                                  IN THE CASE OF



                          UNITED STATES, Appellee

                                          v.

                     Guillermo A. DOUGLAS, Corporal
                      U.S. Marine Corps, Appellant

                                   No. 01-0242
                         Crim. App. No. 200000569

       United States Court of Appeals for the Armed Forces

                           Argued October 4, 2001

                        Decided December 10, 2001

     EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE and BAKER, JJ., and SULLIVAN, S.J.,
joined.


                                      Counsel


For Appellant: Lieutenant Thomas P. Belsky, JAGC, USNR
(argued); Captain John A. Fabian, JAGC, USNR, Lieutenant Hardy
Vieux, JAGC, USNR, and Lieutenant Amanda St.Claire, JAGC, USNR
(on brief).


For Appellee: Major Robert M. Fuhrer, USMC (argued); Commander
Peter A. Dutton, JAGC, USN (on brief); Colonel Marc M. Fisher,
Jr., USMC, and Lieutenant Commander Philip Sundel, JAGC, USNR.


Military Judge:     S.A. Jamrozy




          THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Douglas, No. 01-0242/MC




    Judge EFFRON delivered the opinion of the Court.

    A special court-martial composed of a military judge sitting

alone convicted appellant, contrary to his pleas, of three

specifications of making false official statements, in violation

of Article 107, Uniform Code of Military Justice, 10 USC § 907.

He was sentenced to a bad-conduct discharge, confinement for

thirty days, and reduction to the pay grade of E-1.            The

convening authority approved confinement for ten days, the bad-

conduct discharge, and reduction to pay grade E-1, and the Court

of Criminal Appeals affirmed in an unpublished opinion.

      On appellant’s petition, we granted review of the following

issue:

            WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
            APPEALS ACTED UNREASONABLY, ARBITRARILY, AND CONTRARY
            TO THE JURISPRUDENCE OF THIS COURT BY DENYING
            APPELLATE DEFENSE COUNSEL THE OPPORTUNITY TO FILE A
            MOTION FOR RECONSIDERATION, WHERE THE ERRORS
            IDENTIFIED BY APPELLANT HAD NOT BEEN PREVIOUSLY
            ASSERTED ON HIS BEHALF.

For the reasons set forth below, we affirm.1


1
  The Government has moved to dismiss appellant’s petition as untimely filed,
and to attach certain documents in support of the motion to dismiss. See
Art. 67(b), UCMJ, 10 USC § 867(b) (providing that an accused may petition for
grant of review within sixty days of actual or constructive service of the
Court of Criminal Appeals decision). In United States v. Byrd, 53 MJ 35, 40
(2000), which was issued six months before the pertinent events in the
present case, we rejected a similar contention on the grounds that the
Government had failed to document properly the actions necessary to
demonstrate constructive service. The record of proceedings in the present
case is similarly flawed. Accordingly, we shall not revisit our decision to
grant review in the present case. The Government's motion to attach is
granted. The motion to dismiss is denied.


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United States v. Douglas, No. 01-0242/MC


                          I.   BACKGROUND


     Appellant’s case was docketed at the Navy-Marine Corps

Court of Criminal Appeals on May 3, 2000.    Appellate defense

counsel submitted a request for review by the Court of Criminal

Appeals on September 28, 2000, without specific assignments of

error.   The court affirmed the findings and sentence in an

unpublished opinion on October 16, 2000.    On December 4, 2000,

appellate defense counsel filed a Motion for Leave to Enlarge

Time to File a Motion for Reconsideration.    The motion stated

that “Appellant notes that he has issues that he would like to

raise for the Court’s consideration that he was unable to

discuss with his appellate counsel.”   The motion also informed

the court that new appellate counsel would be assigned to the

case and would need time to research the motion for

reconsideration.   The motion did not describe the nature of the

issues of concern to appellant, nor did it set forth any reasons

why appellant had been unable to discuss such matters with his

appellate counsel.   The court denied the motion on December 12,

2000.

     Two weeks later, on December 18, 2000, appellate defense

counsel filed a Motion for Reconsideration for Leave to Enlarge

Time to File a Motion for Reconsideration.    The motion simply




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United States v. Douglas, No. 01-0242/MC


stated “Appellant notes that he has issues that he would like to

raise for the Court’s consideration that he was unable to

discuss with his appellate counsel.”         The court denied the

second motion on January 12, 2001.



          II.   DENIAL OF THE MOTION FOR ENLARGEMENT OF TIME


      A party may request reconsideration of a decision by the

Navy-Marine Corps Court of Criminal Appeals “within 30 calendar

days after counsel’s receipt of the decision, or upon motion or

suggestion by appellant within 30 calendar days after

appellant’s receipt of the decision[.]”          Rule 4-8.4, Navy-Marine

Corps Court of Criminal Appeals Rules of Practice and Procedure

(NMCCA Rules).     In the present case, the thirty-day period

expired on December 4, 2000, the date on which the motion was

filed.2   The request was untimely, however, because a motion for

enlargement of time must be filed with that court “at least 7

calendar days before the filing is due to permit the opposing

party to register opposition and the Court to give timely

consideration.”     NMCCA Rule 4-8.1.      For purposes of this appeal,

we shall assume that the Court of Criminal Appeals had

discretion to suspend the timeliness requirements concerning


2
  Although we do not rely on the undated certificate of service found in the
record of trial to establish the beginning of the thirty-day period,
appellant concedes in his brief that he received notice of the decision on
November 4, 2000.


