UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                                MULLIGAN, FEBBO, and WOLFE
                                   Appellate Military Judges

                        ROB ROBERTS, Petitioner
                                  v.
               THE UNITED STATES OF AMERICA, Respondent

                                    ARMY MISC 20180005

                                         30 January 2018
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                         OPINION OF THE COURT AND ACTION ON
                        PETITION FOR EXTRAORDINARY RELIEF IN
                      THE NATURE OF A WRIT OF HABEAS CORPUS;
                     CORAM NOBIS; CORAM VOBIS; OR MANDAMUS
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WOLFE, Judge:

       Petitioner, Mr. Rob Roberts, asks this court to provide relief from his 1996
court-martial conviction. We lack jurisdiction to consider the petition for
extraordinary relief as its substance is based on a claim of new evidence, which is
time-barred by Article 73, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §
873. The claim, therefore, cannot be said to be in furtherance of our jurisdiction as
required by the All Writs Act, 28 U.S.C. § 1651. As such, we dismiss the petition.

       We take judicial notice that a military panel with enlisted representation,
sitting as a general court-martial, convicted petitioner, contrary to his pleas, of two
specifications of forcible sodomy with a child under the age of sixteen, five
specifications of indecent acts or liberties with a child, one specification of indecent
assault, in violation of Articles 125 and 134, UCMJ. 1 United States v. Roberts,
ARMY 9600785, 1998 CCA LEXIS 590 (Army Ct. Crim. App. 16 Dec. 1998) (mem.
op. and action on petition for new trial). The convening authority approved the
adjudged sentence to a dishonorable discharge, confinement for ten years, forfeiture
of all pay and allowances, and reduction to the grade of E-1.




1
 Petitioner’s pro se submission to this court consisted of a two-and-a-half-page
brief. For purposes of determining whether we have jurisdiction to consider the
petition we accept petitioner’s factual claims as true.
ROBERTS—ARMY MISC. 20180005


                                  BACKGROUND

       Petitioner asserts he has Gulf War Illness from exposure to nerve agents
during service, service-related post-traumatic stress disorder, anxiety, and
depression. Petitioner asserts he became aware of his conditions only after being
released from confinement. Although petitioner states the Department of Veterans
Affairs sent him certain notices in 1997 and 2000, petitioner claims he did not
receive them while confined. Finally, petitioner asserts that had he been aware of
his medical conditions during trial, “the entire proceedings would have been
different resulting in a substantially more favorable outcome for appellant.”

       Broadly, petitioner bases his plea for relief on new evidence that he was
unaware of at trial. Petitioner claims that had the court-martial had this evidence,
the findings and sentence would have been directly affected or that the case would
not have been referred to trial. Reading the petition favorably, we understand
petitioner to be claiming the medical conditions would have created a defense (e.g.
mental responsibility) or would have been so mitigating or extenuating as to result in
a substantially different outcome.

                              LAW AND DISCUSSION

      We lack jurisdiction to consider the petition. The United States Supreme
Court explained the limit of our writ authority in Clinton v. Goldsmith:

                    While the All Writs Act authorizes employment of
             extraordinary writs, it confines the authority to the
             issuance of process “in aid of” the issuing court’s
             jurisdiction. 28 U.S.C. § 1651(a) (“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”). Thus,
             although military appellate courts are among those
             empowered to issue extraordinary writs under the Act, see
             Noyd v. Bond, 395 U.S. 683, 695, n. 7, 23 L. Ed. 2d 631,
             89 S. Ct. 1876 (1969), the express terms of the Act
             confine the power of the [Court of Appeals for the Armed
             Forces (CAAF)] to issuing process “in aid of” its existing
             statutory jurisdiction; the Act does not enlarge that
             jurisdiction, see, e.g., Pennsylvania Bureau of Correction
             v. United States Marshals Service, 474 U.S. 34, 41, 88 L.
             Ed. 2d 189, 106 S. Ct. 355 (1985).

