman factors. Finally, this is not an Article 66, UCMJ, appeal. We must not, and should not, substitute our judgment for that of either the military judge or The Judge Advocate General. Porter, 32 M.J. 583 (A.C.M.R.1990). Petitioner has failed to satisfy her burden to justify granting a writ of mandamus.21 (2) Writ of Error Coram Nobis Just as with her petition for relief under mandamus, petitioner bears an extremely heavy burden in justifying her entitlement to relief under a writ of error eoram nobis. We will try to avoid repeating the analysis discussed above under mandamus, but many of the reasons for denying mandamus are pertinent to eoram nobis analysis because, again, petitioner has asked for an extraordinary remedy. Our analysis involves balancing the Tillman factors outlined above. We do not find petitioner’s argument persuasive that, in accepting her guilty plea, the military judge committed such egregious error as to render the proceedings irregular and invalid, amounting to a miscarriage of justice. We have already found that, in light of the public policy considerations of Walter, Lenton, and Wallace, a military judge could come to a reasonable conclusion that the plea was provident. To reiterate, the critical factor in these cases is whether the check transaction was a part of, or entirely separate from, the gambling activity. Lenton, 25 C.M.R. at 197. At trial, petitioner simply said she spent all the proceeds on gambling. She did not raise any of the factors that were — 654 — present in Wallace to indicate that the club and bowling center check-cashing services facilitated her gambling activity, or that they otherwise were participants in a gambling transaction by cashing her checks. Even if we were to find that what petitioner did say should have caused the military judge to conduct further inquiry, that is a far cry from the conclusion that the proceedings were so irregular or invalid as to be characterized as a manifest miscarriage of justice. We hold, therefore, that petitioner has failed in her burden at least in regards to the last, and perhaps the most important, Tillman factor: that the error was of such fundamental nature as to render the proceedings irregular and invalid. Tillman, 32 M.J. at 965. Examining the other three Tillman factors, we find no valid reason why petitioner did not previously attack her conviction on the basis of the allegedly defective plea inquiry (factor three). Similarly, petitioner cannot sustain her burden on factor one: “[A]n error had been made that was unknown to [petitioner] during appeal.” Tillman, 32 M.J. at 965. We perceive no way that the error was not known to her, or reasonably should not have been known by her, during her Article 69(a), UCMJ, appeal. In petitioner’s own brief, she argues that the public policy considerations discussed in Wallace existed for thirty years, including at the time of her trial, and that Allbery “simply validated the 30-year old, never overruled case of Wallace.” We agree. As to the second Tillman factor (a more usual remedy is available), we find that the opportunity to raise the issue at trial, before the convening authority, and before The Judge Advocate General, are facts which strongly militate against issuance of a writ of error coram nobis. Tillman, 32 M.J. at 965. Coram nobis contemplates an error previously unknown to the petitioner and not apparent to the court during its earlier consideration of the case. Frischholz, 36 C.M.R. at 309. Neither is true in this case. The Tillman factors are not hyper-technical rules designed to set traps for the unwary criminal litigant. These factors articulate society’s interest in the finality of appeals which must be balanced against petitioner’s claimed error. The burden is heavy, and the criteria for relief necessarily more stringent than for relief on ordinary appeal. We believe the greater standard, one amounting to a strong showing of a miscarriage of justice, is required before extraordinary relief in the nature of coram nobis is granted. In our judgment, petitioner has failed to carry her burden. Accordingly, we would deny the Petition for Extraordinary Relief in the Nature of a Writ of Mandamus and a Writ of Error Coram Nobis. Chief Judge COOKE, Senior Judges EDWARDS and TOOMEY, and Judges CARTER and NOVAK concur. Footnotes [1] In her supplemental brief in support of the petition for extraordinary relief, petitioner makes no mention of her request that this court order The Judge Advocate General to send this case to us for review under Article 66, UCMJ. However, she adds a request that the court set aside the findings and sentence under Article 69(d)(2). [2] Article 69(a), UCMJ, in pertinent part, provides