                        UNITED STATES, Appellant

                                     v.

                    Charles E. SINGLETON, Sergeant
                          U.S. Army, Appellee


                               No. 04-5004

                        Crim. App. No. 20010376


       United States Court of Appeals for the Armed Forces


                       Argued October 12, 2004

                       Decided January 7, 2005


     CRAWFORD, J., delivered the opinion of the Court, in which
GIERKE, C.J. and EFFRON, J., joined. BAKER and ERDMANN, JJ.,
filed separate opinions concurring in the result.


                                  Counsel

For Appellant: Captain Michael C. Friess (argued); Colonel
Lauren B. Leeker, Lieutenant Colonel Margaret B. Baines, Major
Natalie A. Kolb, and Captain Mark J. Hamel (on brief); Colonel
Steven T. Salata.

For Appellee: Captain Charles Pritchard (argued); Lieutenant
Colonel Mark Tellitocci, Major Allyson G. Lambert, and Captain
Rob W. MacDonald (on brief); Colonel Mark Cremin.

Military Judge: Patrick J. Parrish



  THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Singleton, No. 04-5004/AR

     JUDGE CRAWFORD delivered the opinion of the Court.

     Sitting as a general court-martial, a military judge

convicted Appellee, pursuant to his pleas, of willful

disobedience of a superior commissioned officer, sodomy upon a

child under 12 years of age, and aggravated assault in violation

of Articles 90, 125, and 128, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. §§ 890, 925, and 928 (2000).   Appellee was

sentenced to a dishonorable discharge, confinement for 18 years,

forfeiture of all pay and allowances, and reduction to the

lowest enlisted grade.   Pursuant to a pretrial agreement, the

convening authority reduced the confinement to 14 years, but

approved the remainder of the sentence.

     At trial, the parties agreed that Appellee had been

confined at the Camp Lejeune Brig for 143 days prior to trial,

but they did not discuss unlawful pretrial punishment.

Appellee’s submission to the Army Court of Criminal Appeals

pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.

1982), sought four-for-one credit for each of these days,

alleging he had been confined in unnecessarily restrictive

quarters; mingled with post-trial prisoners; exposed to dust,

fumes, cold temperatures, and vermin; denied access to a law

library; and verbally demeaned by the guards.    Appellee also

alleged that he had been instructed by his defense counsel not




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United States v. Singleton, No. 04-5004/AR

to raise these issues at trial.   In a pro forma response, the

Government contended that the Grostefon issues lacked merit.

     On February 6, 2003, the Army Court of Criminal Appeals

ordered both parties to file briefs arguing whether Appellee was

entitled to the requested credit, based on the uncontroverted

facts Appellee had alleged, citing United States v. Ginn, 47

M.J. 236 (C.A.A.F. 1997).   In Ginn, we announced the following

six principles to be applied by courts of criminal appeals in

disposing of post-trial, collateral, affidavit-based claims,

such as ineffective assistance of counsel:

     In most instances in which an appellant files an
     affidavit in the Court of Criminal Appeals making a
     claim such as ineffective assistance of counsel at
     trial, the authority of the Court to decide that legal
     issue without further proceedings should be clear. The
     following principles apply:

     First, if the facts alleged in the affidavit allege an
     error that would not result in relief even if any
     factual dispute were resolved in appellant's favor,
     the claim may be rejected on that basis.

     Second, 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.

     Third, 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.

     Fourth, if the affidavit is factually adequate on its
     face but the appellate filings and the record as a
     whole "compellingly demonstrate" the improbability of


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United States v. Singleton, No. 04-5004/AR

      those facts, the Court may discount those factual
      assertions and decide the legal issue.

      Fifth, 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 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.

      Sixth, the Court of Criminal Appeals is required to
      order a factfinding hearing only when the above-stated
      circumstances are not met. In such circumstances the
      court must remand the case to the trial level for a
      DuBay proceeding. During appellate review of the DuBay
      proceeding, the court may exercise its Article 66
      factfinding power and decide the legal issue.

Id.   at 248.

