Articles Posted in IAC

Here is another case where a military prisoner has sought habeas corpus relief, in the Kansas District Court (the Tenth Circuit).

Valois v. Commandant, USDB

The case provides a fascinating discussion of the maze and complexities of DoD and Service regulations the award of good time credit, work abatement, and such, applicable to clients confined at the USDB.

Valois challenges the amount of good conduct time (“GCT”) credit that will be administratively deducted from his sentence.

On June 30, 2006, Valois was transferred to the United States Disciplinary Barracks (“USDB”) in Fort Leavenworth, Kansas, where he is presently serving his sentence. On May 11, 2010, Valois filed a claim for administrative relief with the Commandant of the USDB, contesting the amount of good time that was being credited against his sentence. This request was denied on May 12, 2010. Valois repeated the request on May 14, 2010, and it was again denied on May 26, 2010. On June 17, 2010, Valois filed a complaint under Article 138 of the UCMJ on June 17, 2010, which was denied on August 5, 2010. He filed additional Article 138 complaints on June 8 and 28, 2011, both of which were denied. On September 12, 2012, the Air Force Court of Criminal Appeals denied his pro se Writ of Habeas Corpus without prejudice due to lack of counsel. Valois submitted a motion for reconsideration but on February 11, 2013, sought dismissal. Four days later, on February 15, 2013, Valois filed the instant petition.

In his petition, Valois asserts two arguments. First, he contends he is entitled to GCT credit of ten days rather than five days per month. Specifically, he contends that the Secretary of the Air Force has the authority to determine the award of GCT, and that Air Force Joint Instruction (“AFJI”) 31-215, which provides for GCT at the rate of ten days per month, controls. Valois argues that later amendments or modifications to AFJI 31-215 were either invalid or have expired. Second, Valois argues that changes in GCT after his conviction constitute an ex post facto violation of the Constitution.

The arguments asserted by Valois are related. First, he contends that Congress has authorized the Secretary of each military service group to establish military correctional facilities and provide regulations for their operation. From this, he reasons that the Secretary of the Air Force controls the award of GCT. Next, Valois contends that Air Force regulations, not those of the Department of Defense (“DoD”), control his GCT. He argues that DoD regulations, which purportedly amended the Air Force regulations, are not valid because they expired and were not properly activated again. Finally, based upon these arguments, Valois contends that the less generous GCT rate under the DoD regulations illegally increases his time in confinement in violation of the Ex Post Facto Clause of the United States Constitution.

The Court first examines the maze of GCT regulations that the Air Force and DoD have issued over the last 50 years. These regulations are not always uniform and their effective dates and subsequent cancellations are often difficult to discern. The Honorable Richard D. Rogers has previously explained the problem with military regulations on issues of parole and GCT:

[T]he military regulations governing parole and good time for prisoners at the USDB are difficult to locate and decipher. Piecemeal changes have been made numerous times; some are Department of Defense directives while others are Army and Air Force regulations. Some contain disorganized provisions on the same subject, some are poorly written with seeming inconsistencies, and some subjects seem not to be adequately addressed. These regulations are not in the Code of Federal Regulations or available to the court through normal research channels. Instead, the court must rely on excerpts selected by the parties and provided with the pleadings.

Young v. Nickels, 59 F. Supp.2d 1137, 1139 (D. Kan. 1999).

Like military counsel, “With some trepidation, the Court enters the military labyrinth of regulations.”  After entering and leaving that labyrinth the court denies relief.

Part of Valois’ claim is that he received IAC when taking his PTA because he was wrongly advised of his likely good time credit.  The court cites to United States v. Griffitts, No. 201000673, 2011 WL 4985719 at * 4 (N-M. Ct. Crim. App. Oct. 20, 2011)(defense counsel’s mistaken reliance on outdated Navy instruction which awarded ten days GCT credit did not lead to improvident plea and was not ineffective assistance of counsel).

The Court of Appeals for the Armed Forces has granted a petition on the following issue:


Here is a link to the AFCCA opinion in United States v. McIntosh, ACM 37977, 2014 CCA LEXIS 29 (A. F. Ct. Crim. App. January 17, 2014).

Keep in mind that when there is an issue of ineffective assistance of counsel during trial there is a strong presumption that the defense counsel did provide constitutionally effective assistance.  The standard of review goes something like this.

The appellant must establish that:

(1) that his counsel’s performance was deficient, and

(2) that this deficiency resulted in prejudice.