526 U.S. 529, 534-35, (1999).

      “Federal courts, including courts in the military justice system established
under Article I of the Constitution, are courts of limited jurisdiction.” United States


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ROBERTS—ARMY MISC. 20180005


v. Wuterich, 67 M.J. 63, 70 (C.A.A.F. 2008). “Without jurisdiction the court cannot
proceed at all in any cause. Jurisdiction is power to declare the law, and when it
ceases to exist, the only function remaining to the court is that of announcing the
fact and dismissing the cause.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
94 (1998) (quoting Ex parte McCardle, 74 U.S. 506, 514 (1869)).

       Petitioner asks that we issue a writ of habeas corpus, corum nobis, corum
vobis, or mandamus. The thrust of peitioner’s claim is he is entitled to relief based
on new evidence (his conditions) he only became aware of well after trial.

       Article 73, UCMJ, provides the statutory authority for this Article I court to
provide relief based on evidence discovered after trial. However, Article 73, UCMJ,
establishes a fixed two-year period to file petitions for a new trial. 2 We have found
no authority for this Article I court to allow for equitable tolling of the two-year
limitation. Additionally, as the All Writs Act does not expand our jurisdiction, we
cannot apply the All Writs Act in a manner that avoids the statutory limitation set
out by Congress. See, e.g., United States v. LaBella, 75 M.J. 52, 54-55 (C.A.A.F.
2015) (holding the Court of Criminal Appeals erred in allowing for equitable tolling
of jurisdictional filing deadline).

       Our superior court has, on at least one occasion, considered an application for
relief based on new evidence that was not filed within the two-year limit set out by
Article 73. See United States v. Luke, (Luke I), 63 M.J. 60, 63 (C.A.A.F. 2006);
United States v. Luke, (Luke II), 69 M.J. 309 (C.A.A.F. 2011). However, this case is
distinguishable for at least two reasons. First, Luke I and Luke II were appeals in
which new evidence was considered while the case remained on direct appeal.
Second, three judges concluded (though never as a majority in one opinion) the court
was prohibited from considering petitioner’s claim because it was either time barred
or was without jurisdiction. 3


2
 In the National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-
328, § 5336, 130 Stat. 2000, 2937 (2016), Congress amended the time period to three
years so as to align military with federal civilian practice. Compare Article 73,
UCMJ, with Fed. R. Crim. Proc. 33(b).
3
  In Luke I, Judge Erdman dissented from the CAAF’s decision because he found
appellant’s supplemental assignment of error was time-barred by Article 73, UCMJ.
63 M.J. at 63-64. By the time the case returned to the CAAF five years later, Judge
Ryan and Judge Stucky had joined the court. Both agreed the CAAF in Luke I
should not have ordered the fact-finding hearing because either the new issue was
time-barred (J. Ryan) or the court lacked jurisdiction (J. Stucky). 69 M.J. at 321-22.
However, in Luke II both Judge Ryan (explicitly in Luke II) and Judge Erdman

                                                                       (continued . . .)


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ROBERTS—ARMY MISC. 20180005


       If this court cannot hear a claim on direct appeal (either because it is time
barred or the court lacks jurisdiction), consideration of the same claim framed as a
writ petition would not be in furtherance of our jurisdiction under Article 73, UCMJ.

      Accordingly, we hold we do not have jurisdiction under the All Writs Act to
consider petitioner’s claims.

                                  CONCLUSION

      The petition for extraordinary relief is DISMISSED.

      Senior Judge MULLIGAN and Judge FEBBO concur.

                                       FOR THE COURT:



                                       JOHN P. TAITT
                                       Deputy Clerk of Court




(. . . continued)
(implicitly by his dissent in Luke I) found themselves bound by the law of the case
established in Luke I. 69 M.J. at 322. Thus, while three judges of the CAAF in Luke
II would have seen the Luke appellant’s claim for relief based on new evidence as
prohibited, no majority of the court ever said so; indeed the majority opinions in
Luke I and Luke II did not address the matter.




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