                        UNITED STATES, Appellee

                                     v.

                      Willie A. BRADLEY, Seaman
                         U.S. Navy, Appellant

                               No. 11-0399
                       Crim. App. No. 200501089

       United States Court of Appeals for the Armed Forces

                        Argued January 24, 2012

                      Decided February 29, 2012

STUCKY, J., delivered the opinion of the Court, in which ERDMANN
and RYAN, JJ., and EFFRON, S.J., joined. BAKER, C.J., filed a
separate opinion concurring in the result.


                                  Counsel


For Appellant:   Major Jeffrey R. Liebenguth, USMC (argued).


For Appellee: Captain Samuel C. Moore, USMC (argued); Colonel
Kurt J. Brubaker, USMC, and Brian K. Keller, Esq. (on brief);
Colonel Louis J. Puleo, USMC.


Military Judges:    John W. Rolph and Christopher D. Conner


        THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Bradley, No. 11-0399/NA


     Judge STUCKY delivered the opinion of the Court.

     We granted review in this case to determine:    (1) whether

the United States Navy-Marine Corps Court of Criminal Appeals

(CCA) was bound by this Court’s prior decision that Appellant’s

unconditional guilty pleas were provident despite waiving a

motion to disqualify trial counsel; (2) whether Appellant

received ineffective assistance of counsel; and (3) whether the

law of the case doctrine required the CCA to find prejudice from

counsel’s deficient performance given the CCA’s prior holding

that Appellant was entitled to relief.    We hold that the CCA

properly determined the degree to which it was bound by our

prior decision and that, even if counsel was deficient,

Appellant was not prejudiced by the deficient performance.1

                                  I.

                                  A.

     Appellant and three other sailors were involved in a drive-

by shooting.   United States v. Bradley, 68 M.J. 279, 280

(C.A.A.F. 2010).    Appellant and another sailor discharged a

loaded firearm at a vehicle containing three other sailors.       Id.

One of those sailors was struck by a bullet but survived the

incident.   Id.    Appellant was charged with attempted murder,

conspiracy to commit murder, and reckless endangerment in


1
  Furthermore, the law of the case issue is without merit, as the
CCA cannot be bound by an earlier judgment this Court set aside.

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United States v. Bradley, No. 11-0399/NA


violation of Articles 80, 81, and 134, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. §§ 880, 881, 934 (2006).

     Appellant entered into a pretrial agreement, in which he

was granted immunity.   He provided statements over the course of

several interviews pursuant to that grant of immunity.    Bradley,

68 M.J. at 280.   After testifying against one co-accused,

Appellant withdrew from the pretrial agreement.    Id.

Nevertheless, a trial counsel who had been made privy to the

immunized statements remained on Appellant’s case, which

prompted Appellant to move on the basis of Kastigar v. United

States, 406 U.S. 441 (1972), to dismiss the charges and

disqualify trial counsel.   Bradley, 68 M.J. at 280.

     After the military judge denied Appellant’s motions,

Appellant entered into a second pretrial agreement and pled

guilty unconditionally to one specification of assault with a

means likely to produce grievous bodily harm and one

specification of reckless endangerment in violation of Articles

128 and 134, UCMJ, 10 U.S.C. §§ 928, 934 (2006).   Id. at 280—81.

Discussion between the military judge and defense counsel

indicated that defense counsel may have believed the motion to

disqualify trial counsel was preserved for appeal despite

Appellant’s entering an unconditional guilty plea.

     Appellant was sentenced to a dishonorable discharge and

forty-eight months of confinement.   In accordance with the


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United States v. Bradley, No. 11-0399/NA


second pretrial agreement, the convening authority approved the

sentence as adjudged.   Id. at 281.

                                 B.

