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APPEALS

Rule 18. Methods of Appeal

(a) The Court will entertain the following appeals:

(1) Cases under Article 67(a)(3). Cases under Article 67(a)(3), UCMJ, 10 USC § 867(a)(3) (1989), including decisions by a Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, 10 USC § 862 (1983), may be appealed by the filing of a petition for grant of review by an appellant or by counsel on behalf of an appellant substantially in the form provided in Rule 20(a) or (b).

(2) Cases under Article 67(a)(2). Cases under Article 67(a)(2), UCMJ, 10 USC § 867(a)(2) (1989), including decisions by a Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, 10 USC § 862 (1983), which are forwarded by a Judge Advocate General by a certificate for review must be substantially in the form provided in Rule 22(a).

(3) Cases under Article 67(a)(1). Cases under Article 67(a)(1), UCMJ, 10 USC § 867(a)(1) (1989), will be forwarded by a Judge Advocate General by the filing of the record with the Court, together with the form prescribed by Rule 23(a).

(4) Cases under Rule 4(b)(2). Decisions by a Court of Criminal Appeals on petitions for extraordinary relief may be appealed by filing a writ appeal petition in accordance with Rules 27(b) and 28.

(b) In addition, the Court may, in its discretion, entertain petitions for extraordinary relief including, but not limited to, writs of mandamus, writs of prohibition, writs of habeas corpus, and writs of error coram nobis. See Rules 4(b)(1), 27(a) and 28.

(As amended Oct. 1, 1987; Oct. 12, 1994; Mar. 26, 1998, eff. May 1, 1998.)

Rule 19. Time Limits

(a) Petition for grant of review/supplement/answer/reply. (1) A petition for grant of review shall be filed no later than 60 days from the earlier of:

(A) the date on which the appellant is notified of the decision of the Court of Criminal Appeals; or

(B) the date on which a copy of the decision of the Court of Criminal Appeals, after being served on appellate counsel of record for the appellant (if any), is deposited in the United States mails for delivery by first-class certified mail to the appellant at an address provided by the appellant or, if no such address has been provided by the appellant, at the latest address listed for the appellant in his official service record. Under circumstances where certified mail is not available, registered mail may be used. See Article 67(b), UCMJ, 10 USC § 867(b) (1989).

(2) A certificate of notification shall be placed in the appellant's record of trial setting forth the manner and date that the appellant was notified of the decision of the Court of Criminal Appeals or the date that a copy of such decision was mailed to the appellant after service of a copy of such decision on appellate defense counsel of record.

(3) For purposes of this rule, a petition for grant of review will be deemed to have been filed on the date when the petition has been mailed or delivered by an appellant or by counsel on behalf of an appellant directly to the Court.

(4) Any petition for grant of review received from an appellant or counsel on behalf of an appellant shall, upon receipt, be accepted and docketed by the Clerk. If it appears that such petition is not in accord with Article 67, UCMJ, 10 USC § 867 (1989), or with the Court's rules, the United States may move to dismiss such petition.

(5)(A) Article 62, UCMJ, appeals. In cases involving a decision by a Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, 10 USC § 862 (1983), a supplement to the petition establishing good cause in accordance with Rule 21 shall be filed no later than 20 days after the issuance by the Clerk of a notice of docketing of such a petition for grant of review. See Rule 10(c). An appellee's answer to the supplement to the petition for grant of review shall be filed no later than 10 days after the filing of such supplement. A reply may be filed by the appellant no later than 5 days after the filing of the appellee's answer.

(B) Other appeals. In all other appeal cases, a supplement to the petition establishing good cause in accordance with Rule 21 shall be filed no later than 30 days after the issuance by the Clerk of a notice of docketing of a petition for grant of review. See Rule 10(c). An appellee's answer to the supplement to the petition for grant of review may be filed no later than 30 days after the filing of such supplement. See Rule 21(e). A reply may be filed by the appellant no later than 10 days after the filing of the appellee's answer.

(6) The Court shall act promptly on a petition for grant of review. See Article 67(b), UCMJ, 10 USC § 867(b) (1989).

(7) Granted petitions. (A) Article 62, UCMJ, appeals. Where a petition has been granted in a case involving a decision by a Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, 10 USC § 862 (1983), no further pleadings will be filed and the Court will, whenever practicable, give priority to such cases.

(B) Other appeals. Where a petition has been granted in all other appeal cases and briefs have been ordered, an appellant's brief shall be filed in accordance with Rule 24 no later than 30 days after the date of the order granting the petition. An appellee's answer shall be filed no later than 30 days after the filing of an appellant's brief. A reply may be filed by the appellant no later than 10 days after the filing of the appellee's answer.

