

   
   
   
   U.S. v. Diaz-Duprey



UNITED STATES, Appellee
v.
Carlos V. DIAZ-DUPREY
Staff Sergeant, U. S. Army, Appellant
 
No. 98-0679
Crim. App. No. 9600181
 
THE UNITED STATES COURT OF APPEALS FOR THE
ARMED FORCES
Argued June 1, 1999
Decided July 30, 1999
 
Counsel
For Appellant: Peder C. Wold (argued);
Major
Leslie A. Nepper and Captain John C. Einstman.
For Appellee: Captain Troy A. Smith
(argued); Lieutenant Colonel Eugene R. Milhizer, Major Patricia
L. Ham, and Captain Arthur J. Coulter (on brief); Colonel
Russell S. Estey.
Military Judge: Patrick K. Hargus
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.

PER CURIAM:
We granted appellants petition to consider
whether he was denied effective assistance of counsel at his court-martial.
__ MJ __ (Daily Journal Feb. 4, 1999). We conclude that appellant has made
a colorable claim of ineffective assistance of counsel, see, e.g.,
United
States v. Wean, 45 MJ 461, 464 (1997), which can only be resolved
by an evidentiary hearing. See United States v. Ginn, 47
MJ 236 (1997).
The decision of the United States Army Court
of Criminal Appeals is set aside. The record of trial is returned to the
Judge Advocate General of the Army for further proceedings under United
States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967). After such proceedings
are concluded, the record of trial, along with the military judges findings
of fact and conclusions of law, will be returned to the Court of Criminal
Appeals for further review under Article 66(c), Uniform Code of Military
Justice, 10 USC § 866(c). Thereafter, Article 67(a), UCMJ, 10 USC
§ 867(a)(1994), will apply.

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