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No. 08-267

 

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

v.

JACOB DENEDO

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES

BRIEF FOR THE UNITED STATES

GREGORY G. GARRE
Solicitor General
Counsel of Record
MATTHEW W. FRIEDRICH
Acting Assistant Attorney
General
MICHAEL R. DREEBEN
Deputy Solicitor General
PRATIK A. SHAH
Assistant to the Solicitor
General
JOHN F. DE PUE
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

DANIEL J. DELL'ORTO
Principal Deputy General
Counsel
Department of Defense
LOUIS J. PULEO
Col., USMC
Director
BRIAN K. KELLER
Deputy Director
TIMOTHY H. DELGADO
Lt., JAGC, USN
Appellate Government
Division
Department of the Navy
Washington, D.C.

QUESTION PRESENTED

Whether an Article I military appellate court has ju risdiction to entertain a petition for a writ of error co ram nobis filed by a former service member to review a court-martial conviction that has become final under the Uniform Code of Military Justice, 10 U.S.C. 801 et seq.

In the Supreme Court of the United States

No. 08-267

UNITED STATES OF AMERICA, PETITIONER

v.

JACOB DENEDO

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Armed Forces (Pet. App. 1a-60a) is reported at 66 M.J. 114. The order of the Navy-Marine Corps Court of Criminal Appeals (Pet. App. 62a-63a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on March 11, 2008. A petition for reconsideration was de nied on April 4, 2008 (Pet. App. 61a). On June 23, 2008, the Chief Justice extended the time within which to file a petition for a writ of certiorari to and including August 1, 2008. On July 21, 2008, the Chief Justice further ex tended the time to August 29, 2008, and the petition was filed on that date. The petition for a writ of certiorari was granted on November 25, 2008. The jurisdiction of this Court rests on 28 U.S.C. 1259(4).

STATUTES INVOLVED

Pertinent provisions are set out in an appendix to this brief. App., infra, 1a-14a.

STATEMENT

This case concerns the statutory jurisdiction of the military courts-created by Congress pursuant to Arti cle I of the Constitution-to adjudicate collateral chal lenges by former service members to court-martial con victions that have long since become final.

Following a guilty plea before a special court-mar tial, respondent was convicted of conspiracy to commit larceny, in violation of 10 U.S.C. 881, and 15 specifica tions of larceny, in violation of 10 U.S.C. 921. He was sentenced to three months of confinement, a bad-con duct discharge from the Navy, and reduction to the low est enlisted pay grade. The convening authority ap proved the sentence as adjudged. The Navy-Marine Corps Court of Criminal Appeals (N-MCCA) affirmed the findings and sentence. Respondent did not seek fur ther review, and he was discharged from the Navy. Seven years later, respondent petitioned the N-MCCA for a writ of error coram nobis, alleging that he had re ceived ineffective assistance of counsel. Pet. App. 3a-5a. The N-MCCA denied the petition. By a 3-2 decision, the United States Court of Appeals for the Armed Forces (CAAF) affirmed in part, reversed in part, and re manded for an evidentiary hearing. Id. at 1a-60a.

1. The Constitution empowers Congress "[t]o make Rules for the Government and Regulation of the land and naval Forces." U.S. Const. Art. I, § 8, Cl. 14. Con gress has exercised that authority in promulgating the Uniform Code of Military Justice (UCMJ), which by its terms governs the conduct of, among others, "[m]em bers of a regular component of the armed forces." 10 U.S.C. 802(a)(1).

As set forth in the UCMJ, Congress has established a military justice system consisting of three tiers of Ar ticle I tribunals. See Weiss v. United States, 510 U.S. 163, 166-169 (1994). The accused is provided military defense counsel under the UCMJ before each of those tribunals. See 10 U.S.C. 827, 870.

First, a court-martial is the body that tries persons charged with violations of the punitive articles of the UCMJ. See 10 U.S.C. 816-821. There are three kinds of courts-martial-general, special (used here), and sum mary-and the varying jurisdictions of those courts- martial to try certain crimes and to prescribe certain punishments are statutorily defined. Ibid. General and special courts-martial are composed of a military judge and, unless the accused chooses otherwise, no less than five or three service members, respectively. 10 U.S.C. 816. Unlike a federal district court, a court-martial is not a standing trial court but is convened (typically by a commanding officer) to hear a particular case. See 10 U.S.C. 822-824; Rules for Courts-Martial (R.C.M.) 401(c), 504; see also Loving v. United States, 62 M.J. 235, 254 (C.A.A.F. 2005) ("In the military system there are no standing [trial] courts."). Its jurisdiction termi nates once the convening authority has acted on the case (i.e., approving or modifying the court-martial's findings and sentence). See 10 U.S.C. 860; R.C.M. 1102(d); see also William Winthrop, Military Law and Precedents 49-50 (2d ed. 1920) ("As a purely executive agency de signed for military uses, called into existence by a mili tary order and by a similar order dissolved when its pur pose is accomplished, the court-martial, as compared with the civil tribunals, is transient in its duration.").

Second, the courts of criminal appeals, sitting in three-judge panels, have jurisdiction to review the judg ment of a court-martial when the sentence, as approved by the convening authority, extends to death, a punitive discharge, or confinement for one year or more. See 10 U.S.C. 866(b). A court of criminal appeals may affirm the findings and sentence only to the extent they are correct in law and fact based on the record. 10 U.S.C. 866(c). "In considering the record, [a court of criminal appeals] may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses." Ibid. Each of the armed forces possesses a court of criminal appeals. See 10 U.S.C. 866(a).

Third, the CAAF, composed of five civilian judges, has jurisdiction to review the record in all cases re viewed by the courts of criminal appeals. See 10 U.S.C. 867(a); 10 U.S.C. 941 et seq. The CAAF's review is lim ited to matters of law. 10 U.S.C. 867(c). Decisions of the CAAF are subject to this Court's review by writ of cer tiorari as provided in 28 U.S.C. 1259. See 10 U.S.C. 867a.

Under the "final judgment" rule of UCMJ Article 71(c)(1), 10 U.S.C. 871(c)(1), "[a] judgment as to legality of the proceedings is final" when direct review is com pleted by a court of criminal appeals and by the CAAF (if timely sought), and when the time for filing a petition for a writ of certiorari has expired. Final judgment marks the end-point of appellate review, and only then may the Executive fully execute the sentence and dis charge a service member from the armed forces. Ibid.

At that point, under the distinct "finality" rule of UCMJ Article 76, 10 U.S.C. 876, the findings and sen tence, as affirmed by the military appellate courts, and any discharge carried into execution, become "final and conclusive." All military orders publishing the pro ceedings of courts-martial, and all action taken pursuant to those proceedings, becomes "binding upon all depart ments, courts, agencies, and officers of the United States, subject only to" three specified exceptions: a pe tition for a new trial under UCMJ Article 73, 10 U.S.C. 873; action by the relevant service Secretary under UCMJ Article 74, 10 U.S.C. 874; and the President's authority.

Although the UCMJ defines the jurisdiction of the military courts, final judgments from the military justice system are subject to collateral review by Article III courts in a variety of contexts. See, e.g., Schlesinger v. Councilman, 420 U.S. 738, 750-753 (1975); Pet. App. 6a- 7a.

2. Respondent, a native and citizen of Nigeria, came to the United States in 1984 and enlisted in the Navy in 1989. In 1998, military authorities charged him with conspiracy, larceny, and forgery based on his participa tion in a scheme to defraud a community college of over $28,000. Represented by both a military and a civilian attorney, respondent entered into a pretrial agreement with the convening authority. In exchange for respon dent's plea of guilty, the convening authority agreed to reduce the charges and to refer the case to a special court-martial, which at the time could not impose a sen tence of confinement exceeding six months. Pet. App. 3a, 65a.1

After conducting an inquiry to determine that respon dent's plea was knowing and voluntary, the military judge accepted the plea and convicted respondent of conspiracy and larceny. Respondent was sentenced to three months of confinement, a bad-conduct discharge, and reduction to the lowest enlisted pay grade. Pet. App. 3a-4a. The convening authority approved the sen tence, and the N-MCCA affirmed. Id. at 64a-67a. Re spondent did not seek further review, and he was dis charged from the Navy on May 30, 2000. Id. at 4a.

In 2006, the Department of Homeland Security initi ated removal proceedings against respondent based upon his court-martial conviction. After removal pro ceedings began, respondent petitioned the N-MCCA for a writ of error coram nobis to review his conviction. He alleged that he had received ineffective assistance of counsel because, he said, his civilian attorney had as sured him that pleading guilty would eliminate any risk of deportation. Pet. App. 4a-5a. The N-MCCA (in a summary decision) determined that it had jurisdiction to consider respondent's petition but denied relief on the merits. Id. at 62a-63a.

3. The CAAF, by a 3-2 vote, affirmed in part, re versed in part, and remanded for further proceedings. Pet. App. 1a-60a.

a. The CAAF held that the issuance of a writ of er ror coram nobis in the military system was authorized by the All Writs Act, 28 U.S.C. 1651(a), which allows courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Ibid.; Pet. App. 7a-21a.

