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             UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


Staff Sergeant (E-5),                                         )                Misc. Dkt. No. 2014-04
SEAN M. OLIVER,                                               )
USAF,                                                         )
                   Petitioner                                 )
                                                              )
                    v.                                        )                ORDER
                                                              )
Brigadier General (O-7)                                       )
PATRICK X. MORDENTE,                                          )
USAF,                                                         )
                    Respondent                                )                Panel No. 3


PER CURIAM:

       Counsel for the Petitioner filed a Petition for Extraordinary Relief in this matter,
seeking a writ of mandamus that orders the convening authority to grant the petitioner’s
request for the expert assistance of a mitigation specialist. Specifically, the petitioner
seeks expert assistance to present matters in mitigation and extenuation at an Article 32,
UCMJ, investigation.

                                                      Background

       The petitioner represents that he has been charged with numerous offenses
including the premeditated murder of another servicemember, in violation of Article 119,
UCMJ, 10 U.S.C. § 919.1 The appellant’s defense counsel submitted a request for the
general court-martial convening authority to appoint and provide funding for a qualified
mitigation specialist to assist the defense in preparing its case. That request represents
that the Government intends to ask the Article 32 investigating officer to comment on
capital referral qualifying factors under Rule for Courts-Martial (R.C.M.) 1004(c). The
respondent (the special court-martial convening authority) denied the request. The
petitioner represents that the request has been forwarded to the general court-martial
convening authority but that commander has not yet acted on the request.

       This petition followed, representing that the Article 32 investigation is scheduled
for 12 May 2014. The petition seeks a writ of mandamus ordering the respondent to
provide a mitigation specialist for the Article 32 investigation, reasoning that because the
Government is expected to present aggravating evidence under R.C.M. 1004(c), the

1
    The petition does not contain a copy of the charge sheet in this matter.

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petitioner should have an equal opportunity to present evidence of extenuation and
mitigation for the convening authority’s consideration in deciding whether to refer this
matter as a capital case.

                                              Law

        The All Writs Act, 28 U.S.C. § 1651(a), authorizes “all courts established by Act
of Congress [to] issue all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law.” 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).

        The Supreme Court has held that three conditions must be met before a court may
provide extraordinary relief in the form of a writ of mandamus: (1) the party seeking the
writ must have “no other adequate means to attain the relief”; (2) the party seeking the
relief must show that the “right to issuance of the relief is clear and indisputable”; and (3)
“even if the first two prerequisites have been met, the issuing court, in the exercise of its
discretion, must be satisfied that the writ is appropriate under the circumstances.”
Cheney v. United States Dist. Court, 542 U.S. 367, 380-81 (2004) (internal quotation
marks omitted). A writ of mandamus is “a drastic remedy to be used sparingly.” Morgan
v. Mahoney, 50 M.J. 633, 634 (A.F. Ct. Crim. App. 1999) (citing Will v. United States,
389 U.S. 90, 95 (1967)).

                                          Discussion

      We conclude it is appropriate to consider the petition under the All Writs Act.
Having done so, we find the petitioner is not entitled to the relief requested.

       The petition indicates that the petitioner has been charged with a capital offense
and the Government asked the investigating officer to review possible capital aggravating
factors. However, no court-martial exists at this point, let alone a court-martial referred
as a capital case. Moreover, no military judge has had the opportunity to rule on any
motions related to the pretrial investigation or the appointment of an expert.

       Even when a case is referred as a capital matter, servicemembers do not have a per
se right to a government-funded mitigation expert. United States v. Kreutzer, 61 M.J.
293, 305 (C.A.A.F. 2005). Prior to referral, determination of whether to approve a
defense request for an expert witness is left to the province of the convening authority.
R.C.M. 703(d).

      The petitioner has not shown that he is prevented from presenting evidence in
extenuation and mitigation at the upcoming Article 32 investigation, as is his right under

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R.C.M. 405(f)(11). The petitioner is free to note at the Article 32 investigation his
objection to not having the assistance of a government-appointed and government-funded
mitigation specialist, and he can also make objections to the report of investigation when
it is provided to the commander who directed the investigation. R.C.M. 405(h)(2) and
(j)(3)-(4). In the event the convening authority refers the case to a court-martial (capital
or otherwise), the petitioner will have the opportunity to pursue timely and appropriate
remedies. For example, under R.C.M. 703(d), after referral, the petitioner may again
request expert assistance from the convening authority, and if denied, he may renew his
request before the military judge for decision. Also, pursuant to R.C.M. 905(b)(1), the
petitioner may challenge the validity of the Article 32, UCMJ, investigation and
subsequent referral by motion at trial and to this Court through the appellate review
process under Article 66, UCMJ.

       In short, extraordinary relief at this point is neither necessary nor appropriate.
Having considered the matters submitted, we find the petitioner fails to demonstrate that
extraordinary relief is warranted.

       Accordingly, it is by the Court on this 9th day of May, 2014,

ORDERED:

       The Petition for Extraordinary Relief is DENIED.



              FOR THE COURT


              STEVEN LUCAS
              Clerk of the Court




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