      The Government’s brief included an affidavit from Chief

Warrant Officer Two (CWO2) Laird, the executive officer of the

Camp Lejeune Brig, as rebuttal to Appellee’s claims, and the

defense response brief included an affidavit from Appellee

reasserting and modifying his prior claims.     The Government then

submitted a second affidavit from CWO2 Laird.    Both of CWO2

Laird’s affidavits focused largely on regulations, policies, and

procedures generally applicable to brig operations, but neither

affidavit directly refuted Appellee’s factual claims.

      On June 17, 2003, the Army Court issued another order,

which quoted an e-mail between a commissioner for that court and

the Chief of the Army’s Government Appellate Division (GAD),


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United States v. Singleton, No. 04-5004/AR

asking whether the government preferred that the court below

grant sentence relief or order a hearing pursuant to United

States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).   The Chief

of GAD responded, first preferring waiver, next preferring

rejection of Appellee’s claims using the fourth Ginn principle,

and finally preferring a DuBay hearing to any relief under the

lower court’s decision in United States v. Fagan, 58 M.J. 534

(A. Ct. Crim. App. 2003)(providing relief under United States v.

Wheelus, 49 M.J. 283 (C.A.A.F. 1998), to moot a non-meritorious

issue), rev’d, 59 M.J. 238 (C.A.A.F. 2004), which decision the

Chief of GAD pointedly reminded the Army Court was on appeal to

this Court.

          Remanding the case for a DuBay hearing on the issue of

ineffective assistance of counsel with respect to violations of

Article 13, UCMJ, 10 U.S.C. § 813 (2000), as well as the factual

basis of four of the violations themselves, the Army Court

directed Appellee’s trial defense counsel to “provide

information, by affidavit or through DuBay testimony . . . .”

The Army Court concluded by noting that if the convening

authority determined a DuBay hearing was impracticable, the

Court would grant Appellee sentence relief under its decision in

Fagan and this Court’s holding in United States v. Tardif, 57

M.J. 219, 223 (C.A.A.F. 2002), holding that Article 66(c), UCMJ,

10 U.S.C. § 866(c) (2000), authorizes courts of criminal appeals


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United States v. Singleton, No. 04-5004/AR

to grant sentence relief for unexplained and unreasonable post-

trial delay without a demonstration of prejudice under Article

59(a), UCMJ, 10 U.S.C. § 859(a) (2000).

     The Government sought reconsideration on July 17, 2003,

and, on November 13, 2003, the Army Court issued an opinion on

reconsideration with a detailed discussion of the first and

fourth Ginn principles to the seven categories of Appellee’s

claims.   United States v. Singleton, 59 M.J. 618 (A. Ct. Crim.

App. 2003).   That opinion disposed of three of Appellee’s claims

under Ginn (general conditions of confinement in “special

quarters,” lack of a law library, and contact with sentenced

prisoners), ordered both of Appellee’s trial defense counsel to

submit affidavits on the issue of ineffective assistance of

counsel, and directed a DuBay hearing to resolve allegations

that guards had referred to Appellee as “Private” and exposed

him to cold, fumes and dust, and rats and mice.1

     The lower court’s opinion upon reconsideration in the

present case provided that if the convening authority determined

     1
       As to “rats and mice,” the lower court disposed of this
issue under Ginn’s first principle, but ordered that Appellee be
permitted to present evidence thereon at the DuBay hearing.
After noting that Appellee’s claim of disparaging language was
not specifically rebutted and citing Appellee’s lack of
specificity as to date, frequency, or identity of the offending
guards, the Army Court concluded that only five days’ credit
would be granted for this presumptive violation. 59 M.J. at
625. Nonetheless, the Army Court ordered the DuBay hearing to
inquire into this area. Id. at 628.



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United States v. Singleton, No. 04-5004/AR

a DuBay hearing to be impracticable, the record would be

returned to the Army Court, which would grant 33 days’ sentence

relief under Tardif and the Army Court’s decision in Fagan.2   The

Government sought reconsideration, oral argument, and suggested

en banc consideration, supported by the affidavit of Captain

(CPT) Oren H. McKnelly, Appellee’s lead defense counsel, denying

Appellee’s allegations concerning CPT McKnelly’s representation

and advice and avowing ignorance of Appellee’s claims until

about two years after trial.

