                         UNITED STATES, Appellee

                                         v.

         Edward TAMEZ, Aviation Ordnanceman Third Class
                      U.S. Navy, Appellant


                                  No. 05-0382


                        Crim. App. No. 200401361


       United States Court of Appeals for the Armed Forces

                         Argued January 10, 2006

                           Decided May 24, 2006

                                   PER CURIAM

                                     Counsel
For Appellant:    Captain Richard A. Viczorek, USMC (argued).

For Appellee: Lieutenant Craig A. Poulson, JAGC, USNR (argued);
Commander Charles N. Purnell, JAGC, USNR (on brief); Major
Raymond E. Beal II, USMC.



Military Judge:    R. N. Johnson



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Tamez, No. 05-0382/NA


        PER CURIAM:

        On December 28, 2004, Appellant submitted his case to the

United States Navy-Marine Corps Court of Criminal Appeals on its

merits without specific assignments of error.    That court handed

down its decision in Appellant’s case on January 12, 2005.

United States v Tamez, No. NMCCA 200401361 (N-M. Ct. Crim. App.

Jan. 12, 2005) (unpublished).    A copy of the court’s decision in

the record contains the following stamped and signed

certification from the docket clerk of the Court of Criminal

Appeals:

        I certify that, pursuant to Rule 19, [Court of Criminal
        Appeals] Rules of Practice and Procedure, a copy of this
        decision was served on appellate defense counsel on the
        decision date appearing thereon.

The record also contains a certified mail receipt indicating

that a copy of the decision was mailed to Appellant on January

19, 2005, to an address provided by him, i.e., constructive

notice.    Counting from the date the decision was mailed by

certified mail to Appellant in accordance with Article 67(b)(2),

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(b)(2)

(2000), Appellant’s petition was due not later than March 20,

2005.    Appellant petitioned this Court for grant of review on

March 28, 2005, but did not move to file out of time.    That same

day, a docketing notice was issued by the Clerk of this Court

ordering Appellant to file a supplement by April 27, 2005.

        On March 29, 2005, the Government moved to dismiss the

petition as untimely and as having been filed without a showing

of good cause for the late filing.     The Government also argued

that Appellant had failed to show good cause for granting the


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United States v. Tamez, No. 05-0382/NA


petition, because Appellant had submitted his case on its merits

to the court below.

     Appellant responded to the Government’s motion arguing that

there had been no constructive service of the lower court’s

opinion on him because the Judge Advocate General had only sent

Appellant a letter dated January 14, 2005, with a copy of the

lower court’s opinion enclosed.   According to Appellant, this

notification was defective on its face.    Appellant contends that

the Government mailed the decision to the last address he

provided when it was aware that he was confined at the

Charleston Consolidated Brig.    He further argues that in view of

the Government’s knowledge of his location, the transmission of

the notice to another location did not fulfill the requirements

for constructive service.   Thus, Appellant’s position was that

because the notification was not in compliance with Article 67,

UCMJ, the sixty-day time requirement of the statute had not

begun and his petition was not untimely.

     On April 27, 2005, Appellant submitted his supplement

stating that the case was being submitted on its merits without

specific assignments of error.    On May 6, 2005, this Court

issued an order requiring Appellant to show cause by May 13,

2005, why the Government’s motion to dismiss should not be

granted.   In his response to this order, Appellant reiterated

his position that there had been no constructive service under

Article 67, UCMJ.   Subsequently, this Court specified certain

issues pertaining to the special power of attorney executed in

this case and ordered briefs.    In Appellant’s brief on these



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United States v. Tamez, No. 05-0382/NA


issues, his tack shifted slightly on the issue of constructive

service, and he asserted that “[t]here is no evidence in the

record of trial that the NMCCA decision was ever actually served

on [any of the three appellate defense counsel].”

                             DISCUSSION

     Congress has granted an accused the statutory right to

petition this Court for review within sixty 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 at an
           address provided by the accused or, if no such address
           has been provided by the accused, at the latest
           address listed for the accused in his official service
           record.

Article 67(b), UCMJ.

     As a threshold matter, the Government argues that an

Appellant’s failure to meet the time limits in Article 67(b),

UCMJ, deprives this Court of jurisdiction to subsequently grant

a petition for review.    “Jurisdiction is the power of a court to

try and determine a case and to render a valid judgment.

Jurisdiction is ‘a legal question which we review de novo.’”

United States v. Harmon, 63 M.J. __ (8) (C.A.A.F. 2006).    This

Court has long held that the time limits in Article 67, UCMJ,

are not jurisdictional.   United States v. Byrd, 53 M.J. 35, 38

(C.A.A.F. 2000); United States v. Ponds, 1 C.M.A. 385, 386, 3

C.M.R. 119, 120 (1952).   Indeed, this Court has consistently

permitted appellants to file petitions for grant of review out


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of time for good cause shown.        United States v. Sumpter, 22 M.J.

