United States v. Denedo – Oral Argument – March 25, 2009

Media for United States v. Denedo

Audio Transcription for Opinion Announcement – June 08, 2009 in United States v. Denedo

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John G. Roberts, Jr.:

We’ll hear argument this morning in Case 08-267, United States v. Denedo.

Mr. Shah.

Mr. Chief Justice, and may it please the Court: The Court of Appeals for the Armed Forces, or CAAF, held that military appellate courts possess open-ended jurisdiction under the All Writs Act to entertain a coram nobis challenge to the merits of a final court-martial conviction.

This Court should reverse that decision, both because the All Writs Act cannot supply jurisdiction that Congress chose not to confer and because Respondent is a civilian who may no longer invoke the military court system.

As this Court explained in Clinton v. Goldsmith, military courts, as Article I courts, are strictly limited to the bases of jurisdiction conferred upon them by the Uniform Code of Military Justice, or UCMJ.

Three related aspects of the UCMJ make clear that it does not confer jurisdiction over Respondent’s coram nobis petition.

First, as noted in Goldsmith, the UCMJ narrowly circumscribes military appellate jurisdiction to the findings and sentences of a court-martial conviction.

That is a direct review jurisdiction.

UCMJ Articles 66 and 67, which define appellate jurisdiction, do not contemplate any further review within the military appellate courts.

Second, once direct appellate review is complete and the military authority executes the judgment, UCMJ Article 76 affirmatively forecloses any further military court review.

As this Court has recognized on two prior occasions, UCMJ Article 76 marks the terminal point of proceedings within the court-martial system.

Ruth Bader Ginsburg:

Mr. Shah, how does that differ from the general rule that a judgment becomes final and has preclusive effect once the appellate route has been exhausted or the time to pursue it has expired?

It seems to me that Article 76 simply codifies the rule that applies ordinarily in criminal cases, in civil cases, stating when a judgment becomes final for preclusion purposes.

Your Honor, yes, Article 76 does that, but it does more than that.

As this Court recognized in Gusik and in Councilman, it marks the end of proceedings within the military court system.

Now, beyond the text, what this Court looked at in Gusik — in Gusik, it was a Petitioner seeking habeas review.

One of his alternative arguments in Gusik was that Article 76 essentially violated the Suspension Clause because it — it marked the end of — no further proceedings within the military court system as well as within the Article III court system.

The Court agreed with the petitioner that Article 76 marked the end of any further proceedings within the military court system.

It disagreed that it also effected a repeal of Article III habeas jurisdiction, but there was no disagreement between the petitioner, the government, and this Court in Gusik that it did mark the end of proceedings within the military court system.

Antonin Scalia:

Therefore, one can say that that point wasn’t decided in the case, right?

Well, Your Honor, one could say that, but this Court again in Councilman ratified that line, that the Court drew in Gusik.

It — it reiterated the reasoning that Article 76 forecloses any further proceedings within the military court system.

So I don’t think it’s just dicta.

It was relevant to its denial of the Suspension Clause claim, and the Court reiterated that in Councilman 25 years later.

Ruth Bader Ginsburg:

Where, in your view, in that the government is putting forward, can this — can Denedo go?

He said, I was misinformed by my counsel.

I never would have entered a plea if I had known I would be subject to deportation.

And he said, I never found out about it until, what, 8 years later, when the government — 8 years after his conviction, the government said, you’re subject to deportation.

Where can he go with that plea?

Your Honor, it appears that Respondent no longer has any further remedies to — to pursue.

But we think the important point is that in a general — in the general case, Petitioner is bringing — the exact same claim the Respondent is bringing is normally going to have several avenues of remedy outside–

Ruth Bader Ginsburg:

We’re assuming now, because we haven’t gone any further than his plea, that he was so misinformed and he didn’t lack diligence in failing to bring it earlier, that he was surprised by the government’s action, so he was unaware and, therefore, unable to make this plea any earlier.

You have given us the answer that it’s too bad, he’s just out of any court.

–Well, Your Honor, I think it’s important to note that the UCMJ marks the high-water mark of process within the military justice system.

What the UCMJ did is it took the prior system, which didn’t even allow for real direct review within the military court system, and it made that direct review system much more robust.

It added an intermediate court of review.

It took administrative review that was embodied within boards of tribunals that had typically been under the Judge Advocate General.

It moved that out and gave it greater independence to provide more robust intermediate appellate review.

It added an entire level of a new court, the Court of Appeals for the Armed Forces, which provided additional — a new level of review.

And then it said still–

Anthony M. Kennedy:

Well, part — part of independence is the assurance that the court has the ability to do justice in the case before it, and I think the purpose of coram nobis or coram vobis is to protect the integrity of the court, and that’s all this court is asking.

So that’s quite consistent with what you’ve just said.

–Well — well, Your Honor, in enacting the UCMJ, Congress was balancing several values.

On the one hand, it was balancing the rights of service members, but at the same time, it was balancing the important value of maintaining good order and discipline within the armed — within the armed forces, mindful of the military’s primary mission in fighting wars and defending the nation.

Now, given those competing values, it was — it was reasonable for Congress to draw a line at some point and say it, the conviction is final and to the extent you want to seek further collateral review, you have to go to the civilian system to seek that review.

That — that line is reasonable not only from a historical standpoint, but also from a practical standpoint, given the institutional limitations–

John Paul Stevens:

But is there collateral review available in the civilian system in your view?

–Yes, as a general matter, there’s–

John Paul Stevens:

I mean in this case.

–In this case, Respondent no longer has any reviews because the time has passed.

2241 would–

John Paul Stevens:

So the answer is no in this case?

–No, there is no further review, Your Honor, in this case.

Now, as a general matter there are ample avenues of — of review within the civilian court system.

For the entire time that a petitioner would be confined, he can seek 2241 habeas relief in the Federal court system.

Even after–

Ruth Bader Ginsburg:

Mr. Shah, you just said something about — you answered my question and Justice Stevens’s question: This person is out because it’s too late for him.

He was convicted in what, was it–

–1998, Your Honor.

Ruth Bader Ginsburg:

–Yes.

Ruth Bader Ginsburg:

And the government never said anything about deportation until 2006?

And they went through — he twice applied for naturalization, is that correct?

That is correct, Your Honor.

Ruth Bader Ginsburg:

And he was turned down on grounds that had nothing to do with deportation.

The government never alerted him to the possibility that he would be deportable.

They turned down his applications with no hint of that, and you say that he is — he’s out of time, but nothing counts against the government because of that 8-year lapse?

Right.

Your Honor, in the denials I agree with you that they did not alert him to deportation, but it based its denials on his military court convictions.

So to that extent, he was somewhat on notice that the military court convictions were posing a problem to his citizenship, potential citizenship status.

