Petition for Writ of Certiorari — Pierce v. United States

Iw THE QEEICE OF IHE CLERK

Supreme Court of the United States

OCTOBER TERM, 1994

KEVIN L. PIERCE,

ceiitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

Petiiton for a Writ of Certiorari to the

United States Court of Appeals

for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

JEFFREY BRUCE MILLER

Captain, United States Air Force

Reserve

Appellate Defense Counsel

Counsel for the Petitioner

Air Force Legal Services Agency

Appellate Defense Division

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

November 1994 (202) 767-1562

QUESTION PRESENTED

Whether the petitioner was denied the effective assist-

ance of counsel by his civilian counsel’s unilateral deci-

sion to waive submitting post-trial matters.

TABLE OF CONTENTS

Page

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Constitutional Provisions Involved -2.0.....0........-ceccececceceeeee 2

GmmMrmmnty OU CU Ce nnn cnececcccecccececceeeceee 2

Reason for Granting the Writ... 4

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(iii)

iv

TABLE OF AUTHORITIES

Supreme Court Cases: Page

McMann v. Richardson, 397 U.S. 759 (1970)........ 4

Strickland v. Washington, 466 U.S. 669 (1984) ...... 4,5

Military Cases:

United States v. Bono, 26 M.J. 240 (C.M.A. 1988).. 5

United States v. Brown, ACM 30296 (recon)

FR Ack RR | eee eeeneenne 10

pS EAC ER IEA Dae Pema Nare re RN es ered MAMI REPO cP sy = OS 11

United States v. Calderon, 34 M.J. 501 (A.F.C.M.R.

United States v. Curry, 31 M.J. 359 (C.M.A. 1990).. 10, 11

United States v. DeGrocco, 23 M.J. 146 (C.M.A.

Lf EC eR ee REE A VETERE POR Rm LICE, Chott Hee 10

United States v. Dicupe, 21 M.J. 440 (C.M.A.

1988), cert. denied, 479 U.S. 826 .......................... 4

United States v. Dubay, 17 U.S.C.M.A. 147, 37

Cees IEE - IID verccnaccpiscesatee inteibestdadnantnpecinn 7

United States v. Evans, 31 M.J. 927 (A.C.M.R.

I aititicicsstnvccecodens nsilanetmiibiiiiciiaa uma ATR Ce ee 11

United States v. Goode, 1 M.J. 3 (C.M.A. 1975) .... 9

United States v. Grostefon, 12 M.J. 481 (C.M.A.

I siiiskicteesetss contents vindaiiapeanl sine ia ace aa aD oa

United States v. Hill, 3 M.J. 295 (C.M.A. 1991)....

United States v. Hilow, 32 M.J. 489 (C.M.A.

pCR el OREO DC ANE Ee IgE Ned DED Pr aaa 11

United States v. Holt, 33 M.J. 400 (C.M.A. 1991).. 5, 7,8

United States v. Fullard, unpublished ACM S28698

on

(A.F.C.M.R. 4 October 1998) ............................... 7

United States v. Jefferson. 13 M.J. 1 (C.M.A.

) RECENT OR anronn RANE ee deere IIE OMS KC aD 4

United States v. Mansfield, 24 M.J. 611 (A.F.C.M.R

| REET eMC RST ON Mgr oiectekh Martacat Romeo 4

United States v. Moseley, 31 M.J. 273 (C.M.A

I sia ike nica le ile ca aria ak at 9

United States v. Narine, 14 MJ. 55 (C.M.A

I orien ssshinisestiin secasocacece acne menaa eats 9

United States v. Norment, 34 M.J. 224 (C.M.A

| NNR ne eae HN ace eveen Emm 9

United States v. Rivas, 3 M.J. 282 (C.M.A. 1977).. 4

Vv

TABLE OF AUTHORITIES—Continued

Page

United States v. Robertson, 34 M.J. 1206

(A.F.C.M.R. 1992); 39 M.J. 211 (C.M.A. 1994)... 11

United States v. Roop, 16 U.S.C.M.A. 612, 37

a caaiuasnnhiaiies 9

United States v. Shaw, 30 M.J. 10383 (A.F.C.M.R.

RARE ints ne ci a UES ss Re EO 5,7

PN tithes Racandindienite scone nnlanciceesoncenetoenavaderesmionedanannaacien 10

Tai alac catia itinniseplatentdenpuilaioonvterd inns emenbinnenttints 5, 7,8

Constitutional Provisions:

United States Constitution Amendment V1 ......... pane? 2

Federal Statutory Provisions:

Be i oer desc cinecetiensercenaremnsenntangecbenitihanns 4

Fe ee NE hvetcigeescess tes serenensonnninennimnaneninsenirnntens 11

10 U.S.C.A. § 867(a) (Supp. 1994) ............-....--....--. 2

28 U.S.C.A. § 1259(3) (Supp. 1994) ............--------... 2

Regulatory Provisions:

Manual for Courts-Martial, 1984:

Rule for Courts Martial, 1007 (d) (1) -................

Rule for Courts Martial, 1010 ..................-.........-.

oo hl

In THE

Supreme Cut of the United States

OCTOBER TERM, 1994

No.

KEVIN L. PIERCE,

- Petitioner

UNITED STATES OF AMERICA,

Respondent

Petiiton for a Writ of Certiorari to the

United States Court of Appeals

for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

The petitioner, Kevin L. Pierce, respectfully prays that

a writ of certiorari issue to review the order and judg-

ment of the United States Court of Military Appeals

entered in his case on August 19, 1994.

OPINIONS BELOW

The order and judgment of the United States Court of

Military Appeals, reported at 40 M.J. 149 (C.M.A.

