Enzor v. United States

Opinion Quinn, Chief Judge: A general court-martial convened at Fort Hood, Texas, convicted the petitioner of a number of oifenses in violation of the Uniform Code of Military Justice. He contends that the conviction is void under O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969), and United States v Borys, 18 USCMA 547, 40 CMR 259 (1969), because the offenses charged were “cognizable” in a civilian criminal court in Texas and had no element of military significance to justify the exercise of court-martial jurisdiction. In Mercer v Dillon, 19 USCMA 264, 265, 41 CMR 264 (1970), we held that the limitation on court-martial jurisdiction delineated in O’Callahan and applied in Borys did not extend retrospectively to cases concluded before promulgation of the O’Callahan opinion on June 2, 1969. The petitioner was convicted and sentenced on April 2, 1968. On review before the board of review, he assigned a variety of errors, including one to the effect that the court-martial had no cognizance over the offenses, which was predicated upon the grant of certiorari by the Supreme Court of the United States in the O’Callahan case and grant of review by this Court in the Borys case. On May 5, 1969, the board of review affirmed the conviction. It rejected the petitioner’s challenge to the court-martial’s authority over the offenses on the ground that established judicial precedent “affirmatively recognized” the exercise of court-martial jurisdiction. A year later, the petitioner filed with the United States Army Court of Military Review, as successor to the board of review, a motion for relief in the nature of coram nobis in which he again disputed the exercise of court-martial jurisdiction over the offenses charged. See United States v Borys, supra; United States v Shockley, 18 USCMA 610, 40 CMR 322 (1969). He contended that, since under the Uniform Code, he had thirty days within which to appeal to this Court from the decision of the board of review, his conviction was not final as of June 2, 1969, the effective date of the O’Callahan decision. In support of this contention, he relied upon Mercer v Dillon, supra. Sitting, en banc, a divided Court of Military Review denied the application. Thereupon, the petitioner filed this application for collateral relief from the conviction. Petitioner’s view of Mercer is overdrawn. For compelling reasons, in Mercer, at page 265, this Court restricted application of the newly-promulgated limitation on the exercise of court-martial jurisdiction to prosecutions begun after June 2, 1969, the date of publication of the O’Callahan decision, but mindful of the stages of appellate review allowed by the Uniform Code, it pointed out the necessity for [259] retroactive application of O’Callahan to the group of “cases still subject to direct review” as of June 2, 1969. Mercer referred to, and contemplated, a class of accused still entitled to appeal from affirmance of their respective convictions by service boards of review, within a limited period, to this Court. The conviction of an accused in that small group was final as of the date of affirmance by the board of review, and the sentence could be immediately ordered into execution, if the accused elected not to appeal. United States v Green, 10 USCMA 561, 28 CMR 127 (1959). It did not refer to, or contemplate, retroactive application of O’Callahan to an accused whose conviction was affirmed by the board of review before O’Callahan and who did not appeal to this Court within the time allowed by the Uniform Code. In fact, in United States v Brown, 19 USCMA 629 (1970), the Court specifically declined to apply the O’Callahan rule retroactively to an accused whose conviction had been affirmed by the board of review before June 2, 1969, but who decided not to appeal to this Court until the time allowed by the Uniform Code had expired. No persuasive reason appears to overrule Brown and enlarge the limits of retroactive application defined in Mercer because the petitioner has elected a different proceeding. The title of a pleading is unimportant; what is important is the nature of the relief requested. This petitioner, as the petitioner in Brown, is outside the class of accused entitled to limited retroactivity. Mercer defined an accused within the class as one to whom affirmance by the board of review was not the final judicial action in the case sufficient to authorize execution of the sentence. Stated otherwise, the conviction was one in which the sentence was not yet ripe for execution. Since this petitioner took no action in regard to the decision of the board of review, that decision authorized execution of the sentence. The board of review’s decision was promulgated before June 2, 1969, and it was the final judicial action in the case upon which to predicate execution of the sentence. The limited retroactivity of O’Callahan delineated in Mercer is, therefore, inapplicable. The motion for extraordinary relief is denied.