Diaz v. The Judge Advocate General of the Navy

IN THE CASE OF

Salvador DIAZ, Petitioner

v.

THE JUDGE ADVOCATE GENERAL OF THE NAVY, Respondent

No. 03-8014

Crim. App. No. 200200374

United States Court of Appeals for the Armed Forces

Decided August 5, 2003

Counsel

For Petitioner: Lieutenant Colin A. Kisor, JAGC, USNR.

For Respondent: Lieutenant Frank L. Gatto, JAGC, USNR, and
Commander R. P. Taishoff, JAGC, USN.

Amicus Curiae: Kevin J. Barry, Esq., Eugene R. Fidell, Esq.,
and Stephen A. Saltzburg, Esq., for the National Institute of
Military Justice.

This opinion is subject to editorial correction before final publication
Diaz v. The Judge Advocate General of the Navy, No. 03-8014/NA

PER CURIAM:

The Petitioner, Navy Firecontrolman Chief Salvador Diaz,

initiated this proceeding by filing a Motion for Appropriate

Relief which raised issues concerning the timeliness of the

appellate process being afforded him as well as potential issues

of ineffective assistance of appellate defense counsel. In

response, this Court ordered the Respondent Judge Advocate

General of the Navy (Government) to show cause why appropriate

relief should not be granted. The Government’s Answer in

response to these serious issues is not persuasive. We conclude

that the Navy-Marine Corps Court of Criminal Appeals should have

taken action to ensure the protection of Petitioner’s rights

when he sought relief from that court. We therefore remand this

matter to the Court of Criminal Appeals to take appropriate

action and issue such orders as are necessary to ensure the

timely filing of an Assignment of Errors and Brief on behalf of

Petitioner, and we order such further action as directed in this

opinion.

Background

Petitioner was tried by a general court-martial on June 14,

October 30, and November 27 – December 1, 2000. Contrary to his

pleas of not guilty, he was convicted of multiple charges of

rape and indecent acts with his 12-year-old daughter. On

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December 1, 2000 (day zero),1 Petitioner was sentenced to a

dishonorable discharge, confinement for nine years, total

forfeiture of all pay and allowances, and reduction to E-1. The

convening authority approved the sentence without modification

on December 21, 2001 (day 385).2

The Navy-Marine Corps Appellate Review Activity received

Petitioner’s case on February 25, 2002 (day 451), and it was

docketed with the Navy-Marine Corps Court of Criminal Appeals on

February 28, 2002 (day 454). Petitioner’s first appellate

defense counsel filed ten requests for enlargement of time to

file an assignment of errors. On December 3, 2002 (day 732),

Petitioner filed a pro se petition for a Writ of Habeas Corpus

with the Court of Criminal Appeals requesting release from

confinement pending appeal. This request was based on an

assertion that Petitioner’s appellate defense counsel had not

even commenced an initial review of the record of trial because

of an excessive caseload. The court denied the writ petition on

1
As Petitioner’s primary allegation is that his appellate review
has not been processed in a timely manner, we will note the
number of days from sentencing upon which each significant event
in the post-trial process occurred.
2
The Government notes in a footnote that the post-trial delay
from sentencing to action “was not unreasonable under the
circumstances.” Because the reasonableness of any delay between
sentencing and the convening authority’s action is a matter for
consideration initially by the Court of Criminal Appeals, see
United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), that issue
is not before us at this time.

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December 4, 2002 (day 733), though it did note that Petitioner

“expressed concern with post-trial and appellate delay in his

case.” Petitioner filed for reconsideration, which was denied

on February 11, 2003 (day 802).

Petitioner then filed a Motion for Appropriate Relief with

this Court. We construed his motion as a Petition for

Extraordinary Relief, and on June 16, 2003 (day 927), we ordered

the Government to show cause why relief should not be granted.

The Government filed an Answer to the Show Cause Order on June

26, 2003 (day 937). Represented by a new appellate defense

counsel, Petitioner filed his Reply to Respondent’s Answer on

July 3, 2003 (day 944).

