Loving v. United States, C.A.A.F. (2005)

Dwight J.
LOVING, Private
U.S. Army, Petitioner
v.
UNITED STATES, Respondent
Nos. 03-8007 and 04-8013
Crim. App. No. 8901123
United States Court of Appeals for the Armed Forces
Argued January 14, 2004, and December 8, 2004
Decided December 20, 2005
GIERKE, C.J., delivered the opinion of the Court, in which
EFFRON, BAKER, and ERDMANN, JJ., joined. CRAWFORD, J., filed a
separate opinion concurring in the result.
Counsel
For Petitioner: John H. Blume, Esq., and Teresa L. Norris, Esq.
(argued); Colonel Robert D. Teetsel (on brief); Lieutenant
Colonel Mark Tellitocci.
For Respondent: Major Mark A. Visger and Captain Magdalena A.
Przytulska (argued); Colonel Lauren B. Leeker, Lieutenant
Colonel Margaret B. Baines, Major Theresa A. Gallagher, Major
Jennifer H. McGee, and Captain Matthew J. MacLean (on brief);
Colonel Steven Salata.
Amicus Curiae: Lieutenant Michael J. Navarre, JAGC, USNR
(argued); Commander George F. Reilly, JAGC, USN, and Lieutenant
Colonel Eric B. Stone, USMC (on brief); Commander Pamela A.
Holden, JAGC, USN, for the United States Navy-Marine Corps
Appellate Defense Division.
Amicus Curiae: Eugene R. Fidell, Esq., Kevin J. Barry, Esq.,
Stephen A. Saltzburg, Esq., and Philip D. Cave, Esq., for the
National Institute of Military Justice.
This opinion is subject to revision before final publication.
Loving v. United States, Nos. 03-8007/AR and 04-8013/AR
Chief Judge GIERKE delivered the opinion of the Court.
I. INTRODUCTION
There are two issues before this Court now:
(1) whether we
have jurisdiction to entertain Petitioners assertions of error

as to the legality of his death sentence; and (2) if so, whether
his two petitions seeking a writ of coram nobis properly present
these challenges here.
More precisely, the first critical
question is whether this Court has jurisdiction over this

military death penalty case in the period after there is a
final judgment as to the legality of the proceedings under
Article 71(c)(1),1 but before the case is final under Article
76.2
The second critical question is whether our collateral
review of this case during this period extends to a writ of

coram nobis or is limited to a writ of habeas corpus.
As to the first issue, we hold this Court has jurisdiction
to entertain Petitioners challenges because this Court has
collateral review jurisdiction over this case during this
period.
The Supreme Court has recognized that this Court has
collateral review jurisdiction, and we find no authority

inconsistent with our present exercise of this collateral review
jurisdiction.
1
2
Uniform Code of Military Justice (UCMJ), 10 U.S.C. 871(c)(1) (2000).

UCMJ, 10 U.S.C. 876 (2000).
As to the second issue, we hold that the present petitions

do not present legal challenges properly here because coram
nobis is not available.
At this point in the case, a petition
for a writ of habeas corpus is the only pleading available to

raise the substantive issues before this Court.
So for the
reasons stated below, we dismiss both petitions without

prejudice to Petitioner to refile a writ of habeas corpus with
this Court.
Although we do not address the merits of these petitions
now, the circumstance of this being a capital case is constantly
before us.
But some principles related to the resolution of
these issues apply to all military justice cases.

Death is different is a fundamental principle of Eighth
Amendment law.3
This legal maxim reflects the unique severity
and irrevocable nature of capital punishment, infuses the legal

process with special protections to insure a fair and reliable
verdict and capital sentence, and mandates a plenary and
meaningful judicial review before the execution of a citizen.4
All three branches of government are involved in a dynamic and
3
See Ring v. Arizona, 536 U.S. 584, 605-06 (2002)([T]here is no doubt that
death is different.)(citation omitted); United States v. Curtis, 32 M.J.
252, 255 (C.M.A. 1991)(recognizing that The Supreme Court, however, has made
clear the Eighth Amendment requires a different treatment of death-penalty
cases.).
4
See Gilmore v. Taylor, 508 U.S. 333, 342 (1993)([T]he Eighth Amendment
requires a greater degree of accuracy and factfinding than would be true in a
noncapital case.); California v. Ramos, 463 U.S. 992, 998-99 (1983)(stating
[T]he qualitative difference of death from all other punishments requires a
correspondingly greater degree of scrutiny of the capital sentencing
determination.).
developing process of addressing issues related to capital

punishment.5
Both changes in capital punishment law and greater
understanding in the application of established legal principles
result in new issues being identified and presented almost as
quickly as other issues are resolved.
The impact of this
constantly evolving body of capital punishment law is compounded

as legal precedent from Article III federal courts relating to
capital punishment is applied to military justice jurisprudence.6
This case illustrates these observations.
In two separate
petitions for extraordinary relief in the nature of writs of

error coram nobis, Petitioner requests this Court to apply to
See 151 Cong. Rec. H340, H342 (daily ed. Feb. 2, 2005)(State of the Union
Address by President George W. Bush)(Soon I will send to Congress a proposal
to fund special training for defense counsel in capital cases, because people
on trial for their lives must have competent lawyers by their side.); Exec.
Order No. 12,460, 49 Fed. Reg. 3169 (Jan. 26, 1984) (establishing a new
military death penalty system that eventually with some modifications became
Rule for Courts-Martial (R.C.M.) 1004); National Defense Authorization Act
for Fiscal Year 2002, Pub. L. No. 107-107, 582(a), 115 Stat. 1012, 1124
(2001)(enacting Article 25a, UCMJ, which requires a capital trial panel of
not less than 12 members unless that number is not reasonably available
because of physical conditions or military exigencies . . . .); United
States v. Loving, 41 M.J. 213 (C.A.A.F. 1994)(addressing constitutional
challenges to the military death penalty); United States v. Matthews, 16
M.J. 354 (C.M.A. 1983)(invalidating the military death penalty); United
States v. Curtis, 32 M.J. 252 (C.M.A. 1991) (resolving systemic challenges to
the military death penalty).
6
Recently this Court reaffirmed that [c]onstitutional rights generally apply
to members of the armed forces unless by their express terms, or the express
language of the Constitution, they are inapplicable. United States v.
Marcum, 60 M.J. 198, 199 (C.A.A.F. 2004). But we also recognized that these
constitutional rights may apply differently to members of the armed forces
than they do to civilians. . . . Thus, when considering how the [Bill of
Rights] appl[ies] in the military context, this Court has relied on Supreme
Court civilian precedent, but has also specifically addressed contextual
factors involving military life. Id. at 205. See generally H. F. Sparky
Gierke, The Use of Article III Case Law in Military Jurisprudence, Army Law.
Aug. 2005, at 33, 37-46.
his military justice capital case the authority of two recent

Supreme Court cases -- Ring v. Arizona7 and Wiggins v. Smith.8
This Courts consideration of these cases raises both
threshold legal issues as well as delicate issues on the merits.
The threshold issues relate to this Courts jurisdiction to
consider these petitions, the appropriateness of the writ of
error coram nobis at this Court, and the applicability -including the retroactive application -- of this recent legal
precedent to the present proceedings.9
536 U.S. 584 (2002). In Apprendi v. New Jersey, 530 U.S. 466 (2000), the
Supreme Court interpreted the constitutional due process and jury trial
guarantees to require that, [o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.
Id. at 490. Applying this principle to the Arizona capital sentencing
proceedings that required the finding of an aggravating factor, Ring required
that a jury, rather than a judge, find the existence of the aggravating
factor. 536 U.S. at 603-09. In this opinion, Petitioners pleading
addressing this issue is referred to as the Ring Writ. See infra note 21 and
accompanying text.
8
539 U.S. 510 (2003). Applying the clearly established precedent of
Strickland v. Washington, 466 U.S. 668 (1984), that governs claims of
ineffective assistance of counsel, the Supreme Court found ineffective
representation by a defense counsel in a capital case who failed to pursue
leads and to expand the mitigation investigation into the defendants
traumatic life history. Wiggins, U.S. 539 at 519-20, 523-38. In this
opinion, Petitioners pleading addressing this issue is referred to as the
Wiggins Writ. See infra note 23 and accompanying text.
9
More precisely, the petitions present five threshold issues: (1) Does this
Court have jurisdiction to consider Petitioners two writs?; (2) If there is
a basis for this Courts jurisdiction, is it both necessary and proper in
light of alternate remedies available for him to present his legal
challenges?; (3) Is a petition for a writ of error coram nobis the correct
procedural tool to raise these issues?; (4) Are the latest petitions an abuse
of the writ?; and (5) In light of the unique procedural posture of this case,
can Petitioner avail himself of any of the legal holdings in Ring, Apprendi,
and Wiggins to support his claims? Answering these five questions will
determine whether and how this Court should proceed to the merits of any of
the issues presented in the two petitions for extraordinary relief. Our
disposition in this case requires us to address only the first four of these
threshold issues. These four issues are subsumed in the two decisional
issues stated at the outset of this opinion.
On the other hand, the issues relating to the merits of

these two writs question the authority of the President to
promulgate aggravating factors, the reliability of the capital
sentencing weighing process, and the effectiveness of counsel in
making decisions relating to investigating the background of
Petitioner.10
We acknowledge the tension that arises from the extended
time involved in the appellate litigation of this capital case
and the precise application of legal principles that operate to
insure a fair and reliable adjudication of a capital sentence.
But the commitment to justice in this capital case requires a
patient and solemn resolve to proceed prudently, because death
is different.
11
II. APPELLATE HISTORY

This is a capital case that this Court affirmed on direct
appeal.12
Afterwards, this Court granted a petition for
reconsideration in part by deleting an inaccurate factual
10
The Ring Writ raises these two questions: (1) Did the President exceed his
authority by promulgating aggravating factors if these aggravating factors
are functional elements of a crime? and (2) Are court members required to
find beyond a reasonable doubt that any mitigating circumstances are
outweighed by the aggravating factors? The Wiggins Writ presents the final
question: Did trial defense counsel perform an adequate investigation as a
necessary predicate for the tactical decision not to request funding for a
mitigation specialist? Again, because of our disposition in this case, we do
not address any of the issues related to the merits.
11
Ring, 536 U.S. at 605-06; see Kyles v. Whitley, 514 U.S. 419, 422
(1995)(quoting Burger v. Kemp, 483 U.S. 776, 785 (1987)([O]ur duty to search
for constitutional error with painstaking care is never more exacting than it
is in a capital case.)(quotation marks omitted).
12
United States v. Loving, 41 M.J. 213 (C.A.A.F. 1994).
statement from our opinion.13
Later the Supreme Court granted
certiorari and affirmed this Courts decision.14

After the Supreme Court decision, Petitioner filed a
petition for extraordinary relief in the nature of mandamus at
the Court of Criminal Appeals, asserting that felony murder
under Article 118(4)15 is constitutionally infirm because it
permits a death sentence but does not require an intent to kill.
The lower court denied the petition.
Petitioner filed a writ
appeal petition, and this Court affirmed the lower courts

decision.16
That opinion documents the prior appellate history
of this case.17
While the writ appeal petition was pending, Petitioner
filed another petition for reconsideration with this Court,
asserting an instructional error by the military judge.
This
Court denied the petition for reconsideration.18

Petitioner later filed a third petition for
reconsideration, asserting that this Court applied an incorrect
legal test in its evaluation of his claim of ineffective
assistance of counsel.
This Court denied the petition for
13
United States v. Loving, 42 M.J. 109 (C.A.A.F. 1995)(summary disposition).

