United States v. Roach

UNITED STATES, Appellee

v.

Charles S. ROACH, Senior Airman
United States Air Force, Appellant

No. 07-0870
Crim. App. No. S31143

United States Court of Appeals for the Armed Forces

Argued May 6, 2008

Decided June 26, 2008

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

Counsel

For Appellant: Dwight H. Sullivan, Esq. (argued); Colonel Nikki
A. Hall and Major Shannon A. Bennett (on brief).

For Appellee: Colonel Gerald R. Bruce (argued); Major Matthew
S. Ward and Captain Ryan N. Hoback (on brief); Captain Jefferson
E. McBride.

Military Judge: Jennifer Whittier

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Roach, No. 07-0870/AF

Chief Judge EFFRON delivered the opinion of the Court.

A special court-martial composed of a military judge sitting

alone convicted Appellant, pursuant to his pleas, of willful

dereliction of duty and the use of cocaine, in violation of

Articles 92 and 112a, Uniform Code of Military Justice (UCMJ),

10 U.S.C. §§ 892, 912a (2000). The sentence adjudged by the

court-martial included a bad-conduct discharge, confinement for

four months, and reduction to the lowest enlisted grade. The

convening authority, pursuant to a pretrial agreement, approved

that portion of the sentence that provided for a bad-conduct

discharge, confinement for three months, and reduction to the

lowest enlisted grade.

The case was transmitted to the United States Air Force

Court of Criminal Appeals for mandatory review under Article 66,

UCMJ, 10 U.S.C. § 866 (2000), with a submission by defense

counsel due on November 14, 2006. At appellate defense

counsel’s request, the court granted three enlargements of time.

On March 14, 2007, the court denied appellate defense counsel’s

request for a fourth enlargement. On August 23, 2007, appellate

defense counsel submitted a motion to reconsider that denial and

provide an additional sixty days to submit a brief on

Appellant’s behalf. The court denied the motion on August 30,

2007. See United States v. Roach, No. ACM S31143 2007 CCA LEXIS

2
United States v. Roach, No. 07-0870/AF

402, at *2, 2007 WL 2790660, at *1 (A.F. Ct. Crim. App. Sept.

13, 2007) (per curiam) (unpublished).

On September 13, 2007, the Court of Criminal Appeals issued

a decision affirming the findings and sentence as approved by

the convening authority. Id. at *9, 2007 WL 2790660, at *3-*4.

On Appellant’s petition, we granted review in light of United

States v. May, 47 M.J. 478 (C.A.A.F. 1998) (regarding

proceedings in the Courts of Criminal Appeals when appellate

defense counsel had not provided a submission on the merits of

the case).1 For the reasons set forth below, we set aside the

decision of the Air Force Court of Criminal Appeals and remand

this case for further consideration.

1
We granted review of the following issues:

I. WHETHER THE LOWER COURT ERRED BY DECIDING APPELLANT’S
CASE IN THE ABSENCE OF A SUBSTANTIVE SUBMISSION ON
APPELLANT’S BEHALF DESPITE THIS COURT’S CASE LAW
HOLDING THAT IT IS “ERROR” FOR A COURT OF CRIMINAL
APPEALS TO DECIDE A “CASE WITHOUT ASSISTANCE OF
COUNSEL” FOR AN APPELLANT. United States v. May, 47
M.J. 478, 482 (C.A.A.F. 1998).

II. WHETHER THE LOWER COURT ERRED BY HOLDING: (1) THAT IT
WAS NOT OBJECTIVELY UNREASONABLE FOR THE APPELLATE
DEFENSE COUNSEL TO FAIL TO FILE A BRIEF ON APPELLANT’S
BEHALF DURING THE 182 DAYS BETWEEN THE EXPIRATION OF
APPELLANT’S BRIEFING DEADLINE AND THE LOWER COURT’S
DECISION IN APPELLANT’S CASE; AND (2) THAT APPELLANT
DEMONSTRATED NO PREJUDICE, DESPITE THIS COURT’S CASE
LAW HOLDING THAT WHERE APPELLATE COUNSEL “DO NOTHING”
ON AN APPELLANT’S BEHALF, THE “APPELLANT HAS BEEN
EFFECTIVELY DEPRIVED OF COUNSEL, AND PREJUDICE IS
PRESUMED.” United States v. May, 47 M.J. 478, 482
(C.A.A.F. 1998).

3
United States v. Roach, No. 07-0870/AF

I. MILITARY APPELLATE REVIEW AT THE COURT OF CRIMINAL APPEALS

A. UNIQUE RESPONSIBILITIES UNDER ARTICLES 66 AND 70

Although the military justice system incorporates civilian

criminal law practices in important respects, see, e.g., Article

36, UCMJ, 10 U.S.C. § 836 (2000), Congress in the UCMJ has

preserved many of the historic aspects of military law.

Appellate review in the Courts of Criminal Appeals, for example,

embodies the traditional affirmative responsibility of military

reviewing authorities to conduct mandatory, de novo review of

court-martial proceedings. See Daniel T. Ghent, Military

Appellate Processes, 10 Am. Crim. L. Rev. 125, 125 (1971)

(comparing appellate procedures among military and civilian

courts); Delmar Karlen, Civilian and Military Justice at the

Appellate Level, 3 Wis. L. Rev. 786, 787 (1968) (same); William

F. Fratcher, Appellate Review in American Military Law, 14 Mo.

L. Rev. 15, 59-64 (1949) (describing appellate review in the

military justice system prior to enactment of the UCMJ).

In the Article III courts, the responsibility in a criminal

case for initiating a timely appeal, paying costs and fees,

obtaining a transcript, and retaining counsel rests with the

party seeking review. See, e.g., Fed. R. App. P. 3, 4(b), 10,

11. Provision of counsel on appeal at government expense and

waiver of costs and fees occur only in the case of an indigent

party. See 18 U.S.C. § 3006A(b), (d)(7) (2000); 3 Wayne R.

4
United States v. Roach, No. 07-0870/AF

LaFave et al., Criminal Procedure §§ 11.1(a), 11.2(b) (3d ed.

2007). The courts of appeals on direct review focus on issues

of law, with the burden generally on the appellant to

demonstrate prejudicial error. See, e.g., Fed. R. Crim. P. 52;

18 U.S.C. § 3742 (2000).

Proceedings in the Courts of Criminal Appeals differ from

civilian appeals in three significant respects. First, review

is mandatory. The Judge Advocate General must submit each case

of the type at issue in the present appeal to the court unless

the accused affirmatively waives the appeal. See Article 66(b),

UCMJ.

Second, the Judge Advocate General must provide government-

furnished appellate counsel to the accused, regardless of

indigence, on request of the accused, or when the government is

represented on appeal by counsel. See Article 70, UCMJ. The

report accompanying enactment of Article 70, UCMJ, observed that

such representation would “assure that the accused’s case will

be thoroughly considered.” H.R. Rep. No. 81-491, at 33 (1949),

as reprinted in 1950 U.S.C.C.A.N. 2220, 2256.

