Fyi! "precedential" 'records Expungment'

[SHORTY LONG]

What is the name of your state? OHIO

12 JUNE 06

Respectfully, there still may be hope and light at the end of the tunnel for "Records Expungment!" See the following link to a Federal "Precedential" Court Case 09 JUNE 06:
[url]http://caselaw.lp.findlaw.com/data2/circs/3rd/053425p.pdf[/url]
Best of Luck and do not give up! Shorty

Originally Posted by SHORTY LONG

What is the name of your state? OHIO

12 JUNE 06

Respectfully, there still may be hope and light at the end of the tunnel for "Records Expungment!" See the following link to a Federal "Precedential" Court Case 09 JUNE 06:
[url]http://caselaw.lp.findlaw.com/data2/circs/3rd/053425p.pdf[/url]
Best of Luck and do not give up! Shorty

Hay SHORTY!!! I read the pdf quickly. It's ten pages long though . Can you give us the short and sweet skinny on it?

I got most of it (the car salesman part kinda scared me) but in the end he didn't really win or did I skim over too thinly?

Thanks

[badapple40]

How does this help you?

First, it deals with a federal court's jurisdiction over judgments of conviction that the federal court entered.

Second, the Court held that it "only that [has] jurisdiction over petitions for expungement in certain narrow circumstances – namely, where the “predicate for the expunction is a challenge to the validity of either the arrest or conviction.”

Third, expungement is only available where "a court invoked its inherent power to
remedy an acquittal, an unconstitutional conviction or an abuse of power."

Fourth, in "cases where expungement was warranted, [the court applies] 'a balancing test in which the harm to the individual caused by the existence of the records is weighed against the governmental interest in maintenance of the records.'”

Finally, only "unusually compelling circumstances . . . justify the exercise of the trial court’s
‘narrow’ power to order expunction.”

The Court also stated that "A defendant’s difficulty in finding or retaining employment is a common consequence of conviction and does not constitute grounds for expungement."

Shorty: I understand you've been on a quest to erase the BCD and SPCM court martial from your record. However, you cannot file in district court because of Article 76, UCMJ, which provides that:

The appellate review of records of trial provided by this chapter, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this chapter, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by this chapter, are final and conclusive. Orders publishing the proceedings of courts-martials and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States, subject only to action upon a petition for a new trial as provided in section 873 of this title (article 73) and to action by the Secretary concerned as provided in section 874 of this title (article 74), and the authority of the President.

The Government will successfully argue that res judicata bars your challenge of the court martial (including challenges to jurisdiction) and that comity to military courts requires and commands that any district court rule against you in your challenge. I respect your continued attempts to challenge this -- but the ship has sailed. It is, in my opinion, a lost cause.

Best,

badapple, COL, JA, USAFR.

Originally Posted by badapple40

How does this help you?

First, it deals with a federal court's jurisdiction over judgments of conviction that the federal court entered.

Second, the Court held that it "only that [has] jurisdiction over petitions for expungement in certain narrow circumstances – namely, where the “predicate for the expunction is a challenge to the validity of either the arrest or conviction.”

Third, expungement is only available where "a court invoked its inherent power to
remedy an acquittal, an unconstitutional conviction or an abuse of power."

Fourth, in "cases where expungement was warranted, [the court applies] 'a balancing test in which the harm to the individual caused by the existence of the records is weighed against the governmental interest in maintenance of the records.'”

Finally, only "unusually compelling circumstances . . . justify the exercise of the trial court’s
‘narrow’ power to order expunction.”

The Court also stated that "A defendant’s difficulty in finding or retaining employment is a common consequence of conviction and does not constitute grounds for expungement."

Shorty: I understand you've been on a quest to erase the BCD and SPCM court martial from your record. However, you cannot file in district court because of Article 76, UCMJ, which provides that:



The Government will successfully argue that res judicata bars your challenge of the court martial (including challenges to jurisdiction) and that comity to military courts requires and commands that any district court rule against you in your challenge. I respect your continued attempts to challenge this -- but the ship has sailed. It is, in my opinion, a lost cause.

