Beard v. United States

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-10317
Summary Calendar
MICHAEL E. BEARD,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
(98-CV-78)
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November 4, 1999
Before POLITZ, WIENER, and PARKER, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Michael E. Beard appeals from the
judgment of the district court denying his application for habeas
corpus relief under 28 U.S.C. § 2241. Petitioner was convicted by
a court-martial of committing sodomy with two children in violation
of the Uniform Code of Military Justice, 10 U.S.C. §§ 801-950. He
was sentenced to a dishonorable discharge, 10 years’ confinement,
and reduction in rank to E-1. He appealed his conviction and
sentence to the United States Air Force Court of Criminal Appeals,
which affirmed the findings and sentence of the court-martial. He
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
sought review before the United States Court of Appeals for the
Armed Forces, which denied review without opinion. United States
v. Beard, 46 M.J. 407 (C.A.A.F. 1997).
Military court-martial convictions are subject to collateral
review only if it is asserted that the court-martial lacked
jurisdiction, or substantial constitutional rights have been
violated, or other exceptional circumstances are present. Calley
v. Callaway, 519 F.2d 184, 203 (5th Cir. 1975) (en banc). This
court’s review of factual issues is limited to determining whether
the military has fully and fairly considered contested factual
issues. Calley, 519 F.2d at 203.
Although couched in terms of a violation of due process,
petitioner’s arguments concerning the sufficiency of the evidence
and his allegation that the victims’ testimony was “tainted” raise
disputed factual issues that were fully and fairly considered by
the military court. Therefore, the district court properly denied
federal habeas relief. See id. Petitioner’s claim of ineffective
assistance of trial counsel presents a mixed question of law and
fact that hinges on resolution of disputed factual issues. See
Strickland v. Washington, 466 U.S. 668, 698 (1984). Because these
issues were fully and fairly considered by the military court, the
district court did not err in denying habeas relief. Calley, 519
F.2d at 203. Petitioner has failed to show any prejudice with
respect to his claim of ineffective assistance of appellate
counsel, since the issues that counsel are alleged to have failed
to raise were considered by the military court. See Strickland,
2
466 U.S. at 687. Finally, although petitioner argues that the
military appellate court applied an incorrect standard of review,
at base this argument amounts to a reassertion of his
insufficiency-of-the-evidence argument, and the district court did
not err in denying habeas relief.
AFFIRMED.
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