Robinson v. Andraschko

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 27 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MELVIN ROBINSON, III,
Petitioner-Appellant,
v. No. 01-3388
(D.C. No. 01-CV-3052-RDR)
STEVEN L. ANDRASCHKO, (D. Kan.)
Commandant,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR , PORFILIO , and O’BRIEN , 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This order and judgment is not binding precedent, except under the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.
Petitioner Melvin Robinson, III, a military prisoner appearing pro se ,
appeals from the district court’s order dismissing his 28 U.S.C. § 2241 petition
for writ of habeas corpus. We affirm.
Petitioner, while serving in the United States Army, pled guilty to carrying
a concealed weapon and was convicted by general court-martial of attempted
unpremeditated murder. He appealed the conviction to the United States Army
Court of Criminal Appeals, which affirmed the conviction and sentence. He then
sought review by the United States Court of Appeals for the Armed Forces. That
appellate court denied his petition for review.
Petitioner then filed his § 2241 petition, raising two of the same issues he
presented to the military courts. The district court denied the petition because the
military courts had already dealt fully and fairly with the issues raised by
petitioner. On appeal, petitioner raises the same issues he presented to the district
court. Specifically, he contends that the military judge erred (1) in granting the
prosecution’s peremptory challenge of an African-American military court
member over his objection that the challenge violated Batson v. Kentucky ,
476 U.S. 79 (1986) (holding that, under equal protection and due process clauses,
a party may not utilize a peremptory challenge to exclude potential juror on
account of race); and (2) in finding that petitioner’s statements to the police were
admissible under Oregon v. Bradshaw , 462 U.S. 1039 (1983) (holding that, where
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suspect confesses after invoking right to counsel, that confession is admissible if
suspect initiates the discussion and totality of circumstances reveals waiver is
knowing, voluntary, and intelligent).
A federal district court’s habeas review of a military court-martial
proceeding is limited. It will not review a petitioner’s claim if the military courts
fully and fairly considered the claims asserted. Lips v. Commandant, United
States Disciplinary Barracks , 997 F.2d 808, 811 (10th Cir. 1993). This court has
held that if an issue was raised before the military courts, four conditions must be
met before a district court’s habeas review of a military conviction is appropriate:
(1) the asserted error is of substantial constitutional dimension; (2) the issue is
one of law rather than fact; (3) there are no military considerations that warrant
different treatment of the constitutional claims; and (4) the military courts failed
to give adequate consideration to issues involved or failed to apply the proper
legal standards. Id. Further, when an issue has been briefed and argued before
the military tribunal, a federal habeas court assumes the military tribunal has
given the claim full and fair consideration, even if the military court summarily
disposed of the issue. Watson v. McCotter , 782 F.2d 143, 145 (10th Cir. 1986).
The district court correctly ruled that habeas review is inappropriate in this
case because the military courts fully and fairly considered the two claims raised
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by petitioner. Consequently, we AFFIRM the judgment of the United States
District Court for the District of Kansas for substantially the same reasons stated
in the district court’s Memorandum and Order dated November 30, 2001.
Petitioner’s motion for leave to file an appendix is GRANTED, and the motion
for temporary and permanent injunction is DENIED as moot. The mandate shall
issue forthwith.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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