           U NITED S TATES N AVY –M ARINE C ORPS
               C OURT OF C RIMINAL A PPEALS
                           _________________________

                               No. 200300527
                           _________________________

                               JAMES B. DIGGS
       Aviation Electronics Technician Third Class (E -4), U.S. Navy
                                Petitioner
                                    v.

                                UNITED STATES
                                   Respondent
                             _________________________

  Review of Petition for Extraordinary Relief in the Nature of a Writ
                         of Error Coram Nobis

                   Sentence Adjudged: 16 July 2001.
     Convening Authority: Commander, U.S. Naval Forces, Marianas,
                    U.S. Naval Activities, Guam.
                For Petitioner: James B. Diggs, pro se.
                        _________________________

                             Decided 28 March 2017
                             _________________________

               Before G LASER -A LLEN , M ARKS , AND F ULTON ,
                          Appellate Military Judges
                           _________________________

This opinion does not serve as binding precedent, but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
                        _________________________

   GLASER-ALLEN, Chief Judge:
    The petitioner has submitted a petition of writ of error coram nobis. He
argues that: (1) we should retroactively apply United States v. Jones, 68 M.J.
465 (C.A.A.F. 2010), which requires the use of the elements test to determine
whether one offense is a lesser included offense (LIO) of another, and (2) if Jones
is retroactively applied, his convictions for indecent assault, in violation of
Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 932, should
be set aside and substituted with the permissible LIO of assault consummated
                       Diggs v. United States, No. 200300527


by a battery, in violation of Article 128, UCMJ, 10 U.S.C. § 928. We hold that
petitioner is not entitled to coram nobis relief.
                                I. JURISDICTION
    The All Writs Act empowers this Court to issue “all writs necessary or
appropriate in aid of [our] . . . jurisdiction[] and agreeable to the usages and
principles of law.” 28 U.S.C. § 1651(a). The Supreme Court has declared that
writs of coram nobis may be issued to correct factual and legal errors of the most
fundamental character, to include violations of constitutional rights. Unites
States v. Denedo, 556 U.S. 904, 911 (2009). Therefore, we conclude that we have
jurisdiction to consider the petition for extraordinary relief in this case.
                                II. BACKGROUND
    On 16 July 2001, a military judge sitting alone as a general court-martial
convicted the petitioner, pursuant to his pleas, of one specification of assault
and two specifications of indecent assault, in violation of Articles 128 and 134,
UCMJ, 10 U.S.C. §§ 928 and 934. The petitioner was sentenced to a bad-conduct
discharge (BCD), confinement for seven months, forfeiture of all pay and
allowances for seven months, and reduction to pay grade E-1. A pretrial
agreement (PTA) had no effect on the sentence. The convening authority (CA)
approved the sentence as adjudged. As a result of the indecent assault
convictions, the petitioner was required by state law to register as a sex
offender.
    On direct appeal the petitioner claimed, among other errors, that his guilty
plea to simple assault was improvident. On 10 November 2005, we set aside the
guilty finding for simple assault and affirmed the remaining findings of guilty.
We reassessed the sentence and affirmed only the bad-conduct discharge and
reduction to pay grade E-1. United States v. Diggs, No. 200300527, 2005 CCA
LEXIS 357, unpublished op. (N-M. Ct. Crim. App. 10 Nov 2005).
    The petitioner now contends his pleas were not knowing and voluntary. In
accordance with the PTA, the petitioner pled not guilty to two specifications of
rape, but guilty to the LIOs of indecent assault. The petitioner argues that
because indecent assault is not an LIO of rape, and because he would not have
pleaded guilty to indecent assault had he known that it was not an LIO of rape,
his pleas of guilty to indecent assault were improvident. He therefore requests
this court set aside his convictions for indecent assault and substitute
convictions for assault consummated by a battery.
                                III. DISCUSSION
   A writ of error coram nobis is extraordinary relief available only under
exceptional circumstances where an error is based upon facts that were not
apparent to the court during the original consideration of the case and that may


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                       Diggs v. United States, No. 200300527


change the result. United States v. Frischholz, 36 C.M.R. 306, 309 (C.M.A.
1966). The alleged error must be “of the most fundamental character, that is,
such as rendered the proceeding itself irregular and invalid.” United States v.
Morgan, 346 U.S. 502, 509 n.15 (1954) (citations and internal quotation marks
omitted); see also Aviz v. Carver, 36 M.J. 1026, 1028 (N.M.C.M.R. 1993) (noting
that a writ “is a drastic remedy that should be used only in truly extraordinary
situations”). The petitioner bears the burden of showing a “clear and
indisputable right” to the extraordinary relief requested. United States v.
Denedo, 66 M.J. 114, 126 (C.A.A.F. 2008) (citing Cheney v. United States Dist.
Ct., 542 U.S. 367, 381 (2004)), aff’d, 556 U.S. 904 (2009). See also Ponder v.
Stone, 54 M.J. 613, 616 (N-M. Ct. Crim. App. 2000); Aviz, 36 M.J. at 1028.
    To prevail, the petitioner must meet six stringent 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 could not
have been discovered through 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 still exist. Denedo, 66 M.J. at 126-27.
The petitioner has not met his burden. We find that the petitioner has provided
no reason to disturb his pleas of guilty to indecent assault, which a military
judge determined, via providence inquiry, were intelligently and voluntarily
made.
A. Jones and its retroactive application
    The petitioner correctly notes that indecent assault is no longer considered
an LIO of rape. At the time of the petitioner’s court-martial however, courts
relied on Part IV of the MANUAL FOR COURTS-MARTIAL (MCM), UNITED STATES
(2000 ed.), which provided practitioners with a list of LIOs associated with each
offense. If the MCM listed one offense as an LIO of another, the lesser offense
was embraced in a specification alleging the greater offense and ¶ 45d(1)(c)
listed “Article 134—indecent assault” as a “[l]esser included offense[]” of rape
under Article 120, UCMJ.
     But in 2010—five years after the petitioner’s case became final—new case
law changed how practitioners determine whether one offense is an LIO of
another. In Jones, our superior court decided that LIOs “must be determined
with reference to the elements defined by Congress for the greater offense.” 68
M.J. 471. Not every LIO listed in Part IV met this more stringent “elements”
test. Shortly after it decided Jones, the Court of Appeals for the Armed Forces
(C.A.A.F.) applied the elements test to specifically hold that indecent assault
was not an LIO of rape. United States v. Burleson, 69 M.J. 165 (C.A.A.F. 2010).
The petitioner now argues that by accepting his pleas of guilty to indecent


