Court-Martial Trial Practice Blog
No. 10-0649/AF. U.S. v. Dean E. THOMPSON. CCA 37380. Review granted on the following issue:
WHETHER APPELLANT RECEIVED POST-TRIAL INEFFECTIVE ASSISTANCE OF COUNSEL AND APPELLANT HAS MADE A COLORABLE SHOWING OF POSSIBLE PREJUDICE.
The decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to an appropriate convening authority to order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to make findings of fact and conclusions of law related to the granted issue. At the conclusion of the DuBay hearing, the record will be transmitted to the Court of Criminal Appeals for further review under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866 (2006). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2006), shall apply.
Here’s the prior history from AFCCA’s decision on remand.
In a published decision, issued 3 June 2010, [AFCCA} affirmed the approved findings and sentence. United States v. Thompson, 69 M.J. 516 (A.F. Ct. Crim. App.), rev’d, 69 M.J. 456 (C.A.A.F. 2010) (mem.).[1.][2.] By decision issued 20 December 2010, the United States Court of Appeals for the Armed Forces (C.A.A.F.) found that we failed to apply the “colorable showing of possible prejudice” standard when determining whether the appellant received ineffective assistance of counsel. Thompson, 69 M.J. at 456. As a result, our superior court vacated our decision and remanded the case to this Court for further review. Finding no material prejudice to the appellant, we affirm the findings and the sentence.
The case involves the issue or doctrine of “cumulative error.”
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[1.] No. 10-0649/AF. U.S. v. Dean E. THOMPSON. CCA 37380. On further consideration of the granted issue (__ M.J. __, Daily Journal of October 6, 2010) and the briefs of the parties, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is vacated, and the case is hereby remanded to that court for further review, applying the “colorable showing of possible prejudice” standard in United States v. Lee, 52 M.J. 51, 53 (C.A.A.F. 1999), in light ofStrickland v. Washington, 466 U.S. 668 (1984).
[2.] No. 10-0649/AF. U.S. v. Dean E. THOMPSON. CCA 37380. Review granted on the following issue:
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY APPLYING AN INCORRECT STANDARD OF REVIEW FOR PREJUDICE ARISING FROM POST-TRIAL INEFFECTIVE ASSISTANCE OF COUNSEL.