MILITARY JUSTICE PERSONNEL: Defense Function: Effective / Ineffective Assistance of Counsel

2023 (October Term)

United States v. Leipart, 85 M.J. 35 (to establish that ineffective assistance of counsel occurred, an appellant must prove both that the defense counsel's performance was deficient, and that the deficiency caused prejudice; with respect to the first prong of this test, courts must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; as to the second prong, a challenger must demonstrate a reasonable probability that, but for counsel's deficient performance the result of the proceeding would have been different).

(in this case, trial defense counsel's performance was not deficient and thus he did not render ineffective assistance of counsel when he referenced the accused's pleas of guilty to assault and threat charges involving the same victim during a trial on contested charges of sexual assault where (1) his purpose of allowing military judge to be aware of the mixed pleas was to help familiarize the judge, as the factfinder, as to how the expected evidence related to both the contested and uncontested specifications, as described in defense's opening statement, and (2) counsel did not agree that military judge could consider the pleas or his providence inquiry to prove any element of the contested offenses).

United States v. Metz, 84 M.J. 421 (to establish ineffectiveness of counsel, an appellant must first show that counsel's performance was deficient; this requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment; second, an appellant must show that counsel's deficient performance resulted in prejudice; this requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable; an appellant must prove that defense counsel's performance fell below an objective standard of reasonableness).

(in any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances; scrutiny of counsel's performance should be highly deferential; and the reasonableness of counsel's challenged conduct must be assessed on the facts of the particular case, viewed as of the time of counsel's conduct).

(when a claim of ineffective assistance of counsel is premised on counsel's failure to make a motion to suppress evidence, an appellant must show that there is a reasonable probability that such a motion would have been meritorious; similarly, if deficient performance is established, to demonstrate prejudice, appellant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome).

(where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, appellant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice).

(in this case, defense counsel's failure to move to suppress evidence arising out of an illegal apprehension of appellant was not ineffective assistance of counsel where appellant's consent to search was sufficiently attenuated from his illegal apprehension and appellant failed to carry his burden to show that there was a reasonable probability that any motion to suppress evidence due to the illegal apprehension would have succeeded).

United States v. Palik, 84 M.J. 284 (an appellant will prevail on an ineffective assistance of counsel claim if he demonstrates both (1) that his counsel's performance was deficient, and (2) that this deficiency resulted in prejudice).

(when a claim of ineffective assistance of counsel is premised on counsel's failure to make a motion, an appellant must show that there is a reasonable probability that such a motion would have been meritorious).

(strategic choices made by counsel after a thorough investigation of the law and facts are virtually unchallengeable).

(an attorney's ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland v. Washington, 466 U.S. 668, 690-91 (1984)).

(deficient performance on a single issue may give rise to an ineffective assistance of counsel claim).

(in this case, the trial defense counsel provided ineffective assistance when they failed to bring a motion under RCM 914 for production of two OSI video-recorded statements of the complaining witness that had been lost by the government where (1) the trial defense counsel provided no reasonable explanation for their inaction, (2) their level of advocacy fell measurably below the performance ordinarily expected of fallible lawyers, and (3) there was a reasonable probability that such a motion would have been meritorious; regardless of the overall execution of their responsibilities as defense counsel, the fact remains that their performance was deficient because they failed to identify a meritorious and extraordinarily powerful RCM 914 motion readily available to them).

2021 (October Term)

United States v. Palacios Cueto, 82 M.J. 323 (to establish that ineffective assistance of counsel occurred, an appellant must prove both that the defense counsel’s performance was deficient and that the deficiency caused prejudice; with respect to the first prong of this test, courts must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; and as to the second prong, a challenger must demonstrate a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different). 

(in determining whether an attorney’s conduct was deficient, an appellate court does not simply ask whether the attorney did everything possible that posed little or no risk to the client; instead, the test is whether counsel’s conduct falls within the wide range of reasonable professional assistance). 

(in this case, defense counsel’s performance was not deficient in failing to advise appellant to reference his pending sex offender status in his unsworn statement where defense counsel reasonably could have decided not to advise appellant to mention sex offender registration requirements in his unsworn statement because mentioning them would prompt the military judge to instruct the members essentially to disregard such a collateral consequence in arriving at an appropriate sentence for an accused). 

(an attorney’s decision to forego taking actions that likely would be futile is not deficient). 

(in this case, defense counsel’s performance was not deficient in failing to advise appellant to mention in his unsworn statement that a change had been made in the law that removed his convicted offenses from offenses that would have required him to register as a sex offender or in failing to seek a tailored instruction about the change from the military judge where if appellant had mentioned the change in his unsworn statement, the military judge would have been correct in instructing the members that the change in the law did not apply to appellant because it had not yet gone into effect and that the members must follow the pre-amended law in sentencing appellant; such an instruction would have reduced or eliminated the possible benefit from mentioning the change in the law, and attorneys do not need to undertake futile acts).

(in this case, defense counsel’s performance was not deficient in failing to advise appellant to mention in his unsworn statement that if the court-martial did not sentence him to a punitive discharge, by regulation, the service would still discharge him administratively because (1)  the regulation did not make an administrative discharge mandatory where it permitted a person convicted of a sex offense to apply for a waiver, and (2) a military judge could not determine whether an administrative discharge would occur without holding a trial within a trial, and even such a trial within a trial could produce only a speculative result).   

(in a rare case, an attorney’s overall performance could be deficient even though the attorney did not make specific errors, but such cases usually would arise only when an appellant can point to a long series of questionable omissions by counsel that were not simply the product of human fallibility, but the result of a lack of conscientious effort). 

United States v. Beauge, 82 M.J. 157 (when a claim of ineffective assistance of counsel is premised on counsel’s failure to make a motion, an appellant must show that there is a reasonable probability that such a motion would have been meritorious, and a reasonable probability is one sufficient to undermine confidence in the outcome). 

(in this case, trial defense counsel was not ineffective in failing to raise an evidence-of-child-abuse exception to the MRE 513 psychotherapist-patient privilege in addition to the duty-to-report exception that counsel did raise with respect to an accused charged with the sexual abuse of a child where the two exceptions were effectively coterminous because applicable Florida law required the reporting of any knowledge or suspicion that a child was the victim of sexual abuse). 

(in this case, trial defense counsel was not ineffective for failing to raise a constitutional objection based on the right to confront witnesses under the Sixth Amendment or the due process right to present a complete defense in seeking to obtain communications between a psychotherapist and the child victim that were protected by the psychotherapist-patient privilege in MRE 513 where neither claim would have been supported by existing case law). 

United States v. Cooper, 82 M.J. 6 (an appellant cannot waive a claim of ineffective assistance of counsel where waiver is based on the very advice he asserts was ineffective).

2020 (October Term)

United States v. Furth, 81 M.J. 114 (with respect to a claim of ineffective assistance of counsel, an appellant bears the burden of demonstrating that (a) defense counsel’s performance was deficient, and (b) this deficient performance was prejudicial; and this applies in the context of cases involving guilty pleas; however, the prejudice inquiry is modified to focus on whether the ineffective performance affected the outcome of the plea process; that is, the appellant must establish prejudice by showing that there is a reasonable probability that, but for counsel’s errors, the appellant would not have pleaded guilty and would have insisted on going to trial). 

(standing alone, an appellant’s post hoc assertions about how he would have pleaded but for his attorney’s deficiencies are not enough to establish prejudice; an appellate court must also look to contemporaneous evidence to substantiate an appellant’s expressed preferences; this is so because the appellant has an incentive to claim, in retrospect, that the result of the plea process would have been different regardless of whether that claim is, in fact, true). 

(in order to satisfy the prejudice requirement of the test for ineffective assistance of counsel, an appellant must show that there is a reasonable probability that, but for the counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial).

(assuming that trial defense counsel performed deficiently during the plea process in erroneously advising appellant that his pending resignation request, if approved, would vacate his guilty pleas, appellant was not prejudiced where there was no reasonable probability that, but for counsel’s error, he would not otherwise have pleaded guilty to lesser offenses, thereby eliminating the possibility of a conviction of the more serious charged offenses of which the government had strong evidence, and would have instead risked conviction of offenses that had a maximum term of confinement of 12 years when the plea agreement negotiated by counsel limited any sentence to confinement to no more than 9 months; furthermore, (1) the record reflected no compelling extenuating or mitigating circumstances that would have resulted in a reduced sentence, (2) appellant understood that if he did not accept the plea offer in a timely manner, he would lose the benefit of at least some of its favorable terms, and (3) everyone in appellant’s chain of command had recommended disapproval of his resignation request). 

(in this case, with respect to appellant’s ineffective assistance of counsel claim based on advice he received during the plea process, there was no need for a DuBay (17 CMA 147, 37 CMR 411 (1967)) hearing where there was no dispute about the advice he received and where the record was clear about the countervailing factors that would have prompted appellant to plead guilty even if he had received the correct legal advice from his counsel). 

United States v. Scott, 81 M.J. 79 (the question whether an appellant has received ineffective assistance of counsel at trial is a legal issue that an appellate court reviews de novo).

(to prevail on an ineffective assistance claim, the appellant bears the burden of proving that the performance of defense counsel was deficient and that the appellant was prejudiced by the error; to establish the element of deficiency, the appellant first must overcome a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, and must show specific defects in counsel’s performance that were unreasonable under prevailing professional norms; to establish the element of prejudice, the appellant must demonstrate a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different). 

(at the sentencing phase, ineffective assistance may occur if trial defense counsel either fails to investigate adequately the possibility of evidence that would be of value to the accused in presenting a case in extenuation and mitigation or, having discovered such evidence, neglects to introduce that evidence before the court-martial; prejudice may occur at the sentencing phase, even when trial defense counsel presents several character witnesses, if there is a reasonable probability that there would have been a different result if all available mitigating evidence had been exploited by the defense). 

(an appellate court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies; the object of an ineffectiveness claim is not to grade counsel’s performance; if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which will often be so, that course should be followed). 

(in this case, trial defense counsel performed deficiently at the sentencing phase of trial in failing to appreciate the enormous and obvious risk that the court-martial would dismiss appellant and failing to take reasonable steps to address this possibility by not seeking witnesses who could testify about appellant’s combat record and his multiple instances of bravery, by not seeking non-local witnesses who could testify about other impressive aspects of appellant’s long military career, and by not preparing a “good soldier book” or seek documentation of the post-traumatic stress disorder that appellant mentioned in his unsworn statement; furthermore, there were no tactical reasons for the trial defense counsel’s decisions).   

(in evaluating claims of deficient performance for failing to investigate, an appellate court does not engage in second-guessing tactical decisions that might be characterized as mere Monday-morning quarterbacking). 

(in this case, although trial defense counsel performed deficiently at the sentencing phase of trial by failing to present additional “good soldier” mitigating evidence, appellant was not prejudiced by the deficiencies because the omitted evidence was not so transformative that it would have changed the result where (1) the military judge knew from appellant’s official record book that he had served for more than twenty years, that he deployed overseas as a helicopter pilot, and that he had won numerous awards, and the judge knew from appellant’s unsworn statement that appellant deployed into war zones, flew dangerous missions, and had been injured, and (2) where appellant’s misconduct was extremely aggravating in that he committed adultery with a deployed soldier’s wife and then failed to obey the lawful order of his superior not to have any contact with her).

2019 (October Term)

United States v. Carter, 79 M.J. 478 (to prevail on an ineffective assistance claim, an appellant bears the burden of proving that the performance of his defense counsel was deficient and that he was prejudiced by the error; judicial scrutiny of counsel’s performance must be highly deferential, and an appellate court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; to overcome the presumption, an appellant must show specific defects in counsel’s performance that were unreasonable under prevailing professional norms). 

(in this case, where trial defense counsel properly failed to introduce evidence that he reasonably believed was false, where counsel could not be faulted for mentioning the false evidence in his opening statement after he was misled by appellant, and where counsel used the evidence presented at trial to argue appellant’s theory of the case to sow doubt in the minds of the members even without the admission of the false evidence, his conduct fell within the wide range of reasonable professional assistance and was not ineffective).

(even if it were unreasonable for trial defense counsel not to introduce evidence he reasonably believed to be false, appellant cannot show prejudice where trial defense counsel made a valiant effort to present a defense and there is no reasonable probability that the outcome of the court-martial would have been different had he introduced that evidence; trial defense counsel instead properly preserved the possibility of doubt for the members without violating his ethical duties).    

2017 (October Term)

United States v. Andrews, 77 M.J. 393 (a defense counsel cannot sit like a bump on a log; he or she owes a duty to the client to object to improper arguments early and often; failure to do so may give rise to meritorious ineffective assistance of counsel claims). 