The CAAF first considered whether the requested writ was "in aid of" the N-MCCA's jurisdiction. It de termined that because the petition concerned "the valid ity and integrity of the judgment rendered and af firmed" by the N-MCCA, it was "in aid of" that court's jurisdiction. Id. at 8a-9a. The court acknowledged that in Clinton v. Goldsmith, 526 U.S. 529 (1999), this Court held that the 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 admin istrator even of criminal judgments it has affirmed." Pet. App. 7a (quoting Goldsmith, 526 U.S. at 536). But the court believed that Goldsmith was inapplicable here, reasoning that whenever a petition seeks "collateral re lief to modify an action that was taken within the subject matter jurisdiction of the military justice system, such as the findings or sentence of a court-martial, a writ that is necessary or appropriate may be issued under the All Writs Act 'in aid of' the court's existing jurisdiction." Id. at 8a. The court acknowledged that UCMJ Article 76, 10 U.S.C. 876, provides that a court-martial decision after direct review is "final and conclusive," but it inter preted Councilman, 420 U.S. at 745, to hold that Article 76 "provides a prudential constraint on collateral review, not a jurisdictional limitation." Pet. App. 9a.

The CAAF next considered whether relief under the All Writs Act was "necessary or appropriate." Pet. App. 11a-21a. It stated that "[a]n Article III court, when asked to consider a court-martial conviction on an issue that has not been fully and fairly reviewed within the military justice system and has not been defaulted pro cedurally, is likely to defer action pending review by the court that approved the conviction." Id. at 20a. That is because, the court reasoned, "the primary responsibility for addressing challenges to courts-martial resides with the courts in the military justice system established by Congress." Ibid. Accordingly, the court concluded that "the Court of Criminal Appeals provides an appropriate forum for coram nobis review." Ibid.

Turning to the facts of this case, the CAAF deter mined that respondent's claim of ineffective assistance of counsel met "the threshold criteria for coram nobis review." Pet. App. 24a. It therefore remanded the case to the N-MCCA to "determine whether the merits of [respondent's] petition can be resolved on the basis of the written submissions, or whether a factfinding hear ing is required." Id. at 32a.

b. Judge Stucky dissented. Pet. App. 32a-39a. He believed that the court's "authority to grant the reques ted relief" was "questionable," but he found it unneces sary to reach that issue because, in his view, respon dent's claim of ineffective assistance failed on the mer its. Id. at 35a.

c. Judge Ryan dissented. Pet. App. 40a-60a. She started with the understanding that the CAAF, "as a legislatively created Article I court, is a court of limited jurisdiction" whose "limited powers are defined entirely by statute." Id. at 43a. Drawing from this Court's deci sion in Goldsmith, she observed that "the express terms of the [All Writs] Act confine the power of the CAAF to issuing process 'in aid of' its existing statutory jurisdic tion; the Act does not enlarge that jurisdiction." Id. at 43a (brackets in original) (quoting Goldsmith, 526 U.S. at 534-535).

In Judge Ryan's view, the military courts lacked statutory jurisdiction to consider respondent's petition because respondent is a civilian who no longer has any relationship with the military. Under UCMJ Articles 2 and 3, 10 U.S.C. 802, 803, she explained, "the military justice system does not have jurisdiction over civilians." Pet. App. 44a. Judge Ryan concluded that respondent, as "a former servicemember lawfully discharged from military service," has "no legally cognizable relationship with the military justice system." Id. at 45a. And, she explained, "[i]t is contrary to the limited nature of a leg islatively created Article I court to exercise jurisdiction over a person not specifically prescribed by statute." Ibid.

In addition, Judge Ryan reasoned that the UCMJ precludes post-finality collateral review. Pet. App. 46a- 48a. Articles 66 and 67, 10 U.S.C. 866, 867, which pro vide for direct, record-based review of court-martial cases, make "no mention of, and thus no provision for, post-finality collateral review." Pet. App. 48a. To the contrary, she explained, under Article 76, 10 U.S.C. 876, "once appellate review is complete, the findings and sen tence are 'final and conclusive'" with "[n]o exception * * * for writs of coram nobis or other collateral re view." Pet. App. 50a. Although Article 76 "describe[s] the terminal point for proceedings within the court-mar tial system," id. at 51a (brackets in original) (quoting Councilman, 420 U.S. at 750), Judge Ryan observed that it does not deprive Article III courts of authority to review court-martial convictions. Ibid. Thus, she con cluded, the appropriate forum for any collateral review in a case such as this is an Article III court. Ibid.

SUMMARY OF ARGUMENT

The Article I military appellate courts lack jurisdic tion to hear a coram nobis challenge, because neither the UCMJ nor the All Writs Act confers such jurisdiction. The All Writs Act requires both that the writ be "in aid of" the court's existing jurisdiction and that it be "nec essary or appropriate." 28 U.S.C. 1651(a). Neither con dition is satisfied here.

A. In Clinton v. Goldsmith, 526 U.S. 529, 534-535 (1999), this Court reaffirmed that the All Writs Act is not an independent jurisdictional grant: it confers au thority to issue "process 'in aid of' the issuing court's jurisdiction," but it "does not enlarge that jurisdiction." In holding that the military appellate courts had author ity to adjudicate respondent's post-finality coram nobis challenge, the CAAF repeated its mistake from Gold smith, where, this Court held, the CAAF had errone ously asserted "continuing jurisdiction" over any judg ment that it "at one time had the power to review." Id. at 536.

The UCMJ does not vest Article I military courts with open-ended jurisdiction to hear collateral chal lenges to the merits of final court-martial judgments. Articles 66 and 67 provide a framework only for direct, record-based review of a specified subset of court-mar tial cases. 10 U.S.C. 866, 867. And Articles 71(c) and 76 prohibit the type of collateral review sought by respon dent. Those provisions render the findings and sentence of courts-martial, as affirmed by the military appellate courts and carried into execution, "final and conclusive" and "binding"-subject only to three exceptions, which are inapplicable here. 10 U.S.C. 876. The legislative history confirms that Congress intended Article 73's new-trial procedure (one of the exceptions specified in Article 76) to supplant the writ of error coram nobis and thereby serve as the exclusive source for post-finality judicial review within the military justice system. The CAAF's contrary decision eviscerates Congress's care fully crafted limits on review of court-martial judg ments.

The military courts also lack jurisdiction because respondent is a former service member no longer sub ject to the UCMJ. In United States ex rel. Toth v. Quarles, 350 U.S. 11, 14 (1955), this Court rejected on constitutional grounds the extension of Article I court- martial jurisdiction to a former service member "who had severed all relationship with the military." Accord ingly, neither the UCMJ nor the military courts govern persons who have been punitively discharged (subject to limited exceptions inapplicable here). 10 U.S.C. 802, 803.

B. Coram nobis review of the merits of a final court- martial conviction also is neither "necessary" nor "ap propriate," as required by the All Writs Act. Alterna tive remedies are available to former service members seeking to challenge a court-martial conviction. The military justice system itself provides several means of review, including pre-finality review by the convening authority and by the courts of criminal appeals and the CAAF as well as post-finality review under Article 73 (new-trial provision). Beyond that, former service mem bers may bring collateral attacks in Article III courts via a habeas petition or a suit for declaratory judgment or mandamus relief, as well as in the Court of Federal Claims via a backpay action under the Tucker Act. See Goldsmith, 526 U.S. at 537-539.

The military appellate courts' exercise of coram no bis jurisdiction here is also inappropriate. Coram nobis permits a court to correct its own errors, not those of an inferior court. Because the court-martial dissolves after rendering a conviction, no proper forum in the military justice system exists that can issue the writ. Moreover, the writ is fundamentally incompatible with the carefully designed system of military justice that Congress in stalled to further good order and discipline in the na tion's armed forces. Given the writ's unsettled scope and lack of time limits, it would have the effect of divert ing the military justice system's limited resources from its intended role-as demonstrated by the potential need for an evidentiary hearing in this case (under the CAAF's decision) to resolve respondent's claim of inef fective assistance of counsel from a decade ago.

ARGUMENT

THE MILITARY APPELLATE COURTS LACK JURISDIC TION TO ADJUDICATE A FORMER SERVICE MEMBER'S CORAM NOBIS CHALLENGE TO THE MERITS OF HIS FI NAL COURT-MARTIAL CONVICTION

The question presented is whether an Article I mili tary appellate court has jurisdiction to entertain a peti tion for a writ of error coram nobis filed by a former service member to review a court-martial conviction that has become final under the UCMJ. Because the UCMJ itself does not provide for any such jurisdiction, the CAAF premised its authority on the All Writs Act, 28 U.S.C. 1651(a), which provides that "[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. 1651(a); see Pet. App. 8a. The CAAF's decision contravenes this Court's decision in Clinton v. Goldsmith, 526 U.S. 529 (1999), key provi sions of the UCMJ defining the jurisdiction of military appellate courts, and established principles governing the limited jurisdiction of Article I courts.

A. Coram Nobis Review Of A Final Court-Martial Judg ment Is Not "In Aid Of" The Jurisdiction Of A Military Appellate Court

Because the All Writs Act does not itself provide a source of jurisdiction, it cannot support a coram nobis petition in the military courts unless the writ would "aid" an existing basis of jurisdiction. Here, that re quirement cannot be met for two independent reasons: first, because the UCMJ provides no basis for such con tinuing jurisdiction; and, second, because former service not connected to the armed forces are no longer subject to the UCMJ and the military justice system.

