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Christopher J. Gurry v. Christine Butera-Ortiz

August 9, 2012

CHRISTOPHER J. GURRY,
PETITIONER,
v.
CHRISTINE BUTERA-ORTIZ, UNITED STATES PROBATION OFFICER,
RESPONDENT.



The opinion of the court was delivered by: Richard Seeborg United States District Judge

United States District Court For the Northern District of California

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION

I. INTRODUCTION

represented petitioner, Christopher Gurry. Following Gurry's filing of an amended petition, the 22 Court directed respondent to address the issue of subject matter jurisdiction. Respondent now 23 moves for dismissal of the petition, contending the Court lacks jurisdiction to review petitioner's 24 habeas claims already adjudicated by the military courts. For the following reasons, respondent's 25 motion to dismiss for lack of jurisdiction is granted. 26 27 28

This matter arises from a federal habeas corpus action filed pursuant to 28 U.S.C § 2241 by Oklahoma, on four criminal specifications related to indecent acts with, and visual depictions of, a 4 nude minor. At trial, during which petitioner was represented by three attorneys, he chose not to 5 testify. Following the presentation of both the Government and Defense cases, the court-martial 6 members acted within their rights to recall five government witnesses and take further evidence. 7

Court Martial 913(e)(5), "[t]he military judge may, as matter of discretion, permit a party to reopen 9 its case after it has rested." According to Gurry, as a result, he did not seek to testify in rebuttal to 10 the recalled witnesses or additional evidence. The general court-martial subsequently found petitioner guilty of two of the four charged specifications and sentenced him to a dishonorable discharge, four years confinement, reduction to the lowest enlisted grade, and forfeiture of all pay 13 and allowances. 14

("AFCCA") asserting that: (1) he was denied effective assistance of counsel when he was not 16 advised of his right to testify after a material change in the state of the evidence; (2) his due process 17 rights were violated when the military judge failed to advise him of his right to change his election 18 to testify; (3) the court-martial lacked jurisdiction; (4) the evidence was legally and factually 19 insufficient for conviction; and (5) one of the criminal specifications failed to state an offense. After 20 considering his claims, the AFCCA denied relief. Petitioner then filed a Petition for Grant of 21 Review with the United States Court of Appeals for the Armed Forces ("USCAAF") which was also 22 denied. 23

In response to these denials, Gurry filed a federal writ of habeas corpus seeking relief on the 24 basis of ineffective assistance of counsel and due process violations. This writ was subsequently 25 dismissed for lack of jurisdiction with leave to amend. Petitioner chose to amend, filing an 26 amended and second amended petition. The Court thereafter issued an order directing respondent to

ORDER

II. BACKGROUND FACTS*fn1

In June 2007, petitioner was tried by a general court-martial at the Tinker Air Force Base in After this supplementary proceeding, petitioner's counsel did not advise him that under Rule for 8 Gurry appealed the verdict to the United States Air Force Court of Criminal Appeals file a motion to dismiss for lack of jurisdiction or, in the alternative, a notice as to why such a 2 motion was unwarranted. Respondent chose to file a motion to dismiss, maintaining that habeas 3 review is inappropriate because the military courts have already fully and fairly considered 4 petitioner's claims. 5

Federal courts have jurisdiction pursuant to 28 U.S.C. § 2241 to review habeas corpus 7 petitions filed by those challenging military convictions. See Burns v. Wilson, 346 U.S. 137, 139 8

III. DISCUSSION

(1953). Such jurisdiction, however, is limited as "the scope of matters open for review [in military 9 habeas cases] has always been more narrow than in civil ...


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