Credit for pretrial delay.

United States v. Gross (Military Judge), Army Misc. 20081049 unpublished op. (A. Ct. Crim. App. 9 January 2009).  [When you get to the court site, go to the "summary dispositions – by date" page.]

This case is a government petitione for an extraordinary writ (not listed in the Denedo pleadings at the Supreme Court as a overusage of the All Writs Act?).


 Per Curiam:

This matter is before us as a result of a petition for extraordinary relief filed by the United States pursuant to the All Writs Act, 28 U.S.C. § 1651(a) (2000).  In a petition for Extraordinary Relief in the Nature of a Writ of Prohibition, the government asks this court to prohibit enforcement of an order by Colonel (COL) Gross granting fifty days confinement credit in the general court-martial case of United States v. Peter B. Franco.  After hearing evidence on the matter, COL Gross found “no legitimate government objective” in the delay of the court-martial proceedings caused by failure to have all court members present for trial at the appointed time.  The military judge found the delay caused PFC Franco “additional, unnecessary, and avoidable stress” and violated Article 13, Uniform Code of Military Justice, 10 U.S.C. §813 [hereinafter UCMJ].

We do not decide whether the government may use an extraordinary writ to seek appellate review of an order that does not fall within those matters specifically contemplated by Article 62, UCMJ.  “We need not decide under what circumstances, if any, such a [writ] would be appropriate.”  Will v. United States, 389 U.S. 90, 98 (1967).  The military judge’s ruling is not in clear violation of statute or decisional law and petitioner is not clearly and indisputably entitled to the relief sought.  For these reasons, no grounds exist for extraordinary relief from the ruling of the military judge.  See Dettinger v. United States, 7 M.J. 216 (C.M.A. 1979).

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