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

                             No. 201700047
                         _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.

                      JOSHUA T. CHILDRESS
                    Private (E-1), U.S. Marine Corps
                               Appellant
                        _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

   Military Judge: Lieutenant Colonel Keith A. Parrella, USMC.
  Convening Authority: Commanding Officer , 2d Battalion, 10th
    Marine Regiment, 2d Marine Division, Camp Lejeune, NC.
   Staff Judge Advocate’s Recommendations: Major Winston G.
                         McMillan, USMC.
 For Appellant: Lieutenant Commander Derek C. Hampton, JAGC,
                               USN.
 For Appellee: Captain Brian L. Farrell, USMC; Lieutenant James
                     M. Belforti, JAGC, USN.
                       ______________________

                          Decided 31 July 2017
                         _________________________

   Before C AMPBELL , F ULTON , 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:
   At an uncontested special court-martial, a military judge convicted the
appellant of willful disobedience of a superior commissioned officer, wrongful
use of a controlled substance, wrongful introduction of a controlled substance,
                       United States v. Childress, No. 201700047


and malingering, violations of Articles 90, 112a, and 115, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 890, 912a, and 915. The convening
authority (CA) approved the adjudged sentence of 60 days’ confinement and a
bad-conduct discharge.1
    In his sole assignment of error, the appellant contends he received
ineffective assistance of counsel when his detailed defense counsel requested
post-trial relief outside the authority of the CA to grant. We find no prejudice
and affirm.
                                  I. BACKGROUND
    From 24 June to 10 August 2016, the appellant committed the misconduct
for which he was eventually convicted: (1) bringing Psilocybin—a form of
psychedelic mushroom—onto Marine Corps Base Camp Lejeune and then
ingesting them at his residence; (2) violating a military protective order from
his commanding officer by calling his wife; and (3) intentionally overdosing
on an over-the-counter dietary supplement to avoid an upcoming field
exercise.
    On 10 January 2017, the staff judge advocate (SJA) correctly advised the
CA that, “[b]ecause the adjudged sentence includes a Bad-Conduct Discharge,
except as provided in the pretrial agreement, you may not disapprove,
commute or suspend the sentence of the Bad-Conduct Discharge.”2 Despite
this explanation, the trial defense counsel (TDC) then submitted a post-trial
clemency request pursuant to RULES FOR COURTS-MARTIAL 1105 and 1106,
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.), that asked the CA
to disapprove the bad-conduct discharge and, instead, to separate the
appellant administratively.3 After receiving the TDC’s clemency request, the
SJA submitted an addendum to the CA, again recommending approval of the
sentence adjudged.
                                   II. DISCUSSION
   The National Defense Authorization Act for Fiscal Year 2014 (FY14
NDAA), Pub. L. No. 113-66, 127 Stat. 672 (2013), amended Article 60, UCMJ,
limiting the CA’s ability to reduce sentences in cases involving most offenses
committed on or after 24 June 2014. As a result of these changes, the CA
could not grant TDC’s requested relief of disapproval of the adjudged bad-




   1 Pursuant to a pretrial agreement, the CA suspended confinement in excess of
45 days.
   2   Staff Judge Advocate’s Recommendation (SJAR) of 10 Jan 2017 at 2.
   3   Trial Defense Counsel Letter of 16 Jan 2017.


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                       United States v. Childress, No. 201700047


conduct discharge. See United States v. Kruse, 75 M.J. 971, 975 (N-M. Ct.
Crim. App. 2016) (holding such an action by the CA to be ultra vires).
     “By virtue of Article 27, UCMJ, 10 U.S.C. § 827, as well as the Sixth
Amendment of the Constitution, a military accused is guaranteed the
effective assistance of counsel.” United States v. Scott, 24 M.J. 186, 187-88
(C.M.A. 1987) (citations omitted). That right extends to post-trial
proceedings. United States v. Cornett, 47 M.J. 128, 133 (C.A.A.F. 1997). In
reviewing claims of ineffective assistance of counsel, we ‘“look[] at the
questions of deficient performance and prejudice de novo.”’ United States v.
Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012) (quoting United States v. Gutierrez,
66 M.J. 329, 330-331 (C.A.A.F. 2008)). However, we “must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F.
2007) (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)). Thus, the
appellant bears the burden of demonstrating (1) that his counsel’s
performance was deficient to the point that he “was not functioning as the
‘counsel’ guaranteed . . . by the Sixth Amendment” and (2) that the deficient
performance prejudiced the defense to an extent that deprived the appellant
of a fair trial. Id. (citations and internal quotation marks omitted).
    However, “[w]hen reviewing ineffectiveness claims, a court need not
determine whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant.” Datavs, 71 M.J. 424. In evaluating post-
trial ineffective assistance of counsel for prejudice, we give the 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)).
    We find that the appellant has not made a colorable showing of possible
prejudice. Despite arguing his TDC erred in leading him “to believe that he
had the opportunity to receive clemency,” the appellant conceded that, “he
stood no chance to receive clemency whatsoever.”4 Consequently, the
appellant cannot 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). Indeed, at the time of the CA’s action, the appellant
had already served the adjudged confinement. Consequently, the only relief
available to the appellant would have been retroactive action on either
confinement or the deferment of the automatic forfeiture of two-thirds pay
per month pursuant to Article 58b, UCMJ, during that previously served


   4   Appellant’s Brief of 29 Mar 2017 at 6.


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                   United States v. Childress, No. 201700047


confinement period. But the appellant has provided no evidence to suggest
that he desired any such relief. Instead, the appellant asserts, as prejudice,
that the request for unauthorized clemency undermined the TDC’s
credibility; and that this court should, therefore, grant him the only
meaningful relief remaining—disapproval of the punitive discharge. Without
any colorable showing of possible prejudice, however, this relief amounts to
clemency, which is not the province of this court. United States v. Healy, 26
M.J. 394, 395 (C.M.A. 1988).
                              III. CONCLUSION
   The findings and sentence as approved by the CA are affirmed.


                                      For the Court




                                      R.H. TROIDL
                                      Clerk of Court




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