UPDATE: Reconsideration granted. [CAAF Dismissal for Failure to File a Brief]

7/2/2020

UPDATE to the below: CAAF has granted reconsideration in this case.

motion_order_july_1_2020.pdf
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"No. 19-0365/AR. U.S. v. Jason A. Scott. CCA 20170242. On further consideration of the granted issue, 79 M.J. 308 (C.A.A.F. 2019), Appellee's motion to dismiss the granted petition, and appellant [sic] defense counsel's failure on multiple occasions to file a brief on behalf of Appellant as ordered by this Court, it is ordered that the grant of review is vacated, that the petition for grant of review is denied, and the motion to dismiss is denied as moot."

Perhaps CAAF should consider whether the attorney in question should remain a member of the Court's bar.

Brenner Fissell

Editor-in-Chief

Don Rehkopf

6/19/2020 11:53:53 am

The irony here is that the issue CAAF had granted on, was IAC of the trial defense counsel. And, per the history of the case at CAAF, first the Civilian counsel was admitted pro hac vice to CAAF, and second, they gave him about a year's worth of extensions to file the Brief after granting on the IAC issue. Hopefully, someone from DAD has more details, but imho, the Accused/Petitioner should not have been penalized under the circumstances.

Brenner M. Fissell

6/20/2020 01:14:40 pm

Don--what recourse is there for this client? He is out of prison so habeas is not an option (no coram nobis because no changed circumstances?). Seems like the collateral attack even in the MJ system would fail, but definitely in Article III.

Don Rehkopf

6/20/2020 04:06:45 pm

I think it's a good case for military coram nobis - there's an error apparent from the record that's unaddressed, i.e., IAC of appellate counsel. Denedo, both at the CAAF and Supremes certainly suggest this imho, as he was long out of custody, especially here where the underlying issue CAAF granted on was the IAC of his trial counsel. If true, he did not have the Sixth Amendment "assistance of counsel" at any stage of his proceedings.

I agree that at this stage, he doesn't have a right to federal relief, but that's because of the exhaustion requirement not being satisfied. Now, if he goes back to ACCA on a Petition for a Writ of Extraordinary Relief in the Form of a Writ of Coram Nobis, if they and then CAAF deny the writ, then I think he's got a great Sixth Amendment claim in federal court.

There's a fair amount of scholarship that's helpful:

* Duszak, "Post-McNally Review of Invalid Convictions Through the Writ of Coram Nobis," 58 Fordham L. Rev. 979 (1990);

* Cauley, "Stuck Between a CAAF and a Hard Place: The Coram Nobis Petition of Private Ronald Gray and the Weakening of Military Justice," 97 N.C. L. Rev. 995 (2018);

* Mee, "Petitioners for Federal Writ of Error Coram Nobis Must Show 'Lingering Civil Disabilities' from Erroneous Conviction," 70 Wash. U. L. Q. 665 (1992);

* Wolitz, "The Stigma of Conviction: Coram Nobis, Civil Disabilities, and the Right to Clear One’s Name," 2009 B.Y.U. L. Rev. 1277 (2009);

* Saito, "Rebellious Lawyering in the Courts of the Conqueror: The Legacy of the Hirabayashi Coram Nobis Case," 11 Seattle J. Soc. Justice 89 (2012);

* Hawks, "To Err Is Human, to Obtain Relief Is Divine," Army Law. 55 (June 2007); and

* Donahue, "Effective Assistance of Counsel on Appeal: Due Process Prevails in Evitts v. Lucey," 35 DePaul L. Rev. 185 (1985); for starters.

Philip D. Cave link

7/3/2020 10:22:34 am

Don, April CAAF Journal entry

No. 19-0365/AR. U.S. v. Jason A. Scott. CCA 20170242. JDC's motion for admission pro hac vice is denied.

Denedo is a reminder--after winning at the Supremes the appellate counsel was untimely filing with CAAF and CAAF determined that filing deadline was jurisdictional and not subject to waiver--so after all that, Denedo lost his last short at CAAF.

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UPDATE: Reconsideration granted. [CAAF Dismissal for Failure to File a Brief]

Brenner Fissell

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