for the appellate review of each general court-martial resulting in a conviction that is not otherwise reviewed by the Court of Criminal Appeals. The provision specifies that the record of trial: [S]hall be examined in the office of the Judge Advocate General____ If any part of the findings or sentence is found to be unsupported in law ... the Judge Advocate General may modify or set aside the findings or sentence or both. The examination generally involves only a summarized record of trial rather than a verbatim transcript. The accused is not represented by appellate defense counsel and no briefs or oral arguments are presented. In accordance with Article 38(c), UCMJ, however, the trial defense counsel "may forward for attachment to the record of proceedings a brief of such matters as he determines should be considered in behalf of the accused on review.” Trial defense counsel also may identify legal issues that should be considered during the examination by highlighting them in the submissions provided to the convening authority under the provisions of Rule for Courts-Martial 1105, Manual for Courts-Martial, United States (1995 ed.) [hereinafter R.C.M.]. We note that the trial defense counsel in this case neither submitted an Article 38(c), UCMJ, brief nor raised any legal issues in his extensive clemency matters submitted under R.C.M. 1105. [3] United States v. Dew, ARMY 9500382 (30 Aug. 1995). [4] Under Article 69(b), UCMJ, courts-martial not reviewed under Articles 66 or 69(a), UCMJ, may be reviewed by The Judge Advocate General on the grounds specified by the statute. [5] Article 69(d) established a procedure for the Judge Advocates General to send courts-martial to the military appellate courts when the sentence was not subject to automatic review under Article 66, UCMJ, by those courts. The certification could take place either upon initial review of the court-martial or after formal review by the Judge Advocates General. See H.R. Conf. Rep. No. 101-331 (1989), reprinted in 1989 U.S.C.C.A.N. 838, 977, 1115. [6] Petitioner’s original Brief in Support of Petition for Extraordinary Relief, p. 3. [7] Congress has also conferred upon this court jurisdiction to hear certain government appeals (Article 62, UCMJ) and to review courts-martial which do not qualify under Article 66, UCMJ, when sent to us by The Judge Advocate General (Article 69(d), UCMJ). [8] See also United States v. Frischholz, 16 U.S.C.M.A. 150, 36 C.M.R. 306, 308, 1966 WL 4467 (1966) ("The All Writs Act merely makes ‘explicit the right to exercise powers implied from the creation of such courts.’ ”) (citations omitted). [9] Potential appellate jurisdiction includes cases in which the potential jurisdiction is attenuated and dependent upon the discretionary acts of others who exercise authority in the military justice system. See United States Navy-Marine Corps. Court of Military Review v. Carlucci, 26 M.J. 328, 333 (C.M.A.1988) (Extraordinary writ authority supported by "potential appellate jurisdiction” where petitioner sought to enjoin an investigation ordered by superior authority, the potential disobedience of which could subject petitioner to court-martial prosecution). [10] In fact, the posture of the case in McPhail was similar to that in this case. In McPhail, petitioner had been convicted by a general court-martial. Because the sentence did not meet the statutory threshold for review by the Air Force Court of Military Review, the case was reviewed in the Office of The Judge Advocate General of the Air Force. After that office found the case legally sufficient, McPhail petitioned the Court of Appeals for relief. 1 M.J. 457. [11] At least two other service courts apparently agree with our view. See Addis, 32 M.J. 777 (C.G.C.M.R.1991); San Antonio Express-News v. Morrow, 44 M.J. 706 (A.F.Ct.Crim.App.1996). See also Smithee v. Vorbach, 25 M.J. 561 (C.G.C.M.R.1987). [12] Article 76, UCMJ, generally provides that the appellate review of records of trial and the findings and sentences of courts-martial as reviewed or affirmed are "final and conclusive." [13] The drafters of the provision recognized that decisions otherwise final under Article 76, UCMJ, were subject to a petition for a writ of habeas corpus. See S.Rep. No. 81-486, (1949) [hereinafter S.Rep. No. 81-486], reprinted in 1950 U.S.C.C.A.N. 2222. [14] The Military Justice Act of 1968 amended Article 69, UCMJ, and gave the Judge Advocates General explicit authority to vacate a finding in a court-martial otherwise reviewed under Article 69, on the basis of error prejudicial to the substantial rights of an accused "[njotwithstanding section 876 of this title ([A]rticle 76).” See Military Justice Act of 