Now, it is true, you’re absolutely right, that the government did not begin deportation proceedings until October 2006, and until that time he was not on notice, but the fact that this particular claimant — that the time has run should not be dispositive.

For example–

David H. Souter:

Well, the time — I mean, the time may very well run in the civil system, and yet I take it that under — you accept Morgan, and in the — in the Article III system this — in comparable circumstances, this Petitioner could seek coram nobis.

–Right.

There are two reasons, Your Honor–

David H. Souter:

And I take it you also — I don’t think there’s any dispute that the All Writs Act applies to the Article I court as well as to the Article III court.

And I take it — and I’d like your response to this.

I take it you accept the fact that in testimony before the House, at least, at the — at the time the present system went into effect, the general counsel for the Department of Defense, Mr. Taft, testified to a House committee that coram nobis would be available in the — in the Article I courts.

And if that is so, isn’t the — kind of the most reasonable way to construe the statute, including Article 76, as allowing for this?

–No, Your Honor.

Mr. Taft’s testimony that you’re referring to was not given at the time of enacting of the UCMJ.

David H. Souter:

What was the occasion for it?

That was during a subsequent amending process of the Act.

The only testimony–

David H. Souter:

What were they amending at the time?

–It was I think in terms of the 1983 amendments to the UCMJ.

There have been several–

David H. Souter:

You’re way ahead of me because I don’t know what the ’83 amendments would refer to.

What–

–Okay.

David H. Souter:

–What was the subject matter?

Well, what Mr. Taft was testifying to, we believe, are — he was — the specific testimony that Mr. Taft was giving was related to the boards of correction, I believe, and whether that the boards of correction should retain jurisdiction review of final court-martial judgments, so his testimony was related to that distinct issue.

David H. Souter:

Now, with respect to the boards of correction, I take it there’s nothing specifically in the statute that says there’s coram nobis jurisdiction?

Nothing specific in — in the UCMJ?

David H. Souter:

Yes.

Yes, there’s nothing specific in the UCMJ–

David H. Souter:

Now, if he was right about that, that would undercut your — your argument that, with respect to a special court-martial and subsequent proceedings, there could be no coram nobis, because there’s no specific reference in the statute in either case?

–No, Your Honor.

What Mr. Taft was testifying to was the state of the prevailing law in 1983 before the CAAF.

The fact that Congress did not amend the UCMJ in light of Mr. Taft’s testimony — this Court has said on multiple occasions that we don’t read into congressional silence–

David H. Souter:

Oh, I quite agree.

The premise of my — sort of my argument to you a second ago was that if we accept the proposition that Mr. Taft was making a correct statement of law–

–Right.

David H. Souter:

–then the logic would in effect answer your argument that because there is no specific grant of coram nobis jurisdiction with respect to special court-martials and subsequent proceedings, there couldn’t be any.

That’s the only point that I was trying to make.

Your Honor, I don’t think we can read that into the silence, and here is why: We have much more precise legislative history on this very point.

At the time the provision was enacted, at the time the UCMJ was enacted, there was Article 73 of the UCMJ provides one means of collateral review within the military justice system once a court-martial conviction is final, and that’s a new trial petition, which is limited to certain subject matter and certain time limits.

David H. Souter:

It is pretty limited.

What is it, it’s limited to fact and fraud?

To fraud on the court and newly discovered evidence.

The person who drafted that provision–

Ruth Bader Ginsburg:

Is it — is it available to someone who enters a guilty plea, if you know?

–It does not appear it would be available to someone who has entered a guilty plea.

The government is not aware of any cases where the military has granted an Article 73 petition to someone who has pled guilty.

But the important point is at the time that provision was enacted, the person who drafted that provision testified before Congress and said, we’ve considered the universe of post-conviction remedies, and specifically named coram nobis relief, and said that we’ve looked at it and we think the only circumstances that warrant appeal within the military court system beyond coram nobis are those stated within — or including coram nobis are those stated within Article 73 specifically.

David H. Souter:

May — may I ask you just — and I’m doing this from memory, so I — my — my premise of the question may be wrong.

But I do recall the quotation of testimony in the brief, and I — if I recall it correctly, the person testifying said that — that 73 was sort of a combination of coram nobis and new — and new trial motion practice.

But my recollection was that there was no statement, or at least it wasn’t quoted in the briefs, to the effect that this is all there is.

Now, there — it was explaining what 73 did, but it was not an explanation to the effect that if you didn’t get under the — the tent flap in 73, you were out completely.

Am I correct about that?

Well, I’ll read — read the testimony to you–

David H. Souter:

Okay.

–Justice Souter.

And this appears on pages 25 to 26 of the government’s brief, and it says:

“What we did was to combine what amounts to a writ of error coram nobis with a motion for a new trial on newly discovered evidence. “

“We have provided for both of them and to our minds they are the only additional circumstances over and above the appeal that need a remedy. “

David H. Souter:

Okay, I stand corrected.

So I think that’s — that’s conclusive on this point and provides a firm ground on which to distinguish this Court’s decision in Morgan, which you referenced earlier, that — that applies coram nobis in the Article III system.

Congress considered it for the Article I system and rejected it in the military courts.

Samuel A. Alito, Jr.:

Does that mean that your — your argument boils down to the proposition that the relevant provisions of the UCMJ were intended to eliminate coram nobis, or is there more to your argument than that?

I don’t think it’s to eliminate coram nobis.

It was never available within the military court system.

Samuel A. Alito, Jr.:

All right.

Well, that — then I’m not quite sure I understand your argument.

Maybe you can explain why you — you contend that if the Respondent had been convicted in a Federal district court and everything else was the same, he would be able to petition for a writ of coram nobis, but he can’t in the military courts.

What is the basis for that?

Both a Federal district court — a Federal district court is a creature of statute.

It has the jurisdiction that Congress gives it and no greater jurisdiction.

It has certain — what’s been termed inherent authority.

The All Writs Act applies to it.

All of those things are true of the military courts as well.

So what is the basis for the distinction?

There are two distinctions — at least two distinctions, Your Honor: The first is, in the Federal court system, there is an independent basis of jurisdiction when someone is bringing a Federal constitutional challenge, collateral challenge to their conviction.

That separate independent basis of jurisdiction is 1331.

There’s — there’s independent basis of jurisdiction.

The All Writs Act does not confer jurisdiction.

The Court made that very clear in Goldsmith.

What it requires is an independent basis of jurisdiction.

That exists in Article III courts.

It does not exist in the military court system.

That’s the first distinction.

The second distinction, Your Honor, even if this Court wasn’t convinced by that jurisdictional argument, is that Congress specifically considered whether to — to allow coram nobis petitions within the military court system.

The All Writs Act was designed to be a residual source of authority to fill gaps within the system.

It is not–

Samuel A. Alito, Jr.:

Well — well, that, as I understand, was the argument I started out with, that the — your argument is that the UCMJ was intended to eliminate coram nobis if it had been previously available.

