Berry v. Judges of the United States Army Court of Military Review

Opinion of the Court SULLIVAN, Chief Judge: The accused (now deceased) was tried by a general court-martial composed of officer and enlisted members on May 1 and 2, 1991, at Garlstedt, Germany. Pursuant to his pleas, he was found guilty of desertion and fourteen specifications of wrongfully making and uttering checks, in violation of Articles 86 and 123a, Uniform Code of Military Justice, 10 USC §§ 886 and 923a, respectively. He was sentenced to a bad-conduct discharge, confinement for 40 months, total forfeitures, a fine of $7000, and reduction to Private E-l. On September 27, 1991, the convening authority ap [159] proved the adjudged sentence except for the $7000 fine; in accordance with a pretrial agreement, he suspended for 12 months confinement in excess of 30 months, with provision for automatic remission. The Court of Military Review affirmed on December 31, 1991, without opinion. The accused was served with a copy of the Court of Military Review decision in his case on March 20, 1992. He was notified that he had 60 days from the date of this service to petition the United States Court of Military Appeals. The accused died on May 13, 1992, without filing such a petition with this Court.1 Approximately 7 days remained in the above statutory filing period.2 Appellate defense counsel on behalf of the accused filed a Motion to Abate the Proceedings with the Court of Military Review on July 16, 1992. The Government opposed the motion on July 23, 1992, and the Court of Military Review denied this motion on July 24, 1992. On July 31, 1992, appellate defense counsel filed a motion for reconsideration with that court. The court denied that motion on August 10,1992. On August 27, 1992, appellate defense counsel filed a motion for en banc reconsideration which was denied by the court on September 10, 1992. Appellate defense counsel on behalf of the accused (then deceased) filed a petition for extraordinary relief in the nature of a Writ of Mandamus with this Court on September 18, 1992. They sought an order from this Court directing the judges of the Court of Military Review “to abate the appellate proceedings against appellant, reconsider its decision dated 31 December 1991, set aside the findings and sentence, and restore all rights and privileges of petitioner.” (Reference omitted.) On October 14, 1992, we directed the Government to show cause why the requested relief should not be granted. On December 3, 1992, we directed oral argument which took place on January 6, 1993. Article 71, UCMJ, 10 USC § 871, states in pertinent part: (c)(1) If a sentence extends to death, dismissal, or a dishonorable or bad-conduct discharge and if the right of the accused to appellate review is not waived, and an appeal is not withdrawn, under section 861 of this title (Article 61), that part of the sentence extending to death, dismissal, or a dishonorable or bad-conduct discharge may not be executed until there is a final judgment as to the legality of the proceedings (and with respect to death or dismissal, approval under subsection (a) or (b), as appropriate). A judgment as to legality of the proceedings is final in such cases when review is completed by a Court of Military Review and— (A) the time for the accused to file a petition for review by the Court of Military Appeals has expired and the accused has not filed a timely petition for such review and the case is not otherwise under review by that Court; (B) such a petition is rejected by the Court of Military Appeals; or (C) review is completed in accordance with the judgment of the Court of Military Appeals and (i) a petition for a writ of certiorari is not filed within the time limits prescribed by the Supreme Court; [160] (ii) such a petition is rejected by the Supreme Court; or (iii) review is otherwise completed in accordance with the judgment of the Supreme Court. (Emphasis added.) See also RCM 1209, Manual for Courts-Martial, United States, 1984. The accused died after review of his court-martial was completed by the Court of Military Review but before the time to file a petition in this Court had expired. Thus, his conviction was not final and, under our precedents, abatement of the proceedings against him is appropriate. See United States v. Kuskie, 11 MJ 253 (CMA 1981); see also United States v. Lange, 18 MJ 162 (CMA 1984); United States v. Roettger, 17 MJ 453 (CMA 1984) (and cases cited therein). This practice is generally consistent with the practice in Federal courts of appeals. See, e.g., United States v. Davis, 953 F.2d 1482, 1486 (10th Cir.), cert. denied, — U.S.-, 112 S.Ct. 2286, 119 L.Ed.2d 210 (1992); United States v. Pauline, 625 F.2d 684, 685 (5th Cir.1980). The Government notes the discretionary nature of review in this Court and urges us to equate a petition for review here to a petition for certiorari in the Supreme Court. See generally Dove v. United States, 423 U.S. 325, 96 S.Ct. 579, 46 L.Ed.2d 531 (1976). We have considered this argument before and rejected it. See United States v. Kuskie, supra at 254-55. Again, we recognize the difference in the accused’s review posture before this Court (see Art. 67(a)(3); Rules 4(a)(3) and 21(a), Rules of Practice and Procedure, United States Court of Military Appeals, requiring “good cause” for review); and in his posture before the Supreme Court (see 28 USC §§ 1254(1) and 1259; Supreme Court Rule 10.1 and .2 and 17 — requiring “special and important reasons” for review); L. Griffin, Federal Criminal Appeals § 8.3(1) at 8-36 (1992). Again, we hold that the practice in the Federal courts of appeals is more analogous. Id. § 3.3 at 3-18. See generally 9 Moore’s Federal Practice § 203.03-04 at 3-14 (2d ed.1992). Whether the Court of Military Review should have granted a petition for reconsideration in this case on this basis need not be decided. See United States v. Roettger, supra; cf. United States v. Lange, supra. Moreover, in view of the appellate - defense - counsel - representation form signed by the accused before his death, we hold that his counsel had authority to maintain this action. See United States v. Chin, 848 F.2d 55 (4th Cir.1988); cf. United States v. Dwyer, 855 F.2d 144, 145 (3d Cir.1988). Finally, we clearly can grant appropriate relief under the All Writs Act—28 USC § 1651(a); see also United States v. Oberlin, 718 F.2d 894, 896 (9th Cir.1983). See generally Noyd v. Bond, 395 U.S. 683, 89 S.Ct. 1876, 23 L.Ed.2d 631 (1969). Accordingly, mandamus need not be ordered in this case to afford the appropriate relief requested. The petition for extraordinary relief is granted. The decision of the United States Army Court of Military Review is reversed. The findings and sentence are set aside. The charges are dismissed. All rights, privileges, and property of which the accused has been deprived by virtue of the findings of guilty and the sentence are hereby ordered restored. Judge COX concurs. Footnotes [1] We note that the accused raised certain issues before the Court of Military Review pursuant to United States v. Grostefon, 12 MJ 431 (CMA 1982), and noted "his deteriorating health condition due to AIDS.” He died, however, as a result of a "vehicular homicide." [2] A general court-martial order (No. 57) was issued in this case by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Oklahoma, on June 22, 1992, purporting to order the accused’s discharge executed. However, this order is a legal nullity because the decision below is not final under Article 71, Uniform Code of Military Justice, 10 USC § 871. Counsel have represented that this order will be rescinded after this Court rules on the accused’s challenge.