## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before COOK, GALLAGHER, and HAIGHT Appellate Military Judges

UNITED STATES, Appellee

v. Specialist CHAR LES A. FOXX United States Army, Appellant

ARMY 20110272

Headquarters, Fort Bliss

David H. Roberts on and Robert Bowe rs, Military Judges Colonel Francis P. King, Staff Judge Advocate

For Appellant: Colone l Patricia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D. Ba shore, JA (on brief).

For Appellee: Major Robert A. Rodrigue s, JA; Major Catherine L. Brantley, JA; Captain Jessica J. Morale s, JA (on brief).

29 May 2013

--------------------------------- OPINION OF THE COURT

---------------------------------

COOK, Senior Judge:

A military judge sitting as a special court-martial convicted appellant, pursuant to his pleas, of bigamy in violation of Article 1 34, Uniform Code of Military Justice, 10 U.S.C. § 934 (2006) [hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct di scharge, confinement for two months, forfeiture of $900.00 pay per month for two months, and reduction to the grade of E-1. The convening authority (CA) ap proved the adjudged sentence.

Appellant raises two assignments of erro r to this court, bo th of which merit

discussion but no relief. 1

1 Appellant also personally rais es several issues pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A . 1982), none of which merit discussion or relief.FOXX—ARMY 20110272

2 BACKGROUND

The instant case under revi ew is a result of appellan t’s second court-martial in 2011. Appellant’s first court-martial took place on 27 Janu ary 2011 and Captain (CPT) TS 2 served as appellant’s tr ial defense counsel. Appe llant, then a Sergeant First Class (SFC), was conv icted of wrongfully and without authority wearing numerous badges and tabs on multiple occasi ons. His approved sentence included

confinement for four months and reduction to the grade of E-4. Appellant, on 7 January 2011, while awaiti ng trial on this fi rst set of charges an d legally married to Ms. WF, married Ms. WO. This second marriage led to a ppellant being courtmartialed for bigamy on 5 April 2011.

Appellant’s first assignmen t of error, in general, alleges his primary trial defense counsel, the sa me CPT TS as at the first trial, provided ineffective

assistance of counsel becaus e he: (1) failed to conduct a proper i nvestigation and did not present “vital” evidence during senten cing; and (2) “allowed ” appellant, who had sixteen years of service, to request a bad-condu ct discharge during sentencing. In his second assignment of erro r, appellant alleges he was denied effectiv e post-trial

assistance of counsel because the same CPT TS failed to subm it two letters as part of his request for clemency to the convening authority.

LAW AND DISCUSSION

Pretrial and Trial Ineffective As sistance of Coun sel Allegations

As a preliminary matter, we note neit her appellant nor appellate counsel is challenging appellant ’s conviction for bigamy. Ra ther, appellant and appellate counsel allege appellant ’s sentence, particularly the ad judged bad-conduct discharge,

was a direct result of the ineffective assistance of counsel provided by CPT TS. Ultimately, appellant and appellate counsel request this court se t aside the sentence and order a sentence rehearing.

Regarding the first assignment of error, we begi n by reviewing the allegation that CPT TS provided ineffective assistan ce of counsel by “al lowing” appellant to request a bad-conduc t discharge. In his post-trial a ffidavit, appellant claims CPT TS encouraged him to request a bad-conduct di scharge at trial; th at CPT TS failed to explain he was only facing tw elve months of confinement; and that in response to appellant expressing “concern for losing my career,” CPT TS told him that appellant

could ask for a bad-conduct di scharge at trial and then, if he received a bad-conduct discharge, CPT TS would as sist appellant in upgrading his discharge, joining the

2 Captain TS has subsequent ly been promoted to Major and signed his post-trial affidavit as a Major. For simplicity purposes, we will continue to refer to now Major TS as CPT TS.FOXX—ARMY 20110272

3 National Guard, and coming onto active duty, from where appellant could ultimately

retire.

In contrast, CPT TS, in his post-tri al affidavit, stat es he recommended appellant “fight for retention” at the second court-martial; that he in fact advised appellant the maximum confinement he was fa cing was only twelve months; and that he never advised appellant he could get his bad-cond uct discharge upgraded and subsequently re-enter and then retire fr om the Army. Captai n TS further stated, contrary to his recommendation , appellant’s “primary goal from the time he entered

confinement” as a result of his first cour t-martial “was to mini mize his confinement, with little regard to any seco ndary effect on his future in the Army or potential for

future retirement.”