That is that the representation amounted to incompetence under the professional norms applicable at the time of the representation.

In evaluating counsel’s performance under the first Strickland v. Washington, 466 U.S. 668 (1984), prong, appellate courts allow a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Military courts follow and apply Strickland to IAC claims.  See e.g., United States v. Green, 68 M.J. 360 (C.A.A.F. 2010).

Interestingly, at AFCCA the appellant raised 19 issues for why his conviction and sentence was unfair, but he did not specify the issue in the language CAAF granted.  Many of his issues seem to focus on a “failure” to fully litigate the case at the Article 32, UCMJ, investigation and thereby get the charges dismissed.  His IAC claims were:

The appellant claims his trial defense counsel were ineffective before, during, and after his trial because they failed to: (1) Advise him to wear the proper uniform for the Article 32, UCMJ, hearing; (2) Present exculpatory evidence at the Article 32, UCMJ, hearing; (3) Request a bill of particulars; (4) Dispute the charges at the Article 32, UCMJ, hearing; (5) submit defense objections to the Article 32, UCMJ, Investigation Officer (IO) in writing; (6) Contest the IO’s decision that BH was not reasonably available; (7) Cross-examine Detective RP regarding her knowledge of the appellant’s whereabouts or her interview with BH; and (8) Introduce evidence from the 2007 and 2010 sexual assault examination reports. He also contends his counsel left two Air Force Office of Special Investigations reports of investigations out of the record of trial prior to authentication, and improperly included a note from the appellant in the defense clemency submissions. He asks this Court to set aside the findings and the sentence because his counsel did not provide him with effective assistance.

Military appellate courts use a three part test to decide if the 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 . . . ?

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, [there would have been a different result]?

United States v. Polk, 32 M.J. 150 (C.M.A. 1991).

Keep in mind when judging IAC:

The fact that their overall plan was not ultimately successful does not invalidate the defense strategy.

The fact that their overall plan was not ultimately successful is not proof of IAC.

See  United States v. Kibler, 43 M.J. 725, 730 (Army Ct. Crim. App. 1995) (“The test of counsel’s performance is not that he lost; and, it is not that some number of options were not pursued,” but rather whether the adversarial process was reliable enough to produce a just result);
United States v. Miller, 64 M.J. 666, 673 (A.F.C.C.A. 2007).

So, it will be interesting to see how this case is decided – a resolution is not immediately obvious from reading the AFCCA opinion or the granted issue – give me the facts.


Can a failure to file a pretrial motion equal ineffective assistance of counsel?  The BLUF is yes in some cases.  In some instances I have argued IAC on appeal for failing to make a meritorious motion.  The NMCCA has issued an interesting opinion in United States v. Spurling, in which they discuss this important issue.  The opinion appears to be an en banc one although not labeled as such – Sr. Judge Ward writes for a majority of five, with three dissenters in an opinion written by Judge King.  The issue of IAC for failure to raise a pretrial motion is neither novel nor rare.  Many of my appellate clients raise a question about why the defense counsel didn’t fil a particular motion.  I am about to file one in a case (citing United States v. Grostefon) where the client complains that the defense counsel did not file a motion to dismiss certain charges.  A more common issue is a motion to suppress, or speedy trial, or UCI.

  1. Spurling claimed IAC because his counsel did not litigate his admissions. Interestingly both counsel admitted they didn’t even catch the issue:  [Counsel] failed to “recognize the issue based on [her] lack of experience, the work load at the time, and never having argued an Article 31 issue[.]”
  2. Capt B concurs, stating that had the issue occurred to him “[he] would have proposed filing it.”
  3. Both TDC acknowledge that it was not until after participating in a post-trial debrief with the military judge, who asked whether they had filed a suppression motion, that they recognized the issue.

So how is this admitted “failure” to be reviewed. The court states the standard as a need to show a reasonable probability the motion would be a success, and this must be a substantial chance, not a mere probability. United States v. Jameson, 65 M.J. 160 (C.A.A.F. 2007); United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001).  Without this finding, there is no IAC even if there is an error, because there is no prejudice.  However, the dissenters, expressed through Judge King would set aside the findings and sentence on the IAC issue. The court then goes into the ongoing issue of when is a person acting within a official capacity. Finding no substantial likelihood of success on the motion the court finds no harmful and prejudicial error.  There has been some discussion already on the requirement to advise a person of their Article 31, UCMJ, right to silence.

Expect to see Spurling at CAAF, potentially as a trailer.