1. Goldsmith makes clear that the All Writs Act does not provide an independent basis of military-court jurisdiction to review court-martial judgments

In Goldsmith, this Court reaffirmed that the All Writs Act is not an independent jurisdictional grant. As the Court explained, the All Writs Act confers authority to issue "process 'in aid of' the issuing court's jurisdic tion," but it "does not enlarge that jurisdiction." 526 U.S. at 534-535 (quoting 28 U.S.C. 1651(a)); see, e.g., Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 33 (2002) ("the All Writs Act does not confer jurisdiction on the federal courts"); see also 16 Charles Alan Wright et al., Federal Practice and Procedure _ 3932, at 470 (2d ed. 1996) ("The All Writs Act * * * is not an independent grant of appellate jurisdiction."); 19 James Wm. Moore et al., Moore's Federal Practice _ 204.02[4] (3d ed. 2008) (Moore's Federal Practice) ("The All Writs Act does not enlarge a court's jurisdiction.").

In Goldsmith, a service member was convicted by a general court-martial and sentenced to six years con finement. 526 U.S. at 531. The court of criminal appeals affirmed the conviction and sentence, which became fi nal upon the service member's failure to seek CAAF review. Id. at 532. Although the final judgment did not include dismissal from the service, the President later dropped the service member from the rolls of the Air Force through a separate administrative process. Ibid. The service member then petitioned the CAAF for ex traordinary relief under the All Writs Act, claiming, inter alia, that the President's action violated the Con stitution. Id. at 532-533. The CAAF granted the peti tion and enjoined the President from dropping him from the service rolls. Id. at 533.

This Court reversed. Although the Court acknowl edged that military appellate courts are among those empowered to issue extraordinary writs under the All Writs Act, it made clear that the power to do so de pended on their existing statutory jurisdiction. See Goldsmith, 526 U.S. at 535. The Court reasoned that, because the CAAF no longer possessed jurisdiction un der the UCMJ to review the service member's conviction and sentence, it also lacked authority to grant relief un der the All Writs Act. Ibid. The Court expressly re jected the broad argument that, because the military appellate courts once had jurisdiction over the convic tion and sentence, the Act provided a basis for continu ing jurisdiction:

[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 ad ministrator even of criminal judgments it has af firmed. Simply stated, there is no source of continu ing jurisdiction for the CAAF over all actions admin istering sentences that the CAAF at one time had the power to review.

Id. at 536. Accordingly, the Court explained, "the CAAF spoke too expansively when it held itself to be 'empow ered by the All Writs Act to grant extraordinary relief in a case in which the court-martial rendered a sentence that constituted an adequate basis for direct review in [the CAAF] after review in the intermediate court.'" Id. at 536-537 (brackets in original) (quoting Goldsmith v. Clinton, 48 M.J. 84, 87 (C.A.A.F. 1998)).

The CAAF in this case repeated its mistake, holding broadly that "when a petitioner seeks collateral relief to modify an action that was taken within the subject mat ter jurisdiction of the military justice system, such as the findings or sentence of a court-martial, a writ that is necessary or appropriate may be issued under the All Writs Act 'in aid of' the court's existing jurisdiction." Pet. App. 8a. The Court in Goldsmith, however, rejec ted that very contention, i.e., that the All Writs Act af fords the military appellate courts carte blanche juris diction to "oversee all matters arguably related to mili tary justice, or to act as a plenary administrator even of criminal judgments it has affirmed." Goldsmith, 526 U.S. at 536. Although this case involves a judgment that was reviewed on direct appeal by the court of criminal appeals and could have been reviewed by the CAAF at that time, "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." Ibid.

This Court's holding in Goldsmith is equally applica ble in this case. Because the military courts have no existing jurisdiction under the UCMJ to review a collat eral challenge to the merits of a final court-martial con viction, the All Writs Act cannot serve as a bootstrap to confer that jurisdiction.

2. Military courts lack jurisdiction under the UCMJ to hear coram nobis challenges to the merits of final court-martial judgments

As with all courts established by Congress under Article I of the Constitution, the jurisdiction of military appellate courts is strictly limited to the bases of juris diction expressly conferred upon them by statute. See Goldsmith, 526 U.S. at 533-534.2 Nothing in the statu tory charter of either the CAAF or the courts of crimi nal appeals vests them with open-ended jurisdiction to hear collateral challenges to the merits of final court- martial judgments. Instead, as the legislative history confirms, Congress intended the UCMJ's new-trial pro cedure to serve as the exclusive source for such review within the military justice system. The CAAF erred in substituting its own expansive notions of jurisdiction for the statutory limits on military-court jurisdiction estab lished by Congress.

a. The plain text of the UCMJ forecloses post-final ity review in military courts

As this Court explained in Goldsmith, "the CAAF's independent statutory jurisdiction is narrowly circum scribed." 526 U.S. at 535. Specifically, Article 67 of the UCMJ authorizes the CAAF to "review the record" in certain categories of court-martial judgments re viewed by the intermediate courts of criminal appeals. 10 U.S.C. 867(a). That review is further limited to "matters of law." 10 U.S.C. 867(c). As described by this Court, Congress has "confined the [CAAF's] jurisdiction to the review of specified sentences imposed by courts- martial" and has granted it "the power to act 'only with respect to the findings and sentence as approved by the [court-martial's] convening authority and as affirmed or set aside as incorrect in law by the Court of Criminal Appeals." Goldsmith, 526 U.S. at 534 (second set of brackets in original) (quoting 10 U.S.C. 867(c)).

In turn, Article 66 authorizes the courts of criminal appeals to "review[] court-martial cases" referred to it by the Judge Advocate General and in which the sen tence, as approved, includes death, bad-conduct dis charge, or confinement for at least one year. 10 U.S.C. 866(a) and (b). That review is confined to the findings and sentence as approved by the convening authority, based on the record from the court-martial. 10 U.S.C. 866(c).

Accordingly, Articles 66 and 67 create a framework for direct, record-based review of court-martial judg ments in the military appellate courts. But, as Judge Ryan observed (Pet. App. 46a-47a), nothing in those ar ticles confers jurisdiction upon either the CAAF or the courts of criminal appeals to entertain collateral attacks on the merits of final court-martial judgments (let alone based on extra-record material). See, e.g., Witham v. United States, 355 F.3d 501, 505 (6th Cir. 2004) ("[N]ei ther the Uniform Code of Military Justice nor the Man ual for Courts-Martial provides for collateral review within the military courts.").

To the contrary, the plain language of UCMJ's final ity provisions affirmatively prohibit the type of collat eral review sought by respondent. Under Article 71(c), a "judgment as to the legality of the [court martial] pro ceeding is final * * * when review is completed by a Court of Criminal Appeals" and by the CAAF (if timely sought) and when the time for seeking certiorari has expired. 10 U.S.C. 871(c)(1). Under that "final judg ment" rule, appellate review is complete and any dis charge may be executed; after final judgment, the UCMJ provides for no further review. Article 76 pro vides an additional, uniquely military type of finality once military orders have been issued to implement the court-martial judgment:

The appellate review of records of trial provided by this chapter, the proceedings, findings, and senten ces of courts-martial as approved, reviewed, or af firmed as required by this chapter, and all dismissals and discharges carried into execution under senten ces 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 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.

10 U.S.C. 876.

Finality thus accrues under Article 76 when a mili tary authority executes the punitive discharge-subject only to the three explicitly enumerated exceptions. Of those three exceptions, only Article 73-by way of a pe tition for a new trial-provides a mechanism for collat eral judicial review of court-martial judgments carried into execution. A petition for new trial, however, must be filed with the Judge Advocate General within two years of approval by the convening authority. More over, this "special post-conviction remedy," Burns v. Wilson, 346 U.S. 137, 141 (1953), is vested in the Judge Advocates General, and the military appellate courts play no role in considering an Article 73 petition unless the underlying case is pending before the CAAF or a court of criminal appeals at that time. 10 U.S.C. 873.

The CAAF's assertion of jurisdiction in this case under the aegis of the All Writs Act is tantamount to the addition of a fourth-and potentially much broader- exception to Article 76 finality. That result conflicts with this Court's instruction that "[w]here a statute spe cifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling." Carlisle v. United States, 517 U.S. 416, 429 (1996) (quot ing Pennsylvania Bureau of Corr. v. United States Marshals Serv., 474 U.S. 34, 43 (1985)); cf. EC Term of Years Trust v. United States, 127 S. Ct. 1763, 1767 (2007) ("[A] precisely drawn, detailed statute pre-empts more general remedies.") (quoting Brown v. GSA, 425 U.S. 820, 834 (1976)). As Judge Ryan observed (Pet. App. 54a), the CAAF's exercise of coram nobis jurisdic tion circumvents the statutory scheme established by Congress, eviscerating Article 76's finality rule as well as Article 73's strict temporal limits. The potential im plications of that circumvention are especially stark where, as here, the grant of relief might require a new order by a military appellate court, contravening the long-final military executive order fully executing the court-martial's findings and sentence, to undo an eight- year-old discharge-precisely the type of order that Article 76 precludes on its face.