1994) is located at Appendix A. The unreported opinion

of the United States Air Force Court of Military Review,

issued October 7, 1992, is found at Appendix B.

JURISDICTION

The final order of the United States Court of Military

Appeals (now named the United States Court of Appeals

for the Armed Forces) was entered on August 19, 1994.

2

The jurisdiction of this Court is invoked under 28

U.S.C.A. § 1259(3) (Supp. 1994) and 10 U.S.C.A.

§ 867(a) (Supp. 1994).

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment of the Constitution of the United

States provides in relevant part:

In all criminal prosecutions, the accused shall enjoy

the right to . . . have the assistance of counsel for his

defence.

STATEMENT OF THE CASE

During December of 1990, petitioner was tried by a

general court-martial composed of officer and enlisted

members at Scott Air Force Base, Illinois, for the alleged

involuntary manslaughter of his daughter. Contrary to

his pleas, petitioner was found guilty of the charge. He

was sentenced to a bad conduct discharge, hard labor

without confinement for 90 days, and reducticn to Air-

man First Class (E-3).

The petitioner was represented at trial by a civilian

defense counsel and a military defense counsel. At some

time between the court-martial and service of the record

of trial, petitioner and his civilian attorney discussed peti-

tioner’s right to submit matters to the convening authority

so that he may grant clemency pursuant to Rule for Court

Martial 1007(d)(1).

On January 16, 1991, the military defense attorney was

served a copy of the Staff Judge Advocate’s Recommenda-

tion to the general court-martial convening authority, as

is evidenced by the executed indorsement to a service let-

ter dated “15 Jan 1991.” On the aforementioned indorse-

ment, the military attorney wrote. “I do not intend to

submit matters and/or responses to the Staff Judge Advo-

cate’s Recommendation. Mr. Rathbone may submit mat-

3

ters and/or responses in Sgt Pierce’s behalf. He is respon-

sible for post-trial matters.” (Appendix C)

On January 17, 1991, petitioner was served with a

copy of the same recommendation. In his indorsement,

he clearly states, “I do intend to submit matters and/or

responses to the Staff Judge Advocate’s Recommenda-

tion.” (Appendix D)

Sometime on or before February 4, 1991, the civilian

attorney had received the same Staff Judge Advocate’s

Recommendation. In an addendum to the Staff Judge

Advocate’s Recommendation, it is noted that the civilian

attorney was contacted on February 4, 1991. The civilian

attorney indicated that “he wanted another day to con-

sider whether any matters would be submitted and, if so,

he would call [Mr. Parrott, the Twenty-Second Air Force

Acting Director of Military Justice] on 5 February 1991,”

the next day. When no call came, the record of trial and

the recommendaticn were forwarded to Major General

Richard J. Trzaskoma, the convening authority, for ac-

tion. (Appendix E)

The United States Air Force Court of Military Review

held that action by the convening authority was timely.

It further stated:

“Appellant’s failure to submit matters to the conven-

ing authority within 10 days of the record constituted

a waiver of this right. Attempting to avoid this

waiver rule by blaming civilian defense counsel’s

after-the-fact efforts is without merit.”

United States v. Pierce, unpublished, ACM 29116,

(A.F.C.M.R. 7 October 1992) (Appendix B)’.

1 A second issue was presented to the Air Force Court of Military

Review regarding the fact that the same convening authority who

impaneled the court and was to take any action had denied petition-

er’s request for medical testing to determine if a congenital defect

existed in the victim which could have contributed to the death.

The Court of Military Appeals did not grant review on this issue.

The United States Court of Military Appeals granted

review of the decision of the Air Force Court of Military

Review. In that opinion, the Court of Military Appeals

held that the petitioner was not denied effective assistance

of counsel. Any error by civilian counsel in waiving

appellant’s right to submit post-trial matters to the con-

vening authority had not been shown to be prejudicial.

United States v. Pierce, 40 M.J. 149 (C.M.A. 1994)

(Appendix A).

REASONS FOR GRANTING THE WRIT

Petitioner’s case raises important questions concerning

the Sixth Amendment right to counsel in post-trial pro-

ceedings. It is axiomatic in military and civilian law that

an accused is entitled to effective assistance of counsel

throughout the entire trial, post-trial, and appellate

process.

The Sixth Amendment of the United States Constitu-

tion guarantees an accused the right to “effective assist-

ance of counsel.” McMann v. Richardson, 397 U.S. 759,

771 n.14 (1979). The same right is afforded to service-

men in trials by court-martial under Article 27(b), Uni-

form Code of Military Justice; 10 U.S.C. § 827(b).

United States v. Dicupe, 21 M.J. 440 (C.M.A. 1986);

United States v. Rivas, 3 M.J. 282 (CM.A. 1977);

United States v. Mansfield, 24 M.J. 611 (A.F.C.M.R.

1987). An accused has a right to a reasonably competent

counsel who exerc*,es that competence in his client’s be-

half throughout the trial United States v. Jefferson, 13

M.J. 1 (C.M.A. 1982).

This Honorable Court has set out a two-part standard

to determine whether an individual has been denied the

effective assistance of counsel. Strickland v. Washington,

466 U.S. 669 (1984). An appellant must identify acts

or omissions by his or her attorney, and then bear the

burden of persuading the court that, based on the facts

as counsel knew them and eliminating the distortion of

oe

hindsight, those acts or omissions . were outside the

range of professional competent assistance.” /d., at 689.

Justice O’Connor cautioned that appellate courts must

understand that counsel’s function, as elaborated in pre-

vailing professional norms, is to make the adversarial test-

ing process work in the particular case. Jd. An appellant

must also show “there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” A “reasonable

probability” was defined as a “probability sufficient to

undermine confidence in the outcome.” J/d., at 694.

