Opinion
Case No. 99-3162-RDR
July 19, 2000
John C. White, petitioner, pro se.
Tanya S. Wilson and Mary K. Ramirez, Office of United States Attorney, Topeka, KS, for MICHEAL A. LANSING, Warden, USDB Leavenworth, 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 an inmate at the United States Disciplinary Barracks, Fort Leavenworth, Kansas. This matter is ripe for review, and the court enters the following findings and order.
Factual background
Petitioner was convicted by a general court-martial for murder, aggravated assault, assault consummated by battery on a child, and three specifications of malicious torture of his dog and cat. He was sentenced to 21 years of confinement and a dishonorable discharge.
On reconsideration of petitioner's appeal, the Air Force Court of Criminal Appeals (AFCCA) dismissed the charge of assault consummated by battery on a child and affirmed the sentence as modified.
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).
If an issue is brought before the military court and is disposed of, even summarily, the federal habeas court will find that the issue has been given full and fair consideration. Watson v. McCotter, 782 F.2d 143, 145 (10th Cir.), cert. denied, 476 U.S. 1184 (1986). If an issue was not raised before the military courts, the federal habeas court will deem that issue waived and not subject to review. Id.
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 should 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
Petitioner challenges his conviction on six grounds, namely, whether his conviction under Specification 1 fails to state an offense under the Uniform Code of Military Justice, whether the multiple charges unfairly denied him a fair trial by creating the impression of bad character, whether the military judge erred in allowing both an expert witness and trial counsel to demonstrate the amount of force necessary to cause the injuries suffered by the victim, and whether his conviction of torturing his dog was valid after the jury excepted portions of the charge.
The record before the court clearly demonstrates these charges were raised in the military courts and given full and fair consideration. The decision of the AFCCA specifically addresses the claims of multiplicious charges, the use of a teddy bear by an expert on child abuse and by trial counsel during closing to demonstrate the amount and type of force used on the victim, the legal and factual sufficiency of the evidence, the possible "spillover" effect of multiple charges, and the validity of the convictions of animal torture.
After thoroughly reviewing the record, the court concludes that review of the merits of this habeas corpus action is barred by the reasoning of the Lips decision, as petitioner's claims were given full and fair consideration in the military courts.
IT IS THEREFORE ORDERED the petition for habeas corpus is dismissed and all relief is denied.
Copies of this Memorandum and Order shall be transmitted to the parties.
IT IS SO ORDERED.
DATED: This 19th day of July, 2000, at Topeka, Kansas.