Third, the scope of review by the Courts of Criminal

Appeals differs in significant respect from direct review in the

civilian federal appellate courts. See United States v. Crider,

22 C.M.A. 108, 110-11, 46 C.M.R. 108, 110-11 (1973). In

addition to reviewing the case for legal error in a manner

5
United States v. Roach, No. 07-0870/AF

similar to other appellate courts, see Article 59(a), UCMJ, 10

U.S.C. § 859(a) (2000), Congress has provided the Courts of

Criminal Appeals with “plenary, de novo power of review” and the

ability to “‘determine[], on the basis of the [entire] record’

which findings and sentence should be approved.” United States

v. Cole, 31 M.J. 270, 272 (C.M.A. 1990) (citation omitted). In

that regard, the court conducts a de novo review under Article

66(c) of the facts as part of its responsibility to make an

affirmative determination as to whether the evidence provides

proof of the appellant’s guilt of each offense beyond a

reasonable doubt. United States v. Turner, 25 M.J. 324, 324-25

(C.M.A. 1987). The court also conducts a de novo review of the

sentence under Article 66(c) as part of its responsibility to

make an affirmative determination as to sentence

appropriateness. See United States v. Baier, 60 M.J. 382, 384-

85 (C.A.A.F. 2005) (discussing the requirement that the Courts

of Criminal Appeals independently determine the sentence

appropriateness of each case they affirm). The reports

accompanying the enactment of the UCMJ identified the unique

powers established under Article 66 as responding to significant

deficiencies in the operation of the military justice system

during World War II, particularly with respect to sentence

disparities. See H.R. Rep. No. 81-491, at 31-32 (1949), as

reprinted in 1950 U.S.C.C.A.N. 2220, 2253-54; see also Fratcher,

6
United States v. Roach, No. 07-0870/AF

14 Mo. L. Rev. at 55-56, 59-60 (describing concerns growing out

of the World War II experience).

B. THE RELATIONSHIP BETWEEN THE APPELLATE REVIEW UNDER ARTICLE
66 AND APPELLATE REPRESENTATION UNDER ARTICLE 70

Two cases illustrate the responsibilities of the Courts of

Criminal Appeals when presented with a case in which defense

counsel have not submitted a filing on the merits of the appeal.

In United States v. Bell, 11 C.M.A. 306, 309, 29 C.M.R. 122, 125

(1960), the relationship between the appellant and his two

detailed military defense counsel deteriorated to the point

where the appellant asked the Board of Review (as the Courts of

Criminal Appeals were then denominated) to appoint new counsel,

and counsel asked the Board for permission to withdraw. Before

acting, the Board asked the Office of the Judge Advocate General

whether other counsel would be appointed to replace the assigned

counsel. Id. at 309, 29 C.M.R. at 125. When the Board was

informed that no other counsel would be appointed, the Board

“relieved the officers of the assignment and, without timely

notice to the accused, proceeded to hear and decide the matter.”

Id.

The opinion in Bell noted that the responsibility for

appointing appellate counsel rested with the Judge Advocate

General under Article 70, UCMJ, but that the authority to

control the case rested with the court. Id. at 309-10, 29

7
United States v. Roach, No. 07-0870/AF

C.M.R. at 125-26. The opinion recognized that if an accused

“becomes unreasonable in his demands, he may forfeit his right

to any assistance,” but that the Board of Review had not reached

any conclusion in that regard. Id. at 309, 29 C.M.R. at 125.

The opinion also emphasized that the Board had a number of

options in the event of disagreement between counsel and client,

including: (1) direction for both client and counsel to

separately file their assignments of error; and (2) a

requirement for the Judge Advocate General to appoint substitute

counsel as a predicate to further appellate proceedings. Id. at

309-10, 29 C.M.R. at 125-26. If the accused unreasonably

refused to proceed with assigned or substitute counsel, the

opinion observed that the Board of Review should stay the

proceedings “for a period adequate to allow service upon the

accused of the order permitting counsel to withdraw, and giving

him sufficient time to meet the new situation.” Id. at 310, 29

C.M.R. at 126. The opinion added: “In the order releasing

counsel, there should be included a notice that different

military counsel will not be made available to accused and he

must either represent himself or obtain civilian counsel.” Id.

After noting that the Board did not explore the alternatives or

provide the appellant with appropriate notice, the opinion

concluded that the case should be returned to the Board of

8
United States v. Roach, No. 07-0870/AF

Review for further proceedings with counsel appointed to

represent the appellant. Id. at 311, 29 C.M.R. at 127.

United States v. May, 47 M.J. 478 (C.A.A.F. 1998), further

illustrates the relationship between mandatory review under

Article 66 and the requirement for the government to provide

appellate counsel under Article 70. In May, the defense

appellate team consisted of civilian counsel obtained by the

appellant at his own expense and government-furnished military

appellate counsel. Id. at 480. The civilian counsel, who

served as lead counsel, undertook the responsibility for

preparing a brief. Id. While awaiting civilian counsel’s

preparation of the brief, military counsel filed seven requests

for enlargement with the Court of Criminal Appeals, which were

granted. In the course of granting an eighth request for

enlargement, the Court of Criminal Appeals ordered military

appellate defense counsel to notify civilian defense counsel

that further requests would not be favorably considered absent

extraordinary circumstances. Id. The court also ordered

military appellate defense counsel to prepare to file

assignments of error with the court by a date certain

“‘independent of any assistance or guidance by civilian

counsel.’” Id. In the meantime, further communications

involving the appellant, various military defense counsel, and

civilian defense counsel led to additional requests for

9
United States v. Roach, No. 07-0870/AF

enlargement, but no filing of a substantive brief. Id. Two

months after denying a request for enlargement, the Court of

Criminal Appeals issued a decision affirming the findings and

sentence. Id. at 481.

On appeal, we considered a number of issues, including

whether the lower court acted properly under the circumstances

of the case. We made the following observations regarding the

powers of the Courts of Criminal Appeals and the role of

counsel: “Although Courts of Criminal Appeals have a broad

mandate to review the record unconstrained by an appellant’s

assignments of error, that broad mandate does not reduce the

importance of adequate representation.” Id. We also noted that

“[w]here individual civilian counsel’s failure to act is working

to the detriment of an appellant, military appellate counsel may

not stand by idly, because they remain responsible for

protecting the interests of their client.” Id. We added: “As

officers of the court as well as appellate defense counsel,

military counsel had an obligation to comply with court orders

and protect the interests of their client.” Id. at 482. In

that regard, we observed that military appellate counsel could

have pursued a number of options to fulfill their obligations to

the court and their client in the event that civilian counsel

did not make a timely filing. Id. Each of these options would

have provided the court with a filing on the merits, including

10
United States v. Roach, No. 07-0870/AF

the appellant’s views, the position of military appellate

defense counsel, and pertinent explanatory material regarding

the posture of the case. Id.

In addition to describing the failure of military defense

counsel to take appropriate action, we noted: “Inexplicably,

the court below did nothing to enforce its order” that military

defense counsel file an assignment of merits by a date certain.

Id. In that context, we concluded that the Court of Criminal

Appeals erred in deciding the case “without assistance of

counsel” and “that appellant has been denied the assistance of

counsel guaranteed by Article 70 and the plenary review

contemplated by Article 66.” Id. We remanded the case to the

Court of Criminal Appeals “for plenary review, with assistance

of counsel under Article 70, UCMJ.” Id. at 483.

II. APPELLATE CONSIDERATION

A. PROCEEDINGS BEFORE THE COURT OF CRIMINAL APPEALS

The convening authority took action in this case on August

7, 2006. After the case was transmitted to the Court of

Criminal Appeals for mandatory review, pursuant to Appellant’s

request for representation made on the day of his trial, Captain

(Capt) D was appointed to represent Appellant as military

appellate defense counsel.

11
United States v. Roach, No. 07-0870/AF

1. The first two requests for enlargement

On November 14, 2006, appellate defense counsel filed a

motion for a first enlargement of time, which the lower court

granted, establishing a January 13, 2007, filing deadline. On

January 16, 2007, appellate defense counsel filed a motion for a

second enlargement of time until February 15, 2007, accompanied

by a further motion to submit the enlargement request out of

time. The lower court granted the second enlargement on January

17, 2007.

2. The third request for an enlargement, accompanied by an
alternative request for specified sentence relief

On February 15, 2007, appellate defense counsel filed a

motion for a third enlargement. The motion was signed by both

Capt D as “Appellate Defense Counsel” and Lieutenant Colonel (Lt

Col) S as “Chief Appellate Defense Counsel.” The third

submission requested an enlargement of 120 days until June 15,

2007. To justify an enlargement beyond the thirty-day period

provided under Rule 24.1(b) of the court’s rules, the motion

stated that counsel “will likely not be able to complete a

competent review of Appellant’s case within the next thirty

days.” The motion cited the “demands of previously docketed

cases in the Court of Appeals for the Armed Forces and this

Honorable Court [as] preclud[ing] earlier consideration of

Appellant’s case.”

12
United States v. Roach, No. 07-0870/AF

Under the heading “The steps counsel will take to ensure

that their brief is filed on or before the date requested,” the

motion stated that counsel “presently has over 20 cases pending

initial assignments of error before this Honorable Court that

were initially docketed before Appellant’s.” The motion

promised that counsel “will make every diligent effort to ensure

that Appellant’s brief is filed on or before the date

requested.” In that regard, the motion stated that such efforts

would include “completing a review of the record of trial,

conducting research, and accomplishing any investigation

required to resolve a meritorious issue.”

The motion also indicated that further requests for

enlargement might be forthcoming “given counsel’s current

workload, and that of the entire division.” In addition, the

defense requested alternative relief in the form of the options

described in United States v. Moreno, 63 M.J. 129, 143 (C.A.A.F.

2006), if the court viewed an enlargement as involving

unreasonable delay.

In response to the motion, the Court of Criminal Appeals

issued an order on March 2, 2007, providing a limited extension

until March 15, with specific requirements. As a predicate for

its action, the court observed:

The sole basis for the delay requested by the
appellant’s counsel appears to be the fact that
counsel has other cases pending on his docket

13
United States v. Roach, No. 07-0870/AF

that were received prior to the appellant’s case.
Counsel has not, however, related any information
concerning these other cases that would justify
further delay in this case.

After noting that counsel had declined to advise the court

as to the views of Appellant on the request for enlargement, the

order stated:

The Court is unable to determine, on the record
before us, that the appellant has been apprised
of the status of his case or that he desires any
additional time for the filing of his brief.
Further, we are unconvinced that the appellant’s
interests are served by permitting this case to
languish while others are processed.

In the course of granting a limited enlargement of time to

March 15, the court emphasized that any further requests for

time must contain all information required by the court’s rules.

See A.F. Ct. Crim. App. R. 24.1(b)(2)-(3).

3. The fourth request for an enlargement, accompanied by an
alternative request for specified sentence relief

On March 12, 2007, appellate defense counsel filed a motion

for a fourth enlargement of time for a period ending May 14,

2007. As with the prior defense filing, the motion was signed

by both Capt D as “Appellate Defense Counsel” and Lt Col S as

“Chief Appellate Defense Counsel.” The motion noted that

counsel had responsibility for over ten cases filed prior to

Appellant’s case. In all other pertinent respects, the motion

repeated verbatim the matter previously offered by counsel for

the third enlargement: that counsel would not likely complete

14
United States v. Roach, No. 07-0870/AF

review within the next thirty days, that counsel would take

action to complete the case, and that counsel’s workload and the

workload of the division might require a further extension. In

addition, counsel requested relief under Moreno if the court

viewed the request for enlargement as involving an unreasonable

delay. The motion did not respond to the court’s observation,

in its March 2 order, that counsel had failed to offer an

adequate justification for an enlargement. On March 14, 2007,

the court denied Appellant’s motion for an enlargement.

4. Appellant’s motion to reconsider the order denying the
fourth request for enlargement

Over the next five months, the court issued no further

orders, and the defense made no further filing. On August 23,

2007, appellate defense counsel filed a motion out of time

asking the court to reconsider its March 14, 2007, order denying

the defense request for an enlargement of time to submit an

assignment of errors, and to grant an enlargement of sixty days,

lasting until October 21, 2007. As with the prior defense

filings, the motion was signed by both Capt D as “Appellate

Defense Counsel” and Lt Col S as “Chief Appellate Defense

Counsel.” The filing noted that Appellant consented to the

motion for enlargement. The filing stated that counsel was

responsible for “approximately 4 cases pending initial

assignments of error prioritized before Appellant’s.” The

15
United States v. Roach, No. 07-0870/AF

filing also stated that counsel “will likely not be able to

complete a competent review of Appellant’s case within the next

thirty days.” The filing added that the “demands of previously

docketed cases in the Court of Appeals for the Armed Forces and

this Honorable Court have precluded earlier consideration of

Appellant’s case.” The filing further noted that the “case

potentially contains several issues.” In that regard, the

filing stated: “Specifically, Appellant believes that his

counsel may have been ineffective during the post-trial stages

of the case, and also challenges the trial counsel’s

qualifications to serve on the prosecution team.”

The Air Force Court of Criminal Appeals denied Appellant’s

motion on August 30, 2007. In the order denying the motion, the

court summarized the history of the case and stated: “[T]he

facts remain the same. The record is 81 pages in length and the

case involves a two specification guilty plea in a Military

Judge alone case.” The court further noted that it had already

“begun review of this case, therefore a delay till [sic] October

is inappropriate.” The court added that if appellate defense

counsel filed a brief prior to its action, it would be

considered.

B. THE DECISION OF THE COURT OF CRIMINAL APPEALS

On September 13, 2007, the Air Force Court of Criminal

Appeals issued an opinion affirming the findings and sentence.

16
United States v. Roach, No. 07-0870/AF

Roach, 2007 CCA LEXIS 402, at *9, 2007 WL 2790660, at *3-*4.

