                       UNITED STATES, Appellant

                                    v.

                  Bennie C. MELSON, Staff Sergeant
                      U.S. Air Force, Appellee

                              No. 08-5003

                         Crim. App. No. 36523

       United States Court of Appeals for the Armed Forces

                        Argued March 12, 2008

                         Decided May 30, 2008

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, J., joined. STUCKY, J., filed a
separate dissenting opinion, in which RYAN, J., joined.

                                 Counsel

For Appellant: Major Donna S. Rueppell (argued); Colonel Gerald
R. Bruce and Major Matthew S. Ward (on brief).

For Appellee: Captain Griffin S. Dunham (argued); Lieutenant
Colonel Mark R. Strickland (on brief).

Military Judge:   Ronald A. Gregory


       This opinion is subject to revision before final publication.
United States v. Melson, No. 08-5003/AF

     Judge ERDMANN delivered the opinion of the court.

     Applying the principles set forth in United States v. Ginn,

47 M.J. 236 (C.A.A.F. 1997), the United States Air Force Court

of Criminal Appeals concluded that Staff Sergeant Benny C.

Melson’s defense counsel was ineffective for failing to raise a

claim of illegal pretrial punishment at trial under Article 13,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 813 (2000).

United States v. Melson, No. ACM 36523, 2007 CCA LEXIS 372, at

*18, 2007 WL 2791708, at *6 (A.F. Ct. Crim. App. Sept. 14, 2007)

(unpublished).   As a result of that determination, the Court of

Criminal Appeals awarded Melson 142 days of credit for illegal

pretrial confinement.   Melson, 2007 CCA LEXIS 372, at *19, 2007

WL 2791708, at *6.   The Government moved for reconsideration and

for leave to file an affidavit from trial defense counsel that

addressed Melson’s claims of ineffective assistance of counsel.

The Court of Criminal Appeals denied both motions.

     The Government subsequently certified two questions to this

court pursuant to Article 67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2)

(2000):

     I.    WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
           IN FINDING TRIAL DEFENSE COUNSEL INEFFECTIVE.

     II.   WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
           IN REJECTING TRIAL DEFENSE COUNSEL’S AFFIDAVIT AS
           UNTIMELY.

65 M.J. 471 (C.A.A.F. 2007).




                                 2
United States v. Melson, No. 08-5003/AF

     When an accused raises allegations of ineffective

assistance of counsel, trial defense counsel is not “compelled

to justify their actions until a court of competent jurisdiction

reviews the allegation of ineffectiveness and the government

response, examines the record, and determines that the

allegation and the record contain evidence which, if unrebutted,

would overcome the presumption of competence.”    United States v.

Lewis, 42 M.J. 1, 6 (C.A.A.F. 1995).     Here, while the lower

court found that the presumption of competence was overcome, it

did not subsequently provide the Government an opportunity to

submit a statement or affidavit from Melson’s defense counsel to

rebut the allegations.   We hold that this was error and answer

the second certified question in the affirmative.

     We decline to address the first certified question as to

whether defense counsel’s actions constituted ineffective

assistance of counsel.   Rather, we remand that issue for

reconsideration by the Court of Criminal Appeals and direct that

the lower court take into consideration the defense counsel’s

affidavit and resolve the case in a manner consistent with Ginn,

47 M.J. 236, and United v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411

(1967), as applicable.

                            Background

     Melson was convicted by a military judge of wrongful use of

cocaine, assault, bigamy, possession of drug paraphernalia,



                                 3
United States v. Melson, No. 08-5003/AF

attempted voluntary manslaughter, signing a false official

statement, and disorderly conduct.    The adjudged and approved

sentence included a dishonorable discharge, confinement for

twelve years, and reduction to E-1.

     At trial the military judge asked defense counsel if there

was “any issue of any Article 13 illegal pretrial punishment.”

