                 UNITED STATES NAVY-MARINE CORPS
                    COURT OF CRIMINAL APPEALS
                         WASHINGTON, D.C.

                                   Before
                             THE COURT EN BANC

                               DUSTIN M. CLARK
                            AIRMAN (E-3), U.S. NAVY

                                         v.

                         UNITED STATES OF AMERICA

                                NMCCA 201400232
           Review of Petition for Extraordinary Relief in the Nature of a
                               Writ of Habeas Corpus


Sentence Adjudged: 21 February 2014.
Military Judge: CDR Robert P. Monahan, Jr., JAGC, USN.
Convening Authority: Commandant, Naval District Washington,
Washington Navy Yard, Washington, DC.
Staff Judge Advocate's Recommendation: LCDR J.D. Pilling,
JAG, USN.
For Petitioner: Capt Michael Magee, USMC.
For Respondent: LT Jetti Gibson, JAGC, USN; Capt Matthew M.
Harris, USMC.

                             24 September 2015

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                      OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

BRUBAKER, S.J., delivered the opinion of the court in which
MITCHELL, C.J., MARKS, J., PALMER, J., and CAMPBELL, J., concur.
FISCHER, S.J., filed a dissenting opinion joined by HOLIFIELD,
J.. 1


BRUBAKER, Senior Judge:

1
    Judge KING and Judge RUGH did not participate in the review of this case.
     The petitioner asks that we direct his immediate release
from confinement through a Writ of Habeas Corpus. Because we
find his continued confinement to be lawful, we decline to do
so.

                           Background

     A military judge sitting as a general court-martial
convicted the petitioner, contrary to his pleas, of rape and
forcible sodomy in violation of Articles 120 and 125, Uniform
Code of Military Justice, 10 U.S.C. §§ 920 and 925. The
military judge sentenced the appellant to seven years’
confinement, reduction to pay grade E-1, and a dishonorable
discharge. The convening authority (CA) approved the sentence
as adjudged.

     On 14 July 2015, a panel of this court issued a decision
finding the petitioner’s convictions factually insufficient and
thus set aside the findings and sentence and dismissed the
charges with prejudice. United States v. Clark, 2015 CCA LEXIS
287, unpublished op. (N.M.Ct.Crim.App. 14 Jul 2015) (per
curiam). On 13 August 2015, the Government requested en banc
reconsideration of this decision, which we denied on 18 August.
Despite the ruling in his favor, the petitioner has remained in
confinement since his court-martial adjourned.

     After the petitioner filed his Petition for Extraordinary
Relief in the Nature of a Writ of Habeas Corpus, the panel
ordered the Government to show cause why the requested relief
should not be granted. After responsive pleadings by both
parties to the show cause order, we sua sponte decided to
consider the case en banc. On 18 September 2015, we issued an
order denying the writ but indicating an opinion would follow.
On 21 September 2015, the petitioner filed a writ-appeal
petition based on our denial with the Court of Appeals for the
Armed Forces (CAAF).

                            Analysis

     As neither party disputes, we have jurisdiction to consider
this petition under the All Writs Act, 28 U.S.C. § 1651(a).
Clinton v. Goldsmith, 526 U.S. 529, 534 (1999); Loving v. United
States, 62 M.J. 235, 239 (C.A.A.F. 2005).

     The United States Supreme Court instructs “that the essence
of habeas corpus is an attack by a person in custody upon the
legality of that custody, and that the traditional function of

                                2
the writ is to secure release from illegal custody.” Preiser v.
Rodriguez, 411 U.S. 475, 484 (1973). Similarly, the CAAF has
called the writ of habeas corpus the “traditional remedy for
unlawful imprisonment.” Waller v. Swift, 30 M.J. 139, 142
(C.M.A. 1990) (citations omitted). This then is an assessment
not of whether the petitioner has presented a meritorious case
as to why he should be released, but rather whether his
confinement is illegal. Because the petitioner’s continued
confinement pending the Judge Advocate General (JAG) of the
Navy’s decision to accept or to challenge this court’s decision
is consistent with the procedures established within the UCMJ
and sanctioned by binding precedent, we deny relief.