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United States v. Douglas, No. 01-0242/MC


appellant’s request.    See Rule 25, Courts of Criminal Appeals

New Rules of Practice and Procedure (permitting suspension of

the rules governing the Courts of Criminal Appeals). 44 MJ LXXV

(1996).    The question before us is whether the court erred in

denying appellant’s December 4 motion for an extension of time

and his December 18 motion for reconsideration of that matter.

Denial of a motion for extension of time is reviewed for an

abuse of discretion.    Buchanan v. Sherrill, 51 F.3d 227, 228

(10th Cir. 1995).

     In the military justice system, if an “accused specifies

error in his request for appellate representation or in some

other form, the appellate defense counsel will, at a minimum,

invite the attention of the [Court of Criminal Appeals] to those

issues[.]”    United States v. Grostefon, 12 MJ 431, 436 (CMA

1982).    The Court of Criminal Appeals must, “at a minimum,

acknowledge that it has considered those issues enumerated by

the accused and its disposition of them.”    Id.   We have

repeatedly emphasized, however, that the generous protections

afforded by Grostefon do not obviate normal rules of appellate

practice.    See, e.g., United States v. Healy, 26 MJ 394, 397

(CMA 1988) (“Grostefon did not signal abolition of basic rules

of appellate practice and procedure”).

     Appellant’s December 4, 2000, motion for an extension of

time placed before the court below nothing more than a vague


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United States v. Douglas, No. 01-0242/MC


allegation that appellant had “issues that he would like to

raise for the Court’s consideration that he was unable to

discuss with his appellate counsel.”   The motion did not

identify with specificity the issues appellant wished to present

to the court.   Moreover, the motion did not offer an explanation

as to why such issues were not raised in the original

submission, such as ineffectiveness of his original appellate

defense counsel.   Under these circumstances, the Court of

Criminal Appeals did not abuse its discretion in denying the

motion for an extension of time.

     In the fourteen days between appellant’s first motion and

the request for reconsideration filed on December 18, 2000, the

new appellate defense counsel had ample opportunity to

communicate with his client, gain a sufficient understanding of

the issues, and prepare an appropriate filing for the court.

The motion for reconsideration, however, was as vague as the

initial motion.

     The burden is on appellant to file pleadings that

articulate specific issues under Grostefon or to otherwise

articulate a colorable claim that his rights under Grostefon are

not being protected.   The filings in the present case are

deficient in both regards.   Under these circumstances, the Court

of Criminal Appeals did not abuse its discretion in denying both

the initial motion and the motion for reconsideration.


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United States v. Douglas, No. 01-0242/MC


        Although not part of our decision, we note that the

decision by the Court of Criminal Appeals did not terminate

appellant’s right to appellate review.            Under Article 67(a)(3),

UCMJ, 10 USC § 867(a)(3), appellant had the right to file a

petition for review with our Court, and to demonstrate that

there was good cause for reviewing alleged errors at trial or on

appeal.      Appellant exercised that right and filed a total of

seven issues for our consideration.3           We determined that he

established good cause for review as to only one issue, the

issue under consideration in the present opinion.              55 MJ 165

(2001). We note in particular that appellant’s petition

supplement raised two ineffective assistance of counsel issues

under Grostefon, pertaining to trial defense counsel and

appellate defense counsel.         Each assertion consisted of a single


3
    Appellant’s supplement included the following issues:
           I. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ACTED
        UNREASONABLY, ARBITRARILY, AND CONTRARY TO THE JURISPRUDENCE OF THIS
        COURT BY DENYING APPELLATE DEFENSE COUNSEL THE OPPORTUNITY TO FILE A
        MOTION FOR RECONSIDERATION, WHERE THE ERRORS IDENTIFIED BY APPELLANT
        HAD NOT BEEN PREVIOUSLY ASSERTED ON HIS BEHALF.
           II. WHETHER THE EVIDENCE IS INSUFFICIENT TO SUPPORT APPELLANT’S
        CONVICTION FOR FALSE OFFICIAL STATEMENT.
           III. WHETHER THE MILITARY JUDGE ERRED WHEN HE ALLOWED THE
        INTRODUCTION OF TESTIMONY TO PROVE THE CONTENTS OF A REQUEST CHIT THAT
        WAS NOT INTRODUCED INTO EVIDENCE AND WHICH RESULTED IN APPELLANT’S
        CONVICTION OF SPECIFICATION 1 OF CHARGE I.
           IV. WHETHER THE CONVENING AUTHORITY’S ACTION, BASED IN PART ON THE
        CONVENING AUTHORITY’S CONSIDERATION OF A PRETRIAL AGREEMENT THAT DID
        NOT EXIST, MUST BE SET ASIDE.
           V. WHETHER A SENTENCE THAT INCLUDES AN UNSUSPENDED BAD-CONDUCT
        DISCHARGE IS INAPPROPRIATELY SEVERE FOR THIS APPELLANT.
           VI. WHETHER APPELLANT’S TRIAL DEFENSE COUNSEL DENIED HIM THE
        OPPORTUNITY TO TESTIFY ON HIS BEHALF DURING THE FINDINGS PORTION OF THE
        COURT-MARTIAL.
           VII. WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE
        DEFENSE COUNSEL.


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United States v. Douglas, No. 01-0242/MC


sentence, and the petition supplement was devoid of any

supporting details.   Appellant’s filing was insufficient to

establish good cause for review, given the requirement to allege

both the manner in which counsel’s performance deprived

appellant of the assistance of counsel and the resultant

prejudice.   See United States v. McConnell, 55 MJ 479, 481

(2001), citing Strickland v. Washington, 466 U.S. 668 (1984).



                         III.   CONCLUSION


     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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