In United States v. Stephenson, 33 M.J. 79 (C.M.A.

1991), the Court of Military Appeals found ineffective

assistance of counsel and set aside the action of the con-

vening authority where the civilian defense counsel failed

to present a petition for clemency and other favorable

sentencing matters to the convening authority. The Court

of Military Appeals in Stephenson, citing United States v.

Bono, 26 M.J. 240, 243 n.3 (C.M.A. 1988) emphasized

the fact that review of a court-martial at the convening

authority level provides “the accused’s best hope for sen-

tence relief’, 33 M.J. at 83. See also United States v.

Holt, 33 M.J. 400 (C.M.A. 1991), where the Court of

Military Appeals also found inadequate assistance of

counsel where the civilian defense counsel “waived his

opportunity to present any response to the staff judge

advocate’s recommendation to the convening authority.”

33 M.J. at 411. See also United States v. Shaw, 30 M.J.

1033 (A.F.C.M.R. 1990) where the Air Force Court of

Review set aside a convening authority action when it

appeared that defense counsel had unilaterally waived his

client’s right to submit post-trial matters to the convening

authority.

The scenarios in the Stephenson and Holt cases supra

are almost identical to the facts in the case sub judice.

Sgt Pierce notified HQ 22 AF/JA that he intended “to

6

submit matters and/or responses to the Staff Judge

Advocate’s Recommendation.” See Indorsement to Col

Sweeney’s 15 January 1991 Ltr, Allied Papers (Appendix

D). The only other relevant document in the record sub-

sequent to that indorsement is the Addendum to the SJA

recommendation (Appendix E), which appears to indicate

that the civilian defense counsel was personally making

the decision about whether any matters would be sub-

mitted. The civilian attorney apparently told Mr. Parrott,

the author of the SJA Addendum, that “he wanted an-

other day to consider whether any matters would be sub-

mitted and, if so, he would call... .” Addendum, Allied

Papers (emphasis added). As such, it seems clear from |

the record that the civilian attorney unilaterally decided

that no matters would by submitted after petitioner ini-

tially expressed a desire to do so.

Indeed, the petitioner’s letter to the Court of Military

Appeals submitted by separate motion pursuant to United

States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) makes

it crystal clear that petitioner desired that matters be sub-

mitted to the convening authority and he relied upon his

civilian counsel to submit those matters on his behalf.

(Appendix F). In fact, the appellant had no idea that

no matters were submitted to the convening authority by

his civilian counsel until after the convening authority had

acted upon his case. The decision to waive this post-trial

right, either by written waiver or inaction, belongs to ap-

pellant, not his lawyer.”

2 The letter of petitioner, dated January 27, 1994, was submitted

with attachments via motion to the Court of Military Appeals on

February 16, 1994. The Court accepted the documents over govern-

ment opposition on March 4, 1994. (Appendix G). Chief Judge

Sullivan of the Court of Military Appeals noted that in this case

“there [was] a factual dispute as to whether defense counsel,

unilaterally and contrary to appellant’s wishes, waived appellant’s

right to submit matters to the convening authority prior to his

action.” Pierce, 40 M.J. 150-151. A resolution of this dispute was

warranted and could have been achieved by ordering a hearing

7

The Air Force Court of Military Review cannot be

absolved for totally ignoring the import of the Stephenson

and Holt decisions in finding that appellant’s failure to

submit matters to the convening authority within 10 days

of the service of the record upon him constituted a waiver

of this right.

Moreover, the Air Force Court’s citation to United

States v. Shaw, 30 M.J. 1033 in its decision to deny

relief is puzzling as the Shaw decision unequivocally sup-

ports petitioner’s position. In Shaw, the accused, like the

petitioner in the case sub judice, completed an indorse-

ment to his receipt of the SJA Recommendation which

indicated that he desired to submit matters to the con-

vening authority. In Shaw, the defense counsel, like the

defense counsel in the case sub judice, unilaterally waived

the appellant’s right to submit matters to the convening

authority. The only difference being that the defense

counsel’s unilateral waiver in Shaw was written while the

waiver in the current case occurred by inaction. None-

theless, the effort on the respective appellants was the

same. They were each denied the opportunity to submit

matters to the convening authority.

In Shaw, the Air Force Court returned the case to the

convening authority for a new action. However, most

inconsistently in the current case the same Court, albeit

a different panel, citing Shaw held that appellant waived

his right to submit matters to the convening authority.

The fact of the matter is that the petitioner had a right

to rely upon his defense counsel to submit clemency mat-

ters on his behalf. Indeed, the petitioner’s lack of under-

standing of the post-trial process and his total reliance on

his defense counsel to tend to these matters was vividly

under the authority of United States v. Dubay, 17 U.S.C.M.A. 147,

87 C.M.R. 411 (1967). See United States v. Fullard, unpublished,

ACM $28698 (A.C.M.R. 4 October 1993) (James, J. dissenting).

8

demonstrated on the record by the following exchange

between the petitioner and the military judge:

MJ: Do you have any questions about your post-

trial and appellate rights?

ACC: I'm not sure exactly how it works out, but I

can talk to Captain Elliott.

(R. 331, emphasis added)’.

The decisions in Stephenson and Holt make clear that

the Court of Military Appeals does not view the conven-

ing authority as a “rubber stamp” and will vigorously

safeguard the right of an accused to have the effective

assistance of counsel at this stage of the proceedings.

Where a counsel is relied upon by an accused to submit

matters to the convening authority, as the record in this

case has amply shown, and where that counsel waives this

opportunity without any evidence that this waiver was

with the informed consent of the accused, the courts

should continue to find that the accused was deprived the

effective assistance of counsel at this important stage of

the process.