That’s your — that’s the argument you’re making now?

–Well, again, I would — I would quibble with the characterization to — to — that it was previously available.

As of the enactment of the UCMJ in 1950, coram nobis relief had never been available within the military justice system.

Samuel A. Alito, Jr.:

Well, what is the difference on the face — on their face between the relevant provisions of the UCMJ and the provisions that govern the ability of a criminal defendant in Federal district court to get relief after being convicted?

The — there are limited avenues that are provided under the Rules of Criminal Procedure and under the statutes–

Right.

Samuel A. Alito, Jr.:

–just as there are in the UCMJ.

What — what is the difference?

The difference is significant, Your Honor.

In the — in the military court system there is only one avenue for post-conviction relief.

That is, after your — and I’m speaking after your direct review — appellate review process has been complete, there’s only one, and that is the Article 73 new trial petition.

Of course, in — in the Article III system there are several independent grants of jurisdiction, the habeas jurisdiction–

Ruth Bader Ginsburg:

But I thought the Morgan case said that coram nobis was not dependent on any independent basis of jurisdiction.

Didn’t the Court say that a coram nobis application challenging a conviction is a step in the criminal case and not like habeas, where relief is sought in a separate case and record, the beginning of a separate proceeding?

–Right.

In — in Morgan, Your Honor, the Court was refuting the argument that 2255, section 2255, occupied the field and, therefore, there wouldn’t be a coram nobis petition.

It rejected that argument.

But I don’t think the rejection of that argument means that coram nobis, which is still a residual source of authority, is available when Congress has specifically rejected its application within the Article I system.

Anthony M. Kennedy:

Well, but — but you’re shifting ground a little bit.

The tenor of the questions from Justice Alito and Justice Ginsburg really is to the effect: Does coram nobis require an independent source of — of jurisdiction?

And I should think not.

Well, your–

Anthony M. Kennedy:

The whole idea of coram nobis is to protect the integrity of the jurisdiction the court already has.

–Your Honor, this Court could not have been clearer in Goldsmith.

It says the All Writs Act requires an independent basis, an existing independent basis of jurisdiction.

Anthony M. Kennedy:

I — I acknowledge that.

Anthony M. Kennedy:

But there is a source of jurisdiction here.

Coram nobis is to ensure the accurate exercise of jurisdiction that the court has earlier asserted.

With respect, Your Honor, I would argue that the past jurisdiction in this case does not constitute an existing basis of jurisdiction.

Stephen G. Breyer:

But suppose — suppose that the problem was a professional soldier convicted a certain number of years ago of a particular crime, a few years later, through some amazing mistake, they wrote the wrong number down.

The clerk just wrote the wrong number of the code provision.

That’s all.

Okay.

Stephen G. Breyer:

And it made it a felony instead.

It was actually a misdemeanor.

What’s he supposed to do?

I mean, normally you go back to the court and say: Judge, you know, they just made — everyone admits it’s a simple transcribing error.

Would you please correct it?

Now, how — how is that supposed to work in the military?

If he is still within custody–

Stephen G. Breyer:

Yes.

No, he’s — he’s finished his sentence.

This is several years ago.

They just now discovered it, and it could affect him in the future that it happened in fact to be a misdemeanor he was convicted of.

But the — the code section they wrote down is a felony.

–Well, if the military isn’t willing to correct that sort of error on its own as an administrative matter and that he needs some judicial forum to–

Stephen G. Breyer:

Yes.

Yes, that’s right.

–to get relief, he can go to the Court of Federal Claims and bring a Tucker Act action.

There’s a 6-year statute of limitations.

Stephen G. Breyer:

No, this is 7 years.

[Laughter]

Well — well, then, Your Honor, he probably wouldn’t have a judicial forum.

Stephen G. Breyer:

He can’t even do that.

So nobody in the military, in fact, once their thing is final — then it has nothing to do with it, in your view, that he has left the military?

Well–

Stephen G. Breyer:

You’re saying — you’re saying, whether you’re in the military, whether you’re out of the military, no matter how egregious, no matter how obvious, there is no route for a military person, a professional, to go and get an obvious error corrected.

If — if he has missed the statute, that there was an — the civil statute of limitations, it’s hard for him to go to the Tucker Act.

He’s been in the Philippines the entire time.

–Justice Breyer, to make your hypothetical work he has to no longer be in custody.

He has had to have discovered this error 6 years after the conviction has happened.

Stephen G. Breyer:

Yes, it happened.

It really happened.

The military would have had to deny this — correcting his–

Stephen G. Breyer:

What I’m trying to do is suggest that I think you — I can’t quite decide what stool you want to rest on.

Part of this you say, well, he’s a civilian that has left the military.

And then I read that.

It seems to have nothing to do with it.

But your other argument seems to be that doesn’t matter.

–Well–

Stephen G. Breyer:

No military soldier can correct an error, no matter how egregious, even a technical — you know, they just wrote the wrong thing down — because Congress didn’t want them to.

Now, I doubt that Congress thought about that.

I’m just not sure they didn’t want them to.

–Well — well, Your Honor, once again, in your hypothetical, I think there would be an administrative recourse there.

And, of course, there’s always the fail-safe of a presidential pardon if the obvious — if the error is that obvious and that egregious.

Now, you did refer to a second argument, which is an independent argument, which is that the military courts lack jurisdiction for the independent reason that Respondent — it’s an independent reason, Your Honor, that he lacks any remaining connection to the armed forces and, therefore, cannot invoke the military courts.

This Court held in Toth v. Quarles that Congress lacks power under Article I to extend military court jurisdiction over a civilian, and that–

David H. Souter:

I know, but that’s — that’s a different — that’s a different issue from — from whether it — it may retain some residual jurisdiction to correct an error with respect to someone over whom it has had jurisdiction.

–Your Honor, once again, that would be relying on the long-expired past jurisdiction.

It is–

David H. Souter:

Well, you — you made that point before.

And I want to — I want to follow up with one question on that.

As I recall, it was in response to the — to the Morgan argument.

The — the Morgan analysis was, well, this isn’t a — a new ground or a new assertion.

It is jurisdiction as would be the case in habeas.

It, in effect, is — is kind of a metaphysical continuation of the — the jurisdiction that existed before.

David H. Souter:

And your response to that was, in effect, a Goldsmith response.

And — and you said past jurisdiction doesn’t mean present jurisdiction.

The past jurisdiction is over, and that’s under — under the statute and under Goldsmith.

That’s — that’s the end of it.

Couldn’t that same argument simply have been made, however, in — in Morgan?

In other words, Morgan was a case in which the point of finality had been reached.

There was no specific statute in Morgan saying there’s coram nobis jurisdiction, and yet the Court’s analysis — I — I called it “metaphysical” a second ago — was that this really was simply a continuation of the past jurisdiction.

