F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 3 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
THOMAS W. SPINDLE,
Petitioner,
No. 97-3062
v. (D.C. No. 95-3116-RDR)
(D. Kan.)
N/F/N TILLERY, Commandant,
Respondent.
ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Thomas W. Spindle, a federal inmate and pro se litigant, appeals the
district court's denial of his petition for habeas corpus relief. We exercise
jurisdiction pursuant to 28 U.S.C. § 1291 (1994) and affirm.
In June 1982, Mr. Spindle was convicted by a general court-martial at Fort
Shafter, Hawaii, of felony murder, attempted sodomy, assault with intent to
commit sodomy, and indecent acts with a child under sixteen years of age. 1
Spindle v. Berrong, 1993 WL 230114, at *1 (10th Cir. June 24, 1993)
(unpublished disposition), cert. denied, 510 U.S. 1067 (1993). The convictions
arose from the death of a fourteen year-old boy, whose sodomized body was
found in an abandoned bomb shelter. Id. The main evidence against Mr. Spindle
was the testimony of an eyewitness, Private Joseph Courtney, who was declared
unavailable at the time of trial. 2 Id. In addition, testimony was introduced that
Mr. Spindle confessed to being present at the scene of the murder. Id. Mr.
Spindle was sentenced, inter alia, to life imprisonment. Id.
1
Clifford B. Hubbard was convicted of the same crimes in the same court-
martial. See Hubbard v. Lowe, 1994 WL 702676, at *1 (10th Cir. Dec. 15, 1994)
(unpublished disposition), cert. denied, 514 U.S. 1100 (1995).
2
Shortly before trial, Private Courtney went AWOL. However, Private
Courtney had previously testified against Mr. Spindle at an Article 32 hearing,
which is the equivalent of a preliminary hearing. Spindle, 1993 WL 230114 at *1.
Private Courtney's testimony at the Article 32 hearing was introduced against Mr.
Spindle at his court-martial.
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Following his convictions, Mr. Spindle appealed to the Army Court of
Military Review. Spindle v. Berrong, 1993 WL 63401, at *1 (D. Kan. Feb. 4,
1993). Although the court dismissed his assault conviction, it affirmed his
remaining convictions and sentence. Id. Thereafter, Mr. Spindle filed for review
of his convictions in the United States Court of Military Appeals. Id. The Court
of Military Appeals affirmed his convictions and denied Mr. Spindle's request for
reconsideration. Id.
On January 26, 1990, Mr. Spindle filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the
District of Kansas. Id. at *1-2. Although Mr. Spindle asserted nine errors, the
district court determined he was not entitled to any relief and dismissed his
petition. Id. at *1-3. On June 24, 1993, we affirmed the dismissal of Mr.
Spindle's petition. Spindle, 1993 WL 230114 at *2.
On March 16, 1995, Mr. Spindle filed a second petition for habeas corpus
relief pursuant to 28 U.S.C. § 2241 with the United States District Court for the
District of Kansas. In his second petition, Mr. Spindle raised the following
claims for relief: (1) the government withheld exculpatory evidence; (2) he was
denied the right to confrontation when the former testimony of Private Courtney
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was admitted at trial; (3) military investigators failed to give proper warnings
before eliciting inculpatory statements from him; (4) he received ineffective
assistance of counsel; and (5) he was improperly convicted by a two-thirds vote
and the jury was not properly instructed on the vote necessary to impose life
imprisonment. On February 6, 1997, the district court dismissed Mr. Spindle's
second petition for habeas corpus relief in a twelve page order. Mr. Spindle now
appeals from the district court's dismissal of his petition.
On appeal, Mr. Spindle argues the district court erred in denying relief on
each of his five claims. Before reviewing these claims, we first discuss our
limitations on review of military court-martial convictions. Generally, "'federal
courts will not entertain habeas petitions by military prisoners unless all available
military remedies have been exhausted.'" Khan v. Hart, 943 F.2d 1261, 1263
(10th Cir. 1991) (quoting Schlesinger v. Councilman, 420 U.S. 738, 758 (1975)).
Where a prisoner has failed to raise a claim in the military courts, we will not
review the claim unless the prisoner establishes cause and prejudice for failing to
raise the error. Lips v. Commandant, United States Disciplinary Barracks, 997
F.2d 808, 812 (10th Cir. 1993), cert. denied, 510 U.S. 1091 (1994). Furthermore,
the Tenth Circuit consistently has granted "broad deference" to the military in
collateral review of court-martial convictions. Watson v. McCotter, 782 F.2d 143,
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144 (10th Cir.), cert. denied, 476 U.S. 1184 (1986). Our habeas jurisdiction
"does not extend to a reassessment of the facts and issues fully and fairly
considered by a military court." Khan, 943 F.2d at 1262. In determining the
scope of our jurisdiction, we have identified four relevant factors:
(1) whether the claimed error is of substantial constitutional
dimension, (2) whether a legal issue is involved, rather than a factual
issue previously resolved by military courts, (3) whether military
considerations may warrant different treatment of constitutional
claims such that federal civil court intervention would be
inappropriate, and (4) whether the military courts have given
adequate consideration to the claimed error and applied proper legal
standards.