Loving v. United States, 517 U.S. 748 (1996).
15
UCMJ, 10 U.S.C. 918(4)(2000).
16
Loving v. Hart, 47 M.J. 438 (C.A.A.F.)(holding that felony murder under
Article 118(4), UCMJ, 10 U.S.C. 918(4), passes constitutional muster as a
capital offense in this case because the panel found Petitioner was the
actual perpetrator of the killing -- acting personally and intentionally),
cert. denied, 525 U.S. 1040 (1998).
17
47 M.J. at 440.
18
United States v. Loving, 49 M.J. 387 (C.A.A.F. 1998)(summary disposition).
14
reconsideration.19
The case has been forwarded to the President
for action under Article 71(a),20 but he has not yet acted.
III. BACKGROUND OF
TWO PETITIONS FOR EXTRAORDINARY RELIEF
IN THE NATURE OF A WRIT OF ERROR CORAM NOBIS
A. The Ring Writ
On April 15, 2003, this Court received a petition for
extraordinary relief in the nature of a writ of error coram
nobis21 -- the Ring22 Writ.
This Court issued a show cause order,
the Government responded, and Petitioner filed a reply brief.

On July 21, 2003, Petitioner requested oral argument.
This
Court granted the request and heard oral argument on this writ
on January 14, 2004.
B. The Wiggins Writ
On February 17, 2004, another petition for extraordinary
relief in the nature of a writ of error coram nobis was filed in
this Court23 -- the Wiggins24 Writ.
This Court again issued a
show cause order, the Government responded, and on May 10, 2004,
Petitioner filed a reply brief and requested oral argument.
19
United States v. Loving, 54 M.J. 459 (C.A.A.F.) (summary disposition),

cert. denied, 534 U.S. 949 (2001).
20
10 U.S.C. 871(a) (2000).
21
Petition for Extraordinary Relief in the Nature of a Writ of Coram Nobis,
Loving v. United States, No. 03-8007 (C.A.A.F. Apr. 15, 2003) [hereinafter
Ring Writ].
22
See Ring, 536 U.S. at 605-06.
23
Petition for Extraordinary Relief in the Nature of a Writ of Error Coram
Nobis, Loving v. United States, No. 04-8015 (C.A.A.F. Feb 17, 2004)
[hereinafter Wiggins Writ].
24
See Wiggins, 539 U.S. 510.
This Court again granted this request and heard oral argument on
December 8, 2004.
IV.
A.
DISCUSSION OF THE THRESHOLD ISSUES

Does this Court have jurisdiction to
consider Petitioners two writs?
We approach this issue knowing that every federal

appellate court has a special obligation to satisfy itself . .
. of its own jurisdiction . . . .25
The primacy of the issue
of subject matter jurisdiction here is reaffirmed by the

position of the Government that this Court has no jurisdiction
to address Petitioners attack on his conviction and sentence
because they became final after the Supreme Courts decision on
review of his direct appeal.
First, the Government asserts that [a]lthough this
Honorable Court once had jurisdiction to review this case, there
is simply no basis for continuing jurisdiction.26
Second,
following this Courts prior decision denying a writ appeal

petition in Loving v. Hart,27 the Government asserted in its
opposition to Petitioners certiorari petition to the Supreme
Court that this Court erred in exercising jurisdiction over the
claim [writ appeal petition] under 28 U.S.C. 1651(a)[2000]
25
Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)(quoting
Mitchell v. Maurer, 293 U.S. 237, 244 (1934)).
26
Answer to Petition for Extraordinary Relief in the Nature of a Writ of
Error Coram Nobis at 6, Loving v. United States, No. 03-8007 (C.A.A.F. June
16, 2003)[hereinafter Answer to Ring Writ].
27
47 M.J. 438.
[the All Writs Act].28
In this pleading the Government reasoned
as follows:
Petitioners current challenge is a collateral
attack on his conviction and sentence, which
became final upon this Courts decision on
review of his direct appeal. . . . The United
States Court of Appeals for the Armed Forces .
. . does not have jurisdiction to grant [habeas
corpus relief under 28 U.S.C. 2241 or] the
equivalent relief in this case under the All
Writs Act . . . . Therefore that court had no
jurisdiction under 28 U.S.C. 1651(a) to grant
a petition for extraordinary relief in aid of
[its] jurisdiction[].29
Our evaluation of the Government argument that this Court
has no jurisdiction must begin with the Constitution.
under Article I, Congress established this Court.30
Acting
As an
Article I court, this is a Court of limited jurisdiction.

In Clinton v. Goldsmith,31 the Supreme Court reaffirmed that
our independent statutory jurisdiction is narrowly
circumscribed.32
This statement reflects the longstanding rule
that, Article I courts are courts of special jurisdiction

created by Congress that cannot be given the plenary powers of
Article III courts.
The authority of the Article I court is not
only circumscribed by the [C]onstitution, but limited as well by
28
Brief for Respondents in Opposition at 10-11, Loving v. Hart, 525 U.S. 1040
(1998)(No. 98-251).
29
Id. at 11 (citations omitted).
30
Article 141, UCMJ, 10 U.S.C. 941 (2000) (There is a court of record
known as the United States Court of Appeals for the Armed Forces. The court
is established under article I of the Constitution.).
31
526 U.S. 529 (1999).
32
Id. at 535.
10
the powers given to it by Congress.33
As we may not act unless
Congress has given us the authority to do so, we must examine

the statute that gives this Court jurisdiction.
Article 67(a),34 states in part:
The Court of Appeals for
the Armed Forces shall review the record in -- (1) all cases in
which the sentence, as affirmed by a Court of Criminal Appeals,
extends to death[.]
This statute expressly and unequivocally
establishes the subject matter jurisdiction of this Court over

death penalty cases on direct appeal.
The narrower issue is
whether this Courts jurisdiction continues after completion of

the direct review by the Supreme Court and during the period in
which the case is pending presidential action under Article
71(a).
This issue invites the Court to consider two questions
of first impression:
(1) when a capital case becomes final in
the military justice system and (2) what impact finality has on
this Courts jurisdiction.
Before explaining our reasoning, we think it prudent to
answer these questions.
A capital case is final with the
meaning of Article 76 only after the President, acting under

Article 71(a), approves it.
As finality under Article 76 is the
terminal point for proceedings within the court-martial and

military justice system, this Courts jurisdiction continues
until a case is final.
We proceed to our analysis appreciating
33
In re United Missouri Bank of Kansas City, N.A., 901 F.2d 1449, 1451-52
(8th Cir. 1990) (internal citation omitted).
34
UCMJ, 10 U.S.C. 867(a) (2000).
11
the distinction between finality under Article 76 as the

terminal point in the proceedings and a final judgment as to
the legality of the proceedings under Article 71(c)(1) that
establishes the point of completion of the direct legal review.
As will be presented below, these are the foundational concepts
that reflect the primary responsibility of this Court for the
supervision of the military justice system through appellate
review.
These concepts also invite a continuation of
discretionary, but certainly not mandatory, judicial deference

to this Court by Article III courts, as seen in judicial
doctrines of abstention and exhaustion, and reaffirm this
Courts jurisdiction thereby supporting this Courts exercise of
powers under the All Writs Act, 28 U.S.C. 1651(a) (2000).
1.
When a capital case becomes final
In deciding the issue of finality, this Court must

initially consider Article 76, which states:
876. Art. 76. Finality of proceedings, findings, and
sentences
The appellate review of records of trial
provided by this chapter, the proceedings,
findings, and sentences of courts-martial as
approved, reviewed, or affirmed as required by
this chapter, and all dismissals and discharges
carried into execution under sentences by
courts-martial following approval, review, or
affirmation as required by this chapter, are
final and conclusive. Orders publishing the
proceedings of courts-martial and all action
taken pursuant to those proceedings are binding
upon all departments, courts, agencies, and
officers of the United States, subject only to
12
action upon a petition for a new trial as

provided in section 873 of this title (article
73) and to action by the Secretary concerned as
provided in section 874 of this title (article
74), and the authority of the President.35
For our purposes, we focus on the plain words of this statute,
which states that only the proceedings, findings, and sentences
of courts-martial as approved, reviewed, or affirmed as required
by this chapter . . . are final and conclusive.36
It is a fundamental tenet of statutory construction to
construe a statute in accordance with its plain meaning.37
On
its face, Article 76 expressly requires that sentences be

approved . . . as required by this chapter before they are
final.
We next consider Article 71(a), which states:
If the sentence of the court-martial extends to
death, that part of the sentence providing for
death may not be executed until approved by the
President. In such a case, the President may
commute, remit, or suspend the sentence, or any
part thereof, as he sees fit. That part of the
sentence providing for death may not be
suspended.38
35
10 U.S.C. 876 (citations added).

Id.
37
See Lamie v. United States Trustee, 540 U.S. 526, 534 (2004) (It is well
established that when the statutes language is plain, the sole function of
the courts -- at least where the disposition required by the text is not
absurd -- is to enforce it according to its terms.) (citations and internal
quotation marks omitted); Connecticut Natl Bank v. Germain, 503 U.S. 249,
253-54 (1992)([I]n interpreting a statute a court should always turn first
to one cardinal canon before all others. We have stated time and again that
courts must presume that a legislature says in a statute what it means and
means in a statute what it says there.); see also Norman J. Singer, 2A
Sutherland Statutory Construction 45.02, 46.01 (6th ed. 2000).
38
10 U.S.C. 871(a).
36
13
From the plain language of this statute, it is clear and

undisputed that the President must approve a sentence of death
before it is executed.
It is equally clear from the plain words
of Articles 71(a) and 76 that the President must approve a

sentence of death before a capital case is final within the
meaning of Article 76.
Furthermore, this reading of the plain
text is supported by the legislative history of Article 76.

At the time of enactment of the UCMJ, both Armed Services
Committees said of Article 76:
This article is derived from AW
[Article of War] 50(h) and is modified to conform to terminology

used in this code.
Subject only to a petition for a writ of
habeas corpus in Federal court, it provides for the finality of

court-martial proceedings and judgments.39
We, therefore,
examine Article of War (AW) 50(h)40 to better understand the

operation of Article 76.
AW 50(h) states:
h. FINALITY OF COURT-MARTIAL JUDGMENTS. -The appellate review of records of trial
provided by this article, the confirming action
taken pursuant to articles 48 or 49, the
proceedings, findings, and sentences of courtsmartial as heretofore or hereafter approved,
reviewed, or confirmed as required by the
Articles of War and all dismissals and
discharges heretofore or hereafter carried into
execution pursuant to sentences by courtsmartial following approval, review, or
confirmation as required by the Articles of
War, shall be final and conclusive, and orders
39
H.R. Rep. No. 81-491, at 35 (1949); S. Rep. No. 81-486, at 32 (1949)

reprinted in 1980 U.S.C.C.A.N. 2222, 2258.
40
62 Stat. 627, 635-38, 10 U.S.C. 1521 (1948).
14
publishing the proceedings of courts-martial

and all action taken pursuant to such
proceedings shall be binding upon, all
departments, courts, agencies, and officers of
the United States, subject only to action upon
application for a new trial as provided in
article 53.41
As to AW 50(h), we again focus on the plain words of this
statute that only findings, and sentences of courts-martial as
heretofore or hereafter approved, reviewed, or confirmed as
required by the Articles of War . . . shall be binding . . . .
This statute expressly requires sentences be confirmed as
required by the Articles of War . . . .
The requirement that a death sentence be confirmed is
addressed in AW 48 that states in part:
Art. 48. CONFIRMATION. -- In addition to the
approval required by article 47, confirmation is
required as follows before the sentence of a courtmartial may be carried into execution, namely:
a. By the President, with respect to any
sentence -(1) of death, or
(2) involving a general officer;
Provided, That when the President has already acted as
approving authority, no additional confirmation by him
is necessary[.]42
So it is clear that under AW 48 and 50(h), a death sentence
was not final until the President had confirmed it.
As the
legislative history of Article 76 states that the only change

between it and AW 50(h) was terminology, it is apparent that
the word confirmed was deleted from Article 76 because it is
41
We note that almost identical language is used in AW 53 to address finality

of proceedings relating to a petition for new trial.
42
62 Stat. 627, 635, 10 U.S.C. 1519 (1948).
15
unnecessary in light of the Article 71(a) requirement that the

President approve a death sentence.
Article 76 read in
conjunction with this insight into and understanding of the

legislative history of Article 76 reaffirms the correctness of
our reliance of plain words of Article 76 to require approval
by the President before a death sentence is final under the
UCMJ.
We observe that neither the Supreme Court nor this Court
has addressed the issue as to whether presidential action under
Article 71(a) is a prerequisite for a case being final in the
context of addressing the jurisdiction of this Court over a
capital case.
Petitioner cited two Supreme Court cases to
support the position that Presidential action under Article

71(a) is a prerequisite for finality in the context of this
Courts jurisdiction.
Dynes v. Hoover,43 recites that a court-
martial sentence had it extended to a loss of life becomes

final after it is confirmed by the President.
But we note
that Dynes was a non-capital case, and the statement related to

the then-existing rules under the Articles for the Governing of
the Navy with no established connection to Article 76.
Also in
Schick v. Reed,44 there are two statements relating to finality:

the capital case was forwarded [to the President] for final
43
44
61 U.S. 65, 81 (1857).

