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Adams is the first decision of this season. A writ appeal petition is dismissed for lack of jurisdiction, thus affirming ACCA's summary dismissal for lack of jurisdiction over his habeas petition. Although charges against Appellant were first referred to a general court-martial in 2012, his case did not come before this Court on direct review until 2020. In its decision on direct review, this Court affirmed some findings, set aside other findings, and set aside the sentence. At a rehearing on the sentence in 2022, a military judge sentenced Appellant to a reduction to the grade of E-1, confinement for 260 months, and a dishonorable discharge. The ACCA summarily affirmed the sentence in an unpublished per curiam decision. United States v. Adams, No. 25-0217, 2025 CAAF LEXIS 939, at *1-2 (C.A.A.F. Nov. 12, 2025).
CAAF specified two issues: (1) did ACCA lack jurisdiction over the habeas petition, and (2) does CAAF have jurisdiction . . . after a court-martial is final under Article 76, UCMJ, 10 U.S.C. 876 (2018), in noncapital cases when a punitive discharge or dismissal has been executed. The bottom line is (1) yes and (2) no. Neither a CCA nor CAAF has jurisdiction on the facts here. It's a question of finality. CAAF relies on Article 76, unamended since 1956, and Hendrix v. Warden, 49 C.M.R. 146 (C.M.A. 1974). The All Writs Act does not "increase the areas of this Court's jurisdiction[.]" Hendrix holding has not been called into question. See also Clinton v. Goldsmith, 526 U.S. 529, 536 (1999) ("Simply stated, there is no source of continuing jurisdiction for the CAAF over all actions administering sentences that the CAAF at one time had the power to review."). CAAF notes that Denedo distinguishes habeas jurisdiction from coram nobis. However, part of Adams's challenge was that his discharge was invalid, which got him jurisdiction--an argument CAAF rejected. A second point raised was that a military conviction is not final until the time to petition the Supreme Court expires or a petition at the Supreme Court is filed and resolved. CAAF rejects this argument as well. Note the final paragraph, which relates to the old rules for Supreme Court access. "Congress considered the issue of extending finality until after the Supreme Court denied review, but chose in Article 71(c)(1)(C), UCMJ, to do so only in cases in which this Court has granted review of a petition and "review is completed." Article 71(c)(1)(C), UCMJ, does not apply here because this Court did not grant Appellant's petition for review." We are now operating under new rules that give greater access. Does that change the answer for future cases? Suppose Adams is still confined, or is released on parole or supervised release (or on SOR, a newly evolving issue). He can petition for habeas relief under 28 U.S.C. § 2241 in federal district court. His issue in the military habeas petition was an R.C.M. 707 violation, notably not his Sixth Amendment right to a speedy trial. Thus, a habeas is unlikely to succeed, especially if a district court were to find that the military appellate courts had fully and fairly considered the issue--to which a footnote that "the court has fully considered the issues raised by Appellant, including those under Grostefon , and they are without merit," usually suffices. Adams was initially convicted of sexually abusing five minors over seven years, for which he was sentenced to Life W/parole. His first appearance at ACCA got him a retrial based on Hills. His second visit led to some interesting discussions about speedy trial, double jeopardy, and statutes of limitation. Should Congress revisit Article 71(c)(1)(C)? Does/should it matter when the appellant has access to an Article III court? United States v. Viaud.
(1) whether the Government committed a violation of Article 13, UCMJ, when it failed to request civilian law enforcement personnel take down a mugshot of Appellant they had published online while holding him in pretrial confinement at the military’s request, and (2) whether arbitrarily treating military pretrial confinees in civilian facilities differently from those in military brigs with respect to public-facing mugshots is a denial of equal protection in violation of the Due Process Clause of the Fifth Amendment. Appellant claimed that he suffered pretrial punishment when the local sheriff posted his mugshot. NMCCA summarizes its view of the current law on waiver and whether the mugshot is pretrial punishment for which confinement credit may be given. [A]ppellate courts, when faced with question of whether an appellant has waived a constitutional right, apply a presumption against finding waiver. United States v. Blackburn, 80 M.J. 205, 209 (C.A.A.F. 2000) (citing United States v. Jones, 78 M.J. 37, 44 (C.A.A.F. 2018)). The CAAF recently explained in United States v. Suarez: “A criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution.” United States v. Mezzanatto, 513 U.S. 196, 201 (1995).However, “. . . ‘for a waiver to be effective it must be clearly established that there was an intentional relinquishment of a known right or privilege.’” 18 __ M.J. __, No. 25-0004/MC, 2025 CAAF LEXIS 651, at *13 (C.A.A.F. Aug. 5, 2025) (quoting United States v. Smith, 85 M.J. 283, 287 (C.A.A.F. 2024)). Importantly, the CAAF has considered violations of Article 13 for the first time on appeal absent affirmative waiver of unlawful pretrial punishment at trial. United States v. Fricke, 53 M.J. 149, 154 (C.A.A.F. 2000) (citing United States v. Huffman, 40 M.J. 225, 227 (C.M.A. 1994))." (Ed. note. (Former LCDR) Fricke was a memorable client of Code 45. He was murdered while at the USDB. Cases of civilian pretrial confinement conditions arise from time to time where the local Sheriff is contracted to hold servicemembers in pretrial confinement on behalf of the military. When that happens, “Pretrial confinement in a civilian jail is subject to the same scrutiny as confinement in a detention facility operated by the military.” United States v. James, 28 M.J. 214, 215 (C.M.A. 1989)." NMCCA held no Article 13 violation. "The military judge concluded that the RRJ had a legitimate reason for the online mugshot based on the evidence.36 Like in James, the military judge decided there was no Article 13 violation, and the complained of condition was rationally related to reasonable operating procedures of the facility and not so “excessive” as to rise to the level of punishment." Also, there was no equal protection violation when comparing the Appellant’s situation with that of those in pretrial confinement in a military confinement facility. |
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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