If that was a sound argument in Morgan, why isn’t it a sound argument with respect to the — the military code here?

–Well, because the military — Congress specifically contemplated that possibility, and now I’m going back to my Article 73 argument, Your Honor, and to the legislative history which shows what Congress was trying to do in Article 73.

That is to encapsulate — whatever post-conviction remedy it’s intended to be available within the military court system appears in Article 73 that considered coram nobis.

David H. Souter:

It — it did do that, and there’s — there’s no question that it certainly made finality provisions in Article 76.

But in the civilian system, so far as express provision is concerned, there are limits.

There are statutes of limitations, and it seems to me that the same argument could be made there that was made here–

Well, I think this–

David H. Souter:

–that was made there.

–Your Honor, I think the structure of the military court system is different than the civilian system, and — and that goes back to–

David H. Souter:

Outside of 1531, is there any structural difference?

–Yes, Your Honor.

In the military court system, Article 76, even though it was first enacted in 19 — in 1950, there were other provisions analogous to it.

It’s always been understood within the military system that, once a conviction was final and the military authority executed the judgment, that was it in terms of review within the military justice system, save for a presidential pardon.

Any further relief to be obtained was through an Article III habeas petition in the Federal courts.

That’s the understanding that Congress had when it enacted the UCMJ, and that’s the understanding–

David H. Souter:

Yes, but you could say the same thing, that when the statute of limitations is past in a habeas case or, indeed, after habeas has been followed, that so far as the statutes governing Article III courts are concerned, that’s the end.

And yet Morgan says, no, it isn’t the end.

There’s this coram nobis jurisdiction.

–Well, the difference is, in Morgan, the Court specifically said that Congress did not intend to occupy the field when it passed 2255 governing habeas relief for Federal prisoners.

That’s not the situation here.

We know that Congress intended to occupy the field when it passed Article 73.

So regardless of the jurisdictional arguments, Your Honor, there’s no right of action, there’s no right of coram nobis relief within the military courts.

Your Honor, if there are no further questions, I’d like to reserve the remainder of my time for rebuttal.

John G. Roberts, Jr.:

Thank you, counsel.

Thank you.

John G. Roberts, Jr.:

Mr. Freedus.

Matthew S. Freedus:

Mr. Chief Justice, and may it please the Court: Because there are courts, appellate military courts must have coram nobis power to protect the integrity of their judgments.

The court of appeals correctly asserted the same coram nobis power that Article III courts have.

Antonin Scalia:

What do you mean, “they must”?

Do you think it’s unconstitutional to deprive them of that?

Matthew S. Freedus:

No, Your Honor.

We believe that they were given the All Writs Act authority as a birth right in 1950, and that includes all prerogative writs, including coram nobis.

Antonin Scalia:

That’s what you mean by “they must have”?

Matthew S. Freedus:

And also, Your Honor, they must have the ability to protect the integrity of their judgments just like other Federal courts have.

The Superior Court in D.C. has the power to issue coram nobis to protect its judgments.

Antonin Scalia:

That’s fine, but — but is it unconstitutional for Congress to say military courts are different, they’ve always been different, the need for finality is greater there, and we’re conducting a different rule for there?

Matthew S. Freedus:

I think Congress has the authority to legislate very broadly in the area of collateral remedies, and Congress could take away the writ of coram nobis if it left in its place an adequate and effective substitute, like it did in 2255.

Antonin Scalia:

Oh, oh, oh, so it would be unconstitutional if they did not leave in its place an adequate and effective substitute–

Matthew S. Freedus:

Our view is that if–

Antonin Scalia:

–which would cover every situation no matter how fanciful, right?

Matthew S. Freedus:

–No, Your Honor.

We believe there has to be reasonable opportunity to bring a colorable constitutional claim for which there is no other avenue of relief, which we believe is the case here.

John G. Roberts, Jr.:

What — which case of ours establishes the proposition that there always has to be an available avenue of relief?

Matthew S. Freedus:

The best authority we have for that, Your Honor, is Webster v. Doe, which we believe stands for the proposition that courts should read statutes so as not to preclude judicial review of a constitutional claim absent an express congressional intent to do so–

John G. Roberts, Jr.:

Well, that’s different than saying there always has to be available relief.

That’s saying you think Congress usually intends there to be available relief.

And that would be a doubtful assumption here, given the rather clear expressions of finality that — that are — that are in the UCMJ statutes.

Matthew S. Freedus:

–I think — well, if I could make two points, Your Honor.

On the first, we don’t believe that there is square authority for the bedrock constitutional proposition that Congress can wipe away all avenues of relief for a claim.

We believe that we were–

John G. Roberts, Jr.:

You don’t — you don’t think there’s authority for the proposition they can do it?

Matthew S. Freedus:

–Correct.

John G. Roberts, Jr.:

I’m looking for authority that says they can’t do it.

Matthew S. Freedus:

I’m not aware of any, Your Honor.

We would — I think we are–

Antonin Scalia:

Did — did coram nobis relief — you say it has to be there.

Was it ever used before in the military courts?

Matthew S. Freedus:

–Yes.

I would like to — yes, Your Honor, it has been used since 1966.

I assume you may be asking about before 1950.

Antonin Scalia:

Indeed, yes.

Matthew S. Freedus:

Yes.

Well, the reason it hasn’t happened before 1950 is that the UCMJ was created in 1950, and that was the first time there were military courts.

There were no courts, so therefore no All Writs Act authority prior to 1950.

Antonin Scalia:

Worse still.

My goodness.

So you were–

Matthew S. Freedus:

Absolutely.

Antonin Scalia:

–convicted by a court-martial and had no basis for — for getting that revised, and that — that lasted for a couple of hundred years, right?

And that was okay or it wasn’t okay?

Matthew S. Freedus:

That was — I think that’s the impetus behind the UCMJ, Your Honor.

Antonin Scalia:

Well, that’s fine.

I mean, you can patch it up and say that they thought it wasn’t a good idea to have just military courts.

But it’s very hard to make the constitutional argument you’re making when for a couple hundred years in military, in military courts, which are different, there — there was no relief at all.

John Paul Stevens:

Could you clarify something for me?

Are you contending that the result you seek is constitutionally compelled?

I didn’t think you were.

Matthew S. Freedus:

Not — no, not — we aren’t, Your Honor.

I was more responding to the Chief Justice’s–

Antonin Scalia:

And you were saying it is.

Just say, no, it’s not constitutionally compelled, and I’ll be happy.

[Laughter]

Matthew S. Freedus:

–No, Your Honor.

John G. Roberts, Jr.:

I’m sorry–

Anthony M. Kennedy:

Well, you might — you might say that there is a lurking constitutional question and that we ought to interpret the statute to avoid a constitutional concern.

Matthew S. Freedus:

I think, Your Honor, that’s the best answer that I should have given.

