Donald Rfletcher v. T Coutlaw

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 08-40713
DONALD R FLETCHER,
Petitioner - Appellant
v.
T C OUTLAW,
Respondent - Appellee
Appeal from the United States District Court
for the Eastern District of Texas
Before WIENER, GARZA, and ELROD, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Prisoner Donald R. Fletcher appeals the district court’s denial of his 28
U.S.C. § 2241 petition. For the following reasons, we affirm.
I
In 1993, Fletcher was convicted by a general court-martial of premeditated
murder and sentenced to a dishonorable discharge, life confinement, forfeiture
of all pay and allowances, and a reduction to the grade of Private E1. On appeal,
the United States Army Court of Criminal Appeals (“ACCA”) affirmed the
“findings of guilty and the sentence.” The ACCA’s memorandum opinion
provided:
United States Court of Appeals
Fifth Circuit
F I L E D
August 7, 2009
Charles R. Fulbruge III
Clerk

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Specifically, Fletcher filed a petition for extraordinary relief in the form of writ of1
habeas corpus with the ACCA. The ACCA summarily denied the petition. Fletcher filed a
petition for extraordinary relief in the nature of a writ of error coram nobis with the ACCA,
which the ACCA summarily denied. Fletcher filed a writ appeal petition for review of the
ACCA’s denial of his petition for extraordinary relief, which the CAAF summarily denied.
Fletcher filed a motion to file a petition for reconsideration out of time; the CAAF granted the
motion to file but denied the petition for reconsideration.
2
The appellate defense counsel has raised numerous assignments of
error, and the appellant has asserted, pursuant to United States v.
Grostefon, 12 M.J. 431 (1982), additional errors in the court-martial
proceedings. We have reviewed the record of proceedings and the
briefs filed by the appellant and the government, and have carefully
considered the oral arguments presented by counsel before this
court. We find no merit in either the errors asserted by counsel for
appellant or those raised personally by the appellant.
The United States Court of Appeals for the Armed Forces (“CAAF”) summarily
affirmed the ACCA’s decision. Fletcher then filed numerous petitions for further
relief, all of which were denied by the military courts.1
In December 1999, Fletcher filed a petition for a writ of habeas corpus,
construed as arising under 28 U.S.C. § 2241, in the United States District Court
for the Western District of Texas. That court transferred the petition to the
United States District Court for the District of Kansas because Fletcher was
then incarcerated in Fort Leavenworth, Kansas. Fletcher’s habeas petition
raised twenty-five grounds for relief. The Kansas district court dismissed
fourteen of the claims on the ground that Fletcher had failed to present them to
the military courts. The court denied relief on the remainder of the claims on
the ground that the military courts had fully and fairly considered them, citing
Burns v. Wilson, 346 U.S. 137 (1953), and Lips v. Commandant, U.S.
Disciplinary Barracks, 997 F.2d 808, 812 n.2 (10th Cir. 1993).
In October 2006, Fletcher, then incarcerated in Texas, filed a § 2241
application in the United States District Court for the Western District of Texas.
The Government filed an amended response, arguing that Fletcher’s application

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was barred by § 2244(a) as a successive application. The Government
alternatively argued that the claims should be dismissed because they were
given full and fair consideration by the military courts or they were not raised
in the military courts. The magistrate judge determined that three of the claims
raised by Fletcher in his § 2241 application were fully considered by the ACCA
and/or the CAAF, and recommended that relief on these three claims be denied.
The magistrate judge further determined that Fletcher’s two remaining claims
were not raised before the military courts, and since Fletcher had not shown
cause and prejudice they were procedurally barred. Fletcher filed objections to
the magistrate judge’s report. Following a de novo review, the district court
overruled Fletcher’s objections, adopted the magistrate judge’s report, and
denied Fletcher’s § 2241 application. Fletcher filed a timely notice of appeal.
II
Federal courts have jurisdiction pursuant to 28 U.S.C. § 2241 over
petitions for habeas corpus filed by individuals challenging military convictions.
See Burns v. Wilson, 346 U.S. 137, 139 (1953). However, “in military habeas
corpus the inquiry, the scope of matters open for review, has always been more
narrow than in civil cases.” Id. (citation omitted). If the military gave full and
fair consideration to claims asserted in a federal habeas petition filed by a
military prisoner, the petition should be denied. Id. at 144.
III
Fletcher raised five claims in his § 2241 petition: (1) his counsel was
ineffective in advising him to waive exculpatory DNA evidence; (2) the
prosecutor withheld evidence; (3) the military judge gave an erroneous
instruction regarding the burden of proof; (4) the evidence was insufficient to
support a conviction; and (5) he was denied his counsel of choice.
The district court determined that the ineffective assistance and denial of
counsel of choice claims were procedurally barred because Fletcher failed to raise

