In Re NMCCA No. 201600249
D’Urville A. CHRISTOPHER
Cryptologic Technician (Technical) PETITION FOR EXTRAORDINARY
First Class (E-6), USN RELIEF IN THE NATURE OF
A WRIT OF MANDAMUS
Petitioner and
APPLICATION FOR A STAY OF
UNITED STATES PROCEEDINGS
Respondent Panel 1
ORDER
Denying Petition and Stay
This case is before us pursuant to a Petition for Extraordinary Relief in the Nature of a
Writ of Mandamus and a Request to Stay Proceedings. Petitioner requests that this Court
order dismissal of all charges and specifications, averring (1) that the court-martial lacks in
personam jurisdiction over him and (2) that the current charges were improperly referred
to a court-martial without the Secretary of the Navy’s approval. He further requests that
this Court stay his proceedings until we rule on the Petition.
I. BACKGROUND
This is not the first time Petitioner has sought a writ of mandamus claiming lack of per-
sonal jurisdiction. Nearly six years ago, this Court denied a similar request, ruling that,
even assuming Petitioner was properly retired at the time of trial, “Article 2(a)(4), UCMJ,
confers in personam jurisdiction over retired members of a regular component of the armed
forces who are entitled to pay.” 1 Petitioner was subsequently convicted of three specifica-
tions of assault consummated by a battery upon a child and one specification of indecent
acts with a child, 2 with an approved sentence of two year’s confinement and reduction to
pay grade E-1.
1 Christopher v. United States, No. 201500066 2015 CCA LEXIS 151, at *7, (N-M Ct. Crim. App.
Apr. 21, 2015) (unpublished) [Christopher I].
2 Articles 128 and 134, Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 928, 944.
In Re Christopher, NMCCA No. 201600249
Order Denying Petition and Stay
While awaiting completion of appellate review of that court-martial, Petitioner was ad-
ministratively discharged on 24 April 2017. On 28 December 2017, this Court set aside the
findings and sentence and authorized a rehearing. 3
At the rehearing—on charges referred to a general court-martial on 11 March 2019 after
litigation and correction of an earlier improper referral—Petitioner’s defense counsel again
moved to dismiss the charges for lack of in personam jurisdiction, this time based upon the
April 2017 discharge. The military judge denied the motion, quoting United States v. Davis,
63 M.J. 171, 177 (C.A.A.F. 2006): “Where appellate courts are invoked by an appellant and
a rehearing is authorized, an intervening administrative discharge does not serve to termi-
nate jurisdiction over the person of the accused for purposes of that rehearing.” Petitioner
later asked the military judge to reconsider this ruling. Again, the motion to dismiss for
lack of personal jurisdiction and improper referral was denied.
II. DISCUSSION
A Writ of Mandamus is a drastic remedy that should be used only in extraordinary cir-
cumstances. United States v. Labella, 15 M.J. 228 (C.M.A. 1983). A petitioner faces a high
hurdle of showing that “(1) there is no other adequate means to obtain relief; (2) the right to
issuance of the writ is clear and indisputable; and (3) the issuance of the writ is appropriate
under the circumstances.” Hasan v. Gross, 71 M.J. 416, 418 (C.A.A.F. 2012) (citing Cheney
v. United States District Court for D.C., 542 U.S. 367, 380-81 (2004)). We find Petitioner has
not met this standard for either basis claimed.
Regarding in personam jurisdiction, we find Petitioner’s attempts to distinguish Davis
are inadequate to convince us that he has a clear, indisputable right to the writ sought.
Petitioner has also failed to demonstrate that his claim of improper referral, based on the
lack of secretarial authorization to try a retiree, was raised at the court below. Thus, he has
failed to demonstrate the lack of “other adequate means to obtain relief.” Finally, the issues
raised by Petitioner are ones that can be addressed in the normal course of appellate
review. Accordingly, Petitioner has failed to demonstrate an entitlement to the extraordi-
nary remedy requested.
3 United States v. Christopher, No. 201600249, 2017 CCA LEXIS 775 (N-M. Ct. Crim.
App. Dec 28, 2017) (unpublished) [Christopher II], aff’d without opinion, 77 M.J. 334
(C.A.A.F. 2018). Although finding that the court-martial had personal jurisdiction over
Petitioner, this Court found that his trial defense team was ineffective.
2
In Re Christopher, NMCCA No. 201600249
Order Denying Petition and Stay
Upon consideration of the Petition for Extraordinary Relief in the Nature of a Writ of
Mandamus and Application for a Stay in Proceedings, filed on behalf of Petitioner on
3 March 2021, it is, by the Court, this 7th day of April 2021,
ORDERED:
That the Petition for Extraordinary Relief in the Nature of a Writ of Mandamus and the
Request to Stay Proceedings are DENIED without prejudice to Petitioner’s right to raise
the issues before this Court in the normal course of appellate review.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
Copy to:
NMCCA (51.1)
Lieutenant Commander Andrea M. Kissner, JAGC, USN, Counsel for Petitioner
Lieutenant Colonel Roger E. Mattioli, USMC, Military Judge
Lieutenant Colonel Michael D. Zimmerman, USMC, Military Judge
Captain Jason D. Samuel, USMC, Trial Counsel
Lieutenant Latena M. Hazard, JAGC, USN, Trial Counsel
Lieutenant Raymond E. Bilter, JAGC, USN, Trial Counsel
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