              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                               Before
          J.R. MCFARLANE, M.C. HOLIFIELD, K.J. BRUBAKER
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

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

                            NMCCA 201200461
                        SPECIAL COURT-MARTIAL

Sentence Adjudged: 12 December 2013.
Military Judge: Maj N.A. Martz, USMC.
Convening Authority: Commanding General, 2d Marine
Division, Camp Lejeune, NC.
Staff Judge Advocate's Recommendation: Maj J.N. Nelson,
USMC.
For Appellant: CAPT Tierney Carlos, JAGC, USN.
For Appellee: Capt Cory A. Carver, USMC.

                            28 October 2014

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                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:
     On 27 June 2012, a military judge, sitting as a general
court-martial, convicted the appellant, pursuant to his pleas,
of 15 specifications of wrongful possession of a controlled
substance in violation of Article 112a, Uniform Code of Military
Justice, 10 U.S.C. § 912a. The military judge sentenced the
appellant to confinement for two years, reduction to pay grade
E-1, and a dishonorable discharge. The convening authority (CA)
approved the adjudged sentence. Pursuant to a pretrial
agreement, the CA suspended all confinement in excess of 180
days.

     On 30 May 2013, a panel of this court set aside the
findings and sentence, finding the appellant did not receive the
benefit of a term in the pretrial agreement pertaining to
forfeitures, and authorized a retrial. United States v. McCall,
No. 201200461, 2013 CCA LEXIS 471 (N.M.Ct.Crim.App. 30 May
2013).

     At a rehearing on 12 December 2013, a military judge,
sitting as a special court-martial, convicted the appellant,
pursuant to his pleas, of the same 15 specifications of wrongful
possession of a controlled substance in violation of Article
112a, UCMJ. The military judge sentenced the appellant to
confinement for 180 days, hard labor without confinement for 15
days, reduction to pay grade E-1, and a bad-conduct discharge.
Pursuant to a new pretrial agreement, the CA disapproved the
hard labor without confinement, but approved the remainder of
the sentence.

     The appellant now assigns two errors: (1) the appellant was
denied effective assistance of counsel when his defense counsel
failed to submit clemency matters; and (2) the bad-conduct
discharge is inappropriately severe.

     After careful consideration of the record and the briefs of
the parties, we find merit in the first assignment of error and
grant relief in our decretal paragraph. Arts. 59(a) and 66(c),
UCMJ. Because we resolve the first assignment of error in favor
of the appellant, we decline to address the second.

                           Background

     In an unsworn declaration submitted under penalty of
perjury, the appellant states that he and his trial defense
counsel (TDC) discussed submitting clemency matters after the
rehearing. The appellant asserts he “was very interested in
trying to get the convening authority to disapprove the bad-
conduct discharge” and was “under the impression” after this
discussion that his TDC was going to submit matters consistent
with this goal. Appellant’s Motion to Attach filed on 17 Jul
2014, Appellant’s Declaration at 1. He specifically says he had
been hired by Dish Network while on appellate leave, had been
let go when recalled for the rehearing, but had hoped to be re-
hired. He wanted the CA to know before taking action that after


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the rehearing, he attempted to get his job back at Dish Network,
but was not rehired.

     In response to the appellant’s declaration, we ordered the
Government to produce an affidavit from the appellant’s TDC. In
it, the TDC states he reviewed the post-trial process with the
appellant both before and after sentencing. He says:

    I told [the appellant] that we could submit matters in
    clemency, which would more or less consist of the
    matters raised in sentencing by the defense. I also
    relayed that throughout my interactions with the
    command, I had been told that the referral of the case
    to a Special rather than General Court-Martial was
    considered to be ample consideration for the
    mitigating and extenuating circumstances of the case,
    and that further reductions in punishment would not be
    accepted. Based on this, my opinion was that a
    submission of clemency would not alter the adjudged
    punishment. [The appellant] consented to my
    assessment and did not ask that matters in clemency
    nonetheless be submitted.