In evaluating ineffective assistance of counsel allegati ons, we apply the

standard se t forth in Strickland v. Washington , 466 U.S. 668, 68 7 (1984). This standard requires appellant to demonstrate: (1) that counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice. Id . at 687. Under the first part of this test, appellant must s how “counsel made erro rs so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Id . The relevant issue is whether co unsel’s conduct failed to meet an objective standard of reasonableness or whether it was outsid e the “wide range of professionally compet ent assistance.” Id . at 690. “On appell ate review, there is a ‘strong presumption’ that counsel was competent.” United States v. Grigoruk , 56 M.J. 304, 306-307 (C .A.A.F. 2001) (citing Strickland , 466 U.S. at 689 ). The second part of this test is met by showing a “reasonable probabi lity that but for counsel’s unprofessional errors, the resu lt of the proceeding would have been different.” Strickland, 466 U.S. at 6 94.

Because appellant and couns el have filed post -trial affidavits that to some extent conflict, pursuant to United States v. Ginn , 47 M.J. 236 (C.A .A.F. 1997), we have analyzed whether a post-trial evidentia ry hearing is required. After applying

the fourth Ginn principle, we find such a hearin g is not required in this case. Although appellant’s affidavit is factually adequate on its face, in accordance with

the fourth Ginn principle, “the appellate fili ngs and the record as a whole ‘compellingly demonstrate’ the improbabilit y of those facts” an d therefore we may

“discount those factual assertions and decide the legal issue.” Ginn , 47 M.J. at

238.”

At the outset, the record of trial “co mpellingly demonstrates” appellant was

aware the maximum sentence to confinem ent was twelve months. Following the providency inquiry, the trial counsel, on the record, stated the maximum confinement appellant faced as a result of his guilty plea wa s twelve months. Appellant’s defense counsel expressly agreed with the stated maximum punishment and the military judge then informed appe llant the maximum confinement he faced at trial was twelve months. Ap pellant responded he understo od the military judge andFOXX—ARMY 20110272

4 that he had no questions about the maximum punishment to confinement being

twelve months.

The record of trial also unequivocally cont radicts appellant’s assertion that CPT TS encouraged appellant to request a bad-conduct discharge despite having sixteen years of military se rvice. To the contrary, the record “compellingly

demonstrates” the decision to argue for such a discha rge was appellant’s alone; appellant’s primary concern at sentencing was to avoid confin ement; and CPT TS fully advised appellant of the ramifi cations of a punitive discharge.

First, during the go vernment’s closing argument at sentencing, the trial counsel specifically requested that appe llant receive at leas t seven months of confinement if the military judge did not adjudge a bad-conduct discharge. It was only after this request that appellant sought the attention of his defense counsel and requested he argue for a bad-conduct discharge in lieu of confinement. Specifically, the record of trial contains the following:

Military Judge (MJ): Captain [TS], are you prepared to present argument on be half of the accused?

CPT TS: Just one moment, Your Honor. I am conferring with my client.

MJ: Sure.

[Pause]

CPT TS: Ready, Your Honor.

[The accused and his counse l continued to confer.]

CPT TS: There is a matter we need to take up, Your

Honor.

MJ: Captain [TS], when you say, “We,” who do you

mean?

CPT TS: The court, Your Honor.

MJ: The court. Okay.

[Pause]FOXX—ARMY 20110272

5 CPT TS: My client has decided that he would like for me to argue for a bad-conduct disc harge, Your Honor. We are marking the memorandum as an Appellate Exhibit. (App. Ex. V).

Second, the reco rd reflects, in order to en sure appellant understood the meaning of a punitive discharg e and that he intended to make such a request, the military judge confir med with appellant that: appellan t was personally requesting a bad-conduct discharge; appellant was aware of the impact this discharge would have on his benefits; appellant’s express desire wa s to be discha rged from th e Army with a bad-conduct discharge; and appellant consented to CPT TS arguing for a badconduct discharge. Most notably, appella nt and the military judge engage d in the following dialogue:

MJ: Do you unde rstand a bad-conduct discharge

terminates your military status and will deprive you of any retirement benefits, in cluding retired pay?

ACC: Yes, Your Honor, I do.

MJ: Have you thoroughly discus sed your desire s with your

defense counsel?