Spurling wins something on the inappropriate sentence – a set aside of the BCD.

Do you have to raise every single motion?  No.

Do you have to raise every single motion the client asks you to?  No.

I wonder what the MJ would have done if the counsel had asked for a post-trial session to litigate the motion at that time, if for no other reason than to make a record for appeal?  We know the MJ can hold such a hearing.


Peeking Behind the Plea Bargaining Process

Laurie L. Levenson

Loyola Law School Los Angeles
December 11, 2012
Loyola of Los Angeles Law Review, Forthcoming
Loyola-LA Legal Studies Paper No. 2012-49

The Supreme Court’s rulings in Missouri v. Frye and Lafler v. Cooper, which recognized a defendant’s Sixth Amendment right to effective assistance of counsel in plea bargaining, creates new responsibilities for judges, defense counsel and prosecutors. This article explores what those responsibilities are in light of the history and role of plea bargaining in the United States.

Number of Pages in PDF File: 45

In addition to oral argument in Vazquez (link to argument here), the court issued several opinions of relevance to military trial and appellate practitioners:  what are the “rules” and standards for IAC in regard to pretrial negotiations.

Lafler v. Cooper and Missouri v. Frye.

the Court vacated the decision of the Court of Appeals of Missouri and remanded the case for further proceedings. By a vote of five to four, the Court held that the Sixth Amendment right to effective assistance of counsel ex­tends to the consideration of plea offers that lapse or are rejected and that that right applies to “all ‘critical’ stages of the criminal proceedings.”  Justice Scalia filed a dissenting opinion, which was joined by the Chief Justice and Justices Thomas and Alito.


the Court vacated the decision of the Sixth Circuit and remanded the case for further proceedings. Also by a vote of five to four, the Court held that where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed. Justice Scalia filed a dissenting opinion, in which Justice Thomas joined and in which Chief Justice Roberts joined as to all but Part IV. Justice Alito also filed a dissenting opinion.

h/t SCOTUSBlog  for the above quick summaries.

Here is the lead in to Frye by Justice Kennedy.

The Sixth Amendment, applicable to the States by the terms of the Fourteenth Amendment, provides that the accused shall have the assistance of counsel in all criminal prosecutions. The right to counsel is the right to effective assistance of counsel. See Strickland v. Washington, 466 U. S. 668, 686 (1984).  This case arises in the context of claimed ineffective assistance that led to the lapse of a
prosecution offer of a plea bargain, a proposal that offered terms more lenient than the terms of the guilty plea entered later.  The initial question is whether the constitutional right to counsel extends to the negotiation and consideration of plea offers that lapse or are rejected.  If there is a right to effective assistance with respect to those offers, a further question is what a defendant must demonstrate in order to show that prejudice resulted from counsel’s deficient performance.  Other questions relating to ineffective assistance with respect to plea offers, including the question of proper remedies, are considered in a second case decided today. See Lafler v. Cooper[.]

Neither of the two cases relate to Denedo/Padilla or Miller issues.

The inquiry then becomes how to define the duty and responsibilities of defense counsel in the plea bargain process. This is a difficult question.

Frye Slip op. at  8.

This Court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.

Frye Slip op. at 9.

I don’t know about others, but I’ve always considered this to be the rule for courts-martial.  I can’t see how you can properly represent an  accused and not pass on PTAOs that have originated from the government.  Here the counsel didn’t pass on the offer.  The case is remanded for the appellant to show prejudice:  that he would have accepted the offer, it wouldn’t have been cancelled, and the judge would have accepted the plea.  This error ought to be reasonably infrequent.

Lafler is the harder case.  The appellant was advised of the deal.  But on the advice of counsel rejected the deal, went to trial, and got a heavier sentence.  Strickland’s two prong analysis applies.  It appears the parties agreed that the counsel’s advice was so wrong to be IAC.  Lafler, slip op. at 1.  That means the issue was how to apply Strickland and prejudice.  The court went into a lengthy discussion of the potential remedies but ultimately “remanded for further proceedings consistent with this opinion.”

