Army Court of Criminal Appeals--Steele

Steele presents an interesting issue of new claims on or after remand.

In addition to this initial plenary appellate review under Article 66, a non­ trivial number of appeals return to this court following either a remand to the trial level for a rehearing on findings and/ or sentence (like this case), or following remand from the Court of Appeals for the Armed Forces [CAAF] for additional proceedings in our court. See, e.g., United States v. Sanchez, ARMY 20140735, 2019 CCA LEXIS 164 (Army Ct. Crim. App. 10 Apr. 2019) (summ. disp). When cases come back in these ways, sometimes appellants press new claims of error that they did not raise in their first appeal. In some instances, we have reached the merits of the new claim or claims. See, e.g., United States v. Hemmingsen, ARMY 20180611, 2021 CCA LEXIS 180, at *3 (Army Ct. Crim. App. 15 Apr. 2021) (mem. op.) (concluding that considering the new issues was within the scope of the CAAF's remand order). In other appeals we have held that the newly-raised claim is not properly before us. See, e.g., United States v. Navarette, ARMY 20160786, 2022 CCA LEXIS 255, at *11 (Army Ct. Crim. App. 29 Apr. 2022) (citing United States v. Smith, 41 M.J. 385,386 (C.A.A.F. 1995), for the proposition that "[w]hile [an] appellant is entitled to plenary review under Article 66 ... he is only entitled to one such review."). 
. . .
Successive appeals from the same appellant are not unique to our court. In the federal system, all the federal circuit courts of appeal, as well as the United States Supreme Court, employ the so-called "cause and prejudice" standard when determining whether to provide relief for a new claim not raised during an earlier appeal from the same appellant. This standard asks first whether there was some "good reason" ( e.g., "cause") for appellant's failure to raise the claim in the prior appeal. Appellants can establish "cause" in a number of ways, to include showing that: 1) their prior counsel rendered constitutionally ineffective assistance; 2) the "factual or legal basis for [the new] claim was not reasonably available" to the prior counsel, or; 3) there was some official interference with the appellant's ability to raise the new claim in the prior proceeding. In addition to cause, appellants must show that they suffered "actual prejudice" because of the newly-raised claim, meaning that there was a "substantial likelihood" that, but for the arguendo error presented anew, the result of their trial would have been different.

Basically, if you can't clear the test above, the issue is procedurally forfeited. The court does not that the newly alleged constitutional error was, to say the least, novel.

Cheers, Phil Cave.