Counsel can easily protect themselves in this area by

obtaining a written waiver from their client in those cases

where the client truly does waive the submission of mat-

ters to the convening authority. It is not coincidental that

no such waiver was obtained from the petitioner in this

3 Despite direction by Rule for Court Martial 1010, the military

judge failed to ensure that the accused received written notification

of his post-trial and appellate rights. The relevant portion of Rule

states, ‘In each general and special court-martial, prior to adjourn-

ment, the military judge shall ensure that the defense counsel has

informed the accused orally and in writing of: (a) The right to

submit matters to the convening authority to consider before tak-

ing action. .. . The written advice to the accused concerning post-

trial and appellate rights shall be signed by the accused and the

defense counsel and inserted in the record of trial as an appellate

exhibit.”

9

case—this petitioner desired that his counsel submit mat-

ters and was told that such matters would be submitted.

While the bulk of the case law would appear to favor

a showing of actual prejudice in these situations, the peti-

tioner respectfully submits that, in a due process sense,

the prejudice is automatic when an accused has been de-

nied the opportunity to participate during such an impor-

tant step of the process. In United States v. Narine, 14

M.J. 55, 57-58 (C.M.A. 1982), the Court of Military

Appeals, in deciding that certain matters contained in an

Addendum to an SJA Recommendation constituted new

matters and should have been served on the accused,

stated:

It dilutes the curative effect of Goode * to ignore the

lack of input from the defense counsel and to exam-

ine the new material for possible prejudice at the

appellate level neither substitutes for the input of

defense counsel nor avoids the appellate case load

that Goode was designed to reduce. “The mere fact

that upon appeal harm to the accused may be found

nonexistent, in no sense lessens the obligation to see

that he receives those benefits that are rightly his.”

United States v. Roop, 16 U.S.C.M.A. 612, 615, 37

C.M.R. 232, 235 (1967), quoted with approval in

United States v. Hill, supra at 397.

(Emphasis added). This analysis is equally compelling

in the case sub judice.

See also, United States v. Norment, 34 M.J. 224, 227

(C.M.A. 1992), and United States v. Moseley, 35 M.J.

481, 484-485 (C.M.A. 1992), where the Court of Mili-

tary Appeals set aside the actions of the respective con-

vening authorities without requiring a concrete showing

of actual prejudice due to the government’s failure to

fully observe the post-trial rights of each appellant In

Moseley, the Court of Military Appeals held:

4 United States v. Goode, 1 M.J. 3 (C.M.A. 1975).

10

.. . Where there effectively was an absence of coun-

sel functioning on behalf of an accused, our consider-

ation of harmlessness is limited to whether subse-

quently afforded counsel was able to make up for the

earlier deprivation. [citations omitted]. Any broader

approach turns an examination for harmlessness into

a speculative venture without perimeter.

Here, recognizing the importance that this Court

always has placed on the convening authority’s exer-

cise of wide discretion, the only way to make up for

the absence of counsel at that stage is to re-do that

stage with benefit of counsel acting in appellant’s

interests.

Id., at 484-485. While the absence of counsel in Moseley

was literal, for all practical purposes the petitioner’s coun-

sel was equally “absent” when he failed to submit matters

to the convening authority on petitioner’s behalf despite

promising to do so.

Assuming arguendo that there is a requirement to show

actual prejudice in these situations, which admittedly, may

be the better approach, the petitioner respectfully submits

that he has demonstrated actual prejudice in this case.

In United States v. Brown, ACM 30296 (recon)

(A.F.C.M.R. 2 August 1993), Judge James, in his usual

meticulous and thorough manner, provides a detailed

analysis of the relevant case law and the applicable re-

quirements for demonstrating prejudice in such situations:

It has been held that an appellant must aver that he

intended to submit something before he may have

relief on an assignment that he was thwarted. United

States v. DeGrocco, 23 M.J. 146, 148 (C.M.A.

1987) (“accused must make some showing that he

would have submitted material”); United States v.

Skaar, 20 M.J. 836, 840 (N.M.C.R. 1985) (en

banc) (“appellant bears the burden of at least assert-

ing a colorable claim that he intended to timely sub-

mit .. . material”); see also United States v. Curry,

iii . ——

11

31 M.J. 359, 377 (C.M.A. 1990) (appellant who

complains of ineffectiveness of counsel during post-

trial period did not aver that he intended to

submit something, had he had the needed help);

United States v. Robertson, 34 M.J. 1206, 1211

(A.F.C.M.R. 1992), 39 M.J. 211, 218 (C.M.A.

1944) (same); United States vy. Calderon, 34 M.J.

501, 504 (A.F.C.M.R. 1991), pet. denied, 36 M.J.

33 (C.M.A. 1992) (same); United States v. Evans,

31 M.J. 927, 931 (A.C.M.R. 1990); cf. United

States v. Hilow, 32 M.J. 439, 445 n.2 (C.M.A.

1991) (Cox, J., dissenting in part). There is other-

wise no showing of prejudice, United States v. Curry,

31 M.J. 359, 376-77 (C.M.A. 1990); Article 59(a),

UCMJ, 10 U.S.C. § 859(a) (1988).

The petitioner has asserted that he wished to submit

matters to the convening authority but relied upon his

civilian counsel’s representations to submit the matters on

his behalf. See petitioner's January 27, 1994 statement

(Appendix F) accepted for consideration by motion by

the Court of Military Appeals by motion dated March 4,

1994 (Appendix G). The clear import of the appellant’s

statement, although he did not specifically state this, is

that he would have submited matters to the convening

authority if he knew his civilian counsel was not going

to do it for him. Jd. As such, the appellant respectfully

submits that he has sufficiently demonstrated actual harm

in this case.