     In its first opinion, the CCA determined that the motion to

disqualify trial counsel was not waived and concluded that the

military judge abused his discretion by not disqualifying trial

counsel.   United States v. Bradley (Bradley I), No. 200501089,

2008 CCA LEXIS 398, at *20–*24, 2008 WL 5083894, at *6-*8 (N-M.

Ct. Crim. App. Nov. 25, 2008) (unpublished).    The CCA further

noted that Appellant’s “guilty pleas were based in part upon a

belief that his plea did not waive his right to appeal the

military judge’s denial of his motion to remove the trial

counsel from his case due to a violation of Kastigar.”     Id. at

*1—*2, 2008 WL 5083894, at *1.   The CCA appeared to also decide

in the alternative that it could have found Appellant’s plea

improvident solely on Appellant’s misunderstanding about

preserving the motion to disqualify.   Id. at *20, 2008 WL

5083894, at *6.

                                 C.

     After the CCA’s first opinion, the Judge Advocate General

certified two issues to this Court, and we specified a third

issue -- whether Appellant had waived the motion to disqualify

trial counsel.    Bradley, 68 M.J. at 280.   This Court held that

the “unconditional guilty plea waived [Appellant’s] ability to


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United States v. Bradley, No. 11-0399/NA


appeal the military judge’s denial of his motion to disqualify

trial counsel as well as the motion to dismiss.”   Id.    In so

deciding, we said that:

     Nor does the application of the [waiver] doctrine
     render Appellant’s plea improvident. It is settled
     that a guilty plea will not be rejected as improvident
     unless there is a substantial basis in law or fact for
     doing so. United States v. Inabinette, 66 M.J. 320,
     322 (C.A.A.F. 2008). Here, Appellant, represented by
     experienced civilian defense counsel, explicitly
     entered an unconditional plea of guilty. There is no
     allegation of ineffective assistance of counsel, or
     that Appellant (who was getting the benefits of a
     quite favorable pretrial agreement) did not understand
     what he was doing. The possibility that he thought
     the issue relating to the disqualification of trial
     counsel would be preserved in the face of an
     unconditional guilty plea does not render that plea
     improvident.

Id. at 282–83.

                                D.

     On remand to the CCA, Appellant alleged that his pleas were

improvident because he had mistakenly believed he had preserved

the disqualification motion and because he had received

ineffective assistance of counsel when his attorney informed him

that the motion to disqualify trial counsel was preserved for

appeal.   United States v. Bradley (Bradley II), No. 200501089,

2011 CCA LEXIS 20, at *4, 2011 WL 666855, at *2 (N-M. Ct. Crim.

App. Feb. 15, 2011) (unpublished).   The CCA concluded it was

bound by this Court’s prior decision that application of waiver

alone would not result in an improvident plea.   Id. at *5, 2011



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United States v. Bradley, No. 11-0399/NA


WL 666855, at *2 (“[W]e are substantively bound by the

majority’s holding that application of waiver in this case does

not render the appellant’s pleas improvident.”).

      The CCA then considered Appellant’s ineffective assistance

of counsel claim, and, while finding that defense counsel

provided erroneous advice, it held that such error “did not rise

to the standard of ‘deficient performance’ under Strickland.”

Id. at *7, 2011 WL 666855, at *3.     The CCA further held that

even if there was error, there was no prejudice after reviewing

the entire record.   Id. at *7–*8, 2011 WL 666855, at *3.

                                II.

     The CCAs are bound by this Court’s conclusions of law on

remand.   Cf. United States v. Allbery, 44 M.J. 226, 228

(C.A.A.F. 1996) (noting that this Court’s precedent is binding

in subsequent cases absent a change of circumstances); see also

Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 168 (1939) (“While

a mandate is controlling as to matters within its compass, on

the remand a lower court is free as to other issues.”).     In

previously reviewing Bradley’s case, a majority of this Court

held that waiver applied and that “application of the [waiver]

doctrine [did not] render Appellant’s plea improvident.”

Bradley, 68 M.J. at 282.   We determined that even if Appellant

had incorrectly believed he had preserved the disqualification

motion, that alone was not a sufficient indication “that


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United States v. Bradley, No. 11-0399/NA


Appellant . . . did not understand what he was doing.”      Id. at

283.

