

   
   
   
   U.S. v. Byrd



IN THE CASE OF
UNITED STATES, Appellee
v.
Derreck D. BYRD, Jr., Hospital Corpsman Third
Class
U.S. Navy, Appellant
 
No. 99-5003
Crim. App. No. 95-0907
 
United States Court of Appeals for the Armed
Forces
Argued January 11, 2000
Decided May 17, 2000

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


Counsel
For Appellant: Commander Richard W. Bagley,
JAGC, USN (argued); Lieutenant Frank M. Doherty, JAGC, USNR (on
brief).
For Appellee: Lieutenant Commander JoAnn
W. Melesky, JAGC, USN (argued); Colonel Kevin M. Sandkuhler,
USMC, and Commander Eugene E. Irvin, JAGC, USN (on brief); Lieutenant
James E. Grimes, JAGC, USNR.
Military Judge: Thomas P. Tielens
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.


Judge EFFRON delivered the opinion of the Court.
The Uniform Code of Military Justice provides
that our Court "shall review the record in . . . all cases reviewed by
a Court of Criminal Appeals in which, upon petition of the accused and
on good cause shown," we have granted review. Art. 67(a)(3), UCMJ, 10 USC
§ 867(a)(3). In the present case, after the Court of Criminal Appeals
affirmed his court-martial conviction, appellant petitioned our Court to
consider the constitutional and statutory questions raised by his allegations
of ineffective assistance by trial defense counsel. The Government, which
filed a general opposition on the merits, raised no procedural objection
to appellant's petition. We granted review, 47 MJ 71 (1997), received briefs
from both parties, and conducted oral argument. Subsequently, we remanded
the case to the Court of Criminal Appeals for a determination as to whether
a fact-finding proceeding was needed under United States v. Ginn,
47 MJ 236 (1997), to resolve the ineffective assistance of counsel issue.
49 MJ 172 (1998).
A year after our order, without addressing
the issue specified in our remand, the Court of Criminal Appeals terminated
appellate review based upon that court's conclusion that appellant had
not complied with applicable filing requirements in his initial petition
to our Court. 50 MJ 754 (1999). The Judge Advocate General has certified
the case, requesting that we review the correctness of that ruling. 52
MJ 290-91 (1999); see Art. 67(a)(2).

I. BACKGROUND - PETITIONS FOR REVIEW
A. Article 67
Substantial public criticism of the military
justice system in the aftermath of World War II, focusing primarily on
the degree of command control over the system, led to the Uniform Code
of Military Justice, which included the legislation that established our
Court. Act of May 5, 1950, ch. 169, 64 Stat. 107; see S. Rep. No.
486, 81st Cong., 1st Sess. 3-6 (1949).
In its report on the legislation, the House
Armed Services Committee stressed the critical role that an independent
civilian tribunal would play in fostering public confidence in the fairness
of the military justice system:

Article 67 contains the most revolutionary
changes which have ever been incorporated in our military law. Under existing
law all appellate review is conducted solely within the military departments.
This has resulted in widespread criticism by the general public, who, with
or without cause, look with suspicion upon all things military and particularly
on matters involving military justice. Every Member of Congress, both present
and past, is well aware of the validity of this statement. The [court established
under Article 67] . . . is to be a judicial tribunal and to be the court
of last resort for court-martial cases, except for the constitutional right
of habeas corpus . . . .

