We tend to focus on IAC issues to do with the merits, which on occasion includes a failure to investigate. Here is a CAAF reminder, to us andACCA.
No. 16-0468/AR. U.S. v. James H. Lee. CCA 20140309. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of the conflicting affidavits between Appellant and his trial defense counsel, we conclude that the Court of Criminal Appeals erred when it failed to order a factfindinghearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to determine the facts surrounding Appellant’s allegations that his trial defense counsel was ineffective in failing to identify and investigate potential mitigation evidence for the presentencing hearing. See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). Accordingly, it is ordered that said petition is hereby granted on the following issue:
WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS DEFENSE COUNSEL FAILED TO IDENTIFY AND INVESTIGATE POTENTIAL MITIGATION EVIDENCE.
The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further appellate inquiry of the granted issue. The Court of Criminal Appeals shall order a hearing pursuant to DuBay. Once the necessary information is obtained, the court will complete its Article 66(c),Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2012), review. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.