The Government’s Answer

Although the Government acknowledges that the Due Process

and Equal Protection Clauses of the Constitution apply to review

of a case before the service Courts of Criminal Appeals, and

that “[d]elays caused by Government or State paid attorneys

representing an accused on appeal have been held attributable to

the Government[,]” the Government broadly asserts that “[t]he

appellate delay in this case was neither excessive nor has it

amounted to a prejudicial violation of Petitioner’s due process

rights.”

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Despite the fact that Petitioner’s appellate defense

counsel have had this case since late February 2002, the

Government argues that Petitioner has failed to show that this

delay, “in and of itself, is sufficient to characterize the

delay as inordinate and excessive giving rise to a due process

claim.” The Government also notes that Petitioner “has not even

served one-third of his nine year sentence,” although this fact

would seem to underscore rather than excuse the failure to

initiate a legal and factual review that could conceivably alter

Petitioner’s conviction, sentence, or both.

The Government makes several specific arguments why the

delay should not be considered excessive:

• Due to the unique rights accorded servicemembers in our court-

martial system, this Court should acknowledge that a detailed

appellate counsel’s caseload can be an appropriate factor in

deciding when the length of appellate delay becomes inordinate

and excessive;

• This Court should not judge the length of time it takes a

detailed military counsel to perfect an appeal in relation to

the time it takes to perfect such an appeal when an appellant

decides to hire his own private civilian counsel;

• This Court should not judge the length of time it takes a

detailed military counsel to perfect an appeal in relation to

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civilian “public defenders” who are required to represent only

indigent defendants, not all defendants, before the court;

• The military justice system requires the mandatory review of a

vast number of court-martial cases regardless of whether the

servicemember files a notice of appeal, and it is therefore

reasonable and not a violation of due process when an appeal

takes longer to perfect and decide in the military justice

system than in the civilian justice system;

• This delay is not inordinate or excessive because of the size

of the record of trial, the seriousness of the charges, the

number of issues identified by Petitioner, and the “high

volume of cases submitted to the lower Court.”

The Government summarizes that “the advocacy of the parties, the

institutional vigilance of both the lower Court and the

Government, as well as the reasons for the delay all justify the

delay in this case.”

Even if this Court were to find a violation of due process,

the Government argues that Petitioner is not entitled to relief,

because he has not established substantial prejudice. The

Government urges that the factors to be used in determining

substantial prejudice in a case of speedy appellate review are

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similar to those used to determine prejudice for lack of a

speedy trial3 and that Petitioner has not met his burden.

Petitioner’s Reply

Petitioner argues in his Reply that the delay has been

inordinate and excessive. Petitioner focuses primarily on the

root problem that caused the delay but also addresses the

various rationalizations offered by the Government for the

delay.

Petitioner notes that his case is currently on its eleventh

period of enlargement. He points out that his case has yet to

receive any substantive review by his appellate counsel, even

though counsel has had his case since February 28, 2002. He has

been confined post-trial for more than two and one-half years;

he has asserted his right to speedy appellate review; and his

case is now in the hands of a second detailed appellate defense

counsel. In her tenth request for enlargement, Petitioner’s

first appellate defense counsel cited her “caseload commitments”

as cause for the requested relief. That “commitment” included

“sixty-six cases on her docket totaling more than 16,000 pages

3
“1) preventing oppressive incarceration pending appeal; 2)
minimizing anxiety and concern of those convicted awaiting the
outcome of their appeal; and 3) limiting of the possibility that
Petitioner’s grounds for appeal or, in the event of reversal,
his defense in the case on retrial might be impaired.”

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[of trial transcript,] eleven [cases] in thirteenth enlargement

or higher.”

Now on an eleventh enlargement, Petitioner’s case is in the

hands of a new appellate defense counsel. That new counsel

notes that there is “little hope of [Petitioner’s] case being

exhaustively read and the appellate issues briefed anytime soon

given the present workload of the current Appellate Defense

Counsel.”

Petitioner’s counsel also informs us that there are 1,463

cases pending initial review and filing by Navy-Marine Corps

appellate defense counsel, and the average caseload, per

counsel, in the Navy-Marine Corps Appellate Defense Division is

“70 cases comprising [an] average total of 18,100 pages of trial

transcript.” Petitioner asserts that the increasingly long

period of “continuing” appellate delay, during which he has

actively pursued his appeal, is grounds for extraordinary

relief.

