FILED
United States Court of Appeals
Tenth Circuit
September 1, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
DANIEL ISAIAH TAYLOR,
Petitioner - Appellant, No. 09-3083
v. (D. Kansas)
MARK S. INCH, Commandant, (D.C. No. 5:07-CV-03238-RDR)
USDB-Ft. Leavenworth,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.
Daniel Isaiah Taylor is a military prisoner serving a 30-year sentence for
unpremeditated murder in the United States Disciplinary Barracks at
Ft. Leavenworth, Kansas. He filed a pro se petition for a writ of habeas corpus
under 28 U.S.C. § 2241 in the United States District Court for the District of
*
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)(2); 10th Cir. R. 34.1(G). 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not binding precedent except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Kansas. The court dismissed the petition and denied relief. We affirm the district
court.
I. BACKGROUND
In the early morning hours of November 23, 2003, after a night of drinking,
Mr. Taylor had an argument with fellow soldier Brandon Gallegos and shot him to
death. On January 7, 2004, Mr. Taylor was charged with premeditated murder. A
general court-martial was convened at Fort Lewis, Washington. Mr. Taylor was
represented by appointed military counsel as well as by privately retained
counsel.
Mr. Taylor’s defense team retained Dr. David D. Moore to conduct a
psychological and substance-abuse evaluation of Mr. Taylor before trial.
Dr. Moore interviewed Mr. Taylor on March 6 and issued a report summarizing
his findings and conclusions on April 12. Dr. Moore concluded that at the time of
the incident (1) Mr. Taylor suffered from a “mental disease and defects” that
prevented him from “form[ing] the requisite specific intent and mens rea included
in the charges,” R., Vol. 1 at 187–88, (2) Mr. Taylor’s intoxication “could not be
considered voluntary” because of his “preceding relapse into active alcoholism
due to the contributing acute symptoms of ADHD,” id. at 188, and (3) Mr. Taylor
“by reason of involuntary intoxication and related behavioral health problems . . .
lacked culpability for the crime charged,” id.
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Dr. Moore informed Mr. Taylor’s defense team of his conclusions on
March 14, 2004, before completing the April 12 report. On March 17 the defense
team filed a notice with the court-martial informing it of Dr. Moore’s conclusion
that Mr. Taylor lacked mental responsibility for the crime charged. As a result,
the presiding military judge ordered an inquiry into Mr. Taylor’s mental capacity
and responsibility under Rule for Courts-Martial 706. A sanity board, consisting
of one psychiatrist and one psychologist, was convened to evaluate Mr. Taylor.
On April 5 the board concluded that at the time of the incident Mr. Taylor did not
suffer from “a severe mental disease or defect” and that he was not “unable to
appreciate the nature and quality or wrongfulness of his conduct.” Id. at 93.
On March 25 Mr. Taylor entered into an agreement under which he would
plead guilty to the lesser-included charge of unpremeditated murder. On the same
date, he signed a stipulation of facts regarding the incident; and on April 14 he
pleaded guilty to unpremeditated murder. Before accepting his plea, the military
judge engaged him in a lengthy discussion. The judge explained the elements of
the offense to which he had pleaded guilty and asked him to describe the facts
surrounding the incident. The judge asked several questions to determine
Mr. Taylor’s mental state at the moment he shot Gallegos. Mr. Taylor answered
affirmatively the judge’s question: “[D]id you acquire the intent to inflict great
bodily harm upon Specialist Gallegos?” Id. at 74. The judge also discussed with
Mr. Taylor the potential applicability of the affirmative defenses of self-defense
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and heat of passion. The judge accepted Mr. Taylor’s plea and sentenced him to a
reduction in rank, a forfeiture of all pay and allowances, a dishonorable
discharge, and 65 years’ confinement. On June 25, 2004, the convening authority
disapproved confinement exceeding 30 years but approved the remainder of the
sentence.
Mr. Taylor’s case was forwarded to the Army Court of Criminal Appeals
(ACCA) for mandatory review. Instead of pursuing his appeal before the ACCA,
however, Mr. Taylor filed with the ACCA a Petition for a Writ of Extraordinary
Relief in the Nature of a Writ of Habeas Corpus. The petition raised two issues:
(1) that Mr. Taylor had received ineffective assistance of counsel because his
defense team had failed, after repeated requests, to provide him with a copy of
Dr. Moore’s report; and (2) that he had received ineffective assistance of counsel
because his defense team had failed to present Dr. Moore’s conclusions to the
court-martial. On September 29, 2004, the ACCA denied Mr. Taylor’s petition,
stating: “On consideration of the Petition for Extraordinary Relief in the Nature
of a Writ of Habeas Corpus filed by Petitioner pro se in the above cause on 29
September 2004, the Petition is DENIED.” Id. at 120. The court provided no
further discussion or reasoning.
Mr. Taylor appealed the denial of his petition to the Court of Appeals for
the Armed Forces (CAAF). He contended (1) that the ACCA had erred by
denying his petition, and (2) that he had received ineffective assistance of
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appellate counsel because his appellate counsel had refused to move for a new
trial or to provide assistance with his petition. On December 20, 2004, the CAAF
remanded Mr. Taylor’s appeal to the ACCA to determine whether Mr. Taylor was
seeking to sever the attorney-client relationship. On March 9, 2005, the CAAF
dismissed Mr. Taylor’s pro se appeal because he was represented by counsel. On
April 25 the ACCA issued an order granting Mr. Taylor’s request to withdraw his
case from the automatic-review process.
