U.S. v. v. Denedo

The Supreme Court today ruled that a former service member whose conviction in a military court had become final may nevertheless challenge the verdict within the military appeals court system.

Jacob Denedo, a Nigerian who came to the United States as a student and eventually became a permanent resident, enlisted in the U.S. Navy in 1989. After two reenlistments, he was convicted in 1998 by a special court-martial for larceny and conspiracy to commit larceny. He was sentenced to three months’ confinement, reduction to the lowest enlisted pay grade and a bad-conduct discharge.

He had pleaded guilty in reliance on the assurance by his civilian defense counsel that conviction by a special court-martial would not expose him to any risk of deportation because conviction by such a court—unlike conviction by a general court-martial — is a federal misdemeanor.

The Navy-Marine Corps Court of Criminal Appeals affirmed on February 24, 2000, and on May 30, 2000, Denedo was discharged. Denedo applied for naturalization in 2002. The Immigration and Naturalization Service denied his application, without prejudice, on the ground that his conviction reflected a lack of good moral character during the statutorily-prescribed period. The INS again denied his application without prejudice when he reapplied the following year.

On October 30, 2006, after the time had expired to challenge his conviction in federal district court or the Court of Federal Claims, the U.S. Citizenship and Immigration Services initiated removal proceedings based on the court-martial. The notice to appear treated it as an “aggravated felony” under the Immigration and Nationality Act.

In addition to having advised Denedo that his conviction would constitute a misdemeanor (and hence could not be used to deport him), his defense counsel never informed him that the 1996 INA amendments had expanded the definition of “aggravated felony.” Those amendments reduced the minimum term of imprisonment for theft offenses under §1101(a)(43)(G) from “at least five years” to “at least one year” and reduced the minimum amount of loss in fraud cases under §1101(a)(43)(M).

Denedo subsequently hired a new civilian lawyer, and petitioned a Navy appeals court for a new review of his case, under a “writ of error coram nobis.” That court denied relief. Denedo then sought the same writ from the Court of Appeals for the Armed Forces, which held it had jurisdiction and sent the case back to the Navy appeal tribunal for further review.

In asking the court to hear the case, the Department of Justice argues the Court of Appeals for the Armed Forces has issued a series of rulings — including the one at issue here — that oversteps the bounds of its authority set by Congress.

The decision “affords the armed services’ appellate courts essentially unlimited discretion to undertake collateral review of any court-martial conviction over which they once possessed jurisdiction,” the brief contends. “The result of that broad and unfounded assertion of authority is to impose upon the military justice system administrative and judicial burdens that it was not designed by Congress to bear and to degrade its ability to perform its intended function as the arbiter of discipline within the armed forces.”

The brief in opposition argues that the court lacks jurisdiction to review the case.

On June 8, 2009, the Supreme Court affirmed and remanded the case in a 6-3 opinion by Justice Anthony M. Kennedy.

"Our holding allows military courts to protect the integrity of their dispositions and processes by granting relief from final judgments in extraordinary cases when it is shown that there were fundamental flaws in the proceedings leading to their issuance," wrote Kennedy.

Chief Justice John G. Roberts concurred in part and dissented in part joined by Justices Antonin Scalia, Clarence Thomas and Samuel Alito.

Question presented: Whether a military appellate court has jurisdiction to consider a petition for a writ of error coram nobis filed by a former service member following a final court-martial conviction.