This opinion is subject to administrative correction before final disposition.

Before 

MONAHAN, STEPHENS, and HACKEL

Appellate Military Judges

_________________________

UNITED STATES

Appellee

v.

Jose TEJEDA

Culinary Specialist First Class (E-6), U.S. Navy

Appellant

No. 202100176

Decided: 31 May 2022

Appeal from the United States Navy-Marine Corps Trial Judiciary 

Military Judge:

Angela J. Tang

Sentence adjudged 24 February 2021 by a general court-martial convened at 

Naval District Washington, District of Columbia, consisting of a military judge 

sitting alone. Sentence in the Entry of Judgment: confinement for 36 years and 

a dishonorable discharge.1

For Appellant:

Lieutenant Christopher B. Dempsey, JAGC, USN

For Appellee: 

Lieutenant Megan E. Martino, JAGC, USN 

 

1 Appellant was credited with having served 525 days of pretrial confinement.
United States v. Tejeda, NMCCA No. 202100176

Opinion of the Court

2

Judge HACKEL delivered the opinion of the Court, in which Chief 

Judge MONAHAN and Senior Judge STEPHENS joined.

_________________________

This opinion does not serve as binding precedent, but 

may be cited as persuasive authority under 

NMCCA Rule of Appellate Procedure 30.2.

_________________________

HACKEL, Judge:

Appellant was convicted, pursuant to his pleas, of two specifications of sexual assault and one specification each of rape of a child and production of child 

pornography, in violation of Articles 120, 120b, and 134, Uniform Code of Military Justice [UCMJ].2

Appellant’s sole assignment of error is that he received ineffective assistance of counsel when his trial defense counsel [TDC] failed to present evidence 

in mitigation of Appellant’s allegedly harsh pretrial confinement conditions. 

We find no error and affirm.

I. BACKGROUND

Appellant worked as a flag culinary specialist at an admiral’s on-base quarters at the Washington Navy Yard. He occasionally brought his teenage daughter to work with him at the admiral’s quarters. In June 2018, when his daughter was 15-years-old, he raped her while at the admiral’s quarters, facilitated 

by giving her medicine that made her sleep. Appellant also sexually assaulted 

his daughter on at least nine other occasions from August 2018 to May 2019 

while she was with him at work or at their home in Haymarket, Virginia. Using 

his phone, he made numerous video recordings of the sexual assaults.

After Appellant submitted an affidavit on appeal to this Court alleging his 

TDC took no action after he informed them of his allegedly “harsh” pretrial 

confinement conditions, we ordered responsive affidavits from TDC. Specifically, Appellant claimed that “[w]hile in pretrial confinement in civilian jail, 

[his] charges were posted online. As a result, [he] was physically abused by 

 

2 10 U.S.C. §§ 920, 920b, 934.
United States v. Tejeda, NMCCA No. 202100176

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other prisoners who learned about [the charges]. This led to two fights where 

[he] had to defend [himself].”3

Appellant was placed into pretrial confinement in September 2019 at the 

Prince William County Detention Center, Manassas, Virginia, where he was 

held by the Commonwealth of Virginia on related civilian charges: aggravated 

sexual battery against a minor, forcible sodomy, and child pornography. Courtmartial charges were preferred more than 11 months later in August 2020,

encompassing Appellant’s misconduct at the Washington Navy Yard and at his 

home in Virginia. 

In early September 2020, two judge advocates, Lieutenant Commander 

(O--4) [LCDR] Lima and Lieutenant (O-3) [LT] Papa, were detailed to represent Appellant as his TDC.4 Between their initial in-person meeting and the 

beginning of Appellant’s trial, Appellant and his TDC met at the Washington 

Navy Yard 12 times in six months. In addition to these meetings, Appellant 

also had the ability to communicate with his TDC via video teleconference and 

telephone during this period. 

In her sworn declaration to this Court, LCDR Lima stated she researched 

public records regarding Appellant as part of the case investigation. The only 

information she found pertaining to his civilian case was from a local media 

outlet reporting the initial allegations leading to his arrest in Prince William 

County. She further stated Appellant never told her that his civilian charges 

had been posted online. As such, LCDR Lima was not aware whether Appellant’s civilian charges were ever posted online. 