ACC: Yes, I have, Your Honor.

MJ: Do you believe you fully understand the ramifications of a bad-conduct discharge?

ACC: Yes, Your Honor, I do.

MJ: Are you aware that if y ou do not receive a punitive discharge from this court-martial, th en your chain of command may very we ll try to ad ministratively separate you from the service?

ACC: Yes, Your Honor, I do.

MJ: Are you also aware that an administrative separation

is considered much less severe than a discharge from a court-martial and will not stigmatize you with the devastating and long-term e ffects of a discharge from a

court-martial?

ACC: Yes, Your Honor, I do.FOXX—ARMY 20110272

6 MJ: Specialist Foxx, knowing all that I and your defense counsel have explaine d to you, is it your expres s desire to be discharged from the se rvice with a bad-conduct discharge?

ACC: Yes, Your Honor.

Third, the record then reflects the court-ma rtial was recessed for approximately fourteen minutes. When th e military judge called the court back to order, he reviewed Appellat e Exhibit (App. Ex.) V with appellant. This appellate

exhibit is a memorandum with a subject line entitled “Sentencing Argument for Punitive Discharg e” and is dated 5 Apri l 2011, the date of appellant’s second courtmartial. The military judge, on the record, then established: appellant personally signed App. Ex. V; appellan t reviewed App. Ex. V with CPT TS; appellant reviewed paragraph 9 of App. Ex. V wherein appellant affi rmatively declared that he consented to “my defense counsel stating in argument that I desire to be discharged with a bad-conduct discharge if it will prec lude an extended peri od of confinement”; and appellant affirmativel y stated he wanted CPT TS “to argue for a punitive discharge in lieu of lengthy conf inement.” 3 Therefore, in reviewing the record of trial, it is clear appellant desired to seek a bad-conduct discharge in an effort to avoid confinement, and he was thoroughly aware of the consequences of such a
request.

Lastly, in addition to what transpired at th e guilty plea and during the presentencing proceedings, the appellate filings reveal appe llant previously submitted a request to be administratively separated in lieu of court-martial. Following his first court-ma rtial, appellant submitted a voluntary request for discharge. In this request, one that appellant personally signed, appellant acknowledged:

I understand that if my reques t for discharge is accepted, I may be discharged under conditions other than Honorable. I reques t a General Discharge. I have been advised and understand the poss ible effects of an Under Other Than Honorable Discharge . . . and that as a result

of the issuance of such a disc harge, I will be deprived of many or all Army benefits, th at I may be ineligible for

3 Appellant’s admissions an d assertions during the pres entencing phase are of the

same nature that our superior court, under the fifth Ginn principle, has held may be examined in a guilty plea inquiry to disc ount appellant’s asse rtions on appeal. See

Ginn , 47 M.J. at 248 (when an allegation of ineffectiv e representation contradicts admissions made by appellant during a guilty pl ea inquiry, we ma y decide the issue on the basis of the ap pellate file, including admission s by the appellant during the guilty plea and his expression of satisfaction with counsel).FOXX—ARMY 20110272

7 many or all benefits admini stered by the Veterans Administration, and that I may be deprived of my rights

and benefits as a veteran under Federal and State law . . . .

I further understand that there is neither automatic upgrading nor review by any Government ag ency of a less than honorable discharge and that I must apply to the Army Discharge Review Boar d or the Army Board of Correction of Military Record s if I wish re view of my discharge. I realize that the act of consideration by either

board does not imply that my discharg e will be upgraded.

(Gov. App. Ex. 1, Encl. 1).

On 8 March 2011, appellant submitted an additi onal memorandum in support of his request fo r administrative discharge, wherein he requested the convening authority discharge him in lieu of his se cond court-martial. In his personal memorandum, appellant reques ted the pending ch arge of bigamy be dismissed in exchange for his discharge. In general, appellant agr eed to accept the first courtmartial conviction, along with the adjudg ed four months of confinement, and administrative discharge from the service, in exchange for not fa cing a second courtmartial on the bigamy charge. In this memorandum appellant tellin gly stated:

5. Approving this discharge it [sic] will sa ve the Army

the time and resources nece ssary to try the case. Approving this request will also terminate my opportunity to reach 20 years of service and retire, causing me to lose

tens of thousands of do llars in benefits.

(Gov. App. Ex. 1, Encl. 1).