[Laughter]

John G. Roberts, Jr.:

–I don’t like it very much.

But what is — your argument is that the Constitution does not require that this person have, right now, an available avenue of relief, your position?

Matthew S. Freedus:

We don’t have square authority from this Court to support that proposition.

John G. Roberts, Jr.:

So then it becomes, as Justice Kennedy suggested, a question of whether or not we should read the statutes here in a particular way to avoid confronting that question?

Matthew S. Freedus:

Yes, Your Honor, I think that’s where — we’re comfortably in that neck of the woods, and we really don’t need to get closer to the scarier question that was alluded to.

So we–

David H. Souter:

When you say it’s lurking, you’re — you’re invoking the doctrine of constitutional avoidance?

Matthew S. Freedus:

–Yes, Your Honor, we are.

David H. Souter:

Okay.

Antonin Scalia:

I don’t think it’s much of a lurk if, for 200 years, this was going on without ever — it’s not lurking to my mind.

Ruth Bader Ginsburg:

But you are making — I thought that the core of your argument is that the All Writs Act applies to all courts established by Congress, the military courts are included in that definition, and there is nothing in the All Writs Act that says it doesn’t apply to the military.

But the All Writs Act requires that the writ be in aid of the court’s jurisdiction.

So if you would spell out how the writ here is in aid of the military court’s jurisdiction.

Matthew S. Freedus:

Yes, Your Honor.

We believe it does it in a very similar way that this Court explained in the United States v. Morgan, and that is the writ of coram nobis aids the past appellate jurisdiction that the Navy court had when it affirmed and reviewed Mr. Denedo’s conviction.

It had jurisdiction there.

And the coram nobis writ by its very nature allows a court to correct an error in a case that was before it, but it failed to perceive that error while it had the case before it.

And had it known the facts we now know after all of the remedies are no longer available, the court would not have issued the judgment that it issued.

That’s the — in that sense, that’s how the writ aids the jurisdiction the court had in the past.

Stephen G. Breyer:

Well, if that’s so, then I guess you can have courts reviewing the civilians.

They will review after the event the court-martial jurisdiction — the court-martials of people while they were in the military.

That will become a matter of course anytime.

I mean, there are many, many errors.

We have approximately 5,000 petitions a year claiming some kind of constitutional error, and sometime they’re right.

Matthew S. Freedus:

Yes, Your Honor.

Stephen G. Breyer:

So that’s what you foresee?

Matthew S. Freedus:

I would — yes and no.

Stephen G. Breyer:

What way is it no?

Matthew S. Freedus:

No is when the individual is not in custody and the 6-year statute of limitations has expired for all the types of claims that are available for a collateral attack of a court-martial conviction, a declaratory judgment attack, a mandamus attack, Court of Federal Claims attack, all those–

Stephen G. Breyer:

Why — in other words, in the case I posed, he would — he — in your view, he wouldn’t have any remedy.

You would agree with the government about that, if it’s 7 years later you find a clerical error?

Matthew S. Freedus:

–We agree.

But we don’t think it’s necessary, actually, to decide the issue here.

The issue here really is whether coram nobis is available–

Stephen G. Breyer:

Well, if, in fact, you’re waiting until the — the civil courts have lost all jurisdiction because the statute of limitations has expired, why do you need this?

Why can’t they just go — I mean, why do you need this special thing that hasn’t existed for 200 years?

Why don’t they just go to a civil case?

And moreover, why doesn’t your client fall within that situation?

You’re claiming that if all the statutes have run and everything, there is no coram nobis jurisdiction, I thought in your case they had all run.

Matthew S. Freedus:

–This gets to the other piece of the answer I was trying to give, and that is a petitioner from the military system could not file a coram nobis petition in the Article III courts or the Court of Federal Claims because there’s no authority that supports the proposition that you can take a coram nobis petition and attack a judgment from a different jurisdiction.

Coram nobis has to allow the court that issued — that — that–

Stephen G. Breyer:

Then you’re saying that what you’re foreseeing is through coram nobis, indefinitely, a person outside the military who once was in it can bring constitutional challenges?

Matthew S. Freedus:

–Yes, Your Honor, in the military justice system.

Stephen G. Breyer:

Yes, okay, and we see those every day, don’t we?

But there is one difference.

The difference is that often, though not always, a person in habeas who challenges a prior normal, civil system conviction, the State can retry him.

And I guess, in the instance that we’re talking about, he can never be retried.

So in fact the difference would be, in your view, the civilians who bring this would never be retried if they’re right.

Matthew S. Freedus:

That’s correct, Your Honor.

Stephen G. Breyer:

And so they would have in that sense greater protection in the military system than in the ordinary criminal courts a person has in habeas, because the option of retrial is often but not always there.

Now, why would Congress have intended that?

Matthew S. Freedus:

I think it’s the very nature of the coram nobis petition, Your Honor, and that is coram nobis petitioners have already served their entire sentence, so the societal interest to seek a retrial is much lesser than in the habeas case where there’s a lengthy sentence less — left, and if someone gets out of jail–

John G. Roberts, Jr.:

Well, but the collateral consequences of the conviction are pretty dramatic.

In this case, they decide whether this guy stays in the country or is deported.

Matthew S. Freedus:

–Yes, Your Honor.

John G. Roberts, Jr.:

Well, so I think Justice Breyer’s question is still on the table.

John G. Roberts, Jr.:

Why would Congress intend to afford greater relief and remedies to somebody who’s outside — was within the military system and is now outside, than to an ordinary civilian under Article III jurisdiction?

Matthew S. Freedus:

I think there is a classic distinction between the habeas and the coram nobis petitioner.

In a coram nobis petitioner under 2255, if they were to file a successful petition long after a statute of limitations had expired, they would be in no different position than a coram nobis — a successful coram nobis petitioner in the military.

We would say, we do believe there’s a — a colorable argument for — for the ability to retry Mr. Denedo, but it’s not pivotal to our case.

Our view is that the inability–

Ruth Bader Ginsburg:

Where?

Colorable–

Anthony M. Kennedy:

In the civilian courts or the military courts?

Matthew S. Freedus:

–The military courts, Your Honor.

Stephen G. Breyer:

I think you have a good answer to what my question was.

I thought that was a good answer.

It’s helping me.

And — but where I’m — where I’m slightly — and maybe this is just not relevant to this case or maybe it’s for the future.

Coram nobis, I thought, was a writ that means really like technical clerical errors or something really unusual.

Is this — I mean, it’s hardly ever there.

I’ve not really seen more than a handful of cases.

So — so is this writ supposed to be available for what you’re claiming is what I call a typical error of inadequate representation?

And I don’t know the answer to that question, but I think it’s — maybe you could say that’s not presented.

Maybe that’s for a later case.

I don’t know how to treat it.

That’s why I’m asking.

