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

                                  No. 201600337
                             _________________________

                     UNITED STATES OF AMERICA
                                      Appellee
                                          v.
                            BRIAN J. GARDINER
                  Chief Air Traffic Controller (E-7), U.S. Navy
                                    Appellant
                            _________________________

    Appeal from the United States Navy-Marine Corps Trial Judiciary

          Military Judge: Captain Robert J. Crow, JAGC, USN.
  Convening Authority: Commander, Navy Region Southeast, Naval Air
                        Station, Jacksonville, FL.
 Staff Judge Advocate’s Recommendation: Lieutenant Commander George
                         W. Lucier, JAGC, USN.
   For Appellant: Gary Myers, Esq.; Lieutenant Commander William L.
                           Geraty, JAGC, USN.
For Appellee: Lieutenant George R. Lewis, JAGC, USN; Lieutenant Megan
                         P. Marinos, JAGC, USN.
                         _________________________

                            Decided 28 December 2017
                             _________________________

     Before H UTCHISON , FULTON, and SAYEGH, 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.

                             _________________________
HUTCHISON, Senior Judge:
   At a contested general court-martial, a panel of officer and enlisted members
convicted the appellant of two specifications of aggravated sexual abuse of a child
and three specifications of sexual assault of a child, in violation of Articles 120 and
                        United States v. Gardiner, No. 201600337


120b, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 (2008) and 10
U.S.C. § 920b (2012), respectively. The members sentenced the appellant to 25 years’
confinement, total forfeiture of pay and allowances, reduction to pay grade E-1, and
a dishonorable discharge. The convening authority approved the sentence as
adjudged.
    The appellant initially raised a single assignment of error: that he received
ineffective assistance from his defense counsel. In a supplemental filing, the
appellant raised three additional assignments of error pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982): that the appellant was subjected to a
prejudiced panel with inflamed passions; that a Naval Criminal Investigative
Service (NCIS) Agent testified to facts outside the scope of her knowledge; and that
the government violated 18 U.S.C. § 3500 (the “Jencks Act”) by failing to disclose
statements made by government witnesses to a family advocacy counselor. We have
considered the appellant’s three supplemental assignments of error and find them to
be without merit. United States v. Clifton, 35 M.J. 79 (C.M.A. 1992). We therefore
discuss in detail only whether the appellant was denied effective assistance of
counsel. Having carefully considered the record of trial and the parties’
submissions—including the declarations submitted by the appellant and the
affidavit submitted by the trial defense counsel (TDC)—we conclude the findings
and sentence are correct in law and fact and find no error materially prejudicial to
the appellant’s substantial rights. Arts. 59(a) and 66(c), UCMJ.
                                   I. BACKGROUND
    The appellant was convicted of sexually abusing his stepdaughter, HS, beginning
in 2011, and continuing until 2014, when HS was between 13 and 15 years old. HS
testified that the abuse began when the appellant was stationed in Bremerton,
Washington and then escalated after the family moved to Pensacola, Florida. Over
the course of several months, the appellant had sexual intercourse, oral sex, and
anal sex, with HS in various rooms of their house onboard Naval Air Station (NAS)
Pensacola, Florida, in the appellant’s truck while parked in various locations
onboard the installation, at the appellant’s workplace, and at the on-base Navy
Gateway Inn and Suites (NGIS).
   In addition to HS, the government called JG—the appellant’s wife and HS’s
mother. JG described an incident where she was awakened by her dog scratching on
HS’s bedroom door, got up to let the dog into HS’s room, and realized the appellant
was in the room. JG initially claimed she could not see anything because it was
dark. But after being confronted with a statement she made to NCIS investigators,
JG admitted that she knew the appellant was in the room and asked him “what was
going on?”1 JG conceded she thought it was strange for the appellant to be in HS’s


