United States v. Johnson, 201600254

Appellant, an airman recruit, pled guilty at a special court-martial to multiple offenses (Articles 86, 91, 107, UCMJ) and was sentenced to six months’ confinement and a bad-conduct discharge; CA, per a pretrial agreement, approved sentence but suspended confinement beyond three months.
After trial, the SJA provided an SJAR advising the CA that action on findings and sentence was within his discretion and that he must consider post-trial matters submitted by defense counsel.
Trial defense counsel (TDC) submitted clemency requesting the CA disapprove the bad-conduct discharge, apparently asking relief beyond what the CA could grant under Article 60, UCMJ.
The court considered whether the appellant received effective assistance of counsel in post-trial representation when counsel requested relief outside the CA’s authority, and whether any deficiency prejudiced the appellant.
The appellate court applied Strickland’s two-pronged test for ineffective assistance but declined to decide deficiency because the appellant made no colorable showing of possible prejudice.
The court affirmed findings and sentence, concluding no error materially prejudiced a substantial right of the appellant.

Issue	Appellant's Argument	Government's Argument	Held
Whether post-trial counsel rendered ineffective assistance by requesting clemency beyond CA authority	TDC’s post-trial request showed ineffective assistance that could have impacted outcome	Even if TDC erred, appellant must show prejudice; here none shown	Court did not reach deficiency; found no colorable showing of prejudice and affirmed
Whether appellant was prejudiced by counsel’s post-trial actions	Appellant argued he suffered prejudice because counsel sought relief the CA could have/should have granted	Appellant made no showing he would have requested different or lesser relief; no concrete benefit lost	No prejudice shown; Strickland prejudice prong not satisfied; relief denied

United States v. Tippit, 65 M.J. 69 (C.A.A.F. 2007) (military accused entitled to effective assistance of counsel)
United States v. Palenius, 2 M.J. 86 (C.M.A. 1977) (post-trial counsel duties include review of SJAR and assisting client in clemency)
Strickland v. Washington, 466 U.S. 668 (1984) (two-pronged test for ineffective assistance of counsel)
United States v. Green, 68 M.J. 360 (C.A.A.F. 2010) (applying Strickland in military context)
United States v. Datavs, 71 M.J. 420 (C.A.A.F. 2012) (courts may address prejudice before deficiency)
United States v. Chatman, 46 M.J. 321 (C.A.A.F. 1997) (low threshold for showing colorable possible prejudice in post-trial ineffective assistance claims)
United States v. Williams, 57 M.J. 1 (C.A.A.F. 2002) (post-trial affidavit from TDC can establish what would have been done absent error and support prejudice showing)