The CAAF sought to justify its decision to disregard Article 76's limitation on post-finality review by labeling it "prudential." Pet. App. 9a. Specifically, the CAAF re lied on Schlesinger v. Councilman, 420 U.S. 738 (1975), for the proposition that Article 76 is merely a "pruden tial constraint" and not a "jurisdictional limitation." Pet. App. 9a; see Br. in Opp. 8 (noting that "Councilman * * * stands for the proposition that Article 76 is a pru dential restraint and not a jurisdictional one"). That reliance is misplaced.

In Councilman, the Court rejected an argument that Article 76 barred Article III courts from issuing writs of habeas corpus to review court-martial convictions. The Court noted that Article 76 "does not expressly effect any change in the subject-matter jurisdiction of Art. III courts." 420 U.S. at 749. But that observation about the jurisdiction of Article III courts has no bearing on the jurisdiction of military (i.e., Article I) courts. To the contrary, Councilman recognized that "the finality clause" of the predecessor to Article 76 "describ[es] the terminal point for proceedings within the court-martial system." 420 U.S. at 750 (quoting Gusik v. Schilder, 340 U.S. 128, 132 (1950)) (emphasis added). Indeed, even the CAAF itself previously had recognized as much. See Loving v. United States, 62 M.J. 235, 240 (C.A.A.F. 2005) ("As finality under Article 76 is the terminal point for proceedings within the court-martial and military justice system, this Court's jurisdiction continues until a case is final."). Because the CAAF and N-MCCA are part of the "court-martial system," Article 76 is not merely a "prudential constraint" (Pet. App. 9a) but "a statutory directive" (id. at 51a) that forecloses their con tinued exercise of jurisdiction.3

The CAAF emphasized that Councilman cited Uni ted States v. Frischholz, 36 C.M.R. 306 (C.M.A. 1966), a case in which the former Court of Military Appeals-the predecessor of the CAAF-held that it had authority under the All Writs Act to hear a coram nobis petition challenging a final court-martial conviction. Pet. App. 10a. But this Court has never sanctioned the former Court of Military Appeals' decision in Frischholz. In stead, Councilman-a case about Article III jurisdic tion-cited Frischholz only for the more limited proposi tion that Article 76 "does not insulate a conviction from subsequent attack in an appropriate forum." 420 U.S. at 753 n.26 (quoting Frischholz, 36 C.M.R. at 307). This Court had no occasion to consider Frischholz's broader holding that the Court of Military Appeals was "an ap propriate forum" for the issuance of writs of error coram nobis under the circumstances of that case or any other. That holding, in any event, is suspect for essentially the same reasons as the CAAF's decision below.

b. Longstanding military-law authorities and the UCMJ's legislative history confirm the unavail ability of coram nobis review in military courts

The CAAF's expansive exercise of jurisdiction not only contravenes the plain language of the relevant UCMJ provisions but also departs from the positions long adopted by both the Executive and Congress as to the highly circumscribed role of the military courts in affording post-finality relief from a court-martial convic tion. The UCMJ, enacted against that backdrop, was designed to foreclose the very type of military-court jurisdiction that the CAAF asserts here.

Dating back to the 1800s, the Attorney General has recognized the final nature of court-martial judgments (at least within the military justice system) once ap proved by the reviewing authority. See Relief of Fitz John Porter, 18 Op. Att'y Gen. 18, 21 (1884) ("[W]here the sentence of a legally constituted court-martial, in a case within its jurisdiction, has been approved by the reviewing authority and carried into execution, it can not afterwards be reviewed and set aside" and "the pro ceedings are then at an end-the action thus had upon the sentence being, in contemplation of the law, final."); Courts Martial-Lieutenant Devlin, 6 Op. Att'y Gen. 369, 370 (1854) (holding that a court-martial sentence, "passed upon by the competent authority, from whose decision the law has provided no appeal" cannot "be re scinded, annulled, or modified").

In 1886, Colonel Winthrop similarly explained in his oft-cited treatise:

[T]he judgment of a court-martial of the United States is, within its scope, absolutely final and con clusive. Its sentence, if per se legal, cannot, after it has received necessary official approval, be revoked or set aside; and it is only by the exercise of the par doning power that it can * * * be rendered in whole or in part inoperative.

William Winthrop, Military Law and Precedents 54 (2d ed. 1920) (footnotes omitted) (reprint of 1886 treatise).

The statutory precursors to the UCMJ also reflect the historical narrowness of post-finality review within the military justice system. In 1920, an amendment to the pre-UCMJ Articles of War (which governed the Army) required the Judge Advocate General to establish a board of review to examine the record in any case in which the sentence required Presidential approval; au thorized the Judge Advocate General to vacate convic tions at the recommendation of the board; and gave the President the ultimate authority to "approve, disap prove, or vacate, in whole or in part, any findings of guilty, or confirm mitigate, commute, remit, or vacate any sentence, in whole or in part." Act of June 4, 1920, ch. 227, Art. 50_, 41 Stat. 797-799. At the same time, the amendment codified the longstanding principle of the finality of a court-martial conviction once it has been approved and ordered into execution: "the President's necessary orders to this end shall be binding upon all departments and officers of the Government." Ibid.

In 1948, the Elston Act (Act of June 24, 1948, ch. 625, 62 Stat. 604) further amended the Articles of War to afford members of the Army convicted by a court- martial more robust appellate remedies. See § 226, 62 Stat. 635, 638 (codified as Article of War 50, 10 U.S.C. 1521 (Supp. III 1949)). At the same time, the Act pro vided that "the proceedings, findings, and sentences of courts-martial as heretofore or hereafter approved, re viewed, or confirmed as required by the Articles of War * * * shall be final and conclusive, and orders publish ing the proceedings of courts-martial * * * shall be binding upon all departments, courts, agencies, and offi cers of the United States, subject only to action upon application for a new trial as provided in article 53." § 226, 62 Stat. 637 (codified as Article of War 50(h), 10 U.S.C. 1521(h) (Supp. III 1949)). As the House Report accompanying the legislation explained, that amendment (subject to its limited new-trial exception) made "explicit the finality of sentences of [a] court martial." H.R. Rep. No. 1034, 80th Cong., 1st Sess. 12 (1947).4 As referenced above, the Elston Act, for the first time, afforded con victed service members a limited source of post-finality relief within the military court system: it authorized the Judge Advocate General to grant petitions for a new trial "upon good cause shown" if filed within a year of final disposition of the case. § 230, 62 Stat. 639 (codified as Article of War 53, 10 U.S.C. 1525 (Supp. III 1949)).

When Congress enacted the UCMJ in 1950, it largely recodified in Article 76 the finality provision it had adopted two years earlier, subject to two additional ex ceptions based on the authority of the Secretary and the President. Compare 10 U.S.C. 876, with Article of War 53, 10 U.S.C. 1525 (Supp. III 1949). The Senate Report accompanying the legislation explained that "[s]ubject only to a petition for a writ of habeas corpus in Federal court, [Article 76] provides for the finality of court-mar tial proceedings and judgments." S. Rep. No. 486, 81st Cong., 1st Sess. 32 (1949).

Congress also amended the right to petition for a new trial (now codified in Article 73). It permitted such petitions to be filed up to two years (instead of one) after approval of a court-martial sentence, but it confined the bases upon which relief could be granted to "newly dis covered evidence or fraud on the court." 10 U.S.C. 873. During Congressional hearings on that amendment, a Department of Defense official explained that its pur pose was to restrict such post-finality challenges to "very remote" instances involving extra-record matters that were not susceptible to review in the normal course of appellate review. Uniform Code of Military Justice: Hearings Before a Subcomm. of the House Comm. on Armed Services, 81st Cong., 1st Sess. 1211 (1949) (testi mony of Felix Larkin, Assistant General Counsel, De partment of Defense).

Of particular relevance here, the Defense Depart ment official testified as follows before Congress on the relationship between Article 73's new-trial petition and the civil court remedy of writ of error coram nobis:

It has been the practice of some civil courts * * *, after the conviction is [af]firmed where habeas cor pus will not lie, that the court will permit a so-called writ of error coram nobis, which is an old English writ, which has been revived for just this particular kind of circumstance. 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 evi dence. We have provided for both of them and to our minds they are the only additional circumstances over and above the appeal that need a remedy.

