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The Limits of the "Circuit" "Split" Analogy

3/10/2021

2 Comments

 
Michel's post below predicts  a "rare military/civilian circuit split." We often hear people talk this way, but the Begani  case illustrates the limits of that analogy. "Split" normally implies co-equal courts, neither of which can bind each other with legal holdings (e.g., the 9th Circuit does not determine law in the 8th), and neither of which can review the other's decision (e.g., a loser in the 8th cannot appeal to the 9th). With respect to CAAF, the former is true but not the latter. CAAF is certainly not bound by Judge Leon's holding regarding Article I, but Judge Leon has the power to vacate the same court-martial conviction that CAAF previously affirmed. The reason for this is of course habeas corpus review of courts-martial convictions (for prisoners) or federal question review (for non-prisoners). 586 F.3d 28. Thus, even if the "split" occurs and even if the Supreme Court refuses to intervene, convicted Fleet Reservists can eventually vindicate their Article I claim in federal court (assuming Leon's ruling is upheld).

Brenner Fissell

EIC

2 Comments
The Mighty Jagrafess of the Holy Hadrojassic Maxarodenfoe
3/10/2021 10:51:34 pm

I’m not sure the Article III court’s ability to set aside CAAF’s decision on collateral review has any bearing on cert-worthiness. Article III courts set aside state court convictions with some degree of regularity, and Supreme Court Rules 10(a) and (b) specifically contemplate a split between a state supreme court and a USCA as a reason for granting a petition for a writ of certiorari.

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Brenner M. Fissell
3/11/2021 09:07:17 am

My point is that an Article III court always has the last word on a court-martial conviction, thus making the “split” less consequential than a split between CA8 and CA9.

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