Id.
In the present case, Mr. Spindle first argues he is entitled to habeas relief
because the government failed to disclose exculpatory fingerprint evidence
removed from the victim's body. Mr. Spindle raised this same claim in his first
habeas petition. See Spindle, 1993 WL 63401 at *1. However, the district court
declined to review the issue because Mr. Spindle did not raise the issue before the
military courts. Id. We affirmed the district court's decision not to review the
claim on appeal. Spindle, 1993 WL 230114 at *1. In his present petition, Mr.
Spindle contends his failure to raise the exculpatory evidence issue in the military
courts should be excused because he was provided ineffective assistance of
counsel. Assuming, without deciding, Mr. Spindle can establish cause for failing
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to raise the issue, we do not believe he can show actual prejudice stemming from
the error he asserts. Mr. Spindle contends the government unlawfully withheld
latent fingerprints obtained from the victim's body, thus denying him a "mistake
of identity" defense. However, the evidence before the military courts revealed
that as many as four people were involved in the events leading up to the murder.
See Hubbard, 1994 WL 702676 at *2. Thus, even if the fingerprints from the
victim's body were shown to be the prints of another, this would not establish a
probability that Mr. Spindle would have been acquitted. Consequently, we
conclude Mr. Spindle cannot establish he was prejudiced by the government's
alleged failure to provide him with the latent fingerprints. 3 We therefore affirm
the district court's refusal to grant Mr. Spindle relief based on the government's
alleged failure to provide him with exculpatory evidence.
Second, Mr. Spindle contends he is entitled to habeas relief because the
military court erroneously allowed the testimony of Private Courtney to be
admitted against him, even though Private Courtney was not present at Mr.
3
We also conclude that no fundamental miscarriage of justice will result
from our failure to consider this claim. See Klein v. Neal, 45 F.3d 1395, 1400
(10th Cir. 1995) ("habeas corpus petitioner may excuse a procedural default by
demonstrating either 'cause for the default and actual prejudice as a result of the
alleged violation of federal law, or ... that failure to consider the claims will
result in a fundamental miscarriage of justice.'") (quoting Brecheen v. Reynolds,
41 F.3d 1343, 1353 (10th Cir. 1994), cert denied, 515 U.S. 1135 (1995)).
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Spindle's court-martial. According to Mr. Spindle, he was denied the opportunity
to effectively cross-examine Private Courtney. As noted by the district court,
however, Mr. Spindle raised a nearly identical claim in his first petition for a writ
of habeas corpus. The district court in the first habeas proceeding considered this
claim on the merits and determined that Mr. Courtney's testimony was properly
admitted under "a firmly rooted hearsay exception." Spindle, 1993 WL 63401 at
*3. Furthermore, the court determined Mr. Courtney was subjected to cross
examination at the Article 32 hearing, and this cross-examination was read to the
jury at trial. Id. On appeal, we concluded the admission of Private Courtney's
testimony did not infringe Mr. Spindle's constitutional rights. Spindle, 1993 WL
230114 at *2.
Because Mr. Spindle's objections to Private Courtney's testimony have been
previously considered and rejected by a federal court, we are only required to
reconsider such objections if Mr. Spindle has "supplement[ed] his constitutional
claim with a colorable showing of factual innocence." Kuhlmann v. Wilson, 477
U.S. 436, 454 (1986). To satisfy this standard, Mr. Spindle must show "sufficient
claims and facts that -- had the jury considered them -- probably would have
convinced the jury that the defendant was factually innocent." Parks v. Reynolds,
958 F.2d 989, 995 (10th Cir.), cert. denied, 503 U.S. 928 (1992) (emphasis in
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original). After thoroughly reviewing Mr. Spindle's appellate brief and all
relevant portions of the record, we conclude Mr. Spindle has failed to make such
a showing. Consequently, we conclude the district court did not err in failing to
review Mr. Spindle's claim concerning the testimony of Private Courtney.
Third, Mr. Spindle argues he is entitled to habeas relief because he received
ineffective assistance of counsel. To prevail on his ineffective assistance of
counsel claim, Mr. Spindle must show his counsels' representation "fell below an
objective standard of reasonableness," and the deficient performance prejudiced
Mr. Spindle. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To
establish prejudice, Mr. Spindle "must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would
have been different." Id. at 694.
In the present case, Mr. Spindle claims his representation was deficient in
several regards. First, he argues his counsel did not effectively cross-examine
Private Courtney because he lacked "sufficient data, lab results or documentation"
and because Private Courtney went AWOL before the court-martial. After
reviewing defense counsel's cross-examination of Private Courtney at the Article
32 hearing, we agree with the district court that the cross-examination was
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adequate. Although counsel may have lacked data or lab reports, there is no
indication that this was due to the deficiencies of defense counsel. Nor is there
any indication in the record that Private Courtney's absence at trial was due to any
actions of defense counsel. Thus, we conclude Mr. Spindle's counsel's cross-
examination of Private Courtney was not deficient.
