TRIAL STAGES: Writs and Interlocutory Appeals: All Writs Act (2024)

TRIAL STAGES: Writs and Interlocutory Appeals: All Writs Act

2022 (October Term)

M.W. v. United States, 83 M.J. 361 (the All Writs Act does not provide the CAAF with jurisdiction to grant a victim of charged offenses a writ of mandamus to challenge a military judge’s decision that the victim’s counsel could not communicate with the trial counsel over how the government might exercise challenges to some members; the All Writs Act is not an independent grant of jurisdiction, nor does it expand a court’s existing statutory jurisdiction; because Article 6b(e) is a unique grant of statutory authority that limits appellate jurisdiction to the CCA, a victim of an offense cannot use that article and the All Writs Act to artificially extend this Court’s existing statutory jurisdiction; as currently written, neither the language of Article 6b, UCMJ, nor any other statute, grants the CAAF the necessary jurisdictional authority to review a petition filed by a victim of an offense).

2016 (October Term)

Randolph v. HV, 76 M.J. 27 (the All Writs Act is not an independent grant of jurisdiction, nor does it expand a court’s existing statutory jurisdiction).

(under the All Writs Act, CAAF has authority to act in aid of its existing jurisdiction when the harm alleged has the potential to directly affect the findings and sentence).

2015 (September Term)

Howell v. United States, 75 M.J. 386 (the All Writs Act grants the power to all courts established by Act of Congress to issue all writs necessary or appropriate in aid of their respective jurisdiction and agreeable to the usages and principles of law; the All Writs Act is not an independent grant of jurisdiction, nor does it expand a court’s existing statutory jurisdiction; rather, the All Writs Act requires two determinations: (1)whether the requested writ is “in aid of” the court’s existing jurisdiction, and (2)whether the requested writ is “necessary or appropriate”).

(under the circ*mstances of this case, the CCA had jurisdiction under the All Writs Act to entertain a government’s petition for an extraordinary writ to remedy an alleged Article 13, UCMJ, violation; based on the CCA’s statutory jurisdiction under Article 66, UCMJ, jurisdiction under the All Writs Act for CCAs included matters that had the potential to directly affect the findings and sentence; because the government’s specific complaint in this case regarding the military judge’s ruling on confinement credit under Article 13, UCMJ, directly affected the findings and sentence, the CCA had jurisdiction to issue a writ).

(a writ of prohibition, like mandamus, is a drastic instrument which should be invoked only in truly extraordinary situations; to prevail, the petitioner must show that (1) there is no other adequate means to attain relief, (2) the right to issuance of the writ is clear and indisputable, and (3) the issuance of the writ is appropriate under the circ*mstances).

EV v. United States, 75 M.J. 331 (CAAF clearly has authority, in a proper case, to grant mandamus and other extraordinary or prerogative writs under the All Writs Act, 28USC §1651; however, it is axiomatic that the All Writs Act is not an independent source of jurisdiction; it does not expand CAAF’s jurisdiction, but only operates “in aid of” its existing statutory jurisdiction).

(in this case, where an alleged sexual assault victim seeks a writ of mandamus from CAAF to correct an alleged abuse of discretion by the military judge relating to the release of certain of her mental health records to the defense, and where the CCA, to whom the petition was first directed under Article 6b(e), UCMJ, denied relief, CAAF lacks jurisdiction to decide the petition on the merits; Article 6b, UCMJ, is quite straightforward; it is a clear and unambiguous grant of limited jurisdiction to CCAs to consider petitions by alleged victims of sexual assault for a writ of mandamus to require a court-martial to comply with MRE 513, relating to the psychotherapist-patient privilege and MRE 412, relating to the admission of evidence regarding a victim’s sexual background; there is no mention whatsoever of CAAF; Congress having legislated in this area and bestowed certain third-party rights on alleged victims, CAAF must be guided by the choices Congress has made; Congress certainly could have provided for further judicial review in this novel situation, but it did not; Congress having now legislated in the area, CAAF is bound by the choices it made).

2012 (September Term)

LRM v. Kastenberg, 72 M.J. 364 (the All Writs Act grants the power to all courts established by act of Congress to issue all writs necessary and appropriate in aid of their respective jurisdiction and agreeable to the usages and principles of law; extraordinary writs serve to confine an inferior court to a lawful exercise of its prescribed jurisdiction).

(military courts, like Article III tribunals, are empowered to issue extraordinary writs under the All Writs Act).

(the All Writs Act is not an independent grant of jurisdiction, nor does it expand a court’s existing statutory jurisdiction; rather, the All Writs Act requires two determinations: (1) whether the requested writ is in aid of the court’s existing jurisdiction; and (2) whether the requested writ is necessary or appropriate).

(in the context of military justice, the All Writs Act in aid of jurisdiction includes cases where a petitioner seeks to modify an action that was taken within the subject matter jurisdiction of the military justice system; a writ petition may be in aid of a court’s jurisdiction even on interlocutory matters where no finding or sentence has been entered in the court-martial).

