UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
Staff Sergeant (E-5), ) Misc. Dkt. No. 2015-05
FRANKLIN G.U. CRUZ, )
USAF )
Petitioner )
)
v. )
) ORDER
Lieutenant General (O-9) )
CHRISTOPHER F. BURNE, )
USAF, ) Special Panel
)
and )
)
Brigadier General (O-7) )
ANDREW J. TOTH, )
USAF, )
)
and )
)
Colonel (O-6) )
MICHAEL J. APOL, )
USAF, )
)
Respondents )
PER CURIAM:
Petitioner requested extraordinary relief on 21 May 2015 in the nature of a writ of
error coram nobis or, in the alternative, a writ of mandamus. Petitioner asks this court to
grant relief based on several alleged errors or issues regarding his first court-martial in
2012.
Background
Petitioner was convicted at a general court-martial in April 2012 of
wrongful use of methamphetamine, in violation of Article 112a, UCMJ, 10 U.S.C. §
912a. The military judge sentenced him to a bad-conduct discharge, 45 days of
confinement, and reduction to E-1. After the Government lost the trial exhibits and was
thus unable to compile a complete record of trial, the convening authority disapproved
the bad conduct discharge on 14 December 2012 and approved the remainder of the
sentence as adjudged.
Review by the Office of The Judge Advocate General under Article 69, UCMJ,
10 U.S.C. § 869, on 31 January 2013 determined the findings and sentence were
supported in law. The case was not referred to this court for review and therefore the
findings and sentence were final. Petitioner now seeks a writ of error coram nobis or
mandamus from this court, citing four alleged errors or other considerations arising from
his conviction.*
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’ the court’s
existing jurisdiction; and (2) whether the requested writ is ‘necessary or appropriate.’”
LRM, 72 M.J. at 367–68 (quoting Denedo, 66 M.J. at 119). 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). 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.
Our superior court has recently held that consideration of this type of
extraordinary relief is not “in aid” of our jurisdiction because we have no jurisdiction in
the first place. United States v. Arness, 74 M.J. 441, 443 (C.A.A.F. 2015). When the
approved sentence in a general court-martial does not include a sentence to death, a
punitive discharge, or confinement for a year or more, we have no jurisdiction to review
the case unless the Judge Advocate General refers it to us pursuant to Article 69(d)(2),
*
Petitioner contends he was denied due process of law when (1) the Government failed to prepare a complete record
of trial at his general court-martial, (2) the staff judge advocate failed to use a complete record of trial when
preparing his recommendation to the convening authority, (3) the convening authority took action without a legally
sufficient recommendation from the staff judge advocate, and (4) the Office of the Judge Advocate General failed to
examine a complete record of trial when reviewing the case under Article 69, UCMJ, 10 U.S.C. § 869.
2 Misc. Dkt. No. 2015-05
UCMJ. Id. As no such referral has occurred here, we are without jurisdiction to review
the writ.
Conclusion
Accordingly, it is by the court on this 10 day of December 2015,
ORDERED:
The Petition for Extraordinary Relief in the Nature of a Writ of Error Coram Nobis
is hereby DISMISSED for lack of jurisdiction.
FOR THE COURT
LEAH M. CALAHAN
Clerk of the Court
3 Misc. Dkt. No. 2015-05