(b) Certificate for review/brief/answer/reply. (1) Article 62, UCMJ, cases. In cases involving a decision by a Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, 10 USC § 862 (1983), a certificate for review, together with a supporting brief in accordance with Rule 24 on behalf of the appellant, shall be filed with the Court by the Judge Advocate General no later than 30 days after the date of the decision of the Court of Criminal Appeals. See Rules 22 and 34(a). An appellee's answer shall be filed no later than 10 days after the filing of such certificate for review and supporting brief. A reply may be filed by the appellant no later than 5 days after the filing of the appellee's answer.

(2) Extraordinary relief cases. In cases involving a decision by a Court of Criminal Appeals on application for extraordinary relief filed therein, a certificate for review, together with a supporting brief in accordance with Rule 24 on behalf of the appellant, shall be filed with the Court by the Judge Advocate General no later than 30 days after the date of the decision of the Court of Criminal Appeals. See Rules 22 and 34(a). An appellee's answer shall be filed no later than 10 days after the filing of such certificate for review and supporting brief. A reply may be filed by the appellant no later than 5 days after the filing of the appellee's answer.

(3) Other cases. In all other cases involving a decision by a Court of Criminal Appeals, a certificate for review filed by the Judge Advocate General shall be filed no later than 30 days after the date of the decision of the Court of Criminal Appeals. See Rules 22 and 34(a). An appellant's brief shall be filed in accordance with Rule 24 no later than 30 days after the issuance by the Clerk of a notice of docketing of the certificate for review. An appellee's answer shall be filed no later than 30 days after the filing of an appellant's brief. A reply may be filed by the appellant no later than 10 days after the filing of the appellee's answer.

(c) Mandatory review case. The record in a mandatory review case shall be filed with the Court by the Judge Advocate General, together with the form prescribed by Rule 23(a), upon the expiration of the time for filing a petition for reconsideration of the decision of the Court of Criminal Appeals or, in the event of the filing of such petition, upon the final disposition thereof. A brief setting forth assigned errors shall be filed by the appellant in accordance with Rule 24 no later than 60 days after the issuance by the Clerk of a notice of docketing of the case. An appellee's answer shall be filed no later than 60 days after the filing of the appellant's brief. A reply may be filed by the appellant no later than 20 days after the filing of the appellee's answer.

(d) Petition for extraordinary relief. A petition for extraordinary relief under Rule 4(b)(1) shall be filed as soon as possible but, in any event, no later than 20 days after the petitioner learns of the action complained of. However, a petition for a writ of habeas corpus or writ of error coram nobis may be filed at any time. See Rules 27(a) and 28. The Court will, whenever practicable, give priority to such cases.

(e) Writ appeal petition. A writ appeal petition under Rule 4(b)(2) for review of a decision by a Court of Criminal Appeals acting on a petition for extraordinary relief shall be filed no later than 20 days after the date the decision of the Court of Criminal Appeals is served on the appellant or appellant's counsel. An appellee's answer shall be filed no later than 10 days after the filing of the writ appeal petition. A reply may be filed by the appellant no later than 5 days after the filing of the appellee's answer. See Rules 27(b) and 28. The Court will, whenever practicable, give priority to such cases.

(f) Petition for new trial. When a petition for new trial has been filed with the Court in a case pending before the Court, a brief in support thereof, unless expressly incorporated in the petition, shall be filed no later than 30 days after the issuance by the Clerk of a notice of the filing of the petition. An appellee's answer shall be filed no later than 30 days after the filing of an appellant's brief. A reply may be filed no later than 10 days after the filing of the appellee's answer. See Rule 29.

(As amended Oct. 1, 1987; Oct. 12, 1994; Nov. 1, 1995, eff. Nov. 15, 1995; Mar. 26, 1998, eff. May 1, 1998.)

Rule 20. Form of Petition for Grant of Review

(a) Form to be used by an appellant. A petition for grant of review under Rule 18(a)(1) filed personally by an appellant will be substantially in the following form:
10ar20.gif

to the judges of the united states court of appeals for the armed forces:

1. I hereby petition the Court for review of the decision of the Court of Criminal Appeals [on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 USC § 862 (1983)] [on appeal under Article 66, Uniform Code of Military Justice, 10 USC § 866].

2. I understand that, unless I specifically request the contrary, a military lawyer will be designated by the Judge Advocate General to represent me free of charge before the U.S. Court of Appeals for the Armed Forces.

SIGNED:  ___________________
(Put your signature here)  

DATED:  ___________________
(Put mailing date here)  
MAIL TO:                     
U.S. Court of Appeals for the  
Armed Forces           
450 E Street N.W.            
Washington, D.C. 20442-0001     

(b) Form to be used by an appellant's counsel. A petition for grant of review under Rule 18(a)(1) filed by counsel on behalf of an appellant will be substantially in the following form:
10ar20.gif

to the judges of the united states court of appeals for the armed forces:

The undersigned counsel, on behalf of (insert appellant's full name here), hereby petitions the United States Court of Appeals for the Armed Forces for a grant of review of the decision of the Court of Criminal Appeals [on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 USC § 862 (1983)] [on appeal under Article 66, Uniform Code of Military Justice, 10 USC § 866], pursuant to the provisions of Article 67(a)(3), Uniform Code of Military Justice, 10 USC § 867(a)(3) (1989).

