           U NITED S TATES N AVY –M ARINE C ORPS
               C OURT OF C RIMINAL A PPEALS
                            _________________________

                                No. 201600253
                            _________________________

                   UNITED STATES OF AMERICA
                                      Appellee
                                          v.
                         MICHAEL K. STANTON
                  Lance Corporal (E-3), U.S. Marine Corps
                                Appellant
                         _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

  Military Judge: Lieutenant Colonel Elizabeth A. Harvey, USMC.
     For Appellant: Captain Bree A. Ermentrout, JAGC, USN.
 For Appellee: Major Kelli A. Oneil, USMC; Lieutenant Commander
                  Jeremy R. Brooks, JAGC, USN.
                      _________________________

                          Decided 17 November 2016
                           _________________________

Before C AMPBELL , R UGH , and H UTCHISON , Appellate Military Judges
                       _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                     _________________________

PER CURIAM:
    A military judge sitting as a special court-martial convicted the appellant,
consistent with his pleas, of one specification of absenting himself without
authority from his unit, and two specifications of wrongful use of drugs in
violation of Articles 86 and 112a, Uniform Code of Military Justice (UCMJ),
10 U.S.C. §§ 886 and 912a.1 The military judge sentenced the appellant to 64


    1 The sole specification of Charge II alleged the appellant wrongfully used cocaine

on or about 28 December 2015. Separate specifications under the Additional Charge
alleged he wrongfully used cocaine and wrongfully used 3,4-methylenedoxy-
methamphetamine, a schedule I controlled substance, on or about 31 January 2016.
days’ confinement and a bad-conduct discharge. The convening authority
(CA) approved the sentence as adjudged.2
    In his sole assignment of error, the appellant contends that he received
ineffective assistance of counsel when his detailed defense counsel requested
relief outside the authority of the CA to grant. We disagree, find no error
materially prejudicial to the appellant’s substantial rights, and affirm the
findings and sentence.
                                 I. BACKGROUND
    On 28 December 2015, the appellant submitted a urine sample that tested
positive for cocaine. On 30 January 2016, in the Gaslamp district of San
Diego, he was arrested by civilian authorities on suspicion of being under the
influence of a controlled substance. En route to the police station, the
appellant lost consciousness and was taken to Balboa Naval Hospital.
Consequently, he missed a 0830 muster on 31 January 2016. Upon returning
to his unit, the appellant provided another urine sample that tested positive
for both cocaine and 3, 4-methylenedioxy-methamphetamine.
    Trial defense counsel submitted a post-trial clemency request pursuant to
RULES FOR COURTS-MARTIAL 1105 and 1106, MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2012 ed.), asking that the CA disapprove the bad-conduct
discharge.
                                 II. DISCUSSION
    The National Defense Authorization Act for Fiscal Year 2014, Pub. L. No.
113-66, 127 Stat. 672 (2013), amended Article 60(c)(4), UCMJ, reducing the
CA’s ability to effect sentences in cases involving most offenses committed on
or after 24 June 2014. As a result, the CA could not grant the request to
disapprove the bad-conduct discharge. United States v. Kruse, __ M.J. __, No.
201600101, 2016 CCA LEXIS 650, at *8-10 (N-M. Ct. Crim. App. 3 Nov 2016)
(holding such an action by the CA to be ultra vires).
   The Sixth Amendment right to effective assistance of counsel at courts-
martial is a fundamental right of service members. United States v. Knight,
53 M.J. 340, 342 (C.A.A.F. 2000) (citing United States v. Palenius, 2 M.J. 86
(C.M.A. 1977)). That right extends to post-trial proceedings. United States v.
Cornett, 47 M.J. 128, 133 (C.A.A.F. 1997). Ineffective assistance of counsel
involves a mixed question of law and fact. United States v. Anderson, 55 M.J.

As an unreasonable multiplication of charges, the military judge merged for findings
the two specifications of the Additional Charge into a single specification.
   2 The pretrial agreement in the case required the CA to suspend any confinement
in excess of 60 days; since the appellant had already served 64 days in pretrial
confinement by the date of his trial, the PTA had no affect.