Matthew S. Freedus:

I think Morgan is helpful on that, Your Honor.

Morgan is a violation of the right to counsel, and it’s this Court’s–

Ruth Bader Ginsburg:

–But was — that question wasn’t resolved, was it?

I thought we were just talking about the authority of the military courts to issue this writ, and the question that Justice Breyer has raised, well, is this ineffective assistance of counsel adequate grounds to issue the writ?

I thought that question was certainly not raised before this Court.

Matthew S. Freedus:

–Well, the government hasn’t urged that there’s no ineffective assistance of counsel.

It’s not in their opening–

Anthony M. Kennedy:

Well, let’s assume it raised because Justice Breyer asked a question–

Matthew S. Freedus:

–Yes.

Anthony M. Kennedy:

–and I would be interested in the answer.

Stephen G. Breyer:

I knew it wasn’t.

Matthew S. Freedus:

Yes, Your Honor.

Stephen G. Breyer:

I thought it might be your answer: Well, that isn’t raised.

And that would be a perfectly good answer.

Matthew S. Freedus:

That’s — that’s why–

Stephen G. Breyer:

I’m telling you my honest problem which I’m trying to think through: Where are we going with this?

Matthew S. Freedus:

–I think–

Stephen G. Breyer:

What’s going to happen one way or the other way?

That’s why I asked the question.

So all I’m asking is your best thought on it.

Matthew S. Freedus:

–Yes, Your Honor.

I think United States v. Kwan and United States v. Castro are two court — two cases that give the answer to your question and both of those indicate that ineffective assistance of counsel, in very similar factual circumstances to this, is a basis for coram nobis relief after — after the ineffective assistance is discovered.

We recognize this Court has granted in–

Ruth Bader Ginsburg:

Military courts now, since 1950, have quite a record of saying coram nobis is available in these courts.

However, they have routinely thrown out the cases on the merits.

Is there any case within the military where the military has said anything like inadequate assistance of counsel qualifies as a reason to grant the writ?

Matthew S. Freedus:

–Aside from this — this case below, Your Honor, I don’t know of a case that raised ineffective assistance of counsel.

And you are correct that the vast majority of these cases are thrown out of court in the most — in the briefest of orders.

There are cases where relief has been granted.

They are few and far between.

Del Prado is one.

It involved a compositional jurisdictional error to the — to the court.

An individual failed to elect a military judge alone in writing and waived the right to have a — a member’s jury trial, and that was deemed a jurisdictional defect.

And long after the case was final, the — the conviction was set aside.

And I would note the court in that case observed that personal jurisdiction was no obstacle to granting the coram nobis relief.

Antonin Scalia:

Was that person retried, do you know?

Matthew S. Freedus:

I do not know, Your Honor.

Antonin Scalia:

Was he still in the military?

Matthew S. Freedus:

I do not know.

Matthew S. Freedus:

He was — the relief — the decretal paragraph of the — of the decision indicates that he was restored all rights and benefits, but it stops shy of saying, you know, here’s your uniform back.

Ruth Bader Ginsburg:

Do I understand correctly that since 1989 there were a total of 30 coram nobis petitions filed, and of those only 4 were granted?

Matthew S. Freedus:

The statistics that we cited in our brief, Your Honor, were 10 coram nobis petitions at the court of appeals within the last 10 years–

Ruth Bader Ginsburg:

Yes.

Matthew S. Freedus:

–and 176 writ appeals from the lower courts up to the court of appeals that don’t break out the category of writs.

They could be habeas, they could be coram nobis, mandamus.

So we don’t know what percentage of the 176.

But even if it was a — a significant percentage, it’s still a tiny percentage of the court’s overall docket.

But they are rarer than hen’s teeth, Your Honor.

These cases, one a year maybe is — would be the average of a coram nobis–

Stephen G. Breyer:

What is the theory of the jurisdiction of the military court in the circumstance where the individual is still in the military, he’s been convicted, and he is in custody?

So he wants to get out of custody.

Now, what’s the theory of that?

He can — I take it it’s accepted, is it, that they can — that such a person can ask the military justice system — I don’t know which court — for release on the ground that he didn’t — wasn’t adequately represented or some other ground?

Matthew S. Freedus:

–That would be a habeas case, Your Honor.

Stephen G. Breyer:

All right.

It’s a habeas case.

Now, do you have — can you do that in the military?

Matthew S. Freedus:

Yes.

There are–

Stephen G. Breyer:

And what’s the theory of the jurisdiction that the military courts have over that?

Matthew S. Freedus:

–It’s similar in that it’s All Writs Act authority aiding the–

Stephen G. Breyer:

Aiding what jurisdiction?

Matthew S. Freedus:

–A direct review authority of the military–

Stephen G. Breyer:

But they’ve already directly reviewed it.

Matthew S. Freedus:

–Correct.

And that’s–

Stephen G. Breyer:

So there is no more direct review to be had.

Matthew S. Freedus:

–That’s correct, Your Honor.

Stephen G. Breyer:

So how does this aid the direct review that is to be had, since there is none?

Matthew S. Freedus:

It aids it in the same way this Court recognized it can do so in Goldsmith, where it acknowledged that a mandamus writ could issue after finality–

Stephen G. Breyer:

I see.

Matthew S. Freedus:

–to compel adherence to the court’s own judgment, so that–

John G. Roberts, Jr.:

Within — within the military system?

Matthew S. Freedus:

–Yes, Your Honor, within the military justice system.

In that — in Goldsmith, it was a situation where Goldsmith was out of the — you know, out of the military.

He had a final — well, I guess he was in custody.

But he had a final court-martial conviction, and this Court indicated that a writ of mandamus could issue to aid past appellate jurisdiction to compel adherence to the–

John G. Roberts, Jr.:

All within the system.

I mean, the difference with this case is that you’re talking about somebody who is — I guess that’s the issue — out of the military system.

The problem with your position is that it would dramatically expand the jurisdiction of the military system.

It would sort of follow everybody they’ve dealt with around for their life, right?

Matthew S. Freedus:

–The fact–

John G. Roberts, Jr.:

At any time somebody who is out of the military system, whose judgment is supposedly final under the provisions that Congress has established, he could come back and knock on the door 20 years later and say, I want to review my conviction.

Matthew S. Freedus:

–That’s correct, Your Honor.

John G. Roberts, Jr.:

And he would be within the military system.

Matthew S. Freedus:

He would be a civilian, former service member–

John G. Roberts, Jr.:

Right.

Matthew S. Freedus:

–filing a coram nobis petition, and the coram nobis–

John G. Roberts, Jr.:

And he’s back in the military system, 20 years later?

Matthew S. Freedus:

–For purposes of the coram nobis petition.

Anthony M. Kennedy:

In — in coram nobis cases in the civil system, do courts appoint special masters when they’re an appellate court and they have to find out if coram nobis was–

Matthew S. Freedus:

Yes, Your Honor.

