UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
Captain DAVID H. JUILLERAT,
United States Air Force
v.
UNITED STATES
Misc. Dkt. No. 2016-03
22 February 2016
Sentence adjudged 17 May 2000 by GCM convened at MacDill Air Force
Base, Florida. Military Judge: Harvey A. Kornstein.
Approved sentence: Dismissal, confinement for 22 months, and forfeiture
of all pay and allowances.
Before
ALLRED, MITCHELL, and MAYBERRY
Appellate Military Judges
OPINION OF THE COURT
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under AFCCA Rule of Practice and Procedure 18.4.
MITCHELL, Senior Judge:
The pro se Petitioner filed a request with this court asking for clarification of the
facts and law supporting his conviction for bigamy. “The label placed on a petition for
extraordinary relief is of little significance.” Nkosi v. Lowe, 38 M.J. 552, 553
(A.F.C.M.R. 1993). We will consider this as a petition for writ of error coram nobis. We
deny the petition.
Background
Petitioner was convicted, pursuant to his pleas, of four specifications for
wrongfully possessing and using false identification documents with the intent to deceive,
one specification for conduct unbecoming an officer, and six specifications for making
false official statements and bigamy, in violation of Articles 107, 133, and 134, UCMJ,
10 U.S.C. §§ 907, 933, 934. His approved sentence included a dismissal, confinement
for 22 months, and forfeiture of all pay and allowances. United States v. Juillerat, ACM
34205 (A.F. Ct. Crim. App. 2002). In his direct appeal, Petitioner raised nine issues for
our consideration pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). He
also petitioned this court for a new trial. Id. We denied the petition for a new trial and
affirmed the approved findings and sentence. Id. Further review was denied by our
superior court on 30 June 2003. United States v. Juillerat, 59 M.J. 32 (C.A.A.F. 2003).
Discussion
The All Writs Act, 28 U.S.C. § 1651(a), grants this court authority to issue
extraordinary writs. Loving v. United States, 62 M.J. 235, 246 (C.A.A.F. 2005) (citing
Clinton v. Goldsmith, 526 U.S. 529, 534 (1999)). “The writ of coram nobis is an ancient
common-law remedy designed ‘to correct errors of fact.’” United States v. Denedo, 556
U.S. 904, 910 (2009) (quoting United States v. Morgan, 346 U.S. 502, 507 (1954)).
Appellate military courts have jurisdiction over “coram nobis petitions to consider
allegations that an earlier judgment of conviction was flawed in a fundamental respect.”
Id. at 917. The writ of coram nobis is an extraordinary writ and an extraordinary remedy.
Id. It should not be granted in the ordinary case; rather, it should be granted only under
circumstances compelling such action to achieve justice. Id.; Morgan, 346 U.S. at 511;
Correa-Negron v. United States, 473 F.2d 684, 685 (5th Cir. 1973).
Although a petitioner may file a writ of coram nobis at any time, to be entitled to
the writ he must meet the following 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 v. United States, 66 M.J. 114, 126 (C.A.A.F. 2008), aff’d and remanded, 556
U.S. 904 (2009).
This court uses a two-tier approach to evaluate claims raised via a writ of coram
nobis. First, the petitioner must meet the aforementioned threshold requirements for a
writ of coram nobis. Id. If the petitioner meets the threshold requirements his claims are
then evaluated under the standards applicable to his issues. Id. Evaluating Petitioner’s
case under the coram nobis threshold requirements, we find that he has failed to satisfy at
least one threshold requirement, and the failure to meet any one alone warrants a denial
of Petitioner’s writ.
2 Misc. Dkt. No. 2016-03
Petitioner is, at this point, challenging the sufficiency of his plea. See United
States v. Phillips, 74 M.J. 20, 21–22 (C.A.A.F. 2015) (“The appellant bears the burden of
establishing that the military judge abused that discretion, i.e., that the record shows a
substantial basis in law or fact to question the plea.”). Petitioner fails to provide any
valid reasons for not seeking relief earlier by challenging his plea during his direct review
under Article 66, UCMJ, 10 U.S.C. § 866.
Conclusion
Petitioner has not carried his burden to demonstrate that his case presents
extraordinary circumstances warranting issuance of the writ of error coram nobis.
Accordingly, it is by the court on this 22 day of February 2016,
ORDERED:
That the petition for extraordinary relief in the nature of a writ of coram nobis is
hereby DENIED.
FOR THE COURT
LEAH M. CALAHAN
Clerk of the Court
3 Misc. Dkt. No. 2016-03