H.R. Rep. No. 491, 81st Cong., 1st Sess. 6-7 (1949).
As originally enacted, Article 67(c) of the
Uniform Code of Military Justice provided that the accused had 30 days
to file a petition with this Court after receiving notice of a decision
of the court below. 64 Stat. 129. Under the statute, actual notice to the
accused was required before the time period would begin to run.
Over time, the Department of Defense identified
two concerns with the actual-notice requirement. First, to the extent that
servicemembers were retained on duty in order to facilitate actual notice,
they became a source of disciplinary problems. Second, to the extent that
servicemembers were permitted to take appellate leave but failed to keep
their units informed of changes in address, there were significant difficulties
in meeting the actual-notice requirement. If a servicemember did not receive
actual notice, appellate review could not be completed, which meant that
a punitive discharge, if warranted, could not be executed.
The Department brought these matters to the
attention of Congress in 1981 and requested legislative relief. See
Hearing on H.R. 4689 to Amend the Uniform Code of Military Justice Before
the Military Personnel and Compensation Subcomm. of the Comm. on Armed
Services, 97th Cong., 1st Sess. 54 (1981). Congress
approved a number of amendments, including a change to Article 67(c) permitting
constructive service by mail with a 60-day time period for filing. Military
Justice Amendments of 1981, Pub. L. No. 97-81, § 5, 95 Stat. 1088-89.
The legislative history of the constructive-service
amendment makes it clear that the amendments were directed at servicemembers
who precluded the completion of appellate review through their "own irresponsibility,"
S. Rep. No. 146, 97th Cong., 1st Sess. 36 (1981),
and whose actions delayed appellate review "indeterminably." H.R. Rep.
No. 306, 97th Cong., 1st Sess. 7 (1981). The legislative
history also demonstrates that the statutory changes were not designed
to adversely affect servicemembers who acted through counsel to protect
their appellate rights.
The Senate report noted that the opportunity
to petition for review would be lost "only when a variety of factors 
all in the control of the accused  compound." The report added that an
"accused who is interested in [preserving] appellate opportunities may
protect those opportunities by supplying the power of attorney, or by taking
care to keep addresses current, or by maintaining contact with his appellate
counsel." S.Rep. No. 146, supra. According to the report, the opportunity
to appeal would be lost "only when the accused intentionally or negligently
fails to take simple measures to protect the accuseds own interests, measures
which must be explained by both the trial and appellate defense counsel."
Id.
In its present form, Article 67(b) provides
that an accused "may petition" this Court for review within 60 days from
the earlier of 



(1) the date on which the accused is notified
of the decision of the Court of Criminal Appeals; or
(2) the date on which a copy of the decision
of the Court of Criminal Appeals, after being served on appellate counsel
of record for the accused (if any), is deposited in the United States mails
for delivery by first class certified mail to the accused. . . .



Compare Fed.R.App.Pro. 4(b)(1) (defendant's
notice of appeal "must be filed" in the district court within 10 days after
entry of judgment or filing of Government's notice of appeal). Under the
statute, the beginning date of the time period in a given case may be established
through: (1) identification of the date on which the Government provided
the appellant with actual notice; or (2) documentation of the date the
Government provided appellate defense counsel with actual notice and the
date on which the Government mailed constructive notice to the appellant.
The statute requires use of certified mail, which documents the date of
mailing but does not document that the mailing was actually received.
The end of the time period is marked by submission
of the petition, not by actual receipt by the Court. By noting that the
accused "may petition . . . within 60 days," Article 67(b) indicates that
submission of a petition by an appellant within that period is sufficient,
regardless whether the petition is received by our Court within the 60-day
period. Compare Wright v. Deyton, 757 F.2d 1253 (11th
Cir. 1985)(Under Fed.R.App.Pro. 4, which requires that a notice of appeal
"must be filed" within 10 days, the issue of timeliness requires determination
as to when the document was mailed and whether, in the ordinary course
of events, the clerk would have received the notice by the applicable filing
deadline.).
The petition is a simple document, which merely
notes that appellant seeks review in our Court. There is no requirement
to specify issues or otherwise engage in legal analysis. A servicemember
who relies on counsel to file the petition may do so with confidence that
he or she is not asking counsel to undertake a burdensome task that would
preclude a timely submission.

B. Court Rules
Article 67(b) is implemented through Rule 19
of the Rules of Practice and Procedure for the United States Court of Appeals
for the Armed Forces. Rule 19(a)(2) requires documentation of the beginning
of the 60-day period by requiring that a "certificate of notification"
be placed in the record of trial "setting forth the manner and date that
the appellant was notified of the decision of the Court of Criminal Appeals
or the date that a copy of such decision was mailed to the appellant after
service of a copy of such decision on appellate defense counsel of record."
The Rules address termination of the 60-day
period by stating that a petition "will be deemed to have been filed on
the date when the petition has been mailed or delivered by an appellant
or by counsel on behalf of an appellant directly to the Court." Rule 19(a)(3).
Upon receipt of a petition, it is "accepted and docketed by the Clerk."
Rule 19(a)(4).
This rule places the burden upon the Government
to raise any objections to the petition, including timeliness. Under Rule
19(a)(4), if a petition is not in accord with Article 67 or the Court's
Rules, "the United States may move to dismiss such petition."
Both Article 67 and Rule 19 are phrased in
terms of the opportunity of an appellant to file a petition for review.
Neither the statute nor the rule states that the time periods are jurisdictional,
nor do they preclude our Court from accepting petitions outside the time
period under appropriate circumstances. The Court's Rules expressly provide
that "[f]or good cause shown, the Court may suspend any of these rules
in a particular case, on application of a party or on its own motion .
. . ." Rule 33.