___________________
(Signature of counsel)  

___________________
(Typed name of counsel)  

___________________
(Address of counsel)  

___________________
(Telephone no. of counsel)  

(c) An appellant or counsel on behalf of an appellant shall file a petition for grant of review in the manner and within the time limits set forth in Rule 19(a).

(d) When a petition for grant of review is filed with the Court, the Clerk will cause a copy thereof to be delivered to the Judge Advocate General of the appellant's service, to the appellant's counsel, if named in the petition, and to government counsel. Upon receipt of a copy of the petition from the Clerk, the Judge Advocate General shall designate counsel to represent the parties unless such parties are already represented by counsel. See Rule 17.

(e) Upon issuance by the Clerk under Rule 10(c) of a notice of docketing of a petition for grant of review, counsel for the appellant shall file a supplement to the petition in accordance with the applicable time limit set forth in Rule 19(a)(5)(A) or (B), and the provisions of Rule 21.

(As amended Oct. 1, 1987; Oct. 12, 1994; Feb. 27, 1996.)

Rule 21. Supplement to Petition for Grant of Review

(a) Review on petition for grant of review requires a showing of good cause. Good cause must be shown by the appellant in the supplement to the petition, which shall state with particularity the error(s) claimed to be materially prejudicial to the substantial rights of the appellant. See Article 59(a), UCMJ, 10 U.S.C. § 859(a).

(b) The supplement to the petition shall be filed in accordance with the applicable time limit set forth in Rule 19(a)(5)(A) or (B), shall include an Appendix required by Rule 24(a), shall conform to the provisions of Rules 24(b), 35A, and 37, and shall contain:

(1) A statement of the errors assigned for review by the Court;

(2) A statement of the case setting forth a concise chronology, including the results of the trial, the actions of the intermediate reviewing authorities and the Court of Criminal Appeals, and any other pertinent information regarding the proceedings;

(3) A statement of facts of the case material to the errors assigned, including specific page references to each relevant portion of the record of trial;

(4) A direct and concise argument showing why there is good cause to grant the petition, demonstrating with particularity why the errors assigned are materially prejudicial to the substantial rights of the appellant. Where applicable, the supplement to the petition shall also indicate whether the court below has:

(A) decided a question of law which has not been, but should be, settled by this Court;

(B) decided a question of law in a way in conflict with applicable decisions of (i) this Court, (ii) the Supreme Court of the United States, (iii) another Court of Criminal Appeals, or (iv) another panel of the same Court of Criminal Appeals;

(C) adopted a rule of law materially different from that generally recognized in the trial of criminal cases in the United States district courts;

(D) decided the validity of a provision of the Uniform Code of Military Justice or other act of Congress, the Manual for Courts-Martial, a service regulation, a rule of court or a custom of the service the validity of which was directly drawn into question in that court;

(E) decided the case (i) en banc or (ii) by divided vote;

(F) so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by a court-martial or other person acting under the authority of the Uniform Code of Military Justice, as to call for an exercise of this Court's power of supervision; or

(G) taken inadequate corrective action after remand by the Court subsequent to grant of an earlier petition in the same case and that appellant wishes to seek review from the Supreme Court of the United States; and

(5) A certificate of filing and service in accordance with Rule 39(c).

(c)(1) Answer/reply in Article 62, UCMJ, appeals. An appellee's answer to the supplement to the petition for grant of review in an Article 62, UCMJ, 10 USC § 862 (1983), case shall be filed no later than 10 days after the filing of such supplement. A reply may be filed by the appellant no later than 5 days after the filing of the appellee's answer.

(2) Answer/reply in other appeals. An appellee's answer to the supplement to the petition for grant of review in all other appeal cases may be filed no later than 30 days after the filing of such supplement, see Rule 21(e); as a discretionary alternative in the event a formal answer is deemed unwarranted, appellee may file with the Clerk of the Court a short letter, within 10 days after the filing of the appellant's supplement to the petition under Rule 21, setting forth one of the following alternative positions: (i) that the United States submits a general opposition to the assigned error(s) of law and relies on its brief filed with the Court of Criminal Appeals; or (ii) that the United States does not oppose the granting of the petition (for some specific reason, such as an error involving an unsettled area of the law). A reply may be filed by the appellant no later than 10 days after the filing of the appellee's answer.

(d) The Court may, in its discretion, examine the record in any case for the purpose of determining whether there appears to be plain error not assigned by the appellant. The Court may then specify and grant review of any such errors as well as any assigned errors which merit review.