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198, 201 (C.A.A.F. 2001). The ultimate determinations of whether defense
counsel were deficient and whether the deficiency was prejudicial are
reviewed de novo. Id.; United States v. McClain, 50 M.J. 483, 487 (C.A.A.F.
1999).
   We apply the two-prong test set forth by the Supreme Court in Strickland
v. Washington, 466 U.S. 668, 687 (1984) to determine whether counsel
rendered ineffective representation. “The burden on each prong rests with the
appellant challenging his counsel’s performance.” United States v. Davis, 60
M.J. 469, 473 (C.A.A.F. 2005). The first prong requires the appellant to show
that counsel’s performance fell below an objective standard of reasonableness,
indicating that counsel was not functioning as counsel within the meaning of
the Sixth Amendment. United States v. Terlep, 57 M.J. 344, 349 (C.A.A.F.
2002). Our review of counsel’s performance is highly deferential and is
buttressed by a strong presumption that counsel provided adequate
representation. United States v. Garcia, 59 M.J. 447, 450 (C.A.A.F. 2004).
    The second prong requires a showing of prejudice resulting from counsel’s
deficient performance. Strickland, 466 U.S. at 687. With regards to post-trial
claims of ineffective assistance of counsel, courts must give an appellant the
benefit of the doubt and find that “there is material prejudice to the
substantial rights of an appellant if there is an error and the appellant
‘makes some colorable showing of possible prejudice.’” United States v.
Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998) (quoting United States v.
Chatman, 46 M.J. 321, 323-24 (C.A.A.F. 1997)).
   In this case, we need not determine whether trial defense counsel’s
performance was so deficient as to render him ineffective because we
conclude the appellant has not made a “colorable showing of possible
prejudice.”3 Id. The appellant has not articulated any specific prejudice that
resulted from the request for unauthorized relief and has submitted no
evidence indicating how his trial defense counsel’s clemency submission
contrasted with his wishes.4 Likewise, the appellant fails to adequately
describe what the CA “might have done to structure an alternative form of
clemency.” United States v. Capers, 62 M.J. 268, 270 (C.A.A.F. 2005).

   3 See United States v. Datavs, 71 M.J. 420, 424-25 (C.A.A.F. 2012) (noting that
courts are not required to determine whether counsel’s performance was deficient
before first examining whether the appellant suffered any prejudice).
    4 See e.g., United States v. Starling, 58 M.J. 620, 622-23 (N-M. Ct. Crim. App.

2003) (finding that bare allegations of inadequate representation are not entertained
by courts without submission of an affidavit showing how counsel acted contrary to
appellant’s wishes); United States v. Pierce, 40 M.J. 149, 151 (C.M.A. 1994) (finding
that vague or general intimations with regards to what the appellant would have
submitted to the CA is insufficient to show prejudice).

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    This is particularly significant given the approved sentence in this case.
The adjudged sentence included only the bad-conduct discharge and “time
served.”5 With no post-trial confinement, the appellant endured no automatic
forfeiture of pay pursuant to Article 58b, UCMJ. In fact, the only
punishment the CA could have acted upon was the appellant’s automatic
reduction in grade imposed pursuant to Article 58a, UCMJ.6 But the
appellant has provided no evidence to suggest that he desired any relief from
the automatic reduction in grade or, alternatively, that he was improperly
advised regarding any potential clemency. Absent such evidence, and given
the appellant’s sentence, we conclude there is no colorable showing of possible
prejudice.
                                 III. CONCLUSION
   The findings and the sentence as approved by the CA are affirmed.


                                           For the Court



                                              R.H. TROIDL
                                              Clerk of Court




   5  The appellant was awarded 64 days confinement, but he was credited with 64
days of pretrial confinement from 31 January 2016 to 4 April 2016.
    6 We note that the appellant specifically cites trial defense counsel’s failure to

request that the CA take action on modifying the confinement time as evidence of
prejudice. Appellant’s Brief of 6 Sep 2016 at 5. While we are mindful that the CA had
the authority to disapprove the appellant’s adjudged confinement even though it had
already been served, we find no possible prejudice to the appellant given the illusory
nature of such clemency.

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