Argument Preview: United States v. Denedo
Stanford Law School student Josh Friedman previews the March 25 argument in US v. Denedo (08-267). Additional information and filings are available on SCOTUSwiki, here.
Does the Court of Appeals for the Armed Forces have jurisdiction to reverse a former service member's court-martial when the convicted individual learns, seven years later, that his lawyer was afflicted by severe alcoholism? On Wednesday, March 28th, 2009, the Supreme Court will hear argument on this question in case No. 08-267, United States v. Denedo. Jacob Denedo hopes the Court will agree with the court below and affirm that the answer is yes.
Born in Nigeria, Mr. Denedo came to the United States in 1984. In 1989, he enlisted in the U.S. Navy, becoming a lawful permanent resident one year later. In 1998, the Navy brought criminal charges against him in connection with the alleged defrauding of a community college. With the assistance of both civilian and military counsel, Mr. Denedo pleaded guilty in exchange for a reduction in the charges and the opportunity to be tried in a special court-martial that could not impose a sentence greater than six months. He was sentenced to (among other penalties) three months' confinement, and received a bad-conduct discharge by the court-martial that resulted in his departure from the Navy in May 2000.
On October 30, 2006, the government initiated deportation proceedings, citing the court-martial conviction as justification. Shortly thereafter, Mr. Denedo filed a petition for extraordinary relief (also known as a writ of error coram nobis) in the Navy-Marine-Corps Court of Military Appeals (N-MCCA), seeking collateral review of his court-martial on the ground that he received ineffective assistance of counsel. Specifically, he alleged that although he had explicitly asked his attorneys about the possibility of deportation, he had never been informed that he could be deported as a result of his plea. He presented evidence in support of his ineffective assistance allegation"”including evidence that his lead counsel suffered from alcoholism"”but his petition was denied.
Relying on the catch-all jurisdictional grant in the All Writs Act, 28 U.S.C. § 1651(a), which provides that "[t]he Supreme Court and 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 principle of law," Mr. Denedo next sought relief in the Court of Appeals for the Armed Forces ("CAAF"). That court granted the motion but remanded the case to the N-MCCA for further consideration. It explained that the All Writs Act required it to determine whether the writ of error coram nobis was (1) "in aid of" a court's jurisdiction; and (2) "necessary or appropriate." Applying that test to Mr. Denedo's petition, the CAAF first reasoned that the writ was properly "in aid of" its jurisdiction because the ineffective assistance of counsel claim threatened to impugn the integrity of the decision below. Moreover, the writ was also "necessary or appropriate" because there was no other avenue for Mr. Denedo to pursue his claim.
Two judges dissented. Although Judge Stucky largely agreed with the court's opinion, he concluded that Mr. Denedo's claim failed on the merits. Judge Ryan also dissented, concluding that the CAAF lacked a "statutory basis for jurisdiction" to entertain Mr. Denedo's claim.
The United States filed a petition for certiorari in which it urged the Court to grant review because the CAAF's decision conflicted not only with the Supreme Court's 1999 decision in Clinton v. Goldsmith, holding that the CAAF "is not given authority, by the All Writs Act or otherwise, to oversee all matters arguably related to military justice, or to act as a plenary administrator even of criminal judgments it has affirmed." but also with the Uniform Code of Military Justice and "established principles governing the limited jurisdiction of Article I courts." The government conceded that the CAAF could at one time have properly reviewed Mr. Denedo's appeal, but it maintained that, once the conviction became final and Mr. Denedo left the armed forces, the court lacked jurisdiction to review his claims. Furthermore, Mr. Denedo could not seek relief through a writ of error coram nobis, the government averred, because it was neither "necessary or appropriate" as required by the All Writs Act. Finally, the government concluded, certiorari was warranted to forestall a broad and unfounded assertion of authority by federal courts to oversee military courts, in conflict with clear statements of Congressional policy to the contrary.
Opposing certiorari, Mr. Denedo first contended that the Supreme Court lacked jurisdiction over the appeal because the jurisdictional statute on which the Government relied, 28 U.S.C. § 1259(4), conferred jurisdiction only in cases in which the CAAF "has granted relief." Here, he argued, no relief was granted because the case had merely been remanded to the N-MCCA for further consideration of the claim's underlying merits. Second, he argued that the decision did not meet any "of the criteria for certiorari and in any event [was correct]." Contrary to the government's assertion, he explained, the decision below did not conflict with Goldsmith, both because that case dealt with administrative relief while he was challenging a court-martial conviction and because the dispute in Goldsmith was final. Third, he disputed the Government's contention that alternative remedies were available.
In its reply brief, the government countered that the Supreme Court has jurisdiction over Mr. Denedo's appeal because "relief," properly understood and as previously applied, includes a decision to remand. Moreover, the All Writs Act addresses the general availability of alternative remedies, not whether any particular defendant could seek redress.
The Supreme Court granted certiorari on November 25, 2008.
In its brief on the merits, the government urges the Supreme Court to reverse the CAAF's holding for two reasons: first, military courts are Article I courts with expressly limited jurisdiction; and, second, "neither the UCMJ nor the All Writs Act confers" jurisdiction to hear a coram nobis challenge.
