OCTOBER TERM 2017 No. ______ IN THE SUPREME COURT OF THE UNITED STATES

381 Pages·2017·17 MB·English

OCTOBER TERM 2017

No. _______
___________________________________

IN THE SUPREME COURT OF THE UNITED STATES
___________________________________

RONALD GRAY,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.
_____________________________________

On Petition for Writ of Certiorari or Mandamus to the
United States Court of Appeals for the Armed Forces
_____________________________________

APPENDIX TO PETITION FOR WRIT OF CERTIORARI OR MANDAMUS

-- CAPITAL CASE --
_____________________________________

JONATHAN JEFFRESS TIMOTHY KANE*
KaiserDillon PLLC SHAWN NOLAN
1401 K Street NW #600 Federal Community Defender for the
Washington, DC 20005 Eastern District of Pennsylvania
[email protected] 601 Walnut Street, Suite 545 West
[phone] Philadelphia, PA 19106
[email protected]
[email protected]
[phone]

*Counsel of Record & Member of the
Bar of the United States Supreme Court

Dated: February 9, 2018
APPENDIX CONTENTS

United States Court of Criminal Appeals for the Armed Forces (CAAF) Opinion and Judgment
United States v. Gray, No. 17-0525 (CAAF Nov. 13, 2017) ......................................... A-1

CAAF Docketing Notice, Sept. 18, 2017 ................................................................................... A-5

CAAF Order, Sept. 6, 2017 ........................................................................................................ A-6

CAAF Docketing Notice, July 25, 2017 ..................................................................................... A-8

United States Army Court of Criminal Appeals (ACCA) Opinion
Gray v. United States, No. ARMY MISC 20160775 (ACCA May 9, 2017) .............. A-10

U.S. District Court for the District of Kansas Memorandum and Order
Gray v. Belcher, No. 5:08-cv-3289 (Oct. 26, 2016) .................................................... A-35

CAAF Docketing Notice and Order, June 8, 2016 ................................................................... A-38

ACCA Order, May 10, 2016 ..................................................................................................... A-40

United States Court of Appeals for the Tenth Circuit Order and Judgment
Gray v. Gray, No. 16-3038 (10th Cir. 2016) ............................................................... A-42

U.S. District Court for the District of Kansas Memorandum and Order
Gray v. Gray, No. 5:08-cv-3289 (Sept. 29, 2015) ........................................................ A-46

CAAF Order, Apr. 17, 2012 ................................................................................................... A-103

ACCA Opinion
Gray v. Belcher, No. ARMY MISC 20110093 (ACCA Jan. 26, 2012) .................... A-104

ACCA Order Denying Reconsideration, June 20, 2017 ......................................................... A-108

Statutory Provisions Involved in This Case ............................................................................ A-109

Petitioner’s Notice of Mandatory Review (filed in CAAF July 7, 2017) ............................... A-113

Petition for Extraordinary Relief in the Nature of Coram Nobis (filed in CAAF July 7,
2017) .......................................................................................................................... A-165

Writ-Appeal Petition (filed in CAAF Sept. 18, 2017) ............................................................ A-244
United States’ Answer to Writ-Appeal Petition (filed in CAAF Sept. 28, 2017 .................... A-314