Therefore, before appellant’s second court-martial even began, appellant

exhibited a belief that his Army career was irreversibly damaged and demonstrated a clear desire to be separated from the service. While the request for an administrative discharge in lieu of court-martial does not definitively disprove appellant’s allegations, it does indicate a willingness to barter his military

retirement to avoid confinement. Acco rdingly, appellant’s request to be administratively discharged prior to his second court-ma rtial belies his subsequent allegation that CPT TS was the driving force behind the requ est for a punitive discharge.

In assessing the record of trial and the appellate filings, apart from the conflicting affidavits, it is clear appellant desired to request a bad-conduct discharge

in an effort to avoid confinement and he was satisfied with his counsel’s advice on the matter. Thus, although appe llant’s affidavit is factuall y adequate on its face, in

accordance with the fourth Ginn principle, “the appellate filings and the record as aFOXX—ARMY 20110272

8 whole ‘compellingly demonstrat e’ the improbability of thos e facts, [and this] court may discount those factual asse rtions and decide the legal issue” without a post-trial evidentiary hearing. Id

. at 248; see also United States v. Fagan , 59 M.J. 238, 247 (C.A.A.F. 2004). Spec ifically, appellant has ultima tely failed to show “that counsel’s performance was deficient, and that this deficiency resulted in prejudice”

because the record cl early demonstrates ap pellant was advised of the ramifications

of a bad-conduct disc harge and the decision to requ est such a disc harge was his

alone. Strickland , 466 U.S. at 687.

We now turn our attentio n to appellant’s allega tion that CPT TS was

ineffective because he failed to conduct a proper investigation and present vital

evidence to the milita ry judge. As alle ged by appellant, this investigation would have consisted of interviewing two witnes ses for sentencing purposes and the vital

evidence would have been th e testimony of these two witn esses. Appe llant, in his post-trial affidavit, assert s he “spoke with [CPT TS] on numerous occasions about calling two witnesse s on my behalf - [Lieutenant Colonel (LTC) PG] and [Master Sergeant (MSG) SH].” Appell ant further states he “never agreed with not calling any live witnesses on my behalf.” In response, Captain TS, in his post-trial affidavit, asserts that he made a tactical decision no t to call any witnesses on appellant’s behalf and, inst ead, focused on appellant’s re lationship with his spouse during presentencing.

As an initial matter, having review ed the record and the affidavits, we conclude, consistent with the principles announced in Ginn , that we can resolve appellant’s claim without directing a post-tri al evidentiary hearing on this specific issue. The central point of contention by a ppellant is that he provided the names of prospective witnesses to hi s counsel, and yet CPT TS di d not present them. These facts are conceded by CPT TS. Pursuant to CPT TS’s affidavit, prior to appellant’s first court-martial, appellant provided CP T TS with a list of potential sentencing witnesses. Captain TS and his co-counsel contacted and interviewed these witnesses (“more than six”), to include the same LTC PG and MSG SH. However, CPT TS goes on to explain that he made a tact ical decision not to call the witnesses on appellant’s behalf at appell ant’s first court-martial, and this is not refuted by appellant.

In explaining his decision, CPT TS st ates, except for MSG SH, none of these

witnesses had favorable testim ony to offer on appellant’s be half. Captain TS further states, in his affidav it, that “[a] consiste nt theme among them wa s that [appellant’s] duty performance was average or substandar d and that [appellant ] had accountability issues (e.g., frequent absences during duty hours without explan ation or unverified excuses).” Appellant has offered nothing to contradict CPT TS ’s representations concerning LTC PG, specifica lly, that LTC PG was interv iewed to possibly testify on sentencing at appe llant’s first court-martial and th at LTC PG was not called as a witness in either of appell ant’s courts-martial because he did not have favorable testimony to offer. Regard ing LTC PG, appellan t merely states that if CPT TS hadFOXX—ARMY 20110272

9 informed appellant th at LTC PG was “unwilling to te stify,” that appellant would have “supplemented my witne ss list with other supervisor s with whom I have worked during my sixteen years of Army service.” Thus, appellant has failed to meet his

burden to show CPT TS was deficient by not calling LTC PG as a witness.

Strickland , 446 U.S. at 687.

We next address whether CPT TS was in effective in not properly investigating the testimony MSG SH had to offer or in not calling MSG SH to testify on sentencing at appellant’s second court-martial.