Prior to Appellant entering his guilty pleas, LCDR Lima was aware that he

had an altercation with another prisoner while confined at the Prince William 

County Detention Center. She stated that Appellant did not say when the altercation took place, nor did he indicate whether the altercation was related to 

the charges pending against him. Separately, after the completion of his courtmartial, Appellant told LCDR Lima that on his final day at the Prince William 

County Detention Facility, other inmates yelled at him and called him inappropriate names as he was being released. LCDR Lima noted that “[t]his was 

the first mention of anything specifically occurring at the confinement facility 

 

3 Appellant Motion to Attach, App’x A at 1.

4 All names in this opinion, other than those of Appellant, the judges, and appellate 

counsel, are pseudonyms.
United States v. Tejeda, NMCCA No. 202100176

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related to his charges.”5 For his part, in his sworn declaration to this Court, 

LT Papa asserted he never knew of the fights, claiming that Appellant never 

told him of any assaults, physical altercations, or fights with other inmates at 

any point prior, during, or after the court-martial.

Throughout their representation of Appellant, both TDC took note of Appellant’s appearance, demeanor, and mentality. From their very first meeting 

with Appellant, and at every meeting thereafter, they spoke with him about 

his treatment and well-being while in confinement. Appellant typically expressed no concerns, indicating that he was being treated fine. During these 

meetings, Appellant appeared healthy, well-groomed, and confident in his 

mannerisms. Over the course of Appellant’s pretrial preparation, both TDC

also spoke with the defense team’s forensic psychologist, the Virginia public 

defender representing Appellant on the civilian criminal charges, and the brig 

escorts, with whom Appellant spent at least 32 hours over the six-month period. They raised no concerns for Appellant’s safety and reported no assaults 

or fights.

Appellant also claimed to have informed his TDC that he suffered from an infected tooth implant that went without treatment the entire time he was held 

at the Prince William County Detention Facility, and argued that his TDC 

were ineffective for failing to offer this as mitigation evidence at his sentencing 

hearing. Both TDC stated that the month before he pleaded guilty, Appellant 

informed them he was experiencing tooth pain. He said he had received some 

treatment at the Prince William County Detention Facility, but the issue was 

not resolved. Upon learning of this, TDC contacted Appellant’s command about 

the issue. The command coordinated multiple medical and dental appointments for Appellant, though his dental issues were still unresolved when he 

pleaded guilty.

The military judge was never made aware of Appellant’s alleged harsh pretrial confinement conditions. In the presentencing phase of Appellant’s courtmartial, neither TDC nor Appellant raised allegations of illegal pretrial punishment in violation of Article 13, UCMJ.6 TDC presented no evidence to the 

military judge relating to Appellant having been physically abused by other 

prisoners because of the charges pending against him, nor of having an unresolved dental issue while in pretrial confinement.

 

5 Appellee’s Order Response, App’x A at 2.

6 R. at 323.
United States v. Tejeda, NMCCA No. 202100176

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II. DISCUSSION

A. Standard of Review and the Law

We review claims of ineffective assistance of counsel de novo.7 To prevail 

on such a claim, “an appellant must demonstrate both (1) that his counsel’s 

performance was deficient, and (2) that this deficiency resulted in prejudice.”8

The appellant bears the “burden of establishing the truth of factual matters 

relevant to the claim.”9 Only after an appellant has met his burden and has 

demonstrated both deficiency and prejudice can we find in the appellant’s favor 

on an ineffective assistance of counsel claim.10

With a guilty plea, we look to see whether counsel’s performance fell 

below a standard of objective reasonableness expected of all attorneys.11 In 

considering a claim of ineffective assistance of counsel, there is a “strong 

presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”12 This presumption must be rebutted by showing that a specific error, or errors, were “unreasonable under prevailing 

professional norms.”13

When conducting an analysis of an ineffective assistance of counsel 

claim for a guilty plea, we focus on whether the ineffective performance 

affected the outcome of the plea process. “To satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, 

but for counsel’s errors, he would not have pleaded guilty and would have 

insisted on going to trial.”14 Furthermore, the prejudice inquiry “is modified 

to focus on whether the ‘ineffective performance affected the outcome of the 

plea process.’”15 In such cases, when there is an allegation that counsel was 

 

7 United States v. Cooper, 80 M.J. 664, 672 (N-M. Ct. Crim. App. 2020). 

8 United States v. Green, 68 M.J. 360, 361-62 (C.A.A.F. 2010) (citing Strickland v. 

Washington, 466 U.S. 668, 687 (1984)) (other citation omitted).