Government Response to Court Order filed on 17 Sep 2014, TDC’s
Affidavit of at 2.

     The TDC then went on to identify mistakes he believes he
made “without commenting on whether these mistakes constitute
ineffective assistance,” including: that he failed to have the
appellant sign a written acknowledgement regarding a decision
not to submit matters; that there was no downside to submitting
matters and requesting clemency despite what stances the
Government may have taken in pretrial negotiations; and that his
judgment may have been wrong——that the additional fact that the
appellant tried after the rehearing but failed to return to his
former job may have had some impact on the CA. Id. at 2-3.

                           Discussion

     We review the effectiveness of counsel de novo. United
States v. Wiley, 47 M.J. 158, 159 (C.A.A.F. 1997). An accused
has a Sixth Amendment right to effective assistance of counsel,
including in preparation and submission of post-trial matters.
United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001).   TDC
enjoys a strong presumption he rendered competent, professional
assistance. Strickland v. Washington, 466 U.S. 668, 689 (1984);
United States v. Lowe, 50 M.J. 654, 656 (N.M.Ct.Crim.App. 1999).

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As a general rule, the appellant bears a heavy burden of
overcoming this presumption and demonstrating (1) that his
counsel’s performance was so deficient that he was not
functioning as “counsel” within the meaning of the Sixth
Amendment; and (2) that his counsel’s deficient performance
prejudiced the appellant, that is, there is a reasonable
probability that but for the unprofessional error, the outcome
would have been different. Strickland, 466 U.S. at 687, 694.

     There is, however, a lower threshold to demonstrate
prejudice in claims of post-trial ineffective assistance of
counsel. In those cases, appellate courts give appellants “the
benefit of the doubt” and find material prejudice as long as
“there is an error and the appellant makes some colorable
showing of possible prejudice.” United States v. Lee, 52 M.J.
51, 53 (C.A.A.F. 1999) (citations and internal quotation
marksomitted).

     Courts have long held that submission of matters to the CA
is an appellant’s “best chance for post-trial clemency.” United
States v. Wheelus, 49 M.J. 283, 287 (C.A.A.F. 1998). Still,
failure to submit clemency matters is not a per se violation of
the appellant’s right to effective assistance of counsel.
United States v. Cobe, 41 M.J. 654, 655 (N.M.Ct.Crim.App. 1994).
Instead, we have required appellants to specify how counsel’s
inaction contrasted with their wishes and what additional
matters they would have submitted. United States v. Starling,
58 M.J. 620, 623 (N.M.Ct.Crim.App. 2003).

     Here, the appellant has expressed that he desired his
counsel to submit matters and believed he was going to do so.
He also specifies what he would have submitted. We do not doubt
the TDC’s word that he explained the likely futility of
submitting matters and that the appellant “consented to [this]
assessment” and nonetheless did not expressly ask that matters
be submitted. We note, however, that the TDC, in his carefully
worded affidavit, falls short of stating that the appellant
affirmatively and knowingly waived his right to submit matters.
We also agree with the TDC’s candid self-assessment that he
should have obtained such a waiver in writing. A written
acknowledgement would have clearly communicated to the appellant
that he was giving up an important right and documented that
decision. Under the circumstances of this case, we decline to
find the appellant waived his right to submit matters and find
error under the first prong of the Strickland test.



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     We further find prejudice under the forgiving Lee standard.
Without speculating how the CA might have exercised his highly
discretionary power to grant clemency had the appellant
submitted the matters he desired, we give the “benefit of the
doubt” to the appellant and find he has made “some colorable
showing of possible prejudice.” Lee, 52 M.J. at 53

                           Conclusion

     The CA’s action dated 6 March 2014 is set aside. The
record of trial is returned to the Judge Advocate General of the
Navy for remand to an appropriate CA for new post-trial
processing consistent with this opinion.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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