First, appellant, CPT TS , and MSG SH, per their affi davits, agree CPT TS did interview MSG SH prior to appellant’s first court-martial. In his affidavit, MSG SH states he was contacted by CPT TS and interviewed as a potential witn ess regarding appellant’s first court-martial. Master Serg eant SH characterizes the conversation as lasting “four minute[s]” and that “for some reason . . . the conversation did not lead to me being called as a witn ess even though I wa s willing to testif y on [appellant’s] behalf.” Master Sergeant SH further states that, even wi th knowledge of appellant’s two convictions, he would have testifie d on appellant’s behalf at both trials. The

remainder of MSG SH’s affidavit describes appellant as “an ou tstanding NCO” and provides some specific examples of areas in which he be lieved appellant performed

well. Pursuant to his affidavit, CPT TS acknowledg es, without going into detail, MSG SH “did have positive th ings to say about” appellant. Therefore, in regards to

whether CPT TS was ineffective in not properly investigatin g whether MSG SH possessed favorable testimony, we, again, fi nd appellant has fa iled to meet his

burden to show that counsel’s performanc e was deficient. Strickland , 446 U.S. at

687.

The final prong left to an alyze is, therefore, whethe r CPT TS was ineffective by not calling MSG SH to test ify at appellant’s second tr ial during sentencing. “In weighing such matters, we must give de ference to counsel’s tactical judgment and

not substitute our view with the benefit of hindsight.” United States v. Stephenson, 33 M.J. 79, 82 (C.M .A. 1991) (quoting Strickland , 466 U.S. at 6 89). Moreover, “heavy deference is given to trial defe nse counsel’s judgmen ts, and this Court presumes counsel’s c onduct falls within the wide rang e of reasonable professional

assistance.” United States v. Morgan , 37 M.J. 407, 409 (C .M.A. 1993) (citing

Strickland , 466 U.S. at 689). “[S]trategic choi ces made after thor ough investigation of law and facts relevant to plausible options are virtually unchallengeable.”

Strickland , 466 U.S. at 690.

As contained in his affidavit, CPT TS ma de the tactical deci sion not to call

MSG SH at the court-martial so as to keep the focus on appellant’s troubled relationship with his first wi fe and minimize the focus on appellant’s credibility. Given appellant’s previous court-martial for the unauthorized wear of badges and tabs, combined with appellan t’s second court-martial for bigamy, any good-character or good-soldier witness called on appellant’s behalf would have been susceptible toFOXX—ARMY 20110272

10 cross-examination focu sing on appellant’s lack of integrity, regardless of the positive information they had to offer. It is clear CP T TS engaged in such an analysis regardless of appellant’s input, and his decision refl ects a tactically sound analysis. See United States v. Mazza , 67 M.J. 470, 475 (C.A.A .F. 2009) (failure to call a witness that could both hurt and help appellant’s case is a reasonable tactical

decision which does not amount to ineffective assi stance of counsel).

Finally, in his post-trial affidavit, appellant acknow ledges CPT TS informed

him of the interview with MSG SH and the likeliho od that MSG SH would not be

called as a witness at tria l. When appellant asked w hy, CPT TS told him MSG SH

would not be needed. In ad dition, appellant has failed to acknowledge MSG SH’s absence as a sentencing witnes s at his first court-martial. This decision not to call MSG SH as a witness at appe llant’s first court-martial not only suppo rts CPT TS’s explanation for not calling MS G SH at the second court-ma rtial but also contradicts appellant’s assertion that he did not agree “with not cal ling any witnesses” at his second court-martial. Specifically, to the extent CPT TS employed this same approach at both courts-martial, appellant offers no explanatio n for why this trial strategy caught him unaware. As to this portion of appellant’s assignment of error, in applying the fi rst part of the Strickland test, appellant has failed to demonstrate his counsel’s performa nce was deficient. Strickland , 446 U.S. at 687.

However, assuming arguendo CPT TS pr ovided deficient performance in failing to call MS G SH as a witness, appellant must then establish such a deficiency resulted in prejudice. Id . at 687. To establish prejudice, appellant must demonstrate “a reasonable probability that, but for counsel's [deficient performance] th e result of the proceeding would ha ve been different.” Id . at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id . Assuming

MSG SH testified consistent with his post-trial affidavi t, his testimony would have been limited to good -soldier evidence and easily rebutted by appellant’s two convictions. Furthermore, appellant recei ved only two months confinement despite facing a maximum of twelve m onths. Finally, as already captured in this opinion, appellant requested a punitive discharge dur ing sentencing. Agai nst this backdrop, we find MSG SH’s testimony w ould have had no impact on appellant’s sentence and therefore appellant has failed to establish prejudice in this case. See Id . at 687.

