Curtis Gibbs v. J. Thomas , 466 F. App'x 646 ( 2012 )

FILED
NOT FOR PUBLICATION JAN 19 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CURTIS A. GIBBS, No. 11-15166
Petitioner - Appellant, D.C. No. 1:07-cv-01563-SKO
v.
MEMORANDUM *
J. E. THOMAS,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Sheila K. Oberto, Magistrate Judge, Presiding **
Submitted January 17, 2012 ***
Before: LEAVY, TALLMAN, and CALLAHAN, Circuit Judges.
Federal prisoner Curtis A. Gibbs appeals pro se from the district court’s
judgment denying his 28 U.S.C. § 2241 habeas petition challenging his conviction
by court-martial and life sentence for murder. We have jurisdiction under 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The parties consented to proceed before a magistrate judge.
*** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1291, and we affirm.
Gibbs contends (1) that his dishonorable discharge was an administrative act
that violated 5 U.S.C. § 551 and 32 C.F.R. § 45.3, thereby depriving respondent of
jurisdiction over him; (2) that a member of the military jury committed fraud upon
the court by concealing, during voir dire, prejudicial conversations he had
concerning Gibbs’ case, in violation of his rights under Article 25 of the Uniform
Code of Military Justice and 10 U.S.C. § 825; and (3) that the prosecution
committed gross misconduct in violation of his due process rights under the
Fourteenth Amendment.
The district court properly dismissed the first claim without prejudice
because Gibbs did not exhaust administrative remedies available to him. See
Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Muhammad v. Sec’y of
Army, 770 F.2d 1494, 1495 (9th Cir. 1985). As for the second and third claims, the
district court properly denied habeas relief because both the United States Navy-
Marine Corps Court of Military Review and the United States Court of Military
Appeals fully and fairly considered those claims. See Broussard v. Patton, 466
F.2d 816, 818 (9th Cir. 1972).
AFFIRMED.
2 11-15166