U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM S32716
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UNITED STATES
Appellee
v.
Javohn I. JOURNIGAN
Airman Basic (E-1), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 28 November 2022
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Military Judge: Thomas A. Smith.
Sentence: Sentence adjudged 10 September 2021 by SpCM convened at
Barksdale Air Force Base, Louisiana. Sentence entered by military
judge on 30 September 2021: Bad-conduct discharge and confinement
for 60 days.
For Appellant: Major Abhishek S. Kambli, USAF.
For Appellee: Major Morgan R. Christie, USAF; Major John C. Patera,
USAF; Captain Jocelyn Q. Wright, USAF; Mary Ellen Payne, Esquire.
Before KEY, RAMÍREZ, and GRUEN, Appellate Military Judges.
Judge RAMÍREZ delivered the opinion of the court, in which Senior
Judge KEY and Judge GRUEN joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
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United States v. Journigan, No. ACM S32716
RAMÍREZ, Judge:
A military judge found Appellant guilty, in accordance with his pleas and
pursuant to a plea agreement, of five specifications of wrongful use of a con-
trolled substance in violation of Article 112a, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 912a.1
Appellant’s plea agreement provided, among other things, that if the mili-
tary judge did not adjudge a bad-conduct discharge, no term of confinement
would exceed 75 days; that if the military judge adjudged a bad-conduct dis-
charge, no term of confinement would exceed 60 days; and that any terms of
confinement would run concurrently. The military judge sentenced Appellant
to a bad-conduct discharge, 30 days of confinement each for two specifications
of marijuana use, 60 days of confinement each for two specifications of subse-
quent marijuana use, and 45 days of confinement for a specification of meth-
amphetamine use, with all periods of confinement running concurrently. The
convening authority took no action on the findings or the sentence.
Appellant raises one issue on appeal, which we have reworded: whether
Appellant’s trial defense counsel were ineffective for failing to present specific
evidence in mitigation and extenuation during presentencing. We find they
were not and affirm the findings and sentence.
I. BACKGROUND
During the spring and summer of 2021, while stationed at Barksdale Air
Force Base, Louisiana, Appellant’s urine tested positive for methamphetamine
on one occasion and marijuana on multiple occasions. These results led to crim-
inal charges and, eventually, Appellant’s guilty pleas at his court-martial. Ap-
pellant was represented by two military defense counsel.
During the presentencing phase of Appellant’s court-martial, the Prosecu-
tion submitted its documentary evidence. Prosecution Exhibit 4 was a record
of nonjudicial punishment. When that exhibit was offered, trial defense coun-
sel objected to the portion that contained Appellant’s response. After hearing
arguments from both sides, the military judge sustained the objection and the
response was removed from the exhibit. The Prosecution then offered Prosecu-
tion Exhibit 5, which was a letter of reprimand (LOR) that had two attached
memoranda for record (MFRs). Trial defense counsel objected to admission of
both MFRs; the military judge sustained the objection and the MFRs were re-
moved from the exhibit.
1 All references in this opinion to the UCMJ and Rules for Courts-Martial (R.C.M.) are
to the Manual for Courts-Martial, United States (2019 ed.).
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United States v. Journigan, No. ACM S32716
The Defense did not submit any documentary evidence during the presen-
tencing phase, but Appellant read an unsworn statement.
Appellant claims trial defense counsel were ineffective during the presen-
tencing phase of his court-martial. He states his counsel had character letters
and photographs in their possession that were ready to be presented to the
military judge for sentencing, and yet chose not to attempt to admit them. To
support his claim, Appellant moved to attach a declaration, which we granted.
In his declaration, Appellant states that he provided his trial defense coun-
sel character statements and photographs. Appellant further explains that
prior to sentencing, he understood “based on communications with [his] trial
defense counsel that the character letters and photographs would be presented
to the military judge.” However, according to Appellant’s declaration, he “was
notified by [trial] defense counsel at the last minute that they would not be
presented.” Appellant explains that he does “not remember the specific reason
they gave for it but [he] trusted their judgment since [he is] not a lawyer.”