   1   Record at 449.
                                           2
                         United States v. Gardiner, No. 201600337


room. But, according to JG, the appellant told her that he was simply rubbing HS’s
back because she wasn’t feeling well, and that JG was “sick” to even think anything
inappropriate was occurring.2
    The government also admitted a receipt showing that the appellant paid for a
one-night stay at the NAS Pensacola NGIS for 5 July 20133 and photos of the
various rooms in the appellant’s home, photos of his truck, and photos of his work
center. Notably, the appellant’s work center had unique ceiling tiles. Each tile was
emblazoned with a painting representing a different command and the name of the
various air traffic controllers assigned to the command. HS testified that she saw a
ceiling tile from one of the appellant’s previous commands with the appellant’s name
on it when the appellant took her to his work center to have sex with her.4
   The defense’s case-in-chief consisted of a single exhibit—a diagram of the
appellant’s NAS Pensacola home used during cross-examination of HS—and a single
witness. The witness was one of the appellant’s co-workers who testified that she
gave HS a tour of the appellant’s work center and specifically pointed out the
various ceiling tiles, unique to the work center. Following the witness testimony the
defense rested.
   On appeal, the appellant submitted a declaration under penalty of perjury
contending that he was told by his TDC that he was going to testify but was not
adequately prepared to do so. The declaration then alleges that, once at trial, the
TDC would not let the appellant testify. In addition to the appellant’s declaration,
the appellate defense counsel attached declarations from witnesses the TDC
declined to call at trial.
    Following our 31 August 2017 order, the TDC submitted an affidavit responding
to the allegations contained in the various declarations submitted on behalf of the
appellant.5
                                         II. DISCUSSION
    The appellant avers that his trial defense counsel were ineffective because they
failed to call multiple witnesses who were “available to testify and who would have
been pivotal to the defense,” and then denied the appellant his right to testify in his


   2  Id. HS had previously testified about this encounter. According to her, the appellant
was having vaginal intercourse with her when JG opened the door and then closed it “like
really quickly[,]” before the appellant “jumped up immediately” and went downstairs to talk
to a crying JG. Id. at 337-38.
   3   See Prosecution Exhibit (PE) 7.
   4   See PE 6 at 5.
   5    See Appellee’s Motion to Attach filed on 8 Sep 2017, Affidavit of LCDR PH of 8 Sep
2017.
                                               3
                         United States v. Gardiner, No. 201600337


own defense.6 We review ineffective assistance of counsel claims de novo. United
States v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015).
     The Sixth Amendment entitles criminal defendants to representation that does
not fall “below an objective standard of reasonableness” in light of “prevailing
professional norms.” Strickland v. Washington, 466 U.S. 668, 688 (1984). The Court
of Appeals for the Armed Forces (CAAF) has applied this standard to courts-martial,
noting that “[i]n order to prevail on a claim of ineffective assistance of counsel, an
appellant must demonstrate both (1) that his counsel’s performance was deficient,
and (2) that this deficiency resulted in prejudice.” United States v. Green, 68 M.J
360, 361 (C.A.A.F. 2010) (citations omitted). A counsel’s performance is deficient if
“that counsel made errors so serious that [he] was not functioning as the ‘counsel’
guaranteed . . . by the Sixth Amendment.” Strickland, 466 U.S. at 687. In order to
show prejudice under Strickland, “[t]the defendant 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.” Strickland, 466 U.S. at 694.
   When an ineffective assistance claim is raised by a post-trial declaration, we
apply the six principles established in United States v. Ginn to determine whether
we can decide the case without further fact-finding:
            (1) if the facts alleged in the affidavit allege an error that would
         not result in relief even if any factual dispute were resolved in the
         appellant’s favor, the claim may be rejected on that basis;
             (2) if the affidavit does not set forth specific facts but consists
         instead of speculative or conclusory observations, the claim may be
         rejected on that basis;
             (3) if the affidavit is factually adequate on its face to state a claim
         of legal error and the Government either does not contest the relevant
         facts or offers an affidavit that expressly agrees with those facts, the
         court can proceed to decide the legal issue on the basis of those
         uncontroverted facts;
            (4) if the affidavit is factually adequate on its face but the
         appellate filings and the record as a whole compellingly demonstrate
         the improbability of those facts, the court may discount those factual
         assertions and decide the legal issue;
            (5) when an appellate claim of ineffective representation
         contradicts a matter that is within the record of a guilty plea, an
         appellate court may decide the issue on the basis of the appellate file


