Opinion
Case No. 97-3169-RDR
July 26, 2000
John D Marrie, petitioner, pro se.
Mary K. Ramirez, Office of United States Attorney, Topeka, KS, for MARVIN L. NICKELS, respondent.
MEMORANDUM AND ORDER
This matter is before the court on a petition for habeas corpus filed pursuant to 28 U.S.C. § 2241 by a prisoner at the United States Disciplinary Barracks, Fort Leavenworth, Kansas. This matter is ripe for review, and the court enters the following findings and order.
Petitioner has been transferred to the Federal Medical Center, Leestown, Kentucky.
Factual background
Petitioner was convicted by a general court-martial of three specifications of sodomy on males under the age of 16, two specifications of committing indecent acts and four specifications of taking indecent liberties with males under the age of 16, and false swearing. The convening authority approved the sentence of twenty years confinement, total forfeitures, reduction to the grade and rank of E-1, and a dishonorable discharge. On appeal, the Court of Military Review modified some of the specifications but affirmed the sentence.
U.S. v. Marrie, 39 M.J. 993 (AFCMR 1994), aff'd, 43 M.J. 35 (1995)
In this action, petitioner alleges (1) the Article 32 Investigating Officer applied an incorrect legal standard in determining that some of the victims were unavailable as witnesses, (2) he received ineffective assistance of counsel, (3) the trial judge erred in failing to instruct the court members on the "spillover" of evidence among the allegations against petitioner; and (4) the testimony of the government's expert witness on child sexual abuse improperly addressed the credibility of the complaining witnesses.
Standard of review
A federal court has limited authority to review court-martial proceedings. The scope of review is initially limited to determining whether the claims raised by the petitioner were given full and fair consideration by the military courts. Lips v. Commandant United States Disciplinary Barracks, 997 F.2d 808, 811 (10th Cir. 1993), cert. denied, 510 U.S. 1091 (1994). If the issues have been given full and fair consideration in the military courts, the district court should not reach the merits and should deny the petition. Id. When a military court decision has dealt fully and fairly with an allegation raised in a federal habeas petition, it is not open to the federal court to grant the writ by reassessing the evidentiary determinations. Burns v. Wilson, 346 U.S. 137, 142 (1976).
Even where the federal court may reach the merits of a petition, its review is limited. In Dodson v. Zelez, 917 F.2d 1250 (10th Cir. 1990), this review was defined by four factors a federal court may consider in evaluating a petition for habeas corpus relief from a military conviction: (1) whether the claimed error is of substantial constitutional dimension; (2) whether a legal, rather than a factual, issue is involved; (3) whether military considerations warrant different treatment of constitutional claims such that federal civil court intervention would be inappropriate; and (4) whether the military courts have given adequate consideration to the claimed error and applied the proper legal standard. Id. at 1252-53.
Discussion
A review of the decisions of the Court of Military Review and the Court of Appeals for the Armed Forces demonstrates the claims presented in this action were fully litigated during appellate review, and the court concludes these claims were given full and fair consideration. See Lips, id. The military courts gave careful consideration to petitioner's claims of error and thoroughly addressed each claim. This court may not disturb the record merely to reassess evidentiary determinations, see Burns v. Wilson, and the court finds no extraordinary circumstances which might merit additional review under Dodson v. Zelez.
IT IS THEREFORE ORDERED the petition for habeas corpus is dismissed and all relief is denied.
IT IS SO ORDERED.
DATED: This 26th day of July, 2000, at Topeka, Kansas.