Filed: Dec. 10, 2001
Latest Update: Mar. 03, 2020
Summary: 67(b), UCMJ, 10 USC § 867(b) (providing that an accused may petition for, grant of review within sixty days of actual or constructive service of the, Court of Criminal Appeals decision).appellate defense counsel. WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE, DEFENSE COUNSEL.
IN THE CASE OF
UNITED STATES, Appellee
v.
Guillermo A. DOUGLAS, Corporal
U.S. Marine Corps, Appellant
No. 01-0242
Crim. App. No. 200000569
United States Court of Appeals for the Armed Forces
Argued October 4, 2001
Decided December 10, 2001
EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE and BAKER, JJ., and SULLIVAN, S.J.,
joined.
Counsel
For Appellant: Lieutenant Thomas P. Belsky, JAGC, USNR
(argued); Captain John A. Fabian, JAGC, USNR, Lieutenant Hardy
Vieux, JAGC, USNR, and Lieutenant Amanda St.Claire, JAGC, USNR
(on brief).
For Appellee: Major Robert M. Fuhrer, USMC (argued); Commander
Peter A. Dutton, JAGC, USN (on brief); Colonel Marc M. Fisher,
Jr., USMC, and Lieutenant Commander Philip Sundel, JAGC, USNR.
Military Judge: S.A. Jamrozy
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Douglas, No. 01-0242/MC
Judge EFFRON delivered the opinion of the Court.
A special court-martial composed of a military judge sitting
alone convicted appellant, contrary to his pleas, of three
specifications of making false official statements, in violation
of Article 107, Uniform Code of Military Justice, 10 USC § 907.
He was sentenced to a bad-conduct discharge, confinement for
thirty days, and reduction to the pay grade of E-1. The
convening authority approved confinement for ten days, the bad-
conduct discharge, and reduction to pay grade E-1, and the Court
of Criminal Appeals affirmed in an unpublished opinion.
On appellant’s petition, we granted review of the following
issue:
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
APPEALS ACTED UNREASONABLY, ARBITRARILY, AND CONTRARY
TO THE JURISPRUDENCE OF THIS COURT BY DENYING
APPELLATE DEFENSE COUNSEL THE OPPORTUNITY TO FILE A
MOTION FOR RECONSIDERATION, WHERE THE ERRORS
IDENTIFIED BY APPELLANT HAD NOT BEEN PREVIOUSLY
ASSERTED ON HIS BEHALF.
For the reasons set forth below, we affirm.1
1
The Government has moved to dismiss appellant’s petition as untimely filed,
and to attach certain documents in support of the motion to dismiss. See
Art. 67(b), UCMJ, 10 USC § 867(b) (providing that an accused may petition for
grant of review within sixty days of actual or constructive service of the
Court of Criminal Appeals decision). In United States v. Byrd, 53 M.J. 35, 40
(2000), which was issued six months before the pertinent events in the
present case, we rejected a similar contention on the grounds that the
Government had failed to document properly the actions necessary to
demonstrate constructive service. The record of proceedings in the present
case is similarly flawed. Accordingly, we shall not revisit our decision to
grant review in the present case. The Government's motion to attach is
granted. The motion to dismiss is denied.
2
United States v. Douglas, No. 01-0242/MC
I. BACKGROUND
Appellant’s case was docketed at the Navy-Marine Corps
Court of Criminal Appeals on May 3, 2000. Appellate defense
counsel submitted a request for review by the Court of Criminal
Appeals on September 28, 2000, without specific assignments of
error. The court affirmed the findings and sentence in an
unpublished opinion on October 16, 2000. On December 4, 2000,
appellate defense counsel filed a Motion for Leave to Enlarge
Time to File a Motion for Reconsideration. The motion stated
that “Appellant notes that he has issues that he would like to
raise for the Court’s consideration that he was unable to
discuss with his appellate counsel.” The motion also informed
the court that new appellate counsel would be assigned to the
case and would need time to research the motion for
reconsideration. The motion did not describe the nature of the
issues of concern to appellant, nor did it set forth any reasons
why appellant had been unable to discuss such matters with his
appellate counsel. The court denied the motion on December 12,
2000.
Two weeks later, on December 18, 2000, appellate defense
counsel filed a Motion for Reconsideration for Leave to Enlarge
Time to File a Motion for Reconsideration. The motion simply
3
United States v. Douglas, No. 01-0242/MC
stated “Appellant notes that he has issues that he would like to
raise for the Court’s consideration that he was unable to
discuss with his appellate counsel.” The court denied the
second motion on January 12, 2001.
II. DENIAL OF THE MOTION FOR ENLARGEMENT OF TIME
A party may request reconsideration of a decision by the
Navy-Marine Corps Court of Criminal Appeals “within 30 calendar
days after counsel’s receipt of the decision, or upon motion or
suggestion by appellant within 30 calendar days after
appellant’s receipt of the decision[.]” Rule 4-8.4, Navy-Marine
Corps Court of Criminal Appeals Rules of Practice and Procedure
(NMCCA Rules). In the present case, the thirty-day period
expired on December 4, 2000, the date on which the motion was
filed.2 The request was untimely, however, because a motion for
enlargement of time must be filed with that court “at least 7
calendar days before the filing is due to permit the opposing
party to register opposition and the Court to give timely
consideration.” NMCCA Rule 4-8.1. For purposes of this appeal,
we shall assume that the Court of Criminal Appeals had
discretion to suspend the timeliness requirements concerning
2
Although we do not rely on the undated certificate of service found in the
record of trial to establish the beginning of the thirty-day period,
appellant concedes in his brief that he received notice of the decision on
November 4, 2000.