   6   Appellant’s Brief of 3 Apr 2017 at 2-3 and 7-8.
                                                4
                      United States v. Gardiner, No. 201600337


       and record (including the admissions made in the plea inquiry at trial
       and appellant’s expression of satisfaction with counsel at trial) unless
       the appellant sets forth facts that would rationally explain why he
       would have made such statements at trial but not upon appeal; and
           (6) the Court of Criminal Appeals is required to order a fact-
       finding hearing only when the above-stated circumstances are not
       met.
47 M.J. 236, 248 (C.A.A.F. 1997). With this legal framework in mind, we examine
each of the appellant’s claims.
A. Failure to call witnesses
    “A trial defense counsel’s decision on whether to call a witness is a tactical
decision.” Akbar, 74 M.J. at 390 (citations omitted). Strategic or tactical decisions
made by counsel will not be second-guessed on appeal unless the appellant shows
specific defects in performance that were unreasonable under prevailing professional
norms. United States v. Mazza, 67 M.J. 470, 475 (C.A.A.F. 2009). Therefore, in order
to prevail, the appellant has the heavy burden of establishing that his TDC’s tactical
decision to forego calling witnesses was unreasonable. See United States v. Datavs,
71 M.J. 420, 424 (C.A.A.F. 2012) (Trial defense counsel performance is not deficient
“when [he] make[s] a strategic decision to accept a risk or forego a potential benefit,
when it is objectively reasonable to do so)” (citation omitted); see also United States
v. Adams, 59 M.J. 367, 370 n.5 (C.A.A.F. 2004) (“An appellant’s burden is heavy
because counsel is presumed to have performed in a competent, professional
manner”).
    Applying the third Ginn factor, the declarations submitted by potential defense
witnesses on behalf of the appellant are adequate to state a claim of legal error and
the TDC’s affidavit does not contest the substance of the declarants’ proffered
testimony. Rather, the TDC’s affidavit offered reasonable explanations for his
decisions not to call each declarant as a witness. Consequently, we find, without the
need for further fact-finding, that the appellant has failed to establish either
deficient performance or prejudice. We review each of the appellant’s assertions
below.
   1. Failure to call members of the appellant’s family
    The appellant contends that the collective testimony of his wife, JG, his mother,
SG, and the appellant’s stepson, AS—all of whom knew the appellant and HS well
and observed them closely—could have established reasonable doubt. JG asserts in
her declaration that, had she been asked during cross-examination, she would have
testified that in her opinion, her daughter, HS, was not a truthful person, and that




                                          5
                         United States v. Gardiner, No. 201600337


HS “can be highly manipulative of others.”7 The declarations of AS and SG generally
assert they observed nothing out of the ordinary between the appellant and HS.
    The TDC’s affidavit explains his rationale for not calling JG in his case in chief
or cross-examining her regarding HS’s character for truthfulness: he was concerned
that putting JG on the stand to “accuse her daughter of being a liar, when the
government was arguing that JG was covering for [the appellant] for monetary
reason (sic)” would cause additional harm to the defense.8 Additionally, the TDC
noted that JG would routinely change her answers when they spoke to her and they
did not want to risk putting her on the stand and having her say something for
which they were unprepared. We find nothing unreasonable about this decision.
    Likewise, the TDC explained that calling AS to testify would also have caused
harm to the defense. Specifically, HS and her friend, BR, each testified that the
appellant forced AS to watch pornography. Putting AS on the stand would have
opened the door to questions about the appellant providing pornography to a minor.
Moreover, since AS was not called to testify, the TDC was able to forcefully argue
that the government had failed to call AS, despite the fact that his bedroom was
right next to HS’s.9
    Finally, we find nothing objectively unreasonable about the TDC’s tactical
decision not to have SG testify. SG was the appellant’s mother, did not live with the
appellant and HS, and only observed their interactions during short visits to
Pensacola and during a six-week period when the appellant and his family stayed
with her while transferring from Bremerton, Washington to Pensacola. In his
affidavit, the TDC stated that he did not believe SG’s testimony added much value
and noted that SG was “understandably very emotional during the trial.”10
   Moreover, the TDC was concerned that calling SG would emphasize the
unexplained single night hotel stay from 5 July 2013. SG confirmed in her reply to
the TDC’s affidavit that she and her husband stayed in the NAS Pensacola NGIS




