U.S. v. Sales, 56 M.J. 255

Military Justice Personnel: Defense Function: Effective / Ineffective Assistance of Counsel

1. 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?
2. counsel have a duty to perform a reasonable investigation or make a determination that an avenue of investigation is unnecessary
3. 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
4. the question of whether there was ineffective assistance of counsel is a question of law that is reviewed de novo
5. 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

Trial Stages: Post-Trial Hearings: DuBay / Factfinding Hearings

1. (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
2. the question of whether a lower court correctly applied the principles of United States v. Ginn, 47 MJ 236 (1997), will be reviewed de novo
3. 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

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the question of whether there was ineffective assistance of counsel is a question of law that is reviewed de novo
2. the question of whether a lower court correctly applied the principles of United States v. Ginn, 47 MJ 236 (1997), will be reviewed de novo