The court stated that “[l]engthy delays in reaching final

resolution on adjudged punitive discharges in straightforward

cases such as this case do not serve either the interests of the

accused or the interests of the Air Force. Therefore this Court

is taking action sans a brief [sic] appellate counsel.” Id. at

*3, 2007 WL 2790660, at *1 The court explained that after

denying appellate defense counsel’s request for a fourth

enlargement of time on March 14, 2007, the court “completed its

review in the normal course of appellate review based upon the

Court’s workload and the Rules of Practice and Procedure.” Id.

at *2, 2007 WL 2790660, at *1.

The court stated that it could not discern whether the

failure of appellate defense counsel to file a brief was due to

“deficiency of counsel, a strategy to create an issue, or a

delay tactic for the benefit of their client.” Id. at *7-*8,

2007 WL 2790660, at *3. The court concluded that the interplay

between Article 66, UCMJ, and the court’s own rules of practice

and procedure meant that if defense counsel did not file a

brief, the court could presume the case was submitted on the

merits. Id. at *7, 2007 WL 2790660, at *3.

The court conducted its own review of the record of trial

and discussed two issues in Appellant’s case. First, with

respect to the failure of the assistant trial counsel to take

17
United States v. Roach, No. 07-0870/AF

the oath required by Article 42, UCMJ, 10 U.S.C. § 842 (2000),

the court concluded that the error was not jurisdictional, nor

did it materially affect the substantial rights of the accused.

Id. at *4-*6, 2007 WL 2790660, at *2. The court also rejected

Appellant’s argument that trial defense counsel erred in failing

to raise this technical issue in Appellant’s clemency petition.

Id. at *6, 2007 WL 2790660, at *2.

Second, the court discussed whether appellate defense

counsel’s failure to file a timely brief constituted ineffective

assistance of counsel. Id. at *6-*8, 2007 WL 2790660, at *3.

The court explained that it considered the case submitted on the

merits despite counsel’s failure to submit a brief, and

concluded that submitting the case on its merits did not fall

“‘below an objective standard of reasonableness’” under

Strickland v. Washington, 466 U.S. 668, 688 (1984). Id. The

court further held that even if counsel’s performance was

deficient in not filing a brief, the error was not prejudicial

because Appellant still received the benefit of the appellate

process. Id. at *8, 2007 WL 2790660, at *3 (citing Roe v.

Flores-Ortega, 528 U.S. 470, 484 (2000)). The court noted that

because it had conducted an Article 66, UCMJ, review and found

no errors, Appellant was not prejudiced by appellate defense

counsel’s failure to file a brief in the context of a brief

record and Appellant’s guilty plea. Id. at *6-*8, 2007 WL

18
United States v. Roach, No. 07-0870/AF

2790660, at *3. Accordingly, the court approved the findings

and sentence.

C. FURTHER FILINGS REGARDING THE PROCEEDINGS BEFORE
THE COURT OF CRIMINAL APPEALS

On September 17, 2007, Appellant submitted a petition for

grant of review by this Court signed on his behalf by Capt D.

All subsequent submissions by the defense were filed by

appellate defense counsel different from the counsel who had

represented Appellant before the Court of Criminal Appeals. The

new appellate defense counsel submitted the petition supplement

on October 17, 2007. The defense petition supplement asserted

that if the defense had submitted a brief before the lower court

issued its opinion, the defense would have raised two issues:

(1) whether the military judge erred by accepting
his plea of guilty to the willfullness component
of Charge II in light of the military judge’s
failure to explain to him the potential voluntary
intoxication defense; and (2) whether the
enormous disparity between his sentence and that
of his co-actor, A1C Neff, warranted reduction of
Appellant’s sentence.

Appellant asserted that his sentence, which included a bad-

conduct discharge, was inappropriate because his alleged “co-

accused” did not receive a punitive separation. The sentence

appropriateness issue had not been raised by appellate defense

counsel in any of the submissions to the court below.

Subsequently, Appellant submitted a further issue pursuant to

United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), asserting

19
United States v. Roach, No. 07-0870/AF

that the convening authority erred by failing to grant

Appellant’s supplemental clemency request seeking release from

confinement following his wife’s miscarriage. United States v.

Roach, 66 M.J. 109, 110 (C.A.A.F. 2008) (granting motion).

The defense subsequently filed affidavits from both of the

counsel who had represented Appellant before the Court of

Criminal Appeals. Roach, 66 M.J. at 110 (granting defense

motion to attach). Capt D stated in his affidavit: “Due to my

caseload and my prioritization of my cases, I never read the

transcript in the Roach case.” Lt Col S, who identified himself

as the person responsible for supervising and assigning counsel

within the Appellate Defense Division, stated: “I did not, and

have not now, read the record of trial.” Neither affidavit

offered any further explanation for the five-month period of

inactivity after the lower court’s order denying the request for

a fourth enlargement or for the decision not to give priority

attention to Appellant’s case in light of the orders issued by

the lower court. Neither affidavit asserted that CPT D, as

counsel, requested additional assistance to ensure a timely

filing, or that Lt Col S, as supervisory counsel, lacked

sufficient resources to provide such assistance. The defense

also subsequently filed an affidavit from Colonel M, an Air

Force Reservist, who stated that she had been given the record

to review sometime between August 20, 2007 and August 23, 2007.

20
United States v. Roach, No. 07-0870/AF

She stated that she had not read the record before she learned

that the lower court had decided the case. United States v.

Roach, 66 M.J. __ (C.A.A.F. 2008) (Apr. 24, 2008 order granting

defense motion to attach).

III. DISCUSSION

Appellant requested representation under Article 70, UCMJ,

on the day of his court-martial. Over the next year, counsel

appointed to represent him under Article 70 not only failed to

file a brief on his behalf under Article 66, they also failed to

provide the Court of Criminal Appeals with timely or informative

explanations for their inaction. Appellate defense counsel’s

filings consisted of rote comments about first-in-first-out

prioritization, reference to the number of pending cases

unaccompanied by any explanation as to the significance of those

numbers, and vague references to the workload of defense counsel

and the work of the division without any information

demonstrating that the entire Appellate Defense Division was

incapable of providing timely appellate representation.

The actions and omissions were taken at a time when

Appellant was represented by an attorney who was under the

direct supervision of the Chief Appellate Defense Counsel.

According to the affidavits filed by both counsel, neither one

read the record of trial in this case during the entire period

21
United States v. Roach, No. 07-0870/AF

that it was under consideration by the Court of Criminal

Appeals, a case involving a guilty plea in which the transcript

of the three hour trial consisted of eighty-one pages, with no

defense motions before, during, or after trial.

The decisions in Bell and May reflect our understanding

that the Courts of Criminal Appeals have broad powers to issue

orders to counsel to ensure the timely progress of cases

reviewed under Article 66. May, 47 M.J. at 481-82; Bell, 11

C.M.A. at 309, 29 C.M.R. at 125. These cases also underscore

that such actions must be taken in a manner consistent with the

requirements of Article 70, UCMJ. May, 47 M.J. at 481; Bell, 11

C.M.A. at 309-10, 29 C.M.R. at 125-26. When counsel appears to

be unresponsive, the court has a variety of actions it may take,

including: (1) holding a status conference with the parties to

inquire into the reason for the delay in filing; (2) ordering

appellate defense counsel to show cause as to why they could not

file their brief on time; (3) warning counsel that flagrant

disregard of the court’s rules for timely filing of briefs could

result in suspension or disbarment from practice before the

court; (4) asking the Judge Advocate General to direct the

assignment of additional or substitute counsel; or (5)

appointing another member of the bar to represent the appellant

on a pro bono basis. See May, 47 M.J. at 482; United States v.

22
United States v. Roach, No. 07-0870/AF

Ortiz, 24 M.J. 323, 325 (C.M.A. 1987); Bell, 11 C.M.A. at 309-

10, 29 C.M.R. at 125-26.

Such actions are particularly important when it is unclear,

as in this case, whether the failure to file a brief is a result

of (1) appellate defense counsel’s individual inability or

unwillingness to familiarize himself with the case prior to the

filing deadline, (2) appellate defense counsel’s unwillingness

to file a brief raising substantive issues, (3) staffing

shortages in the Appellate Defense Division, (4) improper

supervision of the Appellate Defense Division, or (5) a

deliberate tactical decision by appellate defense counsel not to

file the brief in order to create an appellate issue.

Irrespective of the reason for not filing a brief, however,

our cases underscore that when an appellant has requested

representation that does not appear to be forthcoming, the court

must ensure that military counsel are performing their primary

obligation “to comply with court orders and protect the

interests of [the] client.” See May, 47 M.J. at 482. Although

the Courts of Criminal Appeals have a de novo power to review

the merits of cases, they do not possess a duty of loyalty to

the client or a duty to zealously represent the interests of the

client. These duties help underpin the rigor and validity of

the adversarial process of justice. Moreover, it is in drafting

a brief that counsel will often identify issues and formulate

23
United States v. Roach, No. 07-0870/AF

arguments to bring to the court’s attention. If the court

determines that circumstances warrant proceeding without a brief

filed by appointed military appellate counsel, the court must

first provide adequate notice to the appellant so that the

appellant can determine whether to request substitute counsel

under Article 70, obtain civilian counsel at the appellant’s

expense, or waive the right to counsel and proceed pro se. See,

e.g., Bell, 11 C.M.A. at 310, 29 C.M.R. at 126. The one aspect

of this record that is clear is that the court below proceeded

to decide Appellant’s case without providing such notice. In so

doing, the lower court assumed the existence of a merits

submission and proceeded to decide the case without the

requisite notice to Appellant. Where appellate defense counsel

made multiple requests for extension of time and those filings

raised substantive issues of concern, the lower court erred in

presuming a merits submission. Cf. United States v. Adams, 59

M.J. 367, 371 (C.A.A.F. 2004) (concluding that the appellant was

not unrepresented because counsel had made the deliberate

decision to submit the case on its merits).

Although we understand the lower court’s concern about the

circumstances related to timely appellate review, there is no

indication on the record that Appellant personally bears any

responsibility for these circumstances of concern. Moreover, as

we noted in Bell, even when difficulties in the relationship

24
United States v. Roach, No. 07-0870/AF

between Article 70 counsel and an appellant may be attributable

to an appellant, the appellant must still be given a reasonable

opportunity to proceed in an alternative fashion with substitute

counsel, retained counsel, or pro se. Bell, 11 C.M.A. at 310-

11, 29 C.M.R. at 126-27.

As in Bell and May, the issue before us is not whether

Appellant was deprived of his Sixth Amendment right to the

effective assistance of counsel under Strickland, 466 U.S. 668,

but whether the court below ensured that the Government provided

Appellant with representation under Article 70. The error in

this case is that the court below proceeded to decide the case

without taking the steps required under Bell and May.

Under these circumstances, we need not resolve the

questions left unanswered by the court below as to why a brief

was not filed in this case; nor need we determine whether the

lower court’s error in failing to provide notice to Appellant

was inherently prejudicial or whether it should be tested for

specific prejudice. Cf. Flores-Ortega, 528 U.S. at 483

(discussing prejudice in the context of a Sixth Amendment

ineffective assistance of counsel claim, and citing Penson v.

Ohio, 488 U.S. 75, 88-89 (1988); United States v. Cronic, 466

U.S. 648, 650 (1984); Smith v. Robbins, 528 U.S. 259, 286

(2000)).

25
United States v. Roach, No. 07-0870/AF

In remanding the case, we emphasize that the Court of

Criminal Appeals may set and enforce deadlines. If the Court of

Criminal Appeals encounters similar delays during further

proceedings, it should consider the methods identified in this

opinion to determine the nature of the problem, ensure that

Appellant understands the available options, and take

appropriate action, including requiring that the Judge Advocate

General appoint additional or substitute counsel if necessary.

In view of appellate defense counsel’s repeated reference to the

workload of the Appellate Defense Division during prior

consideration of this case at the Court of Criminal Appeals, the

Court of Criminal Appeals upon remand should ensure that

Appellant receives conflict-free counsel under Articles 66 and

70, UCMJ, during further review of this case.

IV. DECISION

The decision of the Air Force Court of Criminal Appeals is

set aside. The record of trial is returned to the Judge

Advocate General of the Air Force for remand to that court for

plenary review with assistance of counsel under Article 70,

UCMJ, 10 U.S.C. § 870 (2000). Thereafter, Article 67, UCMJ, 10

U.S.C. § 867 (2000), will apply.

26
United States v. Roach, No. 07-0870/AF

STUCKY, Judge, with whom RYAN, Judge, joins (dissenting):

Citing United States v. Bell, 11 C.M.A. 306, 29 C.M.R. 122

(1960), and United States v. May, 47 M.J. 478 (C.A.A.F. 1998),

the majority asserts that the issue before the Court “is not

whether Appellant was deprived of his Sixth Amendment right to

the effective assistance of counsel under Strickland, 466 U.S.

668, but whether the court below ensured that the Government

provided Appellant with representation under Article 70.”

United States v. Roach, __ M.J. __ (25) (C.A.A.F. 2008). It

then holds that the United States Air Force Court of Criminal

Appeals (AFCCA) failed in its duty. Id.

We granted review of two issues: (1) whether the AFCCA

erred by deciding Appellant’s case in the absence of a

substantive submission on Appellant’s behalf; and (2) whether

the AFCCA erred by failing to conclude that appellate defense

counsel were ineffective. Rather than answering these granted

issues, the majority frames a different issue that improperly

imposes a duty on the Courts of Criminal Appeals contrary to the

precedents of this Court and the Supreme Court. Therefore, I

dissent.

I.

On the day of trial, June 20, 2006, Appellant signed a

request for appellate defense counsel to represent him before

the AFCCA. The record of trial was received by the Air Force
United States v. Roach, No. 07-0870/AF

Appellate Defense Division on August 16, 2006, and Lieutenant

Colonel (Lt Col) S, Deputy Chief, Appellate Defense Division,

assigned the case to Captain (Capt) D. Appellate defense

counsel failed to file their brief within the ninety days

allotted, A.F. Ct. Crim. App. R. 15(b), but did request two

enlargements of time. The AFCCA granted both enlargements of

time such that the brief was required to be submitted by

February 15, 2007.

On that date, Capt D and Lt Col S moved to submit an

enlargement of time out of time, requesting an additional

enlargement of 120 days. As this was the third requested

enlargement of time and the asserted reason was other

litigation, counsel were required to disclose whether Appellant

concurred in the requested delay, A.F. Ct. Crim. App. R.

24.1b(3), and to specifically explain the number and types of

their other cases and the courts involved. A.F. Ct. Crim. App.

R. 24.1(b)(2). Capt D and Lt Col S asserted that, “absent

client consent, counsel is unable to answer this Honorable

Court’s request for an averment of prior coordination.” They

challenged the Air Force Court to either grant the request for

enlargement or grant Appellant relief from his sentence under

United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), “to remedy

the denial of speedy post-trial processing.”

2
United States v. Roach, No. 07-0870/AF

The AFCCA issued an order on March 2, 2007, in which it

observed that the case had been with the Appellate Defense

Division for more than six months, the record of trial was only

eighty-one pages long and contained only seventeen exhibits, the

sole basis for the enlargement request was counsel’s other

pending cases, and counsel had neither provided the required

information concerning the other pending cases to justify the

requested enlargement of time nor indicated that Appellant

concurred in the request for enlargement. Nevertheless, the

court granted an enlargement until March 15, 2007, but ordered

counsel to provide the information missing from the requested

enlargement.

On March 12, 2007, Appellant’s counsel requested an

additional enlargement of time for sixty days, noting that this

was the fourth request for enlargement and approximately 190

days had elapsed since initial docketing of the case. He

claimed that he then had ten other cases pending, but provided

no details despite the court’s order to do so. The AFCCA denied

the motion for enlargement of time on March 14, 2007.

On August 23, 2007, more than five months later, and more

than a year after Capt D was assigned to the case, he and Lt Col

S filed a motion out of time for reconsideration of the denial

of his fourth request for enlargement and another request for

enlargement of time. They requested sixty more days to file a

3
United States v. Roach, No. 07-0870/AF

brief, stating that they could “now aver that Appellant allows

him to file requests for enlargements on his behalf.” Capt D

and Lt Col S asserted that Capt D then had approximately four

cases pending that, apparently, he and Lt Col S had determined

to be higher priority, but provided no further details. They

noted that “Appellant believes that his counsel may have been

ineffective during the post-trial stages of the case, and also

challenges the trial counsel’s qualifications to serve on the

prosecution team.”

On August 30, 2007, the AFCCA denied Appellant’s motion,

stating it had already begun review of the case. However, the

AFCCA encouraged appellate defense counsel to file a brief: “If

a brief from Appellant is received prior to action by this

Court, it will be considered.” No brief was filed.

The AFCCA affirmed the findings and sentence approved by

the convening authority on September 13, 2007, almost thirteen

months after the case was received by the Appellate Defense

Division and assigned to Capt D. United States v. Roach, ACM

No. S31143, 2007 CCA LEXIS 402, *9, 2007 WL 2790660 *3-*4 (A.F.

Ct. Crim. App. Sept. 13, 2007) (per curiam) (unpublished).

Finding Appellant had failed to show good cause for a new sixty-

day period for filing a brief, the AFCCA decided the case

without the brief. Id. at *3, 2007 WL 2790660, at *1. Citing

A.F. Ct. Crim. App. R. 15(b) and 15.4, the AFCCA said that “it

4
United States v. Roach, No. 07-0870/AF

is clear that if no brief is filed by appellate defense counsel

then it is presumed to constitute a submission on the merits.”

Id. at *7, 2007 WL 2790660 at *3.

The AFCCA examined both of the issues mentioned by

appellate defense in the motion for reconsideration as possible

issues in the case -- the qualifications of assistant trial

counsel and the effectiveness of trial defense counsel for not

raising the issue in clemency. Id. at *4-*6, 2007 WL 2790660 at

*2. The court also examined Capt D’s failure to file a brief

for ineffective assistance of counsel under Strickland v.

Washington, 466 U.S. 668 (1984):

Despite the clear expression by the appellant that
he desired to be represented by counsel before this
Court, we do not presume a breach of the reasonableness
standard. The unique stature of this Court and the
Court rules themselves make that issue more complex and
the presumption impossible to reach. Under Article
66(b)(1), UCMJ, 10 U.S.C. § 866(b)(1), this Court is
required by law to review the appellant’s case once
referred to the Court by the Judge Advocate General.
That referral has occurred. Appellate defense counsel
is well aware of our obligation. In addition, under
Rules 15(b) and 15.4 of this Court’s Rules of Practice
and Procedure, it is clear that if no brief is filed by
appellate defense counsel then it is presumed to
constitute a submission on the merits. Considering the
extremely limited record in this case and the lack of
any substantive issues, a submission on the merits is
reasonable. As for the failure to expressly file a
merits brief, it is impossible to speculate whether we
have a deficiency of counsel, a strategy to create an
issue, or a delay tactic for the benefit of their
client. See [Roe v. ]Flores-Ortega, 528 U.S. [470,]
484 [2000]. Thus we do not find that the appellant has
met his burden of establishing a breach of the
standard. Nevertheless, we looked to the second prong

5
United States v. Roach, No. 07-0870/AF

of the Strickland analysis. Having done so, we also
find no prejudice to the appellant. Notwithstanding
appellate defense counsel’s failure to file a brief,
the appellant in this case still actually received the
benefit of the appellate process. There is no evidence
to support a contention that this appellate proceeding
is “unreliable or entirely nonexistent” as was the case
in Flores-Ortega. Id. We have reviewed the entire
Record of Trial for errors and find none. The
appellant pled guilty. The trial lasted less than
three hours in length before a certified military judge
and trial defense counsel made no objections or motions
before, during, or after the trial.

Id. at *7-*8, 2007 WL 2790660, at *3 (footnotes omitted).

We granted Appellant’s motion to admit declarations from

Capt D, Lt Col S, and Colonel (Col) M, a reservist also assigned

to the Appellate Defense Division. Capt D stated that, although

he was detailed appellate defense counsel for Appellant, he did

not read the record of trial before the AFCCA affirmed the

findings and sentence. “When AFCCA decided the case, the

defense copy of the record of trial was not in my possession

because it had been sent to a reservist to review.” Lt Col S,

the Deputy Division Chief, Appellate Defense Division, stated

that he assigned Appellant’s case to Capt D, that he signed each

request for enlargement and the motion for reconsideration as a

supervisory appellate defense counsel, but that he did not read

6
United States v. Roach, No. 07-0870/AF

the record of trial. Col M said she “was given the record of

trial” in this case between August 20 and August 23, 2007, but

had neither read the record nor communicated with Appellant.1

II.

“Appellate defense counsel shall represent the accused

before the Court of Criminal Appeals . . . when requested by the

accused,” Article 70(c)(1), Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 870(c)(1) (2000), and Appellant so requested

on the day of his trial. This Court has interpreted an

appellant’s statutory right to appellate counsel under Article

70, UCMJ, to mean the effective representation by counsel

through the entire period of review following trial. Diaz v.

Judge Advocate General of the Navy, 59 M.J. 34, 37 (C.A.A.F.

2003); accord United States v. Adams, 59 M.J. 367, 370 (C.A.A.F.

2004).

Appellate courts may be the guardians of an appellant’s

Article 70, UCMJ, right to be represented by counsel on appeal;

contrary to the majority opinion, however, compliance with

Article 70, UCMJ, depends on appellate defense counsel’s

performance, not on the performance of the AFCCA. Compare

1
The declarations of Capt D, Lt Col S, and Col M are relatively
unhelpful. It is unclear, for instance, whether the case was
ever actually reassigned to Col M. The declarations of Capt D
and Lt Col S also fail to mention any communications they may
have had with Appellant, although that would obviously be of

7
United States v. Roach, No. 07-0870/AF

Article 70, UCMJ, with Article 66, UCMJ, 10 U.S.C. § 866 (2000).

To resolve issues of appellate defense counsel’s performance,

“we are guided by the Supreme Court’s two-pronged test set forth

in Strickland v. Washington, 466 U.S. 668 (1984).” Adams, 59

M.J. at 370; accord United States v. Miller, 63 M.J. 452, 455-56

(C.A.A.F. 2006); see Roe v. Flores-Ortega, 528 U.S. 470, 477-87

(2000) (vacating the judgment of the lower court that had held

counsel’s failure to file a notice of appeal without the

appellant’s consent was sufficient to grant him a right to a new

appeal, and holding that the Strickland test is the proper

framework for evaluating an ineffective assistance of counsel

claim, based on counsel’s failure to obtain the appellant’s

consent).2 The Strickland test provides:

First, the defendant must show that counsel’s
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant
by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors
were so serious as to deprive the defendant of a fair
trial.

466 U.S. at 687.

interest to an appellate court. See May, 47 M.J. at 482. Col M
denied ever communicating with Appellant.
2
While recognizing the difference between failing to file a
notice of appeal in civilian court and failing to file a brief
in a military appellate court, the Flores-Ortega opinion is
helpful in analyzing the granted issues.

8
United States v. Roach, No. 07-0870/AF

The majority’s reliance on Bell and May is misplaced.

First, those cases were decided before the Supreme Court

resolved how to handle deficient appellate counsel performance

in Flores-Ortega. Second, the procedural posture of those cases

was different, as was the degree to which the appellants were

represented by counsel. Bell’s “obstreperous . . . . conduct

caused two qualified defense counsel to request relief from

assignment to avoid compromising their standings as lawyers.”

Bell, 11 C.M.A. at 308, 29 C.M.R. at 124. The Board of Review

relieved the counsel and decided the case without notifying the

appellant. Id. at 309, 29 C.M.R. at 125. Thus, at the time of

his appeal, Bell was totally unrepresented. In May, the

appellant’s trial defense counsel alleged three errors in his

post-trial submissions. 47 M.J. at 479. Neither the

appellant’s civilian nor military appellate counsel filed a

brief on appeal, so none of those issues was presented to the

Court of Criminal Appeals. Id. at 480. This Court held that

May was, in effect, unrepresented by counsel and prejudice was,

therefore, presumed. Id. at 481.

This case is different. Appellant was represented by

appellate defense counsel who continued to submit matters to the

AFCCA up until the court rendered its decision. Although

Appellant’s counsel never filed a formal brief, the AFCCA

reviewed at length both of the issues Appellant raised.

9
United States v. Roach, No. 07-0870/AF

Appellant was represented by counsel and, therefore, his case

should be analyzed under the Strickland standard. See Flores-

Ortega, 528 U.S. at 478.

III.

A.

The first prong of the Strickland standard requires an

appellant to “show that counsel’s representation fell below an

objective standard of reasonableness. . . . under prevailing

professional norms.” 466 U.S. at 688. In Flores-Ortega, the

Supreme Court refused to adopt a bright-line rule that, unless

an accused instructs him otherwise, counsel’s failure to file a

notice of appeal is per se objectively unreasonable. 528 U.S.

at 478. Instead, the Court affirmed the applicability of the

Strickland standard for deficient performance -- whether

counsel’s performance “‘was reasonable considering all the

circumstances.’” Id. (quoting Strickland, 466 U.S. at 688).

The circumstances the Supreme Court considered included whether

counsel consulted with the accused -- “advising the [accused]

about the advantages and disadvantages of taking an appeal, and

making a reasonable effort to discover the defendant’s express

instructions.” Id. If counsel consulted with the accused, his

performance is objectively unreasonable “only by failing to

follow the [accused’s] wishes.” Id.

10
United States v. Roach, No. 07-0870/AF

The record does not establish whether Capt D or Lt Col S

consulted with Appellant within the meaning of Flores-Ortega.

Despite the importance of the issue, appellate defense counsel’s

declarations are not helpful in determining whether, and to what

extent, counsel even communicated with Appellant. The August

23, 2007, defense submission to the AFCCA suggests that counsel

had contacted Appellant so as to receive permission to tell the

court that Appellant agreed to the requested enlargements of

time and to receive Appellant’s request to raise two issues on

appeal. But that is not sufficient to establish consultation as

defined in Flores-Ortega. Col M asserts she had no

communications with Appellant.

If an appellate defense counsel does not consult with the

accused, his performance is objectively unreasonable “when there

is reason to think either (1) that a rational accused would want

to appeal (for example, because there are nonfrivolous grounds

for appeal), or (2) that this particular [accused] reasonably

demonstrated to counsel that he was interested in appealing.”

Flores-Ortega, 528 U.S. at 480. Appellant reasonably expressed

his interest in appealing by signing the request for appellate

counsel at trial and by advising counsel of the two issues he

wanted raised to the AFCCA. Yet neither Capt D nor Lt Col S

reviewed the record to see if it supported Appellant’s claims.

11
United States v. Roach, No. 07-0870/AF

In fact, they even failed to submit a Grostefon3 brief listing

the issues Appellant wanted raised. Instead, they merely listed

the issues in a request for reconsideration. Under the

circumstances, I conclude that the performance of Capt D and Lt

Col S was deficient; it was objectively unreasonable for them

not to timely file a brief.

B.