On April 27 Mr. Taylor filed a Petition for a Writ of Mandamus or in the
Alternative a Writ of Prohibition in federal district court, requesting an order to
compel the Army to appoint a military lawyer to represent him in the review of
his conviction by the Office of the Army Judge Advocate General (JAG). The
district court denied the petition.
On June 21 Mr. Taylor filed an Application for Relief from Court-Martial
Findings And/Or Sentence with the Office of the Army Judge Advocate General
(JAG). He contended (1) that the judge had failed to explain the defenses of
voluntary intoxication 1 and lack of mental responsibility to him after his
statements at the plea hearing established the elements of those defenses, (2) that
he had not been aware of Dr. Moore’s conclusions before he pleaded guilty, and
1
In a later filing before the district court Mr. Taylor contended that the term
voluntary intoxication in this petition was a typographical error, and that he
meant to state that the judge had failed to resolve the defense of involuntary
intoxication.
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(3) that he had received ineffective assistance of counsel because his defense
team failed to inform him of Dr. Moore’s conclusions and discuss with him a
defense of lack of mental responsibility. On November 30, 2005, Mr. Taylor
received a letter from Charles A. Cosgrove, General Attorney, Criminal Law
Division of JAG, which stated:
Pursuant to a delegation of authority from The Judge Advocate
General, I completed action on your Application for Relief pursuant
to Article 69(b) of the Uniform Code of Military Justice on
November 30, 2005. After thoroughly reviewing the record and
considering all arguments raised in your request, I determined that
the findings are correct in law and fact.
Id. at 190. Attached was a document labeled “Action Pursuant to Article 69(b)
Uniform Code of Military Justice,” id. at 191. Signed by Cosgrove “FOR THE
JUDGE ADVOCATE GENERAL,” it stated:
In the general court-martial case of United States v Private First
Class Daniel I. Taylor, . . . the accused’s Application for Relief
pursuant to Article 69(b), Uniform Code of Military Justice, the
record of trial, the entirety of the Application for Relief, specifically
to include the assignments of error, and all relevant documentation
have been carefully reviewed.
I find that the applicant has not established a proper and specific
basis for relief under one or more of the enumerated statutory
grounds. Accordingly, the Application for Relief is denied.
Id.
On June 20, 2006, Mr. Taylor filed with the CAAF a petition for
extraordinary relief in the nature of a writ of habeas corpus. The record does not
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show what issues Mr. Taylor raised in this petition. Ten days later the CAAF
entered an order stating:
Notice is hereby given that a petition for extraordinary relief in
the nature of a writ of mandamus or a writ of habeas corpus was filed
under Rule 27(a) on June 20, 2006, and placed on the docket this
30th day of June, 2006. On consideration thereof, it is, by the Court,
this 30th day of June, 2006,
ORDERED:
The said petition is hereby denied.
Id. at 193. And on July 26 Mr. Taylor filed with the ACCA a Petition for Writ of
Extraordinary Relief challenging the denial by the JAG of his Application for
Relief. He contended (1) that the JAG had erroneously determined that his
conviction and sentence were supported by law, and (2) that he had not received a
full and fair review of his conviction. On August 22, 2006, the ACCA entered an
order stating: “On consideration of the Petition for Writ of Extraordinary Relief
filed in the above cause on 2 August 2006, the Petition is hereby DENIED.” Id.
at 199.
Finally, on September 13, 2007, Mr. Taylor filed his petition for relief
under 28 U.S.C. § 2241 in federal district court. He raised three grounds for
relief: (1) that the military judge had failed to resolve the defenses of involuntary
intoxication and lack of mental responsibility, ignoring his statements at the plea
hearing that he was intoxicated at the time of the offense and not inquiring about
the results of his mental evaluation; (2) that before his plea he had not been fully
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informed of his mental-health status or of the potential defense of lack of mental
responsibility; and (3) that he had received ineffective assistance of counsel
because his defense team had failed to inform him of Dr. Moore’s conclusions
and discuss a possible mental-responsibility defense.
The district court denied Mr. Taylor’s petition. It decided that Mr. Taylor
had raised his claims through his application for relief with the JAG and through
his petition for extraordinary relief with the ACCA, and that he had received a
full and fair review. Accordingly, it dismissed his § 2241 petition.
II. DISCUSSION
Our review of court-martial proceedings is very limited. See Burns v.
Wilson, 346 U.S. 137, 142 (1953).
If the grounds for relief that Petitioner raised in the district court
were fully and fairly reviewed in the military courts, then the district
court was proper in not considering those issues. Likewise, if a
ground for relief was not raised in the military courts, then the
district court must deem that ground waived. The only exception to
the waiver rule is that a petitioner may obtain relief by showing
cause and actual prejudice.
Roberts v. Callahan, 321 F.3d 994, 995 (10th Cir. 2003) (citations omitted).
“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.” Watson v. McCotter, 782
F.2d 143, 145 (10th Cir. 1986); see also Armann v. McKean, 549 F.3d 279,
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292–93 (3rd Cir. 2008) (full and fair review satisfied when military prisoner had
sufficient opportunity to raise claim before court-martial and to argue claim on
appeal to military appellate court, despite summary disposition of claim by
military appellate court). Under this standard Mr. Taylor is not entitled to relief
in federal court.
III. CONCLUSION
We AFFIRM the judgment below.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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