Sherrill v. Commandant, USDB

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 3 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
JAMES SHERRILL,
Petitioner-Appellant,
v. No. 04-3225
COMMANDANT, USDB; COLLEEN L. (D.C. No. 02-CV-3368-RDR)
McGUIRE, Colonel, (D. Kansas)
Respondents-Appellees.
ORDER AND JUDGMENT*
Before TACHA, Chief Judge, BRISCOE, and HARTZ, 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.
Petitioner James Sherrill appeals the district court’s dismissal of his 28 U.S.C.
§ 2241 petition. We affirm.
*
This order and judgment is not binding precedent, except under the doctrines of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.
Sherrill was convicted at a general court martial of absence without leave, indecent
acts upon a minor, two specifications of indecent liberties upon a minor, desertion, and
disorderly conduct. He was sentenced to twelve years’ confinement and a dishonorable
discharge. On appeal, the Army Court of Criminal Appeals dismissed a finding of
attempted indecent liberties on a minor but affirmed the remaining findings and sentence.
Sherrill also filed a motion for reconsideration and a petition for writ of coram nobis with
the Court of Appeals for the Armed Forces, which were denied. In his § 2241 petition,
Sherrill contended (1) the court martial lacked jurisdiction because the presiding military
judge was not properly “detailed” to the court martial; (2) the proceedings were barred by
speedy trial principles; (3) the Army Court of Criminal Appeals violated his right to due
process when it reassessed his sentence instead of ordering a rehearing; and (4) the trial
record is incomplete and not a verbatim record of the proceedings. Sherrill also contends
the district court erred in not granting an evidentiary hearing on his petition.
Federal civil courts have limited authority to review court martial proceedings.
See Burns v. Wilson, 346 U.S. 137, 139-42, 144 (1953) (plurality). If the military courts
have fully and fairly reviewed Sherrill’s claims, we cannot review them. See Roberts v.
Callahan, 321 F.3d 994, 995 (10th Cir.), cert. denied, 124 S. Ct. 447 (2003). An issue is
said to have been given “full and fair consideration” if it was briefed and argued, even if
the military tribunal summarily disposed of the matter. See Watson v. McCotter, 782
F.2d 143, 145 (10th Cir. 1986). If an issue was raised before the military courts, we
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consider four factors to determine whether it was given full and fair consideration: (1)
the asserted error must be of substantial constitutional dimension; (2) the issue must be
one of law rather than of disputed fact already determined by the military tribunals; (3)
military considerations may warrant different treatment of constitutional claims; and (4)
military courts must give adequate consideration to issues involved and apply proper legal
standards. See Lips v. Commandant, 997 F.2d 808, 811 (10th Cir. 1993). These factors
“merely aid[] our determination of whether the federal court may reach the merits of the
case,” and do not “constitute a separate hurdle” to federal court review. Roberts, 321
F.3d at 997.
All of the claims raised in Sherrill’s habeas petition were raised, briefed, and
argued before the Army Court of Criminal Appeals or the Court of Appeals for the
Armed Forces. After reviewing the record, we conclude the military courts fully and
fairly considered Sherrill’s claims that he was denied due process in reassessing his
sentence and that the trial record is incomplete. As the military courts have fully and
fairly reviewed these claims, we cannot review them. See Roberts, 321 F.3d at 995.
Sherrill characterizes his first two claims as jurisdictional arguments. Federal
courts can consider habeas claims challenging court martial jurisdiction. See, e.g., Monk
v. Zelez, 901 F.2d 885, 888 (10th Cir. 1990) (per curiam). Sherrill argues the presiding
military judge was not properly detailed to that particular court martial. See generally 10
U.S.C. § 826(c). It is not clear this is a jurisdictional issue. Compare United States v.
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Robinson, 43 M.J. 501, 504 (A.F. Ct. Crim. App. 1995) (concluding propriety of military
judge detail not jurisdictional); with United States v. Hutto, 29 M.J. 917, 919 (A.C.M.R.
1989) (“Proper appointment of the military judge is a jurisdictional prerequisite to the
proper composition of a courts-martial.”). He also claims the proceeding violated his
right to a speedy trial. Both claims stem from his allegation that the court martial that
tried and convicted him was formed under court martial convening order (CMCO) nine,
but his case originally was referred under CMCO six. See 10 U.S.C. § 810 (Rule for
Courts-Martial 707, Article 10, UCMJ). Even if the re-referral was in error, it would not
be a jurisdictional error. See, e.g., United States v. King, 28 M.J. 397, 398-99 (C.M.A.
1989).
Sherrill also claims the district court erred in denying his motion for discovery.
The record reveals a thorough and reasoned disposition by the district court. The district
court did not abuse its discretion in concluding Sherrill’s vague claim that discovery
would have a direct impact on his petition was not sufficient to entitle him to an
evidentiary hearing. See Cummings v. General Motors Corp., 365 F.3d 944, 953 (10th
Cir. 2004) (stating we find abuse of discretion “only when the judge renders an arbitrary,
capricious, whimsical, or manifestly unreasonable judgment”).
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AFFIRMED. Sherrill’s motion to recall the mandate of the district court is
DENIED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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