United States v. Stanton, 201600253

Appellant pleaded guilty at a special court-martial to absenting himself without authority and two specifications of wrongful drug use; the military judge merged the drug specifications for findings.
The military judge sentenced him to 64 days’ confinement (credited as time served) and a bad-conduct discharge (BCD); the convening authority (CA) approved the sentence.
Trial defense counsel filed a post-trial R.C.M. 1105/1106 clemency request asking the CA to disapprove the BCD.
The National Defense Authorization Act for FY2014 amended Article 60(c)(4), limiting CA authority for most offenses committed on or after 24 June 2014; the CA lacked authority to disapprove a BCD in this case.
Appellant claimed ineffective assistance of counsel (Sixth Amendment) because counsel requested relief the CA could not grant; the court applied Strickland and post-trial ineffective-assistance precedent.
The court found no colorable showing of prejudice given the sentence (BCD and time served), absence of automatic forfeitures, lack of evidence the appellant disagreed with counsel’s submission, and no plausible alternative clemency the CA could have structured.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Counsel requested clemency relief the CA lacked authority to grant (disapprove BCD)	Requesting unauthorized relief was ineffective assistance	Post-trial counsel’s request did not cause prejudice because the CA could not grant disapproval under amended Art. 60(c)(4)	No reversible error; insufficient colorable showing of prejudice; conviction and sentence affirmed
Standard and burden for post-trial ineffective assistance claims	Appellant: counsel’s post-trial error violates Sixth Amendment	Government: Strickland two-prong applies and appellant must show prejudice; courts give benefit of doubt but require colorable showing	Applied Strickland; no need to decide deficiency because no colorable showing of prejudice was made
Potential alternate clemency relief the CA could have provided	Appellant suggests CA might have reduced or modified punishment	Government: given sentence (time served and automatic reduction), there was no realistic clemency the CA could have granted that would benefit appellant	Appellant failed to identify evidence of desired relief or how CA could have helped; no prejudice shown

Strickland v. Washington, 466 U.S. 668 (Sup. Ct.) (establishes two-prong ineffective-assistance test)
United States v. Knight, 53 M.J. 340 (C.A.A.F.) (Sixth Amendment right to counsel at courts-martial is fundamental)
United States v. Cornett, 47 M.J. 128 (C.A.A.F.) (right to counsel extends to post-trial proceedings)
United States v. Wheelus, 49 M.J. 283 (C.A.A.F.) (post-trial ineffective-assistance prejudice: colorable showing standard)
United States v. Datavs, 71 M.J. 420 (C.A.A.F.) (courts need not decide deficiency before assessing prejudice)
United States v. Capers, 62 M.J. 268 (C.A.A.F.) (appellant must explain what alternative clemency the CA might have provided)