     On December 3, 2003, the Army Court denied reconsideration,

oral argument, and en banc consideration.    A few days later, the

affidavit of CPT Sweeney, Appellee’s assistant defense counsel,

which was materially consistent with that of CPT McKnelly, was

attached to the record by motion.

     On January 8, 2004, after being advised by his staff judge

advocate of the Army Court’s November 13 opinion – including

that court’s proposed alternative remedy – the convening

authority determined that a DuBay hearing was impracticable and

returned the case to the Army Court “for action by the Court as

detailed in its 13 Nov 03 opinion.”   On March 3, 2004, the Court

of Criminal Appeals, citing this Court’s decision in United

2
  The court concluded that 5 days should be awarded for the
guards’ referring to Appellee as “Private,” and 28 days for
Appellee’s unwarranted exposure to cold temperatures in his
cell.


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United States v. Singleton, No. 04-5004/AR

States v. Fagan, 59 M.J. 238 (C.A.A.F. 2004), and no longer

relying on any “broad power to moot claims of prejudice,” noted

that the Government did not submit additional pleadings when the

convening authority returned the case to the court, and “[b]ased

on the convening authority’s concession,” ordered sentence

relief of 33 days, but otherwise affirmed the findings and

sentence.    Unlike its previous opinions and orders, that order

did not expressly rely on Tardif or Wheelus, but neither did it

expressly rely on Ginn.    On March 26, 2004, the Judge Advocate

General of the Army certified the following issues to this Court

under Article 67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2) (2000):

     I.     WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL
            APPEALS ERRED IN GRANTING THIRTY-THREE DAYS OF
            CONFINEMENT CREDIT AS RELIEF UNDER THIS COURT’S
            DECISION IN UNITED STATES v. WHEELUS, 49 M.J.
            283 (C.A.A.F. 1998), ABSENT A CONCESSION OR
            FINDING OF LEGAL ERROR, WHERE THE FACTS IN THE
            RECORD (TRIAL AND POST-TRIAL FILINGS) CLEARLY
            EVIDENCE APPELLANT’S MENDACITY, AND IN LIGHT OF
            THIS COURT’S DECISION IN UNITED STATES v. FAGAN,
            59 M.J. 238 (C.A.A.F. 2004).

     II.    WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL
            APPEALS ERRED IN FAILING TO RESOLVE ALL OF
            APPELLANT’S CLAIMS OF UNLAWFUL PRETRIAL
            PUNISHMENT UNDER THE FIRST AND FOURTH GINN
            FACTORS.

     III. WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL
          APPEALS ERRED IN FAILING TO RECONSIDER THEIR
          NOVEMBER 13, 2003 OPINION IN LIGHT OF AFFIDAVITS
          SUBMITTED BY APPELLANT’S TRIAL DEFENSE TEAM,
          CAPTAIN OREN MCKNELLY AND CAPTAIN COLLEEN
          SWEENEY.




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United States v. Singleton, No. 04-5004/AR

                             DISCUSSION

     We hold that the Court of Criminal Appeals, presented with

a factual dispute as to some of Appellee’s allegations, did not

err in ordering a DuBay hearing rather than resolving the

dispute on basis of competing affidavits.    Nor did the Court of

Criminal Appeals err in giving the convening authority the

option of ordering a DuBay hearing or, if that was

impracticable, granting the relief specified by that Court’s

contingent evaluation of Appellee’s affidavits.

     The Government argues that the court below was required to

reject his claims under the first and fourth Ginn factors,

supported by the affidavits of Appellee’s trial defense team,

CPTs McKnelly and Sweeney.   Ginn gives the Court of Criminal

Appeals authority not to order a DuBay hearing “if the affidavit

is factually adequate on its face but the appellate filings in

the record as a whole ‘compellingly demonstrate’ the

improbability of those facts . . . .”     Ginn requires a DuBay

hearing when a court of criminal appeals determines that a

dispute cannot be resolved entirely by applying the Ginn

framework to post-trial affidavits.