12

CONCLUSION

A clear understanding of what constitutes ineffective

assistance of counsel, denial of counsel, and the difference

between the two is crucial to an understanding of the

Sixth Amendment right to counsel, as it applies to the

post-trial sentencing process. The resolution of this case

will settle the question of whether counsel’s abandonment

of duties during the post-trial process constitutes ineffec-

tive assistance of counsel.

Respectfully submitted,

JAY LINDSEY COHEN

Colonel, United States Air Force

| Chief, Appellate Defense Division

Counsel of Record

JEFFREY BRUCE MILLER

Captain, United States Air Force

Reserve

Appellate Defense Counsel

Counsel for the Petitioner

Air Force Legal Services Agency

Appellate Defense Division

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

(202) 767-1562

November 1994

APPENDICES

la

APPENDIX A

U.S. COURT OF MILITARY APPEALS

No. 93-0185

CMR No. 29116

UNITED STATES,

Appellee

.

KEVIN L. PIERCE,

Sergeant U.S. Air Force,

Appellant.

Argued March 1, 1994

Decided Aug. 19, 1994

For Appellant: Major George F. May (argued);

Colonel Jay L. Cohen (on brief); Colonel Terry J. Wood-

house.

For Appellee: Major John H. Kongable (argued);

Colonel Jeffrey T. Infelise (on brief).

Opinion of the Court

SULLIVAN, Chief Judge:

During December of 1990, appellant was tried by a

general court-martial composed of officer and enlisted

members at Scott Air Force Base, Illinois. Contrary to

his pleas, he was found guilty of involuntary manslaughter

2a

of his infant daughter, in violation of Article 119, Uni-

form Code of Military Justice, 10 USC § 919. On De-

cember 7, 1990, he was sentenced to a bad-conduct dis-

charge, hard labor without confinement for 90 days, and

reduction to E-3. On February 11, 1991, the convening

authority approved the adjudged sentence. On October 7,

1992, the Court of Military Review affirmed the findings

of guilty and the sentence in an unpublished opinion.

This Court, on August 18, 1993, granted review on the

following question of law assigned by appellate defense

counsel:

WHETHER APPELLANT WAS DENIED THE

EFFECTIVE ASSISTANCE OF COUNSEL BY

HIS CIVILIAN COUNSEL’S UNILATERAL DE-

CISION TO WAIVE SUBMITTING POST-TRIAL

MATTERS TO THE CONVENING AUTHORITY.

We hold that appellant was not denied effective assistance

of counsel. Any error by civilian counsel in waiving ap-

pellant’s right to submit post-trial matters to the conven-

ing authority has not been shown by appellant to be prej-

udicial. United States v. DeGrocco, 23 MJ 146 (CMA

1987). Cf. United States v. Holt, 33 MJ 400, 411-12

(CMA 1991) and United States v. Stephenson, 33 MJ

79, 82-83 (CMA 1991).

The Court of Military Review found the following facts

concerning the granted issue:

Appellant’s civilian defense counsel indicated he

would be responsible for post-trial matters. In re-

ceipting for the Staff Judge Advocate’s Recommen-

dation, appellant indicated he intended to submit

matters to the convening authority. The record of

trial was served on appellant and after over 10 days

elapsed without any submissions from appellant or

his civilian counsel, a call was placed to his civilian

defense counsel to determine whether they desired

3a

a further delay of final action. Based upon a con-

versation with the civilian defense counsel, an addi-

tional day’s delay was approved. Final action was

taken by the convening authority after the 10-day

time period for submissions and after the extra day’s

delay provided to appellant’s civilian counsel. Ap-

pellate defense counsel assert the action by the civil-

ian defense counsel waiving submissions was uni-

lateral and not the decision of appellant. Appellant’s

failure to submit matters to the convening authority

within 10 days of the service of the record upon him

constituted a waiver of this right. Attempting to

avoid this waiver rule by blaming civilian defense

counsel’s after-the-fact efforts is without merit. We

find the convening authority’s final action on this

case was timely. United States v. Shaw, 30 MJ 1033

(AFCMR 1990); United States v. Euring, 27 MJ

843 (ACMR 1989); RCM 1105(c)(1), 1105

(d) (1).

Appellate government counsel filed a statement with

this Court from civilian defense counsel on January 12,

1994, stating:

COMES NOW Eric Rathbone, and states that the

following is true:

Several days after the trial ended, Mr. and Mrs.

Pierce, my secretary, and I had dinner together. At

that time, Mr. Pierce indicated he was satisfied with

the results of the trial and that he did not wish to

proceed with any further action. Following our din-

ner, Mr. Pierce changed residency and after several

attempts to contact him including leaving messages

with his wife I received no response and eventually

gave up trying.

Appellant defense counsel subsequently filed letters

and other documents from appellant, his wife, and brother

disputing the representations of Mr. Rathbone.

4a

Appellant’s claim of ineffective assistance of counsel is

based on the Sixth Amendment and Article 27(b),

UCMJ, 10 USC § 827(b). He asserts that civilian coun-

sel’s failure to “present a petition for clemency and other

favorable sentencing matters to the convening authority”

(Final Brief at 4) after he (appellant) earlier indicated

an intent to do so was unreasonable professional conduct

for an attorney. Moreover, he argues that such conduct

should be presumed prejudicial because it denied him his

best hope of securing sentence relief, i.e., clemency action

by his concening authority. United States v. Moseley, 35

MJ 481, 484-85 (CMA 1992)); United States v. Narine,

14 MJ 55, 57-58 (CMA 1982). In the alternative, he

asserts that his letter to this Court on February 22, 1993,

impliedly indicates such clemency matters exist and, thus,

his lawyer’s inaction specifically prejudiced him.

