          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                          Airman Basic STEVEN M. CHAPMAN
                                United States Air Force,
                                        Petitioner

                                              v.

                                     UNITED STATES,
                                       Respondent

                                   Misc. Dkt. No. 2014-16

                                         __ M.J. __

                                      18 February 2016

         Sentence adjudged 15 July 2002 by GCM convened at Cannon Air Force
         Base, New Mexico. Military Judge: Patrick M. Rosenow.

         Approved sentence: Dishonorable discharge, confinement for life with the
         possibility of parole, forfeiture of all pay and allowances, and reduction to
         E-1.

                                            Before

                          MITCHELL, DUBRISKE, and BROWN
                               Appellate Military Judges

                                 OPINION OF THE COURT

                                    PUBLISHED DECISION

MITCHELL, Senior Judge:

       Petitioner filed a petition for a writ of habeas corpus. We conclude we do not
have jurisdiction for the writ of habeas corpus and deny the petition. Although we do
have jurisdiction for a writ of error coram nobis, we determine Petitioner has not met the
threshold requirements and deny the writ.

                                        Background

     Petitioner was convicted, contrary to his pleas, by a general court-martial
composed of officer members, of attempted premeditated murder, rape, sodomy, and
burglary, in violation of Articles 80, 120, 125, and 129, UCMJ, 10 U.S.C. §§ 880, 920,
925, 929. The convening authority approved the adjudged sentence of a dishonorable
discharge, confinement for life with the possibility of parole, forfeiture of all pay and
allowances, and reduction to E-1. On 14 July 2006, we affirmed the findings and
sentence. United States v. Chapman, ACM 35564 (A.F. Ct. Crim. App. 14 July 2006)
(unpub. op). Our superior court affirmed our decision in a summary disposition. United
States v. Chapman, 65 M.J. 289 (C.A.A.F. 2007) (mem.), cert. denied, 552 U.S. 952
(2007). On 28 November 2007, a final court-martial order executed the dishonorable
discharge. Consequently, there is a final judgment as to the legality of the proceedings
and all portions of the sentence have been ordered executed under Article 71(c)(1),
UCMJ, 10 U.S.C. § 871(c)(1), and the case is final under Article 76, UCMJ, 10 U.S.C. §
876.

                            Prior Writ Petitions to This Court

       In 2012, Petitioner filed a writ petition for extraordinary relief seeking the
appointment of appellate counsel to represent him in filing a writ of habeas corpus. We
do not have the authority under Article 70(c), UCMJ, 10 U.S.C. 870(c), to appoint
appellate defense counsel; the authority to appoint appellate defense counsel was vested
with The Judge Advocate General. We denied the petition without prejudice to refiling.
United States v. Chapman, misc. dkt. No. 2012-03 (A.F. Ct. Crim. App. 28 September
2012).

       In 2013, Petitioner filed another writ with this court. The writ was in two parts: a
writ of mandamus seeking this court to require The Judge Advocate General to appoint
appellate defense counsel for the purpose of filing writ petitions and a writ of habeas
corpus for failure of the military judge to sua sponte instruct on false confession and
ineffective assistance of counsel during trial and appeal. We again denied the petition for
the appointment of counsel without prejudice to Petitioner refiling with the assistance of
his personally-procured counsel. United States v. Chapman, misc. dkt. No. 2013-31
(A.F. Ct. Crim. App. 25 February 2014).

       Petitioner has now filed a pro-se writ of habeas corpus for failure of the military
judge to sua sponte instruct on false confession and ineffective assistance of counsel.

                                 Writ of Habeas Corpus

        The All Writs Act, 28 U.S.C. § 1651(a), grants this court authority to issue
extraordinary writs necessary or appropriate in aid of its jurisdiction. Loving v. United
States, 62 M.J. 235, 246 (C.A.A.F. 2005) (citing Clinton v. Goldsmith, 526 U.S. 529, 534
(1999)). However, the Act does not enlarge our jurisdiction, and the writ must be in aid
of our existing statutory jurisdiction. Clinton, 526 U.S. at 534–35. “The courts of
criminal appeals are courts of limited jurisdiction, defined entirely by statute.”


                                             2                          Misc. Dkt. No. 2014-16
United States v. Arness, 74 M.J. 441, 442 (C.A.A.F. 2015). Therefore, the preliminary
question is whether this court has jurisdiction to consider a writ petition from a petitioner
whose court-martial conviction is final but is continuing to serve his term of confinement.
We conclude we do not have jurisdiction and deny the writ.

        In Loving, the petitioner had been sentenced to death but the sentence had not been
approved by the President; our superior court determined that the military courts had
jurisdiction over habeas corpus petitions when there is a final judgment as to the legality
of the proceedings under Article 71(c)(1), UCMJ, but before the case is final under
Article 76, UCMJ. Loving, 62 M.J. at 246. Implicit in this conclusion was that if the
proceedings were final under Article 76, UCMJ, the military courts would not have
jurisdiction. In the petition before us, direct review of Petitioner’s court-martial was
completed when the Supreme Court denied the certiorari petition and was final shortly
thereafter when the convening authority ordered the dishonorable discharge executed.
Petitioner’s court-martial, therefore, has both a final judgment as to the legality of the
proceedings under Article 71, UCMJ, and is final under Article 76, UCMJ.

