Smith v. (NFN)(NMI) Commandant, United States Disciplinary Barracks ( 2002 )


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  •                                                                              F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    SEP 27 2002
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    PATRICK M. SMITH,
    Petitioner - Appellant,
    v.                                                   No. 01-3399
    (D.C. No. 00-CV-3170-RDR)
    (NFN) (NMI) COMMANDANT,                               (D. Kansas)
    United States Disciplinary Barracks,
    Respondent - Appellee.
    ORDER AND JUDGMENT          *
    Before O’BRIEN and PORFILIO , Circuit Judges, and             KANE , ** Senior District
    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    This order and judgment is not binding precedent, except under the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.
    **
    The Honorable John L. Kane, Senior District Judge, United States District
    Court for the District of Colorado, sitting by designation.
    Petitioner Patrick M. Smith, a military prisoner appearing pro se, appeals
    from the district court’s order dismissing his 
    28 U.S.C. § 2241
     petition for writ of
    habeas corpus. Our jurisdiction arises under 
    28 U.S.C. § 1291
    . We affirm.
    After petitioner entered a guilty plea to the charges, a military judge sitting
    as a general court-martial convicted petitioner of the kidnaping, rape, and felony
    murder of a female child slightly less than three years of age. The military judge
    sentenced petitioner to a dishonorable discharge, confinement for life, forfeiture
    of all pay and allowances, and reduction to the rank of Private E1, and he
    imposed a fine of $100,000. The military judge also included an enforcement
    provision for the collection of the fine which provided that, in the event the fine
    was not paid by the time petitioner was considered for parole, petitioner would be
    further confined for additional fifty years or until the fine is paid, or he dies,
    whichever occurs first.
    Petitioner appealed to the United States Army Court of Criminal Appeals
    (Army Court), arguing, among other things, that the military judge exceeded his
    sentencing authority in imposing the $100,000 fine and the related enforcement
    provision, and that the fine was unconstitutional under the Eighth Amendment.
    The Army Court concluded that the military judge exceeded his sentencing
    authority in imposing the fine enforcement provision, but it affirmed the fine in
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    all other respects.   See United States v. Smith , 
    44 M.J. 720
    , 722-25 (A. Ct. Crim.
    App. 1996).
    Petitioner then filed two petitions for review in the United States Court of
    Appeals for the Armed Forces (CAAF), arguing once again, among other things,
    that the $100,000 fine was unconstitutional. R., Doc. 9, Attach. 4, at 2-4 and
    Attach. 7, at 3-7. After remanding the case to the Army Court on an unrelated
    issue, the CAAF summarily affirmed the constitutionality of the fine.      
    Id.
     Attach.
    6, at 5 and Attach. 8.
    Petitioner then filed a petition for writ of habeas corpus in the Army Court.
    In his petition and related filings, petitioner asserted the following claims: (1) the
    military judge was statutorily unqualified, and therefore without jurisdiction, to
    act as a military judge under 
    10 U.S.C. § 826
    (b) because he was not an active
    member of a federal bar or the bar of the highest court of a state at the time of the
    court-martial; (2) the military judge exceeded his sentencing authority in
    imposing the $100,000 fine; (3) petitioner’s guilty plea was coerced and
    involuntary and amounted to an     Alford plea; and (4) despite the fact that a referral
    letter from the Army Court appointed the Defense Appellate Division, U.S. Army
    Legal Services Agency, to represent petitioner in the military habeas proceeding,
    petitioner was never contacted by the Defense Appellate Division and he was
    deprived of his right to counsel under 
    10 U.S.C. § 870
    (c)(2). R., Doc. 9, Attach.
    -3-
    9, at 3-6 and Attach. 16, at 3-11. After the government filed responses to
    separate orders entered by the Army Court directing it to show cause why the
    petition should not be granted and to demonstrate why the military judge was
    qualified to conduct the court-martial,     
    id.
     Attachs. 10, 14, 15, and 17, the Army
    Court entered an order summarily denying the petition,      
    id.
     Attach. 11.
    Petitioner then filed a habeas petition under 
    28 U.S.C. § 2241
     in the United
    States District Court for the District of Kansas, asserting the same claims he
    asserted in his military habeas petition.    
    Id.
     Doc. 1 at 6-7. In a very thorough and
    well-reasoned memorandum and order, the district court dismissed the petition
    and denied all relief because it concluded that the military courts had given full
    and fair consideration to petitioner’s claims and that the claims are without
    merit. 1 
    Id.
     Doc. 36 at 3-9. On appeal, petitioner asserts the same habeas claims
    that he presented to the Army Court and the district court.
    A federal district court’s habeas review of a military court-martial is
    limited. It will not review a petitioner’s claims if the military courts fully and
    fairly considered the claims.     Lips v. Commandant, United States Disciplinary
    Barracks , 
    997 F.2d 808
    , 811 (10th Cir. 1993). This court has held that if an issue
    was raised before the military courts, four conditions must be met before a district
    1
    The district court also denied petitioner’s motion for reconsideration. R.,
    Doc. 39.
    -4-
    court may review the issue: (1) the asserted error is of substantial constitutional
    dimension; (2) the issue is one of law rather than fact; (3) there are no military
    considerations that warrant different treatment of the constitutional claims; and
    (4) the military courts failed to give adequate consideration to issues involved or
    failed to apply the proper legal standards.     
    Id.
     Further, when an issue has been
    briefed and argued before a military tribunal, a federal habeas court assumes the
    military tribunal has given the claim full and fair consideration, even if the
    military court summarily disposed of the issue.       Watson v. McCotter , 
    782 F.2d 143
    , 145 (10th Cir. 1986).
    The district court correctly ruled that federal habeas review is inappropriate
    in this case because the military courts fully and fairly considered petitioner’s
    claims. And even if petitioner’s claim regarding the qualifications of the military
    judge could be characterized as raising a jurisdictional issue,   see Monk v. Zelez ,
    
    901 F.2d 885
    , 888 (10th Cir. 1990) (indicating that jurisdictional issues arising
    from court-martial proceedings are reviewed de novo), we agree with the district
    court that petitioner has failed to establish that the military judge was unqualified
    under 
    10 U.S.C. § 826
    (b).
    -5-
    We AFFIRM the judgment of the district court for substantially the same
    reasons stated in its memorandum and order dated November 14, 2001.
    Entered for the Court
    John C. Porfilio
    Circuit Judge
    -6-
    

Document Info

Docket Number: 01-3399

Judges: O'Brien, Porfilio, Kane

Filed Date: 9/27/2002

Precedential Status: Non-Precedential

Modified Date: 3/2/2024