NMCCA decision – IAC question?

Here is the footnote that should be of concern to all defense counsel, from United States v. Regaladozambrano, just decided.

While the Court has declined to brand Capt [O’s] post-trial legal representation of the appellant as deficient, that restraint is exercised only due to the lack of any evidence of prejudice in the record before us.

What’s the court’s concern? The defense counsel wrote a letter to the client asking him to submit any clemency matters within 10 days. The defense counsel wrote to the SJAR that the client had failed to respond to her letter, so she had no clemency materials. Here are some questions. 1. A client is not required to provide clemency materials post-trial. It is a right or option to be exercised by the client. The client can affirmatively waive that right. So does the failure to respond to the letter equal an affirmative waiver? 2. Is sending a letter and nothing more enough by the defense counsel? How about some phone calls? 3. Should the counsel be telling the SJA that her client won’t (apparently) talk with her? Why put the client on report when you are about to submit something to the “best chance” person for clemency. 4. Did the client get the letter? 5. Assume a lot of steps taken to track down the client and there is no response (not an unusual occurrence), what does counsel do? Does counsel take the record and make a clemency argument? 6. What about appellate counsel? Where was appellate counsel in all of this? Where’s the letter(s) or information establishing prejudice? The case was initially submitted on its merits, and it was the court that specified the IAC issue.