Ibid. (emphasis added). The legislative history thus confirms what is manifest from the text: Congress in tended the limited inroad on finality made possible through a motion for a new trial to exhaust the opportu nities for collateral challenges within the military sys tem.5

In sum, the longstanding structure of military justice provided that, upon finality, a court-martial conviction is not subject to further merits review within the mili tary justice system. The single limited exception to this principle, a new-trial petition under Article 73, was in tended to supplant the writ of error coram nobis. The CAAF's decision resurrects that extraordinary rem edy-without Congress's well considered limitations as to timeliness and subject matter-and thereby asserts a freestanding power to entertain collateral challenges in the military justice system in a manner that Congress never sanctioned. This Court should not permit the CAAF to expand its own authority, in defiance of con gressional limits.

c. This case is readily distinguishable from the limited circumstances in which the All Writs Act arguably may be invoked in aid of military-court jurisdiction

This Court suggested (in dicta) in Noyd v. Bond, 395 U.S. 683 (1969), that the precursor to the CAAF pos sessed the power to "issue an emergency writ of habeas corpus in cases * * * which may ultimately be re viewed by that court," i.e., in cases like Noyd itself (where petitioner sought release via habeas pending direct appellate review of his court-martial conviction). Id. at 695 n.7. That limited proposition is fully consis tent with the government's construction of the UCMJ and its finality provisions in this case. In cases like Noyd-unlike this one-relief under the All Writs Act could be "in aid of" the military court's future appellate jurisdiction. That analysis does not apply here, where the conviction has long since become final. Because this is not a case that "may ultimately be reviewed" by any military court, but rather one involving a post-finality challenge to the court-martial judgment, there is no on going or future jurisdiction under Articles 66 or 67 that a writ of error coram nobis could "aid." See ibid. ("A different question would, of course, arise in a case which the Court of Military Appeals is not authorized to review under the governing statutes.").6

Likewise, in Goldsmith, the government acknowl edged that the CAAF could take action to compel adher ence to its own judgment in the event of a military au thority's attempt to increase the punishment. 526 U.S. at 536. But that limited invocation of the All Writs Act is justified on the basis that courts-Article I and Arti cle III alike-generally possess "inherent power to en force [their own] judgments. Without jurisdiction to enforce a judgment entered by a federal court, 'the judi cial power would be incomplete.'" Peacock v. Thomas, 516 U.S. 349, 356 (1996) (quoting Riggs v. Johnson County, 73 U.S. (6 Wall.) 166, 187 (1868)); see Axiom Res. Mgmt. Inc. v. United States, 80 Fed. Cl. 530, 539 (2008) (holding that the Court of Federal Claims-an Article I court-"has inherent power to order the par ties to the litigation to act in a manner that will enforce its judgment") (quoting Abbott Labs. v. Novopharm Ltd., 104 F.3d 1305, 1309 (Fed. Cir. 1997)). A petition to compel adherence to a final judgment bears no resem blance to the present petition for writ of error coram nobis seeking to alter or overturn that judgment. The former promotes a judgment's finality, while the latter undermines it. As the Goldsmith Court recognized, there is a clear distinction between enforcing a judg ment, which is permissible, and overturning or other wise "act[ing] as a plenary administrator * * * of crim inal judgments," which is not. 526 U.S. at 536.

Nor does this case concern the availability of collat eral review of a conviction for lack of jurisdiction. Even assuming arguendo that a military court would possess authority to hear such a challenge,7 that situation is also readily distinguishable. The military courts' exercise of such authority is designed to ensure that they have not overstepped the jurisdictional boundaries enacted by Congress. Such review thus may further fidelity to the principle of an Article I court's limited jurisdiction, and in that limited respect can be characterized as "in aid of " defining the court's jurisdiction. As discussed, how ever, in this case there is no basis for concluding that entertaining respondent's coram nobis petition would be "in aid of" a military court's jurisdiction.

3. The military courts also lack jurisdiction over the petition for writ of error coram nobis because respon dent is a former service member no longer subject to the UCMJ

The military appellate courts lack jurisdiction over respondent's petition for the independent reason that respondent is "a former servicemember lawfully dis charged from military service pursuant to a court-mar tial conviction [who] has no current relationship with the military." Pet. App. 45a. As Judge Ryan observed, the CAAF's contrary decision on this point "flies in the face of Supreme Court precedent, the decisions of at least two federal circuit courts of appeal, and the position, for the past fifty-seven years, of the solicitors general of the United States as agents of the President, commander in chief of the armed forces." Id. at 40a; see id. at 40a-41a (collecting authorities).

The Constitution empowers Congress to "make Rules for the Government and Regulation of the land and na val Forces." U.S. Const. Art. I, § 8, Cl. 14. As this Court stated, that clause "authorizes Congress to sub ject persons actually in the armed service to trial by court-martial for military and naval offenses." United States ex rel. Toth v. Quarles, 350 U.S. 11, 14 (1955) (holding that Congress could not subject a former ser vice member to trial by court-martial even for crimes committed while a serviceman). But "[i]t has never been intimated by this Court * * * that Article I military jurisdiction could be extended to civilian ex-soldiers who had severed all relationship with the military and its institutions." Ibid. The Court explained that "[t]o allow this extension of military authority would require an extremely broad construction of the language," whereas "its natural meaning * * * would seem to restrict court-martial jurisdiction to persons who are actually members or part of the armed forces." Id. at 14-15; see Winthrop, supra, at 89 ("It is the general rule that the person is amenable to the military jurisdiction only dur ing the period of his service as an officer or soldier," and that jurisdiction "ends with * * * discharge or muster ing out."); cf. Solorio v. United States, 483 U.S. 435, 439 (1987) ("the proper exercise of court-martial jurisdiction over an offense [depends] on one factor: the military status of the accused").

Consistent with that constitutional limitation, the UCMJ does not apply to persons who have been puni tively discharged from the armed forces, subject to lim ited exceptions inapplicable here.8 Because the CAAF and the criminal courts of appeals form part of the mili tary justice system, their jurisdiction cannot extend to discharged service members whose convictions are final and who have no remaining connection to the military. Their jurisdiction therefore does not extend to respon dent, who, on the day he was discharged from the Navy in 2000, became "a civilian, completely detached from the military and the military justice system." Pet. App. 45a (Ryan, J., dissenting). Indeed, the CAAF's contrary assertion trenches upon the President's authority as commander-in-chief (U.S. Const. Art. II, § 2)-as well as Congress's delegated authority in Articles 71 and 76 (see pp. 18-20, supra)-by disregarding executive mili tary orders that terminated respondent's relationship with the armed forces and their courts.

Respondent claims (Br. in Opp. 12-13) that the gov ernment's argument here "conflates personal jurisdic tion and appellate subject matter jurisdiction" and that, if correct, it would mean that Article III courts and the Court of Federal Claims (in a backpay action) would lack jurisdiction to adjudicate claims arising from court-mar tial convictions. But this Court's decision in Toth is not predicated solely on notions of personal jurisdiction; instead, it speaks more broadly to the constitutionally permissible scope of military-court jurisdiction over cases involving non-service members. And, unlike that of the military appellate courts, the subject-matter ju risdiction of Article III courts and the Court of Federal Claims is not confined to cases involving persons subject to the UCMJ. Rather, they possess jurisdiction to en tertain the claims of anyone, including former members of the armed forces, as long as such claims otherwise fall within their statutory and constitutional authority.

B. Coram Nobis Review Of The Merits Of A Final Court- Martial Judgment Is Neither Necessary Nor Appropriate

Even if a military appellate court had some jurisdic tional basis for collaterally reviewing the merits of a final court-martial judgment, the court would still lack authority under the All Writs Act to issue the writ of error coram nobis in this case because it is neither "nec essary" nor "appropriate." 28 U.S.C. 1651(a). As this Court has observed, "it is difficult to conceive of a situa tion in a federal criminal case today where [a writ of coram nobis] would be necessary or appropriate." Carlisle v. United States, 517 U.S. 416, 429 (1996) (brackets in original) (quoting United States v. Smith, 331 U.S. 469, 476 n.4 (1947)). That observation applies with even greater force in the military context. First, the availability of alternative remedies for former ser vice members seeking to challenge their court-martial convictions makes coram nobis unnecessary. Second, a military appellate court's review of a court-martial judg ment long after the conviction has become final is inap propriate because it is inconsistent with the traditional scope of the writ and incompatible with the demands of our system of military justice.

1. Adequate alternative remedies are available to con victed former service members

Even when jurisdiction may otherwise exist, the All Writs Act, this Court has held, "invests a court with a power essentially equitable and, as such, not generally available to provide alternatives to other, adequate rem edies at law." Goldsmith, 526 U.S. at 537; see 19 Moore's Federal Practice _ 201.40 ("[A] writ may not be used * * * when another method of review will suf fice."). That limitation applies here because, even with out resort to coram nobis, a former service member has several avenues for challenging a court-martial convic tion, including an Article III habeas petition.

As discussed above, the military justice system itself provides multiple means for review of a court-martial conviction. See Goldsmith, 526 U.S. at 537 n.11. Aside from plenary review by the convening authority and di rect appellate review in the courts of criminal appeals and the CAAF (see pp. 3-4, supra), a convicted person can seek additional pre-finality review in certain circum stances (see p. 27, supra) and can petition post-finality for a new trial under Article 73 (see p. 19, supra). Even if they are outside the two-year window, a convicted ser vice member may petition the military courts in certain circumstances, i.e., to compel adherence to the final judgment or to challenge the court-martial's jurisdic tion. See p. 28, supra.

Outside the military justice system, the most com mon avenue for collateral attack is habeas corpus review in an Article III court under 28 U.S.C. 2241. As the Court noted in Goldsmith, "once a criminal conviction has been finally reviewed within the military system, and a servicemember in custody has exhausted other avenues provided under the UCMJ to seek relief from his conviction, * * * he is entitled to bring a habeas corpus petition" in federal court. 526 U.S. at 537 n.11 (citation omitted); see Councilman, 420 U.S. at 750; Gusik, 340 U.S. at 132-133.

