Rule 21. Supplement to Petition for Grant of Review

(a) Review on petition for grant of review requires a showing of good cause. Good cause must be shown by the appellant in the supplement to the petition, which shall state with particularity the error(s) claimed to be materially prejudicial to the substantial rights of the appellant. See Article 59(a), UCMJ, 10 USC § 859 (a).

(b) The supplement to the petition shall be filed in accordance with the applicable time limit set forth in Rule 19 (a)(5)(A) or (B), shall include an Appendix required by Rule 24 (a), shall conform to the provisions of Rules 24 (b), 35A, and 37, and shall contain:

(1) A statement of the errors assigned for review by the Court, expressed concisely in relation to the circumstances of the case, without unnecessary detail. The assigned errors should be short and should not be argumentative or repetitive;

(2) A statement of statutory jurisdiction, including:

(A) the statutory basis of the Court of Criminal Appeals jurisdiction;

(B) the statutory basis upon which this Court’s jurisdiction is invoked;

(3) A statement of the case setting forth a concise chronology, including all relevant dates. The chronology shall specify: (A) the results of the trial; (B) the actions of the intermediate reviewing authorities and the Court of Criminal Appeals; (C) the disposition of a petition for reconsideration or rehearing, if filed; and (D) any other pertinent information regarding the proceedings, including, if set forth in the record, the date when service upon the accused of the decision of the Court of Criminal Appeals was effected;

(4) A statement of facts of the case material to the errors assigned, including specific page references to each relevant portion of the record of trial;

(5) A direct and concise argument showing why there is good cause to grant the petition, demonstrating with particularity why the errors assigned are materially prejudicial to the substantial rights of the appellant. Where applicable, the supplement to the petition shall also indicate whether the court below has:

(A) decided a question of law which has not been, but should be, settled by this Court;

(B) decided a question of law in a way in conflict with applicable decisions of (i) this Court, (ii) the Supreme Court of the United States, (iii) another Court of Criminal Appeals, or (iv) another panel of the same Court of Criminal Appeals;

(C) adopted a rule of law materially different from that generally recognized in the trial of criminal cases in the United States district courts;

(D) decided the validity of a provision of the UCMJ or other act of Congress, the Manual for Courts-Martial, a service regulation, a rule of court or a custom of the service the validity of which was directly drawn into question in that court;

(E) decided the case (i) en banc or (ii) by divided vote;

(F) so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by a court-martial or other person acting under the authority of the UCMJ, as to call for an exercise of this Court’s power of supervision; or

(G) taken inadequate corrective action after remand by the Court subsequent to grant of an earlier petition in the same case and that appellant wishes to seek review from the Supreme Court of the United States; and

(6) A certificate of filing and service in accordance with Rule 39 (g).

(c)

(1) Answer/reply in Article 62, UCMJ, appeals. An appellee’s answer to the supplement to the petition for grant of review in an Article 62, UCMJ, 10 USC § 862, case shall be filed no later than 10 days after the filing of such supplement. A reply may be filed by the appellant no later than 5 days after the filing of the appellee’s answer.

(2) Answer/reply in other appeals. An appellee’s answer to the supplement to the petition for grant of review in all other appeal cases may be filed no later than 30 days after the filing of such supplement, see Rule 21 (e); as a discretionary alternative in the event a formal answer is deemed unwarranted, an appellee may file with the Clerk of the Court a short letter, within 10 days after the filing of the appellant’s supplement to the petition under Rule 21, setting forth one of the following alternative positions: (i) that the United States submits a general opposition to the assigned error(s) of law and relies on its brief filed with the Court of Criminal Appeals; or (ii) that the United States does not oppose the granting of the petition (for some specific reason, such as an error involving an unsettled area of the law). A reply may be filed by the appellant no later than 10 days after the filing of the appellee’s answer.

(d) The Court may, in its discretion, examine the record in any case for the purpose of determining whether there appears to be plain error not assigned by the appellant. The Court may then specify and grant review of any such errors as well as any assigned errors which merit review.

(e) Where no specific errors are assigned in the supplement to the petition, the Court will proceed to review the petition without awaiting an answer thereto. See Rule 19 (a)(5).

(f) An appellant or counsel for an appellant may move to withdraw his petition at any time. See Rule 30.

U.S. Code

Rule 21. Supplement to Petition for Grant of Review