Defense counsel answered in the negative.   During post-trial

clemency submissions, Melson’s personal statement requested that

the convening authority take into consideration certain

conditions at the county jails where he was confined before

trial.1   Noting that the county jails “do not compare to the

military confinement facilities,” trial defense counsel informed

the convening authority that Melson “discusses in his letter to

you the differences in an attempt to explain why he should

receive more than one-for-one credit for the time he served in

those facilities.”

     On appeal to the Court of Criminal Appeals, Melson alleged,

among other things, that his trial defense counsel was

ineffective for failing to raise a claim of illegal pretrial


1
  In particular, Melson complained that he did not have access to
a law library or a way to contact his attorney in confidence,
that he was deprived of recreation time, housed with convicted
prisoners, and made to wear prison stripes in confinement and
while on base. Melson’s clemency submission also stated that he
was not issued any clothing including socks and underwear, that
his medical treatment was delayed, that he was forced to use the
restroom in an open bay, and that he was forced to bathe in a
sink in an open bay.

                                 4
United States v. Melson, No. 08-5003/AF

confinement under Article 13, UCMJ.   In support of this

allegation, Melson submitted his own declaration asserting that

he endured the following conditions while in pretrial

confinement:   harassment by a guard; subjected to extreme

temperatures; denied access to legal resources; required to

remain in prisoner clothes when taken to appointments on base;

and not given access to a doctor for his back pain.   Melson also

asserted that he told defense counsel about these conditions the

first time that he talked to her.    According to Melson’s

declaration, defense counsel informed him that nothing could be

done about the conditions.

     In response, the Government argued that there was nothing

in the record to substantiate Melson’s allegations.   The

Government suggested that a reasonable explanation as to why

defense counsel did not assert an Article 13, UCMJ, claim at

trial was that Melson exaggerated or fabricated the conditions

during clemency in an attempt to shorten his sentence.     The

Government also argued that even if the conditions that Melson

described in his clemency request were true, the conditions

would not amount to illegal pretrial punishment.   The Government

did not, however, initially file an affidavit from the trial

defense counsel with the Court of Criminal Appeals to rebut

Melson’s assertions.




                                 5
United States v. Melson, No. 08-5003/AF

     Relying on Ginn, the Court of Criminal Appeals decided the

issue on the basis of Melson’s declaration.   Melson, 2007 CCA

LEXIS 372, at *12-*19, 2007 WL 2791708, at *5-*6.   The lower

court concluded that the conditions of Melson’s pretrial

confinement were unduly rigorous, that additional credit may be

given for illegal pretrial confinement, that trial defense

counsel’s “failure to raise illegal pretrial punishment appears

to be a lapse in performance,” that the lapse prevented Melson

from receiving additional credit against the adjudged sentence,

and that he was prejudiced by the deficiency.   Melson, 2007 CCA

LEXIS 372, at *18, 2007 WL 2791708, at *6.    The lower court

awarded Melson 142 days of credit for illegal pretrial

confinement.2   Melson, 2007 CCA LEXIS 372, at *19, 2007 WL

2791708, at *6.

     The Government asked the Court of Criminal Appeals to

reconsider its decision and also moved for leave to file a

declaration by defense counsel that addressed the allegations of

ineffective assistance.   The Court of Criminal Appeals denied

both motions, noting that the Government “did not

oppose the appellant’s initial affidavit when submitted to this



2
  In considering an unrelated issue, the Court of Criminal
Appeals also set aside the charge for signing a false official
record and its sole specification and reassessed the sentence,
disapproving confinement in excess of eleven years and four
months. Melson, 2007 CCA LEXIS 372, at *19, 2007 WL 2791708, at
*7.

                                 6
United States v. Melson, No. 08-5003/AF

Court and appell[ee] submitted nothing to contradict the

assertions made in the affidavit despite having the opportunity

to do so prior to our resolution of the case.”   The lower court

determined that the opportunity to submit the declaration was

forfeited and denied the motion to submit as untimely.

                            Discussion

     The initial question before us is whether the Court of

Criminal Appeals erred when it resolved the ineffective

assistance of counsel claim in Melson’s favor without ordering

or considering an affidavit from trial defense counsel.