A finding of ineffective assistance of counsel requires

a showing of deficient professional conduct and a showing

that such conduct prejudiced appellant. See Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064,

80 L.Ed.2d 674 (1984); United States v. Holt, 33 MJ

at 409. Here, there is a factual dispute as to whether de-

fense counsel, unilaterally and contrary to appellant’s

wishes, waived appellant’s right to submit matters to the

convening authority prior to his action. See generally

United States v. Goode, 1 MJ 3 (CMA 1975); and RCM

1106(f), Manual for Courts-Martial, United States, 1984.

We are not a factfinding body (Art. 67(c), UCMJ, 10

USC § 867(c) (1989)); accordingly, we cannot resolve

appellant’s claim on the basis that the evidence of record

shows his defense counsel’s conduct was reasonable. Cf.

United States v. Curry, 31 MJ 359, 376-77 (CMA 1990).

See generally United States v. Smith, 36 MJ 455 (CMA

1993); United States v. Parker, 36 MJ 269 (CMA 1993)

(hearing under United States v. DuBay, 17 USCMA 147,

37 CMR 411 (1967), may be required to determine fac-

tual questions concerning post-trial claims of ineffective-

ness of counsel).

5a

Nevertheless, it is uncontroverted that appellant was

represented by counsel after his trial and that counsel was

served with the post-trial recommendation. Cf. United

States v. Moseley, supra at 485 (failure to serve defense

counsel with post-trial recommendation deprived accused

of counsel). In these circumstances we have normally

required a showing of prejudice before granting re-

lief based on a premature convening authority action.

United States v. Johnson, 23 MJ 327 (CMA 1987);

United States v. DeGrocco, 23 MJ 146 (C.M.A. 1987).

In the absence of a finding of total abandonment by de-

fense counsel, we see no reason to depart from this preju-

dice rule in resolving appellant’s unauthorized counsel-

waiver claim.

We finally note that there is no offer of proof, even at this

late stage of the proceedings, as to the particular nature of

the materials that appellant or counsel would or could

have submitted to the convening authority. United States

v. Robertson, 39 MJ 211 (CMA 1994). Vague or gen-

eral intimations in this regard will not suffice. See also

United States v. Craig, 28 MJ 321, 325 (CMA 1989).

Accordingly, any error in counsel’s failure to secure ap-

pellant’s approval of the waiver action has not been shown

to be prejudicial so as constitute a denial of his right to

effective assistance of counsel. See also United States v.

Demerse, 37 MJ 488, 490-91 (CMA 1993) (record es-

tablishes that defense counsel’s unreasonable conduct at

trial not prejudicial).

The decision of the United States Air Force Court of

Military Review is affirmed.

Judges COX, CRAWFORD, GIERKE, and WISS

concur.

6a

APPENDIX B

UNITED STATES AIR FORCE

COURT OF MILITARY REVIEW

UNITED STATES

V.

Sergeant KEVIN L. PIERCE, FR333-64-3758

UNITED STATES AIR FORCE

ACM 29116

7 October 1992

Sentence adjudged 7 December 1990 by GCM

convened at Scott Air Force Base, Illinois.

Military Judge: Perry L. Anderson.

Approved sentence: Bad-conduct discharge, 90

days hard labor without confinement, and reduc-

tion to E-3.

Appellate Counsel for the Appellant: Colonel Jeffrey

R. Owens and Major Beverly B. Knott.

Appellate Counsel for the United States: Colonel Wil-

liam R. Dugan, Jr., Major Paul L. Blackwell, Jr., Major

Jeffrey C. Lindquist, and Captain James B. Wager, Jr.

Before

O’HAIR, SNYDER, and GRUNICK

Appellate Military Judges

Ta

PER CURIAM:

Appellant was convicted contrary to his pleas by a gen-

eral court-martial composed of officers and enlisted mem-

bers of involuntary manslaughter of his infant daughter in

violation of Article 119, UCMJ. The convening authority

approved his sentence of a bad-conduct discharge, hard

labor without confinement for 90 days, and reduction to

E-3. We find no error in the two assertions submitted by

appellant and affirm.

The appellant asserts the convening authority improp-

erly denied his request to obtain potentially exculpatory

medical evidence before trial and after trial prematurely

took final action on his case. Under both assertions, ap-

pellant’s failure to follow-up with a timely motion at trial

on his evidentiary request, and the 10-day lapse of time for

submissions to the convening authority under R.C.M.

1105 and 1106, result in a waiver of these issues.

We do not find the convening authority abused his dis-

cretion in denying appellant’s request for medical tests on

appellant and his wife. The proper avenue to pursue this

request would have been in the form of a motion before

the military judge to compel government testing. The mili-

tary judge was never asked to rule on this issue. Appel-

lant, on his own, had a major portion of the requested

testing completed and admitted during the presentation

of his case. The desired defense evidence was speculative,

and tests accomplished by appellant did not substantiate

his hoped for theory. Whether the government is obliged

to conduct scientific testing could have formed the basis

for a renewal of the request before the military judge. In

the absence of such a motion to the military judge, we

find this assertion lacks merit. United States y. Means,

24 M.J. 160 (C.M.A. 1987); United States y. Garries,

22 M.J. 288 (C.M.A. 1986); United States v: Hargrove,

33 M.J. 515 (A.F.C.M.R. 1991); R.C.M. 703(c)(2)(D),

703 (d).

8a

Appellant’s civilian defense counsel indicated he would

be responsible for post-trial matters. In receipting for the

Staff Judge Advocate’s Recommendation, appellant indi-

cated he intended to submit matters to the convening au-

thority. The record of trial was served on appellant and

after over 10 days elapsed without any submissions from

appellant or his civilian counsel, a call was placed to his

civilian defense counsei to determine whether they desired

a further delay of final action. Based upon a conversation

with the civilian defense counsel, an additional day’s de-

lay was approved. Final action was taken by the conven-

ing authority after the 10-day time period for submissions

and after the extra day’s delay provided to appellant’s

civilian counsel. Appellate defense counsel assert the ac-

tion by the civilian defense counsel waiving submissions

was unilateral and not the decision of appellant. Appel-

lant’s failure to submit matters to the convening authority

within 10 days of the service of the record upon him

constituted a waiver of this right. Attempting to avoid

this waiver rule by blaming civilian defense counsel’s

after-the-fact efforts is without merit. We find the con-

vening authority’s final action on this case was timely.

United States v. Shaw, 30 M.J. 1033 (A.F.C.M.R. 1990);

United States v. Euring, 27 M.J. 843 (A.C.M.R. 1989);

R.C.M. 1105(c)(1), 1105(d) (1).

The approved findings of guilty and the sentence are

correct in law and fact and, on the basis of the entire

record, are

AFFIRMED.

[SEAL]

/s/ Naomi D. Allen

TSgt, USAF

Chief Court Administrator, AFCMR

9a

APPENDIX C

[DOD Loco]

DEPARTMENT OF THE AIR FORCE

Headquarters Twenty-Second Air Force (MAC)

Travis Air Force Base, California 94535-5002

[15 Jan. 1991]

Reply to Attnof JA

Subject: Staff Judge Advocate’s Recommendation—

U.S. v Sgt Kevin L. Pierce

To: Capt Baxter Elliott

HQ USAF Judiciary/ADC

Scott AFB,IL 62225

1. In compliance with Rule for Courts-Martial 1106 and

AFR 111-1, paragraph 15-6, the attached Recommenda-

tion is submitted for your examination and comments, if

any. Immediately upon your receipt of this letter, please

call our office to advise of its arrival (DSN 837-2508),

complete the indorsement below, and then return this let-

ter to us.

2. You have ten days to respond to matters within this

Recommendation. In addition, you may submit to the

Convening Authority any written matters which may rea-

sonably tend to affect the Convening Authority’s decision

whether to disapprove any findings of guilty or approve

the sentence. If you fail to respond within these time

limits, the Recommendation will be submitted to the Con-

vening Authority without your comments. The accused

is not required to raise objections to the trial proceedings

in these comments in order to preserve them for later

review.

10a”

3. I request that you send any response you may have

to my recommendations by the most expeditious means

available.

/s/ Howard P. Sweeney

HOWARD P. SWEENEY

Colonel USAF

Staff Judge Advocate

Atch

lst Ind

To: HQ22 AF/JJA

The attached Staff Judge Advocate’s Recommendation in

the subject case was received by me on 16 Jan. 1991.1

(do not) intend to submit matters and/or responses to

the Staff Judge’s Recommendation. Mr. Rathbone may

submit matters and/or responses in Sgt Pierce’s behavior.

He is responsible for post-trial matters.

/s/ Baxter Elliott

BAXTER ELLIOTT

Capt, USAF

Defense Counsel

lla

APPENDIX D

[DoD Loco]

DEPARTMENT OF THE AIR FORCE

Headquarters Twenty-Second Air Force (MAC)

Travis Air Force Base, California 94535-5002

[15 Jan. 1991]

Reply to Attn of JA

Subject: Staff J udge Advocate’s Recommendation—

U.S. v Sgt Kevin L. Pierce

To: Sgt Kevin L. Pierce

375th Transportation Squadron

Scott AFB,IL 62225

1. In compliance with Rule for Courts-Martial 1105 and

AFR 111-1, the attached Recommendation is submitted

for your examination and comments, if any. Please com-

plete the indorsement below immediately upon receipt and

return this letter to us in the envelope provided. A copy

of this Recommendation has also been sent to your de-

fense counsel.

2. You and your defense counsel have ten days to re-

spond to matters within this Recommendation. In addi-

tion, you may submit to the Convening Authority any

written matters which may reasonably tend to affect the

Convening Authority’s decision whether to disapprove any

findings of guilty or approve the sentence. If you fail to

respond within these time limits, the Recommendation

will be submitted to the Convening Authority without

your comments. You and your counsel are not required

to raise objections to the trial proceedings in these com-

ments in order to preserve them for later review.

3. I request that you send any response you may have

to my recommendations by the most expeditious means

ee

12a

available. If you have any questions, please contact your

defense counsel.

/s/ Howard P. Sweeney

Howarp P. SWEENEY

Colonel USAF

Staff Judge Advocate

2 Atchs

1. Recommendation

2. Envelope

Ist Ind

To: HQ22 AF/JA

The attached Staff Judge Advocate’s Recommendation in

the subject case was received by me on 17 Jan. 1991. I

(do) intend to submit matters and/or responses to the

Staff Judge Advocate’s Recommendation.

/s/ Kevin L. Pierce

KEVIN L. PIERCE

Sgt, USAF

13a

APPENDIX E

11 February 1991

Addendum to the Staff Judge Advocate’s Recommenda-

tion—U.S. v Sgt Kevin L. Pierce

1. The accused’s military defense counsel acknowledged

receipt of a copy of the Recommendation on 16 January

1991. The accused acknowledged receipt of his copy on

17 January 1991. The accused was served with his copy

of the Record of Trial on 22 January 1991. On 4 Feb-

ruary 1991, I called the accused’s military defense coun-

sel, who indicated, as he had in his indorsement to our

letter transmitting the SJA’s Recommendation, that the

civilian defense counsel, Mr. Rathbone, was handling

clemency matters on his own. I also called Mr. Rathbone

on 4 February 1991, and he acknowledged that he had

received a copy of the Recommendation. He indicated

that he wanted another day to consider whether any mat-

ters would be submitted and, if so, he would call me on

5 February 1991. He did not call on 5 February 1991.

In as much as ten days have passed since the accused was

Served with his copy of the Record of Trial and the

SJA’s Recommendation, matters are now untimely.

