OpenJurist

48 F3d 1232 Johnson v. A Lowe

Nathaniel JOHNSON, Jr., Petitioner-Appellant,
v.
Colonel Gregory A. LOWE, Respondent-Appellee.

No. 94-3242.
(D.C. No. 92-CV-3362)

United States Court of Appeals, Tenth Circuit.

Feb. 23, 1995.

48 F.3d 1232
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

ORDER AND JUDGMENT1 Before TACHA, BRORBY and
EBEL, Circuit Judges.

DEANELL REECE TACHA, Circuit Judge.

1

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.

2

This appeal is from an order of the district court dismissing and denying all relief on petitioner's petition for a writ of habeas corpus. Petitioner argues on appeal that the district court erred in applying military law to his case and in finding that the petitioner is entitled to no relief on his claims related to the fact-finding and voting procedures in the court-martial proceedings. We affirm.

3

The issues that were raised by petitioner in his petition to the United States District Court were given full and fair consideration by the military courts in the court-martial proceedings. The other issues that petitioner raises were not raised before the military court and are therefore waived. Pro se petitioner argues that the standards applied to military appeals should not be applied to him because he is no longer in the armed services. That argument fails because petitioner is an inmate at the United States Disciplinary Barracks at Fort Leavenworth, Kansas, and was convicted under the appropriate court-martial procedures which were then reviewed by the United States Army Court of Military Appeals and by the United States Court of Military Appeals. We therefore AFFIRM the district court's dismissal of the petition for habeas corpus and deny all relief for substantially the reasons given by the district court.

4

We GRANT in forma pauperis status, GRANT the certificate of probable cause and AFFIRM the dismissal by the district court for substantially the reasons stated by the district court. The mandate shall issue forthwith.

1

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 the court's General Order filed November 29, 1993. 151 F.R.D. 470