33, 34 (C.M.A. 1986); Ponds, 1 C.M.A. at 386, 3 C.M.R. at 120.

See also United States v. Ortiz, 24 M.J. 323, 324 (C.M.A. 1987).

Such a practice is consistent with Congress’s intent that

servicemembers have the opportunity to obtain appellate review

in an independent civilian court.1         Were the sixty-day timeline

jurisdictional, an appellant might be without appellate recourse

in this Court regarding claims such as ineffectiveness of

counsel or complaints under Article 13, UCMJ, 10 U.S.C. § 813

(2000).   This was not Congress’s intent.

      Appellant bears the burden of demonstrating good cause for

considering a petition out of time.         Ponds, 1 C.M.A. at 386, 3
C.M.R. at 120.     “Good cause” in this context does not lend

itself to precise definition.        Rather good cause represents a

discretionary judgment on the part of this Court that an

appellant can “establish some reasonable basis justifying his

relief from that default.”       Id. at 386, 3 C.M.R. at 120.        We

have also said that as part of this showing of good cause

counsel should assign some meritorious issue.           Ortiz, 24 M.J. at

324; Sumpter, 22 M.J. at 33.        Of course, the showing of good

cause for the untimely filing of a petition is distinct from the

showing of good cause required to grant a petition for review.

      In this case, appellate defense counsel’s position, both in

the brief and during oral argument, is based on the argument

that there was no constructive service because appellate defense


1
  Since the advent of this Court, this Court’s application of Article 67(b),
UCMJ, as well as this Court’s rules, have permitted consideration of
petitions out of time if good cause for the late filing is shown.


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counsel were never served with the decision, and because the

decision was mailed to Appellant’s permanent address instead of

his place of confinement.   However, as stated earlier, the

record demonstrates that the lower court’s decision was

constructively served on Appellant in accordance with Article

67(b)(2), UCMJ.   The docket clerk of the Court of Criminal

Appeals certified that appellate defense counsel were served on

the date of decision, and the record contains a certified mail

receipt indicating that the decision was mailed to Appellant’s

address of record on January 19, 2005.   Thus, the notice

requirements of Article 67(b)(2), UCMJ, were met and Appellant’s

petition was filed eight days out of time.   Nonetheless, based

on the particular circumstances of this case, we find good cause

to consider Appellant’s petition out of time.

     First, appellate defense counsel appear to have argued this

motion on the misapprehension that the decision below was not

served on them.   At oral argument, appellate defense counsel

acknowledged that he had not seen the copy of the lower court’s

decision certified by the docket clerk of the court.

     Second, we are not in a position to explain or address this

apparent confusion absent further factfinding by the court

below, additional briefs, or the submission of affidavits.

Moreover, there is no indication that this error is anything

that should be attributed personally to Appellant.   As a matter

of fairness, we should consider Appellant’s petition in light of

this error before closing the courtroom door to him.




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United States v. Tamez, No. 05-0382/NA


      Third, the record reflects that Appellant has been

represented by four different appellate counsel and Appellant’s

current counsel did not assume this position until after the

sixty-day filing period had run.          Further, the record and allied

papers do not reflect at what stage in the appellate proceedings

before this Court, if at all, appellate defense counsel

consulted with Appellant regarding the timing of the appeal or

the substance of his petition.2

      Finally, in this appellate context, Appellant filed his

petition.    In light of these factors, we conclude that there is

good cause shown to entertain Appellant’s petition eight days

out of time.    True, we could remand for further factfinding or

we could request additional briefs to address the factors

identified above.     In this case, however, the interests in

timely review and judicial economy are better served by

considering Appellant’s petition without further debate over the

reasons for, and the effect of, the eight-day filing delay.

                                  DECISION

      The Government’s motion to dismiss the petition as untimely

under Article 67, UCMJ, is denied.




2
  In light of the fact that Article 67, UCMJ, allows for constructive service,
counsel should consider the wisdom of relying solely on a special power of
attorney without also consulting with the client on the decision to submit
the case on its merits. Assuming, without deciding, that there are
circumstances in which counsel may be granted a valid power of attorney, we
note that the relevant regulations on professional conduct in this case
require counsel to keep the client “reasonably informed” of the status of the
case. See Dep’t of the Navy, Judge Advocate General Instr. 5803.1C,
Professional Conduct of Attorneys Practicing Under the Cognizance and
Supervision of the Judge Advocate General Rule 1.4, at 12 (Nov. 9, 2004).


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