Best,

badapple, COL, JA, USAFR.

That's post number 1200 for you Colonel. Does that mean some donuts? Well, maybe cupcakes, right?

Thank you for the clarification. You truly have been a wealth of information for us legal dabblers.

If I said things in the past that may have insulted you or questioned your inteligence, wellllll... You are a lawyer you get it.

[SHORTY LONG]

12 JUNE 06

Col. BadApple, Sir, thank you for clarifying the Court's ruling! Sir, respectfully, Art. 76 has never hindered my pursuits thus far; and res judicata (the S.Ct. case of Councilman makes this clear) has no place for "the want of jurisdiction" especially where no direct appeal was taken, and no Dubay hearing to date has been ordered. And comity, none of the Court's have never had lawful jurisdiction; just that their doors are open and going through the motions! Sir, though the ship has sailed, it has not sink, and presently I am in communication back where I was courted at and requesting a "discretionary review" first at Battalion level, then if I must, to the Commanding General; and if this fails, I will proceed to Federal Court. My thought is, the statute of limitations will restart from this! And so we are clear, I am not seeking backing pay, etc., just prospective relief and the return of my good name Sir. I thank you from my heart for your time and legal eagle expertise in helping us Sir. God Bless you Sir. Shorty

P.S. ThePizzaGuy, respectfully, I am so very happy that the Col. interceded to interpret the Court's opinion for all of us!

[SHORTY LONG]

Originally Posted by badapple40

How does this help you?

First, it deals with a federal court's jurisdiction over judgments of conviction that the federal court entered.

Second, the Court held that it "only that [has] jurisdiction over petitions for expungement in certain narrow circumstances – namely, where the “predicate for the expunction is a challenge to the validity of either the arrest or conviction.”

Third, expungement is only available where "a court invoked its inherent power to
remedy an acquittal, an unconstitutional conviction or an abuse of power."

Fourth, in "cases where expungement was warranted, [the court applies] 'a balancing test in which the harm to the individual caused by the existence of the records is weighed against the governmental interest in maintenance of the records.'”

Finally, only "unusually compelling circumstances . . . justify the exercise of the trial court’s
‘narrow’ power to order expunction.”

The Court also stated that "A defendant’s difficulty in finding or retaining employment is a common consequence of conviction and does not constitute grounds for expungement."

Shorty: I understand you've been on a quest to erase the BCD and SPCM court martial from your record. However, you cannot file in district court because of Article 76, UCMJ, which provides that:



The Government will successfully argue that res judicata bars your challenge of the court martial (including challenges to jurisdiction) and that comity to military courts requires and commands that any district court rule against you in your challenge. I respect your continued attempts to challenge this -- but the ship has sailed. It is, in my opinion, a lost cause.

Best,

badapple, COL, JA, USAFR.

12 JUNE 06

Col. BadApple, Sir, thank you for clarifying the Court's ruling! Sir, respectfully, Art. 76 has never hindered my pursuits thus far; and res judicata (the S.Ct. case of Councilman makes this clear) has no place for "the want of jurisdiction" especially where no direct appeal was taken, and no Dubay hearing to date has been ordered. And comity, none of the Court's have never had lawful jurisdiction; just that their doors are open and going through the motions! Sir, though the ship has sailed, it has not sink, and presently I am in communication back where I was courted at and requesting a "discretionary review" first at Battalion level, then if I must, to the Commanding General; and if this fails, I will proceed to Federal Court. My thought is, the statute of limitations will restart from this! And so we are clear, I am not seeking backing pay, etc., just prospective relief and the return of my good name Sir. I thank you from my heart for your time and legal eagle expertise in helping us Sir. God Bless you Sir. Shorty

P.S. ThePizzaGuy, respectfully, I am so very happy that the Col. interceded to interpret the Court's opinion for all of us!