UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

J.R. MCFARLANE, M.C. HOLIFIELD, K.J. BRUBAKER

Appellate Military Judges

UNITED STATES OF AMERICA

v.

ANTHONY D. MCCALL 

SERGEANT (E-5), U.S. MARINE CORPS

NMCCA 201200461

SPECIAL COURT-MARTIAL

Sentence Adjudged: 12 December 2013.

Military Judge: Maj N.A. Martz, USMC.

Convening Authority: Commanding General, 2d Marine 

Division, Camp Lejeune, NC.

Staff Judge Advocate's Recommendation: Maj J.N. Nelson, 

USMC.

For Appellant: CAPT Tierney Carlos, JAGC, USN.

For Appellee: Capt Cory A. Carver, USMC.

28 October 2014

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OPINION OF THE COURT 

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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS 

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

On 27 June 2012, a military judge, sitting as a general 

court-martial, convicted the appellant, pursuant to his pleas, 

of 15 specifications of wrongful possession of a controlled 

substance in violation of Article 112a, Uniform Code of Military 

Justice, 10 U.S.C. § 912a. The military judge sentenced the 

appellant to confinement for two years, reduction to pay grade 

E-1, and a dishonorable discharge. The convening authority (CA) 

approved the adjudged sentence. Pursuant to a pretrial 
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agreement, the CA suspended all confinement in excess of 180 

days.

On 30 May 2013, a panel of this court set aside the 

findings and sentence, finding the appellant did not receive the 

benefit of a term in the pretrial agreement pertaining to 

forfeitures, and authorized a retrial. United States v. McCall, 

No. 201200461, 2013 CCA LEXIS 471 (N.M.Ct.Crim.App. 30 May

2013). 

At a rehearing on 12 December 2013, a military judge, 

sitting as a special court-martial, convicted the appellant, 

pursuant to his pleas, of the same 15 specifications of wrongful 

possession of a controlled substance in violation of Article 

112a, UCMJ. The military judge sentenced the appellant to 

confinement for 180 days, hard labor without confinement for 15 

days, reduction to pay grade E-1, and a bad-conduct discharge. 

Pursuant to a new pretrial agreement, the CA disapproved the 

hard labor without confinement, but approved the remainder of 

the sentence. 

The appellant now assigns two errors: (1) the appellant was 

denied effective assistance of counsel when his defense counsel 

failed to submit clemency matters; and (2) the bad-conduct 

discharge is inappropriately severe. 

After careful consideration of the record and the briefs of 

the parties, we find merit in the first assignment of error and 

grant relief in our decretal paragraph. Arts. 59(a) and 66(c), 

UCMJ. Because we resolve the first assignment of error in favor 

of the appellant, we decline to address the second. 

Background

In an unsworn declaration submitted under penalty of 

perjury, the appellant states that he and his trial defense 

counsel (TDC) discussed submitting clemency matters after the 

rehearing. The appellant asserts he “was very interested in 

trying to get the convening authority to disapprove the badconduct discharge” and was “under the impression” after this 

discussion that his TDC was going to submit matters consistent 

with this goal. Appellant’s Motion to Attach filed on 17 Jul 

2014, Appellant’s Declaration at 1. He specifically says he had 

been hired by Dish Network while on appellate leave, had been 

let go when recalled for the rehearing, but had hoped to be rehired. He wanted the CA to know before taking action that after 
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the rehearing, he attempted to get his job back at Dish Network, 

but was not rehired. 

In response to the appellant’s declaration, we ordered the 

Government to produce an affidavit from the appellant’s TDC. In 

it, the TDC states he reviewed the post-trial process with the 

appellant both before and after sentencing. He says: 

I told [the appellant] that we could submit matters in 

clemency, which would more or less consist of the 

matters raised in sentencing by the defense. I also 

relayed that throughout my interactions with the 

command, I had been told that the referral of the case 

to a Special rather than General Court-Martial was 

considered to be ample consideration for the 

mitigating and extenuating circumstances of the case, 

and that further reductions in punishment would not be 

accepted. Based on this, my opinion was that a 

submission of clemency would not alter the adjudged 

punishment. [The appellant] consented to my 

assessment and did not ask that matters in clemency 

nonetheless be submitted. 

