          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS



UNITED STATES,                              )                Misc. Dkt. No. 2013-29
                    Respondent              )
                                            )
             v.                             )
                                            )                ORDER
Staff Sergeant                              )
MELVERT WASHINGTON, Jr.,                    )
USAF,                                       )
               Petitioner                   )                Panel No. 2



      The petitioner has requested extraordinary relief in the nature of a writ of error
coram nobis asking this Court to set aside his 26 January 1983 conviction by special
court-martial. The petitioner bases his request on a claim of newly discovered evidence.

                                      Background

       The petitioner was convicted at a special court-martial in January 1983 of
one specification of wrongfully soliciting a subordinate airman to obtain marijuana for
him in violation of Article 134, UCMJ, 10 U.S.C. § 934. He was acquitted of one
specification of wrongfully using marijuana on divers occasions. The court, comprised of
officer members, sentenced the petitioner to a bad-conduct discharge and reduction to
E-1. The convening authority approved the sentence as adjudged.

       The evidence presented against the petitioner included the testimony of three
airmen. A1C IEW was a subordinate airman who testified that he smoked marijuana in
his dorm room with the petitioner on two occasions. A1C IEW also said the petitioner
asked him to procure marijuana for his personal use. Amn BSD and A1C GPD testified
they were present in A1C IEW’s room and overheard portions of the conversation
between A1C IEW and the petitioner when he solicited marijuana from A1C IEW.

       The defense evidence included testimony from A1C IEW’s roommate, Amn BPL,
who testified that he did not see the petitioner in his room, but he did observe two
sergeants with similar skin tone and similar sounding voices visit his room. The
petitioner testified that he never used drugs with A1C IEW, never asked A1C IEW to get
him drugs, and never visited A1C IEW’s dorm room. The petitioner also testified that he
consented to the Air Force Office of Special Investigations’ request to search his house,
car, and person, and no evidence of drugs was found.
        On 27 July 1983, this Court affirmed the findings and sentence. Approximately
22 years later, the petitioner filed his first writ of error coram nobis with this Court,
alleging ineffective assistance of counsel at trial, which was denied. The petitioner then
filed a writ appeal petition with our superior court which was also denied, and the
Supreme Court denied certiorari on 4 May 2007. On 26 September 2013, the petitioner
filed the instant writ of error coram nobis.

        The petitioner requests relief based on his claim of newly discovered evidence
consisting of a negative urinalysis result mentioned in a February 1983 post-trial
clemency report, and affidavits from the trial defense counsel and defense paralegal dated
November 2008 confirming they did not receive a result of the petitioner’s negative
urinalysis test.1 These affidavits also state that trial defense counsel’s time, energy, and
concentration was adversely affected by trial defense counsel’s pending transfer to
another Air Force specialty code and duty station and by negative attention from the wing
commander related to an article the trial defense counsel and defense paralegal published
in the base newspaper in January 1983.

                                                        Law

       “Courts-martial . . . are subject to collateral review within the military justice
system.” Denedo v. United States, 66 M.J. 114, 119 (C.A.A.F. 2008), aff’d and
remanded, 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. Nevertheless:


1
  The petitioner’s submission does not include documentation showing negative test results for a urinalysis. The
petitioner claims a negative urinalysis exists based on the clemency review officer’s statements that “SSgt
Washington says he did not commit the offense. He points out that upon a search of his quarters and his person, no
drugs were found, neither was evidence of the use of drugs found through urinalysis.” For purposes of this Court’s
review, we presume the petitioner submitted a urinalysis sample prior to trial and that the test results were negative
for prohibited substances.

                                                          2                                  Misc. Dkt. No. 2013-29
      [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, 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, 526 U.S. at 537 (holding that
even if the Court of Appeals for the Armed Forces 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, 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 used 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, 11-12 (C.M.A. 1968). This
writ authority extends past the point at which a court-martial conviction becomes final
under Article 76, UCMJ. Denedo, 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)) (internal quotation
marks omitted). 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, 66 M.J. at 126. If the petitioner meets these threshold requirements for a writ of
error coram nobis, this Court analyzes the underlying basis for the writ, keeping in mind
“the petitioner must establish a clear and indisputable right to the requested relief.” Id.
(citing Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 381 (2004)).



                                             3                           Misc. Dkt. No. 2013-29
                                        Discussion

       We hold the petitioner is not entitled to relief under the “stringent threshold
requirements” established for issuance of the writ of error coram nobis. The petitioner
claims three pieces of evidence are newly discovered: (1) a negative urinalysis result;
(2) the 2008 affidavit from trial defense counsel confirming he did not receive any
negative urinalysis result prior to trial and explaining that his transfer to another duty
location impacted his time and energy prior to trial; and (3) the 2008 affidavit from the
defense paralegal confirming she did not receive a negative urinalysis result prior to trial
and explaining that trial defense counsel received negative attention from the wing
commander about an article they published in the base newspaper shortly before trial.
None of these items provides any basis for relief.

        At trial, the petitioner testified that he consented to a search of his person and
property and the Air Force Office of Special Investigations found no evidence of a crime.
Post-trial, the petitioner was provided a clemency report in which the clemency review
officer noted that no evidence of the use of drugs was found through urinalysis. If this is
true, the petitioner has known for more than 30 years that he submitted to a urinalysis that
did not test positive. In any event, the petitioner was acquitted of the specification
alleging he wrongfully used marijuana.

       Similarly, trial defense counsel’s transfer in February 1983 and the negative
reactions to the base newspaper article in January 1983, as contained in the trial defense
team’s affidavits, have also been known for more than 30 years. The petitioner has not
shown valid reasons for failing to seek relief earlier. If the affidavits are true, the
petitioner and trial defense counsel knew during trial that trial defense counsel was
pending new duty station orders, and that trial defense counsel was allegedly subjected to
negative attention for publishing the base paper article. Having concluded that the
petitioner fails to meet the third and fourth stringent threshold requirements, we do not
address the merits of his assertions.

Accordingly, it is by the Court on this 1st day of April, 2014,

ORDERED:

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

              FOR THE COURT



              STEVEN LUCAS
              Clerk of the Court

                                             4                           Misc. Dkt. No. 2013-29