     There being a factual dispute in this case that the Court

of Criminal Appeals could not resolve under either the first or

fourth Ginn principles, the court below properly ordered a DuBay

hearing.   Because the convening authority is in the best


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United States v. Singleton, No. 04-5004/AR

position to determine whether it is practicable to hold a DuBay

hearing based on time, personnel, expenditures, and potential

relief, the court below also properly offered the convening

authority the option of either ordering a DuBay hearing, or if

that was impracticable, returning the case to the Court of

Criminal Appeals to grant the relief it determined appropriate,

based on its contingent evaluation of Appellee’s affidavits.

That option has been employed by our Court in numerous opinions.

See United States v. Negron, 60 M.J. 136 (C.A.A.F. 2004); United

States v. Simmons, 59 M.J. 485 (C.A.A.F. 2004).   The convening

authority may have intended to concede that, given the

alternative of a grant of 33 days’ credit by the Court of

Criminal Appeals, a DuBay hearing was impracticable.   Although

the convening authority could have clearly conceded factual and

legal error sufficient to permit the court below to grant relief

under Wheelus, we need not decide this much closer question

because we are convinced that the Government’s subsequent

actions constituted a failure to “contest the relevant facts”

under Ginn.   47 M.J. at 248.

     Although the Army Court initially relied on Fagan, that

court properly applied the Ginn principles and ordered relief

only after receiving the convening authority’s knowing and

informed DuBay declination, unaccompanied by additional

Government pleadings.   In this procedural posture, it would not


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United States v. Singleton, No. 04-5004/AR

have been unreasonable for the Army Court to have construed the

Government’s position as no longer contesting the relevant facts

under Ginn’s third principle.   While the Army Court did not cite

Ginn in support of its March 3, 2004 order, that precedent was

consistently discussed and applied throughout the appellate

process.   In any event, this Court is free to determine when the

Ginn framework should be applied, as well as whether the lower

court properly applied that framework.   59 M.J. at 241.

     The clear purpose of Ginn was to stop the service courts

from resolving disputed factual issues on the basis of extra-

record affidavits, without a trial-level hearing, except in

certain, specified instances.   The action by the Court of

Criminal Appeals properly applied our opinion in Ginn and was

consistent with our decision in Fagan.

     For the reasons set forth above, we affirm the decision of

the Army Court of Criminal Appeals.




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United States v. Singleton, No. 04-5004/AR


     BAKER, Judge (concurring in the result):
     I concur in the result reached by the majority.    This case

is properly addressed through application of the third Ginn

factor:

     Third, 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.

United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997).

     The Army Court of Criminal Appeals was presented with an

affidavit from Appellee alleging specific instances of pre-trial

punishment in violation of Article 13.   Appellee's affidavit was

"opposed by post-trial assertions of a prison administrator as

to general prison practices."   United States v. Singleton, 59

M.J. 618, 625 (A. Ct. Crim. App. 2003)(citing United States v.

Fricke, 53 M.J. 149, 155 (C.A.A.F. 2000).    Thus, the Government

contested Appellee’s assertion, but did not rebut his specific

factual allegations.

     On this record, the Army Court of Criminal Appeals

concluded "that if [appellee] accurately claimed that he was

subjected to disparaging language by guards and was

unnecessarily exposed to cold temperatures, he would have been

subjected to unlawful pretrial punishment."     59 M.J. at 622.

However, this was a contingent legal conclusion.    The Army Court

also noted that "[Appellee's] failure to raise the issue of


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United States v. Singleton, No. 04-5004/AR


unlawful pretrial punishment to Brig officials, the military

magistrate, his chain of command, or the convening authority is

strong evidence that the conditions of which he now complains

were not so abusive as to merit significant confinement

credit."   59 M.J. at 627.   As a result, the Army Court gave the

Government the option of holding a DuBay hearing to further

develop the facts, or "returning this case to us without holding

a DuBay hearing" in which event the Army Court would award

thirty-three days of confinement credit.   The Government chose

the latter course.    Subsequently, the Army Court granted relief,

noting “[A]ppellate counsel did not submit additional pleadings

after appellant’s case was returned to the court.   Based on the

convening authority's concession, we direct that [appellee]

receive thirty-three days of confinement credit.”   United States

v. Singleton, ARMY 20010376 (A. Ct. Crim. App., Mar. 3, 2004).

