United States v. Cossio, A.F.C.C.A. (2015)
United States v. Cossio, A.F.C.C.A. (2015)
UNITED STATES
v.
Airman Basic JOSE A. COSSIO
United States Air Force
Misc. Dkt. No. 2014-14
17 August 2015
Sentence adjudged 16 December 2004 by GCM convened at Hurlburt Field,
Florida. Military Judge: W. Thomas Cumbie (sitting alone).
Approved Sentence: Bad-conduct discharge, confinement for 10 months,
fine of $750.00, an additional 3 months of confinement if the fine is not
paid, and reduction to E-1.
Before
MITCHELL, TELLER, and CONTOVEROS1
Appellate Military Judges
OPINION OF THE COURT
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under AFCCA Rule of Practice and Procedure 18.4.
counsel at his first court-martial, asked this court to issue a writ of coram vobis and set
aside the findings and sentence. On 21 November 2007, this court issued an order
prohibiting the execution of the approved bad-conduct discharge pending resolution of
the petition.
On 15 February 2008, this court, addressing the petition for a writ of coram vobis
on its merits, rescinded the writ of prohibition regarding the execution of the petitioners
bad-conduct discharge and denied the petitioners writ of coram vobis. United States v.
Cossio, ACM 36206 (A.F. Ct. Crim. App. 15 February 2008) (unpub. op.). In doing so,
this court found that the petitioner was not prejudiced by not being advised of the nolo
contendere pleas of a witness, Senior Airman (SrA) MHT, as there was no probability
that the outcome of the petitioners court-martial would have been different even if the
petitioners trial defense counsel had been aware of the evidence. Id. at 4. In making this
finding, this court specifically found that: (1) the petitioners guilt was overwhelming;
(2) even assuming that SrA MHTs credibility was relevant, the petitioners trial strategy
focused more on minimizing his culpability rather than attacking SrA MHTs credibility;
(3) SrA MHTs credibility was already undermined by his admission to repeated
larcenies by fraud; and (4) it was highly unlikely that the trier-of-fact, the military judge
sitting alone, would have found SrA MHTs nolo contendere pleas significant in
evaluating the evidence. Id. The petition for grant of review of the writ-appeal was
denied on 24 April 2008. Cossio v. United States, 66 M.J. 381 (C.A.A.F. 2008).
B. 2008 Writ of Prohibition
On 26 August 2008, the petitioner filed another writ of prohibition to stay the
execution of his bad-conduct discharge and order the appointment of counsel. We denied
the writ on 15 September 2008. United States v. Cossio, Misc. Dkt. 2008-02 (A.F. Ct.
Crim. App. 15 September 2008) (unpub. op.).
C. 2010 Writ of Error Coram Vobis
On 21 June 2010, the petitioner filed a petition for extraordinary relief in the
nature of a writ of error coram vobis. The petitioner, alleging that SrA MHT may have
committed perjury, further acts of larceny, and conspired with another witness to hide
such conduct from the court, asked this court to order a Dubay4 hearing to:
(1) [r]elease the criminal report on SrA MHTs perjury and larceny, (2) make a
finding of fact considering [the] petitioners allegations that the government suppressed
evidence to include SrA MHTs Nolo Contendere pleas, and (3) determine whether the
government asserted unlawful command influence to quash any investigation into
witnesses who may have committed crimes relevant to petitioners court-martial despite a
key witness who testified against the petitioner, had pled nolo contendere to four separate misdemeanor worthless
check charges. The petitioner asserted that he was deprived of this impeachment evidence and prejudiced.
4
United States v. Dubay, 37 C.M.R. 411 (C.M.A. 1967).
reasonable probability that crimes had been committed which would have affected the
outcome of [the] petitioners court-martial. United States v. Cossio, Misc. Dkt 2010-10
(A.F. Ct. Crim. App. 1 July 2010) (unpub. op.). On 1 July 2010, we denied the petition
finding the petitioner had failed to meet several of the threshold requirements. Id. We
also concluded that even if petitioner had met all of the threshold requirements, he still
was not entitled to any relief. Id.
D. 2014 Writ of Error Coram Vobis and Appointment of Counsel
The petitioner has now filed a writ of error coram vobis in which he seeks to have
his 2004 larceny overturned as he alleges it named the wrong victim and that military pay
is not military property, that his sentence should be set aside due to an error in his last
enlisted performance report, and that his sentence (and findings) should be set aside
because of the discovery of SrA MHTs convictions for issuing worthless checks. The
petitioner also alleges that his appellate defense counsel were ineffective for not raising
the issue of legal and factual sufficiency of the larceny conviction despite his request in
accordance with United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). Lastly, the
petitioner requests the appointment of counsel.