United States v. Harpole, 77 M.J. 231 (an appellant will prevail on an ineffective assistance of counsel claim if he demonstrates both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice).

(when a claim of ineffective assistance of counsel is premised on counsel’s failure to make a motion to suppress evidence, an appellant must show that there is a reasonable probability that such a motion would have been meritorious; the appellant must also demonstrate that there is a reasonable probability that the verdict would have been different absent the excludable evidence). 

(where the only Article 31(b), UCMJ, predicate in dispute is whether the victim advocate interrogated or requested any statement from appellant, it must be determined whether the victim advocate was participating in an official law enforcement or disciplinary investigation or inquiry, as opposed to having a personal motivation for the inquiry).

(trial defense counsel’s performance is presumed to be competent; however, this presumption may be rebutted by showing specific errors that were unreasonable under prevailing professional norms). 

United States v. Hennis, 77 M.J. 7 (a claim of ineffective assistance of counsel is not ripe for review until after there is a record of counsel’s performance). 

(limited experience does not raise a presumption of ineffectiveness). 

2015 (September Term)

United States v. Captain, 75 M.J. 99 (to prevail on an ineffective assistance claim, appellant bears the burden of proving that the performance of defense counsel was deficient and that he was prejudiced by the error). 

(while defense counsel is not prohibited from advocating for an accused’s wishes in favor of a particular punishment to the exclusion of others, counsel may not ask a court-martial to impose a punitive discharge when the accused’s wishes are to the contrary; thus, where defense counsel concedes the appropriateness of a punitive discharge, even as a tactical step to accomplish mitigation of other elements of a possible sentence, counsel must make a record that such advocacy is pursuant to the accused’s wishes). 

(in this case, where appellant claimed ineffective assistance of his trial defense counsel in sentencing because his counsel failed to offer evidence in extenuation and mitigation at sentencing and erroneously conceded the appropriateness of a dishonorable discharge without his consent, appellant failed to establish the prejudice prong of ineffective assistance of counsel where (1) the potential sentencing witnesses had anemic prospective value, (2) the military judge did in fact consider appellant’s military awards and decorations and combat zone deployments despite the lack of documentary evidence, and (3) the DuBay record sufficiently documented that trial defense counsel secured appellant’s consent to argue for a punitive discharge in an attempt to reduce the confinement period adjudged; under these circumstances, where the trial defense counsel had also negotiated a PTA that capped confinement at four years, where the maximum was seven years and five years was adjudged, it was not reasonably probable that the failure in presenting sentencing evidence or in the sentencing request for a punitive discharge would have impacted the sentence adjudged). 

2014 (September Term)

United States v. Akbar, 74 M.J. 364 (an appellate court reviews ineffective assistance of counsel claims de novo; to prevail, appellant must show that counsel’s performance was deficient, and that the deficiency prejudiced the defense; an attorney is deficient when his representation falls below an objective standard of reasonableness). 

(to prevail on a claim of ineffective assistance of counsel, an appellant must show that (1) his counsel’s performance fell below an objective standard of reasonableness, and (2) the counsel’s deficient performance gives rise to a reasonable probability that the result of the proceeding would have been different without counsel’s unprofessional errors). 

(an appellate court is required to be highly deferential in its review of counsel’s performance, and it must presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment; further, it is constrained by the principle that strategic choices made by trial defense counsel are virtually unchallengeable after thorough investigation of the law and the facts relevant to the plausible options).

(an appellate court does not measure deficiency based on the success of a trial defense counsel’s strategy, but instead examines whether counsel made an objectively reasonable choice in strategy from the available alternatives; similarly, an appellate court must remain mindful that counsel have wide latitude in making tactical decisions; thus, an appellate court’s scrutiny of a trial defense counsel’s performance is highly deferential, and it makes every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate conduct from counsel’s perspective at the time).   

(an appellant is prejudiced by counsel’s deficient performance where there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome; in the capital sentencing context, an appellate court reweighs the evidence in aggravation against the totality of available mitigating evidence to determine if there is a reasonable probability that the panel would have returned a different sentence). 

(trial defense counsel have a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary; strategic choices made by counsel after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; in considering whether an investigation was thorough, an appellate court addresses not what is prudent or appropriate, but only what is constitutionally compelled; the notion that the same type and breadth of investigation will be required in every case has been rejected). 

(in this case, with respect to his claim of ineffective assistance of counsel, appellant has established neither deficient performance nor prejudice; as to the first prong of IAC, appellant cannot prevail on his claims of ineffective assistance of counsel where he was represented by two experienced military attorneys who devoted more than two years to preparing and presenting the defense in this cas1e; many of the steps that were taken - or not taken - by trial defense counsel in the instant case, and that are now under scrutiny in this appeal, were the result of trial defense counsels’ strategic decision to conduct the case in a manner that avoided introduction of additional damaging information about appellant; specifically, trial defense counsel successfully sought to shield from the court-martial panel details about appellant’s alleged stabbing of a military police officer, just days before appellant’s court-martial began; trial defense counsel reasonably believed that the admission of such evidence would have seriously undermined their ability to convince the panel members during sentencing that appellant had rehabilitative potential, and thus should not be sentenced to death; as such, the performance of trial defense counsel was not measurably below the performance standards ordinarily expected of fallible lawyers; as to the second prong of the IAC test, there were several reasons that show that there was no reasonable probability that the panel members would have acquitted appellant or sentenced him to something less than the death penalty had trial defense counsel presented their case in the manner now urged on appeal; first, appellant’s murder of two officers and his attempted murder of three others was premeditated; second, prior to committing these offenses, appellant had written several incriminating passages in his diary about his intent to kill his battle buddies; third, appellant committed this attack at the start of a military operation in an effort to hobble the American military’s ability to prevail in battle; fourth, appellant was thirty-one years old at the time he committed the offenses, had served in the US Army for just under five years, and had attained the rank of sergeant; fifth, both a sanity board and many of appellant’s own experts concluded that appellant was not suffering from a severe mental disease or defect at the time he committed the offenses or at the time of testing; sixth, appellant was not intellectually deficient, as demonstrated by his engineering degree from a well-known university and his extremely high, superior IQ; and finally, even assuming that all of the information now provided by appellate defense counsel is true, appellant’s additional mitigation evidence is not sufficiently compelling to establish a substantial likelihood that the court-martial panel would have imposed a different sentence; based on these factors, if there ever was a case where a military court-martial panel would impose the death penalty, this was it).   

(trial defense counsel must investigate adequately the possibility of evidence that would be of value to the accused in presenting a case; further, generally speaking, effective counsel will contact potential witnesses to determine the facts of the case; however, the duty to investigate does not require trial defense counsel to personally interview every potential witness in a case; the key point in deciding this issue is whether counsel made a good faith and substantive effort to identify those individuals who might be most helpful at trial, and to implement a means for obtaining information about and from these potential witnesses, thereby allowing counsel an opportunity to make an informed decision about their value for appellant’s court-martial). 

(it can be assumed that, in some cases, counsel would be deemed ineffective for failing to consult or rely on experts). 

(the mere fact that trial defense counsel did not shop around for another more favorable expert did not render them ineffective). 

(trial defense counsel are not ineffective for failing to always follow the mitigation specialists’ advice; it is counsel, not mitigation specialists, who are entrusted with making strategic litigation decisions in each case). 

(the frontloading of mitigation evidence during the merits phase of a capital case is reasonable where the same factfinder (1) considers guilt and penalty evidence and (2) is instructed about the ability to consider all evidence for mitigation). 

(in determining what presentation to make concerning penalty, counsel should consider whether any portion of the defense case will open the door to the prosecution’s presentation of otherwise inadmissible aggravating evidence). 

(a trial defense counsel’s decision on whether to call a witness is a tactical and strategic decision, requiring a balancing of the benefits and risks of the anticipated testimony). 

(in a capital case, if trial defense counsels’ mitigation presentation was deficient, in order to determine if prejudice has been established, an appellate court asks whether if the members had been able to place the additional evidence on the mitigating side of the scale, there is a reasonable probability that at least one member would have struck a different balance; the new mitigating evidence must differ in a substantial way - in strength and subject matter - from the evidence actually presented at sentencing). 

(as an Article I court, the CAAF notes that, absent constitutional implications in a particular case or congressional authorization, it is beyond its authority to impose the learned counsel qualification for military capital cases). 

(the CAAF does not adopt the ABA Guidelines in analyzing capital defense counsels’ performance; instead it adheres to the Supreme Court’s guidance that no particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant; it examines whether counsel made objectively reasonable choices based on all the circumstances of a case). 

(where appellant alleges ineffective assistance of counsel on appeal, the CCA is authorized to compel trial defense counsel to submit affidavits). 

(in this case, where appellant alleged ineffective assistance of counsel on appeal, absent any authority prohibiting the use of joint affidavits, the CCA did not abuse its discretion by authorizing trial defense counsel to submit a joint affidavit). 

(the CAAF has reservations about the submission of joint affidavits by trial defense counsel when an appellant alleges ineffective assistance of counsel; almost by necessity, joint affidavits harmonize the memories and views of each counsel, and they often use the pronoun “we” when explaining the actions or reasoning that only one counsel may have engaged in; therefore, although the CAAF evaluates the combined efforts of the defense as a team rather than evaluating the individual shortcomings of any single counsel, it concludes that the better practice is for the CCAs to require counsel to submit individual affidavits). 

United States v. McIntosh, 74 M.J. 294 (to establish ineffective assistance of counsel, an appellant must demonstrate both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice; with respect to the first prong, courts must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; as to the second prong, a challenger must demonstrate a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different).

(while defense counsel would normally be expected to introduce potentially exculpatory evidence, their performance is not deficient when a tactical reason cautions against admission).    

(there is a strong presumption that defense counsel’s performance was within the wide range of reasonable professional assistance). 

(in this case, defense counsel’s decision not to introduce into evidence two Sexual Assault Nurse Examiner (SANE) reports that were arguably exculpatory in that they showed the victim’s hymen to be intact and because they bookended the period of rape and sexual assault did not amount to ineffective assistance of counsel; defense counsel’s performance was not deficient and, therefore, not constitutionally ineffective because their performance fell within the wide range of reasonable professional assistance; the defense counsel’s choice not to use the reports was a considered one, made after consultation with an expert in the field of SANE examinations and after discussion with appellant; first, the defense expert confirmed that the lack of abnormal findings in a sexual assault examination did not conclusively rule out the possibility that a sexual assault occurred; second, the primary defense theory was that the government failed to prove the charges beyond a reasonable doubt, in part because the government offered no medical evidence to support the victim’s testimony, and admitting the reports would have undermined this tactic and opened the door to cross-examination of the SANEs to the effect that an intact hymen did not preclude the victim having been raped; third, one of the SANE reports indicated that the victim suffered pain when her genitalia were touched, something that a factfinder might see as evidence of guilt; and fourth, admission of the SANE reports would require discussion of the intrusiveness of the sexual assault exams - facts the panel could possibly hold against appellant; under these circumstances, appellant failed to overcome the strong presumption that defense counsel’s performance was within the wide range of reasonable professional assistance, and without deficient performance, there could  be no ineffective assistance). 

2012 (September Term)

United States v. Datavs, 71 M.J. 420 (to establish ineffective assistance of counsel, an accused must demonstrate both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice). 

(with respect to the first prong of establishing ineffective assistance of counsel, courts must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance). 

(with respect to the second prong of establishing ineffective assistance of counsel, a challenger must demonstrate a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different; the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt; it is not enough to show that the errors had some conceivable effect on the outcome; instead, a reasonable probability is a probability sufficient to undermine confidence in the outcome). 

(defense counsel do not perform deficiently when they make a strategic decision to accept a risk or forego a potential benefit, where it is objectively reasonable to do so).

(defense counsel’s strategic choices in this case not to impeach a single statement of the victim through her telephone records and not to challenge for cause two members who had identified themselves as base victim advocates, were choices that fell within the bounds of reasonable performance, where by opting not to use the telephone records, defense counsel avoided alerting the government counsel to the existence of and contact information for the victim’s boyfriend, who was known to have information that would be damaging to the defense, and where defense counsel determined that the members in question possessed characteristics that made them more likely to be persuaded by the defense’s theory of the case, and, during voir dire, both members affirmed their impartiality and ability to decide the case solely on the evidence and instructions). 

(when reviewing ineffectiveness claims, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the accused; rather, if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed). 