The second prong of the Strickland test, which requires

Appellant to establish prejudice, focuses on the reliability of

the proceeding as a whole. See Flores-Ortega, 528 U.S. at 483;

United States v. Cronic, 466 U.S. 648, 659 (1984). Normally,

there is a strong presumption of reliability in judicial

proceedings that an accused must overcome by showing “that there

is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland,

466 U.S. at 694.

The Supreme Court has identified three circumstances “so

likely to prejudice the accused that the cost of litigating

their effect in a particular case is unjustified,” Cronic, 466

at 658: (1) if there is a “complete denial of counsel”; 2) “if

3
United States v. Grostefon, 12 M.J. 431, 435-36 (C.M.A. 1982).

12
United States v. Roach, No. 07-0870/AF

counsel entirely fails to subject the prosecution’s case to

meaningful adversarial testing”; and (3) if counsel is called

upon to render assistance where competent counsel very likely

could not have rendered effective assistance. Id. at 659-61.

When an accused establishes that “he was -- either actually

or constructively -- denied the assistance of counsel

altogether. . . . ‘no specific showing of prejudice is

required,’ because ‘the adversary process itself [is]

presumptively unreliable.’” Flores-Ortega, 528 U.S. at 483

(quoting Cronic, 466 U.S. at 659). “[W]hen counsel’s

constitutionally deficient performance deprives a defendant of

an appeal that he otherwise would have taken, the defendant has

made out a successful ineffective assistance of counsel claim

entitling him to an appeal.” Id. at 484. In such a case, the

accused need not “demonstrate that his hypothetical appeal might

have had merit before any advocate has ever reviewed the record

in his case in search of potentially meritorious grounds for

appeal.” Id. at 486. Instead, he is required to show that “but

for counsel’s deficient conduct, he would have appealed.” Id.

In Flores-Ortega, “counsel’s alleged deficient performance

arguably led not to a judicial proceeding of disputed

reliability, but rather to the forfeiture of a proceeding

itself.” Id. at 483. This appellant, however, was not denied

an appeal. The AFCCA considered, analyzed, and rendered

13
United States v. Roach, No. 07-0870/AF

judgment on the two issues Appellant raised and one issue it

raised sua sponte. The AFCCA also complied with its statutory

duty to

affirm only such findings of guilty and the sentence
or such part or amount of the sentence, as it finds
correct in law and fact and determines, on the basis
of the entire record, should be approved. In
considering the record, it may weigh the evidence,
judge the credibility of witnesses, and determine
controverted questions of fact, recognizing that the
trial court saw and heard the witnesses.

Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000). It reviewed the

case for legal and factual sufficiency and considered the legal

errors Appellant alleged.

IV.

As Appellant was not denied an appeal, he has the burden of

demonstrating that his counsel’s deficient performance

prejudiced his defense -- “that there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. Appellant has failed to do so.

As the majority notes, Appellant’s new defense counsel

claim they would have raised two issues on appeal had they been

given the opportunity to do so: (1) the plea was improvident

because the military judge failed to explain the defense of

14
United States v. Roach, No. 07-0870/AF

voluntary intoxication; and (2) the enormous disparity in the

sentence imposed on his co-actor warranted a reduction in

Appellant’s sentence.

A.

Voluntary intoxication is not a defense, but may be

introduced for the purpose of raising a reasonable doubt as to

the existence of actual knowledge or specific intent if either

is an element of the offense. Rule for Courts-Martial

916(l)(2). To raise the issue, there must be some evidence that

the intoxication was of a severity as to render the appellant

incapable of having the requisite knowledge or of forming the

specific intent. United States v. Peterson, 47 M.J. 231, 234

(C.A.A.F. 1997).

In the early morning hours of October 13, 2005, Appellant

consumed a large quantity of alcoholic beverages eventually

causing him to pass out for approximately ninety minutes. After

awakening, he directed another airman to drive him to a downtown

apartment building, where he got out of the vehicle and walked

around the neighborhood. He was eventually stopped and

interrogated by police officers. After his release, he directed

the airman to drive him to another location where Appellant

again left the vehicle. Appellant returned with a woman. They

drove to an ATM where Appellant withdrew money from his bank

15
United States v. Roach, No. 07-0870/AF

account using his government travel card. Appellant paid the

woman $40 in exchange for a rock of cocaine, which he showed the

other airman how to smoke.

While the military judge did not specifically discuss

involuntary intoxication with Appellant, she did ensure that his

plea was provident. During the providence inquiry, Appellant

told the military judge that he knew at the time that he was

using cocaine and had no legal justification for doing so; he

knew that his use of cocaine was a violation of the law; despite

his drinking, he remembered making a conscious choice to use

cocaine; he knew what he was doing when he used the cocaine and

could have avoided using the cocaine if had wanted to do so.

Under these circumstances, the military judge was not required

to discuss how the issue of voluntary intoxication could affect

Appellant’s plea.

B.

Appellant’s sentence is not “highly disparate” when

compared to that of Airman First Class (A1C) Neff and there are

rational reasons for any difference. See United States v. Lacy,

50 M.J. 286, 288 (C.A.A.F. 1999). It would have been apparent

to the AFCCA from its review of the record that Appellant’s

sentence was not disproportionate to A1C Neff’s. After all,

Appellant orchestrated the use of cocaine. He outranked A1C

Neff, directed A1C Neff to drive them to the place where

16
United States v. Roach, No. 07-0870/AF

Appellant located the drug dealer who provided the cocaine, used

his government travel card to obtain funds for purposes other

than official travel, provided funds to the drug dealer to

purchase steel wool for the crack pipe, and showed A1C Neff how

to use the crack pipe to smoke the cocaine.

The AFCCA was also aware of A1C Neff’s sentence. Appellant

described it in his unsworn statement as being confinement for

one month, hard labor without confinement for ninety days,

forfeiture of $325 pay per month for six months, a reprimand,

and reduction to E-1, specifically noting that A1C Neff did not

receive a bad-conduct discharge. While the AFCCA did not

discuss the issue, it concluded that the sentence was correct in

law and fact. Roach, 2007 CCA LEXIS 402, at *9, 2007 WL

2790660, at *3. Under the circumstances, that is sufficient.

There is no evidence to warrant a reduction in Appellant’s

sentence.

Appellant failed to demonstrate prejudice -- that there was

a reasonable probability that but for his counsel’s deficient

performance his sentence would have been different. Therefore,

the decision of the AFCCA should be affirmed.

V.

In Moreno, this Court held that “[d]ue process entitles

convicted service members to a timely review and appeal of

court-martial convictions.” 63 M.J. at 132. We expressed

17
United States v. Roach, No. 07-0870/AF

concern that “[t]here is no evidence in this case that the

numerous requests for delay filed by appellate defense counsel

benefited Moreno or that Moreno was consulted about and agreed

to these delays.” Id. at 137. This Court established “a

presumption of unreasonable delay where appellate review is not

completed and a decision is not rendered within eighteen months

of docketing the case before the Court of Criminal Appeals.”

Id. at 142.

We warned the Courts of Criminal Appeals that we expected

them “to document reasons for delay and to exercise the

institutional vigilance that was absent in Moreno’s case.” Id.

at 143. Through its court rules, the AFCCA attempted to

document these delays and undertake the institutional vigilance

necessary to ensure Appellant received a timely appeal. The

majority permits appellate counsel to frustrate that plan by

refusing to file a brief or to adequately document the reasons

for not doing so. Therefore, I dissent.

18