Gonzales v. Judge Advocate General

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 29, 2005
TENTH CIRCUIT
Clerk of Court
RICARDO K. GONZALES,
Petitioner-Appellant,
v. No. 05-3264
THE JUDGE ADVOCATE GENERAL (D.C. No. 04-3453-RDR)
OF THE UNITED STATES; (D.Kan.)
MELINDA DUNN, Staff Judge
Advocate for the 18th Airborne Corp.,
Fort Bragg, NC,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BRISCOE, LUCERO, and MURPHY , Circuit Judges.
Petitioner Ricardo Gonzales, a military prisoner appearing pro se, appeals
from the district court’s order denying without prejudice his 28 U.S.C. § 2241habeas petition. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and
*
This order and judgment is not binding precedent, except under the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.
affirm. **
In August 2003 Gonzales was convicted by a military tribunal of charges
Gonzales does not specify in his petition and sentenced to fifteen years’
imprisonment. Gonzales’ sentence was subsequently reduced by the convening
authority to a term of twelve years in accordance with what Gonzales
characterizes as “a mixed plea pre trial agreement that [he] accepted under duress
. . . .” Petition at 2. Gonzales has appealed his conviction and sentence and is
awaiting a ruling from the United States Army Court of Appeals.
On December 7, 2004, Gonzales filed a federal habeas petition claiming, in
pertinent part, that the staff judge advocate in his case “deliberately withheld”
relevant clemency documents from the convening authority. Accordingly,
Gonzales requested an order from the federal district court directing that his
military court proceedings be remanded to the convening authority with directions
that Gonzales be afforded a complete review of his clemency matters. Gonzales’
petition also alleged that the military charges against him were filed only after
similar criminal charges were filed against him in federal district court in Georgia
and dismissed without prejudice. Gonzales thus asked the federal district court to
appoint civilian counsel to assist him in his effort to persuade the federal district
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.
2
court in Georgia to amend its order of dismissal so that the previous criminal
charges against him would be dismissed with prejudice. The district court
dismissed Gonzales’ petition without prejudice, and thus denied the relief
requested in his petition.
Reviewing the district court’s ruling de novo, see Bledsoe v. United States,
384 F.3d 1232, 1235 (10th Cir. 2004) (noting that de novo standard of review
applies to order dismissing § 2241 habeas petition), we agree with the district
court that Gonzales has failed to establish any entitlement to federal habeas relief.
Generally speaking, our review of military court-martial proceedings is very
limited, see Burns v. Wilson, 346 U.S. 137, 142 (1953), and exhaustion of
military remedies is required before federal habeas relief may be granted. See
Schlesinger v. Councilman, 420 U.S. 738, 758 (1975); Watson v. McCotter, 782
F.2d 143, 145 (10th Cir. 1986). Here, Gonzales concedes he has not exhausted
his military remedies and that, in fact, his appeal is currently pending before the
military courts. Although Gonzales expresses concern about the length of time it
may take for his appeal to be decided by the military courts, and further asserts
that his due process rights will be violated if relief is not granted by this court, we
are not persuaded that any due process violation has yet occurred. See generally
Harris v. Champion, 15 F.3d 1538, 1557 (10th Cir. 1994) (holding that inordinate
delay in adjudicating a state defendant’s direct criminal appeal could give rise to
an independent due process violation and identifying factors to be considered).
3
Indeed, we agree with the district court that Gonzales “has demonstrated no
persuasive or compelling reason for th[e federal] courts’ intervention in the
military court’s review of [his] allegations of error.” ROA, Doc. 16, at 2. As for
Gonzales’ request for the appointment of counsel to assist him in a federal
criminal proceeding in the District of Georgia, we conclude that such request is
more appropriately directed to the federal district court presiding over those
proceedings.
AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
4