4
United States v. Douglas, No. 01-0242/MC
appellant’s request. See Rule 25, Courts of Criminal Appeals
New Rules of Practice and Procedure (permitting suspension of
the rules governing the Courts of Criminal Appeals). 44 M.J. LXXV
(1996). The question before us is whether the court erred in
denying appellant’s December 4 motion for an extension of time
and his December 18 motion for reconsideration of that matter.
Denial of a motion for extension of time is reviewed for an
abuse of discretion. Buchanan v. Sherrill,
51 F.3d 227, 228
(10th Cir. 1995).
In the military justice system, if an “accused specifies
error in his request for appellate representation or in some
other form, the appellate defense counsel will, at a minimum,
invite the attention of the [Court of Criminal Appeals] to those
issues[.]” United States v. Grostefon, 12 M.J. 431, 436 (CMA
1982). The Court of Criminal Appeals must, “at a minimum,
acknowledge that it has considered those issues enumerated by
the accused and its disposition of them.”
Id. We have
repeatedly emphasized, however, that the generous protections
afforded by Grostefon do not obviate normal rules of appellate
practice. See, e.g., United States v. Healy,
26 M.J. 394, 397
(CMA 1988) (“Grostefon did not signal abolition of basic rules
of appellate practice and procedure”).
Appellant’s December 4, 2000, motion for an extension of
time placed before the court below nothing more than a vague
5
United States v. Douglas, No. 01-0242/MC
allegation that appellant had “issues that he would like to
raise for the Court’s consideration that he was unable to
discuss with his appellate counsel.” The motion did not
identify with specificity the issues appellant wished to present
to the court. Moreover, the motion did not offer an explanation
as to why such issues were not raised in the original
submission, such as ineffectiveness of his original appellate
defense counsel. Under these circumstances, the Court of
Criminal Appeals did not abuse its discretion in denying the
motion for an extension of time.
In the fourteen days between appellant’s first motion and
the request for reconsideration filed on December 18, 2000, the
new appellate defense counsel had ample opportunity to
communicate with his client, gain a sufficient understanding of
the issues, and prepare an appropriate filing for the court.
The motion for reconsideration, however, was as vague as the
initial motion.
The burden is on appellant to file pleadings that
articulate specific issues under Grostefon or to otherwise
articulate a colorable claim that his rights under Grostefon are
not being protected. The filings in the present case are
deficient in both regards. Under these circumstances, the Court
of Criminal Appeals did not abuse its discretion in denying both
the initial motion and the motion for reconsideration.
6
United States v. Douglas, No. 01-0242/MC
Although not part of our decision, we note that the
decision by the Court of Criminal Appeals did not terminate
appellant’s right to appellate review. Under Article 67(a)(3),
UCMJ, 10 USC § 867(a)(3), appellant had the right to file a
petition for review with our Court, and to demonstrate that
there was good cause for reviewing alleged errors at trial or on
appeal. Appellant exercised that right and filed a total of
seven issues for our consideration.3 We determined that he
established good cause for review as to only one issue, the
issue under consideration in the present opinion. 55 M.J. 165
(2001). We note in particular that appellant’s petition
supplement raised two ineffective assistance of counsel issues
under Grostefon, pertaining to trial defense counsel and
appellate defense counsel. Each assertion consisted of a single
3
Appellant’s supplement included the following issues:
I. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ACTED
UNREASONABLY, ARBITRARILY, AND CONTRARY TO THE JURISPRUDENCE OF THIS
COURT BY DENYING APPELLATE DEFENSE COUNSEL THE OPPORTUNITY TO FILE A
MOTION FOR RECONSIDERATION, WHERE THE ERRORS IDENTIFIED BY APPELLANT
HAD NOT BEEN PREVIOUSLY ASSERTED ON HIS BEHALF.
II. WHETHER THE EVIDENCE IS INSUFFICIENT TO SUPPORT APPELLANT’S
CONVICTION FOR FALSE OFFICIAL STATEMENT.
III. WHETHER THE MILITARY JUDGE ERRED WHEN HE ALLOWED THE
INTRODUCTION OF TESTIMONY TO PROVE THE CONTENTS OF A REQUEST CHIT THAT
WAS NOT INTRODUCED INTO EVIDENCE AND WHICH RESULTED IN APPELLANT’S
CONVICTION OF SPECIFICATION 1 OF CHARGE I.
IV. WHETHER THE CONVENING AUTHORITY’S ACTION, BASED IN PART ON THE
CONVENING AUTHORITY’S CONSIDERATION OF A PRETRIAL AGREEMENT THAT DID
NOT EXIST, MUST BE SET ASIDE.
V. WHETHER A SENTENCE THAT INCLUDES AN UNSUSPENDED BAD-CONDUCT
DISCHARGE IS INAPPROPRIATELY SEVERE FOR THIS APPELLANT.
VI. WHETHER APPELLANT’S TRIAL DEFENSE COUNSEL DENIED HIM THE
OPPORTUNITY TO TESTIFY ON HIS BEHALF DURING THE FINDINGS PORTION OF THE
COURT-MARTIAL.
VII. WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE
DEFENSE COUNSEL.
7
United States v. Douglas, No. 01-0242/MC
sentence, and the petition supplement was devoid of any
supporting details. Appellant’s filing was insufficient to
establish good cause for review, given the requirement to allege
both the manner in which counsel’s performance deprived
appellant of the assistance of counsel and the resultant
prejudice. See United States v. McConnell, 55 M.J. 479, 481
(2001), citing Strickland v. Washington,
466 U.S. 668 (1984).
III. CONCLUSION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
8