     The Government argues that trial defense counsel was not

required to submit an affidavit that defended her actions until

the Court of Criminal Appeals reviewed the allegation of

ineffective assistance of counsel and determined that the

presumption of counsel’s competence was overcome, citing Lewis,

42 M.J. 1, and United States v. Grigoruk, 52 M.J. 312 (C.A.A.F.

2000).   According to the Government, the Court of Criminal

Appeals acted contrary to the procedure established in those

cases by resolving the case in Melson’s favor before obtaining

the trial defense counsel’s rebuttal.

     In response, Melson argues that the Court of Criminal

Appeals’ approach was appropriate under Ginn, 47 M.J. at 248,

which allows the court to accept as uncontroverted a fact that

is unopposed by the Government.   According to Melson, the



                                  7
United States v. Melson, No. 08-5003/AF

Government relied on its argument that Melson’s declaration was

insufficient to meet his burden and the Court of Criminal

Appeals should not be placed in the position of telling the

Government how to perfect its case.   Melson implies that

Grigoruk and Lewis are inapplicable to this case, arguing that

the “context of Grigoruk and Lewis is limiting a Court of

Criminal Appeals from compelling a trial defense [counsel] from

acting, and not about requiring them to obtain such an affidavit

as a predicate to finding ineffectiveness.”

     As this case involves the relationship and interaction

among Lewis, Ginn and Grigoruk, it is helpful to review those

cases in sequential order.   In Lewis, decided in 1995, we

considered a procedure set out by the United States Army Court

of Military Review in United States v. Burdine, 29 M.J. 834, 837

(A.C.M.R. 1989), which required government counsel to contact

trial defense counsel and provide an affidavit any time an

ineffective assistance of counsel claim was raised.   Lewis, 42

M.J. at 5-6.   We rejected that procedure, stating:

     Because an allegation of ineffectiveness of counsel
     waives the attorney-client privilege as to matters
     reasonably related to that allegation, trial defense
     counsel may choose to voluntarily respond to the
     allegation. In our view, however, trial defense
     counsel should not be compelled to justify their
     actions until a court of competent jurisdiction
     reviews the allegation of ineffectiveness and the
     government response, examines the record, and
     determines that the allegation and the record contain
     evidence which, if unrebutted, would overcome the
     presumption of competence. Only after the court has


                                 8
United States v. Melson, No. 08-5003/AF

     made such a determination should trial defense counsel
     be compelled to justify their actions. To the extent
     that Burdine requires a response from defense counsel
     without a judicial determination that such actions are
     necessary, we reject Burdine.

Id. at 6 (citation omitted).

     In 1996 and 1997, this court revisited this area in United

States v. Ginn (Ginn I), 43 M.J. 471 (C.A.A.F. 1996) (summary

disposition), and United States v. Ginn (Ginn II), 47 M.J. 236.3

On appeal Ginn alleged ineffective assistance of counsel on the

grounds that his defense attorney had coerced him to plead

guilty.   See Ginn II, 47 M.J. at 241 (detailing the procedural

background of Ginn I).     The lower court initially found the

ineffective assistance of counsel claim meritorious based on

Ginn’s affidavit and set aside the conviction because the

“‘Government did not deign to obtain a rebuttal affidavit from

trial defense counsel.’”    Id. at 240 (quoting the lower court’s

unpublished decision dated July 13, 1994).    Subsequently the

lower court reconsidered its decision at the request of the

government and reversed itself.    Id.   In the initial appeal to




3
  Ginn II established the now familiar principles as to when a
court of criminal appeals has authority to resolve post-trial
issues framed by post-trial affidavits without ordering a
factfinding hearing under United States v. DuBay, 17 C.M.A. 147,
37 C.M.R. 411 (1967). 47 M.J. at 248. That decision was
preceded by Ginn I in which this court initially remanded the
case to the Court of Criminal Appeals for further consideration
and directed its subsequent return to this court for additional
review. 43 M.J. at 472.

                                   9
United States v. Melson, No. 08-5003/AF

this court, we set aside the decision of the lower court in a

summary order, noting:

     We believe that our decision in United States v. Lewis, 42
     M.J. 1, 6 (1995), requires that such an allegation be
     specifically rebutted before the validity of appellant’s
     assertions can be evaluated. . . . The court should obtain
     evidence from defense counsel, by affidavit, testimony, or
     stipulation, as deemed appropriate by that court . . . .

Ginn I, 43 M.J. at 472.

     After obtaining and considering evidence, the lower court

determined that the defense counsel was not ineffective.    Ginn

II, 47 M.J. at 241.    The case then returned to this court for

further review.   In 1997 we issued Ginn II in which we

determined that while the lower court’s ruling on remand had

improperly resolved disputed factual issues on the basis of

conflicting affidavits, the error was harmless based on a lack

of prejudice.    Nevertheless, we noted:

     Our conclusion today does not undermine our earlier
     decision to remand this case to the Court of Criminal
     Appeals to secure responses from defense counsel and
     trial counsel. That action was accomplished in the
     interests of justice, in particular, because of the
     serious nature of the attorney misconduct and fraud on
     the court alleged by appellant. . . .

Id. at 246 n.6.

     We more recently addressed this area in 2000 in Grigoruk,

where we reaffirmed our commitment to the procedure set out in

Lewis.   52 M.J. at 315.   In Grigoruk the accused alleged that

trial defense counsel provided ineffective assistance in three

specific ways.    Id. at 314-15.   The accused had filed his own


                                   10
United States v. Melson, No. 08-5003/AF

affidavit in support of his claims with the court below, but the

record did not include an affidavit from defense counsel in

response.   Id.   at 314.   The Court of Criminal Appeals summarily

denied the ineffective assistance of counsel claims.       Id. at

313.   On appeal to this court, we held that two of Grigoruk’s

claims could be rejected without further inquiry but one of the

allegations “met the Lewis threshold for compelling defense

counsel to explain his actions.”       Id. at 315.   We remanded the

case to the lower court with these instructions:

       [The] court will request an affidavit from defense
       counsel explaining why [an expert] in child psychology
       was not called to challenge [the alleged victim’s]
       credibility. The court will obtain additional
       evidence if necessary, conduct further factfinding in
       a manner consistent with United States v. Ginn, 47
       M.J. 236 (1997), and then reconsider appellant’s claim
       of ineffective representation.

Id. at 315-16.

       Melson is correct in noting that Lewis arose in the context

of whether and when the courts of criminal appeals can compel a

defense counsel to file an affidavit addressing claims of

ineffective assistance.     Nevertheless, as the Government

suggests, Lewis and Grigoruk set forth a process directing how

the lower courts must address ineffective assistance of counsel

claims which are supported by an appellant’s affidavit but where

there is no corresponding affidavit from the defense counsel.

The appellate court must first consider whether “the allegation

and the record contain evidence which, if unrebutted, would


                                  11
United States v. Melson, No. 08-5003/AF

overcome the presumption of competence.”   Lewis, 42 M.J. at 6.

If this threshold is met, the appellate court then must compel

the defense counsel to explain his actions.   Grigoruk, 52 M.J.

at 315-16; see also United States v. Clark, 49 M.J. 98, 100-01

(C.A.A.F. 1998).

     Here, after considering Melson’s allegations of ineffective

assistance of counsel, the record of trial, and the Government’s

response, the Court of Criminal Appeals concluded that “failure

to raise illegal pretrial punishment appears to be a lapse in

performance.”   Melson, 2007 CCA LEXIS 372, at *18, 2007 WL

2791708, at *6.    Under Lewis and Grigoruk, at this point in

appellate proceedings, the Court of Criminal Appeals was

required to order a response from the trial defense counsel as

to the allegations.   Because the Court of Criminal Appeals

resolved the case in Melson’s favor without directing defense

counsel to answer the allegations, the lower court committed

error.

