White v. Lansing

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 8 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JOHN C. WHITE,
Petitioner-Appellant,
v. No. 00-3247
(D.C. No. 99-CV-3162-RDR)
MICHAEL A. LANSING, Warden, (D. Kan.)
United States Disciplinary Barracks,
Leavenworth,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before HENRY , BRISCOE , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
John C. White, pro se, appeals from the dismissal with prejudice of his
petition for habeas corpus filed pursuant to 28 U.S.C. § 2241. Mr. White was
convicted for murder of his infant daughter, aggravated assault, assault
consummated by battery on a child, and three specifications of malicious torture
of his dog and cat by a general court martial. On appeal to the Air Force Court of
Criminal Appeals (AFCCA), Mr. White raised the same issues that later formed
the basis of this habeas petition. See Appellant’s App. Ex. A; United States v.
White , No. ACM 31474 (F REV), 1997 WL 643590, at *2, (A.F. Ct. Crim. App.
Oct. 1, 1997) [hereinafter White II ], aff’d 50 M.J. 131 (C.A.A.F. 1998). In two
separate decisions, the AFCCA dismissed the charges of assault consummated by
battery on a child and aggravated assault as multiplicitous with the greater offense
of murder, ruled against Mr. White on all issues that had been timely raised,
declined to consider two issues that were untimely, and affirmed the sentence as
modified. See United States v. White , No. ACM 31-474, 1996 WL 399973, at *5
(A.F. Ct. Crim. App. July 12, 1996) [hereinafter White I ], rev’d 47 M.J. 81(C.A.A.F. 1997); White II , 1997 WL 643590, at *2 . Mr. White then filed this
petition for habeas corpus, raising six basic grounds of alleged error.
The district court dismissed the petition under Lips v. Commandant, United
States Disciplinary Barracks , 997 F.2d 808, 811 (10th Cir. 1993), and Watson v.
McCotter , 782 F.2d 143, 145 (10th Cir. 1986), correctly noting that when a
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military court decision has already dealt fully and fairly with an issue on appeal
that is later raised in a habeas petition, the habeas court may not reach the merits
and must deny the petition. R. Doc. 22, at 2. We have fully reviewed the record
and conclude that the four grounds raised both on direct appeal and in the habeas
petition undoubtedly were fully and fairly considered by the AFCCA while
applying correct legal standards. See Lips , 997 F.2d at 811. The district court
properly denied the petition on these grounds.
Mr. White also argued, however, that the AFCCA refused to address the
two “untimely” issues he raised to the AFCCA, and that the habeas court
therefore should have reached the merits on at least those two issues. See R. Doc.
20, at 1-7. They are (1) whether “the multiple charging of his one act of shaking
his baby to death creates the impression that he is a bad person” and (2) whether
“the specification of Charge I failed to include required elements.” White II ,
1997 WL 643590, at *2 (expressly declining to consider these issues because they
were untimely and not raised in his original appeal and because defendants are
entitled to only one review under 10 U.S.C. § 866). The district court did not
discuss the difference between these two issues and the other four raised in the
habeas petition other than to state that the AFCCA’s decision addressed claims of
multiplicitous charges and the possible spillover effect of multiple charges. See
R. Doc. 22 at 3-4.
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Our review of the AFCCA opinion discloses that its discussion of
multiplicitous charges relates only to convictions on lesser included offenses and
not to the prejudicial effect, if any, that may arise from charging one offense in
multiple ways. See White I , 1996 WL 399973, at *2. Likewise, the AFCCA did
not discuss any alleged failure to include required elements in the murder charge;
the error alleged and addressed on direct appeal was the legal and factual
sufficiency of evidence of intent. See id. at *3-*4.
It is clear that the AFCCA held that Mr. White procedurally defaulted
direct review of these two issues. See White II , 1997 WL 643590, at *2.
Consequently, in order to obtain habeas review of these two claims, Mr. White
must “show both cause excusing the procedural default and actual prejudice
resulting from the error.” Lips , 997 F.2d at 812. This he has failed to do. As in
Lips , “nothing in the record before us indicates that there was any ‘excuse’ for
either of these procedural defaults, and hence the ‘cause and actual prejudice’
standard was not met.” Id. Accordingly, the two claims “will not be reviewed
‘on the merits’ in the present habeas corpus proceeding.” Id.The judgment of the district court is AFFIRMED .
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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