FILED
United States Court of Appeals
Tenth Circuit
December 11, 2007
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
MICHAEL W. FRICKE,
Petitioner-Appellant,
v. No. 06-3240
SECRETARY OF THE NAVY;
COMMANDANT, United States
Disciplinary Barracks, Ft.
Leavenworth, Kansas,
Respondents-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 03-CV-3412-RDR)
Terence A. Lober (Thomas M. Dawson on the briefs), Leavenworth, Kansas, for
Petitioner-Appellant.
Major Anthony C. Williams, Department of Navy, Office of Judge Advocate
General, District of Columbia (Eric F. Melgren, United States Attorney, and
Jackie A. Rapstine, Assistant United States Attorney, Topeka, Kansas, on the
briefs), for Respondents-Appellees.
Before HARTZ, McKAY, and TYMKOVICH, Circuit Judges.
McKAY, Circuit Judge.
Petitioner is a military prisoner who was convicted in a court-martial
proceeding of committing the premeditated murder of his wife in violation of
Article 118(1) of the Uniform Code of Military Justice, 10 U.S.C. § 918(1). He
filed a petition in the district court seeking habeas relief under 28 U.S.C. § 2241
and mandamus relief 1 under 28 U.S.C. § 1361, contending that the military lacked
jurisdiction over him at the time of his court-martial. The district court denied
his application for habeas corpus and mandamus relief, and this appeal followed.
Petitioner was commissioned an officer in the United States Navy on April
22, 1978. In 1992 and again in the spring of 1993, he was considered and not
selected for promotion. As a twice passed-over officer, Petitioner fell within the
involuntary separation provision of 10 U.S.C. § 632, and he was informed that he
would receive an involuntary discharge unless he requested retirement or was
selected for and accepted continuation on active duty. Because he did not request
retirement and refused to accept continuation, Petitioner claims that he should
have been discharged on December 1, 1993. However, on December 1, 1993,
Petitioner had been in military custody for almost three months, having been
taken into pre-trial confinement on October 8, 1993. No action was taken to
discharge Petitioner from the Navy. Instead, a general court martial was
1
Specifically, Petitioner sought an order requiring military authorities to
change his service record to show that he was involuntarily and honorably
separated from the service on December 1, 1993, to expunge his military
conviction, and to restore all rights.
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convened against Petitioner on February 9, 1994. Petitioner subsequently pled
guilty and was convicted of violating Article 118(1).
On May 7, 2003, Petitioner submitted a writ of error coram nobis to the
Court of Appeals for the Armed Forces (CAAF), arguing that “the general court-
martial lacked jurisdiction over him because Petitioner was statutorily required to
be separated from the U.S. Navy at the time of court-martial.” (Petition for
Extraordinary Relief at 2, Appellees’ App. at 75.) In response, the court issued a
one-page order stating that “[o]n consideration of the petition for extraordinary
relief in the nature of a writ of error coram nobis,” the petition was denied.
(Order at 1, Appellant’s App. at 142.)
Plaintiff then filed the instant petition in the district court, again arguing
that the general court-martial lacked jurisdiction over him because he should have
been separated from the Navy pursuant to § 632. In response, Respondents
argued, inter alia, that the district court should not review this claim because the
military courts had given full and fair consideration to the claim. The district
court agreed and held that relief should be denied on this ground. The court also
concluded that Petitioner was not entitled to relief on the merits of his claim
because he had not actually been discharged from military service and, moreover,
because 10 U.S.C. § 639 provides that an officer may be continued on active duty
when an action has been commenced against him with the view of trying him by
court-martial. The court therefore denied Petitioner’s request for habeas and
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mandamus relief.
We review the district court’s denial of habeas relief de novo. Monk v.
Zelez, 901 F.2d 885, 888 (10th Cir. 1990). We also review de novo the district
court’s legal determination that the conditions for issuing a writ of mandamus
were not satisfied. Marquez-Ramos v. Reno, 69 F.3d 477, 479 (10th Cir. 1995).
However, the scope of our review of the court-martial proceeding itself is the
subject of some debate. Respondents assert that the CAAF gave full and fair
consideration to Petitioner’s jurisdictional claim and therefore that we should not
reach the merits of the issue; Petitioner contends that the CAAF’s summary
disposition of his writ does not constitute full and fair consideration. We
conclude that both parties’ arguments are based on an incorrect reading of our
cases.
“[C]ourts-martial are tribunals of special and limited jurisdiction whose
judgments, so far as questions relating to their jurisdiction are concerned, are
always open to collateral attack.” Givens v. Zerbst, 255 U.S. 11, 19 (1921).
Traditionally, civil review of court-martial proceedings was limited to the
question of jurisdiction. See United States v. Grimley, 137 U.S. 147, 150 (1890)
(“The single inquiry, the test, is jurisdiction.”). In Burns v. Wilson, 346 U.S. 137,
142 (1953), the Supreme Court extended the scope of civil review of court-martial
proceedings, holding that civil courts could consider constitutional claims
regarding such proceedings if the military courts had not “dealt fully and fairly”
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with such claims.
After Burns, we held that the Court had not changed preexisting law on the
scope of our review of jurisdictional issues. See King v. Moseley, 430 F.2d 732,
734 (10th Cir. 1970) (“In Burns v. Wilson, the Court enunciated the rule that the
limited function of the civil courts in reviewing a military conviction on a petition
for a writ of habeas corpus, in addition to the jurisdictional issues under the prior
rule, is to determine whether the military gave fair consideration to each of the
petitioner’s constitutional claims.”) (citation omitted); see also Monk, 901 F.2d at
888 (“In this circuit, we have interpreted this language to limit our review of
military convictions generally to jurisdictional issues and to determination of
whether the military gave fair consideration to each of the petitioner’s
constitutional claims.”). However, subsequent cases in which only constitutional
claims were raised have led to broad statements to the effect that any claim that
has received full and fair consideration by the military courts is beyond the scope
of federal review. See, e.g., Lips v. Commandant, U.S. Disciplinary Barracks,
997 F.2d 808, 811 (10th Cir. 1993) (stating, in a case challenging evidentiary
rulings and prosecutorial statements, that “if the military gave full and fair
consideration to claims asserted in a federal habeas corpus petition, the petition
should be denied”). By ignoring the separate basis for civil review of
jurisdictional issues, these cases have generated confusion regarding whether the
Burns standard applies to jurisdictional claims as well. We now reiterate that our
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review of military convictions is limited “generally to jurisdictional issues and to
determination of whether the military gave fair consideration to each of the
petitioner’s constitutional claims,” Monk, 901 F.2d at 888 (emphasis added), and
we clarify that our review of jurisdictional issues is independent of the military
courts’ consideration of such issues.
Accordingly, we now turn to the merits of Petitioner’s jurisdictional claim.
Petitioner does not contend that any discharge paperwork or processing had been
initiated or completed prior to his court martial. Rather, he argues that because
he should have been discharged from the service on December 1, 1993, the
general court martial convened on February 9, 1994, lacked jurisdiction over him.
We disagree.
“[A]ll servicemen, ‘including those awaiting discharge after expiration of
their terms of enlistment’ are subject to the Code of Military Justice.” Desjardins
v. Department of Navy, 815 F. Supp. 96, 98 (E.D.N.Y. 1993) (quoting 10 U.S.C. §
802(a)(1)). By statute, “[a] member of an armed force may not be discharged or
released from active duty until his discharge certificate or certificate of release
from active duty, respectively, and his final pay or a substantial part of that pay,
are ready for delivery to him or his next of kin or legal representative.” 10
U.S.C. § 1168(a). In Dickenson v. Davis, 245 F.2d 317, 319 (10th Cir. 1957), we
rejected as “ingenious but unsound” a military prisoner’s argument that he had
regained civilian status as a matter of law and was therefore not subject to
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military discipline because his enlistment term had expired and the Army had
failed to act upon his formal request for discharge. We are likewise unconvinced
by Petitioner’s argument that § 632 causes an officer to regain civilian status as a
matter of law if the officer has not sought retirement or accepted continuation on
active duty. Nothing in § 632 provides that officers falling under this section will
be automatically discharged, nor does § 632 provide that discharge under this
section need not comply with the dictates of § 1168.
Whether Respondents should have discharged Petitioner or not, the fact
remains that Petitioner was not discharged. See Dickenson, 245 F.2d at 319
(“Service in the military, whether by enlistment or otherwise, creates a status
which is not and cannot be severed by breach of contract unfortified by a proper
authoritative action.”). Because he was not discharged, Petitioner remained in
military service and was subject to the Uniform Code of Military Justice. We
therefore hold that the military had jurisdiction to try and convict Petitioner. See
Solorio v. United States, 483 U.S. 435, 450-51 (1987). Accordingly, we affirm
the district court’s denial of habeas and mandamus relief. Because we affirm the
district court on this ground, we need not consider whether § 639 also provided a
basis for court-martial jurisdiction over Petitioner.
AFFIRMED.
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