     Contrary to Melson’s argument, Ginn II does not justify the

lower court’s resolution of the ineffective assistance of

counsel claim in this case.   Ginn II allows the Court of

Criminal Appeals to rely on uncontroverted facts presented by

affidavit on appeal, but it does not remove the procedural

protections afforded to trial defense counsel in Lewis and

reaffirmed in Grigoruk.    On the contrary, Ginn II, which focused



                                 12
United States v. Melson, No. 08-5003/AF

on factfinding in the context of conflicting affidavits,

acknowledged these protections.    See supra at 9-11.

     Although we find error, we recognize that it is not

uncommon for the government to respond to ineffective assistance

of counsel allegations by submitting an affidavit from defense

counsel before the Court of Criminal Appeals orders such action.

Indeed, Government counsel acknowledged this practice during

oral argument.   We do not seek to change this practice.   When

colorable claims of ineffective assistance of counsel are raised

on appeal, in those cases where the government can obtain an

affidavit from trial defense counsel, the government should

continue to endeavor to complete the appellate record promptly

and avoid any undue delay.   Nevertheless, where the Court of

Criminal Appeals finds that allegations of ineffective

assistance and the record contain evidence which, if unrebutted,

would overcome the presumption of competence and there is no

affidavit from defense counsel in the record addressing those

allegations, that court is required to obtain a response from

trial defense counsel in order to properly evaluate the

allegations.

                             Decision

     The decision of the United States Air Force Court of

Criminal Appeals is set aside.    The record of trial is returned

to the Judge Advocate General of the Air Force for remand to the



                                  13
United States v. Melson, No. 08-5003/AF

court below.   That court will reconsider Melson’s claims of

ineffective assistance of counsel in a manner consistent with

this decision, United States v. Ginn, 47 M.J. 236 (C.A.A.F.

1997), and United v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967),

as applicable.   Thereafter, Article 67(a), UCMJ, 10 U.S.C. §

867(a) (2000), will apply.




                                14
United States v. Melson, No. 08-5003/AF


     STUCKY, Judge, with whom RYAN, Judge, joins (dissenting):

     The majority holds that the United States Air Force Court

of Criminal Appeals erred by failing to sua sponte order the

trial defense counsel to submit an affidavit answering

Appellee’s claims of ineffective assistance of counsel and

remands to the lower court to reconsider in light of the defense

counsel’s affidavit that was untimely filed by the Government.

In my opinion, the Air Force Court had no duty to sua sponte

order the affidavit, the Government failed to timely file trial

defense counsel’s affidavit, and the majority extends this

Court’s narrow holdings in United States v. Lewis, 42 M.J. 1

(C.A.A.F. 1995), and United States v. Grigoruk, 52 M.J. 312

(C.A.A.F. 2000), beyond their original intent.   Therefore, I

dissent.

                                 I.

     In Strickland v. Washington, 466 U.S. 668 (1984), the

Supreme Court set out a two-pronged test to determine whether a

conviction should be set aside due to ineffective assistance of

counsel.   Id. at 687.   First, Appellee must show that his

counsel’s performance was deficient; second, he must show that

the deficient performance prejudiced the defense.   Id.   He must

identify specific acts or omissions by his attorney and then

persuade the court that, based upon the facts as trial defense

counsel knew them and eliminating the benefit of hindsight,
United States v. Melson, No. 08-5003/AF


those “acts or omissions were outside the wide range of

professionally competent assistance.”   Id. at 690.   Appellee

must show by a reasonable probability –- or, a “probability

sufficient to undermine confidence in the outcome” –- that, but

for counsel’s errors, the result of the proceeding would have

been different.   Id. at 694.

     Counsel is presumed to be competent until proven otherwise.

Id. at 689; United States v. Gibson, 46 M.J. 77, 78 (C.A.A.F.

1997).   In United States v. Polk, 32 M.J. 150 (C.M.A. 1991),

this Court adopted a three-pronged test to determine if

allegations of ineffective assistance had overcome the

presumption of competence:   (1) are the allegations true, and,

if so, is there any reasonable explanation for counsel’s

actions?; (2) if the allegations are true, did counsel’s

performance fall measurably below expected standards?; and (3)

is there a reasonable probability that, absent the errors, there

would have been a different outcome?    Id. at 153.