419 U.S. 256 (1974).
16
review as required by Art. 71(a)45 and the death sentence was .

. . valid . . . subject only to final action by the President.46
But the issue in Schick was the validity of the Presidents
conditional commutation of a death sentence under Article II,
2, clause 1, of the Constitution, and the decision did not
address the issue of finality.
We find language in both these
cases consistent with our construction of finality for a

capital case under the UCMJ, but of little assistance in
resolving this issue.
So we decline to rely on either Dynes or
Schick to support our conclusion.

2.
Distinction between finality

and
a final judgment as to the legality of the proceedings
The Supreme Court has made clear that finality under
Article 76 only defines the point at which military court
judgments become final and requires that they be given res
judicata effect.47
In Gusik v. Schilder,48 the Supreme Court
addressed the effect of AW 53,49 an immediate statutory
45
Id. at 257.
Id. at 259.
47
Schlesinger v. Councilman, 420 U.S. 738, 749 (1975).
48
340 U.S. 128 (1950).
49
62 Stat. 627, 639, 10 U.S.C. 1525 (1948). Under the Articles of War, AW
50(h) was the primary statute that addressed finality of the court-martial.
But, notwithstanding this provision, AW 53 authorized the Judge Advocate
General to grant a petition for new trial, filed within rigid time
limitations, that otherwise could have been final under AW 50(h). So AW 53
also contained a finality provision, repeating with almost identical language
the rule of finality stated in AW 50(h). The Supreme Court in Gusik,
addressed AW 53 rather than AW 50(h), as the Court opined that the petitioner
was obligated to avail himself of a potential new trial remedy before seeking
habeas review. 340 U.S. at 130-34. As the language of AW 50(h) and AW 53
relating to finality are so similar, the Gusik discussion of Article 53 does
not impact the Supreme Courts discussion in Schlesinger of Article 76.
46
17
predecessor of the present Article 76, and stated similarly, We

read the finality clause of Article 53 as doing no more than
describing the terminal point for proceedings within the courtmartial system.50
Understanding the distinction between finality as to the
terminal point in the proceedings and a final judgment as to
the legality of the proceedings in the unique military justice
system is important.
Article 76 addresses the former, and
Article 71(c)(1) addresses the latter.

Article 71(c)(1) provides:
If a sentence extends to death, dismissal, or a
dishonorable or bad-conduct discharge and if
the right of the accused to appellate review is
not waived, and an appeal is not withdrawn,
under section 861 of this title (article 61),
that part of the sentence extending to death,
dismissal, or a dishonorable or bad-conduct
discharge may not be executed until there is a
final judgment as to the legality of the
proceedings (and with respect to death or
dismissal, approval under subsection (a) or
(b), as appropriate). A judgment as to
legality of the proceedings is final in such
cases when review is completed by a Court of
Criminal Appeals and (A) the time for the accused to file a
petition for review by the Court of Appeals for
the Armed Forces has expired and the accused
has not filed a timely petition for such review
and the case is not otherwise under review by
that Court;
(B) such a petition is rejected by the
Court of Appeals for the Armed Forces; or
50
340 U.S. at 132-33.
18
(C) review is completed in accordance with

the judgment of the Court of Appeals for the
Armed Forces and (i) a petition for a writ of
certiorari is not filed within the time limits
prescribed by the Supreme Court;
(ii) such a petition is rejected by
the Supreme Court; or
(iii) review is otherwise completed
in accordance with the judgment of the Supreme
Court.51
The focus of Article 71 is on the execution of certain
sentences -- those relating to death, dismissal, or punitive
discharges.
sentences:
Only certain civilian leaders can execute these

the President alone can execute a death sentence and
a service Secretary or designated Under Secretary or Assistant

Secretary can execute a dismissal or punitive discharge.
None
of these persons may execute these particular sentences prior to

a certain identified event occurring -- a final judgment as to
the legality of the proceedings.52
Only after there is a final judgment as to the legality of
the proceedings is a sentence ripe for execution -- that is
ripe for approval under either Article 71(a)(as to a death
sentence) or Article 71(b)(as to dismissal or punitive
discharge).53
Moreover, as we stated earlier in this opinion, as
to a death sentence, only after the President approves a death

51
10 U.S.C. 871.
Id.
53
See Krause v. United States, 7 M.J. 427 (C.M.A. 1979)(per Cook, J., with
Fletcher, C.J., concurring in the result).
52
19
sentence is it final.
From this statutory scheme of Article 71,
it is obvious that these specified sentences of a court-martial,

including a death sentence, even when affirmed in direct
appellate review, are not self-executing.
In defining a final judgment as to the legality of the
proceedings, Article 71(c) states that such a judgment occurs
only when the case is complete on direct review -- including
review by a Court of Criminal Appeals and this Court, as well as
possible review by the Supreme Court.
We need not address here
the impact a final judgment as to the legality of the

proceedings, may have upon the legal authority that pertains to
any further legal proceedings challenging the conviction and
sentence.54
But, from the plain language of Articles 71 and 76
and the Supreme Courts construction of Article 76, we conclude

this important point:
a final judgment as to the legality of
the proceedings under Article 71(c) does not result in a case

being final for the purposes of Article 76.
Having established this point, we are compelled to comment
on Rule for Courts-Martial (R.C.M.) 1209.
This provision is an
apparent attempt to blend both Articles 71(c) and 76.

when [a] court-martial is final,
To define
R.C.M. 1209(a) uses language
nearly identical to that in Article 71(c) defining a final

54
Compare Griffith v. Kentucky, 479 U.S. 314 (1987)(establishing the legal

principle that a decision of the Supreme Court that announces a new rule
applies to all criminal cases still pending on direct review) with Teague v.
Lane, 489 U.S. 288 (1989)(plurality opinion)(clarifying and modifying
previous decisions regarding retroactivity of new constitutional rules).
20
judgment as to the legality of the proceedings.
But R.C.M.
1209(b) adds the requirement that only a so-defined final courtmartial that is approved, reviewed, or affirmed as required by
the code, has the effects of finality under Article 76.
R.C.M.
1209(a) and (b) read together, reflecting the authority of both

Articles 71 and 76, declare the binding effect of a courtmartial findings and sentence only after it is approved as
required by these two statutes.
In summary, we proceed appreciating that there is an
important distinction between two fundamental concepts in the
UCMJ.
Article 71(c) requires a final judgment as to the
legality of the proceedings to render a death sentence ripe for

approval by the President.
Article 76 requires that the
President approve a death sentence before the sentence is final,

thereby describing the terminal point for proceedings within the
court-martial system.
We next consider what impact these two
concepts have on the jurisdiction of this Court.55

3.
The impact of finality on this Courts jurisdiction
Article 67(a) vests this Court with subject matter

jurisdiction over this capital case.
55
But this case is not final
The recent Supreme Court case of Bell v. Thompson, 125 S. Ct. 2825 (2005),
does not address the present jurisdictional issue before this Court. In
Bell, the Supreme Court held that the Sixth Circuit abused its discretion in
authorizing a stay of its mandate following a denial of certiorari by the
Supreme Court thereby violating Fed. R. App. P. 41. In the present case,
this Court has issued the mandate. United States v. Loving, 42 M.J. 111
(1995). Also, the procedural context of Bell is distinct from that of the
present case. Bell addressed the termination of federal habeas corpus
proceedings in an Article III court. The present case is not final under the
UCMJ and has not entered collateral Article III review.
21
under Article 76 because the President has not ordered the

sentence executed.
So we conclude that this Courts subject
matter jurisdiction continues even after the Supreme Courts

decision affirming Petitioners death sentence.
This conclusion is supported by two important points:
first, the plain language and legislative history of Article
67(a)(1) and Article 76, and second, the rich history of this
Courts exercise of jurisdiction after completion of direct
review.
The previous discussion focuses on the first point
relating to statutory interpretation.
But as that authority is
just one part of the support for this Courts jurisdiction, it

is appropriate now to focus on the second.
Acting under Article I of the Constitution, Congress has
established military law as a jurisprudence which exists
separate and apart from the law which governs in our federal
judicial establishment.56
A cornerstone principle of military
law was to vest the United States Court of Appeals for the Armed
Forces, with jurisdiction to assure direct civilian review over
military justice.57
The Supreme Court has recognized that it
was in this Court that Congress has confided primary

responsibility for the supervision of military justice in this
56
Burns v. Wilson, 346 U.S. 137, 140 (1953)(plurality opinion); see also
Parker v. Levy, 417 U.S. 733, 744 (1974).
57
Noyd v. Bond, 395 U.S. 683, 694 (1969); see also S. Rep. No. 101-81 at 171
(1989)(As the highest court within the military justice system, [this Court]
performs the same function as the highest appellate court within the
jurisdiction of a state or the District of Columbia.).
22
country and abroad.58
Our exercise of this responsibility
through our judicial review of cases invites a continuation of

discretionary, but certainly not mandatory, judicial deference
to our judgments.59
Considering the Courts mandatory
jurisdiction over a capital case in Article 67(a)(1) and this

Courts pivotal role in the military justice system, it is
consistent with congressional intent that this Court retains
jurisdiction at least until a case is approved and final
under Article 76.60
We consider helpful, but not dispositive, the history of
this Courts exercise of jurisdiction after completion of direct
review.61
In Frischholz, this Court, before addressing a
petition for a post-conviction writ in a case that was final,

stated:
[Article 76] does not insulate a conviction from
subsequent attack in an appropriate forum.
At best it provides
finality only as to interpretations of military law by this
58
Noyd, 395 U.S. at 695.

Schlesinger, 420 U.S. at 753.
60
Let there be no doubt that we do not rely on the supervisory authority of
this Court to establish this Courts jurisdiction. That is done by the plain
language of Articles 67, 71, and 76. Also, we are mindful of the general
principle of statutory construction that jurisdiction of courts is neither
granted nor assumed by implication. Singer, supra note 37, 67.3. That
maxim is particularly apt in the case of an Article I court whose
jurisdiction must be strictly construed. Northrop Grumman Corp. v. United
States, 47 Fed. Cl. 20, 40 (2000).
61
See, e.g., Garrett v. Lowe, 39 M.J. 293 (C.M.A. 1994); Del Prado v. United
States, 23 C.M.A. 132, 48 C.M.R. 748 (1974); United States v. Frischholz, 16
C.M.A. 150, 36 C.M.R. 306 (1966). We do not now address whether this Court
has jurisdiction after a case is final under Article 76 because that issue is
not raised in the present case, which involves our review only before a case
is final under Article 76.
59
23
Court.62
We note that the Supreme Court stated its approval of
this Courts construction of Article 76 in Frischholz.63

Arguably the Supreme Courts reaffirmation of the holding in
Frischholz supports the position that this Courts jurisdiction
is not terminated once the case has completed direct review.
This Court reaffirmed this important point in Del Prado,
stating:
Nor is the possibility for relief terminated by the
exhaustion of all appellate rights and procedures established by

the Uniform Code of Military Justice.64
But we observe that all these cases predate Goldsmith65 and
most predate the congressional attention to finality in the 1983
legislative amendments to Article 71.
Also neither Frischholz
nor earlier Supreme Court cases that discuss Article 76, such as
Schlesinger, address the terminal point of this Courts
jurisdiction.
So we must examine the impact of both Clinton v.
Goldsmith66 and the Congressional attention to finality in the

1983 legislative amendments to Article 71.
The Supreme Courts opinion in Goldsmith67 helped define the
limits of our jurisdiction.
In Goldsmith, the Supreme Court
held that this Court exceeded its jurisdiction by enjoining

executive action to administratively drop an Air Force officer
62
63
64
65
66
67
16 C.M.A. at
Schlesinger,
23 C.M.A. at
526 U.S. 529
Id.
Id.
151, 36 C.M.R. at 307.

420 U.S. at 753.
133, 48 C.M.R. at 749.
(1999).
24
from the rolls of the Air Force.
The Supreme Court stated that
Congress:
confined th[is] courts jurisdiction to review
of specified sentences imposed by courtsmartial: the CAAF has the power to act only
with respect to the findings and sentence as
approved by the [court-martials] convening
authority and as affirmed or set aside as
incorrect in law by the Court of Criminal
Appeals. 10 U.S.C. 867(c).68
The Supreme Court explicitly rejected this Courts
reliance on the All Writs Act,69 as a basis for the
Courts jurisdiction to address the Air Forces action to
drop an officer from the rolls.70
The Supreme Court
explained that [w]hile the All Writs Act authorizes

employment of extraordinary writs, it confines the
authority to the issuance of process in aid of the
issuing courts jurisdiction. . . . [T]he Act does not
enlarge that jurisdiction[.]71
As the executive action
at issue was not a finding or sentence under 10

U.S.C. 867(c), the elimination of Goldsmith from the
68
Id. at 534.
28 U.S.C. 1651(a).
70
Goldsmith 526 U.S. at 534.
71
Id. Goldsmith expressly does not attempt to provide a comprehensive
analysis of this Courts writ authority. The Supreme Court stated:
69
We have already seen that the CAAFs independent statutory

jurisdiction is narrowly circumscribed. To be more specific,
the CAAF is accorded jurisdiction by statute (so far as it
concerns us here) to review the record in [specified] cases
reviewed by the service courts of criminal appeals, 10 U.S.C.
867(a)(2), (3), which in turn have jurisdiction to review
court-martial cases, 866(a).
Id. at 535.
25
rolls appears straightforwardly to have been beyond the

CAAFs jurisdiction to review and hence beyond the aid
of the All Writs Act in reviewing it.72
Unlike Goldsmith, the present capital case arises from and
relates to both a finding and sentence that was imposed in a
court-martial proceeding.
As we have stated, pursuant to the
authorization of Congress, this Court is the only federal

civilian court with the jurisdiction to accomplish mandatory
review of this capital case.73
So the concerns raised by the
Supreme Court in Goldsmith are not in play in the present case.

This jurisdiction of this Court is compatible with the
final limitation in Goldsmith that the Supreme Court identified
when it stated:
[T]he 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. Simply stated, there is no source of
continuing jurisdiction for the CAAF over all
actions administering sentences that the CAAF at one
time had the power to review.74
Consistent with this precedent, in the present case this
Court does not address any issues relating to the actions
administering sentences that [this Court] at one time had the
power to review.
72
73
74
On the contrary, the present issues implicate
Id.
See Article 67(a).
Goldsmith, 526 U.S. at 536.
26
the validity and integrity of this Courts prior judgment in

this capital case.
Because this capital case is not yet final under Article
76, we conclude that this Court has subject matter jurisdiction
to address Petitioners two writs.75
So we turn from the power
of this Court to act to the question of whether it should

entertain either of Petitioners present writs.
B.
1.
Is Petitioners Writ of Coram Nobis an

Appropriate Pleading to Request this
Court to Consider the Issues
Presented in These Two Petitions?
This Court has power to issue extraordinary writs in aid

of its jurisdiction
The All Writs Act authorizes all courts established by Act
of Congress [to] issue all writs necessary or appropriate in aid

of their respective jurisdictions.76 It is well established that
the All Writs Act authorizes employment of extraordinary writs,
[and] it confines the authority to the issuances of process in
75
Moreover, assuming that the provisions of Article 71(c) relating to a

final judgment as to the legality of the proceedings operates to render this
death sentence final, we also conclude that this Court retains subject
matter jurisdiction over this capital case. Simply stated, whether this case
is final under Article 71(c) or not, this Court has subject matter
jurisdiction under Article 67(a)(1), over this capital case. On this point,
we state that there is nothing in the legislative history of Article 71(c)
that indicates the congressional purpose to terminate this Courts
jurisdiction over a capital case. Also it is important to note that Congress
made no changes to Article 76 when it amended Article 71(c). Had Congress
intended to deprive this Court of all jurisdiction after complete review by
the Supreme Court, we believe in light of this Courts mandatory jurisdiction
over every capital case in Article 67(a)(1), Congress would have made its
purpose clear and unequivocal. In summary, even after a final judgment as
to the legality of the proceedings, Petitioner may collaterally attack his
conviction and sentence, and this Court has judicial power to entertain
Petitioners later challenges.
76
28 U.S.C. 1651(a).
27
aid of the issuing courts jurisdiction.77
The Supreme Court
has recognized this Courts power to issue extraordinary writs

under the All Writs Act.78
So having established this Courts
statutory subject matter jurisdiction in this capital case, this

Court may invoke the All Writs Act.
The Supreme Court has also made clear that our power under
the All Writs Act is essentially equitable and, as such, not
generally available to provide alternatives to other adequate
remedies at law.79
The Supreme Court also has stated that a
writ may not be used . . . when another method of review will

suffice.80
This statement reaffirmed the Supreme Courts
earlier statement in Carlisle v. United States81 that:
The All
Writs Act is a residual source of authority to issue writs that

are not otherwise covered by statute.
Where a statute
specifically addresses the particular issue at hand, it is that

authority, and not the All Writs Act that is controlling.82
So our considering these two writs pursuant to the
authority of the All Writs Act must be consistent with these
limitations -- that it is necessary or appropriate to address
77
Goldsmith, 526 U.S. at 534.

See id. (citing Noyd, 395 U.S. at 695 n.7).
79
Id. at 537.
80
Id. (quoting 9 Moores Federal Practice 201.40).
81
517 U.S. 416 (1996).
82
Id. at 429 (quoting Pennsylvania Bureau of Corr. v. United States Marshals
Service, 474 U.S. 34, 43 (1985)). The Court explained that Fed. R. Crim. P.
29 provides the applicable law governing motions for judgment of acquittal.
Id. Although Carlisle could not take advantage of Rule 29s protections
because he filed his motion out of time, the Court held that coram nobis was
nonetheless unavailable to him. Id.
78
28
the unique issues relating to the capital sentence in this case

and that the authority to issue the requested writs is not
otherwise covered by another statute.
These fundamental
principles relating to our power under the All Writs Act require
us to consider several issues:
first, whether the Article 71(a)
requirement for presidential action prior to execution of the

death sentence constitutes an adequate remedy under law thereby
rendering present review unnecessary and inappropriate; second,
whether possible review by an Article III court constitutes an
adequate remedy under law, thereby rendering present review
unnecessary and inappropriate; and third, whether there are
other adequate remedies at law available before this Court -specifically whether a writ of habeas corpus is available for
Petitioner here and now.
2.
Later presidential action does not render this Courts

present review either unnecessary or inappropriate
We conclude that presidential action is not an adequate

remedy at law.
Presidential action is akin to a state
governors action, and as such, is not part of the direct

judicial review of the case.
Article 71 requires, prior to an
action by the President regarding a death sentence, that this

Court complete judicial review and that the Supreme Court
resolve any petition for a writ of certiorari filed with it.
29
This construction is supported by the legislative history of the

1983 amendments of Article 71 that suggests that they were
intended to separate the executive clemency powers of the
President from the judicial review of the proceedings.
The
Senate Report on Article 71 explains:

This legislation continues the present
requirement that death sentences receive
Presidential approval and that dismissal of an
officer be approved by the Secretary of the
Military Department concerned before such
sentences are executed under Article 71. Such
reviews are conducted after all legal reviews
are completed, and do not involve a review of
the legality of the proceedings; rather, they
are conducted as a matter of clemency.83
Indeed, as the Presidents action takes place within the
framework of the findings and sentence approved during the
judicial review, it is both necessary and appropriate for
this Court to resolve any post-conviction and legal issues
before the President acts under Article 71(a).
Our construction
of the executive clemency powers of the President contained in

the UCMJ, as separate from the judicial review of the
proceedings by this Court, also makes clear that later
Presidential action does not provide a substitute for our
judicial review.84
83
S. Rep. No. 98-53, at 24 (1983), reprinted in Index and Legislative

History, Uniform Code of Military Justice 550 (1984).
84
In this regard, we are mindful of the guidance as to the exercise of our
power under the All Writs Act in Goldsmith. In addition to holding that this
Court had no jurisdiction to issue a writ, the Supreme Court held in
Goldsmith that even if it was within the jurisdiction of this Court to review
the underlying issue, resort to the All Writs Act would still be out of
bounds, being unjustifiable either as necessary or as appropriate in
30
3.
Possible review by an Article III court does not render this

Courts present review either unnecessary or inappropriate
Neither do we find that possible or eventual review by

Article III Courts is an adequate remedy at law.
We reach this
conclusion only after carefully examining the question of

whether an Article III court can exercise collateral review
after there is a final judgment as to the legality of the
proceedings pursuant to Article 71(c) but before there is
executive action taken on the findings and sentence under
Article 71(a) and the case becomes final under Article 76.
In
addressing this issue, we find solid guidance and persuasive

reasoning in Blair-Bey v. Quick.85
In Blair-Bey, the United States Court of Appeals for the
District of Columbia Circuit addressed the jurisdiction of the
federal courts to entertain a habeas petition challenging the
procedures by which the petitioner was denied parole in the
District of Columbia.
The district court had dismissed the
petition after finding that the federal courts were precluded by

a provision of the D.C. Code, 16-1901, from entertaining
light of alternative remedies available to a servicemember demanding to be

kept on the rolls. 526 U.S. at 537. The Court then outlined alternative
statutory avenues of relief that prevented the All Writs Act from coming
into play. The Supreme Court concluded that an injunction was not allowed
under the All Writs Act since other administrative bodies in the military,
and the federal courts, have authority to provide administrative or judicial
review of the action challenged by respondent. Id. at 537-38. We conclude
that the clemency action by the President under Article 71 does not provide
the administrative or judicial review sufficient to address Petitioners
present challenges to his death sentence.
85
151 F.3d 1036 (D.C. Cir. 1998).
31
petitions filed by D.C. prisoners.
But the appellate court held
that it had jurisdiction to entertain the petition and stated:

