Diaz v. Inch , 268 F. App'x 802 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
March 11, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
SALVADOR DIAZ,
Petitioner-Appellant,
No. 07-3302
v. (Case No. 5:06-CV-3306-RDR)
(D. Kan.)
MARK S. INCH,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.
Petitioner, a federal military prisoner proceeding pro se, appeals the district
court’s dismissal of his 28 U.S.C. § 2241 habeas petition. A general court-martial
found Petitioner guilty of multiple charges of rape and indecent acts with his
twelve-year old daughter. He was sentenced to confinement for nine years,
reduction in paygrade, forfeiture of all pay and allowances, and a dishonorable
discharge from the United States Navy. As more thoroughly described in the
district court’s order, his attempts to obtain relief in the Navy–Marine Court of
*
This order and judgment is not binding precedent, except under the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.
Criminal Appeals and the Court of Appeals for the Armed Forces were ultimately
unsuccessful.
In his habeas petition, Petitioner raised ten grounds for relief. Two grounds
alleged that the military appellate courts used the wrong standard of review or
erred in applying the standard of review when considering his claims. The
district court concluded that these grounds did not raise separate claims for relief.
The court also concluded that Petitioner had waived a third ground for relief by
failing to present it to the military courts. See Watson v. McCotter, 782 F.2d 143,
145 (10th Cir. 1986). As for the remaining seven grounds, the court found that
“the military courts considered these claims and applied appropriate legal
standards to issues involving mixed questions of fact and law, and [P]etitioner
makes no convincing argument to the contrary.” (R. Doc. 19 at 6.) The court
therefore concluded that these claims had been fully and fairly reviewed by the
military courts and that any further review by the district court would be
inappropriate. See Lips v. Commandant, U.S. Disciplinary Barracks, 997 F.2d
808, 811 (10th Cir. 1993). The district court accordingly dismissed the action and
denied Petitioner’s motion for summary judgment as moot.
We review de novo a district court’s denial of habeas relief. Fricke v.
Sec’y of Navy, 509 F.3d 1287, 1289 (10th Cir. 2007). Like the district court, “our
review of military convictions is limited generally to jurisdictional issues and to
determination of whether the military gave fair consideration to each of the
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petitioner’s constitutional claims.” Id. at 1290 (internal quotation marks omitted).
After reviewing Petitioner’s brief and conducting a de novo review of the
record, we agree with the district court’s determination that two of Petitioner’s
stated grounds for relief did not raise separate claims for relief, a third ground
was waived, and the remaining seven grounds were given full and fair
consideration by the military courts. 1 Therefore, for substantially the same
reasons set forth in the district court’s order, we AFFIRM the dismissal of this
action and denial of Petitioner’s motion for summary judgment. 2
Entered for the Court
Monroe G. McKay
Circuit Judge
1
Although the habeas petition purported to raise one jurisdictional claim,
we conclude that the petition did not present any actual jurisdictional issues and
therefore that the district court correctly applied the full and fair consideration
standard to Petitioner’s claims. In Ground One of his petition, Petitioner claimed
that the general court-martial lacked jurisdiction because the charges against him
were referred to the court-martial in violation of Article 32 of the Uniform Code
of Military Justice, 10 U.S.C. § 832. However, Article 32 specifically provides
that failure to follow the requirements of this article “does not constitute
jurisdictional error.” 10 U.S.C. § 832(e). Because the claimed Article 32 error
therefore could not give rise to a jurisdictional claim, the district court did not err
in applying the full and fair consideration standard to this issue.
2
Under the circumstances of this case, we see no error in the district
court’s decision to dispose of Petitioner’s motion for summary judgment in its
order dismissing the case.
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