UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                            COOK, CAMPANELLA, and HAIGHT
                                Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                   Private First Class DAMARCUS D. MCGINTY
                           United States Army, Appellant

                                      ARMY 20110627

                        Headquarters, 2nd Infantry Division
                T. Mark Kulish and Patrick Parrish, Military Judges
            Colonel Jeffery D. Pederson, Staff Judge Advocate (pretrial)
     Lieutenant Colonel Paula I. Schasberger, Staff Judge Advocate (post -trial)


For Appellant: Major Jacob D. Bashore, JA; Captain Ian M. Guy, JA (on brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Daniel D. Mauer, JA
(on brief).
                                         30 July 2013
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                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

HAIGHT, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of violating a lawful general order, three
specifications of failing to obey a lawful order, and three specifications of
committing indecent conduct, in violation of Articles 92 and 920, Uniform Code of
Military Justice, 10 U.S.C. §§ 892, 920 (2006) [hereinafter UCMJ]. The convening
authority approved the adjudged sentence of a bad-conduct discharge, confinement
for thirty months, and reduction to the grade of E-1.

       Appellate counsel assigned three errors to this court and appellant personally
raised matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
The first error raised by appellate counsel merits discussion but no relief. The
additional assignments of error and those matters raised by appellant pursuant to
Grostefon are without merit.
MCGINTY—ARMY 20110627

                                   BACKGROUND

       In an assignment of error to this court, app ellant alleges he received
ineffective assistance of counsel in the post -trial phase of his court-martial.
Specifically, appellant asserts that his trial defense counsel failed to adequately
advise him of his post-trial rights and failed to submit certain letters on appellant’s
behalf to the convening authority. Appellant alleges he obtained a letter of support
from a family friend, Mr. SF, and prepared his own letter for presentation to the
convening authority. According to appellant, he mailed these documents to his
defense counsel in early November 2011 for inclusion in his request for clemency to
the convening authority. In his affidavit to this court, appellant maintains:

                   Prior to my court-martial, I was briefly advised of
             my post-trial and appellate rights by my defense counsel
             Captain (CPT) [CD]. That was the only discussion we had
             concerning post-trial matters. I have spoken with CPT
             [CD] only one time since I arrived at Fort Lewis. That
             conversation occurred in late October or early November
             2011, via telephone.

                   During that conversation CPT [CD] did not discuss
             my R.C.M. 1105/1106 matters. Captain [CD] never
             requested that I send him a letter or any other matters.
             The only time that CPT [CD] spoke to me about clemency
             was when he briefly discussed my post-trial rights the day
             before my court-martial.

                     The post-trial advice that CPT [CD] provided to me
             on the eve of trial was brief and I understood very little of
             it at the time. After I arrived at Fort Lewis, I began to
             understand the R.C.M. 1105/1106 clemency process better.
             I learned from a counselor here at the facility that I could
             submit letters and petition the convening authority for
             clemency. I was advised that I should [submit] clemency
             matters to my defense counsel.

                     After learning of my right to request clemency, I
             contacted family and friends and I requested letters of
             support. In October 2011, I received a letter from a
             family friend, Mr. [SF] of Dallas, Texas. I also wrote a
             letter on my behalf. In early November 2011, I mailed
             Mr. [SF’s] letter and my letter to CPT [CD] in Korea . . . .
             I intended for these letters to be submitted as part of my
             R.C.M. 1105/1106 matters. To my knowledge, they were



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MCGINTY—ARMY 20110627

             not submitted to the convening authority. In fact, no
             letters of support were submitted on my behalf along with
             CPT [CD’s] clemency request.

       Appellant also included a second affidavit wherein he explained t he content of
his personal handwritten letter intended for the convening authority. Appellant
avers the letter contained information such as: he played college football; he
regularly sent money to his young daughter; he was remorseful for his crimes; and
his sentence was overly severe compared to his co -accused. Finally, appellant
informed the convening authority of his as pirations for the future and the negative
impact of a punitive discharge. Appellant did not include a copy of the letter from
Mr. SF nor did he provide an explanation or summary of the content of that letter.

                              LAW AND DISCUSSION

       The Sixth Amendment guarantees an accused the right to effective assistance
of counsel. United States v. Gooch, 69 M.J. 353, 361 (C.A.A.F. 2011) (citing United
States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001)). In the military, this guarantee
extends to assistance with the post-trial phase of a court-martial. United States v.
Lee, 52 M.J. 51, 52 (C.A.A.F. 1999). We review de novo claims that an appellant
did not receive the effective assistance of counsel. United States v. Mazza, 67 M.J.
470, 475 (C.A.A.F. 2009).

       “In assessing the effectiveness of counsel we apply the standard set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1984), and begin with the presumption
of competence announced in United States v. Cronic, 466 U.S. 648, 658 (1984).”
Gooch, 69 M.J. at 361. To overcome the presumption of competence, t he Strickland
standard requires an appellant to 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) (citing Strickland, 466 U.S. at
687).

     This Court applies a three-part test to determine whether the presumption of
competence has been overcome:

         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?

         3. Is there a reasonable probability that, absent the errors, there
         would have been a different outcome?




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United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991). In the context of a post -trial
claim for ineffectiveness, our superior court has modified the third step, requiring
only that there be some colorable showing of possible prejudice. Lee, 52 M.J. at 53
(citing United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)).

