U.S. v. Singleton, 60 M.J. 409

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

1. in Ginn, we announced the following six principles to be applied by CCAs in disposing of post-trial, collateral, affidavit-based claims, such as ineffective assistance of counsel: (1) 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) 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) 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) 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) 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 (including the admissions made in the plea inquiry at trial and appellant's expression of satisfaction with counsel at trial) unless the appellant sets forth facts that would rationally explain why he would have made such statements at trial but not upon appeal; and (6) the CCA is required to order a factfinding hearing only when the above-stated circumstances are not met
2. Ginn requires a DuBay hearing when a CCA determines that a dispute cannot be resolved entirely by applying the Ginn framework to post-trial affidavits; there being a factual dispute in this case that the CCA could not resolve under either the first or fourth Ginn principles, the court below properly ordered a DuBay hearing; because the convening authority is in the best position to determine whether it is practicable to hold a DuBay hearing based on time, personnel, expenditures, and potential relief, the court below also properly offered the convening authority the option of either ordering a DuBay hearing, or if that was impracticable, returning the case to the CCA to grant the relief it determined appropriate, based on its contingent evaluation of appellee’s affidavits
3. the CCA properly applied the Ginn principles and ordered relief only after receiving the convening authority’s knowing and informed DuBay declination, unaccompanied by additional Government pleadings; in this procedural posture, it would not have been unreasonable for the CCA to have construed the Government’s position as no longer contesting the relevant facts under Ginn’s third principle; while the CCA did not cite Ginn in its relief order, that precedent was consistently discussed and applied throughout the appellate process; in any event, this Court is free to determine when the Ginn framework should be applied, as well as whether the lower court properly applied that framework; the clear purpose of Ginn was to stop the service courts from resolving disputed factual issues on the basis of extra-record affidavits, without a trial-level hearing, except in certain, specified instances; the action by the CCA properly applied our opinion in Ginn and was consistent with our decision in Fagan