Petitioner’s Reply to United States’ Answer to Writ-Appeal Petition (filed in CAAF Oct. 5,
2017) .......................................................................................................................... A-351
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Ronald A. Gray, Private
United States Army, Appellant
No. 17-0525
Crim. App. No. 20160775
Military Judge: Raymond C. McRorie
Decided November 13, 2017
For Appellant: Jonathan Jeffress, Esq., Timothy Kane,
Esq., and Shawn Nolan, Esq.
For Appellee: Lieutenant Colonel Eric K. Stafford and Cap-
tain Samuel E. Landes.
_______________
PER CURIAM:*
Appellant seeks extraordinary relief in the form of a writ of error
coram nobis. This Court lacks jurisdiction to provide him with his
requested relief, and we dismiss the writ-appeal petition with preju-
dice.
I. Procedural History
Contrary to his pleas, Appellant was convicted of premeditated
murder (two specifications), attempted premeditated murder, rape
(three specifications), robbery (two specifications), forcible sodomy
(two specifications), burglary, and larceny. In April 1988, a general
court-martial sentenced him to death, a dishonorable discharge, forfei-
ture of all pay and allowance, and reduction to E-1. In July 1988, the
convening authority approved the sentence.
The United States Army Court of Military Review (ACMR) de-
nied a petition for a new trial and affirmed the findings and the sen-
tence. United States v. Gray, 37 M.J. 730, 749 (A.C.M.R. 1992). Af-
ter granting a motion to file supplemental assignment of errors, the
* Judge Ohlson is recused and did not participate in this case.
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ACMR again affirmed the findings and the sentence. United States v.
Gray, 37 M.J. 751, 761 (A.C.M.R. 1993).
This Court heard oral argument twice before affirming the lower
court’s decision. United States v. Gray, 51 M.J. 1, 64 (C.A.A.F.
1999). The United States Supreme Court denied a petition for
certiorari, without dissent. Gray v. United States, 532 U.S. 919
(2001).
Between 2001 and 2008, there was no appellate litigation in this
case. In July 2008, under Article 71(a), Uniform Code of Military Jus-
tice (UCMJ), 10 U.S.C. § 871(a), the President approved the death
sentence. The Secretary of the Army set the execution date for De-
cember 10, 2008, but the United States District Court for the District
of Kansas stayed that order. Gray v. Gray, No. 08-3289-RDR (D.
Kan. Nov. 26, 2008) (order). In April 2009, Appellant filed a petition
for habeas corpus with that court.
After Appellant filed two petitions for coram nobis with the Unit-
ed States Army Court of Criminal Appeals, which that court and this
Court denied, the district court dismissed the habeas petition without
prejudice. Gray v. Belcher, No. 5:08-cv-03289-JTM, 2016 U.S. Dist.
LEXIS 149574 (D. Kan. Oct. 26, 2016) (memorandum and order)
(dismissing without prejudice to afford Appellant opportunity to ex-
haust claims in military courts).
Appellant returned to the Army court in December 2016 and filed
a third petition for coram nobis, with an alternative prayer for habeas.
The court concluded that it had jurisdiction to review six of the seven
claims. The seventh claim alleged constitutional violations, arguing
that the President approved the death sentence based on confidential
reports from the Judge Advocate General, the Secretary of the Army,
and the Secretary of Defense that were not disclosed to Appellant.
The Army court dismissed that claim for want of jurisdiction and de-
nied all of the others. Gray v. United States, 76 M.J. 579, 594 (A. Ct.
Crim. App. 2017) (en banc). Appealing that decision, Appellant
comes to this Court for the third time seeking a writ of coram nobis.
II. Discussion
The threshold question is whether this Court has jurisdiction to
entertain a request for coram nobis in a case that is final in all respects
under the UCMJ. We hold that we do not.
Direct review of this capital case is done. The Army court has
completed its review under Article 66, UCMJ, 10 U.S.C. § 866, and
A-2
this Court has completed its review under Article 67, UCMJ, 10
U.S.C. § 867. Under Article 67a, UCMJ, the U.S. Supreme Court has
denied certiorari. The President has approved the sentence and an ex-
ecution date was set. Therefore, there is a final judgment as to the le-
gality of the proceedings under Article 71(c)(1), UCMJ, and the case
is final under Article 76, UCMJ, 10 U.S.C. § 876. Appellant has ex-
hausted all of his remedies in the military justice system. In the ab-
sence of any statutory authority to provide extraordinary relief for a
capital case that is final for all purposes under the UCMJ, we lack ju-
risdiction to hear Appellant’s writ-appeal petition for coram nobis.
Even assuming that this Court has jurisdiction to issue the re-
quested writ, Appellant fails to show that he is entitled to extraordi-
nary relief. He has a remedy other than coram nobis to rectify the
consequences of the alleged errors, namely a writ of habeas corpus in
the Article III courts: “an extraordinary remedy [such as coram nobis]
may not issue when alternative remedies, such as habeas corpus, are
available.” United States v. Denedo, 556 U.S. 904, 911 (2009). More-
over, where Appellant is still in confinement, coram nobis relief is
unavailable. Loving v. United States, 62 M.J. 235, 254 (C.A.A.F.
2005).
III. Judgment
Accordingly, in light of the lack of jurisdiction, the writ-appeal is
dismissed with prejudice.

A-3
United States Court of Appeals
for the Armed Forces
Washington, D.C.

Ronald A. USCA Dkt. No. 17-0525/AR
Gray, Crim.App. No. 20160775
Appellant

v. JUDGMENT

United States,
Appellee

This cause came before the Court on appeal from the United States Army
Court of Criminal Appeals and was taken under advisement by the Court on
October 5, 2017. On consideration thereof, it is, by the Court, this 13th day of
November, 2017,
ORDERED:
That the writ-appeal is hereby dismissed with prejudice in accordance with
the opinion filed herein this date.