Post-trial Ineffective Assi stance of Counsel Allegation

In his second assignm ent of error, appellant alle ges he was denied post-trial

effective assistance of counsel when his tr ial defense counsel fa iled to include two letters in the post-trial matt ers submitted to th e CA pursuant to Rules for CourtsMartial [hereinafter R.C.M.] 1 105 and 1106. In support of this allegation, appellant offers only his post-tria l affidavit. In his affidavit, appellant states CPT TS failed to submit two letters appellant had given to CPT TS to include in his post-trial clemency matters. One of these letters was purportedly authored by Ms. WO, the woman appellant married while still married to Ms. WF. It is difficult to imagineFOXX—ARMY 20110272

11 how a letter from Ms. WO, given appellant ’s bigamy conviction, could have aided appellant’s request for clemency, and appe llant adds to the mystery by neither providing a copy of this letter nor describing the contents of this letter in his affidavit. Appellant mere ly avers that CPT TS “rec eived [the le tter] through email.”

Appellant further states he wanted a letter he personal ly wrote included in his clemency request. Again, appellant fails to provide a copy of the letter to this court,

and he does not describe the contents of the letter in his affidavit. Appellant merely alleges he “emailed [this] lett er to [CPT TS]” and “I ca nnot access the email account at this time to retrieve our corresponde nce.” Appellant furt her states CPT TS

“edited the letter and sent it back to me” and “assured me that both le tters would be submitted to the [CA].” Finally, appellant alleges CPT TS merely submitted a “short memorandum” authored by CPT TS and that appellant “n ever saw this memorandum prior to submissi on nor did I approve of its submission wit hout my letters being

attached.”

Once again, because appellant and counse l have filed post-tria l affidavits, that to some extent conflict, pursuant to Ginn , we analyze whether a post-trial evidentiary hearing is required. We conclude it is not.

Based on the second and fourth Ginn principles, we reject appellant’s allegation that CPT TS was ineffective becaus e he failed to subm it a letter from Ms. WO, the very woman appellan t married while s till married to Ms. WF. We will discuss the applicab ility of the fourth Ginn principle below, bu t in regards to the

second Ginn principle, based on appellant’s failure to provide information concerning the content of Ms . WO’s letter or how this letter would have possibly persuaded the CA to grant appellant clemency, we find this allegation “consists . . . of merely speculative or co nclusory observation s” and reject it on that basis. Ginn

, 47 M.J. at 248.

Additionally, applying the fourth Ginn principle and assuming appellant’s affidavit is factually adequate, “the appe llate filings and the record as a whole ‘compellingly demonstr ate’ the improbability” he submitted these letters to CPT TS,

and we are able to “discount those factua l assertions and decide the legal issue” without a post-trial ev identiary hearing. Ginn

, at 47 M.J. at 24 8. The government

moved to attach to the re cord Government Appellate Exhibit (Gov. App. Ex.) 1,

which included emails betwee n appellant and CPT TS. This motion was granted without objection. These emails paint a fairly comp elling picture of a defense counsel repeatedly trying to communicate and coordinate with his client. (Gov. App. Ex. 1, Encls. 2-6). Appellant offered nothing in response to CPT TS’s appellate filings and merely alleges CPT TS was ineffect ive by not submitting the

two letters to the CA. Moreov er, appellant has neither prov ided copies of the letters

to this court and nor describe d the alleged content of the letters in his affidavit. See

United States v. Clemente , 51 M.J. 547, 551 (Army Ct. Crim. App. 1999) (anFOXX—ARMY 20110272

12 appellant has the responsibility to bring to an appellate co urt's attention facts rather than mere speculation and re lief cannot be gr anted, under Strickland , based on mere speculation).

In his affidavit, CPT TS denies appe llant provided him any letters to be

submitted to the CA with his post-trial ma tters. The record, with its appellate filings, now documents CPT TS’s enga gement with appell ant regarding the submission of appellant’s po st-trial matters. In Enclosure 6, an email dated 14 September 2011 and addressed to appellant, CPT TS stated that a draft memorandum about which he had spoken “on the p hone” with appellant was attached for appellant’s review. This memorandum, except for appellant’s endorsement and the date, mirrors the memo randum CPT TS ultim ately submitted on ap pellant’s behalf. In the email, CPT TS further advised appell ant they had about th ree weeks to submit clemency matters.