In deciding whether Congress intended to
restrict the availability of federal habeas
corpus when it enacted the present section 161901, we tread carefully. As reviewed above,
there is a long tradition of ready access of
prisoners to federal habeas corpus, Anderson
[v. Singletary], 111 F.3d [801, 805 (11th Cir.
1997)], and we are most reluctant to find that
Congress has deprived an entire category of
prisoners of access to an Article III habeas
remedy without very clear evidence of
congressional intent.86
Applying this same reasoning in the present case, we also
are reluctant to, and do not, conclude that Congress deprived
servicemembers of the right to seek Article III habeas review
after there is a final judgment as to the legality of the
proceedings pursuant to Article 71(c) but before there is
executive action taken on the findings and sentence under
Article 71(a) and the case becomes final under Article 76.
We
find no statute expressing clear congressional intent to

establish exclusivity of judicial power in either this Court or
any other federal courts in this situation.
Also it does not
appear that there is a published Article III court case

addressing this issue.87
86
Id. at 1043-44.
Goldsmith discussed the relationship between review within the military
system and collateral review by the Article III courts, but this opinion did
not focus on the timing of when a decision becomes final in the military
justice system. The Goldsmith Court noted:
87
[O]nce a criminal conviction has been finally reviewed within

the military system, and a servicemember in custody has
32
But our concluding that Article III courts have the power
to entertain a writ of habeas corpus or other petitions does not
necessarily mean that this eventual review is an adequate remedy
at law.
The mere possibility of eventual habeas corpus review
in federal civil courts prior to presidential action regarding

the death sentence under Article 71(a), is unlikely because of
other federal courts application of the doctrines of
exhaustion88 or abstention.89
Earlier in this opinion we rejected the Government
assertion that this Court does not have jurisdiction over these
two petitions for extraordinary relief.90
Similarly we have
recognized the power of Article III courts to entertain a writ
exhausted other avenues provided under the UCMJ to seek relief

from his conviction, he is entitled to bring a habeas corpus
petition, see 28 U.S.C. 2241(c), claiming that his
conviction is affected by a fundamental defect that requires
that it be set aside.
526 U.S. at 537 n.11 (citations omitted). But this passage does not tell us
whether, for purposes of Article III habeas corpus, a case is final when
legal review is completed under Article 71 or when final action is taken on
the findings and sentence by an executive branch official.
88
The exhaustion doctrine applies to both federal and state prisoners who
seek to file an application for a writ of habeas corpus to an Article III
court. See 28 U.S.C. 2254, 2255 (2000).
89
At least one federal court has relied on the doctrine of abstention to
avoid addressing issues pending completion of both judicial and
administrative actions within the military. See Lawrence v. McCarthy, 344
F.3d 467 (5th Cir. 2003). Lawrence involved an Article III challenge to
activation of a reservist to face court-martial charges, which implicated the
action of military officials and military courts. The Fifth Circuit, in
holding that abstention was appropriate, said: The application of Younger
[v. Harris, 401 U.S. 37 (1971)], in this case . . . promotes judicial
efficiency and conservation of resources by avoiding duplicative proceedings.
The need for federal intervention may be obviated entirely simply by allowing
the military institution, both judicial and administrative, to run their
course. 344 F.3d at 474.
90
See supra pp. 11-12 (rejecting the position of the Government presented in
Brief for Respondents in Opposition at 10-11, Loving v. Hart, 525 U.S. 1040
(No. 98-251)).
33
of habeas corpus or other petitions.
At this point we simply
explain why Article III intervention presently is unlikely (in

light of the application of doctrines of exhaustion or
abstention) thereby rendering our continued involvement in this
case as necessary or appropriate under the All Writs Act.
Before a case is final under Article 76, Article III
federal courts normally will not be available to consider
Petitioners challenge to his death sentence.91
The Supreme
Court has made clear that federal courts typically will not
entertain habeas petitions by military prisoners unless all
available military remedies have been exhausted.92
In Noyd,93 the Supreme Court addressed the purposes of
requiring exhaustion of military remedies prior to Article III
collateral review.
The Court quoted Justice Douglas, speaking
for a unanimous Court in Gusik, to explain some of the important

reasons which require civilian courts to respect the integrity
of the military system that Congress has established:
91
See generally Richard D. Rosen, Civilian Courts and the Military Justice
System: Collateral Review of Courts-Martial, 108 Mil. L. Rev. 5 (1985).
92
Schlesinger, 420 U.S. at 758. See also Gusik, 340 U.S. 128 (establishing
the general rule that habeas corpus petitions from military prisoners should
not be entertained by federal civilian courts until all available remedies
within the military court system have been invoked).
93
395 U.S. at 693 (1969) (reaffirming Gusiks exhaustion rule). The
legislative history of the 1983 amendments to the UCMJ supports the Supreme
Courts reliance on the doctrine of exhaustion. See Revision of the Laws
Governing the U.S. Court of Military Appeals and the Appeals Process:
Hearings on H.R. 6406 and H.R. 6298 Before the Subcomm. on Military Personnel
of the H. Comm. on Armed Forces, 96th Cong. 55 (1980), reprinted in Index and
Legislative History, Uniform Code of Military Justice 82 (1984). (The
doctrine of exhaustion of remedies may require the accused to pursue further
actions in the military system prior to obtaining review in a federal
district court.).
34
An analogy is a petition for habeas corpus in

the federal court challenging the jurisdiction
of a state court. If the state procedure
provides a remedy, which though available has
not been exhausted, the federal courts will not
interfere. . . . The policy underlying that
rule is as pertinent to the collateral attack
of military judgments as it is to collateral
attack of judgments rendered in state courts.
If an available procedure has not been employed
to rectify the alleged error which the federal
court is asked to correct, any interference by
the federal court may be wholly needless. The
procedure established to police the errors of
the tribunal whose judgment is challenged may
be adequate for the occasion. If it is, any
friction between the federal court and the
military or state tribunal is saved. . . . Such
a principle of judicial administration is in no
sense a suspension of the writ of habeas
corpus. It is merely a deferment of resort to
the writ until other corrective procedures are
shown to be futile. 94
The Noyd Court noted the need for a substantial degree of
civilian deference to the military tribunals and specifically
referenced our Courts primary responsibility for the
supervision of military justice.95
The Supreme Court stated that
this deference to our Court was rooted in both judicial economy

(avoiding needless civilian judicial intervention) and respect
for our Courts expertise in interpreting the technical
provisions of the UCMJ.96
Application of either the exhaustion or abstention doctrine
by Article III courts is most appropriate in this capital case.
94
395 U.S. at 693-94 (quoting Gusik, 340 U.S. at 131-32).

Id. at 694-95.
96
Id. at 696 (There seems little reason to blaze a trail on unfamiliar
ground when the highest military court stands ready to consider petitioners
arguments.).
95
35
Because there has not yet been presidential approval of the

death sentence, an Article III court would likely view as
premature any habeas corpus petition challenging a military
death sentence.97
Until the President acts, there is the
possibility that the issue could be mooted, so that Article III

courts should not become involved.
This probable absence of an
alternate forum to present his claim, before action by the

President, invites this Court to be available to address issues
that relate to the lawfulness of the capital sentence.98
In addition there are four other important practical
factors that support the application of the doctrine of
exhaustion in the present situation.
First, Congress gave this
Court the authority to conduct a mandatory review of death

penalty cases.99
Under this authority, this Court remains the
primary judicial body with jurisdiction over Petitioners case,

and this Court has authority to reexamine its prior decision in
this case.100
The factual history of this case, including the
97
See Gusik, 340 U.S. 128; Rosen, supra note 91, at 67-76.
Again, this is not to say that the Article III courts do not have the power
to entertain the habeas writ but only that these courts prudently have been
reluctant to entertain the writ related to military justice issues because of
the exhaustion doctrine. Of course, collateral review by an Article III is
the only judicial forum to address matters outside the scope of military
justice. See Goldsmith, 526 U.S. at 534 (citing Parisi v. Davidson, 405 U.S.
34, 44 n.12 (1972), for the proposition that the Court of Military Appeals
lacked express authority over [a] claim for discharge based on conscientious
objector status).
99
Article 67(a)(1).
100
The primacy of this Courts position has not been diminished by the
establishment of immediate possible certiorari review by the Supreme Court.
In fact, Congress, in establishing Supreme Court review of courts-martial and
in later amending the UCMJ, repeatedly has emphasized that our Court would
continue to exercise primary responsibility for the supervision of military
98
36
decision by the Supreme Court in June of 1996 and no

presidential action as to the death sentence, reveals that this
case could otherwise remain in a legal vacuum for years.
We do
not think this is what the Congress intended when it directed

this Court to conduct a mandatory review of capital cases.
Second, we note that the scope of federal habeas review is
not certain, thereby raising questions as to the capability of
federal habeas proceedings to safeguard servicemembers
constitutional rights.101
In light of these circumstances, it is
our view that the mere possibility of eventual habeas corpus

review of uncertain scope in federal civil courts, after the
Presidents action, is an inadequate substitute for this Courts
timely consideration of issues challenging the lawfulness of a
capital sentence.
Third, Congress has given this Court a mandate to provide
direct civilian review over military justice and guidance to
other military courts considering capital cases and federal
courts with respect to the impact of the recent opinions in
Ring, Apprendi, and Wiggins on the militarys death penalty
law. See S. Rep. No. 98-53, at 33 (1983), reprinted in Index and Legislative
History, Uniform Code of Military Justice 559 (1984)(The Committee intends
that the Court of Military Appeals will be the principal source of
authoritative interpretations of the law.); H.R. Rep. No. 98-549, at 17
(1980), reprinted in Index and Legislative History, Uniform Code of Military
Justice 664 (1984)(The committee is of the opinion that . . . the Court of
Military Appeals will remain the primary source of judicial authority under
the Uniform Code of Military Justice.).
101
See Rosen, supra note 91, at 57 n.13.
37
scheme.102
This guidance is of some urgency as there are
presently four death penalty cases under direct review at the

Military Courts of Criminal Appeals, and other pending or
potential capital cases in the offing.
Finally, prior to the President acting on a sentence of
death, pursuant to Article 71(a), the military justice system
must present to the President a case where the findings and
sentence are lawful and there is confidence in the reliability
of the determination of a death sentence.
If legal issues arise
between the conclusion of legal review and final executive

action, it is best that the legal foundation for the Presidents
action be established by this Court with its expertise in
military justice.103
This probable absence of an alternate forum
for a servicemember to present his claim, before action by the

President, invites this Court to be available to address issues
that relate to the lawfulness of the capital sentence.
In summary, these additional four points support our
conclusion that present review by an Article III court is
unlikely.
Accordingly, our review is necessary and proper
because there is no viable alternate judicial forum available

102
See Noyd, 395 U.S. at 696.
103
Our present judicial review is consistent with our judicial duty to

search for constitutional error with painstaking care . . . . Kyles, 514
U.S. at 422 (quoting Burger, 483 U.S. at 785). Our review effectuates the
heightened reliability required in capital cases. See, e.g., Gilmore v.
Taylor, 508 U.S. 333 (1993); California v. Ramos, 463 U.S. 992 (1983);
Woodson v. North Carolina, 428 U.S. 280 (1976).
38
for Petitioner to present his legal challenges as to the

lawfulness of a capital sentence prior to the President acting
pursuant to Article 71(a).
4. Consideration of other legal remedies that
relate to the appropriateness of this Courts
present review of Petitioners claims
In light of these conclusions, this Court must determine
whether there are other adequate remedies at law available
before this or any other Court.
This requires us to address
both the propriety of filing a writ of coram nobis and other

statutory authority that addresses the right of an incarcerated
person to seek habeas relief.
To support his claim for extraordinary relief, Petitioner
presents constitutional challenges to the legality of his
capital sentence:
the Ring Writ relates to the authority of the
President to promulgate R.C.M. 1004 and the voting procedures

for adjudging his capital sentence, and the Wiggins Writ makes a
claim of ineffective assistance of Petitioners trial defense
counsel.
Procedurally, Petitioner filed two petitions for
extraordinary relief in the nature of a writ of error coram

nobis.
In both of these writs, Petitioner seeks the relief of
setting aside his death sentence, and in neither of these writs

does Petitioner challenge his continued confinement nor seek to
be released from confinement.104
104
In addressing the propriety of
Ring Writ, supra note 21, at 37; Wiggins Writ, supra note 23, at 45.
39
the two petitions, we are obliged to address both the writ of

coram nobis and the writ of habeas corpus, because the former is
available only when the later is unavailable.
The writ of error coram nobis, also referred to simply
as a writ of coram nobis, evolved in 16th century English
common law as a procedural means to remedy judicial wrongs for
which there was no other established remedy.105
The writ of
coram nobis (the Latin phrase literally translates let the

record remain before us) is submitted to the court that imposed
the original judgment.106
A writ petition submitted to a superior court is a writ of
error coram vobis (before you).107
But incorrectly describing
the writ is not fatal to a petition, because courts look at the

substance of the writ rather than the form.108
Historically, the writ of error coram nobis was distinct
from the writ of habeas corpus in that the former dealt with
factual errors and the latter with legal errors.109
This
distinction no longer pertains, as coram nobis has been expanded