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“The jurisprudence in this area has been largely developed by the United States Court2
of Appeals for the Tenth Circuit, because the United States Disciplinary Barracks at Fort
Leavenworth, Kansas is located within that court's jurisdiction.” Sharp v. U.S. Army, No.
9:04-CV-1070, 2008 WL 163595, at *3 (N.D.N.Y. Jan. 16, 2008) (unpublished).
4
them in the military courts. See Schlesinger v. Councilman, 420 U.S. 738, 758
(1975) (observing that “federal courts normally will not entertain habeas
petitions by military prisoners unless all available military remedies have been
exhausted”). Fletcher has not argued that these claims are not procedurally
barred. Although we liberally construe the briefs of pro se appellants,
arguments must be briefed to be preserved. Yohey v. Collins, 985 F.2d 222, 225
(5th Cir. 1993) (citation omitted). Therefore, since Fletcher has wholly failed to
argue that the ineffective assistance and denial of counsel of choice claims are
not procedurally barred for failure to exhaust all military remedies, he has
abandoned these claims on appeal.
The district court further determined that Fletcher’s three remaining
claims were raised before the ACCA and/or the CAAF. However, the court
concluded that it could not review these claims because they were given full and
fair consideration by the military courts. We agree.
The military has an independent criminal justice system governed by the
Uniform Code of Military Justice (“UCMJ”). 10 U.S.C. §§ 801 et seq.; Burns, 346
U.S. at 140; Lips, 997 F.2d at 810. The UCMJ is comprehensive and provides2
for, inter alia, courts-martial, appellate review, post-conviction relief, and
limited certiorari review by the Supreme Court. See Burns, 346 U.S. at 141;
Lips, 997 F.2d at 810. Due to the independence of the military court system,
“special considerations are involved when federal civil courts collaterally review
court-martial convictions.” Lips, 997 F.2d at 810.
In Burns, the Supreme Court stated that “when a military decision has
dealt fully and fairly with an allegation raised in that application [for habeas

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Prior to Burns, a federal habeas court’s review of a military prisoner’s claims was3
limited to whether the military court properly had jurisdiction. See, e.g., Hiatt v. Brown, 339
U.S. 103, 111 (1950).
Although the Supreme Court has not revisited the Burns scope of review since the4
passage of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) in 1996, members
of the Supreme Court have cited Burns favorably since AEDPA's passage. See, e.g.,
Boumediene v. Bush, 128 S. Ct. 2229, 2286 (2008) (Roberts, C.J., dissenting) (“The scope of
federal habeas review is traditionally more limited in some contexts than in others, depending
on the status of the detainee and the rights he may assert.” (citing Burns, 346 U.S. at 139));
Clinton v. Goldsmith, 526 U.S. 529, 537 n.11 (1999) (A servicemember “is entitled to bring a
habeas corpus petition claiming that his conviction is affected by a fundamental defect that
requires that it be set aside.” (internal citation omitted) (citing Burns, 346 U.S. at 142)).
5
corpus], it is not open to a federal civil court to grant the writ simply to
re-evaluate the evidence.” 346 U.S. at 142 (citation omitted). Reviewing the
military decision, the Court determined that “the military courts have heard
petitioners out on every significant allegation which they now urge.” Id. at 144.
The Court concluded:
Accordingly, it is not the duty of the civil courts simply to repeat
that process—to re-examine and reweigh each item of evidence of
the occurrence of events which tend to prove or disprove one of the
allegations in the applications for habeas corpus. It is the limited
function of the civil courts to determine whether the military have
given fair consideration to each of these claims.
Id. (citation omitted). Burns placed the burden on the petitioner to show that3
the military review was legally inadequate to resolve his claims. Id. at 146.4
Applying Burns several years later, we noted that “[f]ederal courts have
interpreted Burns with considerable disagreement” and that confusion existed
regarding the proper scope of review in military habeas cases. Calley v.
Callaway, 519 F.2d 184, 198 (5th Cir. 1975). After engaging in a thorough
historical review of military habeas, we declared that review of a military
conviction is appropriate only if four conditions are met: (1) the claim is of
“substantial constitutional dimension;” (2) the issue is legal rather than one of
disputed fact determined by a military tribunal; (3) there are no military

