U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
Misc. Dkt. No. 2018-01
________________________
John R. SUTTON II
Airman First Class (E-3), U.S. Air Force, Petitioner
v.
UNITED STATES
Respondent
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Review of Petition for Extraordinary Relief
Decided 13 July 2018
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Military Judge: Jill M. Thomas.
Approved sentence: Bad-conduct discharge, confinement for 30 days, and
reduction to E-1. Sentence adjudged 31 October 2012 by GCM convened
at the Presidio of Monterey, California.
For Petitioner: Catherine M. Cherkasky, Esquire.
For Respondent: Lieutenant Colonel G. Matt Osborn, USAF; Mary Ellen
Payne, Esquire.
Before HARDING, SPERANZA, and HUYGEN, Appellate Military
Judges.
Senior Judge HARDING delivered the opinion of the court, in which
Judges SPERANZA and HUYGEN joined.
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PUBLISHED OPINION OF THE COURT
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HARDING, Senior Judge:
Petitioner submitted a Petition for Extraordinary Writ in the Nature of a
Writ of Prohibition or in the alternative a Writ of Mandamus. Specifically, Pe-
titioner requests that this court issue a writ of prohibition to “prevent the re-
Sutton v. United States, Misc. Dkt. No. 2018-01
instatement of his bad conduct discharge after its revocation.” Petitioner re-
quests, in the alternative, if we find that the convening authority “was author-
ized to revoke and subsequently reinstate” the bad-conduct discharge, we issue
a writ of mandamus “to effectuate the issuance of his back-pay from the period
of his appellate review until his final alleged discharge, which took place on 27
November 2017.” We conclude that we do not have jurisdiction to issue either
of the requested writs and deny the petition. In doing so we hold that, as for
writs of habeas corpus, this court does not have jurisdiction for writs of prohi-
bition or mandamus when a court-martial has completed direct review under
Article 71(c)(1), Uniform Code of Military Justice (UCMJ), 10 U.S.C. §
871(c)(1), and the case is final under Article 76, UCMJ, 10 U.S.C. § 876.
I. BACKGROUND
In October 2012, a panel of officer and enlisted members at a special court-
martial convicted Petitioner, contrary to his pleas, of one specification of
wrongful sexual contact and one specification of abusive sexual contact, in vi-
olation of Article 120, UCMJ, 10 U.S.C. § 920. The members found Petitioner
not guilty of another specification of wrongful sexual contact but guilty of the
lesser included offense of assault consummated by a battery, in violation of
Article 128, UCMJ, 10 U.S.C. § 928. The adjudged sentence consisted of a bad-
conduct discharge, confinement for 30 days, and reduction to E-1. The conven-
ing authority approved the sentence as adjudged. This court affirmed the find-
ings but affirmed a sentence consisting only of a bad-conduct discharge, con-
finement for 30 days, and reduction to E-2, 1 and the United States Court of
Appeals for the Armed Forces (CAAF) denied review on 3 March 2015. United
States v. Sutton, No. ACM S32143, 2014 CCA LEXIS 610 (A.F. Ct. Crim. App.
21 Aug. 2014) (unpub. op.), rev. denied, 74 M.J. 317 (C.A.A.F. 2015).
Just over a month had passed after appellate review was complete under
Article 71, UCMJ, when the convening authority issued Special Court-Martial
Order No. 4, dated 6 April 2015, directing that the bad-conduct discharge be
executed. This court-martial order (CMO), however, was not properly distrib-
uted to the appropriate offices whose duty it was to issue a discharge certificate
and complete a final pay and accounting. Consequently, Petitioner was not is-
sued a discharge certificate; a final pay and accounting was not completed; and
Petitioner’s case was not final under Article 76, UCMJ. Notwithstanding the
lack of a discharge certificate, Petitioner, having received a copy of the CMO,
1 We granted relief due to unreasonable and unexplained post-trial delay pursuant to
United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002). Appellant’s court-martial con-
cluded on 31 October 2012. The convening authority took action on 28 January 2013.
Appellant’s case was docketed with this court on 22 May 2013, 114 days after action.
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believed that he was no longer a member of the Armed Forces and had become
a civilian.
On 6 November 2015, the Air Force Office of Special Investigations (AFOSI)
was notified of a civilian law enforcement investigation into a report of sexual
assault by a victim alleging that Petitioner forcibly sodomized him while they
were both in training at the Defense Language Institute at the Presidio of Mon-
terey, California. Civilian law enforcement in Monterey, California closed their
investigation when the alleged victim refused to cooperate. The victim ex-
pressed his preference for the military to exercise jurisdiction and AFOSI
opened an investigation in July 2016. After inquiry into Petitioner’s status and
discovery that the punitive discharge had not been executed as ordered earlier
in 2015, the legal office supporting the convening authority concluded that Pe-
titioner was still a member of the United States Air Force and subject to UCMJ
jurisdiction.
