Air Force Court of Criminal Appeals

Updated: ​No. 24-0033/AF. Gregory P. Banker, Petitioner v. United States, Respondent. CCA 2022-01. Notice is given that a motion for enlargement of time to file a writ-appeal petition for review of the decision of the United States Air Force Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on November 9, 2023, and placed on the docket November 9, 2023. On consideration thereof, it is ordered that the motion is granted to December 14, 2023.

United States v. Banker

Remember United States v. Banker, 60 M.J. 216 (C.A.A.F. 2004) and United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011)? Cossio-like, Banker is back before the appellate courts. For those considering coram nobis, the AFCCA has provided a decent outline to get you started.

Petitioner requested this court issue “a writ of error coram nobis setting aside his 9 February 2001 conviction, as it was based upon false testimony.”

On 6 February 2023, we returned the record for a hearing in accordance with United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967) (per curiam). In re Banker, Misc. Dkt. No. 2022-01, 2023 CCA LEXIS 61, at *8 (A.F. Ct. Crim. App. 6 Feb. 2023) (unpub. op.). We asked that the detailed military judge conducting the hearing make findings of fact on Denedo1 factors (3) and (4), specifically addressing:

     (1) The circumstances surrounding LG’s recantation(s) of her testimony from Petitioner’s court-martial, including when Petitioner learned that LG was recanting. (Denedo factor (3)). (2) The circumstances leading to Petitioner filing his Petition for Extraordinary Relief in the Nature of a Writ of Error Coram Nobis in January 2022, nearly 21 years after his conviction. (Denedo factor (3)). (3) The circumstances relating to LG’s 28 October 2021 affidavit statement2 that LG would have admitted her allegations were untrue to any investigator or participant to the court-martial, had she been asked directly, before Petitioner was convicted. (Denedo factor (4)).

Id. at *8–9. Understanding that in consideration of the Denedo factors, evidence relating to LG’s veracity and Petitioner’s underlying request may be revealed, we specifically did not request findings of fact on the merits of Petitioner’s request for a new trial. Because we find Petitioner has not met all six threshold requirements for the court to grant a writ of coram nobis, we do not evaluate whether a new trial would be warranted. We find a writ should not issue.