One such example is United States v. Davis, ACM 36490 (A.F. Ct. Crim. App. Jun. 13, 2007). The sole assignment of error was that the appellant's defense counsel was ineffective by failing to submit matters in clemency to the convening authority. The AFCCA notes the Strickland v. Washington, 466 U.S. 668, 687 (1984), standard for reviewing ineffectiveness of counsel: deficient performance and prejudice. The AFCCA resolves the case in the following two paragraphs:
As to the assignment of error, we have reviewed the record of trial, the assignment of error, and the government's answer thereto. The appellant was advised, on several occasions, of his right to submit post-trial matters for consideration by the convening authority. Furthermore, the appellant repeatedly acknowledged his understanding of that right. Although the appellant indicated in writing that he desired to submit matters, after an extension of time to submit such matters was granted, no matters were submitted and the convening authority took action. "Failure to submit matters within the time prescribed by this rule shall be deemed a waiver of the right to submit such mattes (sic)." Rule for Courts-Martial 1105(d)(1). Clearly, the appellant waived this right. The appellant has failed to meet his burden of proving deficient performance.
Assuming, arguendo, the appellant has overcome the presumption of competence of counsel, there is absolutely no evidence provided by the appellant, or otherwise, to support any finding of prejudice. Although the trial defense counsel submitted an affidavit and a number of memoranda, they are not necessary as the appellant has not met his burden on this issue.In the first quoted paragraph, the AFCCA seems to say the following: (1) the appellant had been told of, and acknowledged, his right to submit matters to the convening authority; (2) he did not timely submit such matters to the convening authority; (3) failure to submit matters is deemed a waiver of the right; and (4) therefore, the appellant's attorney's performance was not deficient. It seems the AFCCA conflated two separate legal principles. No one doubts that by failing to timely submit matters, the appellant waived clemency. The issue is whether his counsel failed to submit matters he should have and whether such a failure was ineffective assistance of counsel.
In the second quoted paragraph, the AFCCA assumes arguendo that the appellant established that his counsel was deficient, but decides that the appellant failed to show any prejudice. The AFCCA does not cite to the applicable law on the subject. To show prejudice, the appellant must show what he and others would have produced for the convening authority to consider. United States v. Perez, 64 M.J. 239, 244 (C.A.A.F. 2006). If he presents what he wanted his counsel to submit to the convening authority, there is a pretty low threshold:
However, because of the highly discretionary nature of the convening authority's clemency power, the threshold for showing prejudice is low. This Court will give an appellant the benefit of the doubt and find that "there is material prejudice to the substantial rights of an appellant if there is an error and the appellant 'makes some colorable showing of possible prejudice.'"United States v. Lee, 52 M.J. 51, 53 (C.A.A.F. 1999) (quoting United States v. Wheelus, 49 M.J. 283, 289 (1998) (quoting United States v. Chatman, 46 M.J. 321, 323-24 (1997)).
If the appellant did present the matters he allegedly asked his counsel to submit, I expect the CAAF may remand the case for a new clemency proceeding.