In contending that he is being denied speedy appellate

review, Petitioner takes specific issue with several of the

Government’s arguments. Petitioner disputes the suggestion that

he should seek civilian counsel. Petitioner asserts that he is

indigent, was sentenced to total forfeitures, has gone through

bankruptcy, has no property, and has only about $3,200 in

various accounts. Additionally, Petitioner notes that the

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suggestion that he should protect his right to a speedy

appellate review by hiring civilian counsel “is entirely

spurious insofar as it amounts to an assertion that a timely

appeal under Article 66, UCMJ, is available only to those who

can pay for it.”

Petitioner next disputes the Government’s claim that the

issues Petitioner identified for review do not make a “colorable

claim of any possibility or probability of relief on Appeal.”

Petitioner notes that he has identified 14 issues in pro se

pleadings filed at the Court of Criminal Appeals. These issues

include “ineffective assistance of counsel, unlawful command

influence, and other procedural and evidentiary errors” which

have yet to be reviewed or ruled upon by any appellate court.

Petitioner questions the soundness of the Government’s claim

that, in order to be entitled to relief from this delay, he must

show that his direct appeal has merit, when he “has not had the

assistance of an appellate defense attorney in identifying,

researching, and briefing the legal issues which he has

identified.”

Petitioner further asserts that he is anxiously languishing

in prison, a fact evidenced by his detailed pro se pleadings and

his efforts to prosecute his appeal even though his appellate

defense counsel have been unable to provide him professional

assistance.

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Discussion

This Court has long recognized that an accused has the

right to a timely review of his or her findings and sentence.

See United States v. Williams, 55 M.J. 302, 305 (C.A.A.F. 2001).

That review spans a continuum of process from review by the

convening authority under Article 60, Uniform Code of Military

Justice [hereinafter UCMJ], 10 U.S.C. § 860 (2000), to review by

a Court of Criminal Appeals under Article 66, UCMJ, 10 U.S.C. §

866 (2000), to review, in appropriate cases, by this Court under

Article 67, UCMJ, 10 U.S.C. § 867 (2000). An accused has the

right to effective representation by counsel through the entire

period of review following trial, including representation

before the Court of Criminal Appeals and our Court by appellate

counsel appointed under Article 70, UCMJ, 10 U.S.C. § 870

(2000). See United States v. Palenius, 2 M.J. 86 (C.M.A. 1977).

We have had repeated opportunities to address issues of

delay in the various stages of that review process. See, e.g.,

United States v. Tardif, 57 M.J. 219, 220 (C.A.A.F. 2002)(13-

month delay between sentencing and referral to Court of Criminal

Appeals); United States v. Hock, et al., 31 M.J. 334 (C.M.A.

1990)(delay of several years between service of lower court

decisions and petitions for review at this Court); United States

v. Dunbar, 31 M.J. 70 (C.M.A. 1990)(three-year delay between

trial date and docketing at the service court); United States v.

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Clevidence, 14 M.J. 17 (C.M.A. 1982)(313-day delay between

sentence and final action by supervisory authority); United

States v. Green, 4 M.J. 203 (C.M.A. 1978)(nine-month delay in

transmission of appeal from service court to this Court); United

States v. Timmons, 22 C.M.A. 226, 46 C.M.R. 226 (1973)(six-month

delay between sentencing and action by convening authority). We

are, for present purposes, concerned with the delay in the

processing of Petitioner’s case under Article 66. See __ M.J.

(3 n.2).

Petitioner’s right to a full and fair review of his

findings and sentence under Article 66 embodies a concomitant

right to have that review conducted in a timely fashion.

Additionally, Petitioner has a constitutional right to a timely

review guaranteed him under the Due Process Clause. Harris et

al. v. Champion et al., 15 F.3d 1538 (10th Cir. 1994)(quoting

Evitts v. Lucey, 469 U.S. 387, 393 (1985)(where state has

created appellate process as integral part of criminal justice

system, procedures used in deciding appeal must comport with

demands of due process and equal protection)); United States v.