Anthony M. Kennedy:

–Or do they use district courts as special masters?

Matthew S. Freedus:

They–

Anthony M. Kennedy:

In this case, you had — the court had to invent a procedural device.

There’s going to be a new court-martial, which is a little odd because it’s a new court-martial sitting in judgment on somebody who isn’t even in the military anymore.

Matthew S. Freedus:

–It’s not a court-martial, Your Honor.

It’s what’s called a DuBay proceeding, and what happens is — and this in the decretal paragraph of the — the decision below.

A remand is for further factual development, and if the case can be disposed of on declarations, if the government came forth — it didn’t do so below — but if it did so on remand and provided affidavits that blew our affidavits out of the water, the court could dismiss the petition out of hand.

Matthew S. Freedus:

If they couldn’t do that or if there was a credibility contest that needed to be resolved, what would happen is the court would order what’s called a DuBay hearing, where a judge is appointed.

And it’s just like an evidentiary hearing.

Witnesses are presented and they’re cross-examined, and then findings of fact are made, conclusions of law are drawn.

And then that is put into a record, added to the record of trial, and reviewed in the coram nobis petition.

Anthony M. Kennedy:

But all of that is extra-statutory in your — this instance?

Matthew S. Freedus:

We don’t believe so.

We believe the court — the Navy court here has decisional authority under Article 66 to do factfinding.

It’s a very unique court.

Congress created these courts with factfinding power, which is different than I think virtually all appellate courts, save maybe one or two unusual situations.

But these courts have factfinding power, so it’s right in Article 66.

And these courts also have rulemaking authority.

And so does the court of appeals, and it has exercised that to provide for these procedures.

So we don’t believe–

David H. Souter:

Where are — where are the procedures set out for — for military habeas?

Matthew S. Freedus:

–They’re not, and actually that — that — this Court pointed that out in Noyd v. Bond.

It said that military appellate courts have habeas power, but the court of appeals hadn’t provided rules, and Congress could facilitate with rules but hadn’t, but that didn’t stop this Court from saying habeas power existed.

The absence of the procedure–

David H. Souter:

Are you — are you arguing then that if it has habeas power without a — a textual basis, there’s no reason to argue that it lacks coram nobis power because there’s no textual basis?

Matthew S. Freedus:

–I think the answer to that is yes.

The negative in there caught me.

But, yes, I think that’s what we’re saying, Your Honor.

Ruth Bader Ginsburg:

But this Court has never held that the military courts have habeas jurisdiction?

Matthew S. Freedus:

Yes, it has, Your Honor.

Ruth Bader Ginsburg:

In what case?

Matthew S. Freedus:

In Noyd v. Bond, this Court squarely held that military — the court of appeals at the time has habeas authority.

John G. Roberts, Jr.:

For someone still within the military system?

Matthew S. Freedus:

That was the case where the individual was pending appeal, I believe.

John G. Roberts, Jr.:

So the answer–

Ruth Bader Ginsburg:

But that was–

John G. Roberts, Jr.:

–to Justice Ginsburg is that we have never held that with respect to a situation like the facts here, where you’re dealing with somebody who is outside — long departed from the military system?

Matthew S. Freedus:

Well, I would — I would direct the Court’s attention, if I could, to footnote 11 of Goldsmith, where this Court says:

“And of course, once a criminal conviction has been finally reviewed within the military system, and a servicemember in custody has exhausted other avenues provided under the UCMJ to seek relief from his conviction. “

–citing Noyd, the six pages therein which refers to the military court’s habeas power.

This Court in Goldsmith put habeas power in the context of a — a final case, so habeas authority after final relief.

Antonin Scalia:

It’s talking about somebody still within the military, if I — if I heard the quote correctly, right?

Matthew S. Freedus:

An individual is out of the military if they — if their dismissal has been executed — or their discharge has been executed and they’re in Leavenworth.

They could even be moved to another Federal penitentiary and still in custody.

Ruth Bader Ginsburg:

–The–

Matthew S. Freedus:

So they’re not really in the military.

Ruth Bader Ginsburg:

–The quote you referred to from Goldsmith says: “And a servicemember in custody”.

So I think Goldsmith, in that footnote that you’re citing, is presenting a service member still in custody, having exhausted all other areas, can come to a Federal district court and seek habeas.

It’s not talking about someone who is out of the military.

Matthew S. Freedus:

I read it differently, Your Honor.

I read it — the next clause in that sentence is referring to habeas outside.

I read this sentence as clearly saying that there’s direct review.

There’s habeas after direct review within the military.

And then there’s of course collateral review in the Article III courts, if — if everything misfires within the military justice system.

Ruth Bader Ginsburg:

Well, what am I missing?

I thought that the footnote reads once a criminal conviction has been finally reviewed within the military system a service member, having exhausted all other areas, can petition in a Federal district court for a writ of habeas corpus.

I don’t see anything that talks about someone who is no longer a service member.

Matthew S. Freedus:

Right.

I — I see the in-custody and exhausted avenues provided in the UCMJ as referring to a phase before you get to the Article III courts.

Obviously, if I’m reading it wrong, the Court will let me know, but I read that as prior to Article III review.

If I could talk briefly about the 1983 legislation — it came up in opposing counsel’s opening.

I think it sheds a lot of light on the availability of coram nobis relief.

When Mr. Taft testified, he wasn’t simply giving his — he wasn’t simply stating the state of the law.

He was providing the state of the law as a premise for legislative action, in particular stripping collateral review authority from the correction boards, which used to be able to review collaterally, after final judgment, military convictions.

And that existed before the UCMJ was enacted.

John G. Roberts, Jr.:

This is — this is at a hearing.

This isn’t a Member of Congress, obviously, that we’re talking about.

John G. Roberts, Jr.:

It’s not even a single Member of Congress?

Matthew S. Freedus:

This is the chief counsel for the Department of Defense proposing the legislation and offering the only premise there was for the particular legislative change that I’m referring to, which is stripping the — the correction boards of this collateral review power and saying, when we do that, don’t worry, Congress, because it will channel these collateral — post-final collateral attacks into the military courts, and — and they can have habeas.

He says habeas — I’m sorry–

John G. Roberts, Jr.:

Under the specific–

Matthew S. Freedus:

–coram nobis.

John G. Roberts, Jr.:

–Under the specific provision that was at issue, which is accompanied by very strict finality provisions.

There’s no suggestion in his testimony that the availability of the relief that he’s talking about continues after the individual is outside the military system.

He’s channeling — he says these are channeled through a specific provision applicable only within the military system.

Matthew S. Freedus:

I don’t read it that way, Your Honor.

I read it as channeling apt post-final attacks within the military — within the courts in the military justice system, even though the person is — is — a final judgment typically happens before an individual is no longer in the service.