(defense counsel’s decisions to cross-examine the government sexual assault nurse examiner (SANE) witness at trial without consulting with its own SANE expert and not to counter the witness’s testimony with a defense SANE expert did not prejudice the accused and did not amount to ineffective assistance of counsel, where there was no reasonable probability that if a defense SANE expert had been consulted at trial, prior to the cross-examination of the government witness, or had been called during the defense’s case, the panel members would have harbored a reasonable doubt respecting guilty; the accused admitted prior to trial that he intentionally engaged in anal sodomy with the victim, and the only contested issues with regard to his conviction for forcible anal sodomy were whether the sodomy occurred by force and without the victim’s consent; and the report of the defense’s post-trial SANE expert, while critical of the government SANE witness’s examination procedures and some of her general conclusions, was substantially consistent with her testimony with regard to the issues of force and consent; because the accused failed to demonstrated that the assistance or testimony of a defense SANE expert would have substantially undermined the force of the government SANE witness’s testimony, taken as a whole, with regard to the issues of force and consent, the accused’s conviction would still have hinged on whether the members found the victim’s testimony that she did not consent credible in light of the accused’s statement that she had consented; when viewed cumulatively with the accused’s contradictory statements as to whether he and the victim had even engaged in anal sodomy and his conviction for making a false official statement to the police, there is no reasonable probability that the panel would have arrived at a different outcome after hearing the defense SANE witness’s testimony). 

(defense counsel’s performance is not per se deficient by failing to counteract an adverse expert’s unexpected testimony with an expert witness of their own). 

2011 (September Term)

United States v. Rose, 71 M.J. 138 (to establish ineffective assistance of counsel, an appellant must demonstrate both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice). 

(the Strickland ineffective assistance of counsel test applies in the context of guilty pleas where an appellant challenges the plea based on ineffective assistance of counsel). 

(the entry of a guilty plea is a critical stage of the litigation, where a criminal defendant is entitled to effective assistance of counsel). 

(in determining whether a counsel’s performance was deficient in a claim of ineffective assistance of counsel, appellate courts must indulge a strong presumption that the counsel’s conduct falls within the wide range of reasonable professional assistance). 

(in determining whether there was prejudice in a claim of ineffective assistance of counsel, an appellant in a guilty plea case establishes prejudice by showing that, but for counsel’s deficient performance, there is a reasonable probability that he would not have pleaded guilty and would have insisted on going to trial).

(in order to establish deficient performance in a claim of ineffective assistance of counsel, an appellant must establish that counsel’s representation amounted to incompetence under prevailing professional norms). 

(while a defense counsel’s failure to answer a specific request for information by his client violates the duty to promptly comply with reasonable requests for information under the Rules of Professional, not every failure to answer a client’s question will rise to the level of deficient performance under the stringent Strickland ineffective assistance of counsel standard).

(defense counsel’s failure to comply with a reasonable request for information about sex offender registration by his client amounted to deficient performance where counsel knew that this was a key concern, and where, had the request been investigated and answered, even counsel acknowledges that his advice to his client to plead guilty to indecent assault offenses would have been different). 

(the accused was prejudiced by his defense counsel’s failure to provide him with accurate advice regarding sex offender registration because he would not have pleaded guilty to the indecent assault offenses if he had known that he would have to register as a sex offender; the accused requested the information from his counsel on several occasions before he made the decision to plead guilty, he did not agree to plead guilty to the offenses in his first proposed pretrial agreement, he made clear to his counsel that the sex offender registration information was important to him, and he was nonetheless advised to plead guilty). 

(where an accused’s reasonable request for information regarding sex offender registration was a key concern identified to defense counsel that went unanswered, and if it had been correctly answered, he would not have pleaded guilty, the accused received ineffective assistance of counsel because he has demonstrated both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice).   

United States v. Bradley, 71 M.J. 13 (in the guilty plea context, the first part of the Strickland ineffective assistance of counsel test remains the same - whether counsel’s performance fell below a standard of objective reasonableness expected of all attorneys; the second prong is modified to focus on whether the ineffective performance affected the outcome of the plea process). 

(in determining whether appellant was denied effective assistance of counsel, it is not necessary to decide the issue of deficient performance when it is apparent that the alleged deficiency has not caused prejudice). 

(to satisfy the prejudice requirement for ineffective assistance of counsel, appellant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial; a reasonable probability is a probability sufficient to undermine confidence in the outcome; that requires a substantial, not just conceivable, likelihood of a different result). 

(when an appellant argues that counsel was ineffective for erroneously waiving a motion, it makes sense to deny the claim if the appellant would not be entitled to relief on the erroneously waived motion, because appellant cannot show he was harmed by not preserving the issue). 

(merely being entitled to relief on an erroneously waived motion does not by itself satisfy the prejudice analysis for an ineffective assistance of counsel claim in the guilty plea context; appellant also must satisfy a separate, objective inquiry - he must show that if he had been advised properly, then it would have been rational for him not to plead guilty). 

(in this case, where appellant pleaded guilty unconditionally with a pretrial agreement, even if his counsel erroneously informed him that his prior motion to disqualify trial counsel was preserved for appeal, he could not show prejudice to support an ineffective assistance of counsel claim where it would not have been rational for him to have rejected the plea offer just for the opportunity to change the identity of trial counsel; even if the military judge had disqualified trial counsel, it would not have changed the nature of the evidence appellant faced, the government had a fairly strong case against him, and the plea agreement allowed him to avoid a possible life sentence; appellant failed to draw a link between the disqualified trial counsel and the manner in which trial would have proceeded had trial counsel been disqualified, even assuming he pleaded not guilty). 

United States v. St. Blanc, 70 M.J. 424 (where the accused has been grossly misled by a miscalculation or erroneous sentence estimation by defense counsel, such conduct may constitute ineffective assistance of counsel). 

(under the law as it existed when appellant’s counsel calculated the maximum sentence, it was not a gross mischaracterization to state that the maximum sentence for possession of “what appears to be” child pornography could be calculated by reference to the Child Pornography Prevention Act; at the time, Beaty (70 MJ 39), which held that the maximum sentence for a specification of possessing “what appears to be” child pornography could not be determined by reference to the CPPA, had not been decided). 

United States v. Gooch, 69 M.J. 353 (an appellant cannot waive a claim of ineffective assistance of counsel where waiver is based on the very advice he asserts was ineffective). 

(in assessing the effectiveness of counsel, an appellate court applies the standard set forth in Strickland v. Washington, 466 US 668, 687 (1984), and begins with the presumption of competence announced in United States v. Cronic, 466 US 648, 658 (1984); the court applies a three-part test to determine whether the presumption of competence has been overcome: (1) are appellant’s allegations true; if so, is there a reasonable explanation for counsel’s actions; (2) if the allegations are true, did defense counsel’s level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers; and (3) if defense counsel was ineffective, is there a reasonable probability that, absent the errors, there would have been a different result). 

(an appellate court will not second-guess the strategic or tactical decisions made at trial by defense counsel; where an appellant attacks the trial strategy or tactics of the defense counsel, the appellant must show specific defects in counsel’s performance that were unreasonable under prevailing professional norms). 

(defense counsel was not ineffective in deciding not to move to dismiss a specification that the members had improperly proposed to reconsider after its findings were announced, where the military judge ruled that if the specification was dismissed, the appropriate resolution would be to direct the members to disregard it in arriving at a sentence or to declare a mistrial if any one or more members stated they could not disregard it, and defense counsel wanted to avoid the risk of a mistrial because he was concerned that a new panel would be less sympathetic to appellant; it was counsel’s tactical concern about the prospect of a mistrial that drove his decision not to have the military judge dismiss the specification; although another attorney might have litigated this issue differently, defense counsel’s conduct did not fall measurably below the performance expected of ordinary fallible lawyers, and appellant did not overcome the presumption that defense counsel acted competently). 

United States v. Green, 68 M.J. 360 (in order to prevail on a claim of ineffective assistance of counsel, an appellant must demonstrate both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice). 

(in order to show prejudice on a claim of ineffective assistance of counsel, the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome). 

(failure of civilian defense counsel to subpoena a child victim’s mental health records from a lock-down facility where the victim lived prior to living with the accused and his wife did not prejudice the accused in his prosecution for sodomy, assault, and indecent acts, and thus did not amount to ineffective assistance of counsel, where the counsel thoroughly cross-examined the victim about her stay at the facility, elicited an admission from the victim that she had told someone else that she had never had sexual intercourse or oral sex with the accused and that the accused had never touched her in any sexual sort of way, and successfully obtained acquittal of 7 of 13 thirteen specifications of which the accused was charged, including all of the offenses for which the victim’s testimony was the only evidence; the victim’s mental health records, if any existed, would not have further discredited her to the extent that there was a reasonable probability that the accused would have been acquitted of additional specifications). 

Loving v. United States, 68 M.J. 1 (an appellate court considers claims of ineffective assistance of counsel under the two-prong test of Strickland; first, an appellant must show that counsel’s performance was deficient; this requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment; second, appellant must show that the deficient performance prejudiced the defense; this requires showing that counsel’s errors were so serious as to deprive appellant of a fair trial, a trial whose result is reliable; the court need not analyze the Strickland prongs in any particular order). 

(to establish prejudice under Strickland, appellant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome; in the context of a capital case challenging the death sentence, an appellate court reweighs the evidence in aggravation against the totality of available mitigating evidence; the question is whether if the members had been able to place the additional evidence on the mitigating side of the scale, there is a reasonable probability that at least one member would have struck a different balance). 

(even assuming defense counsel was deficient in capital murder case in investigation and presentation of mitigation evidence related to petitioner’s background and social history, petitioner was not prejudiced, as required to support an ineffective assistance of counsel claim, where defense counsel presented a mitigation case that devoted a significant degree of attention to petitioner’s troubled childhood, where the evidence that was not presented, including expert testimony explaining how petitioner’s traumatic childhood negatively impacted his development, did not materially alter his sentencing profile, and where aggravating factors were overwhelming). 

(to establish prejudice for an ineffective assistance of counsel claim with respect to sentencing in a capital case, the new evidence that a habeas petitioner presents must differ in a substantial way - in strength and subject matter - from the evidence actually presented at sentencing).

United States v. Mazza, 67 M.J. 470 (to prevail on a claim of ineffective assistance of counsel, an appellant must show both that the counsel’s performance was deficient and that the deficiency resulted in prejudice; ultimately, the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result; a successful ineffectiveness claim requires a finding of both deficient performance and prejudice; there is no requirement that an appellate court address both components of the inquiry if appellant makes an insufficient showing on one; an appellate court reviews both prongs of the Strickland analysis de novo). 

(an appellate court’s analysis of counsel’s performance is highly deferential; it is not to assess counsel’s actions through the distortion of hindsight; rather it is to consider counsel’s actions in light of the circumstances of the trial and under the strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy). 

(as a general matter, an appellate court will not second-guess the strategic or tactical decisions made at trial by defense counsel; where an appellant attacks the trial strategy or tactics of the defense counsel, the appellant must show specific defects in counsel’s performance that were unreasonable under prevailing professional norms). 

(civilian defense counsel’s extraction of testimony on cross-examination of a government child abuse expert about rates of false accusations of sexual abuse among child victims was not ineffective assistance of counsel, where, given that this indecent acts case was essentially a credibility contest between appellant and his daughter, appellant failed to overcome the presumption that it was a reasonable strategic decision, under the circumstances of this case and prevailing professional norms, for the defense counsel to seek to establish that the daughter’s testimony could be a false allegation; the defense counsel’s theory of the case was that the daughter’s testimony was fabricated and inconsistent, he specifically intended to question the expert about whether child-accusations of sex abuse were reliable, and he used the statistical testimony during closing argument to remind the court members that thousands of false reports occur every year, even using conservative estimates). 

(civilian defense counsel’s failure to object to the admission of the victim’s videotaped interview was not ineffective assistance of counsel, where the videotape was part of the defense counsel’s trial strategy that the victim had fabricated her allegations and that her statements were inconsistent, and where he asked the members to compare the video with her trial testimony; appellant failed to show that this strategy was unreasonable under prevailing professional norms). 

(civilian defense counsel’s request of the members that they view the victim’s videotaped interview during deliberations was not ineffective assistance of counsel where the videotape had been admitted into evidence and was part of the defense counsel’s trial strategy that the victim had fabricated her allegations and that her statements were inconsistent, where the military judge specifically told the members that they could view the tape during deliberations, and where RCM 921(b) provided that unless otherwise directed by the military judge, members could take with them in deliberations any exhibits admitted in evidence).

Denedo v. United States, 66 M.J. 114 (when reviewing an ineffective assistance of counsel claim raised via a coram nobis petition, petitioner must first satisfy the threshold requirements for a writ of coram nobis; if the petitioner does so, the court then analyzes, in the second tier, the ineffective assistance of counsel claim under Strickland v. Washington, 466 US 668 (1984)). 