C. Judicial Practice
In view of the importance that Congress has
placed upon the opportunity for servicemembers to obtain appellate review
in an independent civilian tribunal, we have carefully scrutinized timeliness
objections to petitions to ensure that no petition is rejected unless the
objection is well-founded, and we have provided appellants with the opportunity
to establish good cause for late filings. See, e.g., cases
cited in Eugene R. Fidell, Guide to the Rules of Practice and Procedure
for the United States Court of Appeals for the Armed Forces 85-86 (8th
ed. 1997), and Guide to the Rules of Practice and Procedure of the United
States Court of Military Appeals 58 n. 201 (1978 & Supp. 1980).
Moreover, from the earliest days of our Court,
we have viewed the time period in Article 67 as nonjurisdictional. In United
States v. Ponds, 1 USCMA 385, 386, 3 CMR 119, 120 (1952), we recognized
that a petition filed outside of the time period in Article 67(c) could
be accepted by the Court if the appellant established "some reasonable
basis justifying his relief from that default. . . ." Cf. Fed.R.App.Pro.
4(b)(4) ("Upon a finding of excusable neglect or good cause, the district
court may -- before or after the time has expired, with or without motion
and notice -- extend the time to file a notice of appeal for a period not
to exceed 30 days from the expiration of the time otherwise prescribed
by this Rule 4(b).").
We have emphasized that an untimely petition
may be considered upon a showing of good cause for the late filing, even
where a punitive discharge already had been executed upon the running of
the 60-day appeal time. In United States v. Engle, 28 MJ 299 (CMA
1989), we held that execution of a punitive discharge under Article 71(c),
UCMJ, 10 USC § 871(c), "does not deprive the Court of jurisdiction
to grant a petition for review." As we noted in United States v. Myers,
28 MJ 191, 194 (CMA 1989), "[P]rocedural time frames are not jurisdictional
but may be waived in the interests of justice."

II. APPELLANT'S PETITION
A. The Record Upon Initial Review
When our Court considered appellant's initial
petition for review, the record included the following: (1) the decision
of the Court of Criminal Appeals, dated October 15, 1996; (2) an undated
"Petition for Grant of Review" signed by appellant's appellate defense
counsel; (3) this Court's date stamp on the petition marking it as "received"
on January 22, 1997; (4) a petition supplement filed by appellate defense
counsel, dated January 31, 1997, raising the issue of ineffective assistance
of counsel; and (5) the Government's response to the petition supplement,
dated February 3, 1997, responding to the merits of the petition.
The record submitted to this Court by the Navy
did not contain a "certificate of notification," see Rule 19(a)(2),
or otherwise indicate that the 60-day time period had elapsed prior to
appellate defense counsel's submission of the petition. Apparently, this
was of no concern to the Government, which did not move to dismiss the
petition on timeliness or any other procedural ground. See Rule
19(a)(4).
We granted the petition on June 10, 1997. On
March 30, 1998 -- after the parties filed final briefs, including several
attachments and exhibits, and following oral argument -- we published an
order that set aside the decision of the Court of Criminal Appeals. 49
MJ 172. Our decision returned the case to the Judge Advocate General for
remand to the lower court for further consideration in light of our decision
in United States v. Ginn, 47 MJ 236 (1997). The Government did not
seek reconsideration of our decision to grant review of appellant's appeal,
nor did it seek reconsideration of our decision remanding the case to the
Court of Criminal Appeals for further proceedings.

