United States v. Colonel GREGORY A. GROSS

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before HOLDEN, HOFFMAN, and SULLIVAN Appellate Military Judges THE UNITED STATES OF AMERICA, Petitioner v. Colonel GREGORY A. GROSS Military Judge, Respondent ARMY MISC 20081049 III Corps and Fort Hood Colonel Gregory A. Gross, Military Judge Colonel John W. Miller, II, Staff Judge Advocate

For Petitioner: Captain Adam S. Kazin, JA (argued); Colonel Denise R. Lind, JA; Lieutenant Colonel Mark H. Sydenham; Lieutenant Colonel Stephen P. Haight, JA; Captain Adam S. Kazin, JA (on reply brief); Colonel Denise R. Lind, JA; Lieutenant Colonel Mark H. Sydenham; Lieutenant Colonel Stephen P. Haight, JA; Captain Adam S. Kazin, JA (on brief).

For Respondent: Captain Alison L. Gregoire, JA (argued); Lieutenant Colonel Mark Tellitocci, JA; Major Grace M. Gallagher, JA; Captain Alison L. Gregoire, JA (on brief).

9 January 2009 ------------------------------------------------------- SUMMARY DISPOSITION ON PETITION FOR EXTRAORDINARY RELIEF ------------------------------------------------------ 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).

Accordingly, the petition of the United States for extraordinary relief in the nature of a writ of prohibition is hereby denied.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court