(appellant’s coram nobis petition challenging his court-martial conviction on the ground that his counsel was ineffective for failing to inform him of the immigration consequences of his guilty pleas met the threshold requirements of coram nobis review; although appellant had served his sentence, the alleged error was of the most fundamental character, there was no other adequate remedy because appellant was not in custody and could not obtain relief through a writ of habeas corpus, appellant did not seek earlier relief because the immigration consequences of his pleas did not become known to him until the government initiated deportation proceedings, the new information about the immigration consequences could not have been discovered through the exercise of reasonable diligence prior to the original judgment, the writ does not seek to reevaluate previously considered evidence or legal issues, and the sentence has been served, but serious consequences persist – the initiation of deportation proceedings that rely primarily on appellant’s court-martial conviction as the basis for deportation).  

 
(an accused making a claim of ineffective assistance must surmount a very high hurdle; courts reviewing such a claim must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; the presumption of competence will not be overcome unless the accused demonstrates:  first, a deficiency that is so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment; and second, that the accused was prejudiced by errors so serious as to deprive the defendant of a fair trial, a trial whose result is reliable; when challenging the effectiveness of counsel in a guilty plea case, the accused must also show specifically that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial). 

 
(the burden of establishing the truth of factual matters relevant to the claim of ineffective assistance rests with the accused; if there is a factual dispute on a matter pertinent to the claim, the determination as to whether further factfinding will be ordered is resolved under United States v. Ginn, 47 MJ 236 (CAAF 1997)). 

 
(an attorney’s failure to advise an accused of potential deportation consequences of a guilty plea does not constitute deficient performance under Strickland). 

 
(an attorney’s affirmative misrepresentation about the potential deportation consequences of a guilty plea can constitute deficient performance, particularly when the client requests the information and identifies the issue as a significant factor in deciding how to plead). 

 
(to show prejudice from ineffective assistance of counsel in a guilty plea case, an accused must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial; the focus is not on the outcome of a potential trial, but on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process). 

 
(appellant’s claim that he received ineffective assistance of counsel in a court-martial proceeding when his counsel told him that he would not face deportation if he pleaded guilty at a special court-martial facially established a sufficient basis for coram nobis review, but a ruling on his petition would be premature without a government response and consideration by the court of criminal appeals as to whether his counsel’s performance was deficient and, if so, whether appellant was prejudiced thereby). 

United States v. Melson, 66 M.J. 346 (when an accused raises allegations of ineffective assistance of counsel, trial defense counsel is not compelled to justify their actions until a court of competent jurisdiction reviews the allegation of ineffectiveness and the government response, examines the record, and determines that the allegation and the record contain evidence which, if unrebutted, would overcome the presumption of competence). 

(after finding that the accused had raised an allegation of ineffective assistance of counsel and overcome the presumption of competence with an affidavit raising a claim of illegal pretrial punishment, the CCA erred in not affording the government an opportunity to submit a statement or affidavit from the accused’s defense counsel to rebut the allegations). 

(when colorable claims of ineffective assistance of counsel are raised on appeal, in those cases where the government can obtain an affidavit from trial defense counsel, the government should continue to endeavor to complete the appellate record promptly by obtaining such an affidavit and avoid any undue delay). 

(where the CCA finds that allegations of ineffective assistance and the record contain evidence which, if unrebutted, would overcome the presumption of competence and there is no affidavit from defense counsel in the record addressing those allegations, that court is required to obtain a response from trial defense counsel in order to properly evaluate the allegations). 

United States v. Gutierrez, 66 M.J. 329 (the test for a claim of ineffective assistance of counsel is (1) whether counsel’s performance fell below an objective standard of reasonableness, and (2) if so, whether, but for the deficiency, the result would have been different; the accused has the burden of demonstrating both deficient performance and prejudice).   

(to show prejudice under the test for ineffective assistance of counsel, an accused must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; in demonstrating this reasonable probability, the accused must show a probability sufficient to undermine confidence in the outcome; in other words, when an accused challenges his conviction based on ineffective assistance of counsel, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt). 

(the test for prejudice flowing from ineffective assistance of counsel, and the burden for proving the existence of prejudice, is substantially different from the harmless beyond a reasonable doubt test applied to constitutional errors where the burden is on the government to prove that the error did not contribute to the guilty finding; the proper test for assessing prejudice flowing from ineffective assistance of counsel is to look at all the evidence before the factfinder to determine if the accused has met his burden to demonstrate a reasonable probability that the factfinder’s decision would have been different). 

(in this case, even assuming trial defense counsel’s performance was objectively unreasonable by waiving a mistake-of-fact instruction to an assault consummated by a battery as a lesser included offense to the charge of assault with the intent to commit rape, the accused failed to carry his burden to demonstrate prejudice to satisfy the test for ineffective assistance of counsel, where the members found the accused guilty of assault consummated by a battery, which requires proof that he did bodily harm to a certain person and that the bodily harm was done with unlawful force or violence, where the accused confessed to grabbing the victim’s arm and touching her body after she told him to stop, and where the victim’s testimony corroborated his confession; even if the military judge had given a mistake-of-fact instruction as to assault consummated by a battery, it is just as likely that the members would have convicted as it is that they would have acquitted; the burden is on the accused to show a reasonable probability, one sufficient to undermine the confidence in the outcome, that but for the defense counsel’s ineffectiveness in waiving the instruction, he would not been convicted; the fact that the members acquitted the accused of two greater offenses does not, of itself, carry that burden). 

United States v. Larson, 66 M.J. 212 (whether there is prejudice with respect to a claim of ineffective assistance of counsel depends on whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt; the appellant bears the burden of demonstrating that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different). 

 
(assuming deficient performance of defense counsel for failing to consult with appellant on the strategic decision to concede guilt in argument to one of the offenses charged, appellant was not prejudiced and there was no ineffective assistance of counsel, where the evidence supporting the charged offenses was overwhelming, no plausible defense to the conceded offense was raised by appellant, appellant did not argue that his defense at trial to the remaining charges was in any way undercut by counsel’s strategic choice, and the military judge instructed the members three times that the arguments of counsel were not evidence). 

United States v. Glenn, 66 M.J. 64 (counsel is presumed to be competent).   

2007

(appellant did not establish that his defense counsel was ineffective for failing to file a timely motion to suppress the admission of his BAC test, where he failed to show that he would have a reasonable probability of success on his claim that the test violated the Fourth Amendment because his consent to the blood draw was involuntary; to show prejudice in the context of this case, appellant must adduce evidence that his apparent consent was, in fact, involuntary, but there is no evidence in the record that any of the factors marshaled by appellant’s counsel in fact affected appellant’s understanding of his rights or his consent to the blood draw; as a matter of law, the fact that appellant had a BAC of .11 at the time he consented did not make him incapable of consenting; the bare assertions of counsel that appellant was either impaired and incapable of consent at the time he consented, or that that his consent was a mere acquiescence to a claim of lawful authority, compared with the investigator’s trial testimony that appellant was informed of his right to consent or object to the drawing of blood and that he signed a consent form, do not show a reasonable probability that a motion to suppress the evidence would have been meritorious). 

United States v. Tippit, 65 M.J. 69 (members of the armed forces are entitled to the effective assistance of counsel). 

(appellant failed to establish that his trial defense counsel were ineffective for failing to challenge the disposition of the initial charges filed against him, where he did not meet his initial burden of establishing a factual appellate record documenting the disposition of the charges that would permit an appellate court to ascertain the basis for his claim). 

(appellant failed to establish that his trial defense counsel were ineffective for failing to advise him that an unconditional guilty plea would waive appellate consideration of his RCM 707 speedy trial claim, and of the possibility of entering a conditional guilty plea to preserve the issue, where even assuming the failure to provide such advice was deficient, he did not demonstrate that he would have prevailed on the speedy trial issue on appeal, and thus he did not show prejudice). 

(appellant failed to establish that his trial defense counsel were ineffective for failing to focus the speedy trial claim on Article 10, where appellant did not demonstrate that the government failed to proceed with reasonable diligence, either with respect to the length of the delay or with respect to the reasons for the delay; accordingly, appellant failed to establish that he would have prevailed on appeal had his counsel pursued a different strategy at trial by making the speedy trial claim under Article 10, in addition to RCM 707, and thus he did not show prejudice). 

(appellant did not establish that his defense counsel was ineffective for failing to object to trial counsel’s rebuttal argument on findings, where his defense counsel’s argument equating the offense of indecent acts to appropriate trial preparation was a questionable tactic that was clearly subject to proper rebuttal by the government; although the trial counsel’s remarks were somewhat intemperate, the failure to object to them was not conduct that fell below an objective standard of reasonableness, and an objection in these circumstances would not have impacted the trial’s result).

(appellant did not establish that his defense counsel was ineffective for failing to object to trial counsel’s sentencing argument, where trial counsel did not improperly comment upon appellant’s exercise of his rights to plead not guilty or to remain silent; to the extent that trial counsel may have misstated the evidence, if there was error, it was neither plain nor obvious). 

(appellant did not establish that his defense counsel was ineffective for advising him to remain silent during sentencing and not to give an unsworn statement, where the affidavit of trial defense counsel provided a sound tactical basis to explain why they advised him not to submit an unsworn statement -- they advised appellant against submitting an unsworn statement because they observed the mood of the court-martial members and believed that if he gave a statement without taking full responsibility for his crimes and apologizing for them, he would further alienate the members). 

(as a general matter, an appellate court will not second-guess the strategic or tactical decisions made at trial by defense counsel). 

(appellant did not establish that his defense counsel was ineffective for failing to call his wife or former wife to testify during findings, where the affidavit of trial defense counsel provided a sound tactical reason to justify the decision not to call these women as witnesses - defense counsel reasoned that (1) the current wife’s credibility was questionable at best, and due to her youthful appearance, her background, and certain aspects of her relationship with appellant, her testimony could have instilled in the members a sense that appellant was a man of questionable morals who took an interest in younger women, and (2) because his former wife was unstable, unpredictable, and hostile to defense counsel and to appellant, she could have said any number of things detrimental to appellant if put on the stand, including allegations that he abused her emotionally and physically). 

United States v. Perez, 64 M.J. 239 (an accused who claims ineffective assistance of counsel must surmount a very high hurdle; judicial scrutiny of a defense counsel’s performance must be highly deferential and should not be colored by the distorting effects of hindsight).

(to overcome the presumption of his defense counsel’s competence, an appellant must satisfy the two-part test set forth in Strickland v. Washington and demonstrate:  (1) a deficiency in counsel’s performance that is so serious that counsel was not functioning as the counsel guaranteed an accused by the Sixth Amendment; and (2) that the deficient performance prejudiced the defense through errors so serious as to deprive the accused of a fair trial, a trial whose result is reliable).   

(as a general matter, an appellate court will not second-guess the strategic or tactical decisions made at trial by defense counsel). 

(an appellate court must indulge a strong presumption that a defense counsel’s conduct falls within the wide range of reasonable professional assistance; that is, an accused must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy; there are countless ways to provide effective assistance in any given case; even the best criminal defense attorneys would not defend a particular client in the same way). 

(in cases involving attacks on defense counsel’s trial tactics, an appellant must show specific defects in counsel’s performance that were unreasonable under prevailing professional norms; an appellant must also show prejudice). 

(the test for prejudice on a claim of ineffective assistance of counsel is whether there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different). 

(an appellate court considers whether a defense counsel was ineffective and whether any errors were prejudicial under a de novo standard of review). 

(appellant did not demonstrate that his defense counsel’s decision to call the victim as a defense witness with respect to sexual abuse charges was deficient under the first prong of the ineffective assistance of counsel test where, under defense counsel’s direct examination, the victim testified that the sexual activity was not as frequent or as extensive as described in her statement to the CID, and where the decision by the military judge to find appellant not guilty of certain offenses and to modify others directly reflected the testimony presented by the victim at trial). 

(a defense counsel’s decision during sentencing to reference prior “good soldier” testimony provided by a witness during the findings portion of the trial, rather than recalling the witness to testify in sentencing, did not constitute ineffective assistance of counsel where the defense was able to avoid the risk of cross-examination). 

(assuming that appellant provided his defense counsel with a list of witnesses who would have testified on his behalf during sentencing and that his defense counsel was deficient for not contacting those witnesses, appellant failed to provide any specificity as to what those witnesses would have said if they had been called to testify at trial, and in that posture, appellant failed to demonstrate prejudice under the second prong of the ineffective assistance of counsel test). 

(assuming that defense counsel failed to consult with appellant before submitting a clemency petition and that such performance was deficient, appellant failed to provide specific information about what he or others would have submitted in support of his clemency petition, and in the absence of such information, appellant failed to demonstrate prejudice under the second prong of the ineffective assistance of counsel test; in any event, after the lower court set aside the first convening authority’s action and returned his case for a new action, appellant, in coordination with his new military and civilian defense counsel, provided the convening authority with extensive documentation of his successful military career and many positive letters from family and prison officials; thus, no further relief was warranted). 

