UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                                JOHNSON, COOK, and BURTON
                                   Appellate Military Judges

                         Private E1 RONALD GRAY
                        United States Army, Petitioner
                                      v.
                          Colonel ERIC BELCHER,
                 Commandant, United States Disciplinary Barracks
                                     and
                     THE UNITED STATES, Respondents

                                   ARMY MISC 20110093 1

For Petitioner: Colonel Mark Tellitocci, JA; Captain Stephen J. Rueter, JA;
Timothy P. Kane, Esq.; Shawn Nolan, Esq.; Billy H. Nolas, Esq. (on brief).

For Respondents: Colonel Michael E. Mulligan, JA; Major Amber J. Williams, JA;
Major Adam S. Kazin, JA (on brief).

                                        26 January 2012

                     -------------------------------------------------------------
                           OPINION OF THE COURT AND ACTION
                       ON PETITION FOR EXTRAORDINARY RELIEF
                      IN THE NATURE OF A WRIT OF CORAM NOBIS
                     --------------------------------------------------------------

JOHNSON, Senior Judge:

      This is a petition for extraordinary relief in the nature of a writ of coram
nobis based on several alleged errors discovered after petitioner’s court-martial and
appellate proceedings. We hold that petitioner cannot meet the threshold criteria for
coram nobis review. Petitioner has other remedies available to him as a matter of
law, but not within the military justice system.

                                                   I
       In 1988, petitioner was tried by a general court-martial composed of officer
and enlisted members. Contrary to his pleas, petitioner was convicted of the
premeditated murder of Ms. KAR and Private LLV, as well as the attempted murder
of Private MALN, in violation of Articles 118, and 80, Uniform Code of Military
Justice, 10 U.S.C. §§ 918, and 880 (1982) [hereinafter UCMJ, 1982]. Petitioner
was also convicted of rape (3 specifications), robbery (2 specifications), and sodomy

1
    The docket number for petitioner’s direct appeal is ACMR 8800807.
GRAY—ARMY MISC 20110093

(2 specifications) with respect to the above victims, as well as burglary and larceny
of another person, in violation of Articles 120, 122, 125, 129, and 121, UCMJ, 1982,
respectively. The convening authority approved his sentence to death, a
dishonorable discharge, total forfeitures and reduction to E1.

       The petitioner’s conviction and sentence were affirmed by both the Army
Court of Military Review, which is this court’s predecessor, and the United States
Court of Appeals for the Armed Forces. United States v. Gray, 37 M.J. 730
(A.C.M.R. 1992); United States v. Gray, 51 M.J. 1 (C.A.A.F. 1999), aff’g 37 M.J.
751 (A.C.M.R. 1993), cert. denied, 532 U.S. 919 (2001). On 28 July 2008, the
President of the United States approved petitioner’s sentence to death and ordered it
executed. The Secretary of the Army scheduled petitioner’s execution for 10
December 2008; however, before it could be carried out, the United States District
Court for the District of Kansas granted a stay of execution in anticipation of
petitioner filing a petition for extraordinary relief in the nature of a writ of habeas
corpus. Thereafter, petitioner filed a writ of habeas corpus, which is still pending
before that court.

      On 11 February 2011, petitioner filed with this court the instant petition for
extraordinary relief in the nature of a writ of coram nobis. We then ordered the
government to show cause why the writ should not issue, and it filed an answer brief
on 14 March 2011. Petitioner filed a reply brief on 13 June 2011. Petitioner is
currently in confinement at the United States Disciplinary Barracks, Fort
Leavenworth, Kansas.

                                           II
       In this case, there is a final judgment as to the legality of the proceedings
under Article 71(c)(1), UCMJ, and the case is final under Article 76, UCMJ. See
Loving v. United States (Loving I), 62 M.J. 235, 244 (C.A.A.F. 2005). Therefore,
this court is without jurisdiction to entertain collateral review under a writ of habeas
corpus. Loving v. United States (Loving II), 64 M.J. 132, 135 (C.A.A.F. 2006)
(quoting Loving I, 62 M.J. at 236). 2 See H.R. Rep. No. 81-491, at 35 (1949)
(“Subject only to a petition for a writ of habeas corpus in Federal court, [Article 76]
provides for the finality of court-martial proceedings and judgments”). Although a
case is final pursuant to Article 76, UCMJ, a service court may nonetheless entertain
a writ of coram nobis “in aid of” its jurisdiction. Denedo II, 556 U.S. at ___, 129 S.
Ct. at 2223–24; Denedo I, 66 M.J. at 120–21, 125; 28 U.S.C. § 1651(a) (2010).



2
 Although the reasoning in Denedo v. United States (Denedo I), 66 M.J. 114
(C.A.A.F. 2008), and United States v. Denedo (Denedo II), 556 U.S. 904, 129 S. Ct.
2213 (2009), could be construed to reach all forms of collateral review, their mutual
holding is much more limited. Those cases extended collateral review beyond
Article 76 only for writs of coram nobis.


                                           2
GRAY—ARMY MISC 20110093

      In the military justice system, a petitioner must satisfy several, stringent
threshold requirements in order to obtain coram nobis relief:

      (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 (citing United States v. Morgan, 346 U.S. 502, 512–13
(1954), and Loving I, 62 M.J. at 252–53). Here, petitioner cannot traverse these
threshold requirements because there is, as a matter of law, a remedy other than
coram nobis available to him. 3 Although in our view petitioner’s right to habeas
corpus in the military justice system has ended, this is not so for Article III courts.
In fact, petitioner has filed a writ of habeas corpus in federal district court and the
government does not dispute the jurisdictional basis for doing so. The merits of
petitioner’s claims are now for the federal district court, rather than this court, to
decide.

       We are cognizant of the preference for military courts to hear issues
potentially of first impression, 4 but we are also mindful of clear constraints imposed
on this court by statute and our superior court.

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




3
 Where a petitioner is in custody, he or she can obtain relief through a writ of
habeas corpus and, therefore, cannot establish that no remedy other than coram
nobis is available. See Denedo I, 66 M.J. at 126 (noting that the petitioner in that
case did not have habeas corpus available to him because he was not in custody).
4
  See generally Denedo I, 66 M.J. at 121–122 (stating that “courts within the military
justice system should have an opportunity to consider challenges to court-martial
proceedings prior to review by courts outside the military justice system”).


                                            3
GRAY—ARMY MISC 20110093

    Judges COOK and BURTON concur.
                               FORTHE
                              FOR  THECOURT:
                                       COURT:




                               MALCOLM H. SQUIRES, JR.
                              MALCOLM     H. SQUIRES, JR.
                               Clerk of Court
                              Clerk of Court




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