On 2 March 2017, the convening authority issued Special Court-Martial
Order No. 2, which stated the following:
In the special court-martial case of [Petitioner], Special Court-
Martial Order No. 4, dated 6 April 2015, is revoked.
On the same day, the convening authority issued a memorandum to Peti-
tioner entitled “Recall from Required Excess Leave” that informed him that
“[d]ue to an error in the processing of you[r] discharge, you are no longer on
required excess leave and will be restored to active duty.” Petitioner was or-
dered to report to his previous duty station. Petitioner included in his petition
an amendment to the travel order as evidence that his punitive discharge had
been revoked. According to the amendment, the original CMO read that “mem-
ber’s court-martial was set aside” and was amended to read, “due to a pro-
cessing error your discharge, your special court martial is revoked [sic].” These
documents of March 2017 constituted the first contact Petitioner had with the
Air Force since the April 2015 CMO.
Upon Petitioner’s return to duty in April 2017, he was served with pre-
ferred charges based on the reported sexual assault. An Article 32, UCMJ, 10
U.S.C. § 832, hearing was conducted on 24 July 2017. After the hearing, the
alleged victim refused to participate further, and the charges were not referred
to court-martial.
On 24 October 2017, the convening authority issued Special Court-Martial
Order No. 1, which read as follows:
In the special court-martial case of [Petitioner], the proceedings
of which were promulgated in Special Court-Martial Order No.
1, Headquarters 17th Training Wing (AETC), dated 28 January
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Sutton v. United States, Misc. Dkt. No. 2018-01
2013, upon appellate review, the U.S. Air Force Court of Crimi-
nal Appeals reassessed the sentence and only approved so much
of the sentence as consists of reduction to the grade of E-2, con-
finement for 30 days and a bad conduct discharge. All rights,
privileges, and property of which the accused has been deprived
by virtue of that portion of the sentence so reassessed will be
restored. Article 71(c) having been complied with, appellate re-
view is complete, and the bad conduct discharge will be executed.
The sentence was adjudged by officer and enlisted members on
31 October 2012 (ACM S32143).
On 29 November 2017, the bad-conduct discharge was executed and Peti-
tioner was issued a discharge certificate. In March 2018, Petitioner submitted
his Petition for Extraordinary Writ, citing to the All Writs Act as a basis for
this court’s jurisdiction to issue the requested writ. 2
II. DISCUSSION
“The All Writs Act, 28 U.S.C. § 1651(a), grants this court authority to issue
extraordinary writs necessary or appropriate in aid of its jurisdiction.” United
States v. Chapman, 75 M.J. 598, 600 (A.F. Ct. Crim. App. 2016) (citing Loving
v. United States, 62 M.J. 235, 246 (C.A.A.F. 2005)). “However, the Act does not
enlarge our jurisdiction, and the writ must be in aid of our existing statutory
jurisdiction.” Id. (citing Clinton v. Goldsmith, 526 U.S. 529, 534–35 (1999)).
“The courts of criminal appeals [(CCA)] are courts of limited jurisdiction, de-
fined entirely by statute.” United States v. Arness, 74 M.J. 441, 442 (C.A.A.F.
2015). In Chapman, notwithstanding that the petitioner in that case was con-
tinuing to serve his term of confinement, we held that we do not have jurisdic-
tion over habeas corpus petitions when a court-martial has completed direct
review under Article 71, UCMJ, and is final under Article 76, UCMJ. Chap-
man, 75 M.J. at 600. In light of our holding in Chapman, we consider two ques-
tions to determine whether we have jurisdiction for writs of prohibition and
mandamus in Petitioner’s case. Does completion of direct review of a court-
martial under Article 71, UCMJ, and finality under Article 76, UCMJ, extin-
guish a CCA’s jurisdiction over prohibition or mandamus petitions? If so, does
this court lack jurisdiction over the instant petition because Petitioner’s court-
martial has completed direct review under Article 71, UCMJ, and is final un-
der Article 76, UCMJ?
2 Petitioner also cites to the Air Force Court of Criminal Appeals Rule of Practice and
Procedure 2(b), which states: “The Court may, in its discretion, entertain petitions for
extraordinary relief including, but not limited to, writs of mandamus, writs of prohibi-
tion, writs of habeas corpus, and writs of error coram nobis.”