2006

Loving v. United States, 64 M.J. 132 (with respect to the deficiency prong of the Strickland test for ineffective assistance of counsel, Strickland does not require counsel in a capital case to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing; nor does Strickland require defense counsel to present mitigating evidence at sentencing in every case; rather, a decision not to investigate must be directly assessed for reasonableness in all the circumstances; strategic choices made after less than complete investigation are reasonable only to the extent that reasonable professional judgments support the limitations on investigation). 

(an ineffective assistance of counsel issue may be raised in a habeas petition irrespective of whether a petitioner could have raised it on direct appeal). 

(with respect to an issue of ineffective assistance of counsel raised in a habeas petition, if there has been no previous factual development at a hearing, and important factual questions or mixed questions of fact and law remain after direct appeal, then those matters must be addressed in a hearing before a determination on that issue can be made under the AEDPA standards). 

(in this habeas petition, an evidentiary hearing on the issue of ineffective assistance of counsel is appropriate where there has been no previous factual development at a hearing and there remain important factual questions as to petitioner’s claim). 

(appellate defense counsel’s repeated requests for enlargements of time did not constitute ineffective assistance of counsel for failure to file appellate pleadings in a timely manner, because appellant was not prejudiced by any such deficiency, notwithstanding appellant’s assertion that seven years of appellate delay resulted directly from appellate defense counsel’s deficient performance; the delay was harmless beyond a reasonable doubt where there was no meritorious issue on appeal, no cognizable prejudice arising from the delay, and appellant served only 107 days of confinement and was likely released on appellate leave thereafter). 

(with respect to appellant’s claim that his appellate defense counsel failed to perform the specific duty of filing pleadings in a timely manner, appellant must show that there is a reasonable probability that he was prejudiced by the alleged deficiency). 

(where a lack of institutional vigilance causes a case to languish on appeal, appellant is effectively denied his statutory right to the free and timely professional assistance of detailed military appellate defense counsel). 

(in order to prevail on the prejudice prong of an ineffective assistance of counsel claim, appellant must ultimately show that the deficient performance prejudiced the defense).    

United States v. Miller, 63 M.J. 452 (appellant did not establish the his appellate defense counsel was ineffective in not personally communicating with him and in not raising any specific issue before the court of criminal appeals where the appellate defense counsel sent a letter to appellant explaining that if he desired to address any issues to that court, he should contact him, but appellant never replied to the letter). 

(although the appellate defense counsel who sent a letter to appellant informing him that he had twenty days to respond should have waited the full twenty days before submitting his case to the court of criminal appeals, rather than submitting it four days later without specific assignment of error, the appellate defense counsel’s action did not result in prejudice, because appellant never responded and therefore failed to identify any issues he would have raised had counsel waited for his input). 

(although the requirement of registering as a sex offender is a serious consequence of a conviction, trial defense counsel’s failure to advise appellant of this consequence of his guilty plea to a child pornography charge did not rise to the level of ineffective assistance of counsel; in addition, nothing in the representation of appellant rendered his plea involuntary; a trial defense counsel’s failure to address such a collateral consequence with an accused is within the range of professional competence; actual knowledge of consequences which are collateral to the guilty plea is not a prerequisite to the entry of a knowing and intelligent plea). 

(for all cases tried later than ninety days after the date of this opinion, trial defense counsel should inform an accused prior to trial as to any charged offense listed on DoD Instr. 1325.7, Enclosure 27: Listing Of Offenses Requiring Sex Offender Processing; trial defense counsel should also state on the record of the court-martial that counsel has complied with this advice requirement; while failure to so advise an accused is not per se ineffective assistance of counsel, it will be one circumstance an appellate court will carefully consider in evaluating allegations of ineffective assistance of counsel). 

United States v. Edmond, 63 M.J. 343 (the trial defense counsel’s failure to take simple steps to secure the testimony of a witness that he had previously deemed relevant and necessary to the accused’s case, and who he had subpoenaed, fell measurably below the level of performance an appellate court would expect of a lawyer, and overcame the presumption of competence). 

(the trial defense counsel’s failure to secure the testimony of a subpoenaed defense witness was prejudicial and constituted ineffective assistance of counsel, where the proposed testimony of the witness would have raised questions as to certain elements of the charges of conspiracy and larceny, and thus there was a reasonable possibility that without the defense counsel’s error there would have been a different result). 

United States v. Christian, 63 M.J. 205 (there is a two-pronged test to determine whether there has been ineffective assistance of counsel within the meaning of the Sixth Amendment: (1) the accused must show that counsel’s performance was deficient; this requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment; and (2) the accused must show that the deficient performance prejudiced the defense; this requires showing that counsel’s errors were so serious as to deprive the accused of a fair trial). 

(there is a three-pronged test to determine whether an appellant has overcome the presumption of competence: (1) are the allegations made by appellant true; and, if they are, is there a reasonable explanation for counsel’s actions in the defense of the case? (2) if they are true, did the level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers? (3) if ineffective assistance of counsel is found to exist, is there a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt?). 

(in this case, trial defense counsel was not ineffective in failing to advocate for confinement credit for the accused’s alleged illegal pretrial punishment and restriction tantamount to confinement or in advising the accused to affirmatively waive the issue, where the defense counsel made a reasonable tactical decision to offer the circumstances of the accused’s restriction as a factor in mitigation of the sentence instead of requesting confinement credit). 

United States v. Osheskie, 63 M.J. 432 (the Strickland test governs ineffective assistance of counsel claims in cases involving guilty pleas; appellant must show not only that his counsel was deficient but also that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial). 

(defense counsel must perform a reasonable investigation, or make a reasonable decision that an avenue of investigation is unnecessary). 

(appellant, who was convicted of killing his infant daughter by placing her face down and smothering her in her crib, did not establish that his trial defense counsel were ineffective in failing to investigate a medically accepted child care technique called laying of the hands, a technique in which a parent applies light pressure to a child’s back in order to calm the child so that she can sleep; the decision not to investigate further was reasonably made where the amount of force and time required to kill the child, as well as the physical distress the child would have demonstrated when the accused was holding her face into the mattress, negated the need to pursue a laying of the hands theory for the child’s death; in addition, during the providence inquiry, appellant admitted to the elements of Article 118(3), UCMJ, (murder while engaging in an act inherently dangerous to another), which would have made investigation into the laying of the hands theory irrelevant because he stated that he knew that death was a probable consequence of his actions; appellant’s statements during the providence inquiry were consistent with his trial defense counsels’ affidavits, not his own). 

(appellant did not establish that his trial defense counsel were ineffective in failing to advise him that he could plead guilty to a lesser-included offense such as negligent homicide or involuntary manslaughter without an agreement with the convening authority; appellant presented no evidence, other than his own statements, to prove that his trial defense counsel did not explain that he could plead guilty to a lesser included offense, and both of his trial defense counsel submitted affidavits stating that they had so advised appellant; the affidavits of defense counsels, taken in context with the record as a whole, particularly appellant’s own statements during the providence inquiry regarding his satisfaction that he had considered any possible defense arising from the circumstances, demonstrate the improbability of his assertion; in fact, the record as a whole compellingly demonstrates the improbability of appellant’s post-trial affidavit).  

(in this case, appellant failed to prove either prong of the Strickland test with respect to his allegations of ineffective assistance of his trial defense counsel; his trial defense counsel were competent in their representation and there has been no showing that appellant was prejudiced by his counsels’ actions and advice; in fact, appellant’s counsel, through the pretrial agreement, saved appellant from one-third of his adjudged sentence; the record as a whole compellingly demonstrates the improbability of appellant’s post-trial affidavit). 

United States v. Dobson, 63 M.J. 1 (the right to counsel under the Sixth Amendment includes the right to the effective assistance of counsel).

(appellant did not establish that his defense counsel was ineffective for choosing to present the testimony of a psychologist that appellant suffered from PTSD when she killed her husband, on the ground that the psychologist’s evaluation was vulnerable because she used an outdated and inappropriate test, committed computational errors in scoring the tests, and relied on outdated scoring methods; although psychologist was vulnerable witness, appellant did not establish prejudice by demonstrating a specific alternative approach that should have been taken by the trial defense team which would have produced outcome-altering testimony). 

(appellant did not establish that his defense counsel was ineffective in not pursuing the recommendation of the sanity board to contact an expert on domestic violence and female offenders, absent demonstration of prejudice; appellant did not identify any outcome-altering difference between what the recommended expert would have offered and the background testimony that was actually presented at trial by an expert witness called by the defense).

(appellant did not establish that his defense counsel was ineffective for not calling members of his sanity board to testify at trial who would have been helpful in rebutting the suggestion of a prosecution witness that appellant was malingering and in showing that appellant suffered from a post-traumatic reaction the night she killed her husband; testimony by board members would have carried significant risks for the defense, and the decision not to call board members as witnesses was well within the range of discretion afforded to defense counsel).

(appellant did not establish that defense counsel was ineffective for not moving at trial to suppress statements she made on two occasions to psychiatrist during meetings to address mental health problems she encountered during pretrial confinement, as there was no legal basis to suppress her statements; moreover, there was no prejudice from the psychiatrist’s reliance on the statements in his subsequent testimony for the government, as even if the statements had been excluded, he would have provided adverse testimony covering the same matter).

United States v. Gonzalez, 62 M.J. 303 (servicemembers are guaranteed the right to effective assistance of counsel at trials by court-martial). 

(to show ineffective assistance of counsel, appellant must show both that his counsel’s performance was deficient and that the deficiencies were so serious as to deprive him of a fair trial).

(in this case, appellant did not receive ineffective assistance of counsel because there was no reasonable probability that a missing laboratory discrepancy report would have produced a different result if counsel had requested a copy; there was enough independent evidence that appellant used the alleged drug that his counsel’s  failure to identify and request a copy of the report was not prejudicial; because appellant had not established that his counsel’s performance prejudiced the outcome of his case, he had not established that his Sixth Amendment right to counsel was violated). 

(to show ineffective assistance of counsel, appellant must show both that his counsel’s performance was deficient and that the deficiencies were so serious as to deprive him of a fair trial; an appellant who seeks to relitigate a trial by claiming ineffective assistance of counsel must surmount a very high hurdle; there is a presumption that counsel provided adequate professional service; this presumption is rebutted only by a showing of specific errors made by defense counsel that were unreasonable under prevailing professional norms; in addition, even where counsel made an error, the error must have been so prejudicial as to indicate a denial of a fair trial or a trial whose result is unreliable). 

(the Court of Appeals for the Armed Forces applies a three-prong test to determine if the presumption of competence has been overcome:  (1) Are the allegations true; if so, is there a reasonable explanation for counsel’s actions?; (2) If the allegations are true, did defense counsel’s level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers?; and, (3) If defense counsel was ineffective, is there a reasonable probability that, absent the errors, there would have been a different result?; where the case can be resolved by addressing the third prong -- the question of prejudice -- first, the court need not determine whether counsel’s performance was deficient). 

United States v. Cary, 62 M.J. 277 (in a guilty plea case, where the primary concern of a client is on the sentence, defense counsel should give careful attention to the evidence that would be introduced during sentencing). 

(assuming defense counsel was ineffective in not objecting to a personal data sheet admitted in sentencing with an incorrect reference to an Article 15, UCMJ, nonjudicial punishment, in order to meet the ineffective assistance of counsel standard, appellant must show that absent such error, there was a reasonable probability of a different result; in this case, although the error may have been plain, appellant failed to demonstrate that the military judge or the convening authority considered this entry; the absence of any reliance on the erroneous information by the prosecution or the staff judge advocate underscored the absence of any prejudice under the plain error test; because of the absence of prejudice under a plain error analysis, any deficiency here does not establish prejudice with respect to the issue of ineffective assistance of counsel, where an even higher standard of prejudice applies).   

2005

United States v. Davis, 60 MJ 469 (in this case, the entire defense sentencing strategy was to preserve an opportunity for appellant to retire under TERA (Temporary Early Retirement Authority) and thereby provide support and benefits for his family; the potential for a TERA retirement and trial defense counsel’s advice in that regard formed the theme and foundation for the defense sentencing strategy; appellant relied on this advice when he asked for increased confinement in lieu of a dismissal from the Navy; under these particular facts, retirement eligibility under TERA was not a collateral matter and was subject to the Strickland v. Washington analysis for ineffective assistance of counsel). 