(to establish subject-matter jurisdiction over a writ petition, the harm alleged must have had the potential to directly affect the findings and sentence; there is no jurisdiction to adjudicate what amounts to a civil action, maintained by persons who are strangers to the courts-martial, asking for relief that has no bearing on any findings and sentence that may eventually be adjudged by the court-martial).

(the All Writs Act, 28 USC § 1651, and Article 66, UCMJ, 10 USC § 866, established the CCA’s jurisdiction to hear the writ petition of a rape victim who invited the CCA to evaluate whether a military judge can limit the victim’s right to be heard under MRE 412 and 513 by precluding the victim from presenting the basis for a claim of privilege or exclusion, with or without counsel, during an ongoing general court-martial; the military judge’s ruling had a direct bearing on the information that would be considered by the military judge when determining the admissibility of evidence, and thereafter the evidence considered by the court-martial on the issues of guilt or innocence - which would form the very foundation of a finding and sentence; furthermore, unlike strangers to the courts-martial, the petitioner was the named victim in a court-martial seeking to protect the rights granted to her by the President in duly promulgated rules of evidence, namely to a claim of privilege under MRE 513 and a right to a reasonable opportunity to be heard under MRE 412(c)(2) and 513(e)(2); the victim was not seeking any civil or administrative relief; rather, she was seeking her right to be heard pursuant to the MRE; thus, the harm alleged had the potential to directly affect the findings and sentence, and the CCA had jurisdiction over the writ petition).

(a writ of mandamus was not the appropriate remedy to direct the military judge to provide an opportunity for the named victim in a rape prosecution to be heard through counsel at hearings conducted pursuant to MRE 412 and 513, and to receive any motions or accompanying papers reasonably related to her rights as those may be implicated in those hearings; although the military judge’s ruling must be based on a correct view of the law, and MRE 412 and 513 create certain privileges and a right to a reasonable opportunity to be heard on factual and legal grounds, which may include the right of a victim or patient who is represented by counsel to be heard through counsel, these rights are subject to reasonable limitations and the military judge retains appropriate discretion under RCM 801, and the law does not dictate the particular outcome that the victim requests).

Center for Constitutional Rights v. United States, 72 M.J. 126 (the CAAF is empowered to issue extraordinary writs under the All Writs Act; that Act 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; the express terms of the Act confine the power of the CAAF to issuing process in aid of its existing statutory jurisdiction; the Act does not enlarge that jurisdiction; as noted by the Supreme Court, the CAAF is not given authority, by the All Writs Act or otherwise, to oversee all matters arguably related to military justice; the Act does not increase the areas of the CAAF’s jurisdiction beyond the limitations set out in Article 67, UCMJ).

2008 (Transition)

Denedov. United States, 66 M.J. 114 (the All WritsAct provides that all courtsestablished by Act of Congress may issue all writs necessary orappropriate inaid of their respective jurisdictions and agreeable to the usages andprinciples of law; the Act requires two separate determinations: first, whether the requested writ is in aidof a court’s jurisdiction; and second, whether the requested writ isnecessaryor appropriate).

(although military appellatecourts are amongthose empowered to issue extraordinary writs under the All Writs Act,the Actconfines a court to issuance of process in aid of its existingstatutoryjurisdiction and does not enlarge that jurisdiction).

(the CAAF is not givenauthority, by the AllWrits Act or otherwise, to oversee all matters arguably related tomilitaryjustice, or to act as a plenary administrator even of criminaljudgments it hasaffirmed; there is no source of continuing jurisdiction for the CAAFover allactions administering sentences that it at one time had the power toreview).

(when courts within themilitary justicesystem lack subject matter jurisdiction over an action, such as anadministrative separation, they cannot invoke the All Writs Act toenlargetheir jurisdiction to review the administrative action, even if it isbasedupon the results of a court-martial).

(when a petitioner seekscollateral relief tomodify an action that was taken within the subject matter jurisdictionof themilitary justice system, such as the findings or sentence of acourt-martial, awrit that is necessary or appropriate may be issued under the All WritsAct inaid of the court’s existing jurisdiction).

(ondirect appeal in courts-martial in whichthe sentence extends to a punitive discharge, the CCA conducts a denovo reviewof the findings and sentence approved by the convening authority; anyrequestfor coram nobis relief is limited to the findings and sentence of thecourt-martial reviewed by the CCA; where, as in this case, appellanthas raiseda claim of ineffective assistance of counsel that goes directly to thevalidityand integrity of the judgment rendered and affirmed, a petition forwrit oferror coram nobis was in aid of the existing jurisdiction of the CCA).

(because theAll Writs Act serves as aresidual authority, a writ is not necessary or appropriate under thestatute ifanother adequate legal remedy is available; the determination ofwhetheranother remedy is adequate requires a contextual analysis).

(a writ of error coram nobisshould be broughtbefore the court that rendered the judgment).