       When assessing Strickland's first prong, courts “must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689. When challenging the
performance of trial defense counsel, the appellant “bears the burden of establishing
the truth of the factual allegations that would provide the basis for findin g deficient
performance.” United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007) (citation
omitted).

       When there is a factual dispute, we determine whether further fact -finding is
required under United States v. Ginn, 47 M.J. 236 (C.A.A.F.1997). If, however, the
facts set forth in the affidavit do not set forth specific facts but consist of
speculative or conclusory observations, the claim may be rejected on that basis .
Ginn, 47 M.J. at 248. Further, if the facts alleged by the defense would not result in
relief under the high standard set by Strickland, we may address the claim without
the necessity of resolving the factual dispute. Ginn, 47 M.J. at 248.

       First, regarding the letter from Mr. SF, we find that we need not return this
case for further fact-finding under Ginn because appellant’s affidavits do not set
forth specific facts, “but consist[] of speculative or conclusory observations.” Id.
Thus, we are able to decide the legal issue without further proceedings. Id. While
appellant avers he obtained and mailed a letter from Mr. SF for inclusion in his
clemency submission, appellant fails to produce a copy of this letter and fails to
summarize or describe the content of the letter. Thus, appellant’s claim that failure
to include Mr. SF’s letter rendered counsel’s submission deficient is speculative at
best, and we can discount such an assertion.

       Second, regarding appellant’s claim that he was not adequately advised by
counsel, we find the appellate filings and the record as a whole “compellingly
demonstrate the improbability of those facts,” and we may discount those factual
assertions and decide the legal issue. Id. Appellant maintains that until a very late
stage he was unaware of his ability to submit clemency matters to the convening
authority. However, this statement is directly contradicted by the record. Appellant
signed a post-trial rights advisement form wherein he acknowledged:

             Under Rules For Court-Martial 1105 and 1106, I have the
             right to submit matters to the convening authority that I
             wish him to consider in deciding what action to take in my
             case. Those matters include, but are not limited to, a




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MCGINTY—ARMY 20110627

             personal statement, personal letters and documents , letters
             and documents from any other person . . . .

Appellant then initialed the portion of the form indicating he understood his post -
trial and appellate rights. Therefore, the record directly refutes appellant ’s claim he
was unaware of his ability to submit clemency matters.

       Third, we find, even if any and all factual disputes were resolved in
appellant’s favor, he failed to establish his counsel’s performance fell measurably
below the expected professional standards and his claims would not result in relief.
See Green, 68 M.J. at 361 (holding an accused must prove his counsel’s performance
was deficient in order to overcome the presumption of competence) . See also Polk,
32 M.J. at 153 (holding a court must assess whether appellant’s performance fell
below objectively reasonable standards). Here, appellant signed and initialed the
post-trial and appellate rights form before his court-martial. On the form, appellant
specifically provided:

                   If I have matters that I wish the convening authority
             to consider, or matters in response to the staff judg e
             advocate’s recommendation, such matters must be
             submitted within 10 days after I receive a copy of the
             record of trial or the recommendation of the staff judge
             advocate, whichever occurs later . . . .

                   Upon my request, the convening authority may
             extend this period for good cause, for not more than 20
             days.

        Appellant’s trial ended on 22 July 2011 and the post -trial recommendation
was completed on 20 September 2011. Appellant received a copy of the record of
trial and post-trial recommendation on 3 October 2011. Having been served on 3
October 2011, the deadline for appellant’s submission w ould have been 13 October
2011 (or 2 November 2011 if extended for the maximum allowable period). Based
on the post-trial and appellate rights form, it is clear a ppellant was aware of his
deadline for the submission of his clemency matters. However, he failed to meet it.
Neither the record nor the appellate filings indicate appellant informed his trial
defense counsel that he was about to or did mail matters for submission but that
these letters would arrive past the deadline. Under these circumstances, we cannot
say appellant’s defense counsel acted unreasonably in timely submitting matters to
the convening authority. This is especially true where action was not taken until 17
November 2011 and there is no indication contained in the record that the letters had
arrived in Korea even at that later date.




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       Finally, we find even if counsel’s performance were deficient, appellant has
failed to establish that the deficiency resulted in prejudice. See Strickland, 466 U.S.
at 687. Although appellant’s letter would have provided one additional piece of
information–that appellant played college football and an injury caused him to leave
school–the remainder of the information was included within the record of trial or
within appellant’s trial defense counsel’s clemency request. This includes
appellant’s personal background; his apology to all involved and acknowledgment of
guilt; his financial responsibility for his daughter; and appellant’s argument that his
sentence was overly severe. Thus, because the essence of the information was
ultimately presented to the convening authority, w e are confident appellant has
failed to make a colorable showing of possible prejudic e.

                                   CONCLUSION

       On consideration of the entire record, the submissions of the parties, and
those matters personally raised by appellant pursuant to Grostefon, we hold the
findings of guilty and the sentence as approved by the convening authority are
correct in law and fact.

      Accordingly, the findings of guilty and the sentence are AFFIRMED.

      Senior Judge COOK and Judge CAMPANELLA concur.


                                        FOR THE COURT:




                                        ANTHONY
                                        ANTHONY         O. POT
                                                    O. POTTINGER
                                        Chief Deputy Clerk
                                        Chief Deputy Clerk of Court




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