The government begins with Clinton v. Goldsmith, in which the Supreme Court interpreted the All Writs Act to authorize "process "in aid of' the issuing court's jurisdiction" only so far as to the existing limits of that court's jurisdiction; it "does not enlarge that jurisdiction." Thus, the CAAF's mistake in this case is akin to the one in Goldsmith, in which the Court overturned a ruling by the CAAF that enjoined the President from dismissing a convicted officer on the ground that the CAAF lacked jurisdiction over the dismissed officer. In both cases, the government reasoned, the CAAF relied on the All Writs Act to confer jurisdiction over final judgments it once, but no longer, "had the power to review."
Nor, according to the government, does the UCMJ confer jurisdiction to hear the coram nobis challenge. Although Articles 66 and 67 provide for limited forms of appellate review (principally direct review of pending decisions), Articles 71(c) and 76 make clear that, once affirmed by the military appellate courts, the findings and sentences of courts-martial shall be "final and conclusive" and therefore binding. Those results, the government continues, are non-appealable unless they meet three express exceptions "“ none of which apply here. Thus, Mr. Denedo's reliance on coram nobis is "tantamount to the addition of a fourth"”and potentially much broader"”exception to" UCMJ finality. Schlesinger v. Councilman's description of the predecessor to Article 76 as a "prudential" limitation is not to the contrary, because in that case the Supreme Court sustained a habeas appeal to an Article III court while simultaneously noting that the jurisdiction of Article III courts has no bearing on that of military courts.
Jurisdiction is also wanting, the government contends, because under United States ex rel. Toth v. Quarles (1955), Article I courts like the CAAF lack jurisdiction over former service members, such as Mr. Denedo, who are no longer members of the armed forces.
Finally, the government challenges Mr. Denedo's use of a writ of error coram nobis to seek relief, explaining that the writ could not meet the All Writs Act's requirement that it be both "necessary" and "appropriate." The government reiterates that Mr. Denedo had other avenues for relief available to him, including habeas review in Article III courts. Nor was coram nobis "appropriate," because its limited authorization permits a court to correct only its own errors, not those of an inferior tribunal.
In conclusion, the government warns that pragmatic concerns"”i.e., the unsettled scope and time limits of coram nobis review and the care Congress undertook in designing the military justice system"”compel reversal of the decision below and, ultimately, affirmance of the initial conviction.
In his brief on the merits, Mr. Denedo begins by again challenging the Supreme Court's jurisdiction to hear this case, but he then turns his attention to the merits of the government's appeal. First, he asserts that the decision below was consistent with Goldsmith, and that his writ of error coram nobis was "in aid of" the CAAF's existing jurisdiction. Goldsmith concerned the administrative action of purging Major Goldsmith from the rolls, which is distinct from a "finding," "sentence," or punishment related to a court-martial proceeding. This case, by contrast, goes to "the very core of the court-martial process."
Mr. Denedo continues with a three-pronged challenge to the government's reliance on Goldsmith. First, in limiting the All Writs Act to the "existing" jurisdiction of military courts, Goldsmith does not impose a temporal limitation but instead merely underscores that jurisdiction must originate from some other source. Second, Goldsmith itself indicated that the All Writs Act could compel adherence to a final judgment. Finally, the breadth of the government's reasoning is untenable: as the government itself effectively conceded, it would "“ for example "“ deny military courts the authority to revisit and void "final" decisions that they never had jurisdiction to render. Indeed, in United States v. Morgan (1954), the Supreme Court agreed that jurisdiction is available "under circumstances compelling [coram nobis] to achieve justice." It would be "anomalous" if such compelling circumstances existed in cases involving jurisdictional defaults or to enforce a final judgment, but did not exist "to correct a fundamental error affecting the "validty and regularity' of the judgment." Thus, in light of Goldsmith and Morgan, the present dispute actually turns on the scope of post-finality review rather than its existence. Mr. Denedo also disputes the controlling effect of Toth, arguing that it has never been interpreted to deny jurisdiction over an ex-service member whose original trial is reopened (or overturned).
Furthermore, Mr. Denedo insists that his case is, for five reasons, a "classic coram nobis case." First, although the need for a writ of error coram nobias rarely arises, that does not mean that it will never arise. Second, despite the government's assertions to the contrary, he has no other alternative remedies because he discovered his ineffective assistance of counsel claim too late to avail himself of the remedies suggested by the government. Third, he satisfies the standard for coram nobis relief because "he applied to the court with proper jurisdiction," the military appellate courts. The oddities of the court-martial system"”a court martial is convened only to hear only the immediate case before it and subsequently disbands"”left him with no other option because he had no original court to return to. Fourth, Schlesinger is inapposite because its prudential concerns did not confront the statute of limitations obstacles that he has raised. Fifth and finally, principles of stare decisis militate in favor of affirming the CAAF's decision"”at least until Congress elects to modify the UCMJ.
Two amicus briefs were filed in support of Mr. Denedo. First, a group of former Judge Advocate Generals and senior military lawyers argued that military courts have long relied upon a "power to issue writs necessary or appropriate in aid of their goal of rendering correct, fair and proper judgments," and the Supreme Court has in fact sanctioned such actions on at least two occasions. Second, a group of law professors argued that requiring defendants convicted in military courts to file appeals in Article III courts conflicts with the rationale underlying exhaustion doctrine. Instead, Article III should be at best a stop-gap recourse after the military courts have had their turn reviewing their own convictions.