       We did not foreclose every possibility for finding

Appellant’s plea improvident; rather, we only determined that

Appellant’s mistaken view on whether his disqualification motion

was waived did not require the court to find his plea

improvident.   Id. at 282–83 (“Nor does the application of the

[waiver] doctrine render Appellant’s plea improvident . . . .

There is no allegation of ineffective assistance of counsel.”)

(citation omitted).

       The CCA in Bradley II correctly recognized that it was

“substantively bound by the majority’s holding that application

of waiver [alone] in this case does not render the appellant’s

pleas improvident.”   2011 CCA LEXIS 398, at *5, 2011 WL 666855,

at *2.   Significantly, the CCA did not refuse to consider the

ineffective assistance of counsel issue.   Rather, the CCA

considered Appellant’s claim but determined that Appellant’s

attorney’s actions were neither deficient nor prejudiced

Appellant.   Id. at *6-*8, 2011 WL 666855, at *2–*3.    The CCA did

not err in determining which portions of this Court’s prior

opinion substantively bound its review.




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United States v. Bradley, No. 11-0399/NA


                                III.

                                 A.

     We review assertions of ineffective assistance of counsel

de novo.    United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F.

2011) (citing United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F.

2009)).    In the guilty plea context, the first part of the

Strickland test remains the same -- whether counsel’s

performance fell below a standard of objective reasonableness

expected of all attorneys.    Hill v. Lockhart, 474 U.S. 52, 56—58

(1985).    The second prong is modified to focus on whether the

“ineffective performance affected the outcome of the plea

process.”   Id. at 59.   It is not necessary to decide the issue

of deficient performance when it is apparent that the alleged

deficiency has not caused prejudice.     See Loving v. United

States, 68 M.J. 1, 2 (C.A.A.F. 2009).     Here it is evident that

Appellant has suffered no prejudice.

                                 B.

     “[T]o satisfy the ‘prejudice’ requirement, the defendant

must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would

have insisted on going to trial.”      Hill, 474 U.S. at 59.   “‘A

reasonable probability is a probability sufficient to undermine

confidence in the outcome.’   That requires a ‘substantial,’ not




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United States v. Bradley, No. 11-0399/NA


just ‘conceivable,’ likelihood of a different result.”    Cullen

v. Pinholster, 131 S. Ct. 1388, 1403 (2011) (citation omitted).

     Appellant provided an affidavit, in which he states that:

“There would have been little reason for me to plead guilty if I

had known the [disqualification] issue was not preserved for

appeal, so I would not have done so.”   Appellant further argued

in his brief that because the CCA in Bradley I indicated that he

would have prevailed on having trial counsel disqualified, he

has shown prejudice.

     When an appellant argues that counsel was ineffective for

erroneously waiving a motion, it makes sense to deny the claim

if the appellant would not be entitled to relief on the

erroneously waived motion, because the accused cannot show he

was harmed by not preserving the issue.    See United States v.

Cornelius, 37 M.J. 622, 626 (A.C.M.R. 1993).   However, the

accused is wrong to assume the opposite is true -- merely being

entitled to relief on an erroneously waived motion does not by

itself satisfy the prejudice analysis in the guilty plea

context.2   Appellant also must satisfy a separate, objective

inquiry -- he must show that if he had been advised properly,


2
  Even if the CCA was correct in Bradley I that Appellant was
entitled to have trial counsel disqualified, that conclusion
alone does not resolve the prejudice analysis for this
ineffective assistance of counsel claim; thus, even if the law
of the case doctrine applied, it would not resolve the issue
before us.

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United States v. Bradley, No. 11-0399/NA

then it would have been rational for him not to plead guilty.

See Padilla v. Kentucky, 130 S. Ct. 1473, 1485 (2010).     In this

case, it would not have been rational for Appellant to reject

his pleas.

