THOMAS v. UNITED States DISCIPLINARY BARRACKS, 09-3291.

• Citation: 625 F.3d 667
• Decision Date: 16 November 2010
• Docket Number: No. 09-3291.,09-3291.
• Parties: Rochester THOMAS, Petitioner-Appellant, v. UNITED STATES DISCIPLINARY BARRACKS, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

625 F.3d 667

Rochester THOMAS, Petitioner-Appellant,
v.
UNITED STATES DISCIPLINARY BARRACKS, Respondent-Appellee.

No. 09-3291.

United States Court of Appeals,Tenth Circuit.

Nov. 16, 2010.

625 F.3d 668

Melody Evans, Assistant Federal Public Defender for the District of Kansas, and Cyd Gilman, Federal Public Defender for the District of Kansas, Topeka, KS, for Appellant.

Tanya Sue Wilson, Assistant United States Attorney for the District of Kansas, and Lanny D. Welch, United States Attorney for the District of Kansas, Topeka, KS, for Appellee.

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

Rochester Thomas, a military prisoner, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241, which the district court dismissed. Thomas then voluntarily

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abated his appeal in this court to petition a military court to consider his claims of ineffective appellate counsel. The military court summarily denied Thomas's petition and, on remand, the district court again dismissed Thomas's habeas petition.

The issue raised in this appeal is whether the military court's summary dismissal rests on adequate legal grounds. We have jurisdiction under 28 U.S.C. § 2253(a) and, having carefully reviewed the record and arguments on appeal, we AFFIRM.

I. Background

A brief review of the procedural background will be helpful in understanding the legal issues on appeal.

A. Initial Court-Martial Proceedings

After Thomas deserted the Army in 1995, a military court convicted him in absentia of various sex crimes and sentenced him to 50 years' imprisonment. Appellate review of Thomas's court-martial continued despite his absence. Two years later, Thomas was arrested in Germany after assaulting his girlfriend and stabbing her roommate. For these crimes a military court sentenced him to 13 years' imprisonment and a dishonorable discharge.

Shortly before Thomas's arrest, his appointed military appellate defense counsel in the court-martial proceedings submitted a petition to the Army Court of Criminal Appeals (ACCA) challenging his convictions. After his arrest, Thomas then filed a Grostefon ¹ motion questioning his mental responsibility for the sex crimes due to Gulf War Syndrome.

The ACCA granted relief by dismissing several duplicative charges but otherwise denied Thomas's appeal. Thomas then petitioned the Court of Appeals for the Armed Forces (CAAF) for a grant of review, again raising Grostefon matters. Thomas's petition did not contain a claim of ineffective appellate counsel. After granting two motions to extend the time to file a supplement to the petition, the CAAF affirmed the ACCA's decision. The Supreme Court of the United States later denied Thomas's petition for a writ of certiorari. United States v. Thomas, ARMY 9502100 (A. Ct. Crim. App. Dec. 8, 2000) aff'd, 55 M.J. 248 (C.A.A.F. 2001), cert. denied, 534 U.S. 1009, 122 S.Ct. 494, 151 L.Ed.2d 405 (2001), reh'g denied, 535 U.S. 952, 122 S.Ct. 1354, 152 L.Ed.2d 256 (2002).

B. Petition for a Writ of Habeas Corpus

In 2002, as a prisoner housed in the United States Disciplinary Barracks at Fort Leavenworth, Thomas petitioned the district court in Kansas for a writ of habeas corpus. Thomas later supplemented his petition with four allegations of ineffective assistance by appellate counsel relating to his appeals to CAAF. ² In response, the government argued the ineffective appellate counsel claims could not be reviewed because they were not raised during the CAAF appeal. In dismissing Thomas's habeas petition, the district court declined

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to examine his ineffective appellate counsel claims because he failed to present them to the military courts and because there was no prejudice in light of the apparent strength of the prosecution's case. Thomas v. U.S. Disciplinary Barracks, No. 02-3265-RDR, 2009 WL 3125962 (D.Kan. July 29, 2004).

[1] [2] [3] Thomas appealed to this court, but voluntarily abated his appeal so he could petition the ACCA for a writ of error coram nobis to consider his ineffective appellate counsel claims. ³ The ACCA assigned counsel from its Defense Appellate Division to assist Thomas with the petition. Focusing on the ineffectiveness claims, Thomas's court-appointed counsel subsequently filed a supplemental memorandum. In response, the government filed a 50-page opposition brief, devoting 21 pages to the merits of Thomas's claims. ⁴

In February 2006, the ACCA summarily denied the petition. We then remanded Thomas's appeal to the district court for additional consideration of his ineffective appellate counsel claims in the habeas proceedings. The district court subsequently dismissed the petition, holding the ACCA's summary disposition was sufficient in light of the parties' thorough briefing on the issue. Thomas v. U.S. Disciplinary Barracks, 2009 WL 3125962 (D.Kan. Sept.29, 2009).

II. Discussion A. Standard of Review

[4] [5] [6] We review a district court's denial of habeas relief de novo. Fricke v. Sec'y of the Navy, 509 F.3d 1287, 1289 (10th Cir.2007). In contrast, our review of court-martial proceedings is very limited. See Burns v. Wilson, 346 U.S. 137, 142, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953). “[W]hen 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.” Id. The limited function of the civil court is to determine whether the military have given fair consideration to each of the petitioner's claims. Id. at 145, 73 S.Ct. 1045.

[7] To assess the fairness of the consideration, our review of a military conviction is appropriate only if the following four conditions are met: (1) the asserted error is of substantial constitutional dimension, (2) the issue is one of law rather than disputed fact, (3) no military considerations

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warrant a different treatment of constitutional claims, and (4) the military courts failed to give adequate consideration to the issues involved or failed to apply proper legal standards. Dodson v. Zelez, 917 F.2d 1250, 1252-53 (10th Cir.1990). While we continue to apply this four-part test, our recent cases have...