to encompass constitutional and other fundamental errors.110
Reflecting its original purpose, a writ of error coram nobis
105
Steven J. Mulroy, The Safety Net: Applying Coram Nobis Law to Prevent the
Execution of the Innocent, 11 Va. J. Soc. Poly & L. 1, 9 (2003).
106
Id.; 2 Steven Childress & Martha Davis, Federal Standards of Review,
13.01, at 13-4 (3d ed. 1999).
107
Ex Parte Lange, 85 U.S. 163, 196 (1873).
108
See Pyles v. Boles, 250 F. Supp. 285, 288 (N.D.W.V. 1966); see also
Childress & Davis, supra note 106, at 13-8.
109
Mulroy, supra note 105, at 10.
110
40
remains appropriate when no other remedy is available.111
distinctive feature of this writ is that it alleges no error by

the original court or its findings, but invites the original
courts attention to new facts or law that were not known to the
court at the time and that may change the result.112
It permits
a court to remedy errors not perceived or not fully assessed

when the case was first before it.113
It may not be used to
seek a reevaluation of the evidence or a reconsideration of

alleged errors.114
The writ encompasses the impact of new law
on a decision.115
Courts have imposed a requirement that the movant show
that he or she had exercised reasonable diligence in seeking a
remedy . . . a requirement that the defendant, exercising
reasonable diligence could not have discovered the evidence
prior to the original judgment.116
Both at common law and in
modern practice, the relief afforded [by the writ] is without

limitation of time for facts affecting the validity and
regularity of the judgment.117
A writ of coram nobis differs
111
Id. at 13-7 (citing United States v. Morgan, 346 U.S. 502, 512 (1954)).
See Frischholz, 16 C.M.A. at 153, 36 C.M.R. at 309; Mulroy, supra note 105,
at 10.
113
Del Prado, 23 C.M.A. at 133, 48 C.M.R. at 749.
114
Frischholz, 16 C.M.A. at 153, 36 C.M.R. at 309.
115
Childress & Davis, supra note 106, 13.01 at 13-2.
116
Mulroy, supra note 105, at 11; see also Frischholz, 16 C.M.A. at 153, 36
C.M.R. at 309.
117
Del Prado, 23 C.M.A. at 133, 48 C.M.R. at 749; see also Garrett, 39 M.J. at
295 n.2 (We are unaware that there are time limits for petitioning for a
writ of error coram nobis.)
112
41
from a writ of habeas corpus in that it is available to

petitioners who are not in custody.118
The Supreme Court has had very little to say on coram nobis
in the last fifty years.
But we do find helpful the substantive
discussion of coram nobis in United States v. Morgan.119
In
Morgan, the Court established the prevailing rule today -Continuation of litigation after final judgment and exhaustion
or waiver of any statutory right of review should be allowed
through this extraordinary remedy only under circumstances
compelling such action to achieve justice.120
Coram nobis
118
See Garrett, 39 M.J. at 295; Morgan, 346 U.S. at 510 (expressly rejecting
the Government assertion that 28 U.S.C. 2255 should be construed to cover
the entire field of remedies in the nature of coram nobis in federal
courts).
119
346 U.S. 502. The Supreme Court held that a state prisoner sentenced as a
second offender because of a prior federal conviction could challenge his
earlier conviction in the federal case through a writ of coram nobis. At the
outset, the Court defined the issue before it as whether a United States
District Court has power to vacate its judgment of conviction and sentence
after the expiration of the full term of service. Id. at 503. The Court
concluded that federal courts have the power under the All Writs Act to issue
writs of coram nobis in criminal cases and that the power extends to district
courts. Having found the writ to be within the district courts powers, the
Supreme Court set out to limit the situations in which the writ should be
granted.
120
Id. at 511. Applying the rule to the facts of Morgans case, the Supreme
Court concluded:
Where it cannot be deduced from the record whether counsel was

properly waived, we think, no other remedy being then
available and sound reasons existing for failure to seek
appropriate earlier relief, this motion in the nature of the
extraordinary writ of coram nobis must be heard by the federal
trial court. Otherwise a wrong may stand uncorrected which
the available remedy would right.
Id. at 512. Giving some additional context to its holding, the Court added
the following short paragraph to the end of the opinion:
Although the term has been served, the results of the
conviction may persist. Subsequent convictions may carry
42
should only be used to remedy errors of the most fundamental

character.121
In a more recent case, Carlisle v. United States,122 the
Supreme Court underscored the difficulty of successfully
petitioning for a writ of coram nobis where a specific rule of
criminal procedure provided the applicable law relating to an
issue.
The Court stated, As we noted a few years after the
enactment of the Federal Rules of Criminal Procedure, it is

difficult to conceive of a situation in a federal criminal case
today where [a writ of coram nobis] would be necessary or
appropriate.123
But we find this guidance less than satisfying
heavier penalties, civil rights may be affected. As the power

to remedy an invalid sentence exists, we think, respondent is
entitled to an opportunity to attempt to show that this
conviction was invalid.
Id. at 512-13. With this paragraph and the previous discussion of the writ
coram nobis, we believe the Court is defining the more specific parameters
that may permit the filing of a petition for coram nobis relief. The Courts
opinion can reasonably be read to say that coram nobis is safely available
only: (1) after the term has been served, (2) there is an error of the most
fundamental character, (3) the consequences or results of the erroneous
conviction persist, (4) no other remedy is available to address the error,
and (5) a writ of coram nobis could remedy those consequences or results. We
note that Morgan addressed the availability of a writ of error coram nobis to
vacate a conviction after the sentence had been served. But this decision is
not clear about whether or not a petitioner who is in custody is barred from
all coram nobis relief.
121
Id. at 512 (quoting United States v. Mayer, 235 U.S. 55, 69 (1914)); see
also United States v. Mandel, 862 F.2d 1067 (1988)(granting of a writ of
error coram nobis in light of a retroactive dispositive change in the law of
mail fraud).
122
517 U.S. at 428-29. In Carlisle, the district court granted the
defendants motion for judgment of acquittal even though it was filed out of
time. The Sixth Circuit reversed, and the Supreme Court agreed that the
district court had no authority to enter a post-verdict judgment of acquittal
when the motion was untimely. Having thus disposed of the main issue in the
case, the Supreme Court quickly dismissed Carlisles secondary claim -- that
the district court had the power to enter a judgment of acquittal under the
All Writs Act through the writ of coram nobis.
123
Id. at 429 (quoting United States v. Smith, 331 U.S. 469, 475, n.4 (1947)).
43
in the present case, for [u]nlike the practice in the United

States Circuit Courts of Appeal and District Courts, neither the
UCMJ nor the Manual for Courts-Martial, United States, 1984,
provides procedures for collateral, post-conviction attacks on
guilty verdicts.124
So absent a specific rule or statute in the
military justice system that pertains to this present situation,

we next consider other statutory authority that might be
available for Petitioner to obtain the relief that he now
requests from this Court.
In federal criminal practice, a motion to vacate the
judgment under 28 U.S.C. 2255 has, for the most part, replaced
the writ of coram nobis.
However, 28 U.S.C. 2255 did not
abolish the common law writ of error coram nobis, and it is

still available under the All Writs Act.125
For our purposes, it
is sufficient to note that coram nobis is analogous to a motion

under 28 U.S.C. 2255 and the processes developed for treating
Section 2255 motions apply as well to coram nobis
applications.126
Similarly, we view the scope of review for
coram nobis as equivalent to that for habeas relief under 28
124
United States v. Murphy, 50 M.J. 4, 5 (C.A.A.F. 1998).

Morgan, 346 U.S. at 511.
126
Childress & Davis, supra note 106, at 13-7; see Morgan, 346 U.S. at 506 n.4
(stating that the writ of coram nobis is of the same general character as
one under 28 U.S.C. 2255); see also United States v. Travers, 514 F.2d
1171, 1173 n.1 (2d Cir. 1974)(stating coram nobis and habeas corpus are
roughly similar proceedings); United States v. Little, 608 F.2d 296, 299
(8th Cir. 1979)(stating coram nobis and habeas corpus are substantially
equivalent proceedings).
125
44
U.S.C. 2255.127
Although this scope is not altogether clear,
it is important to note that coram nobis usually does not

include claims raised on direct appeal or habeas if the issues
were decided on the merits there.128
In the wake of the Supreme Courts holding in Morgan, the
question remains as to whether coram nobis relief is available
if the petitioner is in custody within the meaning of 2255.
This is important because if relief is available under 2255,
thereby making the statutory remedies of that section available
to this Petitioner, coram nobis is not available.
The circuit
courts are in complete agreement that if the petitioner is in

custody within the meaning of 2255, coram nobis relief is
unavailable as a matter of law.129
This is true whether or not
habeas relief is a realistic possibility.
In other words, even
if the coram nobis petitioner will be barred from habeas relief
127

Id. at 13-18.
129
See, e.g., United States v. Esogbue, 357 F.3d 532, 534 (5th Cir. 2004);
Obado v. State of New Jersey, 328 F.3d 716, 718 (3d Cir. 2003); Matus-Leva v.
United States, 287 F.3d 758, 761 (9th Cir. 2002); United States v. Torres,
282 F.3d 1241, 1245 (10th Cir. 2002); United States v. Johnson, 237 F.3d 751,
755 (6th Cir. 2001); United States v. Barrett, 178 F.3d 34, 54-55 (1st Cir.
1999); Fleming v. United States, 146 F.3d 88, 89-90 (2d Cir. 1998); United
States v. Brown, 117 F.3d 471, 474-75 (llth Cir. 1997); United States v.
Bush, 888 F.2d 1145, 1147 (7th Cir. 1989); United States v. Mandel, 862 F.2d
1067, 1075 (4th Cir. 1988); United States v. Little, 608 F.2d 296, 299 n.5
(8th Cir. 1979); Clifton v. United States, 371 F.2d 354, 355 n.2 (D.C. Cir.
1966), overruled on other grounds by Pea v. United States, 397 F.2d 627 (D.C.
Cir. 1967).
128
45
due to time limits, the rules on successive petitions, or other

limitations of 2255, coram nobis is still not available.130
Interestingly, military courts have not fully addressed or
decided the in custody issue.131
This Courts coram nobis
decisions have involved petitioners both in and out of custody

but it does not appear that there is any case where the in
custody issue was treated as dispositive.132
But we need not resolve whether coram nobis relief is
available if the petitioner is in custody within the meaning
of 2255, for there is another basis for our concluding that
the statutory remedies of that section are not available to this
Petitioner.
The plain language of 2255 does not speak to the
power of this Court to address Petitioners challenges to his

court-martial.133
This statute states in part that A prisoner . . . may move
the court which imposed the sentence to vacate, set aside or
130
See, e.g., Matus-Leva, 287 F.3d. at 761 (Matus-Levas argument that a

2255 petition is not really available to him because it is time barred under
the Antiterrorism and Effective Death Penalty Act [AEDPA], is unavailing. A
petitioner may not resort to coram nobis merely because he has failed to meet
the AEDPAs gatekeeping requirements.); Johnson, 237 F.3d at 755 (denying
coram nobis relief even though habeas relief was time-barred); Malave v.
United States, 134 F. Supp. 2d 1019, 1021 (E.D. Wis. 2001) ([C]oram nobis is
not available as a safety valve to relieve Section 2255 petitioners of the
consequences of their procedural missteps.).
131
Krause, 7 M.J. at 429 (Perry, J., dissenting) (expressing the view that
this Court has authority under 28 U.S.C. 2255 to entertain a writ of coram
nobis but the Court should treat it as a writ of habeas corpus).
132
A lower military court acknowledges that the U.S. Supreme Court [has] held
that the ancient writ of coram nobis [is] available in criminal cases . . .
when the petitioner [has] completed his sentence and [is] no longer in
custody for purposes of seeking habeas corpus relief. Johnson v. United
States, 49 M.J. 569, 571 (N-M. Ct. Crim. App. 1998).
133
But see Krause, 7 M.J. at 429 (Perry, J., dissenting).
46
correct the sentence.134
In the military justice system there
are no standing courts, so the court that imposed Petitioners

death sentence is no longer in existence.135
Also because this
Court was not the sentencing court, it similarly is not a court

which imposed the sentence within the meaning of 2255.
Any
attempt of a servicemember to avail himself of 2255 in this

Court is obviously futile because the statute permits the
sentencing court to make findings of fact and this Court has
no factfinding power.136
We decline any invitation to fit a 28
U.S.C. 2255 square peg into an Article 67 round hole.

that 28 U.S.C. 2255 is not pertinent.
We find
Because Petitioner
cannot presently obtain habeas review under this statute, we

cannot rely on it to render his petition for a writ of coram
nobis unavailable.
Next we address whether Petitioner can seek habeas under 28
U.S.C. 2241.
This statute states:
Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the
district courts and any circuit judge within
their respective jurisdictions. The order of a
circuit judge shall be entered in the records
of the district court of the district wherein
the restraint complained of is had.137
134
28 U.S.C. 2255 (emphasis added).