Antoine, 906 F.2d 1379 (9th Cir. 1990); United States ex rel.

Green v. Washington, 917 F. Supp. 1238 (N.D. Il. 1996).

The Government has advanced several arguments as to why the

period of delay should not be considered as excessive or

inordinate and should, in fact, be condoned by this Court as a

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part of the normal appellate process. We will address the

Government’s major arguments:

1. The Government argues that due to the unique rights

afforded servicemembers by Congress, this Court should

take the caseload of a detailed appellate defense

counsel into account when determining whether an

appellate delay is excessive. The Government, however,

has not identified support in the applicable

legislation or legislative history for the proposition

that Congress intended that the rights afforded

servicemembers under the UCMJ should be used as a basis

to diminish their right to timely appellate review.4

Appellate counsel caseloads are a result of management

and administrative priorities and as such are subject

4
The American Bar Association’s Model Rules of Professional
Conduct (2003 ed.) require that counsel “shall act with
reasonable diligence and promptness in representing a client.”
Model Rules of Prof’l Conduct R. 1.3. “A lawyer’s work load
must be controlled so that each matter can be handled
competently.” Id. at cmt. 2. Article 70(a), Uniform Code of
Military Justice, 10 U.S.C. 870(a) (2000), places the
responsibility for detailing appellate counsel on the
Government. If an onerous caseload hinders the timely
processing of appeals or infringes on the effective assistance
of counsel, then it is the Government, not an appellant, who
bears the responsibility to take corrective action. See, e.g.,
Green, 917 F. Supp. 1238, 1250 (N.D. Il. 1996)(finding, based on
expert testimony, that assignment of significantly more than 25
cases of average complexity to one appellate attorney in a
single calendar year would create unacceptably high risk that
the attorney would be unable to brief the cases competently
within a reasonable period of time).

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to the administrative control of the Government. To

allow caseloads to become a factor in determining

whether appellate delay is excessive would allow

administrative factors to trump the Article 66 and due

process rights of appellants. To the contrary, the

Government has a statutory responsibility to establish

a system of appellate review under Article 66 that

preserves rather than diminishes the rights of

convicted servicemembers.5 In connection with that

responsibility, the Government has a statutory duty

under Article 70 to provide Petitioner with appellate

defense counsel who is able to represent him in both a

competent and timely manner before the Court of

Criminal Appeals.

2. The Government suggests that Petitioner should retain

private counsel, but also argues that this Court should

not compare the length of time it takes a detailed

military counsel to perfect an appeal to the length of

time that it takes a privately retained civilian

5
This Court has recognized that Congress, when defining the
rights of servicemembers, was not limited to the minimum
requirements established by the Constitution, and in many
instances provided safeguards unparalleled in the civilian
sector. United States v. McGraner, 13 M.J. 408, 414 (C.M.A.
1982). The appellate rights afforded to servicemembers is but
one example where Congress has provided greater rights than
found in the civilian sector.

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counsel. This argument first assumes that Petitioner

has the resources to retain a civilian counsel, which

he has asserted that he does not. It further assumes

that there are two standards in military justice – a

standard for detailed military counsel and a standard

for privately retained civilian counsel – and that the

standards for the military counsel are lower than what

is expected of a civilian counsel. In fact, the

standards for representation of servicemembers by

military or civilian counsel in military appellate

proceedings are identical.

3. The Government argues that the length of time it takes

detailed military appellate defense counsel to perfect

an appeal should not be compared to public defenders in

the public sector. The duty of diligent representation

owed by detailed military counsel to servicemembers is

no less than the duty of public defenders to indigent

civilians. Courts have not hesitated to take action

when public defender programs fail to represent their

clients in a timely manner. See, e.g., Harris, 15 F.3d

at 1538; Green, 917 F. Supp. at 1238; In re Order On

Prosecution of Criminal Appeals by the Tenth Judicial

Circuit Public Defender, 561 So.2d 1130 (Fla. 1990)(per

curiam). The military appellate courts should be no

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less diligent in protecting the rights of convicted

servicemembers.