     On this record, Appellee’s unrebutted factual allegations

overcome the presumption of competence.   Since the Air Force

Court could have found ineffective assistance of counsel using

the principles announced in United States v. Ginn, 47 M.J. 236

(C.A.A.F. 1997), I would affirm the Air Force Court’s decision.

     In a post-trial affidavit, Appellee alleged a series of

circumstances that, if true, amounted to unduly rigorous


                                 2
United States v. Melson, No. 08-5003/AF


conditions violative of Article 13, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 813 (2000).   Appellee alleges he

informed his defense counsel of these conditions, but the

defense counsel never inquired further and told Appellee that

“‘there wasn’t anything that could be done about it.’”   United

States v. Melson, No. ACM 36523, 2007 CCA LEXIS 372, at *13,

2007 WL 2791708, at *4 (A.F. Ct. Crim. App. Sept. 14, 2007)

(unpublished).   When the military judge asked if Appellee had

been subjected to any illegal pretrial punishment, the defense

counsel responded in the negative.   Id. at *13, 2007 WL 2791708,

at *4.   Instead of rebutting Appellee’s affidavit with an

affidavit from trial defense counsel, the Government simply

argued that Appellee’s allegations were unsubstantiated,

insufficient to constitute illegal pretrial confinement,1 and

incredible.   Under these circumstances, the Air Force Court

properly conducted its analysis under Ginn.

     Ginn permits, under certain conditions, a court of criminal

appeals to resolve an ineffective assistance of counsel claim

without requiring an evidentiary hearing.   Ginn, 47 M.J. at 248.

For example, an evidentiary hearing is not necessary “if the

affidavit is factually adequate on its face to state a claim of


1
  While Appellee alleged illegal pretrial confinement, the Air
Force Court appropriately recognized the claim as one of illegal
pretrial punishment.



                                 3
United States v. Melson, No. 08-5003/AF


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 the uncontroverted facts.”   Id.    I would follow the

Air Force Court in accepting Appellee’s claims based on this

principle.    Though the Government technically responded to the

facts in Appellee’s affidavit, it did so without any factual

allegations of its own, electing merely to state that Appellee

was not credible.   The lower court correctly noted that

Government counsel’s personal lack of trust in Appellee’s

allegations is no basis for rejecting the claims without more.

Melson, 2007 CCA LEXIS 372, at *17, 2007 WL 2791708, at *6.

Indeed, the Government’s failure to counter the facts as alleged

by Appellee renders those allegations into uncontroverted facts

upon which the Air Force Court, and this Court, could adequately

make an unlawful pretrial punishment determination.

     Based on the record, and following applicable precedent,

the Air Force Court correctly found that Appellee met his burden

to present evidence supporting his claim of illegal pretrial

punishment.   Appellee did not, as the Government alleges, make

conclusory or merely speculative statements that he suffered

intentional harassment, humiliation, and harm.    Instead, he

detailed the specifics of his ordeal.   If those allegations of

fact were insufficient, the Government’s decision to respond


                                  4
United States v. Melson, No. 08-5003/AF


only with argument rather than with countervailing facts

rendered Appellee’s rendition of the facts uncontroverted.

While review of ineffective assistance of counsel claims is de

novo, these allegations are to be treated as true unless the

record demonstrates they are clearly erroneous.   United States

v. Paxton, 64 M.J. 484, 488 (C.A.A.F. 2007) (citing United

States v. Davis, 60 M.J. 469, 473 (C.A.A.F. 2005)).     Nothing in

the record suggests that Appellee’s statements are clearly

erroneous.   Thus, the Air Force Court correctly decided this

case based on Appellee’s declaration by applying the holding in

Ginn, 47 M.J. at 248.

                                II.

     The majority of this Court also extends Lewis and Grigoruk

far beyond their holdings and requires the lower court to sua

sponte order an affidavit from trial defense counsel when the

Government has neither requested such an order nor indicated

that it would be necessary or helpful.

