United States v. Brumfield, 201700186

Appellant pleaded guilty at a general court-martial to viewing and distributing child pornography; military judge sentenced him to 52 months confinement, reduction to E-1, total forfeiture, and dishonorable discharge; CA approved and, per PTA, suspended confinement in excess of 42 months.
Trial defense counsel (TDC) submitted post-trial clemency requesting (1) suspension of adjudged and automatic reduction to E-1 until appellate review is completed and (2) deferment of automatic total forfeitures “until the post-trial process is complete.”
The SJA advised the CA that deferring automatic forfeitures until completion of appellate review was beyond the CA’s authority because post-trial processing continues through appellate review.
In his action, the CA stated that even if authorized he would not have granted the requested clemency.
Appellant asserted ineffective assistance of counsel (post-trial) because TDC requested relief beyond the CA’s clemency powers, arguing prejudice from that request.
The court reviewed ineffective-assistance standards and concluded no materially prejudicial error: even assuming deficient performance, appellant failed to show colorable prejudice or what alternative clemency the CA might have granted.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether TDC’s post-trial clemency request was deficient for asking relief beyond CA authority	TDC improperly requested deferral of automatic forfeitures tied to "post-trial process," a period extending through appellate review, which is beyond CA authority	TDC’s request can plausibly be read as asking deferral only until the CA acts (within CA authority); ambiguous wording undermines claim of deficiency	Court did not decide deficiency; even assuming deficiency, no prejudice shown so ineffective-assistance claim fails
Whether appellant demonstrated prejudice from the alleged deficient post-trial counsel performance	The clemency request could have affected CA action and prejudiced appellant	Appellant offered no evidence of specific prejudice or what alternative clemency the CA might have granted; CA stated he would not have granted relief anyway	No colorable showing of possible prejudice; claim fails

United States v. Datavs, 71 M.J. 420 (C.A.A.F. 2012) (standard for reviewing ineffective-assistance claims de novo)
United States v. Gutierrez, 66 M.J. 329 (C.A.A.F. 2008) (ineffective-assistance review principles)
United States v. Tippit, 65 M.J. 69 (C.A.A.F. 2007) (presumption that counsel’s conduct falls within reasonable professional assistance)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance: deficiency and prejudice)
United States v. Wheelus, 49 M.J. 283 (C.A.A.F. 1998) (post-trial ineffective-assistance prejudice requires a colorable showing)
United States v. Chatman, 46 M.J. 321 (C.A.A.F. 1997) (post-trial ineffective-assistance standards)
United States v. Capers, 62 M.J. 268 (C.A.A.F. 2005) (appellant must describe what a properly advised convening authority might have done to provide alternative clemency)