   7   Appellant’s Motion to Attach filed 3 Apr 2017, Declaration of JG of 12 Feb 2017 at 2.
   8   Affidavit of LCDR PH at 2.
   9   See Record at 624 (“They did not bring him to you. Why? Ask yourself why.”).
    10 Affidavit of LCDR PH at 2. Although SG denies that she was emotional in her reply,

see Appellant’s Motion to Attach filed 26 Sep 2017, Declaration of SG of 25 Sep 2017 at 1, we
do not find this to be a factual dispute requiring further fact-finding pursuant to Ginn.
Rather, whether someone is “emotional” is an opinion on which reasonable persons may
disagree. The TDC also did dispute SG’s assertions that he “was rushing to get [the
appellant’s] court-martial over with so he could be at another court-martial[.]”Appellant’s
Motion to Attach filed 3 Apr 2017, Declaration of SG at 2. Applying Ginn’s second factor, we
reject this “speculative or conclusory” observation. Ginn, 47 M.J. at 248.
                                                6
                           United States v. Gardiner, No. 201600337


when they came to visit the appellant, but did not stay at the NGIS on that date.11
The government originally sought to introduce receipts for all of the appellant’s
NGIS bookings in order to depict 5 July 2013 as an outlier—a single night stay amid
several other lengthier visits.12 The TDC successfully objected on relevance grounds
and the military judged excluded all of the receipts except for the one corresponding
to 5 July 2013. The TDC’s theory regarding that date hinged on HS’s testimony that
when she left the NGIS after the appellant had sex with her, it was around 1730 and
dark outside. The TDC argued that because sunset was much later than 1730 on 5
July 2013, the sexual assault could not have happened at the NGIS the way HS
described it, and therefore, she was fabricating her story.13 The TDC, otherwise, had
no explanation for the 5 July 2013 NGIS receipt. Calling SG to testify would have
confirmed for the members that she and her husband did not stay at NGIS on that
night, and would have highlighted that the defense had no explanation for the NGIS
receipt—and possibly opened the door to the additional NGIS information.
   Accordingly, we find the TDC’s decisions not to call JG, SG, or AS to be
reasonable and decline to second-guess his trial strategy. United States v. Paxton, 64
M.J. 484, 490 (C.A.A.F 2007) (citing United States v. Perez, 64 M.J. 239, 243
(C.A.A.F. 2006)).
     2. Failure to call expert
   The appellant claims that the TDC erred by failing to call an expert psychologist
employed by the defense, Dr. MW, during both the merits phase of the trial and
during sentencing. We will examine both claims.
    According to Dr. MW’s declaration, had he been called to testify on the merits, he
would have explained that HS’s “sexual precociousness” was just as likely the cause
of her knowledge of oral, vaginal and anal intercourse, and of various sexual
positions, as was any sexual contact with the appellant.14 Dr. MW would have
further explained that HS’s precociousness was not normative behavior, but could
have been caused by pressure exerted by boys with whom she was sexually active.
The TDC was concerned, however, that putting Dr. MW on the stand would subject
him to cross-examination about the appellant’s alleged “grooming behavior, gifts,
escalation of touching . . . that we did not want before the members.”15 Likewise, the


    11 See Declaration of SG of 25 Sep 2017 at 1 (“[A]ll of the hotel room dates were

explained. There was just one night that my husband and I did not know about.”).
     12   See Record at 534-44; Appellate Exhibit (AE) XXXIV.
      See AE XXXV. The military judge took Judicial Notice that sunset on 5 July 2013 was
     13

at 1955.
     14   Appellant’s Motion to Attach filed 3 Apr 2017, Declaration of Dr. MW of 21 Feb 2017 at
2.
     15   Affidavit of LCDR PH at 4.
                                                 7
                         United States v. Gardiner, No. 201600337