(in this case, trial defense counsel did not know that under the Navy rules and policy at the time of trial, TERA was not an option in this case; consequently, they could not and did not correctly advise appellant; counsels’ sentencing strategy was fundamentally flawed from its inception because of a failure to research the critical law and regulations; appellant was misadvised and there is no reasonable explanation for counsels’ failure to conduct proper research; counsels’ performance fell below that ordinarily expected of fallible lawyers; familiarity with the facts and applicable law are fundamental responsibilities of defense counsel; a reasonable attorney acting on behalf of a client would have researched the meaning and effect of TERA’s conditional language prior to embarking on a trial or sentencing strategy; the failure to investigate this critical component of the defense sentencing strategy precluded counsel from exercising informed judgment and fully informing appellant of the possible consequences of the strategy; advising appellant and formulating a sentencing strategy based upon what counsel considered confusing eligibility criteria for TERA was risky; not determining the actual meaning of those eligibility criteria was unreasonable; such a performance by counsel was ineffective; had appellant and his counsel known that there was no possibility of a TERA retirement except for a Secretarial waiver, there would have been little incentive for appellant to ask for increased confinement to offset a possible punitive dismissal; following counsel’s argument that the members should maximize appellant’s period of confinement to preserve the possibility of his retirement, the members did just that; they adjudged the maximum period of confinement available; if that possibility had not been presented to the members, there is a reasonable probability that there would have been a different result; appellant was therefore prejudiced by the faulty advice and strategy of his trial defense counsel).

United States v. Saintaude, 61 M.J. 175 (to demonstrate ineffective assistance of counsel, appellant must surmount a very high hurdle by showing: (1) a deficiency in counsel’s performance that is so serious that counsel was not functioning as the counsel guaranteed appellant by the Sixth Amendment; and (2) that the deficient performance prejudiced the defense through errors so serious as to deprive appellant of a fair trial, a trial whose result is reliable).

(if the Court concludes that any error would not have been prejudicial under the second prong of Strickland, it need not ascertain the validity of the allegations or grade the quality of counsel’s performance under the first prong). 

(conflicts of interest, like other actions by an attorney that contravene the canons of legal ethics, do not necessarily demonstrate prejudice under the second prong of Strickland; although cases involving concurrent representation of multiple clients have been treated as inherently prejudicial, not all attorney conflicts present comparable difficulties, and most cases will require specifically tailored analyses in which appellant must demonstrate both the deficiency and prejudice under the standards set by Strickland). 

(appellate courts have applied varying approaches to the question of whether a conflict of interest should be viewed as inherently prejudicial if the conflict does not involve multiple representation; under this Court’s precedents, the question of whether there is inherent prejudice in a conflict between the self-interest of an attorney and the interests of the client must be assessed on a case-by-case basis).

(under Strickland, identification of a potential deficiency is not sufficient; to surmount the high hurdle presented by the second prong of Strickland, an appellant must demonstrate specific prejudice).

(in the present case, appellant failed to establish an ineffective assistance claim based on potential conflicts between the self-interests of his attorneys and his interests as their client when he failed to show that any of the potential conflicts developed into deficiencies so serious as to deprive him of a fair trial, that is, a trial whose result was reliable; appellant failed to demonstrate the specific prejudice necessary to surmount the high hurdle established by the second prong of Strickland). 

(military counsel is obligated to inform the client of problems with civilian counsel’s tactics only if the problems cannot first be resolved between counsel).

(when this Court applies Strickland to alleged deficiencies in counsel’s performance, it asks the following questions:  (1) Are the allegations made by appellant true; and, if they are, is there a reasonable explanation for counsel’s actions in the defense of the case?  (2) If they are true, did the level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers? and (3) If ineffective assistance of counsel is found to exist, is there a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt?). 

(in the present case, appellant failed to establish an effective assistance of counsel claim based on alleged deficiencies in the performance of his counsel at trial where none of the deficiencies would have altered the powerful import of the DNA and identification evidence in establishing his guilt; under these circumstances, any such errors would not have been prejudicial under the high hurdle established by the second prong of Strickland). 

2004

United States v. Cain, 59 MJ 285 (an attorney's violation of the canons of legal ethics does not necessarily render the attorney's assistance ineffective; most cases will require specifically tailored analyses in which the appellant must demonstrate both the deficiency and prejudice under the standards set by Strickland).

(defense counsel’s conduct with his client (soliciting and committing homosexual acts with a military subordinate) placed both the attorney and client at the risk of criminal prosecution for violating the very article of the UCMJ, Article 125, that was the subject of the present case; by his actions, counsel placed himself and his client in a position where testimony by the client entailed significant risks; any exploration into appellant’s conduct would have raised the possibility that the prosecution would have endeavored through cross-examination or rebuttal to elicit evidence of similar sexual misconduct; this would have created the potential for exposing counsel’s sexual misconduct with appellant; in those circumstances, defense counsel faced a conflict between his personal interests and his responsibility to give thoughtful, dispassionate consideration and advice concerning the range of options facing the defense; when confronted about the sexual misconduct with his client, the attorney took his own life in only a matter of hours; the uniquely proscribed relationship before us was inherently prejudicial and created a per se conflict of interest in counsel’s representation of the appellant). 

(the facts of this case are distinguishable from the limited, consensual relationship between a civilian counsel and his client that we considered in Babbitt, where we declined to find such a per se conflict; here, we confront a course of conduct involving an attorney’s abuse of a military office, a violation of the duty of loyalty, fraternization, and repeated commission of the same criminal offense for which the attorney’s client was on trial; all of this is left unexplained due to the attorney’s untimely death; the conflict created by this conduct was real, not simply possible, and so threatening as to justify a presumption that the adequacy of representation was affected).  

(waiver of representational conflict of interest requires the type of informed discussion of the specific pitfalls of the representation that would demonstrate a knowing, intelligent waiver of the right to effective assistance of counsel).

United States v. Adams, 59 MJ 367 (an accused has the right to effective representation by counsel through the entire period of review following trial, including representation before the CCA and our Court by appellate counsel appointed under Article 70, UCMJ).

(despite the absence of his civilian counsel’s brief at the CCA, appellant failed to meet the prejudice component of the ineffective assistance of counsel test set forth in Strickland v. Washington, where (1) he was not unrepresented before the CCA and therefore not entitled to the presumption of prejudice that would follow when counsel is wholly absent; (2) the single issue raised in the “missing” brief, the admissibility of his pretrial statement, was fully litigated at the trial level; (3) appellant entered a guilty plea to an lio and waived any objection to the statement with respect to that lio; (4) the CCA was required to independently review the record of trial for law and fact; (5) the merits brief to the CCA directed that court’s attention to appellant’s post-trial submission to the convening authority, a submission which specifically challenged the voluntariness of his pretrial statement; and (6) had the admissibility of appellant’s pretrial statement been presented to the CCA in a brief prepared by civilian counsel, the conclusion of the CCA would have been no different).

United States v. Quick, 59 MJ 383 (the Supreme Court in Strickland established a two-prong test for ineffective assistance of counsel; first, appellant must show that counsel’s performance was deficient; and second, appellant must show that the deficient performance prejudiced the defense).

(the two-prong Strickland test must be met before there is a finding of constitutional violation; absent a showing of both deficient performance and prejudice, there is no constitutional violation under Strickland).

(the appropriate test for prejudice under Strickland is whether there is a reasonable probability that, but for counsel’s error, there would have been a different result).

(to the extent that the “reasonably likely” language in United States v. Pineda, 54 M.J. 298 (C.A.A.F. 2001) referenced by the Court of Criminal Appeals has caused uncertainty in regard to the proper standard for prejudice in cases involving concessions of punitive discharges, we take this opportunity to clarify that the Strickland test is the proper vehicle for reviewing a claim that a defense counsel provided ineffective assistance of counsel by conceding the appropriateness of a punitive discharge).

(the Court of Criminal Appeals correctly concluded that the trial defense counsel improperly conceded the appropriateness of a dishonorable discharge where the record was silent as to the wishes of his client).

(in this case, given the brutally senseless nature of the crime (to include kidnapping, rape, and robbery), there is no reasonable probability that, even if defense counsel had not conceded a dishonorable discharge and argued for 40 years confinement, there would have been a different result; under the facts, there is no reasonable probability that, absent the error, the result would have been different; therefore, appellant has failed to meet his burden to establish prejudice under the Strickland test).

United States v. Garcia, 59 MJ 447 (to establish ineffective assistance of counsel, appellant must show that counsel’s performance was deficient and that the deficiencies were so serious as to deprive him of a fair trial; a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy).

(this Court applies a three prong test to determine if the presumption of competence of counsel has been overcome: (1) are the allegations true; if so, is there a reasonable explanation for counsel's actions? (2) if the allegations are true, did defense counsel's level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers? and (3) if defense counsel was ineffective, is there a reasonable probability that, absent the errors, there would have been a different result?).

(we evaluate the combined efforts of the defense as a team rather than evaluating the individual shortcomings of any single counsel).  

(in this case, we find that appellant received ineffective assistance of counsel in two significant respects: (1) his civilian defense counsel waived the Article 32 investigation without appellant’s agreement; and (2) his military defense counsel inexplicably failed to advise appellant of the range of options he faced when he eventually confessed his full involvement to counsel near the conclusion of the government’s case-in-chief and thereafter failed to demonstrate a sound trial strategy in the presentation of appellant’s case). 

(it is possible that under certain circumstances waiver of an Article 32 investigation without the client’s personal consent would not constitute ineffective assistance of counsel, for example where there is good cause for the failure to obtain personal consent, a sound tactical decision or a lack of resultant prejudice; in this case, however, we see no such saving circumstances where we perceive no sound strategic reasons for the waiver itself, and the record reveals no benefit for appellant in exchange for giving up his right to an Article 32 investigation; on the contrary, the record demonstrates that appellant was prejudiced; he did not have the opportunity to hear the government’s case against him and to assess the potential strength of that case; if he had seen the case against him prior to rather than in the midst of the trial, he might have sought a plea agreement which would have limited his sentence; under these circumstances, we find that defense counsel’s action in waiving appellant’s right to an Article 32 investigation without appellant’s personal consent fell measurably below the performance ordinarily expected of fallible lawyers, and that there is a reasonable probability of a different result absent that action). 

(appellant did not disclose the full extent of his involvement to his military counsel until three days into the presentation of the government’s evidence; at that point, defense counsel, who remained bound by the requirement to take only those actions that were in the best interests of his client, was left with a range of problematic options, including exploring of the possibility of a plea agreement, changing his plea to guilty, having appellant remain silent, or having appellant confess and throw himself on the mercy of the court without changing his plea; at this strategic crossroads, defense counsel had the responsibility of explaining these options to his client and obtaining the client’s fully informed consent as to which path to follow; instead, defense counsel inexplicably chose to advise appellant of a single and arguably the least tenable option; counsel failed to inform or discuss with appellant any other options; we find no reasonable explanation for defense counsel’s failure to advise his client of the range of options open to him; his performance in this regard fell measurably below that standard ordinarily expected of fallible lawyers).

(the adversarial nature of our system of justice depends on partisan advocacy by both parties: the right to effective assistance of counsel includes the right of the accused to a counsel who is acting as an advocate for the accused, as opposed to a friend of the court; by eliciting from appellant the details of his criminal activity and by conceding the ugly character of appellant’s actions, much of what defense counsel accomplished merely assisted the government and bolstered the case against appellant).

(during his lengthy and detailed examination of appellant’s criminal activity, defense counsel’s actions exhibited a clear lack of a sound trial strategy that would have served the best interests of his client; he did not attempt to elicit from appellant any expressions of remorse or contrition; this judicial confession had no mitigating impact; in fact, defense counsel’s direct examination opened the door for the prosecution in its cross-examination to elicit aggravating and damaging details not previously established; moreover, while the defense counsel argued during his sentencing argument that appellant was remorseful, he also made arguments that served only to highlight appellant’s culpability; although we are not prepared to say that the strategy chosen by defense counsel was per se ineffective, under the circumstances before us, and given that appellant was not informed of other possible options, defense counsel’s performance fell measurably below the performance ordinarily expected of fallible lawyers).

(the extreme harshness of the sentence returned by the members is strong evidence that appellant was prejudiced by the aggravating testimony elicited from him as he followed defense counsel’s advised course of action; the government asked for confinement for 86 years, and the members returned a sentence which included a sentence of 125 years - 39 years more than even what the government thought was appropriate; such an exceptionally harsh sentence leads us to believe that there is a reasonable probability of a different outcome to the court-martial had defense counsel explored the range of available options with his client). 

 
(we find that the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance has been overcome; there was no reasonable explanation for the defense team’s actions with regards to the Article 32 waiver; that action, coupled with counsel’s advice to confess and his subsequent lack of a coherent trial strategy, falls measurably below the performance ordinarily expected of fallible lawyers; there is a reasonable probability that, absent these errors, there would have been a different result).

