F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
December 12, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JAM ES SHERRILL,
Petitioner-A ppellant, No. 06-3208
v. District of Kansas
CO M M AN DA NT, USDB; CO LLEEN (D.C. No. 02-CV-3368-RDR)
L. M CG UIRE,
Respondents-Appellees.
OR D ER AND JUDGM ENT *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
James Sherrill, a prisoner in military custody, appeals from the district
court’s denial of his Rule 60(b) motion to reopen his habeas corpus action.
Finding no merit to his argument that Brown v. Sanders, 126 S. Ct. 884 (2006),
calls his sentence into question, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore 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 This order and judgment is not
binding precedent except under the doctrines of law of the case, res judicata and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1,
2007).
BACKGROUND
A general court martial convicted M r. Sherrill of absence without leave,
indecent acts upon a minor, two specifications of indecent liberties upon a minor,
desertion, and disorderly conduct. For these crimes, M r. Sherrill received a
sentence of dishonorable discharge and twelve years incarceration. On appeal,
the Army Court of Criminal Appeals (“ACCA”) dismissed a finding of indecent
liberties on a minor but affirmed the remaining findings and sentence.
M r. Sherrill filed a petition for habeas corpus in 2002. The district court
denied the petition and this Court affirmed. Sherrill v. Commandant, USDB, 118
F.App’x. 384 (10th Cir. 2004). Following the Supreme Court’s denial of M r.
Sherrill’s petition for certiorari, 544 U.S. 936 (2005), M r. Sherrill filed a motion
under Fed. R. Civ. P. 60(b) in the district court, seeking to reopen his habeas
action and claiming that under Brown v. Sanders, 126 S. Ct. 884 (2006), his
sentence was unconstitutional because it was based on an invalidated sentencing
factor. The court denied the motion, noting that Brown provides “little support”
for M r. Sherrill’s argument and also that the same issue was considered and
denied in the original habeas proceeding. 2 R. Vol. I, Doc. 45, at 2–3.
M r. Sherrill timely appealed.
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The district court also found moot M r. Sherrill’s request for a stay and
abeyance pending his transfer between correctional facilities. M r. Sherrill does
not argue that this ruling was in error.
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D ISC USSIO N
“A district court has discretion to grant relief as justice requires under Rule
60(b), yet such relief is extraordinary and may only be granted in exceptional
circumstances.” Servants of Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir.
2000) (internal quotations marks omitted). W e review a district court’s denial of
a Rule 60(b) motion for abuse of discretion. Id.
In Brown, the Supreme Court announced a new rule for evaluating the
effect of the invalidation of sentencing factors in capital cases. The Court held
that
[a]n invalidated sentencing factor (whether an eligibility factor or
not) will render the sentence unconstitutional by reason of its adding
an improper element to the aggravation scale in the weighing process
unless one of the other sentencing factors enables the sentencer to
give aggravating weight to the same facts and circumstances.
Brown, 126 S. Ct. at 892. M r. Sherrill, reasoning from Brown, argues that
because the ACCA dismissed a finding of indecent liberties upon a minor, his
sentence— which issued before that dismissal— was based upon an invalidated
sentencing factor. He also argues that Brown ushered in a new standard of review
for claims such as his, and that the A CCA’s review of his sentence w as therefore
invalid.
W e agree with the district court that Brown lends little support to M r.
Sherrill’s argument. Brown concerned the specific jurisprudence surrounding
capital sentencing, and absent guidance from the Supreme Court, we will not
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expand its holding beyond that realm. Accordingly, M r. Sherrill’s claim is
unchanged from the general objection to the ACCA’s reassessment of his sentence
that both the district court and this Court considered and rejected when reviewing
his habeas petition. W e held that “[i]f the military courts have fully and fairly
reviewed Sherrill’s claims, we cannot review them.” Sherrill, 118 F.App’x. at
385 (citing Roberts v. Callahan, 321 F.3d 994, 995 (10th Cir. 2003)). W e found
that the military courts had, in fact, “fully and fairly considered Sherrill’s claims
that he w as denied due process in reassessing his sentence,” and thus held we
could not review the claim. Id. at 386. W e stand by that ruling and thus must
affirm the denial of M r. Sherrill’s Rule 60(b) motion.
C ON CLU SIO N
The judgment of the U nited States District Court for the D istrict of K ansas
is AFFIRM ED.
Entered for the Court,
M ichael W . M cConnell
Circuit Judge
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