Gilliam v. Bureau of Prisons, 208 F.3d 217, No. 99-1222, 2000 U.S. App.
LEXIS 3684, at *3, 2003 WL 268491, at *1 (8th Cir. Mar. 10, 2000)(decision
without published opinion, reported in full in electronic
databases)(Strictly speaking, a person convicted in a court-martial
proceeding may not file a section 2255 challenge in the court of conviction
because, following conviction, that court ceases to exist.).
136
Article 67(c) states, The Court of Appeals for the Armed Forces shall take
action only with respect to matters of law.
137
28 U.S.C. 2241 (2000).
135
47
We conclude that the plain words of this statute also do

not speak to the power of this Court to address Petitioners
challenges to his court-martial.
By the plain words of this
statute, neither this Court nor any judge of this Court is

empowered to act.138
This Article I court is not mentioned by
name, and the judges of this Article I court are not circuit
judges.139
Finally, any action by this Court or a judge of this Court
directing any habeas petition to an Article III court pursuant
to this statute would most likely not accomplish the purpose of
the statute of obtaining habeas review because the district
court would decline to proceed on exhaustion or abstention
grounds pending the case becoming final within the military
justice system.
Thus, we conclude that a petition before this
Court for a writ of habeas corpus filed pursuant 28 U.S.C.
138
See Callwood v. Enos, 230 F.3d 627, 632-34 (3d Cir. 2000)(explaining how
prior to a 1984 act of Congress the District Court of the Virgin Islands
lacked 28 U.S.C. 2241 habeas corpus jurisdiction because it was not a
District Court established under Article III); see also Joseph v. de
Castro, 805 F. Supp. 1242 (D.V.I. 1992)(holding that the District Court of
the Virgin Islands may not entertain a habeas motion brought pursuant to 28
U.S.C. 2241), superseded by statute, 48 U.S.C. 1613. The court in de
Castro explained in part: Because the District Court of the Virgin Islands
is not an Article III court, but rather is established under Article IV, 3
of the United States Constitution which gives Congress plenary power to
regulate [the Territory belonging to the United States], its general
jurisdiction is congressionally mandated. 805 F. Supp. at 1248 n.6.
139
See 28 U.S.C. 451 (2000); United States Navy-Marine Corps Court of
Military Review v. Cheney, 29 M.J. 98 (C.M.A. 1989).
48
2241 is not a viable remedy thereby rendering relief under coram

nobis unavailable.140
5. This Court may issue a writ of habeas corpus under the All
Writs Act in this death penalty case; therefore a coram nobis
writ is not appropriate
Eliminating possible alternative relief under 28 U.S.C.
2241 and 2255 does not mean that the coram nobis pleading is
proper.
Deciding that these two statutes are not pertinent to
the power of this Court to issue writs, therefore, permits this

Court to look to the All Writs Act -- our residual source of
authority to issue writs.141
We conclude that there is a proper
basis to permit Petitioner to file a writ of habeas corpus under

28 U.S.C. 1651(a).
As stated earlier, there is no question that this Court is
empowered under the All Writs Act to grant extraordinary relief
where appropriate.
The writ of habeas corpus is available to
the military accused and may be filed in this Court under the
All Writs Act, 28 U.S.C. 1651(a), because the Supreme Court
140
We note that the Government has previously asserted that this Court has no
jurisdiction to act under 28 U.S.C. 2241(a). See Jones v. Ignatius, 18
C.M.A. 7, 8, 39 C.M.R. 7, 8 (1968). This statute affords a servicemember who
is in custody the right to seek Article III collateral review. See Witham
v. United States, 355 F.3d 501 (6th Cir. 2004); Gilliam, No. 99-122, 2000
U.S. App. LEXIS 3684, at *6-*7, 2000 WL 268491, at *3 (citing Goldsmith, 526
U.S. at 527 n.11). A case illustrating the Article III collateral review is
Monk v. Zelez, 901 F.2d 885 (10th Cir. 1990). The case originated in the
District of Columbia Circuit as a challenge to the discharge and deprivation
of pay based upon an allegedly illegal court-martial conviction. The
district court provided relief and the circuit court held that it should have
been viewed as a habeas petition, and as such should have been brought in the
jurisdiction in which the petitioner was confined. Monk v. Secy of the
Navy, 793 F.2d 364 (D.C. Cir. 1986). The case was filed in Kansas, and the
Tenth Circuit provided habeas relief based upon an improper reasonable doubt
instruction.
141
Carlisle, 517 U.S. at 429.
49
has expressly addressed this issue and blessed our issuing the
Great Writ.142
The Supreme Court stated, [W]e do not believe
that there can be any doubt as to the power of the Court of

Military Appeals to issue an emergency writ of habeas corpus in
cases, like the present one, which may ultimately be reviewed by
the court.143
This statement of the Supreme Court reaffirms the
conclusion that a writ of habeas corpus is unavailable under 28

U.S.C. 2241 and 2255, because had either of these statutes
authorized habeas relief, the Supreme Court would not have
relied on the All Writs Act, 28 U.S.C. 1651(a) to support this
Courts exercise of judicial power under Noyd.
With this clear
precedent before us that this Court may grant a writ of habeas

corpus to address the issues raised in the two extraordinary
writs filed in the present case, we conclude that coram nobis is
not appropriate.
Regarding the writ of habeas corpus, the
Supreme Court has stated:

[T]he scope and flexibility of the writ [of habeas
corpus] -- its capacity to reach all manner of illegal
detention -- its ability to cut through barriers of
form and procedural mazes -- have always been
emphasized and jealously guarded by courts and
lawmakers. The very nature of the writ demands that it
be administered with the initiative and flexibility
essential to insure that miscarriages of justice
within its reach are surfaced and corrected.144
142
Noyd, 395 U.S. at 695 n.7 (1969); Courtney v. Williams, 1 M.J. 267 (C.M.A.
1976). See generally Daniel J. Wacker, The Unreviewable Court-Martial
Conviction: Supervisory Relief under the All Writs Act from the United
States Court of Military Appeals, 10 Harv. C.R.-C.L. L. Rev. 33 (1975).
143
See Noyd, 395 U.S. at 695 n.7.
144
Harris v. Nelson, 394 U.S. 286, 291 (1969).
50
Because of the present availability of the Great Writ145

under 28 U.S.C. 1651(a), Petitioner cannot properly file a
writ coram nobis here.
6.
Petitioner has shown good cause for filing the present

pleadings at this Court
Although we have established that our issuing a writ of

coram nobis presently is not appropriate, we must acknowledge
that in Garrett,146 this Court recognized its power to entertain
a writ of error coram nobis to address constitutional and other
fundamental errors.147
But this Court did not discuss the
relationship between habeas corpus and coram nobis.
Because of
this omission, we decline to follow Garrett and perpetuate the

life of a writ of coram nobis where the petitioner is in
custody and a writ of habeas corpus is available to Petitioner
to present issues to this Court.
Also in light of the authority in Garrett and this Courts
long history of entertaining the distinctive coram nobis writ,148
145
Id. at 290.
39 M.J. 293.
147
Id. at 295. In this case we rejected the Government assertion that the
writ of error coram nobis would not lie to correct an error of law.
148
See, e.g., Garrett, 39 M.J. 293; Del Prado, 23 C.M.A. 132, 48 C.M.R. 748;
Frischholz, 16 C.M.A. 150, 36 C.M.R. 306. We note that the legislative
history of the UCMJ reflects that the new trial provisions of Article 73,
UCMJ, 10 U.S.C. 873 (2000), incorporated the writ of coram nobis to address
a fraud on the court. In a hearing that examined Article 73, the Department
of Defense witness, Felix Larkin explained, What we did was to combine what
amounts to a writ of error coram nobis with the motion for a new trial on
newly discovered evidence. We have provided for both of them and to our
146
51
we are not inclined to find any defect in Petitioners pleadings

because Petitioner relied on our past practice and these
pleadings to assert both constitutional and fundamental errors.
Instead we must address whether Petitioners filing of these two
additional writs at this Court was proper.
The Governments response to the Ring Writ asks this Court
to exercise its discretion and dismiss the petition without a
decision on its merits, because it was not first filed at the
court below.149
The Government is correct that the decision of
this Court to entertain these writs is a matter within our

discretion.
Rules of Practice and Procedure, United States
Court of Appeals for the Armed Forces (C.A.A.F. R.) 4(b)(1)

provides:
The Court may, in its discretion, entertain original

petitions for extraordinary relief including, but
not limited to, writs of mandamus, writs of
prohibition, writs of habeas corpus, and writs of
error coram nobis. See 28 USC 1651(a) and Rules
18(b), 27(a) and 28. Absent good cause, no such
petition shall be filed unless relief has first been
sought in the appropriate Court of Criminal Appeals.
Original writs are rarely granted.
minds they are the only additional circumstances over and above the appeal
that need a remedy. Uniform Code of Military Justice: Hearings on H.R.
2498 Before a Subcomm. of the H. Comm. on Armed Forces, 81st Cong. 1211
(1949), reprinted in Index and Legislative History, Uniform Code of Military
Justice (1950) (not separately paginated). We do not read this history
(reflecting the incorporation of a writ of coram nobis into Article 73, to
address fraud on the court as the basis for a new trial), as excluding the
writ of coram nobis as a means to raise other issues relating to
constitutional and other fundamental errors.
149
Answer to Ring Writ at supra note 26, at 6-7.
52
C.A.A.F. R. 18(b) repeats the first sentence of C.A.A.F. R.

4(b)(1).
C.A.A.F. R. 33 permits this Court to suspend any of
the other rules for good cause shown.

In the present case, we find Petitioner has shown good
cause for filing the two original petitions at this Court.
The
issues raised by Petitioner go to the lawfulness of this Courts

prior judgment, raise important constitutional claims, and
relate to this Courts statutory duty to review a death
sentence.
Also we have considered the futility of any filing at
the lower court, as it would remain bound by the previous

decisions of this Court and the Supreme Court.150
Nonetheless we
also have found that the writ of coram nobis is an inappropriate

procedural vehicle for petitioner to challenge the legality of
his death sentence because a writ of habeas corpus is the proper
pleading.
Because the writ of habeas corpus is available to
Petitioner to address his challenges to his death sentence, we

proceed to address the final threshold issue.
C.
Are the latest petitions an abuse of the writ?
The doctrine of abuse of the writ defines the

circumstances in which federal courts decline to entertain a
claim presented for the first time in a second or subsequent
150
See ABC, Inc. v. Power, 47 M.J. 363, 364 (C.A.A.F. 1997); Garrett, 39 M.J.
at 295 (deciding the merits of the petition and granting relief after earlier
affirming the decision below, without specifically addressing the
petitioners failure to seek relief from the court below). See also Eugene
R. Fidell, Guide to the Rules of Practice and Procedure for the United States
Court of Appeals for the Armed Forces, 28-29 (11th ed. 2003)(making several
references to this Courts willingness on occasion to consider writs not
filed in the lower courts).
53
petition for a writ of habeas corpus.151
At common law,
successive petitions raising the same issues were permitted.

Res judicata did not attach to a courts denial of habeas
relief.152
By judicial decision153 and statutory enactment,154
limits on successive petitions have now been imposed.