2003

United States v. Baker, No. 58 MJ 380 (when circumstances indicate that an accused may commit perjury at trial, counsel for the accused is placed at the intersection of competing and sometimes conflicting interests; in addition to the constitutional right to the effective assistance of counsel, these interests include: (1) the constitutional right of an accused to testify in his or her own defense; (2) the ethical obligation of defense counsel to provide legal representation that is both competent and diligent; (3) the general prohibition against disclosure of communications between a client and an attorney, subject to limited exceptions; (4) the criminal prohibitions concerning false testimony on a material matter; (5) the ethical duty of an attorney to not offer or assist in offering material evidence that an attorney knows to be false; (6) the ethical duty of an attorney who knows that a client is contemplating a criminal act to counsel the client against doing so; (7) the related ethical duty of an attorney to withdraw if a client persists in a fraudulent or criminal course of conduct; and (8) the rules governing impeachment and rebuttal).

(although we may speculate as to the reasons which led defense counsel to request withdrawal – a request that ultimately resulted in appellant testifying without the benefit of counsel - the record in the present case provides no direct evidence of the circumstances that led counsel to make such a request; with the record in this posture, we cannot determine whether the actions of trial defense counsel resulted in a denial of appellant’s Sixth Amendment right to the effective assistance of counsel; accordingly, we remand the case with direction for a hearing pursuant to DuBay, before a military judge other than the judge who presided at appellant’s court-martial, to address the following questions: (1) what information, if any, led defense counsel to perceive that testimony by appellant would present an ethical problem; (2) what inquiry, if any, did defense counsel make; (3) what facts were revealed by the inquiry; (4) what standard, if any, did defense counsel apply in evaluating those facts; (5) what determination, if any, did defense counsel make with respect to prospective testimony by appellant in light of those facts; (6) after making any such determination, what information and advice, if any, did counsel provide to appellant; (7) what response, if any, did appellant make; and, (8) what information was disclosed by the two defense counsel during their off-the-record conversation with the military judge).

United States v. Dorman, 58 MJ 295 (when a client raises a claim of ineffective assistance of counsel, trial defense counsel must provide appellate defense counsel with reasonable access to the case file).

(individuals accused of crime shall have the assistance of counsel for their defense through completion of their appeal; this right includes the right to the effective assistance of counsel on appeal).

2002

United States v. Gilley, 56 MJ 113 (in the military, the Sixth Amendment right to effective assistance of counsel extends to assistance in the preparation and submission of post-trial matters).

(to determine if the presumption of competence of counsel has been overcome, the court will apply a three-prong test: (1) are appellant’s allegations true, and, if so, is there a reasonable explanation for counsel’s actions; (2) if the allegations are true, did defense counsel’s level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers; and (3) if a defense counsel was ineffective, is there a reasonable probability that, absent the errors, there would have been a different result).

(counsel failed to provide an evaluative judgment, fell measurably below the performance ordinarily expected of fallible counsel, and provided ineffective post-trial assistance where counsel submitted twelve items to the convening authority and among those items were: a letter from appellant’s mother that undercut appellant’s plea for clemency; a letter from appellant’s father both acerbic and a scathing diatribe; and an e-mail from appellant’s brother that echoed the theme of appellant’s father’s letter).

(defense counsel provided ineffective post-trial assistance by submitting to the convening authority letters containing a scathing denouncement of the military justice system and its participants; the error was prejudicial in that there was a reasonable probability that, absent the letters, there would have been a different result or, at the very least, a meaningful clemency hearing).

United States v. Burt, 56 MJ 261 (counsel errs by conceding the appropriateness of a punitive discharge when an accused wishes to remain in the service or otherwise avoid such a separation).

 (defense counsel was not ineffective when his tactical approach during argument was to show that appellant had legitimately earned his retirement through twenty years of faithful, honorable service, and it was only after appellant’s retirement vested that he “went bad”).

(defense counsel’s tactical decision to reject the proposed instruction concerning loss of retirement benefits represented a logical choice which forced the members to come to grips with the hard decision of whether to impose a punitive discharge and strip appellant of his retirement pay and benefits without being told (and perhaps reassured) that the Secretary of the Air Force could override their sentence and allow appellant to retire and receive the fruits of that retirement).

United States v. Sales, 56 MJ 255 (appellant has the burden of overcoming the presumption that his counsel was competent, and there is a three-pronged test to determine if that presumption of competence has been overcome:  (1) are the allegations made by appellant true; and, if they are, is there a reasonable explanation for counsel’s actions in the defense of the case? – (2) if they are true, did the level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers? – and (3) if ineffective assistance of counsel is found to exist, is there a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt?)

(counsel have a duty to perform a reasonable investigation or make a determination that an avenue of investigation is unnecessary).

(United States v. Ginn, 47 MJ 236 (1997), sets out six principles for determining whether a factfinding hearing is required to resolve conflicting posttrial affidavits regarding allegations of ineffective assistance of counsel:  (1) First, if the facts alleged in the affidavit allege an error that would not result in relief even if any factual dispute were resolved in appellant’s favor, the claim may be rejected on that basis; (2) Second, if the affidavit does not set forth specific facts but consists instead of speculative or conclusory observations, the claim may be rejected on that basis; (3) Third, if the affidavit is factually adequate on its face to state a claim of legal error and the government either does not contest the relevant facts or offers an affidavit that expressly agrees with those facts, the court can proceed to decide the legal issue on the basis of those uncontroverted facts; (4) Fourth, if the affidavit is factually adequate on its face but the appellate filings and the record as a whole “compellingly demonstrate” the improbability of those facts, the court may discount those factual assertions and decide the legal issue; (5) Fifth, when an appellate claim of ineffective representation contradicts a matter that is within the record of a guilty plea, an appellate court may decide the issue on the basis of the appellate file and record unless the appellant sets forth facts that would rationally explain why he would have make such statements at trial but not upon appeal; and (6) Sixth, the Court of Criminal Appeals is required to order a factfinding hearing only when the above-stated circumstances are not met).

(the question of whether there was ineffective assistance of counsel is a question of law that is reviewed de novo).

(Court of Criminal Appeals erred by not ordering a factfinding hearing under the principles of United States v. Ginn, 47 MJ 236 (1997), where:  (1) With respect to the first Ginn principle, there was a reasonable probability that there would have been a different result if the factual conflicts among the affidavits were resolved in appellant’s favor; (2) With respect to the second principle, the affidavits did not set out “speculative or conclusory observations”; and (3) With respect to the fourth principle, the appellate filings and the record as a whole did not “compellingly demonstrate” the improbability of the facts asserted by appellant’s affidavits).

United States v. Grigoruk, 56 MJ 304 (there is a “strong presumption” that counsel was competent; the following three-pronged test is applied to determine if the presumption of competence has been overcome:  (1) Are appellant’s allegations true; if so, is there a reasonable explanation for counsel’s actions?; (2) If the allegations are true, did defense counsel’s level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers?; and (3) If defense counsel was ineffective, is there a reasonable probability that, absent the errors, there would have been a different result?)

(trial defense counsel was not ineffective in failing to provide certain expert’s testimony because trial defense counsel’s concerns about litigating Dr. Underwager’s credibility as a witness were not unfounded; see Underwager v. Salter, 22 F.3d 730 (7th Cir. 1994); see also Commonwealth v. Perkins, 658 N.E.2d 975, 978 (Mass.App.Ct. 1995); State v. Swan, 790 P.2d 610, 632 (Wash. 1990)).

(there was a reasonable explanation for defense counsel’s decision not to call specific expert where trial defense counsel concluded that he might not need the expert to testify as an expert after the Government decided not to present expert testimony and where he concluded, based on his review of the prosecution’s plan of attack, that the expert’s credibility would be heavily attacked, and that the credibility of the defense case might be undermined if the defense was perceived as using a “quack” as an expert).

(appellant did not overcome the strong presumption of competence regarding the failure of trial defense counsel to request another suitable expert witness where, even though over five years have passed since appellant’s conviction, and his case has worked its way up the appellate chain twice, neither appellant nor his counsel have demonstrated that any other expert could have provided expert testimony sufficient to raise the reasonable probability of a more favorable result).

United States v. Key, 57 MJ 246 (Court of Appeals for the Armed Forces reviews claims of ineffective assistance of counsel de novo).

(there is a two-part test for ineffective assistance of counsel: an appellant must show deficient performance and prejudice; there is a strong presumption that counsel are competent, and broad, generalized accusations are insufficient to satisfy the first prong).

(appellant’s assertion, that he does not recall being advised of his right to request a waiver of forfeitures, was too equivocal and ambiguous to overcome the presumption that his counsel were competent).

(appellant’s affidavit, asserting that he does not recall being advised of his right to request a waiver of forfeitures, failed to satisfy the prejudice prong of the test for ineffective assistance of counsel because there was no reasonable likelihood that the convening authority would have granted a request to waive the forfeitures and because appellant has failed to provide any offer of proof regarding what he would or could have submitted to support his waiver request).

United States v. Terlep, 57 MJ 344 (ineffective assistance of counsel requires, inter alia, that the defendant must show that counsel’s performance was deficient; this requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment).

(the failure to pursue a legal claim is not necessarily deficient conduct by counsel; if that claim is not shown to have a reasonable probability of being found meritorious as a matter of law and fact, the failure to pursue it is not error and certainly not ineffective assistance of counsel).

2001

United States v. Dewrell, 55 MJ 131 (to establish a claim of ineffectiveness, the defendant must show that counsel’s performance was deficient – that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment – that counsel’s representation fell below an objective standard of reasonableness – that performance was unreasonable under prevailing professional norms considering all the circumstances).

(judicial scrutiny of counsel’s performance must be highly deferential; counsel is strongly presumed to have given adequate representation).

(the prejudice prong of the test for ineffective assistance of counsel requires that the defendant demonstrate that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable).

(although appellant claimed that defense counsel failed to attack the credibility of government witnesses, the record of trial shows that defense counsel did engage in cross-examination and acted to minimize potentially damaging testimony; additionally, appellant’s claims about a witness’s advanced sexual knowledge are unsubstantiated, and, even though appellant was the only one in a position to factually challenge a given witness, he did not do so either during or after trial).

(although appellant claimed that defense counsel did not take adequate measures to limit the spillover effect of certain testimony, the spillover instruction given by the military judge was adequate and presumably followed by the members).

(although appellant claimed that defense counsel did not do enough to inform the members about the precise consequences of a punitive discharge, the nature of appellant’s felony conviction, the evidence presented during sentencing, the military judge’s instructions, and the argument of counsel demonstrate that the members had sufficient information to understand the ramifications associated with awarding appellant a punitive discharge).

(although appellant claimed that defense counsel failed to present a case on findings by not allowing appellant to testify, appellant’s failure to speak up at or after trial belies his assertion that his desire to testify was improperly cut off by his counsel, and the record and appellate filings compellingly demonstrated the improbability of appellant’s assertions).

(although appellant claimed that his counsel failed to present a good soldier defense, this was a tactical decision; deciding to forgo live witnesses in order to avoid potentially damaging evidence being brought in under cross-examination does not amount to incompetence).

(with respect to claims of ineffective assistance of counsel, barebones assertions of a defendant, albeit made under oath, are insufficient to require a hearing; some greater particularity is necessary to give the claim sufficient credibility to warrant a further investment of judicial resources in determining the truth of the claim).

(in assessing claims of ineffective assistance of counsel, the appellate court does not look at the success of a criminal defense attorney’s trial theory, but rather at whether counsel made an objectively reasonable choice in strategy from the alternatives available at the time).

United States v. Anderson, 55 MJ 198 (to prevail on a claim of ineffectiveness of counsel, an appellant must show that counsel’s performance as deficient and that the deficient performance prejudiced the defense).

(counsel are presumed competent, and to overcome this presumption an appellant must show that counsel made specific errors that were unreasonable under prevailing professional norms).

(there is a three-part test to determine if the presumption that counsel was competent has been overcome:  (1) are appellant’s allegations true and, if so, is there a reasonable explanation for counsel’s actions; (2) if the allegations are true, did defense counsel’s level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers; and (3) if defense counsel were ineffective, is that a reasonable probability that, absent the errors, there would have been a different result).

(ineffectiveness of counsel is a mixed question of law and fact; factual findings are reviewed under a clearly-erroneous standard of review, but the ultimate determinations whether counsel were ineffective and whether their errors were prejudicial are reviewed de novo).

(a particular decision by counsel not to investigate must be directly assessed for reasonableness in all the circumstances applying a heavy measure of deference to counsel’s judgments).

(while the appellate court will not second guess the tactical decisions made at trial by defense counsel, where it is not apparent what decisions were made or even that a strategic or tactical decision was made, further inquiry may be required).

(an unequivocal concession of guilt by counsel can so undermine the adversarial process as to obviate the need for a separate showing of prejudice in support of a claim of ineffective assistance of counsel).