In response to an order from this court, trial defense counsel, Captain
(Capt) AF and Capt CR, provided responsive declarations.2 In her declaration,
Capt AF explains their “strategic decision not to relax the rules of evidence
under [Rule for Courts-Martial (R.C.M.)] 1001(d)(3).”3 Capt AF continues that,
if they had requested to “relax[ ] the rules, there were several pieces of detri-
mental evidence the Government appeared ready to introduce into evidence
during presentencing.” Capt AF describes two pieces of “detrimental evidence”
at issue which the Defense was successful in keeping out of the Government’s
presentencing case, the exclusion of which led to the Defense’s decision not to
relax the sentencing rules.
First, trial defense counsel sought to avoid introduction of Appellant’s re-
sponse to nonjudicial punishment for drug use which included the following
statements: “I cannot admit to using [d]-[a]mphetamine because I did not use
anything except marijuana. I cannot even begin to think of how that could be
in my system” and “this misconduct is out of character for me and will never
happen again.” Capt AF explains that trial defense counsel “made the strategic
2 We considered Appellant’s declaration, the other filings, and the declarations of trial
defense counsel to resolve the claim of ineffective assistance of counsel. See United
States v. Jessie,
79 M.J. 437, 442 (C.A.A.F. 2020) (noting Courts of Criminal Appeals
may consider declarations “when necessary for resolving claims of ineffective assis-
tance of trial defense counsel”).
3 As discussed below, the Defense would have had to request to relax the rules of evi-
dence pursuant to R.C.M. 1001(d) to present these matters in extenuation and mitiga-
tion over the Prosecution’s objection.
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United States v. Journigan, No. ACM S32716
decision that keeping this evidence out was more effective for the defense strat-
egy (for example, to prevent the Government from using these statements to
draw conclusions about [Appellant]’s honesty or rehabilitative potential) than
relaxing the rules to admit defense exhibits.” Additionally, the document that
the Prosecution admitted into evidence was missing a page which contained
the commander’s reprimand. According to Capt AF, in the written “reprimand,
the [c]ommander stated the amount of d-amphetamine for which [Appellant]
tested positive [was] 2623 ng/mL, and [trial defense counsel] decided not to
draw this to the Government’s attention and not give [the Government] extra
time to correct the exhibit.”
The second item of evidence consisted of attachments to an LOR, which
included two MFRs from Appellant’s supervisors detailing how Appellant had
lied to his supervisor by claiming he did work when he had not and asked a
senior airman to lie for him about being late. The MFRs also outlined the ex-
tent to which Appellant made false official statements to his supervisors; ad-
ditional violations of the UCMJ; and the negative mission impact Appellant’s
conduct had on the unit.
Capt AF explains that trial defense counsel
made the strategic decision that keeping this evidence out was
more effective than relaxing the rules for any defense exhibits,
particularly given that the Government was not able to obtain
mission impact evidence through their witness and did not oth-
erwise have matters in aggravation or evidence of poor rehabili-
tative potential beyond the number of uses.
Regarding potential defense exhibits, Capt AF states in her declaration
that Appellant provided the defense team with the names of eight individuals
who could potentially provide character letters, and that each was contacted.
However, only three individuals provided character letters: Appellant’s wife,
Senior Airman (SrA) AB, who only knew Appellant as a family friend and not
in his military capacity, and another Airman. Capt AF explains that one of
those character letters “had the potential to conflict with [Appellant’s] unsworn
statement.” Capt AF acknowledges that Appellant provided family pictures,
but no “pictures of coins, awards, citations, or other accolades.”
Capt AF concludes her declaration by summarizing the reason why the De-
fense chose not to admit character statements and photos.
Based on the negative impact the [P]rosecution’s rebuttal evi-
dence could have had on his sentence, and our ability to present
compelling mitigation information regarding [Appellant]’s fam-
ily struggles through his unsworn statement, we made the stra-
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United States v. Journigan, No. ACM S32716
tegic decision not to request that the rules be relaxed and ac-
cordingly did not present the above-mentioned character letters
and photo array exhibit. Ultimately, given what the Defense per-
ceived as missteps in the [P]rosecution’s presentencing case, the
Defense team evaluated the mitigation evidence in our posses-
sion and compared it to what we felt confidently would be uti-
lized as rebuttal evidence. We made the deliberate and strategic
decision to prevent the Government from admitting aggravating
evidence against [Appellant].
Capt AF provides five attachments to her declaration to support her factual
assertions: the nonjudicial punishment reprimand, the character statements
that the defense team received, and the photographs that Appellant provided
to his defense team.
