Readers will remember that there is a great deal of talk and decision making about cases where an appellant has failed to file his or her petition for review with CAAF in a timely manner. Here is a link to CAAFLog for a history of the discussions. CAAF determined that the filing deadline is jurisdictional and has been dismissing cases. Prior to CAAF’s decision on the deadline appellant’s would routinely have filings “out of time” granted. Regardless of how that became something of a habit, many petitioners have now lost their right to petition to CAAF because CAAF is now enforcing the rules. Hopefully the number of these cases is dwindling as the appellate shops get control of their docket and establish procedures to ensure continued representation and timely filings. Here, in a “concurring in the result” Chief Judge Efron, again, reminds the TJAG, that in such cases the TJAG could certify them to CAAF. There are some potential political and theoretical concerns with that procedure. Regardless, there seem to be some good reasons why the TJAGs should in fact certify Rodriguez like cases, we’ll see. Perhaps the TJAGs could at least certify the non pro-forma cases. Some petitioners petition CAAF because they can, not necessarily because they have meritorious issues. I call these pro-forma cases. Anyway, here’s the Journal entry that got me started.
No. 09-0030/AR. United States, Appellee v. Josh R. RITTENHOUSE, Appellant. CCA 20050411. On consideration of Appellant’s petition for reconsideration of this Court’s order dismissing Appellant’s petition for grant of review as untimely filed, __ M.J. __ (Daily Journal, June 25, 2009), it is ordered that said petition for reconsideration be, and the same is hereby denied.
EFFRON, Chief Judge (concurring in the result):
I concur in the result and note that Appellant’s case remains subject to review in our Court under Article 67(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(a)(2). See United States v. Angell, No. 09-0098/AR, ___ M.J. ___ (C.A.A.F. 2009) (Effron, C.J., concurring in the result)
BAKER, Judge (concurring):
I concur in the result. See United States v. Angell, No. 09-0098/AR, __ M.J. __ (C.A.A.F. 2009) (Baker, J., concurring) and United States v. Rodriguez, 67 M.J. 110, 120 (C.A.A.F. 2009) (Baker, J., dissenting).