Even in cases where the former service member is no longer in custody, there are sufficient alternative reme dies to foreclose recourse to coram nobis relief. For example, federal courts have entertained collateral chal lenges to court-martial convictions under their general federal-question jurisdiction and under their authority to grant declaratory judgments or mandamus relief. See, e.g., United States ex rel. New v. Rumsfeld, 448 F.3d 403, 406-407 (D.C. Cir. 2006) (finding federal-ques tion jurisdiction under 28 U.S.C. 1331), cert. denied, 127 S. Ct. 2096 (2007); Davis v. Marsh, 876 F.2d 1446, 1448 & n.4 (9th Cir. 1989) (reviewing declaratory judgment action to void court-martial conviction); Baker v. Schles inger, 523 F.2d 1031, 1034-1035 (6th Cir. 1975) (finding jurisdiction under 28 U.S.C. 1361 for mandamus action), cert. denied, 424 U.S. 972 (1976).

The CAAF justified its assertion of coram nobis ju risdiction on the theory that, even after a court-martial conviction has become final, Article III courts will ab stain from adjudicating claims for collateral review pending exhaustion of available remedies within the mil itary justice system. Pet. App. 16a-17a. But as Judge Ryan explained (id. at 58a-59a), an exhaustion rule can not invest the military courts with collateral jurisdiction that they otherwise would lack. If the military appellate courts have no continuing jurisdiction in a case that is final under Article 76, then the lack of post-finality re view in those courts would not impede review by an Arti cle III court (because there are no further military- court remedies to exhaust).

In addition, former service members who allege that their discharge was unlawful may collaterally challenge their court-martial convictions in an action for backpay in the Court of Federal Claims. See 28 U.S.C. 1491(a); Goldsmith, 526 U.S. at 539 (collecting cases); see also, e.g., Matias v. United States, 923 F.2d 821, 823 (Fed. Cir. 1990) ("We have long honored the rule that 'judg ments by courts-martial, although not subject to direct review by federal civil courts, may nevertheless be sub ject to narrow collateral attack [in the Court of Federal Claims] on constitutional grounds' when traditional Tucker Act jurisdiction is present.") (quoting Bowling v. United States, 713 F.2d 1558, 1560 (Fed. Cir. 1983)).

Respondent argues (Br. in Opp. 10) that the statutes of limitations that govern those alternative claims would preclude him from seeking relief now. But even if that were so, particular factual circumstances in any given case are not a basis for the CAAF to expand its jurisdic tion to classes of cases that have become final and that, as a general rule, are subject to adequate alternative remedies. It is enough that respondent's "constitutional objections could have been addressed by the federal courts." Goldsmith, 526 U.S. at 539 n.12 (emphasis ad ded); cf., e.g., Trenkler v. United States, 536 F.3d 85, 99 (1st Cir. 2008) ("adequacy and effectiveness [of the rem edy] must be judged ex ante" in determining whether Section 2255's savings clause applies), petition for cert. pending, No. 08-7947 (filed Dec. 22, 2008).

 

2. Coram nobis jurisdiction is also inappropriate in light of the writ's traditional scope as well as the burdens imposed on the military justice system

The military appellate courts' exercise of coram nobis jurisdiction here is also inappropriate.

a. The writ of error coram nobis permits a court to correct its own errors, not to correct those of an inferior court. As the Second Circuit has explained, "[t]he term 'coram nobis' * * * comes from the phrase 'error quae coram nobis resident,' which means, literally, an error 'which remains in our presence.'" Finkelstein v. Spitzer, 455 F.3d 131, 133 (2006) (citations omitted), cert. denied, 549 U.S. 1169 (2007). The common-law writ thus "was used by a court in cases within its own juris diction, not to correct errors in other jurisdictions." Ibid.; see, e.g., United States v. Morgan, 346 U.S. 502, 507 n.9 (1954) ("[I]f there be error in the process, or through the default of the clerks, it may be reversed in the same court, by writ of error coram nobis.") (quoting 2 William Tidd, Practice of the Courts of King's Bench and Common Pleas 1136 (4th Am. ed. 1856)); Lowery v. McCaughtry, 954 F.2d 422, 423 (7th Cir.) ("Coram nobis is an established writ, but the 'usages and principles of law' send an applicant to the court that issued the judg ment.") (citations omitted), cert. denied, 506 U.S. 834 (1992); Booker v. Arkansas, 380 F.2d 240, 244 (8th Cir. 1967) ("Relief by the writ * * * is available, if at all, only in the court which rendered the judgment."); 19 Moore's Federal Practice § 204.05[5] (3d ed. 2008) ("The district courts have the power to issue writs of coram nobis to correct errors within their own jurisdiction un der the All Writs Act.").

Neither the CAAF nor the N-MCCA was the court that rendered the judgment in this case: the judgment was entered by a court-martial. Courts-martial are not standing bodies like Article III courts, but are convened to hear particular cases and then are dissolved. See pp. 3-4, supra; Runkle v. United States, 122 U.S. 543, 555-556 (1887) ("A court-martial * * * is called into existence for a special purpose and to perform a particu lar duty. When the object of its creation has been accom plished it is dissolved."). Because courts-martial are "ad hoc proceedings which dissolve after the purpose for which they were convened has been resolved," they are incapable of considering petitions for collateral relief. Witham, 355 F.3d at 505; see United States v. DuBay, 37 C.M.R. 411, 413 n.2 (C.M.A. 1967); Pet. App. 53a n.8 ("Because we do not having standing [trial] courts, the military justice system appears ill-suited to [coram nobis] relief.").

The CAAF in this case acknowledged both indisput able points: that the writ of error coram nobis is avail able only from the court that rendered the judgment and that the trial court is not available. Pet. App. 17a- 19a. It follows that no military court possesses the power to issue the writ. The CAAF's contrary conclu sion (citing only the direct review provision of Article 66(c), id. at 19a) is fundamentally inconsistent with the common-law scope of the writ and therefore cannot give rise to an "appropriate" exercise of the authority granted by the All Writs Act.9

b. The writ of error coram nobis is also fundamen tally incompatible with a military justice system that emphasizes finality in order to instill discipline critical to the maintenance of a well-trained armed force without detracting from the military's primary mission. See 10 U.S.C. 871(c)(1), 876; Toth, 350 U.S. at 17 ("[T]rial of soldiers to maintain discipline is merely incidental to an army's primary fighting function. To the extent that those responsible for performance of this primary func tion are diverted from it by the necessity of trying cases, the basic fighting purpose of armies is not served.").

While courts have adopted certain common-law limits on the scope of the writ, the availability of coram nobis relief remains subject to unsettled and amorphous legal standards. As this Court has recognized, petitions for extraordinary relief such as a writ of error coram nobis generally are not subject to time limits. See In re Sin dram, 498 U.S. 177, 180 (1991); Pet. App. 54a (Ryan, J., dissenting). In crafting the bounds of the petition for new trial within the military justice system, the propo nents of Article 73 intended that remedy to serve as a substitute for coram nobis relief. See pp. 25-26, supra. In particular, Congress imposed a two-year time limit on the submission of such petitions to vindicate the strong interest in finality. 10 U.S.C. 873. The CAAF's decision, which permits petitions for coram nobis relief at any time, frustrates that important legislative objective.

Additionally, the CAAF's decision has the practical effect of diverting the limited resources of the military justice system from its intended role of administering justice, fostering discipline, and maintaining readiness within the armed forces to that of factfinding on behalf of individuals who have long severed their ties with the military. The resolution of collateral challenges to court-martial convictions often may require evidentiary hearings. Resolution of respondent's ineffective assis tance claim, for example, would necessitate factual find ings concerning what advice respondent's civilian attor ney provided him and whether respondent's decision to enter pleas of guilty were predicated upon such advice. Pet. App. 31a-32a. No provision of the UCMJ, however, prescribes procedures for litigating such factual issues long after convictions have become final and the court- martial has been dissolved. As a result, the CAAF has improvised "an unwieldy and imperfect system" for post-conviction factfinding by the assignment of the case to a court-martial convening authority with instructions to hold an evidentiary hearing. Id. at 47a (Ryan, J. dis senting) (citing DuBay, 37 C.M.R. at 413). That proce dure requires a senior commander, members of his staff, a military judge, trial counsel, and military defense counsel-none of whom will have had prior involvement in the case-to divert their attention from their primary responsibilities to the resolution of factual issues that may involve events occurring years before.

Even in cases where post-conviction claims can be addressed without resorting to an evidentiary hearing, the government likely would be required not only to ap point counsel to represent its interests but also to ap point defense counsel at its expense to represent a now- civilian petitioner. See 10 U.S.C. 870(c)(2). As this Court has noted, when petitioners "are not subject to the financial considerations," such as attorney's fees, "that deter other litigants from filing frivolous peti tions," they have "a greater capacity than most to dis rupt the fair allocation of judicial resources." In re Sindram, 498 U.S. at 180. And "[t]he risks of abuse are particularly acute with respect to applications for ex traordinary relief, since such petitions are not subject to any time limitations and, theoretically, could be filed at any time without limitation." Ibid. For all of those rea sons, the open-ended post-conviction remedy that the CAAF adopted in this case is singularly inappropriate in the military context.

CONCLUSION

The judgment of the CAAF should be reversed.