Appellant’s other trial defense counsel, Capt CR, also provided a declara-
tion. This declaration was consistent with Capt AF’s in all respects including
that their decision was a strategic one.
Capt CR provided seven attachments to her declaration to support her fac-
tual assertions—the non-judicial punishment reprimand, evidence from the
letter of reprimand, the email requesting character letters, the character state-
ments that the defense team received, and the photographs that Appellant pro-
vided to his defense team.
The Government acknowledges that trial defense counsel possessed sen-
tencing exhibits that they could have admitted. However, it argues their deci-
sions were strategic and reasonable, and that they thought through the rami-
fications of relaxing the rules. The Government also points out that trial de-
fense counsel “took the time to explain their strategic decision and the way
forward in sentencing to Appellant when they took a break before their sen-
tencing case-in-chief” and that “Appellant admitted his counsel explained why
they were not admitting the character letters and photographs.”
In Appellant’s reply brief, he argues that the relaxation of the rules would
not have opened the door to allow the Prosecution to admit the aggravating
evidence that trial defense counsel wanted to keep out.
II. DISCUSSION
A. Law
We review claims of ineffective assistance of counsel de novo. United States
v. Akbar,
74 M.J. 364, 379 (C.A.A.F. 2015) (citation omitted). Appellate courts
give great deference to trial defense counsel’s judgments and presume “coun-
sel’s conduct falls within the wide range of reasonable professional assistance.”
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United States v. Journigan, No. ACM S32716
United States v. Morgan,
37 M.J. 407, 409 (C.M.A. 1993) (citing Strickland v.
Washington,
466 U.S. 668, 689 (1984)).
Ineffective assistance of counsel claims are analyzed under the test set out
by the United States Supreme Court in Strickland: “(1) whether counsel’s per-
formance fell below an objective standard of reasonableness, and (2) if so,
whether, but for the deficiency, the result would have been different.” United
States v. Gutierrez,
66 M.J. 329, 331 (C.A.A.F. 2008) (citations omitted). An
appellant has the burden to demonstrate “both deficient performance and prej-
udice.”
Id. (citation omitted).
In conducting an analysis of an ineffective assistance of counsel claim,
courts begin with the presumption of competence announced in United States
v. Cronic,
466 U.S. 648, 658 (1984). “[T]he burden rests on the accused to
demonstrate a constitutional violation.”
Id. An accused overcomes the pre-
sumption of competence only when he shows there were “errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.”4 Strickland,
466 U.S. at 687.
This court does “not measure deficiency based on the success of a trial de-
fense counsel’s strategy, but instead examine[s] ‘whether counsel made an ob-
jectively reasonable choice in strategy’ from the available alternatives.” Akbar,
74 M.J. at 379 (quoting United States v. Dewrell,
55 M.J. 131, 136 (C.A.A.F.
2001)). For this reason, trial defense counsel receive wide latitude in making
tactical decisions. Cullen v. Pinholster,
563 U.S. 170, 195 (2011) (citing Strick-
land,
466 U.S. at 689). This also applies to trial defense counsel’s strategic de-
cisions. Morgan, 37 M.J. at 410. “[S]trategic choices made by trial defense coun-
sel are virtually unchallengeable after thorough investigation of the law and
the facts relevant to the plausible options.” Akbar, 74 M.J. at 371 (internal
quotation marks and citation omitted.) Moreover, when assessing prejudice,
“[t]he likelihood of a different result must be substantial, not just conceivable.”
Harrington v. Richter,
562 U.S. 86, 112 (2011) (citation omitted).
In making this determination, courts must be “highly deferential” to trial
defense counsel and make every effort “to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.” Strickland,
466 U.S. at 689. These principles also apply to counsel’s performance during
sentencing matters. “When there is an allegation that counsel was ineffective
in the sentencing phase of the court-martial, we look to see whether there is a
reasonable probability that, but for counsel’s error, there would have been a
4 U.S. CONST. amend. VI.
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United States v. Journigan, No. ACM S32716
different result.” United States v. Captain,
75 M.J. 99, 103 (C.A.A.F. 2016) (in-
ternal quotation marks and citation omitted).