TDC was concerned that putting Dr. MW on the stand might open the door to
evidence that HS was cutting herself—evidence that the TDC had successfully
suppressed. In addition, the fact that HS was sexually active was already before the
members and the TDC did not believe Dr. MW’s testimony would have helped
establish reasonable doubt. We do not find the TDC’s reasoned decision to forego
having Dr. MW testify to be objectionably unreasonable given the potential harm it
might have caused.
    Regarding sentencing, Dr. MW would have testified that the appellant had a low
likelihood for reoffending, that five to ten years in a controlled environment “would
be more than sufficient to provide insight and skills acquisition” to prevent
reoffending, and that the appellant demonstrated the “capacity for self-control.”16
While Dr. MW notes in his declaration that the TDC thought his test results could
be misinterpreted by the members, Dr. MW disagreed because “[he] could have
explained why the test results were favorable, as they predict a low likelihood of
recidivism.”17 The TDC confirmed in his affidavit that he was concerned the results
would be misinterpreted by the members, or that the government would have been
able to use the results against the appellant. Specifically, the TDC noted in Dr.
MW’s report several “possible personality diagnoses that would have harmed our
sentencing case.”18 We apply “a heavy measure of deference to counsel’s judgments.”
Strickland, 466 U.S. at 691. TDC’s decision here to forego calling Dr. MW during the
appellant’s presentencing case was made after a thorough discussion with both Dr.
MW and attorneys from the Navy’s Defense Counsel Assistance Program.19 We find
no basis to conclude the TDC’s course here was unreasonable. Paxton, 64 M.J. at
490.
   3. Failure to call HS’s boyfriend
    According to his declaration, IMJ dated HS during the charged period and would
have testified that he and HS were sexually active, that he was caught by the
appellant “throwing pebbles at [HS’s] window” in the middle of the night to get her
attention, that HS never told him she was being molested by the appellant, and that
he never observed anything that suggested the appellant was abusing HS.20 IMJ
also indicated in his declaration that he “was never contacted to testify” at the


   16   Declaration of Dr. MW at 2.
   17   Id.
   18   Affidavit of LCDR PH at 4.
   19   The Defense Counsel Assistance Program provides “advice and assistance to trial
defense counsel in the field when requested throughout every phase of court-martial
litigation.” Commander, Naval Legal Service Command Instruction 5800.1G §1200 at 12-1
(25 Feb 2013).
   20   Appellant’s Motion to Attach filed 3 Apr 2017, Declaration of IMJ of 16 Feb 2017 at 1.
                                                8
                          United States v. Gardiner, No. 201600337


appellant’s court-martial.21 While the appellant contends in his brief that his
“defense counsel failed to investigate or even contact [IMJ], an obvious and available
witness,” there is no support for such an assertion in IMJ’s declaration.22 Rather,
IMJ simply declared that he was never contacted to testify at the court-martial.
Indeed, in his uncontroverted affidavit, the TDC explained that he interviewed IMJ,
was concerned about IMJ’s recollection of his encounter with the appellant when he
was caught throwing pebbles at HS’s window, and decided “not to request him at
trial.”23 Again, we find nothing unreasonable about this tactical decision, given the
limited value of IMJ’s testimony.
    We hold that the choices made by the TDC were reasonable under the facts of
this case and will not engage in the “intrusive hindsight analysis of the very sort
that Strickland warned against.” United States v. Curtis, 44 M.J. 106, 125 (C.A.A.F.
1996). In any event, any potential errors in not calling the potential witnesses were
not “so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.” Strickland, 466 U.S. at 687. None of the witnesses would have rebutted the
government’s theory that the appellant sexually assaulted HS in private, and as
noted supra, their testimony could have, instead, caused significant harm to the
appellant’s case.
B. Right to testify
    The right to testify is constitutionally protected and belongs exclusively to the
accused. United States v. Belizaire, 24 M.J. 183, 184-85 (C.M.A. 1987). In his post-
trial declaration, the appellant asserts that although the TDC told him he was going
to testify, he only spent one hour with his attorneys preparing for his testimony
prior to trial. At trial, after the TDC finished with the sole defense witness, the
appellant claims his attorneys “took [him] to a room in the back of the court-room”
where he was told he was not being called to testify because he would “do more harm
than good.”24 According to the appellant, he told the TDC, “If I am going to go down
for [expletive] I didn’t do, then I want to take the stand[,]” but the TDC simply
replied, “We are not calling you. You are not ready for cross-examination[.]”25
   In his affidavit, the TDC states that he conducted two separate practice sessions
with the appellant, totaling approximately seven hours, where both the TDC and