Discussion
The All Writs Act, 28 U.S.C. 1651(a), grants this court authority to issue
extraordinary writs. Loving v. United States, 62 M.J. 235, 246 (C.A.A.F. 2005) (citing
Clinton v. Goldsmith, 526 U.S. 529, 534 (1999)). The writ of coram nobis5 is an ancient
common-law remedy designed to correct errors of fact. United States v. Denedo, 556
U.S. 904, 910 (2009) (quoting United States v. Morgan, 346 U.S. 502, 507 (1954)).
Appellate military courts have jurisdiction over coram nobis petitions to consider
allegations that an earlier judgment of conviction was flawed in a fundamental respect.
Id. at 917. The writ of coram nobis is an extraordinary writ and an extraordinary remedy.
Id. It should not be granted in the ordinary case; rather, it should be granted only under
circumstances compelling such action to achieve justice. Id.; Morgan, 346 U.S. at 511;
Correa-Negron v. United States, 473 F.2d 684, 685 (5th Cir. 1973).
Although a petitioner may file a writ of coram nobis at any time, to be entitled to
the writ he must meet the following threshold requirements:
(1) the alleged error is of the most fundamental character; (2)
no remedy other than coram nobis is available to rectify the
consequences of the error; (3) valid reasons exist for not
5
This petition is styled as a Petition for Extraordinary Relief in the Nature of Error Coram Vobis. The appellate
courts have referred to Writs of Coram Vobis and Writs of Coram Nobis almost interchangeably. For purposes of
this petition[], it is a distinction without a difference[,] and we will use the terms interchangeably. United States v.
Cossio, ACM 36206, unpub. op. at 1 n.2 (A.F. Ct. Crim. App. 24 August 2006).
of military property of the United States). To the extent the petitioner seeks to rely on
our decisions in United States v. Hall, 73 M.J. 645 (A.F. Ct. Crim. App. 2014), and
United States v. Thomas, 31 M.J. 794 (A.F.C.M.R. 1990), we expressly overturned both
of those decisions in United States v. Hall, 74 M.J. 525 (AF. Ct. Crim. App. 2014), rev.
denied, 74 M.J. 525 (C.A.A.F. 2015) (holding that basic allowance for housing funds are
military property and when improperly transferred do not convert into an individuals
property).
The petitioner next alleges error in his enlisted performance report that ended in
2004 and was admitted at trial. This was a referral enlisted performance report that was
served on the petitioner. He was provided the opportunity to respond and chose not to
submit any comments. At his court-martial, no objection was made when the enlisted
performance reports were offered into evidence. This alleged issue was not raised on
direct appeal to this court under Article 66, UCMJ, 10 U.S.C. 866, nor in any of his
subsequent writ petitions. The petitioner has no valid reason why he has not raised this
issue earlier.
This court previously addressed the merits of the petitioners contentions
regarding the belated discovery of other offenses committed by SrA MHT. United States
v. Cossio, Misc. Dkt 2010-10 (A.F. Ct. Crim. App. 1 July 2010) (unpub. op.). This 2014
writ improperly seeks to re-litigate issues already resolved by this court.
We turn next to whether the petitioner meets the threshold requirements for a writ
of error coram vobis regarding his allegation of ineffective assistance of counsel because
his appellate defense counsel failed to raise the legal and factual sufficiency of the
larceny
specification
pursuant
to
United
States
v.
Grostefon,
12 M.J. 431 (C.M.A. 1982). Our superior court established a requirement that when the
accused specifies error in his request for appellate representation or in some other form,
the appellate defense counsel, will at a minimum, invite the attention of the [service
courts of criminal appeals] to those issues. Id. at 436. Here the petitioner has attached
emails to his petition in support of his contention that he raised this issue with his
appellate defense counsel. The emails are not certified, attachments to a sworn affidavit,
or otherwise part of the record of trial from the court-martial; therefore, they are not
properly before this court.
Even if we assume as true the content of the emails to establish that the petitioner
notified his appellate defense counsel of his desire to challenge the legal and factual
sufficiency of the larceny charge, we conclude the petitioner does not meet the threshold
requirements. We see no valid reason why the petitioner has not raised this issue in any
of his earlier writs to this court. The new information cited by the petitioner, namely
that the legal and factual sufficiency of the larceny and threat was not raised pursuant to
Grostefon, is readily apparent in this courts first opinion in 2006.
LEAH M. CALAHAN
Deputy Clerk of the Court
This issue intertwines with our analysis on ineffective assistance of counsel claims. We review claims of
ineffective assistance of counsel de novo. United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007). To establish
ineffective assistance of counsel an appellant must demonstrate both (1) that his counsels performance was
deficient, and (2) that this deficiency resulted in prejudice. United States v. Green, 68 M.J. 360, 36162
(C.A.A.F. 2010) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The deficiency prong requires an
appellant to show the performance of counsel fell below an objective standard of reasonableness, according to the
prevailing standards of the profession. Strickland, 466 U.S. at 688. The prejudice prong requires a reasonable
probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. Id.
at 694. We conclude there is no prejudice to the appellant from failing to raise this particular issue because of the
unique nature of this court in determining legal and factual sufficiency for every charge and specification for every
case on review.