9 Denedo v. United States, 66 M.J. 114, 128 (C.A.A.F. 2008).

10 Cooper, 80 M.J. at 672.

11 United States v. Bradley, 71 M.J. 13, 16 (C.A.A.F. 2012) (citing Hill v. Lockhart, 

474 U.S. 52, 56–58 (1985)).

12 Strickland, 466 U.S. at 689.

13 United States v. Scott, 24 M.J. 186, 188 (C.M.A. 1987).

14 Bradley, 71 M.J. at 16 (quoting Hill v. Lockhart, 474 U.S. at 59).

15 Id., 71 M.J. at 16 (quoting Hill v. Lockhart, 474 U.S. at 56–58).
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ineffective in the sentencing phase of the court-martial, the court must consider “whether there is a reasonable probability that, but for counsel’s error, there would have been a different result.”16

B. Analysis

Appellant does not contend that he would have not pleaded guilty or 

insisted on going to trial. Appellant does not challenge the plea agreement, 

his pleas of guilt, or the findings of the military judge. Rather, he requests 

that this Court order a rehearing to reconsider the sentence. After careful 

consideration of the record, we have determined that the plea agreement is 

valid, that both Appellant and the convening authority have satisfied the 

material terms of the plea agreement, that Appellant’s pleas are provident, 

and that the findings are correct in law and fact.

1. Trial Defense Counsel’s Performance Was Not Deficient

Appellant provides insufficient context for his claims of ineffective assistance of counsel. He only states he “was physically abused by other prisoners 

who learned about [his charges],” and that he “told [his] trial defense counsel 

about these conditions prior to entering [his] pleas of guilty in military court.”17

Notably, Appellant does not indicate whether the alleged charges were from 

Virginia or the military, or whether the fights took place in the 11 months he 

spent in civilian jail prior to the military preferring charges, or in the five 

months after military charges were preferred. Similarly, he gives no indication 

of when or how he informed TDC of the fights, or of how much detail he gave 

them. 

We are not convinced that Appellant has provided sufficient evidence for 

us to find TDC’s performance fell below a standard of objective reasonableness

expected of all attorneys.18 Despite over five months of contact with Appellant, 

during which he had multiple opportunities to discuss the alleged fights with 

his attorneys in person, by video teleconference, and by telephone, Appellant 

never explained his claims or requested an investigation. Lieutenant Commander Lima saw no reason to pursue an investigation because, as she explained, “[she] did not consider this an Article 13, UCMJ matter, as it was not 

punishment or penalty imposed either by the government or the confinement 

 

16 United States v. Captain, 75 M.J. 99, 103 (C.A.A.F. 2016) (quoting United States 

v. Quick, 59 M.J. 383, 386–87 (C.A.A.F. 2004)).

17 Appellant Motion to Attach, App’x A at 1–2.

18 See Strickland, 466 US at 689.
United States v. Tejeda, NMCCA No. 202100176

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facility.”19 Furthermore, with respect to not presenting evidence of the fights

at trial, LCDR Lima addressed the issue directly: “I did not believe raising this 

isolated incident to be beneficial to our sentencing case, the general character 

we were attempting to convey to the military judge or to our attempts to reduce 

the punishment.”20 During her sentencing argument, LCDR Lima repeatedly 

emphasized the Defense’s theme, stating, “At the core, he is still a good father 

and a good man,”21 with “great rehabilitative potential.”22 “Strategic decisions 

to accept or forgo a potential benefit are not deficient when the decisions are 

objectively reasonable.”23 We find this strategic decision to be objectively reasonable, falling “within the wide range of reasonable professional assistance.”24

The same reasoning applies to Appellant’s dental issue. Appellant claims 

he informed TDC he had an infected tooth implant the entire time he was in 

pretrial confinement, but that it was not treated until after being transferred 

to the brig following his sentencing.25 The record shows that Appellant informed TDC about the issue about one month prior to entering his guilty pleas, 

that TDC immediately took action to inform Appellant’s command, and that 

the command acted reasonably to address the issue. As such, TDC had no reason to address the matter with the military judge—having alerted the command to Appellant’s issue and having witnessed the command taking action to 

resolve Appellant’s dental issue, TDC reasonably considered the matter inconsequential to the far more serious charges and punishment that Appellant was 

facing.

Finally, Appellant himself never signaled dissatisfaction with his counsel 

or his pretrial confinement conditions when presented those opportunities. 

Prior to the military judge accepting his pleas of guilty and the plea agreement, 

Appellant told the military judge five separate times that he was satisfied with 

the performance of his trial defense counsel.26 When presented the opportunity 

at the beginning of the presentencing phase of the court-martial, Appellant did 

 

19 Appellee’s Order Response, App’x A at 1.

20 Id.

21 R. at 753

22 R. at 758.

23 United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012).

24 Strickland, 466 U.S. at 689.

25 Appellant Mot. to Attach, App’x A at 1.

26 App. Ex. XXVI at 1; R. at 279, 311, 315, and 317.
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not raise any claims of illegal pretrial punishment.27 Finally, Appellant raised 

no such concerns with the convening authority in his post-trial clemency request.