B. Developments Following Remand
Nearly 8 months after our decision remanding
the case to the Court of Criminal Appeals, on November 20, 1998, that court
ordered a factfinding hearing into the ineffectiveness-of-counsel issue.
On February 19, 1999, however -- 3 months after that order, nearly 11 months
after our remand, and more than 2 years after appellant's petition was
received in our Court -- the Government first raised the question of the
timeliness of appellant's petition to this Court. On that date, the Government
filed in the Court of Criminal Appeals a Motion to Terminate Appellate
Review.
In support of its motion, the Government submitted
information indicating that a "promulgation package" containing the decision
of the Court of Criminal Appeals had been sent to appellant by certified
mail on October 18, 1996, and that the mailing included an endorsement
informing him of his right to submit a petition to our Court.
The Government's submission did not include
copies of any of the correspondence with appellant. Instead, the Government
relied on an undated certificate from the Navy's "Prom Office Manager"
stating that appellant had been sent a copy of the decision of the Court
of Criminal Appeals "with an endorsement thereon, informing him/her of
his/her right to petition the U.S. Court of Appeals for the Armed Forces
within 60 days of the time the decision of the Navy-Marine Corps Court
of Criminal Appeals was deposited in the U.S. mail by first class certified
mail."
The manager attached to the certificate a receipt
showing that a package had been sent by certified mail to appellant on
October 18, 1996. Because the materials submitted to the court below do
not contain copies of the information actually provided to appellant, it
is not clear whether appellant was provided with the form petition and
instructions as required by Article 0164b of the Manual of the Judge Advocate
General of the Navy, JAGINST 5800.7C.
In addition to filing the undated certificate
of service with the court below, the Government also submitted: (1) a memorandum
from the "Chief, Promulgation Section," dated December 31, 1996, authorizing
issuance of a supplementary court-martial order because "no petition for
review" had been received within 60 days after the package was mailed to
appellant; (2) a supplementary court-martial order, dated January 2, 1997,
approving appellant's sentence, including a bad-conduct discharge; (3)
a Department of Defense Form 214, "Certificate of Release or Discharge
from Active Duty," indicating that appellant was separated with a bad-conduct
discharge issued to appellant on January 2, 1997; and (4) an affidavit
executed on March 16, 1999, by the Director of the Administrative Support
Division of the Navy-Marine Corps Appellate Review Activity, describing
the standard procedures used for notifying the appellate divisions of a
decision, for informing an accused of the right to petition, and for executing
a discharge when a petition has not been received after the passage of
at least 60 days.
On April 8, 1999, the Court of Criminal Appeals
published an order granting the Government's motion to terminate appellate
review. 50 MJ 754. As a predicate for doing so, the court stated that "appellant
was served his copy of this court's [original] decision by 25 October 1996."
Id. at 756. The court cited no source to support that finding, and
we have found nothing in the record demonstrating that appellant received
the Navy's packet on or before that date.
The court terminated appellate proceedings
on the grounds that this Court "unknowingly granted review where it had
no apparent jurisdiction to do so." Id. at 757. The court concluded
that appellant's petition was not timely filed under Article 67; that the
discharge was properly executed under Article 71(c);1
and that further review was precluded by Article 76, UCMJ, 10 USC §
876.2 The Judge Advocate
General of the Navy certified the case to us for review.3