Government Response to Court Order filed on 17 Sep 2014, TDC’s 

Affidavit of at 2. 

The TDC then went on to identify mistakes he believes he 

made “without commenting on whether these mistakes constitute 

ineffective assistance,” including: that he failed to have the 

appellant sign a written acknowledgement regarding a decision 

not to submit matters; that there was no downside to submitting 

matters and requesting clemency despite what stances the 

Government may have taken in pretrial negotiations; and that his 

judgment may have been wrong——that the additional fact that the 

appellant tried after the rehearing but failed to return to his 

former job may have had some impact on the CA. Id. at 2-3. 

Discussion

We review the effectiveness of counsel de novo. United 

States v. Wiley, 47 M.J. 158, 159 (C.A.A.F. 1997). An accused 

has a Sixth Amendment right to effective assistance of counsel, 

including in preparation and submission of post-trial matters. 

United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). TDC 

enjoys a strong presumption he rendered competent, professional 

assistance. Strickland v. Washington, 466 U.S. 668, 689 (1984); 

United States v. Lowe, 50 M.J. 654, 656 (N.M.Ct.Crim.App. 1999). 
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As a general rule, the appellant bears a heavy burden of 

overcoming this presumption and demonstrating (1) that his 

counsel’s performance was so deficient that he was not 

functioning as “counsel” within the meaning of the Sixth 

Amendment; and (2) that his counsel’s deficient performance 

prejudiced the appellant, that is, there is a reasonable 

probability that but for the unprofessional error, the outcome 

would have been different. Strickland, 466 U.S. at 687, 694. 

There is, however, a lower threshold to demonstrate

prejudice in claims of post-trial ineffective assistance of 

counsel. In those cases, appellate courts give appellants “the 

benefit of the doubt” and find material prejudice as long as 

“there is an error and the appellant makes some colorable 

showing of possible prejudice.” United States v. Lee, 52 M.J. 

51, 53 (C.A.A.F. 1999) (citations and internal quotation 

marksomitted). 

Courts have long held that submission of matters to the CA 

is an appellant’s “best chance for post-trial clemency.” United 

States v. Wheelus, 49 M.J. 283, 287 (C.A.A.F. 1998). Still, 

failure to submit clemency matters is not a per se violation of 

the appellant’s right to effective assistance of counsel. 

United States v. Cobe, 41 M.J. 654, 655 (N.M.Ct.Crim.App. 1994). 

Instead, we have required appellants to specify how counsel’s 

inaction contrasted with their wishes and what additional 

matters they would have submitted. United States v. Starling, 

58 M.J. 620, 623 (N.M.Ct.Crim.App. 2003). 

Here, the appellant has expressed that he desired his 

counsel to submit matters and believed he was going to do so. 

He also specifies what he would have submitted. We do not doubt 

the TDC’s word that he explained the likely futility of 

submitting matters and that the appellant “consented to [this] 

assessment” and nonetheless did not expressly ask that matters 

be submitted. We note, however, that the TDC, in his carefully 

worded affidavit, falls short of stating that the appellant 

affirmatively and knowingly waived his right to submit matters. 

We also agree with the TDC’s candid self-assessment that he 

should have obtained such a waiver in writing. A written 

acknowledgement would have clearly communicated to the appellant 

that he was giving up an important right and documented that 

decision. Under the circumstances of this case, we decline to 

find the appellant waived his right to submit matters and find 

error under the first prong of the Strickland test.
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We further find prejudice under the forgiving Lee standard. 

Without speculating how the CA might have exercised his highly 

discretionary power to grant clemency had the appellant 

submitted the matters he desired, we give the “benefit of the 

doubt” to the appellant and find he has made “some colorable 

showing of possible prejudice.” Lee, 52 M.J. at 53

Conclusion

The CA’s action dated 6 March 2014 is set aside. The 

record of trial is returned to the Judge Advocate General of the 

Navy for remand to an appropriate CA for new post-trial 

processing consistent with this opinion.

 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court