In Enclosure 5, an email dated 28 Se ptember 2011 and addres sed to appellant, CPT TS notified appellant that clemency matters were due on 7 October 2011 and he requested to discuss clemency matters with appellant.

In Enclosure 4, an email dated 6 October 2011 and al so addressed to appellant, CPT TS notified appellant that: clemency matters were due the next day;

CPT TS would submit the memorandum he had previously sent appellant; CPT TS had not received any documen ts from appellant; and that if there was anything appellant wanted to submit, he needed to provide it to CPT TS as soon as possible.

In Enclosure 3, an email dated 7 Oc tober 2011 and addres sed to appellant, CPT TS notified appellan t he was submitting the attached memorandum as appellant’s clemency request later that day and appellant should let him know if he wanted to make any changes or if appellan t wanted to submit any other documents.

The memorandum attached to the email is a copy of th e one CPT TS submitted on appellant’s behalf in re gards to clemency.

Enclosure 2 contains three emails. The first email is the same email found at

Enclosure 3. The second emai l is dated 7 October 2011 an d sent by appellant to CPT TS in response to CPT TS’s 7 Oc tober 2011 email. The email reads:

Sir, I apologize for the lateness [sic]. I just got home last evening after a back procedure. I will look at it now. (Matter a fact [sic], derivi ng [sic] from my ongoing back

issues from th e Military operational exercise of which cause [sic] my back injury du e to a military parachuting injury.) Woul d this be a positive point to make [?] Especially [sic] I have been on meds (mood altering and pain killing narcutic s [sic] since 2003).FOXX—ARMY 20110272

13 The third email is dated 8 October 2011 and is sent by CPT TS in response to appellant’s email. In this email, CPT TS stated the clemency matters had already been submitted, bu t if appellant wanted “to submit a personal letter or anything else for the CG [commanding genera l] to consider” he should send them to CPT TS and

he would do his best to a dd those matters to the clemen cy request. Captain TS further informed appella nt that it woul d be at least a week be fore the CA took action

in his case. The CA took ac tion on appellant’s case on 14 Oct ober 2011.

In addition, pursuant to the written post-trial and appellate righ ts guidance provided to appellant (App. Ex . III) and the oral guidance provided to appellant by the military judge at tr ial, appellant was clearly on notice of his responsibility to stay in touch with CPT TS concerning the submission of clemency matters. Further, in acknowledging his respon sibility to stay in contac t with CPT TS, appellant authorized CPT TS, both on the record and in writing, to submit matters on appellant’s behalf as CPT TS deemed appropriate. Therefor e, appellant is limited to alleging the submission by CPT TS was deficient.

Finally, we note that al though appellate de fense counsel requ ested additional time to file a brief in repl y to appellee’s brief, a request that this court granted, appellate defense counsel, to date, has not offered anything in response to the government’s brief, CPT TS’s affidavit, or the appellate documents and emails. See

Clemente , 51 M.J. at 552 (appellant failed in his burden to a ffirmatively prove deficient performance where he failed to advise the court of “wha t favorable evidence he was deprived ” of giving to the conve ning authority).

In sum, while appellant’s affidavit raises fa cts involving ineffective assistance of counsel during the post-trial stage of his court-martial, the record as a whole and the appellate filings “compellingly demonstrat e” the improbability of those facts.

Ginn , 47 M.J. at 248. Thus, under Strickland , this court disc ounts appellant’s

factual assertions. Appellant has failed to demonstr ate that counse l’s performance was deficient during the post-trial portion of his co urt-martial. See Strickland , 466 M.J. at 687; Ginn , 47 M.J. at 248.

CONCLUSION

On consideration of the entire recor d, the submissions of the parties, and those matters personally rais ed by appellant pursuant to Grostefon , 12 M.J. at 431, we hold the findings of guilty and the sentence as approved by the convening authority correct in law and fact.

Accordingly, the fi ndings of guilty and the sentence are AFFIRMED.FOXX—ARMY 20110272

14 Judge GALLAGHER and Judg e HAIGHT co ncur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: