Dodson v. Zelez

• Citation: 917 F.2d 1250
• Decision Date: 23 October 1990
• Docket Number: No. 88-2875,88-2875
• Parties: Alvin W. DODSON, Jr., Petitioner-Appellant, v. Colonel Gordon N. ZELEZ, Commandant, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1250

917 F.2d 1250

Alvin W. DODSON, Jr., Petitioner-Appellant, v. Colonel Gordon N. ZELEZ, Commandant, Respondent-Appellee.

No. 88-2875.

United States Court of Appeals,

Tenth Circuit.

Oct. 23, 1990.

Kathleen J. Purcell of Remcho, Johansen & Purcell, San Francisco, Cal. (Joseph Remcho and Martin Buchanan of Remcho, Johansen & Purcell, San Francisco, Cal., and David J. Waxse of Shook, Hardy & Bacon, Overland Park, Kan., with her on the briefs), for petitioner-appellant.

Robert C. Barber, Captain, U.S. Marine Corp, Office of Judge Advocate General, Alexandria, Va. (Benjamin L. Burgess, Jr., U.S. Atty., and Alleen S. Castellani, Asst. U.S. Atty., D. Kan., on the brief), for respondent-appellee.

Before McKAY, ANDERSON and EBEL, Circuit Judges.

McKAY, Circuit Judge.

This case involves a military prisoner's petition for habeas corpus that was denied by the district court.

I. Facts

Defendant was one of three marines charged with attempted robbery, conspiracy to rob, premeditated murder, felony murder, and robbery in connection with events occurring on May 31, 1981 and June 1, 1981. Defendant's case was initially set to be heard on September 1, 1981. However, due to continuances sought by the government, defendant's court-martial did not take place until December 11, 1981. The court-martial convicted defendant on all charges by a two-thirds vote. A conviction of premeditated murder or felony murder carries a mandatory sentence of death or life imprisonment. Defendant was sentenced to life imprisonment when the court-martial did not unanimously vote for death. The military judge did not require three-fourths of the court-martial to concur in the life sentence.

The convening authority approved the findings and sentence of the court-martial. Defendant then presented seven allegations of error to the Navy-Marine Corps Court of Military Review. Defendant repeats four of those claims of error here. Defendant now claims: One, that the voting procedure of the court-martial violated due process; two, that the composition of the court-martial combined with the voting procedures violated due process; three, that he was denied a speedy trial; and four, that exclusion of expert witness testimony violated due process. The Court of Military Review found no error in the proceedings, after specifically reviewing defendant's claims regarding speedy trial and exclusion of expert witness testimony. The court summarily denied defendant's claims regarding the three-fourths voting procedures and the composition of the jury. See United States v. Dodson, 16 M.J. 921 (N.M.C.M.R.1983). The United States Court of Military Appeals then affirmed the conviction. See United States v. Dodson, 21 M.J. 237 (C.M.A.1986), on rehearing, 22 M.J. 257 (C.M.A.1986). The United States Supreme Court denied certiorari on December 8, 1986. See Dodson v. United States, 479 U.S. 1006, 107 S.Ct. 644, 93 L.Ed.2d 701 (1986).

On June 30, 1987, defendant filed a petition for a writ of habeas corpus in the district court. After fully reviewing the voting procedures claim and refusing to review the other three suggestions of error, the district court denied the writ. 702 F.Supp. 267. Defendant now appeals the denial of the writ to this court.

II. Federal Court Review of Military Courts-Martial

When reviewing military courts-martial on habeas corpus grounds, the Supreme Court historically simply looked to see if the court-martial had jurisdiction. See Ex parte Reed, 100 U.S. 13, 23, 25 L.Ed. 538 (1879). See also Collins v. McDonald, 258 U.S. 416, 418, 42 S.Ct. 326, 327, 66 L.Ed. 692 (1922); McClaughry v. Deming, 186 U.S. 49, 69, 22 S.Ct. 786, 794, 46 L.Ed. 1049 (1902); Johnson v. Sayre, 158 U.S. 109, 117, 15 S.Ct. 773, 776, 39 L.Ed. 914 (1895). Over time the Court began to look more carefully at the merits of the claims while still calling its review a search for jurisdiction. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Finally, in Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953), the Supreme Court noted that Congress had given the federal courts the power to review courts-martial on habeas corpus applications. Burns v. Wilson, 346 U.S. 137, 139, 73 S.Ct. 1045, 1047, 97 L.Ed. 1508 (1957). The Burns Court then explained the limitations on federal court review of military habeas corpus cases. "[T]hese provisions do mean that when a military decision has dealt fully and fairly with an allegation raised in that application, it is not open to a federal civil court to grant the writ simply to re-evaluate the evidence." Burns, 346 U.S. at 142, 73 S.Ct. at 1049. The Court went on to state that "[i]t is the limited function of the civil courts to determine whether the military have given fair consideration to each of these claims." Id. at 144, 73 S.Ct. at 1050.