     Unlike many civilian courts, military Courts of Criminal
Appeals (CCAs) do not issue mandates; those are the JAGs’
purview as our decisions are not “self-executing.” Instead, a
CCA decision remains “inchoate” until the appellate process is
complete and the service JAG returns the case to an appropriate
CA for action consistent with the final appellate decision.
United States v. Miller, 47 M.J. 352, 361 (C.A.A.F. 1997).

     The fact that a legal determination is based on factual
sufficiency does not alter its inchoate nature. Like any legal
determination, it is subject to appeal to the CAAF. While the
CAAF is constrained regarding CCAs’ factual findings, it can
still review findings of factual sufficiency to ensure the lower
court applied the correct law. See United States v. Leak, 61
M.J. 234, 245 (C.A.A.F. 2005); see also, United States v. Nerad,
69 M.J. 138, 140 (C.A.A.F. 2010) (“while CCAs have broad
authority under Article 66(c), UCMJ, to disapprove a finding,
that authority is not unfettered. It must be exercised in the
context of legal——not equitable——standards, subject to appellate
review.” (citation omitted)).

      An appellant has an interest in a favorable but inchoate
CCA decision, but that interest “only becomes sufficiently
weighty to warrant action” once the JAG has decided on a course
of action (abide by the CCA ruling or challenge it before the
CAAF) or his time for doing so has expired. United States v.
Kreutzer, 70 M.J. 444, 446 (C.A.A.F. 2012). Regulations grant
the JAG a concrete amount of time to make his determination——60
days after the date of the CCA decision or 30 days after the
CAAF has granted a petition for review. CAAF RULES OF PRACTICE AND
PROCEDURE Rule 19(b)(3). When the Government has timely sought
reconsideration of the CCA decision, the 60 days is computed
from the date of the CCA’s final action on the petition for
reconsideration. Id., Rule 34(a).

                                 3
     Pending the JAG’s decision, “an accused remains in
confinement because the opinion below is inchoate. This
reflects Article 66(e), which does not require the [JAG] to
provide the [CA] with notification and instructions to release
the accused or conduct an RCM 305 hearing ‘unless’ there will
not be further consideration by other authorities . . . .”
Miller, 47 M.J. at 361-62. Only after the JAG has had the
opportunity to make his decision does “an accused’s interest in
the favorable decision of the court below” require “either that
the accused be released in accordance with that decision or a
hearing on continued confinement be conducted under RCM 305.”
Id. at 362 (citing United States v. Turner, 47 M.J. 348
(C.A.A.F. 1997) and Moore v. Akins, 30 M.J. 249 (C.M.A. 1990)).

     Statutory provisions under Article 57a, UCMJ, reinforce
this scheme and evince Congressional intent to provide those in
the appellant’s position a process to determine the propriety of
continued confinement only after the service JAG has had the
opportunity to accept or to challenge a CCA decision. The first
of these provisions is what is now Article 57a(a), granting
discretion to a CA or other appropriate official to defer
confinement until the sentence is ordered executed. Congress
enacted this provision, originally as Article 57(d), to
authorize prisoners a “means of release from confinement during
appellate review” and in so doing provided “for the first time a
procedure similar to release on bail pending appeal in the
civilian courts.” Moore, 30 M.J. at 251-52 (citations omitted).

     Even with Article 57(d), there was no explicit authority to
defer confinement after the CA took action on a case. But in
1990, the United States Court of Military Appeals (CMA)
considered a habeas corpus petition in a case where the
appellate court below had ruled in favor of the petitioner,
dismissing all charges and specifications. The case was pending
CMA review following a JAG certification under Article 67(a)(2).
Moore, 30 M.J. at 249-50. The CMA, citing Congress’s desire
that “a practical means be made available to release accused
servicemembers from confinement pending appeal in meritorious
cases[,]” granted Moore’s petition and ordered his release
pending completion of appellate review. Id. at 253.