Respectfully submitted.

GREGORY G. GARRE
Solicitor General
MATTHEW W. FRIEDRICH
Acting Assistant Attorney
General
MICHAEL R. DREEBEN
Deputy Solicitor General
PRATIK A. SHAH
Assistant to the Solicitor
General
JOHN F. DE PUE
Attorney

DANIEL J. DELL'ORTO
Principal Deputy General
Counsel
Department of Defense
LOUIS J. PULEO
Col., USMC
Director
BRIAN K. KELLER
Deputy Director
TIMOTHY H. DELGADO
Lt., JAGC, USN
Appellate Government
Division
Department of the Navy

 

JANUARY 2009

 

 

 

1 If respondent had been convicted by a general court-martial of any of those charges, it appears that he would have been subject to confine ment for up to five years for each count. See Manual for Courts-Mar tial, United States-1998, at A12-1 to A12-4.

2 See also, e.g., Bowen v. Massachusetts, 487 U.S. 879, 908-909 n.46 (1988) ("The Court of Claims is a court of limited jurisdiction, because its jurisdiction is statutorily granted and it is to be strictly construed.") (quoting Delaware Div. of Health & Soc. Servs. v. United States Dep't of HHS, 665 F. Supp. 1104, 1117-1118 (D. Del. 1987)); Commissioner v. McCoy, 484 U.S. 3, 7 (1987) ("The Tax Court is a court of limited juris diction and lacks general equitable powers."); In re United Missouri Bank of Kan. City, N.A., 901 F.2d 1449, 1451-1452 (8th Cir. 1990) ("Ar ticle 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 constitution, but limited as well by the powers given to it by Congress.") (internal cita tion omitted).

3 Respondent asserts (Br. in Opp. 8) that, if the Court of Federal Claims (an Article I court) can review a court-martial conviction not withstanding Article 76, it "is difficult to see why" the N-MCCA and the CAAF cannot do so as well. But, as noted above, the finality clause of Article 76 establishes "the terminal point for proceedings within the court-martial system." Gusik, 340 U.S. at 132 (emphasis added). Unlike the N-MCCA and the CAAF, the Court of Federal Claims is not part of the military justice system. Consequently, Article 76 is not a jurisdictional bar to the Court of Federal Claims' review of court-mar tial convictions.

4 See 2 Sundry Legislation Affecting the Naval and Military Es tablishment: Hearings Before the House Comm. on Armed Services, 80th Cong., 1st Sess. 2118 (1947) (statement of Brigadier General Hu bert D. Hoover) (noting that the amendment codified the "well estab lished" principle governing the finality of a court-martial judgment); see also Manual for Courts-Martial, United States Army-1949, at 8 ("Only a Federal court has jurisdiction on writ of habeas corpus to inquire whether a court-martial has jurisdiction of the person and the subject matter or whether it exceeded its powers.").

5 In 1983, Congress enacted the current version of Article 71(c) to clarify that "current law requir[es] completion of the legal review of the case prior to execution of a punitive discharge. This not only will pro tect the accused, it will also ensure that the government does not term inate military jurisdiction until a legal review of the case is comple ted." Military Justice Act of 1982: Hearings on S. 2521 Before the Subcomm. on Manpower and Personnel of the Senate Comm. on Armed Services, 97th Cong., 2d Sess. 32 (1982) (statement of William H. Taft IV, General Counsel of the Department of Defense) (emphasis added). The legislative history's implication is clear: once a punitive discharge is executed such that Article 76 finality attaches, all military- court jurisdiction ceases. To the extent any interstitial military-court jurisdiction exists during the period between Article 71 finality and Ar ticle 76 finality (see Loving, 62 M.J. at 240-246), Congress left no doubt that it terminates upon accrual of Article 76 finality (subject only to Article 73's express new-trial exception).

6 Although the Court in Noyd cited the Court of Military Appeals' decision in Frischholz (see p. 21, supra) in that same footnote (395 U.S. at 695 n.7), the Court did so only for its rejection of a categorical denial of the military courts' power to grant emergency writs-approving of that power only in the circumstance discussed in the text.

7 Although the CAAF has recognized such authority over the ob jection of the government in the military appellate courts (see, e.g., Del Prado v. United States, 48 C.M.R. 748 (C.M.A. 1974)), this Court has not done so and need not reach the issue here.

8 The exceptions cover persons who are in custody of the armed forces serving a sentence imposed by a court-martial, see 10 U.S.C. 802(a)(7), and, in certain cases, deserters and persons who procured their discharge by fraud, see 10 U.S.C. 803(b) and (c). The CAAF also has held that discharge from the armed forces during the pendency of a direct appeal does not divest it of jurisdiction, based upon the prin ciple that "once court-martial jurisdiction attaches, it continues until the appellate processes are completed." United States v. Woods, 26 M.J. 372, 373 (C.M.A. 1988) (internal quotation marks omitted); see, e.g., United States v. Davis, 63 M.J. 171, 176 (C.A.A.F. 2006). Because the appellate process in this case was completed years ago, that principle provides no basis for the military appellate courts' assertion of juris diction here.

9 Respondent maintains (Br. in Opp. 10-11) that "the worst that can be said [concerning his motion for coram nobis relief] is that his petition should * * * have been labeled a petition for a writ of error coram vobis" and that the government's assertion that the CAAF was without jurisdiction to grant coram nobis relief therefore "exalt[s] nomenclature over substance" (internal quotation marks omitted). But such a writ would have been equally inappropriate here. A writ of error coram vobis is "directed by a reviewing court to the court which tried the cause." Nicks v. United States, 955 F.2d 161, 166 (2d Cir. 1992). In this case, the reason why the CAAF could not grant a writ of error coram vobis is identical to the reason why it could not entertain a writ of error coram nobis. Because courts-martial are not standing tribunals, and respondent's special court-martial was long ago dissolved, there is no tribunal to which such a writ could have been directed.

 

APPENDIX

 

1. 10 U.S.C. 802 provides:

 

Art. 2. Persons subject to this chapter

(a) The following persons are subject to this chapter:

(1) Members of a regular component of the armed forces, including those awaiting discharge af ter expiration of their terms of enlistment; volun teers from the time of their muster or acceptance in to the armed forces; inductees from the time of their actual induction into the armed forces; and other persons lawfully called or ordered into, or to duty in or for training in, the armed forces, from the dates when they are required by the terms of the call or order to obey it.

(2) Cadets, aviation cadets, and midshipmen.

(3) Members of a reserve component while on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service.

(4) Retired members of a regular component of the armed forces who are entitled to pay.

(5) Retired members of a reserve component who are receiving hospitalization from an armed force.

(6) Members of the Fleet Reserve and Fleet Marine Corps Reserve.

 

(7) Persons in custody of the armed forces serv ing a sentence imposed by a court-martial.

(8) Members of the National Oceanic and Atmo spheric Administration, Public Health Service, and other organizations, when assigned to and serving with the armed forces.

(9) Prisoners of war in custody of the armed for ces.

(10) In time of declared war or a contingency op eration, persons serving with or accompanying an armed force in the field.

(11) Subject to any treaty or agreement to which the United States is or may be a party or to any ac cepted rule of international law, persons serving with, employed by, or accompanying the armed forc es outside the United States and outside the Com monwealth of Puerto Rico, Guam, and the Virgin Is lands.

(12) Subject to any treaty or agreement to which the United States is or may be a party or to any ac cepted rule of international law, persons within an area leased by or otherwise reserved or acquired for the use of the United States which is under the con trol of the Secretary concerned and which is outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.

(13) Lawful enemy combatants (as that term is defined in section 948a(2) of this title) who violate the law of war.

(b) The voluntary enlistment of any person who has the capacity to understand the significance of enlisting in the armed forces shall be valid for purposes of juris diction under subsection (a) and a change of status from civilian to member of the armed forces shall be effective upon the taking of the oath of enlistment.

(c) Notwithstanding any other provision of law, a person serving with an armed force who-

(1) submitted voluntarily to military authority;

(2) met the mental competency and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to military author ity;

(3) received military pay or allowances; and

(4) performed military duties;

is subject to this chapter until such person's active ser vice has been terminated in accordance with law or reg ulations promulgated by the Secretary concerned.

(d)(1) A member of a reserve component who is not on active duty and who is made the subject of proceed ings under section 815 (article 15) or section 830 (article 30) with respect to an offense against this chapter may be ordered to active duty involuntarily for the purpose of-

(A) investigation under section 832 of this title (article 32);

(B) trial by court-martial; or

(C) nonjudicial punishment under section 815 of this title (article 15).

(2) A member of a reserve component may not be ordered to active duty under paragraph (1) except with respect to an offense committed while the member was-

(A) on active duty; or

(B) on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service.

(3) Authority to order a member to active duty under paragraph (1) shall be exercised under regulations pre scribed by the President.

(4) A member may be ordered to active duty under paragraph (1) only by a person empowered to convene general courts-martial in a regular component of the armed forces.

(5) A member ordered to active duty under para graph (1), unless the order to active duty was approved by the Secretary concerned, may not-

(A) be sentenced to confinement; or

(B) be required to serve a punishment consisting of any restriction on liberty during a period other than a period of inactive-duty training or active duty (other than active duty ordered under paragraph (1)).