     Even if the military judge had disqualified trial counsel,

it would not have changed the nature of the evidence Appellant

faced.   The Government produced affidavits indicating that the

three co-accuseds would have testified that Appellant had not

been threatened into acting, that Appellant had not acted in

self defense, that Appellant fired his weapon at an occupied

vehicle, and that Appellant had not expressly stated his intent

before or after discharging his weapon.3   Of course, use of a

deadly weapon is sufficient to support an inference that death

or great bodily harm was intended.   United States v. Wilson, 26

M.J. 10, 13 (C.M.A. 1988).

     The Government had a fairly strong case against Appellant,

and Appellant’s plea agreement allowed him to avoid a possible

life sentence.4   Appellant has not denied his involvement or

argued that he was entitled to some affirmative defense.    His

3
  The quantity and quality of evidence that would have been
admissible can be determined from the military judge’s ruling,
which remains effective since Appellant waived the Kastigar
issue.
4
  Appellant had a pretrial agreement that limited his amount of
confinement to four years with anything over that period being
suspended for twelve months, in a case in which he was facing a



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United States v. Bradley, No. 11-0399/NA

best argument is that he did not specifically intend to kill or

cause great bodily harm; but, candidly, that is a weak argument

given the state of the evidence as described above.

     The preceding discussion highlights a significant point --

Appellant has failed to draw a link between the disqualified

trial counsel and the manner in which trial would have proceeded

had trial counsel been disqualified, even assuming Appellant

pled not guilty.   Appellant has not indicated what specific

facts would have been unavailable to a new prosecutor or what

specific facts he could have utilized had a new prosecutor been

put on the case.

     For these reasons, Appellant has not convinced us that it

would have been rational for him to have rejected the plea offer

just for the opportunity to change the identity of trial

counsel.   Cf. Premo v. Moore, 131 S. Ct. 733, 744 (2011) (“The

state court here reasonably could have determined that Moore

would have accepted the plea agreement even if his second

confession had been ruled inadmissible. . . . [T]he State’s case

was already formidable . . . . At the same time, Moore faced

grave punishments.”).   Appellant cannot show he was prejudiced

on these facts.




maximum sentence of life, Manual for Courts-Martial, United
States pt. IV, para. 4.e. (2002 ed.).

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United States v. Bradley, No. 11-0399/NA

                               IV.

     The judgment of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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United States v. Bradley, No. 11-0399/NA


     BAKER, Chief Judge (concurring in the result):

     I would not have found waiver in United States v. Bradley,

68 M.J. 279, 285 (C.A.A.F. 2010) (Baker, J., dissenting).

However, Bradley having determined that it was settled law at

the time that an unconditional guilty plea waived Appellant’s

motion to disqualify the trial counsel, even if the military

judge and the parties believed otherwise, then it seems

Appellant’s counsel would have been ineffective for entering an

unconditional plea while advising Appellant that the motion was

preserved.

     Prejudice, however, under the second prong of United States

v. Strickland, 466 U.S. 668 (1984), presents a closer question.

The prejudice question is not whether the case was overwhelming

or strong, but whether Appellant was prejudiced by the failure

to have his motion to disqualify trial counsel adjudicated.

That depends first on whether he would have prevailed on the

motion, and second, whether Appellant has shown that his knowing

and voluntary choice to plead guilty was affected by his

understanding that his motion to disqualify trial counsel could

be appealed.   The decision to waive one’s right to a trial of

the facts does not depend necessarily on whether the evidence is

overwhelming or not, or whether an accused would be well advised

to plead guilty rather than contest the charges.   It depends on
United States v. Bradley, No. 11-0399/NA


the accused’s voluntary and knowing waiver of his right to a

trial of the facts.

     In this case Appellant has stated in his appellate

declaration that he would not have pled guilty but for the

erroneous advice.   However, there is nothing in the trial record

to indicate that at the time of trial his decision to plead

guilty rather than contest the charges was dependent on the

“ineffective” advice he received from counsel.   Therefore, I

concur in the conclusion that there was no prejudice and I

concur in the result.




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