NMCCA decides Denedo

NMCCA has it’s opinion in United States v. Denedo, the petition for error coram nobis that his been winding its way through the courts, include the United States Supreme Court.

Essentially the court finds that even if there were IAC, petitioner has not established prejudice.

Back to CAAF?

As it stands, the case represents a good discussion of defense counsels obligations regarding advice to the client regarding collateral consequences.  I find this interesting in light of CAAF’s apparent mandate from United States v. Miller to discuss sex offender registration issues with the client.  Except for Miller, I don’t see that the law does not require a defense counsel to discuss collateral consequences with the client.  However, if she does then she’s got to get it right.

How can Denedo be squared with Miller?

There is no need to look further than the first prong of the Polk analysis above to determine that Appellant did not receive ineffective assistance of trial defense counsel.  Although the requirement of registering as a sex offender is a serious consequence of a conviction, trial defense counsel’s failure to advise Appellant of this consequence does not rise to the level of ineffective assistance of counsel.

United States v. Miller, 63 M.J. 452, 457 (C.A.A.F. 2006).

However, later the court imposes this requirement of defense counsel and the military judge.

In light of the federal statute, DoD Instr. 1325.7, and state statutes requiring sex offender registration, we conclude that a prospective rule is appropriate to address the importance of trial defense counsel explaining the sex offender registration requirement to an accused. For all cases tried later than ninety days after the date of this opinion, trial defense counsel should inform an accused prior to trial as to any charged offense listed on the DoD Instr. 1325.7 Enclosure 27: Listing Of Offenses Requiring Sex Offender Processing.  Trial defense counsel should also state on the record of the court-martial that counsel has complied with this advice requirement. While failure to so advise an accused is not per se ineffective assistance of counsel, it will be one circumstance this Court will carefully consider in evaluating allegations of ineffective assistance of counsel.

Miller, 63 M.J. at 459.

I have commented some time ago about the number of foreign nationals enlisted into the military, are not the consequences of a conviction of strong importance to them if it entails the possibility of removal?  Will CAAF impose a new requirement in such a case, in same way this was done in Miller?  If not, why not?

Department of Homeland Security (DHS) Secretary Janet Napolitano commemorated the milestone of more than 52,000 American military service members becoming U.S. citizens since Sept. 11, 2001.

Homeland Security release, 10 September 2009, Speech of Secretary Gates, Fort Bragg, 23 October 2008,

Distinguished guests, and the families of our new citizens, thank you all for coming. It is a pleasure to be at Fort Bragg. And what an honor to be able to welcome into citizenship 41 men and women who have served and sacrificed for their country even before it officially was their country.

and prior posts here, here, and here.

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