       UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS



UNITED STATES,                               )                Misc. Dkt. No. 2014-05
                    Respondent               )                (ACM S32018)
                                             )
             v.                              )
                                             )                ORDER
Airman First Class (E-3)                     )
BRIAN C. KATES,                              )
USAF,                                        )
                    Petitioner               )                Panel No. 3


       The petitioner requested extraordinary relief on 9 May 2014 in the nature of a writ
of error coram nobis. The petitioner asks this Court to grant new appellate review of his
court-martial conviction under Article 66, UCMJ, 10 U.S.C. § 866.

                                      Background

       The petitioner was convicted at a special court-martial in December 2011 of
wrongful use and distribution of marijuana, and violation of a lawful order on divers
occasions by using spice, in violation of Articles 92 and 112a, UCMJ, 10 U.S.C. §§ 892,
912a. He was sentenced to a bad-conduct discharge, confinement for 100 days, forfeiture
of $978.00 pay per month for 3 months, and reduction to E-1.

       On 25 January 2013, The Judge Advocate General of the Air Force appointed
Mr. Laurence M. Soybel to the position of appellate military judge on the Air Force
Court of Criminal Appeals pursuant to Article 66(a), UCMJ, 10 U.S.C. § 866(a). At the
time of this appointment, Mr. Soybel, a retired Air Force officer and former appellate
military judge, was serving as a civilian litigation attorney in the Department of the
Air Force. On 25 June 2013, the Secretary of Defense, “[p]ursuant to [his] authority
under title 5, United States Code, section 3101 et seq.,” issued a memorandum that
“appoint[ed] Mr. Laurence M. Soybel, a civilian employee of the Department of the
Air Force, to serve as appellate military judge on the Air Force Court of Criminal
Appeals.” Memorandum from Sec’y of Def. Chuck Hagel for Sec’y of the Air Force Eric
Fanning (25 June 2013).

       The petitioner raised four assignments of error to this Court on 27 August 2012,
before Mr. Soybel was appointed to the Court. On 26 September 2012, the case was
joined, and we issued a decision on 10 July 2013 that found no basis for relief in the
appellant’s assigned errors. We therefore affirmed the findings and sentence. Mr. Soybel
took part in the decision, pursuant to the purported appointment by the Secretary of
Defense. See United States v. Kates, ACM S32018 (A.F. Ct. Crim. App. 10 July 2013)
(unpub. op.). The petitioner sought review of our decision from our superior court, the
United States Court of Appeals for the Armed Forces on 9 September 2013. The
appellant’s petition did not raise the issue of Mr. Soybel’s participation in the decision,
and on 17 October 2013, our superior court denied the petition for grant of review.
United States v. Kates, 73 M.J. 84 No. 14-0017/AF (Daily Journal 17 October 2013).
The appellant’s bad-conduct discharge was subsequently executed.

       On 15 April 2014, our superior court issued a decision in another case, ruling that
the Secretary of Defense did not have the legislative authority to appoint appellate
military judges under the Constitution’s Appointments Clause, * and therefore his
appointment of Mr. Soybel to this Court was “invalid and of no effect.” United States v.
Janssen, 73 M.J. 221, 225 (C.A.A.F. 2014). The petition for extraordinary relief in the
instant case followed. In a short submission, the petitioner contends he was denied
proper Article 66, UCMJ, review by virtue of Mr. Soybel’s participation in the decision,
and therefore this Court should issue the writ. The Government opposes the petition for
extraordinary relief.

                                           Law

      “Courts-martial are . . . subject to collateral review within the military justice
system.” Denedo v. United States (Denedo I), 66 M.J. 114, 119 (C.A.A.F. 2008), aff’d
and remanded, United States v. Denedo (Denedo II), 556 U.S. 904 (2009). This Court is
among the courts authorized under the All Writs Act to issue all “writs necessary or
appropriate in aid of their respective jurisdictions.” 28 U.S.C. § 1651(a); LRM v.
Kastenberg, 72 M.J. 364, 367 (C.A.A.F. 2013).

        A petition for extraordinary relief under the All Writs Act requires this Court to
make two determinations: (1) whether the requested writ is “in aid of” this Court’s
existing jurisdiction; and (2) whether the requested writ is “necessary or appropriate.”
LRM, 72 M.J. at 367-68. Concerning the first determination, the “express terms” of the
All Writs Act “confine [our] power to issuing process ‘in aid of’ [our] existing statutory
jurisdiction; the Act does not enlarge that jurisdiction.” Clinton v. Goldsmith,
526 U.S. 529, 534-35 (1999) (citations omitted). Therefore, the All Writs Act is not an
independent grant of appellate jurisdiction, and it cannot enlarge a court’s jurisdiction.
Id. Likewise, the Act does not grant this Court authority “to oversee all matters arguably
related to military justice, or to act as a plenary administrator even of criminal judgments
it has affirmed.” Id. at 536. However:



*
    U.S. CONST. art. II, § 2, cl. 2.

                                             2                           Misc. Dkt. No. 2014-05
       [W]hen a petitioner seeks collateral relief to modify an action that was
       taken within the subject matter jurisdiction of the military justice system,
       such as the findings or sentence of a court-martial, a writ that is necessary
       or appropriate may be issued under the All Writs Act “in aid of” the court’s
       existing jurisdiction.

Denedo I, 66 M.J. at 120.

       Concerning the second determination, a writ is not “necessary or appropriate” if
another adequate legal remedy is available. See Goldsmith, 426 U.S. at 537 (holding that
even if our superior court had some jurisdictional basis to issue a writ of mandamus, such
writ was unjustified as necessary or appropriate in light of alternative remedies available
to a servicemember demanding to be kept on the rolls). See also Denedo I, 66 M.J. at
121 (citing Loving v. United States, 62 M.J. 235, 253-54 (C.A.A.F. 2005)).

       A writ of error coram nobis may be utilized to “remedy an earlier disposition of a
case that is flawed because the court misperceived or improperly assessed a material
fact.” McPhail v. United States, 1 M.J. 457, 459 (C.M.A. 1976). Coram nobis
encompasses constitutional and other fundamental errors, including the denial of
fundamental rights accorded by the UCMJ. Garrett v. Lowe, 39 M.J. 293, 295 (C.M.A.
1994); United States v. Bevilacqua, 39 C.M.R. 10, 12 (C.M.A. 1968). This writ authority
extends past the point at which a court-martial conviction becomes final under
Article 76, UCMJ, 10 U.S.C. § 876. Denedo I, 66 M.J. at 121-25. However, coram nobis
“should only be used to remedy ‘errors of the most fundamental character.’” Loving,
62 M.J. at 252-53 (quoting United States v. Morgan, 346 U.S. 502, 512 (1954)). In order
to obtain a writ of error coram nobis, a petitioner must meet the following “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
       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 I, 66 M.J. at 126. If the petitioner meets these threshold requirements for a writ
of error coram nobis, this Court may consider issuing the writ, keeping in mind that “the
petitioner must establish a clear and indisputable right to the requested relief.” Id. (citing
Cheney v. United States Dist. Court, 542 U.S. 367, 381 (2004)).



                                              3                           Misc. Dkt. No. 2014-05
                                         Discussion

       We answer in the affirmative the threshold questions of whether the requested writ
is “in aid of” our existing jurisdiction and whether the requested writ is “necessary or
appropriate.” However, we hold that the petitioner is not entitled relief under the
“stringent threshold requirements” established for issuance of the writ of error coram
nobis.

       The petitioner elected not to raise the issue of Mr. Soybel’s participation in this
matter, either to this Court or in his petition for grant of review to our superior court. He
elected not to raise this issue even though the Secretary of Defense’s purported
appointment of Mr. Soybel took place about two weeks prior to our decision and about 10
weeks before he petitioned our superior court for review. By 9 September 2013, when
the appellant petitioned our superior court, the issue of Secretary Hagel’s appointment of
Mr. Soybel was very much at issue in appellate litigation. For example, the Janssen
decision notes that the appellant in that case moved this Court to vacate our decision on
16 August 2013, asserting that the Secretary of Defense lacked the statutory authority to
appoint Mr. Soybel. Janssen, 73 M.J. at 223. The petitioner’s summary pleading
provides no valid reasons why he did not seek relief on this matter earlier or any proffer
as to why the issue of Mr. Soybel’s appointment could not have been discovered through
the exercise of reasonable diligence prior to the completion of appellate review in this
matter. Therefore, the petitioner has not met the requirements for the issuance of the
writ.

       In addition, the de facto officer doctrine indicates the petitioner has not established
a clear and indisputable right to the requested relief. The de facto officer doctrine
“confers validity upon acts performed by a person acting under the color of official title
even though it is later discovered that the legality of [his] appointment . . . to office is
deficient.” Ryder v. United States, 515 U.S. 177, 180 (1995). In United States v.
Carpenter, 37 M.J. 291 (C.M.A. 1993), cert. granted, judgment vacated, 515 U.S. 1138
(1995), our superior court initially applied the doctrine where the appointment of the
Chief Judge of the Coast Guard Court of Military Review was later determined to not
satisfy the Appointments Clause of the Constitution. In Ryder, the Supreme Court
refused to apply the doctrine in another Coast Guard case, because the petitioner in that
case challenged the composition of the Court while his case was pending before that
Court on direct review. Ryder, 515 U.S. at 182. The Court held:

       We think that one who makes a timely challenge to the constitutional
       validity of the appointment of an officer who adjudicates his case is entitled
       to a decision on the merits of the question and whatever relief may be
       appropriate if a violation indeed occurred. Any other rule would create a
       disincentive to raise Appointments Clause challenges with respect to
       questionable judicial appointments.

                                              4                           Misc. Dkt. No. 2014-05
Id. at 182-83. The Janssen Court followed this Ryder rationale in declining to apply the
de facto officer doctrine, because Senior Airman Janssen had raised the issue of
Mr. Soybel’s appointment to this Court in a motion to vacate after the decision was
issued listing Mr. Soybel as a judge on the panel. Janssen, 73 M.J. at 225-26. Here,
however, the petitioner made no effort to raise this issue to the attention of either this
Court or our superior court despite a meaningful opportunity to do so. Therefore, the
de facto officer doctrine applies and the petitioner is not entitled to the requested relief.

        Despite the fact that the petitioner has not demonstrated a basis to issue the writ, a
panel of three properly-appointed judges on this Court has conducted a fresh review of
the record of trial following the receipt of the petition for extraordinary relief. We fully
reviewed the record of trial, the appellant’s four assignments of error initially raised to
this Court, and the appellant’s supplemental arguments to his assignments of error
attached to the petition for extraordinary relief. We took this extra step to ensure the
petitioner received the full benefit of his rights under Article 66, UCMJ, and to promote a
system of appellate review that is fair in reality and appearance. We independently
conclude that the petitioner is not entitled to relief, the conviction is correct in law and
fact, and the adjudged and approved sentence is appropriate.

                                         Conclusion

       The petitioner has 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 17th day of June, 2014,

ORDERED:

       The Petition for Extraordinary Relief in the Nature of a Writ of Error Coram Nobis
is hereby DENIED.

Senior Judge Marksteiner, Judge Mitchell, and Judge Weber participated in this matter.



              FOR THE COURT


              LAQUITTA J. SMITH
              Appellate Paralegal Specialist




                                               5                          Misc. Dkt. No. 2014-05