2. I, therefore, continue to agree with the conclusions

and recommendations contained at paragraphs 39 and 40

of the Recommendation.

/s/ Gregory G. Parrott

GrEGorY G. PARROTT

Attorney-Advisor

Acting Director of Military Justice

I concur.

/s/ Howard P. Sweeney

Howarp P. SWEENEY

Colonel, USAF

Staff Judge Advocate

14a

APPENDIX F

January 27, 1994

To whom it may concern,

This letter is in rebuttal of a statement made by Mr.

Eric Rathbone, my civilian attorney for my Court Martial

held 3-7 December 1990. His statement says that several

days after the trial ended that he and his secretary had

dinner with my wife and myself, and that at that time,

I indicated that I was satisfied with the trial results and

did not wish to proceed with any further action. This is

simply not true. We did go out to dinner with Mr.

Rathbone and his secretary, and also my brother and his

girlfriend went with us to that dinner. We did not discuss

the appeal and that was not the reason for going to din-

ner with them. We would not go to a restaurant to openly

discuss my appeal in front of a crowd.

Also Mr. Rathbone was well aware that we did not think

it was fair that we could not have any medical tests done

on base and had been tested off base at our own expense.

He knew that we wanted that information submitted on

appeal and was supposed to take care of it. It was not

easy paying for those tests. We paid most of the bills by

borrowing money and taking credit card cash advances

to cover the costs. Mr. Rathbone was also well aware

that our off base doctor had tested us and discovered that

we were both testing positive for syphilis, had sent us to

another professional lab to rule out syphilis, and con-

cluded that in fact we did not have syphilis and that there

was a valid reason that we were both testing positive.

He found it odd that we were both testing positive to this

test and concluded that to continue testing would be very

expensive. We had no more money, so our co-counsel,

Capt. Baxter O. Elliot, put in a request to the base legal

office asking that we be allowed to continue the testing

on base. The request was denied by Gen. Trzaskoma,

who also is the same person who approved the findings of

the court martial.

15a

He (Mr. Rathbone) also stated that following our dinner,

we (my wife and myself) changed residency and after sev-

eral attempts to contact us, including leaving message with

my wife, eventually gave up trying. This is also not true.

If he did not know where we were living he could not have

left several messages with my wife. In fact, we continued

living in our on base quarters at 5337 C Hesse Ave until

April 1991, which at that time I began my appellate re-

view and moved off base. Enclosed are documents show-

ing that we moved on base on 14 March, 1988. Another

enclosed documents shows that we were living at the same

on base residence on 13 June, 1990. One other enclosed

document shows that after 11 May 1991, which is several

months after the dinner, that we be given one week to

vacate our on base quarters. After we vacated our on

base quarters in May 1991, we moved to 109 F Glen

Addie Blvd in Belleville, Illinois. Mr Rathbone had that

address as well. Enclosed is a copy of Scott Credit Union

check #152 showing that we paid Mr. Rathbone a pay-

ment on 09 August, 1991. The check had our new ad-

dress on it, and this was eight months after the trial. The

copy is of our carbon copy, so it is not easily readable,

but says that our address is 109 F Glen Addie Blvd,

Belleville, IL. It has my social security number, 333-64-

3758. It is payable to Eric Rathbone for the amount of

$50.00. It also has our account number, 716416, and

the date 09 Aug 1991.

If this copy (of the check) is not sufficiently readable I

believe that Scott Credit Union would be able to supply a

micro-fiche copy of this check upon request. Their ad-

dress is:

Scott Credit Union

W. Winters & J. Streets, Scott AFB, IL 62225

Enclosed with this letter are seven copies of documents,

labeled “Copy 1” thru “Copy 7” and a description of those

documents appear below:

16a

Copy 1—Copy of check to Mr. Rathbone 9 Aug, 1991

Copy 2—Copy of Gen. Trzaskoma’s disapproval of

medical tests.

Copy 3—Copy of 14 Mar 1988 move to on-base

housing

Copy 4—Copy showing we were at same on base loca-

tion on 13 June 1990, at which time we were

working with Mr. Rathbone and that he had

known our address on base during the entire case.

Copy 5—Copy showing that we continued to occupy

these same on base quarters until May of 1991,

which was several months after the trial.

Copy 6—A letter from wife stating facts about the din-

ner and my desire to submit matters for appeal.

Copy 7—A letter from my brother stating that he was

at the dinner and whether or not we discussed any

appeal matters at that dinner.

Thank you for allowing me to submit this information.

This information that I have submitted is completely true:

I would like to state once again that I did not at any time

say that I did not wish to submit appeal information. It

was never my intention to give up my rights for something

that I believe is very important. Thank you for consider-

ing this information.

Sincerely,

/s/ Kevin L. Pierce

KEVIN L. PIERCE

BEE

Pl ge ee eee

17a

APPENDIX G

UNITED STATES COURT OF MILITARY APPEALS

USCMA Dkt. No. 93-0185/AF

CMR Dkt. No. 29116

UNITED STATES,

Appellee

Vv.

KEVIN L. PIERCE,

(333-64-3758),

Appellant

ORDER

On consideration of appellant’s motion to submit docu-

ments, it is, by the Court, this 4th day of March, 1994.

ORDERED:

That said motion is hereby granted.

For the Court,

/s/ John A. Cutts, II

Deputy Clerk of the Court

cc: The Judge Advocate General of the Air Force

Appellate Defense Counsel (MAY)

Appellate Government Counsel (KONGABLE)

WY v. 5. coveenment primtine orice; 1994 383204 24001