“We review a military judge’s decision on the admission of evidence in ag-
gravation at sentencing for an abuse of discretion.” United States v. Ashby,
68
M.J. 108, 120 (C.A.A.F. 2009) (citation omitted). The defense, pursuant to
R.C.M. 1001(d), may present matters in extenuation and mitigation for sen-
tencing considerations and may ask the military judge to relax the rules of
evidence to do so. The Government may then, pursuant to R.C.M. 1001(e), rely
on the relaxed rules to present evidence offered to “rebut matters presented by
the defense.”
Finally, in determining whether to grant a post-trial hearing to resolve a
factual matter pursuant to United States v. DuBay,
37 C.M.R. 411 (C.M.A.
1967), Courts of Criminal Appeals do not “decide disputed questions of fact
pertaining to a post-trial claim, solely or in part on the basis of conflicting affi-
davits submitted by the parties.” United States v. Ginn,
47 M.J. 236, 243
(C.A.A.F. 1997). Instead, we employ the six principles articulated by our supe-
rior court in Ginn for determining whether a DuBay hearing is appropriate. 47
M.J. at 248. One principle states that if an appellant’s “affidavit is factually
adequate on its face to state a claim of legal error and the Government either
does not contest the relevant facts or offers an affidavit that expressly agrees
with those facts, the court can proceed to decide the legal issue on the basis of
those uncontroverted facts” without ordering a factfinding hearing. Id.
B. Analysis
We begin by finding that a hearing is unnecessary. While Appellant’s affi-
davit is factually adequate on its face, the Government has provided two affi-
davits that expressly agree with those facts. The Government agrees, and the
declarations confirm, that trial defense counsel had sentencing exhibits that
they could have used and chose not to. Thus, we can proceed to decide the legal
issue on the basis of those uncontroverted facts.
As to the specific allegation that trial defense counsel’s decision amounted
to ineffective assistance of counsel, we find to the contrary.
Appellant’s argument is that trial defense counsel should have offered the
character letters and photographs into evidence for sentencing, because the
defense sentencing evidence “would not have opened the door to the Govern-
ment’s prior inadmissible evidence since this defense evidence highlighted [Ap-
pellant]’s background and his overall rehabilitation potential.” Appellant relies
on secondary material within a footnote from our superior court5 to argue that
“[i]t would have been an error for the military judge to allow the [P]rosecution
5 United States v. Boone,
49 M.J. 187, 198 n.14 (C.A.A.F. 1998).
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United States v. Journigan, No. ACM S32716
to admit these pieces of evidence in its rebuttal case based on the rules of evi-
dence being relaxed because they would have still been inadmissible.” Appel-
lant provides us no other support for this proposition, and we cannot find any.
We find that trial defense counsel were working without any assurances
that the military judge would rule in their favor regarding whether potential
defense evidence would open the door for the Government to rebut that evi-
dence under the relaxed rules. Because of this, trial defense counsel had to
make a strategic decision concerning the evidence at their disposal. Ultimately,
trial defense counsel made the strategic decision that relaxing the rules in or-
der to present certain matters was not worth the risk. Given the discretionary
nature of a military judge’s decision as to evidentiary rulings, we will not sec-
ond-guess trial defense counsel’s risk assessment. This is the very reason that
we are highly deferential to trial defense counsel in their strategic decisions
and why we do not measure any alleged deficiency based on the success of that
strategy. See Akbar, 74 M.J. at 379. Instead, we examine whether trial defense
counsel made an objectively reasonable choice from available alternatives and
find that their decision did not fall below an objective standard of reasonable-
ness. In the same way that we do not know what the military judge would have
done with the potential prosecution rebuttal evidence, trial defense counsel
could not have known with certainty how the military judge might have ruled.
What we do know is that trial defense counsel weighed the potential costs of
relaxing the Military Rules of Evidence against a possible negative ruling from
the military judge on potential rebuttal evidence, and made a strategic deci-
sion, a strategic decision that Appellant now challenges. It is clear that trial
defense counsel were acting with what they believed were Appellant’s defense
in mind when they made that decision, and we will not disturb that decision.
Appellant has not met his burden to establish deficient performance, let
alone a likelihood of a different result but for trial defense counsel’s choices.
See Captain,
75 M.J. at 103. Accordingly, we grant Appellant no relief on this
claim.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(d), UCMJ,
10 U.S.C. §§ 859(a), 866(d).
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Accordingly, the findings and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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