1968, Pub.L. No. 90-632, § 30, 82 STAT. 1335 (1968), reprinted in 1968 U.S.C.C.A.N. 1570. [15] In our second specified issue, we asked what "standard of review” applied. Because mandamus and coram nobis are collateral attacks based on extraordinary circumstances, we now believe that identifying "criteria for relief” more aptly describes this step in our analysis. We see value in using a different label than "standard of review,” a term ordinarily used in the direct appeal process. [16] We note that petitioner raised the issue of the providency of her pleas for the first time after the Article 69(a), UCMJ, review was completed. [17] However, the militaiy judge is not required to "embark on a mindless fishing expedition to ferret out or negate all possible defenses.” United States v. Jackson, 23 M.J. 650 (N.M.C.M.R.1986). [18] 42 M.J. 680. [19] Our dissenting brothers posit that the validity of our rationale in Slaughter may have been called into question by our superior court's holding in Allbery. They argue that the Allbery court, in reaffirming the Wallace public policy protection, focused on the conduct of the accused rather than the collusive involvement of the club. Whatever one believes the focus of these cases to be, it must be conceded that for the public policy against the enforcement of gambling transactions to apply, the facts must demonstrate that the parties knowingly or constructively engaged in commercial intercourse involving gambling. Otherwise, the payee of a check would be left holding the proverbial bag anytime the payor claimed the proceeds were intended to be gambled and were, in fact, gambled. In addition to Slaughter, the decisions in Walter, Lenton, Wallace, and Allbery, all analyzed the factual support for concluding that the parties were engaged in gambling transactions. We conclude that Slaughter’s approach in analyzing the factual predicate for the conclusion that the club had knowingly engaged in a gambling transaction was correct. We also point out that, if Allbery represents a change in our superior court’s analytical approach, that case was decided after the Article 69(a), UCMJ, review had been completed in this case. [20] We reject the dissent’s assertion that we have "strained” petitioner's trial statements and the stipulation of fact in an effort to construe the summarized record against the petitioner or assumed facts that are not in the record as unfavorable to the petitioner. We simply have placed the burden in this extraordinary writ petition where the law directs — on the petitioner. [21] We categorically disagree with the dissent’s analysis in their Part III, entitled "Writ of Mandamus.” Contrary to their conclusions, petitioner has utterly failed in her burden to show clearly and indisputably that mandamus should issue to direct The Judge Advocate General to send this case to us under Article 69(d), UCMJ. Under Article 69(d), UCMJ, Congress gave The Judge Advocate General unqualified statutory authority to decide whether a particular case, normally reviewed by The Judge Advocate General under Article 69, UCMJ, should be sent to this court for review under Article 66, UCMJ. The dissent presumes to incorporate statements of legislative intent into Article 69(d), UCMJ, and thereby establish standards by which The Judge Advocate General must exercise his statutory discretion and upon which he may be judged when he decides not to send us the case. We reject this analysis. Moreover, the dissent utilizes an abuse of discretion standard in analyzing whether this court can order The Judge Advocate General to send us the case for Article 66, UCMJ, review. Our research reveals that the courts have only applied such a standard for mandamus in cases in which the convening authority has denied deferment of confinement under Article 57(d), UCMJ, when the discretionary decision is “suffused with legal error.” Longhofer v. Hilbert, 23 M.J. 755 (A.C.M.R.1986) (citing Pearson v. Cox, 10 M.J. 317 (C.M.A.1981)). See also United States v. Brownd, 6 M.J. 338 (C.M.A.1979). We believe the proper criteria in this case is that the petitioner has the heavy burden to show clearly and indisputably that she is entitled to mandamus based on The Judge Advocate General’s usurpation of power, beyond gross error, in not sending this case to us. "Mandamus is not available to compel either a judicial or executive officer to exercise discretion in such a way as to reach a particular result.” Wean v. Holder, 47 M.J. 540 (Army Ct.Crim.App. 1997). Finally, the dissent’s argument that the number of Article 69(d), UCMJ, referrals "could be 'characterized as an erroneous practice which is likely to recur' ” is meritless and warrants no further comment.