When it rains, it pours (literally if you’re in the D.C. area). Here’s a link to a published ACCA opinion that just showed up on the court’s web site. United States v. Gunderman, __ M.J. ___, No. ARMY 20080239 (A. Ct. Crim. App. Apr. 30, 2009).
Gunderman is ostensibly a case about ineffective assistance of counsel, but seems to be more a case of ineffective assistance of client. Specialist Gunderman’s appellate defense counsel raised an IAC issue, asserting that the trial defense counsel had failed to advise Gunderman that he could seek waiver and/or deferment of automatic forfeitures. The assignment of error was accompanied by an unexecuted affidavit from the appellant. Appellate defense counsel indicated that a signed and notarized version would be filed when received. But counsel never received a signed version, so ACCA understandably refused to consider the unexecuted affidavit. ACCA made clear that even when dealing with Grostefon issues, factual assertions must be appropriately documented.
Judge Conn wrote the opinion for a unanimous panel.