We find that Appellant has not met his burden of establishing the truth of 

factual matters relevant to his claim. As a result, we find that TDC’s decisions 

were objectively reasonable and their performance was not deficient.28

2. Appellant Suffered No Prejudice Due to Trial Defense Counsel’s Failure 

to Present Evidence of “Harsh” Pretrial Confinement Conditions 

Even if TDC’s performance was deficient, Appellant fails to demonstrate 

prejudice, for which he “must show that there is a reasonable probability that, 

but for counsel’s unprofessional errors, the result of the proceeding would have 

been different. A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.”29 “That requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a different result.”30

Appellant suggests that because the military judge sentenced Appellant 

near the “lower end” of the 35- to 45-year range in the plea agreement, she 

“tended to view the most severe confinement as not appropriate, . . . and thus, 

. . . likely would have been receptive to evidence that would have shown why 

slightly less confinement was appropriate.”31 We do not agree that these two 

concepts are connected, particularly in view of the record. Appellant ignores 

that the military judge conducted segmented sentencing for each of the four 

charges to which Appellant pleaded guilty. For the two specifications of sexual 

 

27 R. at 323. 

28 Appellant began pretrial confinement on 19 September 2019. He was indicted by 

a Virginia grand jury on 6 January 2020, and held by the Commonwealth of Virginia 

prior to the military preferring charges on 26 August 2020. At the conclusion of Appellant’s trial on 24 February 2021, Trial Counsel signed the Confinement Order whereby 

Appellant would be confined beginning on that date as a result of his court-martial 

conviction. The record is unclear, however, about whether the military ever assumed 

custody of Appellant’s pretrial confinement, or whether Virginia ever dismissed the 

indictments against Appellant. We need not determine these facts to reach our findings

here. Similarly, we need not reach any conclusions regarding potential relief for Appellant should his alleged treatment have occurred while in civilian or military custody.

29 Strickland, 466 U.S. at 694.

30 Bradley, 71 M.J. at 16 (quoting Cullen v. Pinholster, 563 U.S. 170, 189 (2011)).

31 Appellant’s Br. at 8.
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assault and the sole specification of production of child pornography, the military judge imposed the maximum allowable sentence of 30 years for each 

Charge—despite the plea agreement giving the military judge a sentencing 

range of 20–30 years for each offense.32 It was only for Charge II (Rape of a 

Child) that the military judge awarded a sentence at the lower end of the range. 

This shows that the military judge actually did consider the most severe confinement to be appropriate for those three charges. 

In the sentencing phase, prejudice may occur if “there is a reasonable probability that there would have been a different result if all available mitigating 

evidence had been exploited by the defense.”33 Appellant committed sexual assaults on his daughter over the course of multiple years, frequently making 

video recordings of the assaults. He pleaded guilty to raping his then-15-yearold daughter after giving her Advil PM to make her fall asleep before penetrating her sexually. If not for the plea agreement, Appellant would have faced a 

maximum punishment of confinement for life without the possibility of parole. 

With a sentencing range of 35–45 years of confinement, the military judge had 

a relatively broad range to consider. In extenuation and mitigation, TDC presented a robust case involving testimony of one expert and three witnesses, six 

exhibits, and an unsworn statement of the Accused, all tied to the Defense 

theme to show aspects of Appellant’s character, including his difficult upbringing, his outstanding performance in the Navy, his dedicated work with his 

church, his remorse and contrition, and his rehabilitative potential. It is difficult to consider what additional weight, if any, the military judge would have 

given to evidence that Appellant was involved in two fights while in civilian 

jail—that occurred at some unknown point during a 17-month period—and a 

dental issue that was dealt with immediately once TDC alerted the command. 

For these reasons, we find Appellant has not met his burden of demonstrating a “substantial likelihood” or “reasonable probability” of achieving a different result. Appellant cannot show he was prejudiced on these facts.

 

32 R. at 770; App. Ex. XXVI at 11.

33 United States v. Scott, 81 M.J. 79, 84–85 (C.A.A.F. 2020) (quoting United States 

v. Akbar, 74 M.J. 364, 438 (C.A.A.F. 2015)).
United States v. Tejeda, NMCCA No. 202100176

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III. CONCLUSION

After careful consideration of the record and briefs of appellate counsel, we 

have determined that the findings and sentence are correct in law and fact and 

that no error materially prejudicial to Appellant’s substantial rights occurred.

The findings and sentence are AFFIRMED.

FOR THE COURT:

RODGER A. DREW, JR.

Clerk of Court