Lonzell Threats v. J. Shartle ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 9 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LONZELL J. THREATS, No. 21-16302
Petitioner-Appellant, D.C. No. 4:17-cv-00542-JAS
v.
MEMORANDUM*
J.T. SHARTLE, Warden, named as Warden
Shartle,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Submitted June 7, 2023**
San Francisco, California
Before: MILLER and KOH, Circuit Judges, and MOLLOY,*** District Judge.
Lonzell J. Threats (“Threats”) appeals the district court’s denial of his
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
petition for a writ of habeas corpus, which he brought under 28 U.S.C. § 2241 after
being convicted of several crimes in a general court-martial and exhausting his
appeals in military courts. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.1
We review the district court’s decision to deny the petition de novo. See
Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011). We review the military
proceedings only to determine whether they “dealt fully and fairly” with the claims
raised in the habeas petition. Burns v. Wilson, 346 U.S. 137, 142 (1953). “[O]nce
it has been concluded . . . that the military . . . dealt fully and fairly with all such
claims, it is not open to [us] to grant the writ simply to re-evaluate the evidence.”
Sunday v. Madigan, 301 F.2d 871, 873 (9th Cir. 1962).
The military courts dealt fully and fairly with the sole claim that Threats
raises on appeal, that he was denied effective assistance of counsel. Threats
alleges six specific instances of ineffective assistance to support his claim, each of
which was aired in a post-conviction hearing in the military courts and discussed in
a detailed opinion by a military judge. The military judge found any instances of
ineffective assistance insufficient to show a violation of Threats’s right to effective
counsel, and the Army Court of Criminal Appeals twice affirmed. Threats has not
Because the parties are familiar with the facts, we include them only as
1
necessary to resolve the appeal.
2
shown that the military courts failed to fully and fairly consider his claim. He
merely seeks “to prove de novo . . . precisely the case which [he] failed to make in
the military courts.” Burns, 346 U.S. at 146. 2
AFFIRMED.
2
For the first time in his reply brief, Threats calls into question the adequacy
of the district court’s order adopting the magistrate judge’s report and
recommendation. This argument is forfeited. See B&G Foods N. Am., Inc. v.
Embry, 29 F.4th 527, 541 n.7 (9th Cir. 2022).
3