The federal courts' interpretation--particularly this court's interpretation--of the language in Burns has been anything but clear. Probably a majority of our cases have simply quoted the Burns language and held that no review of a petition for habeas corpus was possible when the defendant's claims were fully and fairly considered by the military courts. See Watson v. McCotter, 782 F.2d 143, 144 (10th Cir.), cert. denied, 476 U.S. 1184, 106 S.Ct. 2921, 91 L.Ed.2d 549 (1986); King v. Moseley, 430 F.2d 732, 734 (10th Cir.1970); Bennett v. Davis, 267 F.2d 15, 17 (10th Cir.1959); Dickenson v. Davis, 245 F.2d 317, 320 (10th Cir.1957), cert. denied, 355 U.S. 918, 78 S.Ct. 349, 2 L.Ed.2d 278 (1958); Easley v. Hunter, 209 F.2d 483, 486-87 (10th Cir.1953). A few of our cases were more specific and held that we could not review factual disputes if they had been fully and fairly considered by the military courts. See Kennedy v. Commandant, United States Disciplinary Barracks, 377 F.2d 339, 342 (10th Cir.1967); Mendrano v. Smith, 797 F.2d 1538, 1542 n. 6 (10th Cir.1986). Still other of our cases have held that review of constitutional claims in habeas corpus petitions was proper without really saying when and why. See Wallis v. O'Kier, 491 F.2d 1323, 1325 (10th Cir.), cert. denied, 419 U.S. 901, 95 S.Ct. 185, 42 L.Ed.2d 147 (1974); Day v. Davis, 235 F.2d 379, 384 (10th Cir.), cert. denied, 352 U.S. 881, 77 S.Ct. 104, 1 L.Ed.2d 81 (1956). Another of our recent cases held that review was proper when the constitutional claim was both "substantial and largely free of factual questions." Monk v. Zelez, 901 F.2d 885, 888 (10th Cir.1990) (quoting Mendrano, 797 F.2d at 1542 n. 6). See also Lundy v. Zelez, 908 F.2d 593 (10th Cir.1990).

Apparently because of the confusing state of our cases, the district court looked to a Fifth Circuit case for guidance in determining when to review a claim made in a habeas corpus petition. See Calley v. Callaway, 519 F.2d 184 (5th Cir.1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1505, 47 L.Ed.2d 760 (1976). We agree that the Calley case identifies four factors--also found in our prior cases, although not so clearly expressed--helpful in determining whether review of a military conviction on habeas corpus is appropriate. The four factors from Calley and the Tenth Circuit cases articulating the same principles are:

1. The asserted error must be of substantial constitutional dimension.... [See Mendrano, 797 F.2d at 1542 n. 6.] 2. The issue must be one of law rather than of disputed fact already determined by the military tribunals.... [See Mendrano, 797 F.2d at 1542 n. 6.] 3. Military considerations may warrant Calley, 519 F.2d at 199-203. We recognize that these factors still place a large amount of discretion in the hands of the federal courts. Nevertheless, we believe that they provide a concise statement of the factors normally relied on by the federal courts in deciding whether to review military habeas corpus petitions. Applying these four factors to the four claims asserted by defendant, we hold that only the voting procedures claim is subject to our review. We hold that the remaining claims were fully and fairly reviewed by the military courts.

                different treatment of constitutional claims....  [See Dickenson v. Davis, 245 F.2d 317, 320 (10th Cir.1957) ]  4.  The military courts must give adequate consideration to the issues involved and apply proper legal standards.    [See King v. Moseley, 430 F.2d 732, 734-35 (10th Cir.1970);  Watson v. McCotter, 782 F.2d 143, 145 (10th Cir.1986).]
                

A. Voting Procedures

We affirm the district court's decision to review defendant's claim that the voting procedures used at his court-martial violated due process. This claim involves a substantial constitutional issue, that defendant was incarcerated without due process of law. In addition, in its brief the government conceded that this issue was one of law rather than of disputed fact. There is no contention that unique military considerations apply to this issue. Finally, although this issue was raised before the military courts of review, it was summarily affirmed without discussion. This factor alone is not sufficient to justify our review of this issue. See Watson v. McCotter, 782 F.2d 143, 145 (10th Cir.), cert. denied, 476 U.S. 1184, 106 S.Ct. 2921, 91 L.Ed.2d 549 (1986). However, when the military courts' summary affirmance is considered with the other three factors in Calley, we hold that this claim fulfills the four requirements for our review.

B. Jury Composition

We hold that defendant's jury composition claim was fully and fairly considered by the military courts. Defendant points to seven court-martial procedures followed in this case which he claims denied him due process of law in the totality of the circumstances. Three of these procedures involve the voting procedures that we have already agreed to review above. The remaining four claims deal only with the composition of the court-martial. Defendant seeks to apply Supreme Court requirements concerning civilian juries to his court-martial. Defendant's suggestion has been squarely...