CAAF Denies Bergdahl Coram Nobis in Order

2/2/2021

20 Comments

Elizabeth M. Berecin

Managing Editor

20 Comments

William Cassara

2/2/2021 02:09:32 pm

CAAF: File a writ. Also CAAF: Denied.

The Eyes of Texas

2/2/2021 03:00:47 pm

Today Secretary Austin fired Trump advisory board members.
Also a Whistleblower complaint at Immigration.

Maybe CAAF is thinking, "Why should we make a change? Purity will trickle down from the top."

It's just one lowly nobody that we have to worry about, right?

The Eyes of Crystal City / National Landing

2/2/2021 03:20:59 pm

Indefensible that they didn't bother to explain themselves.

1984

2/3/2021 10:27:29 pm

I know the feeling. I had a great Coram Vobis petition a few years back based on a Brady violation. The government failed to disclose the star witness (and victim's) criminal record for writing personal checks.

AFCCA says that my guilt was "overwhelming". True perhaps for the larceny charge. But the threat charge was based totally on the witnesses testimony.

What did the AFCCA do? Simple "to the extent that [the discovery violation] was relevant, it was already undermined by [the witnesses] admission to stealing money from his girlfriend."

Ah. So the Witnesses' credibility was already low, but still high enough to sustain a conviction and not be further impacted by his criminal records. Meanwhile he got to testify about financial impact, etc.

CAAF summary denied review.

Next month SCOTUS will likely strike 18 USC 1030(2) (exceeding authorized access) as overbroad.

Guess who was found guilty of that charge? Yours truly.

Now here is the rub.

Will the courts overrule or ignore US v. Teague?

And if they retroactively apply it, I still have three other charges (larceny, threat, and 18 use 1028). What would they do? Who knows.

One thing I do know. I don't have my hopes up.

The Mighty JAG-rafess of the Holy Hadrojassic Maxarodenfoe

2/4/2021 03:27:51 pm

CAAF never explains denials of writ-appeals. While we may find that frustrating, its nice to see that they aren't going out of their way to change their procedures just because this case has media attention.

Lord Adavorakentrakledar

2/6/2021 11:20:18 am

OK, that's just about the best CAAFlog username I've seen in my life.

Eyes o TX

2/3/2021 10:34:50 am

CAAF's contention is that they are not concerned with how much UCI is in the system, but what it effect is when it occurs. They are eating themselves with this move.

Anon MJ

2/3/2021 03:49:14 pm

I suppose that if Bergdahl were to appeal into the Article III courts, which I hope he does, he may draw a similar relief as al-Nishiri. CAAF, and more so, ACCA were very short-sighted in this. Why give an Art III court the opportunity to craft UCI and comment on the lack of independence of military judges? And as for CAAF, why rubberstamp a sophmoric ACCA only to face a likely rebuke elsewhere.

BJA

2/3/2021 06:05:30 pm

Other than its role in blocking servicemembers from appealing to the Supreme Court, why does CAAF exist?

1984

2/3/2021 10:14:04 pm

They didn't explain themselves. But in all honesty, this was a guilty plea. They could have dug up Judge Roland Freisler from the Nazi People's Court.

Donald G Rehkopf

2/4/2021 10:20:05 am

To paraphrase an old (and politically incorrect) saying:

"The weight-challenged singer is exercising her vocal cords in preparation for the aria - stay tuned!"

Brenner M. Fissell

2/4/2021 11:41:12 am

Hopefully this aria will be sung in US District Court--but will it be drowned out by the sound of Burns v. Wilson? btw, can he get habeas since he is not in custody, or is it coram nobis?

The Mighty JAG-rafess of the Holy Hadrojassic Maxarodenfoe

2/4/2021 03:23:12 pm

Neither. You're correct that habeas isn't available because he isn't in custody. District courts lack the ability to issue a writ of coram nobis because they lack original jurisdiction to adjudicate courts-martial. The only remaining viable writ is certiorari.

1984

2/4/2021 06:14:41 pm

He can't.

And I don't know how he could be granted a writ of Certiorari as the other comment suggests, there was no relief provided by CAAF.

Brenner M. Fissell

2/4/2021 03:38:40 pm

The plaintiff, who is no longer in custody, collaterally attacks his conviction asserting that this Court may review the CAAF's decision pursuant to its federal question jurisdiction. Collateral attacks on court-martial proceedings are not confined to habeas petitions. Kauffman v. Secretary of the Air Force, 415 F.2d 991 (D.C.Cir.1969). A district court has subject matter jurisdiction to hear a non-custodial plaintiff's collateral attack based on federal question jurisdiction. Sanford v. United States, 586 F.3d 28, 31 (D.C.Cir.2009). Thus, while habeas review is appropriate for convicted military personnel who are still in custody, for non-custodial individuals such as plaintiff, federal question jurisdiction under 28 U.S.C. § 1331 is the appropriate avenue for a service member to seek collateral review of the outcome of a military court-martial proceeding. United States ex rel. New v. Rumsfeld, 448 F.3d 403, 406 (D.C.Cir.2006) (holding that the district court had subject matter jurisdiction to hear the petitioner's collateral attack under § 1331) (“New II ”); Williamson v. Sec'y. of Navy, 395 F.Supp. 146, 147 (D.D.C.1975) (same).

Luke v. United States, 942 F. Supp. 2d 154, 162 (D.D.C. 2013), aff'd, No. 13-5169, 2014 WL 211305 (D.C. Cir. Jan. 13, 2014)

1984

2/4/2021 06:21:39 pm

Is BB able to file a Tucker Act Claim to attack his court-martial? It's been within 7 years since discharge. Although the "full and fair consideration" bar sucks.

Eyes o TX

2/4/2021 05:51:13 pm

Ok, let's try this again.
Eugene Fidell's CAAF practice suggests they would consider a class action. At BB's 32 someone came up with the misbehavior charge, almost certainly with Command impetus.

If Commands are pushing upped charges, specifically this trial but others, that's a form of UCI. And that is well within the decision cycle of the Defense to have to plead. Couched in the Government's responsibility to ensure the integrety of the Court, ACCA's decision here is deeply flawed.

CAAF's action is a harm to a class.

Eyes of Texas

2/7/2021 03:07:05 pm

Just noticed this:
The briefs have Sergeant Bergdahl in the style. But the order only has Bergdahl. Is this correct?

1984

2/8/2021 09:31:19 pm

Yes. The case name is (name of the accused) vs. United States.

In practice, the Defense shop (at least) will refer to the accused by their rank prior to their CM. But the rank is never part of the official case name.

Eyes of Texas

2/9/2021 04:06:41 pm

Crazy.
I've seen an O-3 be and E-5 on a charge sheet.
I've argued the wrong first name at an arraignment was a sin qua non to ACCA that deprived the Court of jurisdiction.
But now I've seen CAAF give tacit approval to the Government's interest in the finality of a case by depriving an Accused his title.

The motion for reconsideration got the same treatment. Don't know about about the writ. BB got his E-5 while in captivity. Without rehashing the whole argument of punitivity, I'd say he earned it. Survival may be the best vindication.

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CAAF Denies Bergdahl Coram Nobis in Order

Elizabeth M. Berecin

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