   21   Id. (emphasis added)
   22   Appellant’s Brief at 13.
   23 Affidavit of LCDR PH at 3. The TDC explained that according to IMJ, the appellant
yelled and became physical with him, and the TDC was concerned about how the members
might misconstrue the appellant’s actions.
   24  Appellant’s Motion to Attach filed 3 Apr 2017, Appellant’s Declaration of 15 Feb 2017
at 1-2.
   25   Id.
                                             9
                         United States v. Gardiner, No. 201600337


assistant defense counsel asked the appellant questions they expected the
government to ask on cross-examination. The TDC then told the appellant before
trial “that it would be better . . . if he did not testify, because we did not think he
would do well under cross examination and would do more harm than good to his
case, but we had to wait and see how the evidence came out at trial.”26 Then after
the government rested its case, the TDC met with the appellant in the defense
witness room and “asked him point blank ‘are you good with not testifying’ and he
said he trusted us.”27 Finally, the TDC asserts that after he called his one witness,
and before he rested, he once again leaned over and asked the appellant “are you
good,” and the appellant responded that he was.
   In the appellant’s reply to the TDC’s affidavit, he concedes that his defense
counsel conducted two “mock trials” but maintains that together they amounted to
only about an hour’s worth of prep time. The appellant also denies that the TDC
ever asked him if he was “good” before resting.
   Despite these conflicting accounts, we need not order a hearing to resolve this
aspect of the appellant’s claim, because, mindful of Ginn’s fourth factor, these
matters may be resolved based on the “appellate filings and the record.” Ginn, 47
M.J. at 248. Indeed, in United States v. Dewrell the CAAF relied upon Ginn to
examine an ineffective assistance of counsel claim with remarkably similar facts to
the case before us. 55 M.J. 131 (C.A.A.F. 2001).
    Dewrell claimed that despite his desire to testify, his civilian defense counsel
simply rested without presenting any evidence and without discussing it with him.
Id. at 134. Although the appellant and his counsel presented differing accounts of
their conversations, the CAAF looked to the record and recognized that: (1) there
was a two-hour break after both parties rested, followed by an Article 39(a), UCMJ,
session in which Dewrell could have made known his desire to testify; (2) there was
no indication Dewrell rejected his counsel’s advice; and (3) Dewrell made no
complaint about his defense counsel in any post-trial submission to the convening
authority. Id. at 135. The CAAF concluded that Dewrell’s “failure to speak up at or
after trial belies his assertion that his desire to testify was improperly cut off by his
counsel.” Id. So too here.
    The record reflects that after the government rested, the court recessed for
approximately 23 minutes—which corresponds to the TDC’s assertion that he met
with the appellant during a recess following the close of the government’s case.28 In
an Article 39(a), UCMJ, session held immediately following the recess, the TDC
informed the military judge that he intended to call one witness and then rest. After


   26   Affidavit of LCDR PH at 5.
   27   Id. at 6.
   28   See Record at 543.
                                           10
                     United States v. Gardiner, No. 201600337


the witness testified, the defense rested. The record does not indicate whether a
brief pause and conference took place between the appellant and the TDC before the
defense rested. However, the record does reflect a nearly three-and-a-half hour
break after both sides rested, followed by another Article 39(a), UCMJ, session. Like
the appellant in Dewrell, the appellant here had ample opportunity to make known
his desire to testify. But the appellant said nothing about wanting to take the stand
during either Article 39(a), UCMJ, session, or during the lengthy recess, and did not
mention being deprived of his right to testify in his unsworn statement during
sentencing. The appellant also made no complaint about the TDC during post-trial
clemency and does not now assert that the TDC’s representation during clemency
was deficient. Therefore, we agree with our superior court:
       This barebones assertion by a defendant, albeit made under oath, is
       insufficient to require a hearing . . . . Some greater particularity is
       necessary—and also we think some substantiation is necessary, such
       as an affidavit from the lawyer who allegedly forbade his client to
       testify—to give the claim sufficient credibility to warrant a further
       investment of judicial resources in determining the truth of the
       claim[.]
Id. at 135 (emphasis in original) (internal quotation marks and citations omitted).
Consequently, we conclude, as did the CAAF in Dewrell, that the “the appellate
filings and the record as a whole compellingly demonstrate the improbability” of the
appellant’s assertions. Ginn, 47 M.J. at 248. Setting aside the appellant’s assertions
as improbable, the appellant has offered no other evidence that his counsel ignored
or overrode his desire to testify. Without such evidence, the appellant’s claim fails.
Accordingly, the appellant has not raised sufficient grounds to rebut the
presumption that the TDC was effective in representing him.
                                  III. CONCLUSION
   The findings and sentence are affirmed.
   Judge FULTON and Judge SAYEGH concur.
                                   For the Court



                                   R.H. TROIDL
                                   Clerk of Court




                                         11
