16 September 2007

Moreno Redux Revisited

United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), is the case that keeps on giving. As we recall, the case established a presumption of excessive post-trial processing delays that failed to meet a certain timeline. You will also recall that CAAF held that defense delays at the appellate level may be attributable to the Government unless the Government could show that the appellant concurred in the delay. Apparently as a result, the Air Force Court of Criminal Appeals implemented Rule 24.1(b)(3) which requires the third and any other requests for enlargement of time filed by defense counsel to be accompanied by a statement as to whether the client concurs in that request for enlargement of time.

It appears that the Air Force Appellate Defense shop is challenging that rule. In United States v. Roach, No. S31143 (A.F. Ct. Crim. App. Sep. 13, 2007), counsel requested a 4th enlargement without stating whether his client concurred. The AFCCA denied the enlargement and proceeded to review the case. The defense later submitted a request for enlargement out of time in which the counsel claimed his client now allows counsel to submit all necessary enlargements and that his counsel may have been ineffective during post-trial stages of his case.

I smell a rat.

In a per curiam opinion, the court finds no ineffective assistance of counsel. Because the limited nature of the record--a short guilty plea--the court decides there was nothing meritorious in the record and it wasn't ineffective assistance not to file a merits petition because the court reviews the case anyway under Article 66.

Truly amazing. Shouldn't there have been some investigation to decide if there might have been some meritorious issue and whether the defense counsel was ineffective?

I realize defense counsel doesn't like the AFCCA's rule, but I think they are playing a rather dangerous game of chicken with the AFCCA. I would like to see the officer efficiency report on an attorney who is guilty of ineffective assistance. And not filing an appeal on time causing an accused's case to go down in flames in cause for a complaint to the bar of the state that licensed the attorney.

This may be an interesting case unless CAAF decides to take the easy way out and deny review.

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