|U.S. Court of Appeals|
for the Armed Forces
United States v. MacGriff, __ M.J. __ (C.A.A.F. 2019) (per curiam):
On consideration of Appellant’s petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, we deny the petition.1 However, we note that denial of a petition, although it allows the decision below to stand, does not suggest that we either agree or disagree with the merits of a lower court’s resolution of the case. Cf. Teague v. Lane, 489 U.S. 288, 296 (1989) (recognizing that denial of certiorari by the Supreme Court carries no precedential value as it is not an expression of the Supreme Court’s opinion upon the merits of the case). Thus, denial of this petition carries no support whatsoever for concluding that the lower court either correctly or incorrectly interpreted the scope and application of Farmer v. Brennan, 511 U.S. 825, 832−34 (1994), United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006), or United States v. Brennan, 58 M.J. 351, 355 (CA.A.F. 2003). Cf. Maryland v. Baltimore Radio Show, 338 U.S. 912, 919 (1950) (emphasizing that denial of certiorari reflects no judgment on the opinion below); United States v. Mahan, 1 M.J. 303, 307 n.9 (C.M.A. 1976) (reiterating that the denial of a petition is of no precedential value).
1 The sole issue raised was: Whether the Court of Criminal Appeals improperly conducted a review of the prejudice resulting from Appellant being subjected to cruel and unusual punishment during his post-trial confinement.Anyone with insight as to why the Court of Appeals felt impelled to issue this per curiam is invited to comment. (Real names only, as usual.) Why bother, other than perhaps to reduce the risk that, on collateral review, MacGriff's lights will be put out under the "full and fair consideration" rule of Burns v. Wilson? Is that a proper subject for CAAF to comment on, even indirectly? And why not grant and summarily affirm, permitting MacGriff to seek certiorari under the current perversely discriminatory statute?