F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 7 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
CHARLES EVANS,
Petitioner - Appellant,
No. 00-3127
v.
(D.C. No. 00-CV-3115)
(District of Kansas)
MICHAEL LANSING,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before BALDOCK, HENRY and LUCERO, Circuit Judges.
Charles Evans, appearing pro se, appeals from the district court’s dismissal
without prejudice of his habeas petition pending exhaustion of remedies available
in the military courts. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we
affirm.
Evans filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in
United States District Court for the District of Kansas, alleging numerous
*
The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
constitutional violations arising out of his conviction by military court martial in
March 1998. The district court dismissed his petition without prejudice pending
resolution of his direct appeal before the Navy Marine Corps Court of Criminal
Appeals.
The Supreme Court has stated unequivocally that
implicit in the congressional scheme embodied in the [Uniform] Code [of
Military Justice] is the view that the military court system generally is
adequate to and responsibly will perform its assigned task. . . . [T]his
congressional judgment must be respected and . . . it must be assumed that
the military court system will vindicate servicemen’s constitutional rights.
We have recognized this, as well as the practical considerations common to
all exhaustion requirements, in holding that federal courts normally will not
entertain habeas petitions by military prisoners unless all available military
remedies have been exhausted.
Schlesinger v. Councilman, 420 U.S. 738, 758 (1975) (citing Gusik v. Schilder,
340 U.S. 128, 131-32 (1950); Noyd v. Bond, 395 U.S. 683, 693-94 (1969))
(emphasis added); see also Khan v. Hart, 943 F.2d 1261, 1263 (10th Cir. 1991).
Where a prisoner has failed to raise a claim in the military courts, a federal court
will not review the claim unless the prisoner establishes cause and prejudice for
failing to raise the error. See Lips v. Commandant, United States Disciplinary
Barracks, 997 F.2d 808, 812 (10th Cir. 1993). Based on the record before us,
Evans’s conclusory allegation that exhaustion would be futile does not persuade
us to depart from the general rule requiring exhaustion established in Schlesinger.
Nor is this a case in which a conscientious objector or a civilian, for example, was
-2-
improperly subjected to military court martial, meriting a departure from the
exhaustion requirement. See Parisi v. Davidson, 405 U.S. 34, 42 (1972)
(conscientious objector subjected to court martial); Noyd, 395 U.S. at 696 n.8
(discussing United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955); Reid v.
Covert, 354 U.S. 1 (1957); McElroy v. United States ex rel. Guagliardo, 361 U.S.
281 (1960)) (civilians subjected to courts martial). Absent “harm other than that
attendant to the resolution of his case” within the military system, the district
court correctly dismissed Evans’s petition without prejudice, and no legal
impediment stands in the way of his bringing a § 2241 petition after “all available
military remedies have been exhausted.” Schlesinger, 420 U.S. at 758 (internal
quotations and citations omitted).
The judgment of the district court is AFFIRMED.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
-3-