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We hold that this court does not have jurisdiction for writs of prohibition or
mandamus when a court-martial has completed direct review under Article 71,
UCMJ, and the case is final under Article 76, UCMJ, and, as Petitioner’s case
has completed direct review and is final, we do not have jurisdiction over the
writ of prohibition or mandamus requested by Petitioner.
Effect of Completion of Direct Review and Finality on Jurisdiction
In deciding Chapman, we relied on what Loving implied: if proceedings are
final under Article 76, UCMJ, the military courts do not have jurisdiction over
a writ of habeas corpus.
In Loving, the petitioner had been sentenced to death but the sentence had
not been approved by the President; the CAAF determined that the military
courts had jurisdiction over a habeas corpus petition when there is a final judg-
ment as to the legality of the proceedings under Article 71(c)(1), UCMJ, but
before the case is final under Article 76, UCMJ. Loving, 62 M.J. at 246. We
took the next step and decided that when the proceedings are final under Ar-
ticle 76, UCMJ, the military courts no longer have jurisdiction over a habeas
corpus petition. Chapman, 75 M.J. at 600.
We now consider whether finality under Article 76, UCMJ, should likewise
extinguish a CCA’s jurisdiction over a prohibition or mandamus petition. In
doing so we explicitly acknowledge and distinguish the Supreme Court’s hold-
ing in United States v. Denedo, 556 U.S. 904, 916–17 (2009), that military
courts have jurisdiction over coram nobis petitions even after the proceedings
are final under Article 76, UCMJ, and its rationale that a coram nobis petition
is an extension of the original proceeding. Finality under Article 76, UCMJ,
does not divest a CCA of “jurisdiction to entertain coram nobis petitions to con-
sider allegations that an earlier judgment of conviction was flawed in a funda-
mental respect.” Id. at 917. In this respect, a writ of coram nobis is “in aid of
our existing statutory jurisdiction” even after a court-martial is final under
Article 76, UCMJ. Writs of prohibition and mandamus, however, do not share
this characteristic and are not an extension of the direct appeal.
A writ of prohibition is the process by which a superior court prevents an
inferior court from exceeding its jurisdiction; it prevents the usurpation of ju-
dicial power and is used to confine courts to the proper exercise of their power
and authority. United States v. Gross, 73 M.J. 864, 866–67 (A. Ct. Crim. App.
2014). Its counterpart is the writ of mandamus, which is used, inter alia, “‘to
compel [officers and commanders] to exercise [their] authority when it is [their]
duty to do so.’” Dew v. United States, 48 M.J. 639, 648 (A. Ct. Crim. App. 1998)
(quoting Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26 (1943)). The rationale
in Denedo that extends jurisdiction beyond the finality of Article 76, UCMJ,
does not apply to writs of prohibition and mandamus. In the simplest terms,
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there is no one to order to take or not take an action after a case is final under
Article 76, UCMJ, and writs of mandamus and prohibition do not encompass
allegations that an earlier judgment of conviction was flawed in a fundamental
respect. Additionally, we find no reason to distinguish the answer to the juris-
dictional question for these writs from our decision in Chapman as to a writ of
habeas corpus. We do not have jurisdiction for writs of prohibition or manda-
mus when a court-martial has completed direct review under Article 71,
UCMJ, and the case is final under Article 76, UCMJ.
Completion of Direct Review and Finality in Petitioner’s Case
Whether a court-martial has completed direct review under Article 71,
UCMJ, is a straightforward question in this case. This court affirmed the find-
ings and sentence and the CAAF denied review. Sutton, unpub. op., rev. denied,
74 M.J. 317 (C.A.A.F. 2015). Petitioner’s court-martial has a final judgment as
to the legality of the proceedings under Article 71, UCMJ. Whether a court-
martial is final under Article 76, UCMJ, is usually an equally straightforward
inquiry. For example, the convening authority’s order that the punitive dis-
charge be executed provided a sufficient basis in Chapman to conclude that
case was final under Article 76, UCMJ.
In Petitioner’s case, no such presumption of regularity is warranted. The
failure to distribute the 6 April 2015 CMO directing execution of the bad-con-
duct discharge prevented its execution. However, once the determination was
made to dispose of the reported misconduct by nonjudicial punishment, the
convening authority again ordered the bad-conduct discharge executed, and
Petitioner received a discharge certificate. Consequently, there is a final judg-
ment as to the legality of the proceedings; all portions of the sentence have
been ordered executed under Article 71, UCMJ; and the case is final under
Article 76, UCMJ. We, therefore, do not have jurisdiction over the writ of pro-
hibition or mandamus requested by Petitioner.
III. CONCLUSION
Petitioner’s case is complete and final. Accordingly, the petition for extraor-
dinary relief in the nature of a writ of prohibition or mandamus is hereby DE-
NIED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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