Russell v. Harrison ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
April 6, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
KINN EY FITZGERA LD RUSSELL,
Petitioner-A ppellant, No. 06-3394
v. (D. Kansas)
JAM ES W . HARRISON, JR., (D.C. No. 06-CV-3126-RDR)
Commandant, United States
Disciplinary Barracks,
Respondent-Appellee.
OR D ER AND JUDGM ENT *
Before KELLY, M U RPH Y, and O'BRIEN, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Kinney F. Russell, a military prisoner proceeding pro se, appeals from the
district court’s dismissal of his 28 U.S.C. § 2241 habeas corpus petition. The
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
district court dismissed Russell’s § 2241 petition without prejudice because
Russell had not exhausted his military remedies. See Schlesinger v. Councilman,
420 U.S. 738, 758 (1975). Exercising jurisdiction pursuant to 28 U.S.C. § 1291, 1
we affirm the judgment of the district court.
Russell does not contend he has exhausted his military remedies. Instead,
he contends the military lost jurisdiction to hold him when he was dishonorably
discharged from the military. Concomitantly, Russell argues that because he is no
longer an active member of the military, the military courts are barred from
review ing, under the Uniform Code of M ilitary Justice, the propriety of his
incarceration. As noted by the district court, however, both the Supreme Court
and this court have held that a complete discharge does not deprive the military of
jurisdiction over individuals similarly situated to Russell. Kahn v. Anderson, 255
U.S. 1, 8-9 (1920); Ricks v. Nickels, 295 F.3d 1124, 1131 (10th Cir. 2002). Thus,
Russell is simply wrong in asserting he cannot exhaust his military remedies
because the military courts no longer have jurisdiction over him and the district
court was correct in dismissing Russell’s § 2241 petition without prejudice based
on Russell’s failure to exhaust.
1
Because Russell is a federal prisoner proceeding under § 2241, he need not
obtain a certificate of appealability as a prerequisite to this court reaching the
merits of his appeal. McIntosh v. United States Parole Comm., 115 F.3d 809, 810
n.1 (10th Cir. 1997).
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The order of the United States D istrict Court for the District of Kansas is
hereby AFFIRM ED.
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
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