Michael Gomez v. Kurt Neubaurer

FILED
NOT FOR PUBLICATION APR 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL JAMES GOMEZ, No. 10-17595
Petitioner - Appellant, D.C. No. 2:10-cv-01179-NVW
v.
MEMORANDUM*
KURT NEUBAUER, Brigadier General,
Commander, 56th Fighter Wing, Luke Air
Force Base; and MICHAEL BORDERS,
Major, Commander, Security Forces, Luke
Air Force Base,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Submitted April 20, 2012**
San Francisco, California
Before: SCHROEDER, THOMAS, and GRABER, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Michael James Gomez appeals the district court’s denial and dismissal with
prejudice of his petition for habeas relief under 28 U.S.C. § 2241. We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.
I
The district court held that our decision in Allen v. Steele, 759 F.2d 1469(9th Cir. 1985) (per curiam), controls and precludes the relief that Gomez sought.
In Allen, we observed that “court-martial jurisdiction continues until [a]
servicemember is discharged” and held that “[a] discharge is not complete until the
servicemember receives a discharge certificate.” Id. at 1471. Furthermore, we
noted that “[c]ourt-martial jurisdiction attaches when action with a view to trial
takes place.” Id. (internal quotation marks omitted). Here, Gomez never received
a discharge certificate, and the Air Force preferred charges on April 6, 2010—four
days before his scheduled discharge. The district court was thus correct that Allen
is controlling and that it clearly establishes the Air Force’s jurisdiction over
Gomez.
2
Gomez does not dispute that Allen controls. Rather, he argues that Allen was
wrongly decided.1 It is axiomatic that, as a three-judge panel, we may not disturb
Allen absent an intervening authority. See, e.g., State Bar of Cal. v. Findley, 593
F.3d 1048, 1050 (9th Cir. 2010) (“[T]hree judge panels of our Circuit are bound by
prior panel opinions ‘unless an en banc decision, Supreme Court decision or
subsequent legislation undermines those decisions.’” (quoting Nghiem v. NEC
Elec., Inc., 25 F.3d 1437, 1441 (9th Cir. 1994)).
Gomez does not point to an en banc decision, Supreme Court decision, or
subsequent statute that undermines our decision in Allen. We are thus bound by
Allen, and hold that Gomez’s jurisdictional claim fails.
II
Even if we doubted the continuing vitality of Allen, this case is not an
appropriate vehicle for en banc review because Gomez’s arguments fail on the
merits.
1
He requested an initial en banc review, but no active judge asked to hear
the case initially en banc, and his request was denied. See Petition for Initial
Hearing En Banc, Gomez v. Neubauer, No. 10-17595 (9th Cir. Apr. 25, 2011),
ECF No. 6; Gomez v. Neubauer, No. 10-17595 (9th Cir. Nov. 4, 2011), ECF No.
22.
3
Gomez does not dispute that the Air Force preferred charges against him on
April 6, 2010, four days before his scheduled discharge. Nor does Gomez dispute
that the Air Force never issued him a signed discharge certificate. Rather, Gomez
disputes the court-martial’s jurisdiction on the ground that he met the statutory
requirements of discharge under 10 U.S.C. § 1168(a). He contends that he had
received his “final pay” and that his discharge certificate was “ready for delivery.”
Id. Gomez bears the burden of establishing that the Air Force lacks jurisdiction.
See Machado v. Commanding Officer, Plattsburgh Air Force Base, 860 F.2d 542,
544 (2d Cir. 1988) (citing Johnson v. Zerbst, 304 U.S. 458, 468-69 (1938)). He
fails to do so.
First, Gomez’s discharge certificate was never “ready for discharge” because
it was never approved or signed. Second, the Air Force preferred charges,
therefore asserting jurisdiction, well before the disputed date of discharge. See
Allen, 759 F.2d at 1471; see also Rule 202(c), Attachment of jurisdiction over the
person, Manual for Courts-Martial United States (2008) (“Court-martial
jurisdiction attaches over a person when action with a view to trial of that person is
taken.”). Gomez fails to address this latter point, although it was one of the district
court’s grounds for decision.
4
In sum, it is beyond our authority to overrule Allen. Binding precedent
clearly establishes the Air Force’s jurisdiction over Gomez, and we need not reach
any other arguments raised by the parties.
AFFIRMED.
5