(in the military justicesystem, the trialcourt - the court-martial - does not have independent jurisdiction overa caseafter the military judge authenticates the record and the conveningauthorityforwards the record after taking action; because the trial court is notavailable for collateral review under the UCMJ or the MCM, collateralreviewwithin the military justice system does not occur at the trial courtlevel).

(the courts of criminalappeals, thefirst-level standing courts in the military justice system, provide anappropriate forum for consideration of coram nobis petitions regardingcourts-martial; during the initial consideration of a case, they engagein denovo consideration of the record and expressly act on the findings andsentence; with respect to collateral review of the present case, theyare well-positionedto determine whether corrective action on the findings and sentence iswarranted, including ordering any factfinding proceedings that may benecessary).

(the court of criminal appealsis anappropriate forum to receive and consider a writ of coram nobis thatinvolves acollateral challenge to that court’s approval of the findings andsentence in acourt-martial, where the court-martial that convicted appellant hadjurisdiction over both the person and the offense and the court ofcriminalappeals had jurisdiction to review and approve the findings andsentence ondirect review).

(a writ of error coram nobisrequests thecourt that imposed the judgment to consider exceptional circ*mstances,such asnew facts or legal developments, that may change the result).

(the decision of the court of criminal appealson a writ petition is subject to appellate review).

(coram nobis permits continuation oflitigation after final judgment and exhaustion or waiver of anystatutory rightof review, but only under very limited circ*mstances; although apetition maybe filed at any time without limitation, a petitioner must meetstringentthreshold requirements: (1) the allegederror is of the most fundamental character; (2) no remedy other thancoramnobis is available to rectify the consequences of the error; (3) validreasonsexist for not seeking relief earlier; (4) the new information presentedin thepetition could not have been discovered through the exercise ofreasonablediligence prior to the original judgment; (5) the writ does not seek toreevaluate previously considered evidence or legal issues; and (6) thesentencehas been served, but the consequences of the erroneous convictionpersist).

(when reviewing an ineffective assistance ofcounsel claim raised via a coram nobis petition, petitioner must firstsatisfy thethreshold requirements for a writ of coram nobis; if the petitionerdoes so,the court then analyzes, in the second tier, the ineffective assistanceofcounsel claim under Strickland v.Washington, 466 US 668 (1984)).

(where a claim arises under the All Writs Act,the petitioner must establish a clear and indisputable right to therequestedrelief).

(appellant’s coram nobis petition challenginghis court-martial conviction on the ground that his counsel wasineffective forfailing to inform him of the immigration consequences of his guiltypleas metthe threshold requirements of coram nobis review; although appellanthad servedhis sentence, the alleged error was of the most fundamental character,therewas no other adequate remedy because appellant was not in custody andcould notobtain relief through a writ of habeas corpus, appellant did not seekearlierrelief because the immigration consequences of his pleas did not becomeknownto him until the government initiated deportation proceedings, the newinformation about the immigration consequences could not have beendiscoveredthrough the exercise of reasonable diligence prior to the originaljudgment,the writ does not seek to reevaluate previously considered evidence orlegalissues, and the sentence has been served, but serious consequencespersist –the initiation of deportation proceedings that rely primarily onappellant’scourt-martial conviction as the basis for deportation).

(appellant’s claim that he receivedineffective assistance of counsel in a court-martial proceeding whenhiscounsel told him that he would not face deportation if he pleadedguilty at aspecial court-martial facially established a sufficient basis for coramnobisreview, but a ruling on his petition would be premature without agovernmentresponse and consideration by the court of criminal appeals as towhether hiscounsel’s performance was deficient and, if so, whether appellant wasprejudiced thereby).

2006

Lovingv.United States, 62 M.J. 235 (while the All Writs Act authorizesemploymentof extraordinary writs, it confines the authority to the issuance ofprocess inaid of the issuing court’s jurisdiction; the Act does not enlarge thatjurisdiction;the power of the U.S. Court of Appeals for the Armed Forces under theAll WritsAct is essentially equitable and, as such, not generally available toprovidealternatives to other adequate remedies at law; a writ may not be usedwhenanother method of review will suffice; the All Writs Act is a residualsourceof authority to issue writs that are not otherwise covered by statute;where astatute specifically addresses the particular issue at hand, it is thatauthority, and not the All Writs Act that is controlling).

(awrit of errorcoram nobis remains appropriate when no other remedy is available; if acourtmay issue a writ of habeas corpus under the All Writs Act to addressissuesraised by petitioner, a coram nobis writ is not appropriate; the U.S.Court ofAppeals for the Armed Forces is empowered under the All Writs Act tograntextraordinary relief where appropriate; the writ of habeas corpus isavailableto the military accused and may be filed in this Court under the AllWrits Act,28 U.S.C. § 1651(a); the writ of coram nobis is thus an inappropriateprocedural vehicle for a petitioner to challenge the legality of hisdeathsentence because a writ of habeas corpus is the proper pleading).

2005