     Based on this procedural history, I agree with the majority

that this case is appropriately addressed through application of

the third Ginn factor, the Government having failed to contest

the relevant facts.   As a result, the Army Court’s original

contingent legal conclusion becomes the law of this case:    “If

[appellee] accurately claimed that he was subjected to

disparaging language by guards and was unnecessarily exposed to

cold temperatures, he would have been subjected to unlawful

pretrial punishment."   59 M.J. at 622.   Of course, the lower


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United States v. Singleton, No. 04-5004/AR


court’s additional statement in its November 2003 opinion that

it would grant relief “to moot [appellee’s] claim” clouds the

analysis, as it seems to suggest that the court could grant

relief as a matter of judicial economy alone absent a finding of

legal error or an exercise of sentence appropriateness.

     In applying the third Ginn principle, I do not believe it

necessary for us to speculate as to what the lower court may

have done.   It is clear what they have done – grant thirty-three

days credit after giving the Government further opportunity to

rebut Appellee’s assertions, which assertions the Army Court

concluded warranted relief absent rebuttal.      Nor is it necessary

for us to speculate as to whether and as to what the convening

authority may have conceded.   The case was remanded for a DuBay

hearing.   For the reasons stated by Judge Erdmann, an exercise

of the convening authority’s clemency power in such a context

would not have been determinative as to whether there was or was

not unlawful punishment in Appellee’s case.

     In finding contingent legal error in its initial November

2003 opinion, while also inviting further rebuttal, the Army

Court of Criminal Appeals offered the Government the opportunity

to assess the costs and benefits of a DuBay hearing with full

knowledge of the stakes at hand.       Such contingent legal review

would seem to make sense and warrant commendation in the context




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United States v. Singleton, No. 04-5004/AR


of a military justice system with finite resources operating at

a time of world-wide national security imperatives.




                                4
ERDMANN, Judge (concurring in the result):

     I agree with the majority that the issue presented in

this case can be resolved under the principles announced in

United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997).       I

disagree, however, with a portion of the analysis utilized

by the majority in reaching that result.    In my view, after

the convening authority determined that a DuBay hearing was

impracticable and the Government failed to file any further

responsive pleadings, the Court of Criminal Appeals could

construe the Government’s failure to respond as no longer

contesting the critical facts and could proceed to resolve

the issue under the third Ginn factor.     Id., at 248.       This

approach is consistent with our decision in United States

v. Fagan, 59 M.J. 238 (C.A.A.F. 2004), and avoids

speculating as to the basis for the convening authority’s

action.    Further, I do not believe that the convening

authority had standing to concede legal or factual issues

in the context of this appellate remand for a DuBay

hearing.

     The convening authority determined that a DuBay

hearing was impracticable but the record does not specify

the basis for that determination.   The majority speculates

that the convening authority “conceded” that a DuBay

hearing was impracticable because of the potential relief
of 33 days’ confinement credit.   I decline to speculate as

to the convening authority’s basis for finding that a DuBay

hearing was impracticable, and in any event, do not believe

that the convening authority could have made any factual or

legal “concessions” that would have been binding on either

the Government or the Court of Criminal Appeals.   That is

particularly true in this case where the mandate of the

Army court gave the convening authority only two options,

neither of which involved conceding factual or legal error.

     A convening authority is not usually a party to

appellate litigation under the Uniform Code of Military

Justice and certainly is not a party in this litigation.     I

question whether any alleged concession by a convening

authority would bind either the parties or the appellate

court.   Admittedly, the actions of a convening authority

may constrain the options of the parties or appellate

court, but until such time as the issue is squarely before

us, I believe it is premature to suggest that the convening

authority “clearly” has the authority to simply concede

factual or legal errors in a manner binding upon appellate

authorities.   The convening authority had no fact-finding

power and could not concede facts to moot a legal error any

more than could the Court of Criminal Appeals in light of

our decision in Fagan.
     As I agree that the decision of the Army Court of

Criminal Appeals should be affirmed, I concur in the result

of the majority’s decision but would rely on the rationale

set forth above.