     In Lewis, as the majority notes, Melson, __ M.J. __ (9)

(C.A.A.F. 2008), this Court recognized that claims of

ineffective assistance of counsel waived the attorney-client

privilege and, therefore, permitted the counsel to voluntarily

respond to the allegation.   But we refused to countenance a

lower court’s order of an affidavit from the counsel “until a

court of competent jurisdiction reviews the allegation of


                                 5
United States v. Melson, No. 08-5003/AF


ineffectiveness and the government response, examines the

record, and determines that the allegation and the record

contain evidence which, if unrebutted, would overcome the

presumption of competence.”   Lewis, 42 M.J. at 6.

       In Grigoruk, the Army Court of Criminal Appeals denied the

appellant’s claim of ineffective assistance of counsel without

the benefit of an affidavit from trial defense counsel.    52 M.J.

at 315.   This Court determined that the appellant had met the

threshold for ordering further inquiry -- an affidavit from the

trial defense counsel -- so we remanded to the lower court to

get an affidavit from the trial defense counsel.     Id.

       This case is neither Lewis nor Grigoruk.   The majority

stretches the Court’s opinions in those cases and asserts that

the Air Force Court “did not subsequently provide the Government

an opportunity to submit a statement or affidavit from Melson’s

defense counsel to rebut the allegations.”   Melson, __ M.J. __

(3).

       Neither Lewis nor Grigoruk imposes a duty on a court to sua

sponte order an affidavit when the government has neither sought

a voluntary one from the trial defense counsel nor requested

such an order from a court.   Similarly, these cases do not

require a Court of Criminal Appeals to reconsider its decision

based on an affidavit submitted after the fact.    They stand for

a more subtle proposition:    If a defense counsel declines to


                                  6
United States v. Melson, No. 08-5003/AF


submit an affidavit to the appellate government counsel who is

trying to rebut an ineffective assistance of counsel claim, the

appellate government counsel may seek the affidavit via a court

order.   The court should not order the affidavit, however,

unless it first determines that the appellant’s claims and the

record, if unrebutted, would overcome the presumption of

competence.   This requirement is imposed because of our

reluctance to intrude on the attorney-client relationship when

it is unnecessary to resolve the case.    See Lewis, 42 M.J. at 6.

     Furthermore, contrary to the majority’s view, I conclude

that the Air Force Court did not deny the Government the

opportunity to seek or move the admission of the trial defense

counsel’s affidavit.   The Government had the opportunity to

request an affidavit from the trial defense counsel without

benefit of a court order -- as it frequently does, and

eventually did in this case -- but it chose not to do so, or at

least move its admission, until the Air Force Court ruled

against it.   There was no requirement or need for the Air Force

Court to order the affidavit, and the majority gives the

Government a windfall for not timely seeking and moving the

admission of the affidavit.   It places on the Courts of Criminal

Appeals the burden of gathering evidence that rightly belongs on

the Government, and rewards Government negligence.   While I do

not wish to unjustly stigmatize a trial defense counsel with the


                                 7
United States v. Melson, No. 08-5003/AF


label “ineffective,” the Government failed to timely submit her

affidavit.   The Government’s request for reconsideration failed

to satisfy the Air Force Court’s rules, which require:

     (1) A material legal or factual matter was overlooked
     or misapplied in the decision;

     (2) A change in the law occurred after the case was
     submitted and was overlooked or misapplied by the
     Court; or

     (3) The decision conflicts with a decision of the
     Supreme Court of the United States, the United States
     Court of Appeals for the Armed Forces, another service
     Court of Criminal Appeals, or this Court.

     (4) New information is received which raises a
     substantial issue as to the mental responsibility of
     the accused at the time of the offense or the
     accused’s mental capacity to stand trial.

United States Air Force Court of Criminal Appeals Rules of

Practice and Procedure, Rule 19.1(b) (Sept. 1, 2000) (as amended

through Mar. 5, 2007).

     The Air Force Court of Criminal Appeals correctly handled

this case, and we should affirm its decision to grant additional

confinement credit of 142 days.




                                  8