For the Court,*

/s/ Joseph R. Perlak
Clerk of the Court

____
*Judge Ohlson is recused and did not participate in this case.

C O R R E C T E D C O P Y
A-4
United States Court of Appeals
for the Armed Forces
Washington, D.C.

Ronald USCA Dkt. No. 17-0525/AR
Gray, Crim.App. No. 20160775
Appellant

v. DOCKETING NOTICE

United States,
Appellee

Notice is hereby given that a writ-appeal petition for review of the decision
of the United States Army Court of Criminal Appeals on application for
extraordinary relief was filed under Rule 27(b) on this 18th day of September,
2017.

For the Court,

/s/ Joseph R. Perlak
Clerk of the Court

cc: The Judge Advocate General of the Army
Appellate Defense Counsel (Nolan)
Appellate Government Counsel

C O R R E C T E D N O T I C E
A-5
United States Court of Appeals
for the Armed Forces
Washington, D.C.

Ronald USCA Dkt. No. 17-0525/AR
Gray, Crim.App. No. 20160775
Appellant

v.
O R D ER
United States,
Appellee

On consideration of Appellee’s motion to consolidate Docket No. 17-
0502/AR with Docket No. 17-0525/AR, to construe the overlength petition for
extraordinary relief in coram nobis in Docket No. 17-0502/AR as a writ-appeal
petition, and to extend time to file an answer to the consolidated petitions in
Docket Nos. 17-0502/AR and 17-0525/AR, of Appellant’s writ-appeal petition in
Docket No. 17-0525/AR and Appellee’s answer to said writ-appeal petition, and of
Appellant’s motion for leave to file an overlength petition in Docket No. 17-
0502/AR, it is, by the Court, this 6th day of September, 2017,
ORDERED:
That the motion to consolidate Docket No. 17-0502/AR and Docket No. 17-
0525/AR is hereby granted. Docket No. 17-0502/AR is removed from this case and
will not be used on any other case. Henceforth, Docket No. 17-0525/AR will be
used on all future documents filed in this case;
That the motion to construe the overlength petition for extraordinary relief in
coram nobis in Docket No. 17-0502/AR as a writ-appeal petition, having now been
consolidated with the writ-appeal in Docket No. 17-0525/AR, is hereby granted.

A-6
Gray, 17-0525/AR

That the Court will not consider the current writ-appeal filed in Docket No.
17-0525/AR;
That the motion to file an overlength petition in Docket No. 17-0502/AR is
hereby denied and the Court will not consider that pleading. This denial is limited
to the length, not the merits of the overlength pleading and is therefore without
prejudice to Appellant refiling a single, consolidated writ-appeal petition in Docket
No. 17-0525/AR that complies with Rule 24(b) of the Court’s Rule of Practice and
Procedure; and
That the motion for an extension of time to file an answer is hereby denied
as moot.
Appellant shall file a consolidated writ-appeal petition not later than 10 days
from the date of this order. Appellee may file an answer within 10 days after the
filing of the writ-appeal petition. Appellant may file a reply within 5 days after the
filing of Appellee’s answer.

For the Court,*

/s/ Joseph R. Perlak
Clerk of the Court

____
*Judge Ohlson is recused and did not participate in this case.

cc: The Judge Advocate General of the Army
Appellate Defense Counsel (Nolan)
Appellate Government Counsel (Landes)

2

A-7
United States Court of Appeals
for the Armed Forces
Washington, D.C.

Ronald USCA Dkt. No. 17-0525/AR
Gray, Crim.App. No. 20160775
Appellant

v.
DOCKETING NOTICE
United States,
Appellee

Notice is hereby given that a pleading styled as “Notice of Mandatory
Review,” which this Court construes as a writ-appeal petition of the decision of the
United States Army Court of Criminal Appeals on a petition for extraordinary
relief in the nature of a writ of error coram nobis, was filed on July 12, 2017, and
placed on the docket this 25th day of July, 2017.
Appellee shall file an answer no later than 10 days from the date of this
notice. Appellant may file a reply no later than 5 days thereafter.
Additionally, counsel for Appellant filed a motion with the Court on July 12,
2017, to appear Pro Hac Vice. That motion bears the docketing number assigned
to another motion docketed that date, (USCA No. 17-0502/AR), but the substance
of the motion will be considered applicable to all matters filed by Appellant on
A-8