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Christopher J. Gurry v. Christine Butera-Ortiz


August 9, 2012


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

United States District Court For the Northern District of California



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



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


(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 cases." Id. (citing Hiatt v. Brown, 339 U.S. 10

Specifically, collateral relief from a court-martial judgment is only available when (1) petitioner asserts the judgment is void for a "lack of jurisdiction or other equally fundamental defect," 13

Schlesinger v. Councilman, 420 U.S. 738, 746-47 (1975), and (2) his or her arguments have not 14 already been "fully and fairly considered" by the military courts. See Burns v. Wilson, 346 U.S. 137 15

(1953). The Ninth Circuit has consistently applied the "full and fair consideration" standard to deny 16 habeas relief to petitioners convicted by court-martial. See Gibbs v. Thomas, 466 F. App'x 646 (9th 17

Cir. 2012)("[T]he district court properly denied habeas relief because both [military courts] fully 18 and fairly considered those claims."); Broussard v. Patton, 466 F.2d 816, 818 (9th Cir. 1972); see 19 generally Daigle v. Wright, 490 F.2d 358, 366 (9th Cir. 1974) (remanding a habeas petition 20 claiming a deprivation of fundamental due process so that district court could apply the "fully and 21 fairly" considered test); Sunday v. Madigan, 301 F.2d 871, 873 (9th Cir. 1962) ("[O]nce it has been 22 concluded by the civil courts that the military had jurisdiction and dealt fully and fairly with all such 23 claims, it is not open to such courts to grant the writ simply to re-evaluate the evidence."). 24

25 claims. Rather, he argues that because his claims present important constitutional issues, the 26 preliminary "full and fair" determination is unwarranted, invoking the Ninth Circuit's decision in 27 28

103 (1950), and emphasizing the "peculiar relationship between the civil and military law").

Here, Gurry does not allege that the military courts failed fully or fairly to consider his Hatheway v. Sec'y of Army, 641 F.2d 1376 (9th Cir. 1981), for support. Petitioner's reliance on 2

In Hatheway, after being convicted of sodomy by a general court-martial and dismissed from

4 service, plaintiff Joseph Hatheway filed suit in district court seeking a declaration that his conviction 5 was invalid because it was a result of selective prosecution and an unconstitutional provision of the 6

Hatheway, however, is inapposite as that was a non-habeas case arising under distinguishable facts. 3

Uniform Code of Military Justice. The district court dismissed the action at the summary judgment 7 stage and plaintiff appealed. The Ninth Circuit upheld the lower court's ruling, explaining that the 8 military court neither violated Hatheway's constitutional rights nor applied an unconstitutional 9 provision to convict him. In so holding, the Court discussed the standards for habeas review of 10 military proceedings, concluding that the "Burns plurality does not preclude civil court consideration of the constitutional defects alleged here." Id. at 1380 (citing Parker v. Levy, 417 U.S.

733 (1974)*fn2 ). Those alleged "defects," as the Court's reasoning reflects, pertained to Hatheway's 13 constitutional challenge to the military provision under which he was charged. The Ninth Circuit 14 thereby explicitly restricted its holding to the narrow proposition that, despite the delicate balance 15 between military and civil law, Burns permits review by district courts in non-habeas cases limited 16 to the overall constitutionality of a military provision. Such review flows from the obligation of 17 federal civil courts to interpret the Constitution and does not thereby implicate uniquely military 18 matters. Cf. Parker v. Levy, 417 U.S. 733, 758 (1974). 19

Importantly, the direct review permitted by HathewayÂ’s limited holding is quite distinct from the collateral review sought by Gurry.*fn3 Gurry's claims relate not to the constitutionality of a 21

military provision, but rather to specific errors purportedly committed during his military trial. His 2 requested review is therefore much more invasive as it would require analysis of military court 3 procedure. Accordingly, to warrant the exercise of jurisdiction over Gurry's habeas claims, he must 4 make the threshold showing that he was deprived of "full and fair" consideration in the military 5 court system; in particular the proceedings before the AFCCA and the USCAAF. 6

7 significant allegation," "scrutinize[] the trial records," and "accord[ petitioners] a complete 8 opportunity to establish the authenticity of their" claims. Burns, 346 U.S. at 145. Here, the military 9 courts adequately considered all six of Gurry's "assignments of error": (1) whether appellant 10 received ineffective assistance of counsel when he was not advised by his defense attorneys that he

could present rebuttal testimony; (2) whether appellant was denied due process and the right to

present a defense when he was not advised that he could testify; (3) whether the court-martial had 13 jurisdiction; (4) whether the evidence as to specification two of the charge was sufficient; (5) 14 whether the evidence as to specification four of the charge was sufficient; and (6) whether 15 specification four failed to state an offense. The record reflects that those military courts reviewed 16 the background facts, studied the trial records, and determined that Gurry's claims, specifically 17 those asserting constitutional violations and a lack of jurisdiction, were without merit. United States 18 v. Gurry, ACM 37145, 2009 WL 1508371 (A.F. Ct. Crim. App. May 20, 2009); see generally 19 Burns, 346 U.S. at 143 ("[Civil courts should not] re-examine and reweigh each item of evidence of 20 the occurrence of events which tend to prove or disprove one of the allegations in the applications 21 for habeas corpus."); Broussard, 466 F.2d at 819 ("The Court of Military Appeals thoroughly 22

To meet this full and fair standard, the military courts must "hear[] petitioners out on every considered the relevant law and facts."). Accordingly, because both the AFCCA and USCAAF 2 fully and fairly considered petitioner's constitutional claims, this Court lacks subject matter 3 jurisdiction to review them further.*fn4 See Burns, 346 U.S. at 144-45 ("[T]he military courts have 4 heard petitioners out on every significant allegation which they now urge [and, a]ccordingly, it is 5 not the duty of the civil courts simply to repeat that process."); Gibbs, 466 F. App'x at 646. Gurry's 6 petition must therefore be dismissed. 7


Respondent's motion to dismiss for lack of jurisdiction is granted.


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