(conflicting affidavits on an issue of ineffectiveness of counsel may not be resolved without a factfinding hearing, unless:  (1) the facts alleged by the appellant would not result in relief even if true; (2) the appellant does not assert specific facts but only speculative or conclusionary observations; (3) the appellant’s factual assertions are not contested; (4) the record as a whole compellingly demonstrates the improbability of the facts asserted by the appellant; or (5) the appellant’s factual assertions contradict statements made by the appellant on the record and the appellant does not rationally explain why he would have made such statements at trial but not upon appeal).

(Court determined that a factfinding hearing was necessary to resolve contradictions between the affidavits of counsel and those presented by appellant where: (1) there remain questions about the adequacy of trial defense counsel’s pretrial investigation into the circumstances surrounding the accusations against appellant; (2) hearing would give defense counsel opportunity to explain tactical reason for not calling a defense witness; (3) further factual inquiry would provide defense counsel an opportunity to explain pretrial strategy and explain why a witness was not interviewed earlier; (4) further inquiry is needed into the likelihood that expert could have interviewed and evaluated child victim and obtained evidence favorable to appellant; and (5) the effects of defense counsel’s arguments, which were susceptible of being interpreted as concessions, warranted further evaluation after factual disputes are resolved).

United States v. Bolkan, 55 MJ 425 (when defense counsel’s advocacy falls short of that required to render effective assistance of counsel, the court will test for prejudice).

United States v. McConnell, 55 MJ 479 (Court declines to address the effectiveness of appellant’s two lawyers separately or solely upon the conduct of lead counsel; where there are multiple defense counsel, the performance of defense counsel is measured by the combined efforts of the defense team as a whole).

(there is a two-pronged test to analyzing claims of ineffective assistance of counsel:  first, appellant must show that counsel’s performance was deficient; second, appellant must show that the deficient performance prejudiced the defense).

(in analyzing claims of ineffective assistance of counsel, Court of Appeals for the Armed Forces has asked three questions:  (1) are the allegations made by appellant true, and, if they are, is there a reasonable explanation for counsel’s actions in the defense of the case; (2) if they are true, did the level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers; and (3) if ineffective assistance of counsel is found to exist, is there a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt?).

(the performance and prejudice prongs of the test for ineffective assistance of counsel can be analyzed independently; the Court can test allegations of ineffectiveness for prejudice by assuming that the errors alleged satisfy the deficient performance prong and then considering whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt).

(because counsel are presumed competent, an appellant must rebut this presumption by showing specific errors that were unreasonable under prevailing professional norms).

(when a claim of ineffective assistance of counsel is premised on counsel’s failure to make a motion to suppress evidence, an appellant must show that there is a reasonable probability that such a motion would have been meritorious).

(where appellant premised a claim of ineffective assistance of counsel, in part, upon counsel’s failure to make a motion to suppress appellant’s pretrial statement, appellant failed to meet his burden to show that the motion would have been meritorious where the evidence was appellant’s word against that of an investigator in possession of a signed investigative form advising appellant of the offense under investigation).

(where appellant premised a claim of ineffective assistance of counsel, in part, upon counsel’s failure to investigate and attack the credibility of the complaining victim, and appellant could not offer specific assertions as to what witnesses would have said regarding the victim’s credibility, the Court could not reliably assess whether the outcome of the trial would have been different had such evidence been presented, and appellant thus failed to meet his burden of showing prejudice).

(where an appellant takes part in formulating the trial strategy and has given counsel reason to believe that pursuing certain investigations would be fruitless, counsel’s failure to pursue those investigations may not later be challenged as unreasonable).

(where appellant premised a claim of ineffective assistance of counsel, in part, upon counsel’s failure to use good military character evidence, counsel’s decision to forego such evidence on the merits in order to preserve its strength for sentencing had a reasonable, tactical basis; while appellant may disagree with the decision in retrospect, it did not fall below the objective standard of reasonableness).

(where appellant premised a claim of ineffective assistance of counsel, in part, upon counsel’s failure to make a motion in limine to prevent the members from hearing testimony of explicit sexual conversations appellant had with the victim of his offense, appellant failed to sustain his burden of showing prejudice because the victim’s testimony and appellant’s pretrial admissions, when weighed against the victim’s references to appellant’s sexually explicit remarks, evidence no reasonable possibility that had the statements been excluded, the factfinder would have had a reasonable doubt regarding appellant’s guilt).

(where appellant premised a claim of ineffective assistance of counsel, in part, upon counsel’s failure to make an opening statement, appellant failure to meet his burden of showing prejudice where, in light of the evidence against appellant, there was no reasonable probability that the members would have had a reasonable doubt regarding his guilt had an opening statement been made).

2000

United States v. Grigoruk, 52 MJ 312 (there is a three-part test to determine if the presumption of competence has been overcome:  (1) are the appellant’s allegations true, and, if so, is there a reasonable explanation for counsel’s actions; (2) if the allegations are true, did defense counsel’s level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers; and, (3) if defense counsel was ineffective, is there a reasonable probability that, absent the errors, there would have been a different result).

(defense counsel will not be compelled to justify decisions made at trial until a court of competent jurisdiction reviews the allegation of ineffectiveness and the government response, examines the record, and determines that the allegation and the record contain evidence which, if unrebutted, would overcome the presumption of competence).

(appellant met threshold for ordering further inquiry into a claim of ineffective representation where, although defense counsel established factual predicate for expert testimony and prevailed on a contested motion to compel the employment of an expert for the defense, defense counsel inexplicably did not call the defense employed expert or any expert to challenge victim’s credibility).

(failure to cross-examine CID agents is not ineffective representation, in the absence of evidence showing what that cross-examination might reasonably have accomplished).

(stipulating to medical doctor’s testimony is not ineffective representation, in the absence of a showing that her testimony in person would have been more favorable to appellant).

United States v. Steele, 53 MJ 274 (because appellant presented no issue of competence arising from civilian counsel’s “inactive” bar status, and because appellant has not shown that civilian counsel’s performance was otherwise deficient, appellant failed to meet his heavy burden of showing that he was denied the ineffective assistance of counsel).

United States v. Alves, 53 MJ 286 (to overcome the presumption that defense counsel is competent, an appellant must demonstrate:  (1) a deficiency in counsel’s performance that is so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment; and (2) that the deficient performance prejudices the defense through errors so serious as to deprive the defendant of a fair trial, a trial whose result is reliable).

(the two-part test for ineffective assistance of counsel applies to guilty pleas and to sentencing hearings that may have been undermined by ineffective assistance of counsel).

(counsel’s performance was deficient because he failed to interview any witnesses or conduct any investigation prior to advising appellant to plead guilty where:  (1) there was a finite number of witnesses; (2) the incident involved alcohol; and (3) appellant was unable to remember critical moments of the offense).

(although counsel’s performance was deficient because he failed to interview any witnesses or conduct any investigation prior to advising appellant to plead guilty, appellant failed to show there was a reasonable probability that, but for counsel’s error, he would not have pleaded guilty and would have insisted on going to trial).

(counsel was deficient during sentencing because he failed to explore the potential for introducing good-military-character character evidence; without interviewing the potential witnesses, counsel was not in a position to make a tactical decision as to whether the witnesses would or would not have been valuable character witnesses).

(normally, ineffective assistance of counsel at the sentencing phase is prejudicial and requires a new sentencing hearing because the record does not contain the evidence that an effective counsel would have presented).

(where new counsel interviewed pertinent witnesses and made a post-trial presentation to the convening authority that resulted in substantial sentence relief, the convening authority adequately addressed any prejudice appellant may have suffered as a result of his counsel’s deficient performance during the sentencing phase of trial).

United States v. Knight, 53 MJ 340 (the right of a military accused to effective assistance of counsel after his trial is a fundamental right).

(in cases where a servicemember is effectively without representation during the clemency process, the court will presume prejudice).

United States v. Paaluhi, 54 MJ 181 (claims of ineffective assistance of counsel are reviewed de novo; in order to prevail, an appellant must demonstrate that his counsel’s performance was deficient and that this deficiency seriously prejudiced appellant’s defense).

(defense counsel provided ineffective assistance of counsel when he advised appellant to talk to government clinical psychologist and confess to committing the charged offenses where:  (1) defense counsel did so without awareness of the local Navy Medical Department’s limited confidentiality policy; (2) defense counsel erroneously believed that the communications would be protected under the attorney-client privilege; and (3) defense counsel failed to take the necessary steps to protect the communications by having the clinical psychologist assigned to the defense team as required by military attorney-client-privilege law).

(appellant was prejudiced by ineffective assistance of counsel when counsel advised appellant to talk to government clinical psychologist and confess to committing the charged offenses, and the confessions were used against appellant at trial; a confession is a most devastating form of evidence and the other evidence against appellant was not overwhelming; thus, there was a reasonable probability that without admission of appellant’s inculpatory statements to the clinical psychologist, the members would have had a reasonable doubt with respect to appellant’s guilt).

United States v. Thompson, 54 MJ 26 (where the allegations in appellant’s affidavit were such that, if true, they would support a legally justiciable claim of ineffective assistance of counsel, and where those allegations left too many factual questions concerning counsel’s effectiveness unresolved on the record, it is necessary to obtain affidavits on appellant’s allegations from defense counsel and then determine whether a DuBay hearing was required).

1999

United States v. Gibson, 51 MJ 198 (under the two-pronged test to determine whether an accused received the effective assistance of counsel, and in light of the fact that counsel are presumed competent, to prevail on appeal an accused must show: (1) deficient performance; and (2) prejudice).

(counsel has a duty to make reasonable investigation or to make a reasonable decision that makes particular investigations unnecessary; failure to investigate information suggesting that alleged victim was not credible was deficient performance within the first prong of the test for ineffective assistance of counsel).

(defense counsel’s failure to investigate evidence strongly suggesting that alleged victim was not credible deprived accused of a fair, reliable trial where:  (1) prosecution’s case rested on the victim’s credibility; (2) the material which was not investigated strongly suggested that the victim was not credible; and (3) the evidence of credibility was relevant to both the charged and lesser included offenses).

United States v. Brownfield, 52 MJ 40 (for counsel to be found ineffective, two questions must be answered:  (1) whether counsel was reasonably competent, and (2) if not, whether the accused was prejudiced; reasonable competence is determined in light of a strong presumption of competence which an appellant must rebut by showing specific errors made by defense counsel that were unreasonable under prevailing professional norms; prejudice is measured by whether counsel’s performance was so deficient that the trial is unreliable and the result unfair).

(defense counsel must perform a reasonable investigation, or make a reasonable decision that an avenue of investigation is unnecessary; not pursuing the existence of a potential alibi witness is deficient performance which may be prejudicial in light of specific weaknesses in a given prosecution).

(it was unnecessary to determine whether counsel displayed reasonable competence with respect to locating potential alibi witness where the resulting show of prejudice was lacking because: (1) the alibi witness’s testimony would have contradicted appellant’s version of events in several instances, thus undermining appellant’s credibility and his case, and (2) the alibi witness lacked credibility).

(despite the fact that a grant of clemency was unlikely, defense counsel was not free to ignore his post-trial duties without his client releasing him from representation; conflicts with the client must be resolved so that zealous representation may continue, or counsel must seek relief from the obligation to represent the client).

(although miscommunication between defense counsel and appellant resulted in no communication with the convening authority on the appellant’s behalf by way of a clemency submission, appellant cannot demonstrate how he was prejudiced in the post-trial clemency process in light of the serious nature of the offenses, appellant’s refusal to plead guilty to any of the offenses, and appellant’s poor military record).

United States v. Lee, 52 MJ 51 (the right to effective representation extends to post-trial proceedings where defense counsel is responsible for post-trial tactical decisions, but he should act after consultation with the client were feasible and appropriate, and he may not submit matters over the client’s objection).

(it was not necessary to decide if defense counsel was deficient by not resolving the inconsistency in appellant’s post-trial clemency submission, because appellant did not show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been any different).

(the standard of prejudice for errors in post-trial representation is low because of the highly discretionary nature of the convening authority’s clemency power, and appellant need only make some colorable showing of possible prejudice resulting from the error).

(any error in the post-trial representation of appellant arising from the fact that defense counsel did not support appellant’s request for disapproval of the dishonorable discharge and substitute of a general discharge was not prejudicial to appellant’s substantial rights where the record demonstrated that the convening authority would not have disapproved the dishonorable discharge, because he was unwilling to take the lesser step of commuting it to a bad-conduct discharge).

United States v. Magnan, 52 MJ 56 (record supports rationale of defense counsel’s failure to comment upon a misstatement by the staff judge advocate in the post-trial recommendation to the effect that there was no clemency recommendation by the military judge because appellant, in an unsworn statement, requested a bad-conduct discharge).