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                       Diggs v. United States, No. 200300527


assault, the military judge committed error of such a fundamental character
that it requires the extraordinary remedy he requests. We disagree.
    Normally a case may be applied retroactively only if it either (1) creates a
new substantive rule of criminal law that alters the range of conduct or the class
of persons that the law punishes; or (2) modifies the elements of an offense. See
Bousley v. United States, 523 U.S. 614, 620-21 (1998). “This includes decisions
that narrow the scope of a criminal statute by interpreting its terms, as well as
constitutional determinations that place particular conduct or persons covered
by the statute beyond the State’s power to punish.” Schriro v. Summerlin, 542
U.S. 348, 351-52 (2004) (internal citations omitted). The rationale for applying
these sorts of changes retroactively is that such changes would otherwise
“necessarily carry a significant risk that a defendant stands convicted of an act
that the law does not make criminal or faces a punishment that the law cannot
impose upon him.” Id. at 352 (citations and internal quotation marks omitted).
    The Court’s decision in Jones represented a procedural change in the law—
not a substantive one. Jones did not make any act non-criminal that had been
criminal, nor did it forbid any punishment that could have been imposed on the
petitioner at the time of his trial. Rather, it simply changed the way in which
practitioners of military justice determine whether one offense is a lesser
included offense of another. Procedural changes are only implemented
retroactively when they “implicat[e] the fundamental fairness and accuracy of
the criminal proceeding.” Summerlin, 542 U.S. at 352 (citations and internal
quotation marks omitted). The changes brought about by Jones do not speak to
the fundamental fairness or accuracy of the petitioner’s proceeding.
B. Structural error and notice
    Even if we were to apply Jones to the petitioner’s case, we would not grant
relief, as there was no fundamental error affecting the structure of the case or
lack of notice to the petitioner. No structural error affected the trial making it
unreliable or fundamentally unfair. As noted in United States v. McMurrin,
“[s]tructural errors are those constitutional errors so affect[ing] the framework
within which the trial proceed[s], that the trial cannot reliably serve its function
as a vehicle for determination of guilt or innocence[.]” 70 M.J. 15, 19 (C.A.A.F.
2011) (internal citations and quotation marks omitted) (alterations in original).
    The petitioner had ample notice of what he was pleading guilty to, even
though everyone involved in his proceeding believed that indecent assault was
an LIO of rape. In this connection, we find it particularly useful to look to those
cases in which an appellant pleaded guilty to a non-Jones-compliant LIO before
Jones was decided, but who were able to have their direct appeals decided in
light of Jones. What we learn from those cases is that, even when subjected to
the non-extraordinary standards of a direct appeal, appellants who pleaded



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guilty erroneously to offenses they thought were LIOs were not prejudiced by
their misapprehension.
    In United States v. Ballan, the appellant pleaded not guilty to rape of a
child, but guilty to indecent acts with a child, an offense the parties erroneously
believed to be an LIO. 71 M.J. 28, 31 (C.A.A.F. 2012). On direct appeal, Ballan
argued that the military judge erred by accepting his plea. The C.A.A.F.
declined to disturb the guilty plea. Id. at 34. The Ballan court held that in the
context of a specification that was legally sufficient at the time of trial, and to
which a plea of guilty was entered and accepted, courts should simply ascertain
whether “the providence inquiry clearly delineates each element of the offense,”
shows “that the appellant understood” what offense he was pleading guilty to,
and demonstrates that he understood the “legal theory” underlying his pleas. Id.
(citation and internal quotation marks omitted).
    Because a pre-Jones providence inquiry provides a sufficient guarantee on
direct appeal that an appellant’s pleas are knowing and voluntary, even after
Jones, we are confident that such a case does not justify an extraordinary
remedy after the case is final. As demonstrated in the pleadings, at the time of
trial there was a meeting of the minds in that all parties understood the
agreement, and the petitioner received the benefit of his bargain by pleading to
indecent assault instead of rape, in return for sentencing protection. The
petitioner knowingly and intelligently pleaded guilty under the terms of a valid
PTA. We will not disturb his plea now.
                                IV. CONCLUSION
   The petitioner has failed to demonstrate a clear and indisputable right to the
extraordinary relief he has requested. Accordingly, the petition is denied.
   Senior Judge MARKS and Judge FULTON concur.
                                        For the Court


                                        R.H. TROIDL
                                        Clerk of Court




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