Coast Guard Court of Criminal Appeals

In James, the court finds no IAC for not asking for credit for pretrial confinement conditions, the issue was waived, and no relief is warranted for post-trial delay.

The Government asserts that the United States Court of Appeals for the Armed Forces (CAAF) in United States v. Inong, 58 M.J. 460, 465 (C.A.A.F. 2003), established a bright line rule that failure to raise claims of illegal pretrial punishment at trial results in waiver by operation of law. We disagree.
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​The holding of Inong is that “failure at trial to seek sentence relief for violations of Article 13 waives that issue on appeal absent plain error.” Inong, 58 M.J. at 465 (emphasis added). Because a court only reviews for plain error if an issue is forfeited, not waived, Inong is clearly one of those pre-Gladue cases that used the word “waiver” but actually meant “forfeiture.”

However, the court found an affirmative waiver because the appellant agreed to waive all waivable motions in his PTA. Relief for pretrial punishment or conditions is waivable. There was no IAC because the DC reasoned that seeking such relief might cause the government to withdraw from a favorable PTA. The appellant agreed.

But after discussing the matter with colleagues and conducting legal research, the defense team, including Appellant, decided the best course of action was to raise pretrial confinement conditions as mitigation evidence rather than a separate motion that could be deemed a breach of the agreement to waive all waivable motions. DC went on to explain: It was absolutely a considered decision of the trial defense team to present these matters in sentencing rather than as a motion for relief due to unlawful pretrial punishment because the Appellant made a decision [subsequent to his placement in pretrial confinement] that he wanted to persist as a party to the plea agreement he had negotiated under the previously negotiated terms, to include the motions waiver provision.