Mr. Spindle also contends his counsel was deficient because he failed to
obtain key evidence. However, Mr. Spindle fails to specify what key evidence
counsel failed to uncover. Consequently, we are unable to ascertain any
deficiency from this contention.
Next, Mr. Spindle claims his counsel "adopted [the] impossible strategy
[of] plac[ing] the petitioner at the scene of the crime on the night the victim was
abducted and killed." At Mr. Spindle's court-martial, an officer investigating the
murder of the young boy testified that Mr. Spindle acknowledged that he was with
the boy on the night he was killed. Private Courtney's testimony, which was read
at the court-martial, also placed Mr. Spindle at the scene of the crime on the night
of the murder. In light of this testimony, we do not believe counsel for Mr.
Spindle was ineffective in adopting a strategy that placed Mr. Spindle at the scene
of the crime.
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Finally, Mr. Spindle contends his counsel was ineffective because he failed
to object to testimony concerning threats Mr. Spindle allegedly made to his ex-
wife and another soldier. Assuming without deciding that defense counsel was
deficient in failing to object to this testimony, we do not believe Mr. Spindle can
establish he was prejudiced by this testimony. In light of the entire testimony at
the court-martial, we conclude it is very unlikely Mr. Spindle would have been
acquitted in the absence of the testimony concerning the alleged threats. We
therefore find Mr. Spindle is not entitled to habeas relief for his ineffective
assistance of counsel claim.
Fourth, Mr. Spindle contends he should receive habeas relief because he
was not provided proper warnings, as required by Miranda v. Arizona, 384 U.S.
436 (1966) and Article 31(d) of the Uniform Code of Military Justice, before he
made inculpatory statements to the military investigators. At his court-martial,
Mr. Spindle argued his statements to the military investigators were not voluntary,
and he moved to suppress these statements. After hearing evidence and
arguments on the motion to suppress, the military judge concluded Mr. Spindle's
statements were voluntary and made following proper warnings. Although Mr.
Spindle failed to challenge the military judge's ruling on direct appeal, he did
argue that his statements were made without receiving proper warnings in his
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subsequent petition for a military writ of habeas corpus. However, the military
court of criminal appeals denied his petition.
As determined by the district court in its order denying Mr. Spindle's
habeas petition, we believe the military courts have given full and fair
consideration to Mr. Spindle's claim that he did not receive proper warnings
before making inculpatory statements. Because Mr. Spindle has made no showing
that the military courts employed improper legal standards or committed errors of
constitutional magnitude with respect to this claim, we conclude no further
consideration is warranted.
Finally, Mr. Spindle contends the district court should have granted him
habeas relief because he was improperly convicted by a two-thirds vote and
because the military judge failed to properly instruct the jury that a three-fourths
vote is required to sentence a defendant to life imprisonment. The Uniform Code
of Military Justice provides, in pertinent part, "[n]o person may be convicted of
any [crime for which the death penalty is not mandatory], except ... by the
concurrence of two-thirds of the members present at the time the vote is taken."
10 U.S.C. § 852(a)(2) (1994). We have previously held that this two-thirds voting
requirement satisfies the requirements of due process. Mendrano v. Smith, 797
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F.2d 1538, 1544-47 (10th Cir. 1986). In the present case, Mr. Spindle was
convicted of crimes for which the death penalty was not mandatory.
Consequently, his conviction on the basis of two-thirds vote was not improper.
Once the court members determine a defendant is guilty, the members must
deliberate on the sentence. 10 U.S.C. § 852(b)(2) provides "[n]o person may be
sentenced to life imprisonment or to confinement for more than ten years, except
by the concurrence of three-fourths of the members present at the time the vote is
taken." At Mr. Spindle's court-martial, the court members were instructed that in
determining Mr. Spindle's sentence, "[they] will ... vote on secret written ballot
on each proposed sentence in its entirety beginning with the least severe until a
sentence is adopted by the required concurrence of three-fourths of the members,
that is seven -- excuse me six of the seven members now present." Thus, contrary
to Mr. Spindle's contentions, it is clear the court properly instructed the court
members that a three-fourths vote was required to sentence Mr. Spindle.
Based upon the foregoing reasons, we conclude Mr. Spindle is not entitled
to habeas corpus relief. Hence, we AFFIRM the district court's denial and
dismissal of Mr. Spindle's petition for a writ of habeas corpus. However, having
recently held that habeas proceedings under 28 U.S.C. § 2241 are not "civil
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actions" subject to the filing fee provisions of the Prison Litigation Reform Act,
28 U.S.C. § 1915(a)(2) and (b), McIntosh v. United States Parole Comm'n, 115
F.3d 809, 812 (10th Cir. 1997), we REMAND to the district court with
instructions to vacate its order assessing Mr. Spindle docket fees.
Entered for the Court
WADE BRORBY
United States Circuit Judge
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