     In direct response to the Moore decision, Congress passed
Article 57a(c), providing that when a sentence to confinement
has been ordered executed, but the case is pending review by the
CAAF under Article 67(a)(2), “the Secretary concerned may defer
further service of sentence to confinement while that review is

                                4
pending.” The Congressional Record summarizes the Moore holding
as directing a prisoner’s release “from confinement pending the
government’s appeal unless it can be shown that the accused is a
flight risk or a potential threat to the community . . . .” 141
Cong Rec S 5805 § 557 (April 27, 1995). To codify this ruling,
Congress gave Service Secretaries the ability to “defer the
service of an accused's confinement when a [JAG] orders a case
reversed by a [CCA] to be sent to [the CAAF] for further review
under article 67(a)(2).” Id. This evinces Congressional intent
to restrict the option of Secretarial deferment until after a
case is certified to our higher Court.

     As illustrated in Miller and Kreutzer, ever since Moore and
the enactment of Article 57a(c), the CAAF has consistently held
that a CCA opinion favorable to a service member does not
entitle him to be released or to the equivalent of an R.C.M. 305
hearing until the JAG has had the opportunity to send the case
to the CAAF. This, we believe, is in recognition of the JAG’s
executive role and the finite period of time between a CCA
decision and action by the JAG——in contrast to the relatively
lengthy and indefinite period of time for the CAAF to consider
the merits of an appeal. 2 See Miller, 47 M.J. at 361-62.

     The Petition for Extraordinary Relief in the Nature of a
Writ of Habeas Corpus is, accordingly, DENIED.

     Chief Judge MITCHELL, Judge MARKS, Judge PALMER, and Judge
CAMPBELL concur.


FISCHER, Senior Judge (dissenting):

I would grant the petition and release the petitioner from
confinement, accordingly I respectfully dissent. In short I
find the petitioner’s case is closely aligned with the facts and
procedural setting in Moore v. Akins, 30 M.J. 249 (C.M.A. 1990)
and distinguishable from those in United States v. Miller, 47



2
  We acknowledge that since Miller and Kreutzer were decided, the time allowed
for JAGs to send cases to the CAAF has expanded from 30 to 60 days. But this
does not change our analysis of Congressional intent and CAAF precedent
supporting that an appellant may remain in confinement pending the JAG’s
decision on a CCA ruling favorable to him. And in Kreutzer, despite 110 days
elapsing between the CCA decision and JAG certification, even the dissent did
not believe that Kreutzer was entitled an R.C.M. 305 hearing until the date
of JAG certification. Kreutzer, 70 M.J. at 450 (Erdmann, J., dissenting).


                                      5
M.J. 352 (C.A.A.F. 1997) 1 and United States v. Kreutzer, 70 M.J.
444 (C.A.A.F. 2012). 2
     The court in Moore directly spoke to the “inchoate” nature
of service court decisions in terms of habeas corpus relief:

      Clearly, the legislative intent was that a practical
      means be made available to release accused
      servicemembers from confinement pending appeal in
      meritorious cases. This was the reason for enacting
      Article 57(d). We are convinced that Congress did not
      intend that the outcome should hinge on any
      distinction between an "inchoate" decision of a Court
      of Military Review and a mandate issued by a federal
      court of appeals. Indeed, one of the main purposes of
      the Military Justice Act of 1968 was to transmute the
      "boards of review" into “courts”; and we conclude that
      the decisions of these “courts” must be taken into
      account for purposes of post-trial confinement even
      before they have become “final.”