A final judgment is final because the discharge has been executed.

So what he’s referring to is, once you have a final judgment, you then can seek collateral relief in the military the way you used to be able to do it in the correction boards in the military courts.

And he was saying, now that we’re getting rid of this one collateral remedy in the correction boards, we’re giving you this other one.

We’re not giving — we’re just channeling all of them into the military appellate courts, which is a more appropriate judicial forum.

And he says clearly it would denigrate the courts to have administrative bodies overturning their judgments, once again showing that these are final judgments that we’re talking about.

And the only — that was the only premise he offered to make the change.

So stripping away one remedy while leaving another intact was the single premise, which is reflected in the House — the Senate report on page 52 of our brief, where Congress adopts the exact language out of his sworn testimony with, you know, a tiny variation, but that’s the premise for the change in the legislation.

I’d also note that, in that legislation, this is the Department of Defense proposing to open the door to this Court’s jurisdiction for the first time in — in 28 U.S.C. 1259.

And when it did that — it had to survey the whole landscape of military justice jurisdiction, and when it did that, it saw there were direct review cases, which are reflected in 1259 paragraphs 1, 2, and 3, and then his other category that is defined by what’s not in paragraphs 1, 2, and 3, and that’s the All Writs Act cases.

The government acknowledges–

John G. Roberts, Jr.:

I’m sorry.

I’ve had the chance to go back and look at the Senate report, and like Mr. Taft’s testimony, there’s no suggestion in there that the relief he’s talking about continues after someone is out of the service.

Matthew S. Freedus:

–I think that’s implicit in final judgment, Your Honor.

If there’s a final judgment.

John G. Roberts, Jr.:

Well, a final judgment is subject to review in the appellate courts within — in the military system, just like you have — a final court of appeals judgment is subject to review in our system.

Matthew S. Freedus:

Your Honor, the — the key difference is that — two things: He’s referring to post-finality, which means that the discharge or the — you know, the sentence has been executed.

The person is out.

They’re a civilian at that point.

And coram nobis, by its very nature, is someone who is not in custody.

So I don’t think it’s too much of an inference to read that what he is saying here is–

John G. Roberts, Jr.:

When you have review in the appellate system — someone is — the judgment is they’re to be discharged, and they seek review.

Are they discharged while the review is going on?

Matthew S. Freedus:

–No, on direct review, you’re right, Your Honor.

They’re — they remain within the service, and it’s interesting that the government cites Mr. Taft’s testimony as authoritative on that point.

And that — that makes good sense.

Keep the person in for a direct review so that if their sentence is set aside, we can retry.

But there has been decades of military justice authority that says even if someone is discharged before their conviction is set aside — so they’re on direct review, their conviction is set aside, after they’re already out in their civilian world, you know, doing whatever they’re doing — if the government wants to retry them, they do.

And the government is — is the party that asserts continuing jurisdiction to re-prosecute.

And that’s why this case is so distinguishable from Toth v. Quarles, because in Toth there was no conviction while the individual was on active duty.

And that’s why there couldn’t have been a retrial.

Here there was conviction on active duty, which is where jurisdiction attaches.

It cements in.

And if the government wants to invoke that to retry Mr. Denedo, it can try that.

I would say, though, that if — if there were a personal jurisdiction loophole here, like there was for the MEJA, the Military Extraterritorial Jurisdiction Act, Congress could fix it in a heartbeat.

But we’re talking about, you know, 10 cases in 10 years.

So even if someone, you know, got away without retrial–

John G. Roberts, Jr.:

You — you don’t think that if you prevail in this case, we’re going to see a lot more coram nobis petitions than we did before?

Matthew S. Freedus:

–I — I think there would be an uptick, and there may actually have been an uptick while this case has been up here at this level, because it’s — it has gotten a lot of visibility in the military, just like there was an uptick after Noyd v. Bond when this Court declared for the first time that military courts had All Writs Act power.

So I think there could be an uptick.

But once the novelty of it wears off, I think you will see that level off, and you’ll see the same trend that we’ve seen since 66 when it was available the first time.

I mean, this isn’t new.

The only thing new here is the government’s interpretation of Article 76.

John G. Roberts, Jr.:

Thank you, counsel.

Matthew S. Freedus:

Thank you, Your Honor.

John G. Roberts, Jr.:

Mr. Shah, you have 3 minutes remaining.

Antonin Scalia:

Mr. Shah, could you tell us what the government’s position is on whether, when somebody has been discharged from the service and then a conviction which he — which he suffered while he was in the service is set aside, can he be retried in military courts?

Not if he is past his enlistment period, no, Your Honor.

The government’s view is they would not be able to retry him.

I’d just like to make four quick points in response: First, to the Chief Justice’s question, could someone be in custody after finality?

Of course, yes, that — that could be the case.

The military doesn’t have to issue a bad conduct discharge as part of its sentence.

He could still be in confinement within the military during the post-finality period.

The second point I would like to make is that Noyd v. Bond is clearly distinguishable.

That dealt with habeas review within the military while the person was still pursuing his direct appeal.

So there was a clear, independent basis of jurisdiction in the Noyd v. Bond type situation, and that’s the Article 66 and 67 direct review jurisdiction, and that–

David H. Souter:

What has direct review got to do with habeas?

–Well — well, Your Honor, the — the habeas would be in aid of the direct review jurisdiction.

In — in Noyd — in the Noyd v. Bond–

David H. Souter:

In the civil system, we regard it as — as entirely a separate proceeding.

–Well, what was going on in Noyd v. Bond, Your Honor, is he was pursuing a habeas petition for release pending the — the resolution of his direct appeal.

So the military courts just referred the petition to the same court reviewing his direct appeal on the merits, and it became part and parcel of that jurisdiction.

The third point I would like to — to make is in response to Justice Kennedy’s question, which shows the incompatibility of coram nobis relief within the military justice system.

That they’ve had to create this DuBay procedure where — where a new court-martial — and DuBay sets this out.

The new court-martial does have to be convened, and then they would have a factfinding tribunal in which new — a new military judge would have to be assigned to govern it.

None of that is specified within Congress’s scheme.

That has all been created.

It shows the incompatibility of the practical burdens that this procedure places on the military.

And nothing in Article 66(c) which governs the jurisdiction of the military appellate courts, the intermediate courts, references any independent factfinding power.

It says in a case referred to it, the court of criminal appeals may act only with respect to the findings and sentence as approved by the convening authority.

It may affirm only such findings of guilty and the sentence or such part or amount of the sentence as it finds correct in law and fact and determines on the basis of the entire record.

John G. Roberts, Jr.:

Why don’t you briefly make your fourth point.

The fourth — fourth point is in response to Justice Breyer.

My military colleagues inform me that in the situation of a true clerical error, they could go to the Board of Correction of Military Review and seek correction of that error.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.