I see Lafler generating some post-trial litigation – and the potential for a quagmire.  Does counsel provide IAC when she recommends turning down a PTA prior to the 32?  Or does the IAC have to relate to a PTA that is closer in time to the trial when the investigation is complete, there has been sufficient discovery, and there has been a fuller case development?  In other words how much information does the defense counsel have to have to properly advise on a deal.  Keep in mind that the government is usually pretty restrictive on discovery in the early stages of a case.  How much extra time is prejudicial.  In Lafler the appellant was sentenced to 3.5 times more confinement.  What if it’s a SPCM.  Counsel recommends turning down an offer for four months and the accused is convicted and sentenced to six (a 50% increase)?  What if it’s a GCM.  Counsel recommends turning down an offer of one year for pleas to a sexual assault, fraternization, providing alcohol, adultery, and 107.  The accused is then acquitted of the sexual assault (so no registration), is convicted on everything else, and then gets 18 months (a 50% “penalty” for turning down the deal)?   Can something like this not happen in courts-martial?

Here is how the media is casting the decisions.

Defendants who receive deficient or absurdly bad plea bargaining advice from their lawyers have had their constitutional rights violated and may have their sentences thrown out[.]

Huffington Post

The U.S. Supreme Court said for the first time that criminal defendants have a constitutional right to a competent lawyer when they are offered a chance to plead guilty in exchange for a reduced sentence.

Voting 5-4, the justices today sided with two men who say they received inadequate legal advice. One said his lawyer never told him of a plea offer, and the other said his attorney convinced him he couldn’t be convicted of intent to murder because the victim was shot below the waist.

Bloomberg News

A divided Supreme Court on Wednesday laid out new standards for criminal plea bargains, saying defense lawyers must do a competent job advising and informing their clients of prosecutors’ offers of less prison time for convictions and guilty pleas.

Justice Antonin Scalia, in a rare move, dissented aloud from the bench, calling the decisions "absurd" and warning courts would be flooded with appeals from criminals now claiming their plea bargain rights were violated, despite the fact that there is no legal right to a plea bargain.

Associated Press

Today the court will hear oral argument in Premo v. Moore, a case with potential ramifications for court-martials.  Courtesy of SCOTUSBlog here is a summary:

The Sixth Amendment secures a criminal defendant’s right to effective assistance of counsel.  Under Strickland v. Washington (1984), that right is violated when a lawyer’s performance falls below an objective standard of reasonableness, resulting in prejudice to the defendant.  Counsel’s representation is prejudicial when there is a reasonable probability that, but for the lawyer’s deficiencies, the proceeding would have ended differently.  Some defendants accept a plea bargain and then argue that their counsel was ineffective; in those cases, Hill v. Lockhart (1985) instructs a court to ask whether there is a reasonable probability that the defendant would have gone to trial had his counsel been constitutionally adequate.  When the Court hears argument tomorrow in Premo v. Moore (09-658), it will attempt to clarify how Strickland and Hill apply to plea deals that are made after counsel fails to suppress an unconstitutionally obtained confession.

For those who want to go right to the papers here is the SCOTUSBlog page.

In United States v. Darling, ACCA affirmed because appellant could not establish the prejudice prong of an IAC “claim.”  This is worth reading for those cases where the accused is found not guilty after a contested case, but during sentencing there is a concession that the accused was actually guilty.  For the defense counsel this case addresses the issues of how to do sentencing and try to get a lower sentence.

Appellate defense counsel initially raised one assignment of error to this court – that appellant’s conviction for uttering checks with intent to defraud was legally and factually insufficient. Upon our initial review, we specified the following issues:





So now what:

In United States v. Wean, 45 M.J. 461, 463 (C.A.A.F. 1997), our superior court stated that

in general, when an accused has consistently denied guilt, a functional defense counsel should not concede an accused’s guilt during sentencing, not only because this can serve to anger the panel members, but also because defense counsel may be able to argue for reconsideration of the findings before announcement of sentence.

The court comes to this conclusion or evaluation of the defense tactics on sentencing:

We are at a loss as to how this tactic could possibly “preserve what little credibility [CPT D] had left with the panel so they would fully consider [appellant’s] sentencing case.” On the contrary, we believe it is much more likely that this tactic damaged counsel’s credibility and, as in Wean, “was directly contrary to appellant’s insistence upon his innocence.” See Wean, 45 M.J. at 463. The law in this area is in a state of flux, however, so we will assume arguendo that CPT D’s performance was deficient and proceed to our analysis of prejudice.

ACCA ended up affirming the findings and sentence because they found no prejudice to the appellant.

These cases and issues are TOUGH to do.  On the one hand the client wants to litigate and that’s not a bad strategy even if it’s a litigate to mitigate case.  But the quandry comes on how best to try and do damage control on sentencing.  Here the client didn’t help.