30 M.J. at 253.

     As the majority rightly states, enactment of Article 57a,
UCMJ, addressed the circumstance faced in Moore and now permits
“the Secretary concerned to defer [the appellant’s] further
service of sentence to confinement” during appellate review
following certification by the service Judge Advocate General
pursuant to Article 67(a)(2), UCMJ. But, the UCMJ does not
address deferment of confinement following issuance of a service
court decision pending a certification determination by the
Judge Advocate General. The petitioner in Moore was limited to
a writ of habeas corpus in seeking relief from confinement. So
too here the petitioner’s lone avenue to challenge his continued

1
  The Miller court concluded that the appellant was not entitled to additional
sentencing credit for twenty-one days of confinement he served after
receiving a favorable decision from a service criminal court of appeals, a
decision also set aside by the Court of Appeals for the Armed Forces. Apart
from obvious distinctions that the Miller court was not addressing a habeas
petition and that the petitioner here is on his seventy-first vice his
twenty-first day of confinement after our opinion issued, unlike our sister
service court in Miller, we affirmed no part of the findings or sentence in
the petitioner’s case.
2
  Footnote 1 of the Kreutzer majority opinion states, “[t]he Miller majority
cited Moore v. Akins, 30 M.J. 249 (C.M.A. 1990), a case in which the Court of
Military Review had dismissed all charges on statute of limitations or
factual sufficiency grounds, leaving the accused without a conviction.
Because Appellant here remained convicted of a number of offenses, Moore is
also inapplicable to this case.” 70 M.J. at 447.

                                      6
confinement at this procedural juncture is through a writ of
habeas corpus to our court.

     The court in Moore reiterated our authority to entertain
such a writ, stating, “[i]n our view, the Court of Military
Review-as long as [the Petitioner’s] case was pending there-had
authority under the All Writs Act, 28 USC § 1651, to an enter an
order deferring service of confinement pending completion of
appellate review.” Id.

     As the court did in Moore, I find the petitioner’s case
meritorious. He has served nearly nineteen months’ confinement
and has received a completely favorable decision from our court
concluding that the Government failed to prove his guilt beyond
a reasonable doubt and dismissing all charges with prejudice.
For nearly two years he was under investigation or pending trial
on the charges for which he was eventually convicted, but he was
not placed in pretrial confinement. There is no indication or
evidence in the record that during that time, any concern
existed that he was a flight risk or danger to others.
Certainly the Court of Appeals for the Armed Forces must review
this case pursuant to Article 67(a)(2), UCMJ, if the Judge
Advocate General certifies it to that court. But, as our court
previously held, “[w]e cannot allow the Government to continue .
. . confinement of the Petitioner on the hopeful speculation
that the [court’s] decision will be reversed eventually by a
higher appellate court.” Frage v. Edington, 26 M.J. 927, 929
(N.M.C.M.R. 1988). 3

3
  Recognizing they operate within a different procedural and legal framework,
federal courts use the writ of habeas corpus to grant unconditional release
from confinement in instances where the Government fails to prove the guilt
of the accused beyond a reasonable doubt, including cases where the
Government can seek appeal or a rehearing. See Fiore v. White, 531 U.S. 225,
228 (2001) (per curiam) (holding the defendant’s “conviction and continued
incarceration . . . violate due process” when the government failed to prove
one of the elements of the crime); Brown v. Palmer, 441 F.3d 347 (6th Cir.
2006) (affirming district court’s decision to grant immediate release from
confinement when the evidence was insufficient to prove the defendant was
guilty beyond a reasonable doubt); Juan H. v. Allen, 408 F.3d 1262, 1279 (9th
Cir. 2005) (remanding with instructions to grant a writ of habeas corpus
because the evidence was insufficient to prove defendant’s guilt beyond a
reasonable doubt—“an accused must go free unless and until the prosecution
presents evidence that proves guilt beyond a reasonable doubt.” (citation
omitted)); Kelly v. Roberts, 998 F.2d 802, 809 n.11 (10th Cir. 1993)
(granting immediate release from confinement when the evidence was
insufficient to prove the defendant’s guilt beyond a reasonable doubt and
also observing that “prolonging . . . incarceration to allow the State time
to file a petition for rehearing is unjust.”); Hopson v. Foltz, 818 F.2d 866
(6th Cir. 1987) (granting a habeas petition when the evidence was
insufficient to prove the defendant’s guilt beyond a reasonable doubt).

                                      7
     Under the facts of this case I believe the petitioner has
established a clear and indisputable right to be released from
confinement and would grant his petition.

     Judge HOLIFIELD joining.


                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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