(e) Where no specific errors are assigned in the supplement to the petition, the Court will proceed to review the petition without awaiting an answer thereto. See Rule 19(a)(5).

(f) An appellant or counsel for an appellant may move to withdraw his petition at any time. See Rule 30.

(As amended Oct. 1, 1987; July 16, 1990, eff. Aug. 15, 1990; Oct. 12, 1994; Jan. 20, 1999, eff. Feb. 1, 1999.)

Rule 22. Certificate for Review

(a) A certificate for review under Rule 18(a)(2) will be substantially in the following form:
10ar22.gif

to the judges of the united states court of appeals for the armed forces:

1. Pursuant to Article 67(a)(2) of the Uniform Code of Military Justice, 10 USC § 867(a)(2) (1989), the record of trial and decision of the United States ____ Court of Criminal Appeals in the above-entitled case are forwarded for review.

2. The accused has been found guilty by a (type of court-martial) of a violation of Article(s) ___ of the Uniform Code of Military Justice and has been sentenced to (include entire adjudged sentence) on the (insert trial date). The trial took place at (location). The convening authority approved the following findings and sentence: ____. The officer exercising general court-martial jurisdiction (where applicable) took the following action: ____. The Court of Criminal Appeals (state action taken). [Substitute different case history facts as appropriate when the Court of Criminal Appeals decision involves an application for extraordinary relief or an appeal by the United States under Article 62, UCMJ, 10 USC § 862 (1983).]

3. It is requested that action be taken with respect to the following issues:

[set out issues here]

___________________
The Judge Advocate General  

Received a copy of the foregoing Certificate for Review this ____ day of ____, 19__.

___________________
Appellate Government Counsel  

___________________
Address and telephone no.  

___________________
Appellate Defense Counsel  

___________________
Address and telephone no.  

(b)(1) Article 62, UCMJ, cases. A certificate for review of a decision by a Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, 10 USC § 862 (1983), shall be filed, together with a supporting brief in accordance with Rule 24 on behalf of the appellant, no later than 30 days after the date of the decision of the Court of Criminal Appeals. See Rule 34(a). An appellee's answer shall be filed no later than 10 days after the filing of such certificate for review and supporting brief. A reply may be filed by the appellant no later than 5 days after the filing of the appellee's answer.

(2) Extraordinary relief cases. A certificate for review of a decision by a Court of Criminal Appeals on application for extraordinary relief filed therein shall be filed, together with a supporting brief in accordance with Rule 24 on behalf of the appellant, no later than 30 days after the date of the decision of the Court of Criminal Appeals. See Rule 34(a). An appellee's answer shall be filed no later than 10 days after the filing of such certificate for review and supporting brief. A reply may be filed by the appellant no later than 5 days after the filing of the appellee's answer.

(3) Other cases. In all other cases involving a decision by a Court of Criminal Appeals, a certificate for review shall be filed no later than 30 days after the date of the decision of the Court of Criminal Appeals. See Rule 34(a). A brief in support of the certified issues shall be filed by the appellant in accordance with Rule 24 no later than 30 days after the issuance by the Clerk of a notice of docketing of the certificate for review. An appellee's answer shall be filed no later than 30 days after the filing of an appellant's brief. A reply may be filed by the appellant no later than 10 days after the filing of the appellee's answer.

(As amended Oct. 1, 1987; Oct. 12, 1994; Feb. 27, 1996.)

Rule 23. Mandatory Review Case

(a) The record in a mandatory review case under Rule 18(a)(3) will be filed, together with the following form:
10ar23.gif

to the judges of the united states court of appeals for the armed forces:

1. The appellant, having an approved sentence to death, is entitled to mandatory review under Article 67(a)(1) of Uniform Code of Military Justice, 10 USC § 867(a)(1) (1989).

2. The appellant was notified of the decision of the Court of Criminal Appeals on (insert notification date).

___________________
The Judge Advocate General  

Received a copy of the foregoing this ____ day of ____, 19__.

___________________
Appellate Government Counsel  

___________________
Address and telephone no.  

___________________
Appellate Defense Counsel  

___________________
Address and telephone no.  

(b) In a mandatory review case, a brief setting forth assigned errors shall be filed by the appellant in accordance with Rule 24 no later than 60 days after the issuance by the Clerk of a notice of docketing of the case. Such brief shall not incorporate by reference that filed before a Court of Criminal Appeals, the convening authority, or the military judge. An appellee's answer shall be filed no later than 60 days after the filing of the assignment of errors and supporting brief. A reply may be filed by the appellant no later than 20 days after the filing of the appellee's answer.

(As amended July 19, 1984, eff. Aug. 1, 1984; Oct. 12, 1994; Feb. 27, 1996.)

































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