(e) The provisions of this section are subject to sec tion 876b(d)(2) of this title (article 76b(d)(2)).

 

2. 10 U.S.C. 803 provides:

Art. 3. Jurisdiction to try certain personnel

(a) Subject to section 843 of this title (article 43), a person who is in a status in which the person is subject to this chapter and who committed an offense against this chapter while formerly in a status in which the per son was subject to this chapter is not relieved from amenability to the jurisdiction of this chapter for that offense by reason of a termination of that person's for mer status.

(b) Each person discharged from the armed forces who is later charged with having fraudulently obtained his discharge is, subject to section 843 of this title (arti cle 43), subject to trial by court-martial on that charge and is after apprehension subject to this chapter while in the custody of the armed forces for that trial. Upon conviction of that charge he is subject to trial by court- martial for all offenses under this chapter committed before the fraudulent discharge.

(c) No person who has deserted from the armed for ces may be relieved from amenability to the jurisdiction of this chapter by virtue of a separation from any later period of service.

(d) A member of a reserve component who is subject to this chapter is not, by virtue of the termination of a period of active duty or inactive-duty training, relieved from amenability to the jurisdiction of this chapter for an offense against this chapter committed during such period of active duty or inactive-duty training.

 

3. 10 U.S.C. 866 provides:

Art. 66. Review by Court of Criminal Appeals

(a) Each Judge Advocate General shall establish a Court of Criminal Appeals which shall be composed of one or more panels, and each such panel shall be com posed of not less than three appellate military judges. For the purpose of reviewing court-martial cases, the court may sit in panels or as a whole in accordance with rules prescribed under subsection (f). Any decision of a panel may be reconsidered by the court sitting as a whole in accordance with such rules. Appellate military judges who are assigned to a Court of Criminal Appeals may be commissioned officers or civilians, each of whom must be a member of a bar of a Federal court or of the highest court of a State. The Judge Advocate General shall designate as chief judge one of the appellate mili tary judges of the Court of Criminal Appeals established by him. The chief judge shall determine on which panels of the court the appellate judges assigned to the court will serve and which military judge assigned to the court will act as the senior judge on each panel.

(b) The Judge Advocate General shall refer to a Court of Criminal Appeals the record in each case of trial by court-martial-

(1) in which the sentence, as approved, extends to death, dismissal of a commissioned officer, cadet, or midshipman, dishonorable or bad-conduct dis charge, or confinement for one year or more; and

(2) except in the case of a sentence extending to death, the right to appellate review has not been waived or an appeal has not been withdrawn under section 861 of this title (article 61).

(c) In a case referred to it, the Court of Criminal Appeals may act only with respect to the findings and sentence as approved by the convening authority. It may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds cor rect in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.

(d) If the Court of Criminal Appeals sets aside the findings and sentence, it may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If it sets aside the findings and sentence and does not order a rehearing, it shall order that the charges be dismissed.

(e) The Judge Advocate General shall, unless there is to be further action by the President, the Secretary concerned, the Court of Appeals for the Armed Forces, or the Supreme Court, instruct the convening authority to take action in accordance with the decision of the Court of Criminal Appeals. If the Court of Criminal Appeals has ordered a rehearing but the convening au thority finds a rehearing impracticable, he may dismiss the charges.

(f) The Judge Advocates General shall prescribe uniform rules of procedure for Courts of Criminal Ap peals and shall meet periodically to formulate policies and procedure in regard to review of court-martial cases in the offices of the Judge Advocates General and by Courts of Criminal Appeals.

(g) No member of a Court of Criminal Appeals shall be required, or on his own initiative be permitted, to prepare, approve, disapprove, review, or submit, with respect to any other member of the same or another Court of Criminal Appeals, an effectiveness, fitness, or efficiency report, or any other report or document used in whole or in part for the purpose of determining whe ther a member of the armed forces is qualified to be ad vanced in grade, or in determining the assignment or transfer of a member of the armed forces, or in deter mining whether a member of the armed forces should be retained on active duty.

(h) No member of a Court of Criminal Appeals shall be eligible to review the record of any trial if such mem ber served as investigating officer in the case or served as a member of the court-martial before which such trial was conducted, or served as military judge, trial or defense counsel, or reviewing officer of such trial.

 

4. 10 U.S.C. 867 provides:

Art. 67. Review by the Court of Appeals for the Armed Forces

(a) 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;

(2) all cases reviewed by a Court of Criminal Ap peals which the Judge Advocate General orders sent to the Court of Appeals for the Armed Forces for re view; and

(3) all cases reviewed by a Court of Criminal Ap peals in which, upon petition of the accused and on good cause shown, the Court of Appeals for the Armed Forces has granted a review.

(b) The accused may petition the Court of Appeals for the Armed Forces for review of a decision of a Court of Criminal Appeals within 60 days from the earlier of-

(1) the date on which the accused is notified of the decision of the Court of Criminal Appeals; or

(2) the date on which a copy of the decision of the Court of Criminal Appeals, after being served on appellate counsel of record for the accused (if any), is deposited in the United States mails for delivery by first-class certified mail to the accused at an ad dress provided by the accused or, if no such address has been provided by the accused, at the latest ad dress listed for the accused in his official service re cord.

The Court of Appeals for the Armed Forces shall act upon such a petition promptly in accordance with the rules of the court.

(c) In any case reviewed by it, the Court of Appeals for the Armed Forces may act only with respect to the findings and sentence as approved by the convening au thority and as affirmed or set aside as incorrect in law by the Court of Criminal Appeals. In a case which the Judge Advocate General orders sent to the Court of Ap peals for the Armed Forces, that action need be taken only with respect to the issues raised by him. In a case reviewed upon petition of the accused, that action need be taken only with respect to issues specified in the grant of review. The Court of Appeals for the Armed Forces shall take action only with respect to matters of law.

(d) If the Court of Appeals for the Armed Forces sets aside the findings and sentence, it may, except where the setting aside is based on lack of sufficient evi dence in the record to support the findings, order a re hearing. If it sets aside the findings and sentence and does not order a rehearing, it shall order that the char ges be dismissed.

(e) After it has acted on a case, the Court of Appeals for the Armed Forces may direct the Judge Advocate General to return the record to the Court of Criminal Appeals for further review in accordance with the deci sion of the court. Otherwise, unless there is to be fur ther action by the President or the Secretary concerned, the Judge Advocate General shall instruct the convening authority to take action in accordance with that decision. If the court has ordered a rehearing, but the convening authority finds a rehearing impracticable, he may dis miss the charges.

5. 10 U.S.C. 871 provides:

Art. 71. Execution of sentence; suspension of sentence

(a) 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 sus pend the sentence, or any part thereof, as he sees fit. That part of the sentence providing for death may not be suspended.

(b) If in the case of a commissioned officer, cadet, or midshipman, the sentence of a court-martial extends to dismissal, that part of the sentence providing for dis missal may not be executed until approved by the Secre tary concerned or such Under Secretary or Assistant Secretary as may be designated by the Secretary con cerned. In such a case, the Secretary, Under Secretary, or Assistant Secretary, as the case may be, may com mute, remit, or suspend the sentence, or any part of the sentence, as he sees fit. In time of war or national emer gency he may commute a sentence of dismissal to reduc tion to any enlisted grade. A person so reduced may be required to serve for the duration of the war or emer gency and six months thereafter.

(c)(1) 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 pro ceedings 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

(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 Su preme Court;

(ii) such a petition is rejected by the Supreme Court; or

(iii) review is otherwise completed in accor dance with the judgment of the Supreme Court.

(2) If a sentence extends to dismissal or a dishonor able or bad conduct discharge and if the right of the ac cused to appellate review is waived, or an appeal is with drawn, under section 861 of this title (article 61), that part of the sentence extending to dismissal or a bad-con duct or dishonorable discharge may not be executed un til review of the case by a judge advocate (and any action on that review) under section 864 of this title (article 64) is completed. Any other part of a court-martial sentence may be ordered executed by the convening authority or other person acting on the case under section 860 of this title (article 60) when approved by him under that sec tion.

(d) The convening authority or other person acting on the case under section 860 of this title (article 60) may suspend the execution of any sentence or part thereof, except a death sentence.

 

 

6. 10 U.S.C. 873 provides:

Art. 73. Petition for a new trial

At any time within two years after approval by the convening authority of a court-martial sentence, the ac cused may petition the Judge Advocate General for a new trial on the grounds of newly discovered evidence or fraud on the court. If the accused's case is pending be fore a Court of Criminal Appeals or before the Court of Appeals for the Armed Forces, the Judge Advocate Gen eral shall refer the petition to the appropriate court for action. Otherwise the Judge Advocate General shall act upon the petition.

 

7. 10 U.S.C. 876 provides:

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 dischar ges carried into execution under sentences by courts- martial following approval, review, or affirmation as required by this chapter, are final and conclusive. Or ders 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 action upon a petition for a new trial as provided in section 873 of this title (ar ticle 73) and to action by the Secretary concerned as provided in section 874 of this title (article 74) and the authority of the President.

 

8. 28 U.S.C. 1651 provides:

Writs

(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appro priate in aid of their respective jurisdictions and agree able to the usages and principles of law.

(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.