Perhaps ACCA hoped to avoid the merits by deciding this on the reasonable diligence prong—but this prong should not decide this case. FOIA requests are highly unusual and rarely if ever take place in a normal criminal litigation. How can it be that a failure to undertake this extraordinary measure constitutes a lack of reasonable diligence?
However, FOIA requests and responses frequently trigger post-conviction or extraordinary relief proceedings. It was the results of FOIA requests in Al-Nashiri that triggered the disqualification issues with the then MJ in that case, those FOIA responses were then made part of the public record in Al-Nashiri, which I obtained while the Snyder case was at AFCCA, which allowed us to supplement the record, and ignored the issue [pending reconsideration at CAAF].
So to say that there was no "due diligence" here is nuts, and ignores the realities of post-conviction litigation.
You just have to accept the the CCA are just boot lickers. Once you realize this their legal gymnastics become clear.
I was found guilty of violating 18 USC 1030 in the early 2000's despite two Article 32 officers suggesting that using it to prosecute "improper use" was too broad. The CCA and CAAF never bothered with an opinion.
SCOTUS just heard oral argument two weeks ago, most likely they will strike it down (US v. Van Buren).
I already know there is a chance that the AFCCA to make up an excuse denying coram vobis relief after 15+ years. That would still be incredibly hard to do, even for boot lickers.
I expect instead they will strike the charge (as they will be required to do) and give me meaningless relief, maybe a coupon to the BX. I have other charges, which would probably serve as an excuse to keep the discharge.
It will be interesting, but point is I expect the worst and hope for the best.
ACCA refers to US v. Kates lavishly. I'll post a link here and let you decide whether it possesses sufficient precedent.
Issues in public appellate litigation don't usually involve FOIA requests.
You say, "...FOIA requests and responses frequently trigger..."
At the same time I say, "Issues in public appellate litigation don't usually involve FOIA requests."
I am not contradicting you. What I mean to say is that if things are so public, a FOIA request wouldn't be necessary.
Van Buren v. United States.
That's correct. I had it backwards.
I already talked to someone in the Appellate shop about helping me out with Coram Vobis. They opined that it would a worthwhile issue, but they cannot represent me because I am out of the military.
However, if the CCA issues out a show cause order requiring a response they could help me out.
My previous Grostefon issue a few years ago;
I discovered that my Appellate Counsel did not challenge my larceny convictions like I asked him too (per email).
The AFCCA ruled that I was not diligent because I should have known by their summary opinion that the larceny convictions were not challenged. Also that since they conduct Article 66 review, they need not follow Grostefon;
"Whether or not it is expressly raised by the appellant, we consider
the legal and factual sufficiency in every case before us pursuant to Article 66, UCMJ."
This logic is of course is asinine. It would mean that Grostefon is obsolete and can be ignored, because every conviction before the CCA is given article 66 review. The AFCCA also ruled that my emails lacked a certificate of authenticity and they refused to even consider them. Interestingly the CAAF issued a show cause order but denied review.
This is why it is frustrating when you hear an issue like the one presented in Bergdahl punted because of a made-up technicality of diligence.
I remain optimistic, however. I don't see how the CCA is going to get around Teague v. Lane. Clearly if Van Buren is decided in my favor, the conviction would become a nullity. It is a federal statute, unlike the consensual sodomy convictions the CCA has failed to overturn.
The issue is relief. I have other charges. I also have other issues (a Brady vs. Maryland issue) that was denied in an earlier Coram Vobis proceeding - but under a higher "probability" threshold.
My plan if SCOTUS grants relief, is to file a petition asking to strike the 1030 charge, and then ask for another Article 66 review to address the other issues. Res Judicata should not apply as it would be a weaker threshold. I will also provide a waiver and consent to military jurisdiction. If a show cause order is issued, I'll ask the Appellate Shop to intervene.
Not sure if and how I would be returned back to active duty - if that would be required for another hearing or article 66 review.
It'll be interesting. I expect this ruling to come down in Feb-March. I already prepared the petition in advance.
On Grostefon, the court should be reviewing them and on occasion an CCA will grant relief as does CAAF grant a petition on a Grosty.
I certainly wouldn’t go so far as to call the CCAs “boot lickers.” (1) The CCAs are made up of many constantly changing panels and they have different approaches, (2) the CCAs do, occasionally, rock the boat with an opinion that deviates from the party line, and (3) professional courtesy.
That said, I think anyone with any experience in the military justice system would acknowledge that the CCAs frequently perform logical gymnastics to assist the government. Often CAAF is the first real shot at meaningful review.
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