Ricks v. Nickels , 19 F. App'x 771 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 28 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JOHN M. RICKS,
Petitioner-Appellant,
v. No. 00-3398
(D.C. No. 97-CV-3165-RDR)
MARVIN L. NICKELS, (D. Kan.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and BRORBY , Senior
Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Petitioner John M. Ricks, proceeding pro se, appeals from the district
court’s order denying his petition seeking habeas corpus relief filed pursuant to
28 U.S.C. § 2241. We affirm.
In 1993, a military court martial jury found petitioner guilty of indecent
assault, assault with intent to commit sodomy, indecent acts with a child under the
age of sixteen, and desertion. He was sentenced to fifteen years’ imprisonment,
reduction to the grade of E-1, and dishonorable discharge. Petitioner appealed his
conviction to the Air Force Court of Criminal Appeals and the Court of Appeals
for the Armed Forces, both of which affirmed his convictions. His motion for
reconsideration was also denied.
Thereafter, petitioner filed a 161-page petition seeking habeas relief in the
federal district court. The district court denied relief holding that petitioner had
received full and fair consideration of his claims in the military courts.
On appeal, petitioner argues that the military appellate courts “manifestly
refused” to consider his claims thereby giving federal civilian courts jurisdiction
to review his habeas claims. He also contends that the Supreme Court in Burns v.
Wilson , 346 U.S. 137 (1953) impermissibly abrogated Article 1, section 9, clause
2 of the United States Constitution.
We review the district court’s dismissal of a § 2241 military habeas petition
de novo. See Khan v. Hart , 943 F.2d 1261, 1262 (10th Cir. 1991). Both our
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review and the district court’s review of petitioner’s court-martial is limited to
four conditions. The claimed errors must (1) have “substantial constitutional
dimension[s],” (2) consist of issues of law rather than fact, (3) implicate no
special military considerations which would make federal civil court intervention
inappropriate, and (4) have received inadequate consideration in the military
courts or had the wrong legal standards applied. See id. When an issue is briefed
and argued to a military court, we will assume the issue received full and fair
consideration, even if the court summarily disposed of it. See Lips v.
Commandant, U.S. Disciplinary Barracks , 997 F.2d 808, 812 n.2 (10th Cir. 1993).
Petitioner raised twelve claims to the district court. The court found that he
had raised the issues to the military courts and that the issues had received full
and fair consideration. Our review of the record confirms this decision. No error
occurred.
Petitioner did not raise his second issue, that the Supreme Court
impermissibly abrogated the Constitution in Burns , to the district court. This
issue is waived. See Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th
Cir. 1992). Even if it were not waived, however, it is without merit. The Framers
of the Constitution expressly entrusted to Congress the task of developing the
jurisprudence of military law. See Burns , 346 U.S. at 140. The Court did not
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invade the jurisdiction of the military courts or diminish the validity and
applicability of the writ of habeas corpus.
The judgment of the United States District Court for the District of Kansas
is AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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