III. DISCUSSION
At the outset, we note that the record before
us does not demonstrate that appellant received actual notice on or before
October 25, 1997. We have uncovered no proof of actual service in the record.
With respect to constructive service, we note
that the record before us does not include a number of basic documents
that would have facilitated clear calculation of the beginning of the 60-day
period for submission of a petition. Such a calculation is not a particularly
difficult task if the military service retains documentation of each of
the following steps as they are accomplished: (1) the date and manner of
service on appellate defense counsel, which is a necessary predicate for
the use of constructive service under Art. 67(b)(2); (2) the date and manner
of constructive notice by certified mail to the appellant; (3) the date
and manner of compliance with regulatory requirements concerning the content
of the notice; (4) inclusion in the record of a certificate of notification
under Rule 19(a)(2).
We note that the record does not contain a
copy of the specific notice provided to appellant. The record also does
not contain documentation of compliance with the JAG Manual requirement
that notice to appellant include a form petition with instructions for
filing. In addition, the Navy did not comply with this Court's requirement
under Rule 19(a)(2) that the record filed at the time of the petition contain
a "certificate of notification" setting forth "the manner and date" that
appellant was notified of his right to petition this Court. The record
also leaves some uncertainty as to the precise date on which the 60-day
period terminated because the petition submitted by appellant's counsel
was undated. As a result, the Government has had to rely primarily upon
memoranda and affidavits that focus primarily on assumptions drawn from
general practices, rather than contemporaneous records of required actions.
Such deficiencies do not necessarily preclude
this Court from determining whether a petition is untimely filed when the
Government has made a timely motion for the petition to be dismissed under
Rule 19(a)(4). Had the Government done so in the present case, and had
it made a timely submission of evidence concerning the filing of the petition,
we would have considered whether that evidence was sufficient to raise
the issue of an untimely filing. If so, we then would have conducted further
proceedings to ascertain the precise beginning and termination dates of
the 60-day period, and we would have considered both direct evidence and
applicable presumptions. See, e.g., Rule 19(a)(3).
When the Government does not raise the issue
of timeliness until after a petition for review has been granted, as in
the present case, such untimely action undermines the orderly conduct of
appellate proceedings. In such a situation, where the Government has not
objected to a pending petition prior to the grant of review, we will not
revisit the issue of the timeliness of the initial filing absent clear
and unequivocal evidence that the petition was untimely filed.
In light of the significant deficiencies in
the Navys recordkeeping in the present case, the evidence is far from
clear and unequivocal. Therefore, we shall not revisit our original action
treating the petition as timely filed. In that context, the Navys attempt
to execute a punitive discharge under Article 71(c), which was taken at
a time appellate review was pending, was premature. Accordingly, the court
below erred in concluding that appellant was properly discharged under
Article 71.
Under these circumstances, it is not necessary
for us to assess the validity of the lower courts theories concerning
the effect of a properly executed discharge under Article 71 upon the jurisdiction
of this Court. A discharge may not be executed in the present case unless
a determination is made that such action is warranted, following the remand
proceedings ordered by this Court and applicable review proceedings under
Article 67.
To the extent that the certified question asks
us to determine whether the decision of the court below was correct, we
answer that question in the negative. To the extent that the decision of
the court below suggests that Articles 71 and 76 preclude this Court from
exercising direct review where there is clear and unequivocal evidence
that a petition is untimely, we note that the court below did not address
the import of our precedents for taking jurisdiction when there is good
cause for an untimely filing. In light of our holding in the present case
that the Government has failed to establish that the petition was untimely,
we decline to revisit those precedents until a case squarely presenting
an untimely petition is before us.
We note, however, that the Government has acknowledged
expressly that this Court has jurisdiction to review such a case under
the All Writs Act, 28 USC § 1651(a). Supp. Brief at 8; cf.
Schlesinger v. Councilman, 420 U.S. 738 (1975) (Article 76 does
not bar collateral attack in federal district court); Hendrix v. Warden,
23 USCMA 227, 49 CMR 146 (1974). For example, if a servicemember not only
alleges ineffective counsel at trial, but also alleges that appellate counsel
was ineffective by failing to file a timely petition before this Court
or otherwise alleges that the untimeliness was not the result of his or
her own irresponsibility, we have jurisdiction to determine whether the
servicemember has established good cause for the late filing and, if so,
whether collateral relief is appropriate. See United States v.
Ortiz, 24 MJ 323, 324 (CMA 1987) ("This Court has inferred that Congress
did not wish to have an accused's effort to appeal thwarted by the omissions,
indifference or ineptitude of the military counsel provided to him.").
Compare Roe v. Flores-Ortega, __ U.S. ____, 120 S.Ct. 1029
(2000) (setting forth standards for assessing ineffective assistance of
counsel who fails to file a notice of appeal). If, in the future, we receive
a petition in which there is clear and unequivocal evidence of untimeliness,
and the issue of good cause for a late filing is raised, we shall consider
at that time whether it is appropriate to consider the case under the standards
applicable to direct review or the standards applicable to collateral review.

IV. DECISION
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals dated April 8, 1999, is vacated. The case
is returned to the Judge Advocate General of the Navy for remand to the
Court of Criminal Appeals for compliance with this Court's earlier remand
order.
FOOTNOTES:
1 Article 71(c) provides
in pertinent part that a punitive discharge "may not be executed until
there is a final judgment as to the legality of the proceedings . . . ."
Under Article 71(c), the circumstances in which a judgment is considered
to be final include "cases when review is completed by a Court of Criminal
Appeals and . . . the time for the accused to file a petition for review
by the Court of Appeals for the Armed Forces has expired and the accused
has not filed a timely petition for such review and the case is not otherwise
under review by that Court . . . ."
2
Article 76 provides:



The appellate review of records
of trial provided by this chapter, the proceedings, findings, and sentences
of courts-martial as approved, reviewed, or affirmed as required by this
chapter, and all dismissals and discharges carried into execution under
sentences by courts-martial following approval, review, or affirmation
as required by this chapter, are final and conclusive. Orders publishing
the proceedings of courts-martial and all action taken pursuant to those
proceedings are binding upon all departments, courts, agencies, and officers
of the United States, subject only to action upon a petition for a new
trial as provided in section 873 of this title (article 73) and to action
by the Secretary concerned as provided in section 874 of this title (article
74), and the authority of the President.



3 The
certificate presented the following question:



WHETHER PROPER EXECUTION
OF APPELLANTS PUNITIVE DISCHARGE IN ACCORDANCE WITH ARTICLE 71(c), UCMJ,
MADE APPELLANTS CASE FINAL UNDER ARTICLE 76, UCMJ, AND TERMINATED MILITARY
APPELLATE COURT JURISDICTION OVER THE CASE.




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