This Court is not precluded from considering the present
petitions under the abuse of the writ doctrine because the
Government has not carried its burden of pleading abuse of the
writ.155
In neither of the answers to the two petitions has the
Government raised this issue.
Therefore, we will not apply it
in this case.156
151
McCleskey v. Zant, 499 U.S. 467, 470 (1991).

See id. at 478-89 (tracing the history of federal habeas corpus law).
153
In McCleskey, the Supreme Court adopted a cause and prejudice analysis.
The Court described that analysis as follows:
152
When a prisoner files a second or subsequent application, the

government bears the burden of pleading abuse of the writ. The
government satisfies this burden if, with clarity and particularity, it
notes petitioners prior writ history, identifies the claims that
appear for the first time, and alleges that petitioner has abused the
writ. The burden to disprove abuse then becomes petitioners. To
excuse his failure to raise the claim earlier, he must show cause for
failing to raise it and prejudice therefrom as those concepts have been
defined in our procedural default decisions . . . . If petitioner
cannot show cause, the failure to raise the claim in an earlier
petition may nonetheless be excused if he or she can show that a
fundamental miscarriage of justice would result from a failure to
entertain the claim.
499 U.S. at 494-95.
154
See id. Sections 105 and 106 of the Antiterrorism and Effective Death
Penalty Act amended 28 U.S.C. 2255 and 2244, respectively, and created a
default rule requiring courts to dismiss second or successive petitions
except in certain limited circumstances.
155
See McCleskey, 499 U.S. at 494-95.
156
Moreover, we observe that our decision not to apply the abuse of the writ
doctrine in the present case is supported by two other reasons. First, abuse
of the writ normally applies to petitions for a writ of habeas corpus. It is
rooted in concerns for federalism and comity, neither of which are applicable
to this Courts review of its own prior decision in the context of a writ of
54
But this conclusion does not terminate our consideration of

the application of this doctrine.
We also must consider whether
our present consideration of these petitions may result in a

later application of the abuse of the writ doctrine by an
Article III court.
The Antiterrorism and Effective Death Penalty Act (AEDPA),
codified at 28 U.S.C. 2244(b) (2000), is a modified res
judicata rule, a restraint on what is called in habeas corpus
practice abuse of the writ.157
AEDPA provides that [a] claim
in a second or successive habeas corpus application under

Section 2254 that was presented in a prior application shall be
dismissed.158
It also provides that [a] claim presented in a
second or successive habeas corpus application under section

2254 that was not presented in a prior application shall be
dismissed except in two circumstances.159
Although 28 U.S.C.
2244 applies to a person in custody pursuant to the judgment of

a State court, the same general principles apply to applicants
under 28 U.S.C. 2255 who are federal prisoners.160
But it is uncertain whether the same general principles
relating to abuse of the writ apply to applications under 28
U.S.C. 1651 to this Article I court.
We note that there is
coram nobis before a capital case is final under Article 76. Second, the
exhaustion doctrine that applies to court-martial proceedings as a
prerequisite to filing a habeas corpus petition invites both of Petitioners
present filings.
157
Felker v. Turpin, 518 U.S. 651, 664 (1996).
158
28 U.S.C. 2244(b)(1).
159
28 U.S.C. 2244(b)(2).
160
See Sanders v. United States, 373 U.S. 1 (1963).
55
authority that establishes that the the gatekeeping provisions

of AEDPA, as set forth in 28 U.S.C. 2244, do not apply to all
habeas petitions, nor are all multiple collateral attacks second
or successive.161
The application of these legal principles of
abuse of the writ to military justice capital jurisprudence is

an issue of first impression.
Absent controlling legal authority on this issue, it is not
clear whether our entertaining a petition for a writ of habeas
corpus would trigger the AEDPA second or successive writ
language and thereby preclude an Article III court collateral
review under the doctrine of abuse of the writ.
Petitioner had
no clear notice by controlling legal authority that the

principles of abuse of the writ applied to his earlier filing of
any writ petition at this Court or that his filing a writ
petition at this Court could be considered the predicate for the
Government later asserting abuse of the writ if Petitioner
161
Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 2000) (concluding that
[b]ecause 2244(b) makes no reference to habeas petitions filed under
2241, but rather, applies only to petitions filed pursuant to 28 U.S.C.
2254, the prior-appellate-review provisions of 2244(b) do not apply to
habeas petitions filed under 2241); see also Felker, 518 U.S. at 662;
Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998). By their terms
neither of these gatekeeping provisions applies to petitions filed under
2241; In re Hanserd, 123 F.3d 922, 930 (6th Cir. 1997) (A 2241 motion
would not be barred by the new restrictions on successive motions and
petitions.). Because 2241 potentially allows a petitioner to evade these
requirements, however, courts have attempted to define circumstances under
which AEDPAs new gatekeeping rules will bar a second or successive petition
filed under 2241. See, e.g., Charles v. Chandler, 180 F.3d 753, 757 (6th
Cir. 1999) (holding that a petitioner will receive only one bite at the
post-conviction apple unless he can show either that he has newly discovered
evidence or that a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was previously
unavailable applies); Barrett, 178 F.3d 34 (allowing a petitioner asserting a
claim of actual innocence to use 2241 to circumvent the gatekeeping
provisions).
56
eventually seeks habeas review in an Article III court.
In
light of this uncertainty, we are reluctant presently to

entertain the present petitions.
V.
Conclusion
This Court has the option to treat Petitioners erroneously

filed coram nobis petitions simply as petitions for habeas
corpus.
This would afford us the opportunity to consider the
essence of his complaints of error without controlling reference

to the label or title of his pleadings.
But we decline to do
so.
First, we find the rationale of the Tenth Circuit
persuasive because it concluded that it is error to treat an
erroneously filed coram nobis petition as a petition for habeas
corpus.162
In Carpenter, the court stated:

[T]his Court, like many of our sister circuits,
has held that a district court may only
recharacterize a prisoners non 2255 motion
as a 2255 petition if (1) the prisoner, with
knowledge of the potential adverse consequences
of such recharacterization, agrees to have the
motion so recharacterized, or (2) the district
court, having concluded that [a habeas
petition] is the appropriate mechanism for
asserting the claim, gives the prisoner the
162
See United States v. Carpenter, 24 F. Appx 899, 901 (10th Cir.

2001)(unpublished) (stating that the district court erred in recharacterizing
a coram nobis petition as a habeas petition). But see Sinclair v. Louisiana,
679 F.2d 513, 515 (5th Cir. 1982)(stating that the Court will treat the writ
of error coram nobis as an application for writ of habeas corpus); Goldstein
v. United States Parole Commn, 940 F. Supp. 1505, 1509 (D. Cal.
1996)(acknowledging that because federal courts have a responsibility to
construe liberally pro se prisoners pleadings as habeas corpus petitions
where the interests of justice demand[,] . . . this Court will treat
petitioners motion for writ of error coram nobis as a petition for writ of
habeas corpus.)
57
opportunity to withdraw the motion rather than

have it so recharacterized.163
In the capital case presently before our Court, we will
follow the prudent approach presented in Carpenter.
Presently
there is no evidence in the record indicating that Petitioner

was informed of the potential adverse consequences associated
with recharacterizing his coram nobis petitions as habeas
petitions nor has this Court previously offered Petitioner an
opportunity to withdraw his petitions and present them as
petitions for a writ of habeas corpus.
Our present decision and
opinion serves both these purposes by simply following the

guidance presented in Carpenter of denying the petition and
advising Petitioner that he may file a habeas petition.164
Second, our reluctance to recharacterize Petitioners
pleadings acknowledges and respects Petitioners right to
address with his counsel the option to file a habeas corpus
petition at this Court and its potential consequences.
In this
regard we consider this wise and prudent advice relevant to that

discussion:
The careful and effective litigator, on either
side of postconviction litigation, measures the success of any

maneuver at least in part by it tendency to hold open, rather
163
Carpenter, 24 F. Appx at 904 (citing United States v. Kelly, 235 F.3d

1238, 1242 (10th Cir. 2000)(citation and quotation marks omitted); United
States v. Lowe, 6 F. Appx 832, 836 (10th Cir. 2001).
164
Carpenter, 24 F. Appx at 904; see, e.g., Birkett v. United States, No. 99
CV 1729(RR), 1999 U.S. Dist. LEXIS 14660, at *7-*8, 1999 WL 754151, at *3
(E.D.N.Y. Aug. 19, 1999).
58
than to close, the door to further arguments at later stages of

the proceedings.165
We are mindful that a habeas petition filed before this
Court could affect Petitioners right and strategy to raise both
the issues currently presented and later identified issues that
either were not or could not have been included in an earlier
application.166
Our declining to recharacterize Petitioners
coram nobis petitions as a habeas petition thereby avoids any of

these problematic concerns that could have an effect upon a
habeas petition if eventually filed in an Article III court.
Decision
Accordingly, this Court dismisses both petitions for a writ
coram nobis without prejudice for Petitioner to refile a writ of
habeas corpus with this Court.
165
166
Larry W. Yackle, Postconviction Remedies 528 (1981).

Id.
59
United States v. Loving, No. 03-8007/AR and 04-8013/AR
CRAWFORD, Judge (concurring in the result):

I agree that the writ of coram nobis should be dismissed.

Loving v. United States, C.A.A.F. (2005)

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Dwight J.

Loving v. United States, Nos. 03-8007/AR and 04-8013/AR

Chief Judge GIERKE delivered the opinion of the Court.

have jurisdiction to entertain Petitioners assertions of error

More precisely, the first critical

question is whether this Court has jurisdiction over this

The second critical question is whether our collateral

review of this case during this period extends to a writ of

The Supreme Court has recognized that this Court has

collateral review jurisdiction, and we find no authority

Uniform Code of Military Justice (UCMJ), 10 U.S.C. 871(c)(1) (2000).

Loving v. United States, Nos. 03-8007/AR and 04-8013/AR

As to the second issue, we hold that the present petitions

At this point in the case, a petition

for a writ of habeas corpus is the only pleading available to

reasons stated below, we dismiss both petitions without

But some principles related to the resolution of

these issues apply to all military justice cases.

This legal maxim reflects the unique severity

and irrevocable nature of capital punishment, infuses the legal

Loving v. United States, Nos. 03-8007/AR and 04-8013/AR

developing process of addressing issues related to capital

The impact of this

constantly evolving body of capital punishment law is compounded

petitions for extraordinary relief in the nature of writs of

Loving v. United States, Nos. 03-8007/AR and 04-8013/AR

his military justice capital case the authority of two recent

Loving v. United States, Nos. 03-8007/AR and 04-8013/AR

On the other hand, the issues relating to the merits of

II. APPELLATE HISTORY

Afterwards, this Court granted a petition for

reconsideration in part by deleting an inaccurate factual

Loving v. United States, Nos. 03-8007/AR and 04-8013/AR

statement from our opinion.13

Later the Supreme Court granted

certiorari and affirmed this Courts decision.14

Petitioner filed a writ

appeal petition, and this Court affirmed the lower courts

That opinion documents the prior appellate history

Court denied the petition for reconsideration.18

This Court denied the petition for

United States v. Loving, 42 M.J. 109 (C.A.A.F. 1995)(summary disposition).

Loving v. United States, Nos. 03-8007/AR and 04-8013/AR

The case has been forwarded to the President

This Court issued a show cause order,

the Government responded, and Petitioner filed a reply brief.

This Court again issued a

United States v. Loving, 54 M.J. 459 (C.A.A.F.) (summary disposition),

Loving v. United States, Nos. 03-8007/AR and 04-8013/AR

DISCUSSION OF THE THRESHOLD ISSUES

We approach this issue knowing that every federal

The primacy of the issue

of subject matter jurisdiction here is reaffirmed by the

following this Courts prior decision denying a writ appeal

Loving v. United States, Nos. 03-8007/AR and 04-8013/AR

[the All Writs Act].28

In this pleading the Government reasoned

Article I court, this is a Court of limited jurisdiction.

This statement reflects the longstanding rule