       We agree with our sister service court that military courts do not have jurisdiction
over habeas corpus petitions when a court-martial has completed direct review under
Article 71, UCMJ, and is final under Article 76, UCMJ. Gray v. Belcher, 70 M.J. 646,
647 (Army Ct. Crim. App. 2012); see also United States v. Denedo, 556 U.S. 904, 920
n.1 (2009) (Roberts, C.J., dissenting) (noting that the Supreme Court has never
questioned that Article 76, UCMJ, limits the jurisdiction of military courts).*

       We find additional support for this conclusion in the Supreme Court’s rationale
when they concluded that military courts have jurisdiction over coram nobis petitions
even after the proceedings are final under Article 76, UCMJ. Denedo, 556 U.S. at 916–
17. In doing so, they relied upon a coram nobis petition being an extension of the
original proceeding. Denedo, at 912–13. Habeas corpus, conversely, is considered a
separate civil case and record. See United States v. Morgan, 346 U.S. 502, 505 n.4
(1954). Consequently, a habeas corpus petition is not an extension of the direct appeal,
and the rationale in Denedo does not apply to extend jurisdiction beyond the finality of
Article 76, UCMJ.

        Furthermore, the Supreme Court has stated that the federal district courts have
jurisdiction over habeas corpus petitioners who are imprisoned as a result of court-martial
convictions. “The federal civil courts have jurisdiction over such applications. By
statute, Congress has charged them with the exercise of that power.” Burns v. Wilson, 346
U.S. 137, 139 (1953).

*
 The Navy-Marine Corps Court of Criminal Appeals reached a different conclusion in Fisher v. Commander, 56
M.J. 691 (N-M. Ct. Crim. App. 2001). However, that court relied on Dew v. United States, 48 M.J. 639 (Army Ct.
Crim. App. 1998), which was repudiated in United States v. Arness, 74 M.J. 441, 443 (C.A.A.F. 2015). Because the
underlying rationale has been rejected, we conclude Fisher is no longer persuasive authority on this issue.


                                                       3                                 Misc. Dkt. No. 2014-16
                                Writ of Error Coram Nobis

       Although framed by the pro-se Petitioner as a writ of habeas corpus, we also
address whether we can consider the petition for a writ of error coram nobis. “The label
placed on a petition for extraordinary relief is of little significance.” Nkosi v. Lowe, 38
M.J. 552, 553 (A.F.C.M.R. 1993).

       Appellate military courts have jurisdiction over “coram nobis petitions to consider
allegations that an earlier judgment of conviction was flawed in a fundamental respect.”
Denedo, 556 U.S. at 917. The writ of coram nobis is an extraordinary writ and an
extraordinary remedy. Id. It should not be granted in the ordinary case; rather, it should
be granted only in extraordinary cases under circumstances compelling such action to
achieve justice. Id.; Morgan, 346 U.S. at 511; Correa-Negron v. United States, 473 F.2d
684, 685 (5th Cir. 1973).

       Although a petitioner may file a writ of coram nobis at any time, to be entitled to
the writ he must meet the following threshold requirements:

              (1) the alleged error is of the most fundamental character; (2)
              no remedy other than coram nobis is available to rectify the
              consequences of the error; (3) valid reasons exist for not
              seeking relief earlier; (4) the new information presented in the
              petition could not have been discovered through the exercise
              of reasonable diligence prior to the original judgment; (5) the
              writ does not seek to reevaluate previously considered
              evidence or legal issues; and (6) the sentence has been served,
              but the consequences of the erroneous conviction persist.

Denedo v. United States, 66 M.J. 114, 126 (C.A.A.F. 2008), aff’d and remanded,
556 U.S. 904 (2009).

       This court uses a two-tier approach to evaluate claims raised via a writ of coram
nobis. First, the petitioner must meet the aforementioned threshold requirements for a
writ of coram nobis. Id. If the petitioner meets the threshold requirements, his claims are
then evaluated under the standards applicable to his issues. Id. Evaluating Petitioner’s
case under the coram nobis threshold requirements, we find that Petitioner has failed to
satisfy several threshold requirements—the failure to meet any one alone warrants a
denial of Petitioner’s writ.

        First, a writ of coram nobis is not the only remedy available as Petitioner may seek
relief through a writ of habeas corpus in an Article III court. See Denedo, 556 U.S. at
911 (“[A]n extraordinary remedy may not issue when alternative remedies, such as
habeas corpus, are available.”); see also Loving v. United States, 68 M.J. 1, 26–27


                                             4                           Misc. Dkt. No. 2014-16
(C.A.A.F. 2009) (Ryan, J. dissenting) (“[A]n Article III court could properly consider a
military prisoner’s habeas corpus petition and the All Writs Act does not allow this Court
to act in the face of another, specific statute.”). Additionally, Petitioner has not served
his sentence; he was sentenced to confinement for life with the possibility of parole and
the sentence was affirmed. Chapman, unpub. op. at 1. His own pleadings identify that
he is still confined. Furthermore, in regards to the claim of error in the military judge’s
instructions, Petitioner has not set forth valid reasons why he did not seek relief earlier.
On direct appeal, Petitioner asserted several errors and an additional 13 errors pursuant to
his rights under United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). Chapman,
unpub. op. at 2. Petitioner provides no explanation as to why the military judge’s failure
to provide an instruction was not challenged during direct appeal.

                                        Conclusion

        This court does not have jurisdiction over habeas corpus petitions when there is a
final judgment as to the legality of the proceedings and all portions of the sentence have
been ordered executed under Article 71(c)(1), UCMJ, and the case is final under Article
76, UCMJ. Petitioner has also not carried his burden to demonstrate that his case
presents extraordinary circumstances warranting issuance of the writ of error coram
nobis. Accordingly, it is by the court on this 18th day of February 2016,

ORDERED:

      That the petition for extraordinary relief in the nature of a writ of habeas corpus
and writ of error coram nobis is hereby DENIED.



              FOR THE COURT



              LEAH M. CALAHAN
              Clerk of the Court




                                             5                           Misc. Dkt. No. 2014-16