4. The Government argues that the military justice system

requires that a “vast number” of court-martial cases be

reviewed regardless of whether the servicemember files

a notice of appeal, and that as a result the appellate

process in the military necessarily takes longer than

in the civilian justice system. In making this

argument, the Government does not give appropriate

consideration to the “awesome, plenary, de novo” nature

of the review by the Courts of Criminal Appeals under

Article 66. United States v. Cole, 31 M.J. 270, 272

(C.M.A. 1990). Unlike the civilian criminal justice

system, the Courts of Criminal Appeals have unique fact

finding authority, and that aspect of a servicemember’s

case is not concluded until that review is completed.

The nature of this review calls for, if anything, even

greater diligence and timeliness than is found in the

civilian system.

5. The Government argues that the “institutional

vigilance” present in this and other cases ensures that

there can be no due process violations. In making this

argument, the Government asserts that Petitioner’s

first appellate defense counsel worked diligently,

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prioritized her cases, was available to Petitioner and

guaranteed his access to appellate courts. The fact

remains, however, that after February 28, 2002, through

ten enlargements of time, Petitioner’s first appellate

defense counsel did not look at the substance of

Petitioner’s case and did not know when she would be

able to do so. The appointment of a new appellate

defense counsel did not rectify this problem, because

that attorney concedes that he will not be able to look

at the case in the foreseeable future. We reject any

suggestion that “institutional vigilance” is evident in

this case or that vigilance has been applied to ensure

that Petitioner receives the rights he is entitled to

under Article 66 and Article 70.

6. The Government argues that Petitioner cannot establish

“prejudice” from the delays, but its argument is

circular. It is disingenuous for the Government to

argue that Petitioner has not made a “colorable claim

of any possibility of relief,” when the system that the

Government controls has to date deprived Petitioner of

the timely assistance of counsel that would enable him

to perfect and refine the legal issues he has asserted.

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Given the current posture of Petitioner’s case as outlined

above, Petitioner is not being afforded an appellate review of

his findings and sentence that comports with the requirements of

Article 66 and Article 70. These rights must be recognized,

enforced and protected by the Government, by the appellate

attorneys, by the Court of Criminal Appeals, and by this Court.

We reject any suggestion that continued delay or less

diligence in completing appellate review of a criminal

conviction should be tolerated under the UCMJ. We are confident

that the right to a timely appellate review in the military

justice system is no less important and no less a protection

than its counterpart in the civilian criminal justice system.

As noted, we reject any suggestion that institutional vigilance

is evident in Petitioner's case. The Government’s general

proposition that "so far" there is no showing of excessive or

inordinate delay warranting remedial action by this Court is not

accurate. Instead, Petitioner's case illustrates that nothing

has been done "so far" to respect or ensure Petitioner’s right

to timely review of his findings and sentence.

We are therefore returning this case to the Navy-Marine Corps

Court of Criminal Appeals, as it is that court which is directly

responsible for exercising “institutional vigilance” over this

and all other cases pending Article 66 review within the Navy-

Marine Corps Appellate Review Activity.

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Decision and Order

The Petition for Extraordinary Relief is granted as follows:

1. This case is remanded to the Navy-Marine Corps

Court of Criminal Appeals. That court shall

expeditiously review the processing and status of

Petitioner’s Article 66 appeal.

2. The Court of Criminal Appeals shall take

appropriate action to ensure that Petitioner

receives the rights he is entitled to under

Article 66 and Article 70, and issue such orders

as are necessary to ensure timely filing of an

Assignment of Errors and Brief on behalf of

Petitioner and the timely filing of an Answer to

the Assignment of Errors on behalf of the

Government.

3. It is further directed that within 60 days of the

date of this opinion, the Navy-Marine Corps Court

of Criminal Appeals shall submit a report to this

Court which specifies the steps taken to comply

with the provisions of this opinion in regard to

Petitioner and other appellants awaiting appellate

review under Article 66 before the Navy-Marine

Corps Court of Criminal Appeals.

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4. This order is entered without prejudice to

Petitioner’s right to assert a violation of his

statutory and constitutional rights to speedy

appellate review in the ordinary course of appeal.

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