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considerations that warrant 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. Id. at 199-203. We stated that federal
civil courts “may not retry the facts or reevaluate the evidence, their function in
this regard being limited to determining whether the military has fully and
fairly considered contested factual issues.” Id. at 203.
However, Calley does not provide direct guidance for the situation
presented here; namely, how do we determine whether a military court gave full
and fair review when the military court’s opinions summarily dispose of the
claims? The Tenth Circuit confronted this issue in King v. Moseley, 430 F.2d.
732 (10th Cir. 1970). In that case, the military prisoner’s federal habeas claim
had been summarily dismissed by the military Board of Review as “not []
meritorious nor requiring discussion.” 430 F.2d at 734. The Tenth Circuit held
that there was full and fair consideration of the claim under Burns because the
facts and law had been fully presented to the military court. Id. at 735; see also
Watson v. McCotter, 782 F.2d 143, 145 (10th Cir. 1986) (“When an issue is
briefed and argued before a military board of review, we have held that the
military tribunal has given the claim fair consideration, even though its opinion
summarily disposed of the issue with the mere statement that it did not consider
the issue meritorious or requiring discussion.”). Other courts have also
concluded that where an argument has been briefed before a military court, full
and fair review exists even if the military court summarily disposes of the issue.
See, e.g., United States ex rel Thompson v. Parker, 399 F.2d 774, 775-76 (3d Cir.
1968); Sanford v. United States, 567 F. Supp. 2d 114, 118 (D.D.C. 2008); Matias
v. United States, 19 Cl. Ct. 635, 646 (1990).
Here, the district court relied on Burns and Watson to conclude that the
military courts had given Fletcher’s claims full and fair consideration. We agree.
Though Fletcher states at the conclusion of his appellate brief that he did not

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receive full and fair consideration from the “lower courts,” he does not make any
specific arguments as to how the military courts failed to afford him adequate
review. Construing his briefs liberally, it appears that Fletcher is arguing that
he failed to receive full and fair consideration because the military courts were
wrong on the merits of his habeas claims. This is not sufficient to show a lack
of full and fair review. The record indicates that Fletcher fully briefed and
argued these claims before the ACCA. Dismissing the claims, the ACCA stated
that it had “reviewed the record of proceedings and the briefs filed by the
appellant and the government, [had] carefully considered the oral arguments
presented by counsel before this court,” and found that the issues lacked merit.
Absent any evidence that the military courts failed to afford him full and fair
review, we conclude that Fletcher has failed to meet his burden of showing that
the military review was legally inadequate to resolve his claims. See Burns, 346
U.S. at 146; Calley, 519 F.2d at 203. Therefore, review of Fletcher’s habeas
claims is inappropriate, and the district court properly denied his § 2241
application.
IV
For the foregoing reasons, we AFFIRM the district court’s denial of
Fletcher’s § 2241 petition.

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