United States v. Hyppolite

U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS In re Ralph J. HYPPOLITE II ) Misc. Dkt. No. 2021–02 Staff Sergeant (E-5) ) U.S. Air Force ) Petitioner ) ) ORDER ) ) ) ) Panel 2 This order resolves Petitioner’s 4 March 2021 request for extraordinary re- lief in the nature of a writ of habeas corpus under the All Writs Act, 28 U.S.C. § 1651(a). Petitioner, through civilian counsel, asks this court to issue a writ of habeas corpus, vacate the findings and sentence approved by the convening authority, order his immediate release from confinement, and restore all rights, property, and privileges to Petitioner. Additionally, citing Rule 19(b)(2)(I) of the Joint Rules for Appellate Procedure for Courts of Criminal Appeals, Petitioner requests the appointment of military appellate defense counsel under Article 70, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 870. 1 The United States Court of Appeals for the Armed Forces issued a decision in Petitioner’s case on 1 August 2019, affirming the findings and sentence as approved by this court. United States v. Hyppolite, 79 M.J. 161, 167 (C.A.A.F.

2019). Thereafter, Petitioner did not file a petition for writ of certiorari with the United States Supreme Court, and direct review of Petitioner’s case was complete. On 8 December 2020, the commander of the Air Force District of Washington ordered execution of Petitioner’s dishonorable discharge, having already ordered the other portions of Petitioner’s sentence executed.

This court does not have jurisdiction over habeas corpus petitions when there is a final judgment as to the legality of the proceedings, all portions of the sentence have been ordered executed, and the case is final under Articles

1 See Manual for Courts-Martial, United States, Appendix 2, at 29–30, § 857 (2019 ed.) (2019 MCM).

In re Hyppolite II, Misc. Dkt. No. 2021–02

71(c)(1)(C)(i) and 76, UCMJ, 10 U.S.C. §§ 871(c)(1)(C)(i), 876. 2 Chapman v. United States, 75 M.J. 598, 600–01 (A.F. Ct. Crim. App. 2016) (citations omit- ted). Consequently, this court lacks jurisdiction to grant Petitioner’s request for extraordinary relief and to order appointment of military appellate defense counsel to represent Petitioner. Id. at 600. 3 Accordingly, it is by the Court on this 29th day of March, 2021, ORDERED: The Petition for Extraordinary Relief in the Nature of a Writ of Habeas Corpus is DENIED.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court

2 The charge and specifications in Petitioner’s court-martial were referred before the effective date of amendments made to the Uniform Code of Military Justice (UCMJ) by the Military Justice Act of 2016, as implemented by the President effective 1 Janu- ary 2019. See National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 5542(c)(2) (23 Dec. 2016); Exec. Order 13,825, §§ 3(a), (d), 83 Fed. Reg. 9889 (8 Mar. 2018). These amendments were subsequently included in Appendix 2 of the 2019 MCM. Because Petitioner’s case was referred to trial before 1 January 2019, the substantive provisions of Article 71, UCMJ (Manual for Courts-Martial, United States (2016 ed.) (2016 MCM))—which now appear in Article 57(a)(5) and (c), UCMJ (2019 MCM) and apply to cases referred on or after 1 January 2019—governed actions taken after appellate review was completed in Petitioner’s case. Likewise, the provisions of Article 76, UCMJ (2016 MCM), which is unchanged in the 2019 MCM, govern the fi- nality of proceedings in Petitioner’s case.

3 Petitioner was represented by military and civilian appellate defense counsel on ap- peal. See Hyppolite, 79 M.J. at 161; United States v. Hyppolite, No. ACM 39358, 2018 CCA LEXIS 517 (A.F. Ct. Crim. App. 25 Oct. 2018) (unpub. op.).