White v. Lansing, 10th Cir. (2001)
White v. Lansing, 10th Cir. (2001)
White v. Lansing, 10th Cir. (2001)
MAR 8 2001
PATRICK FISHER
Clerk
JOHN C. WHITE,
Petitioner-Appellant,
v.
MICHAEL A. LANSING, Warden,
United States Disciplinary Barracks,
Leavenworth,
No. 00-3247
(D.C. No. 99-CV-3162-RDR)
(D. Kan.)
Respondent-Appellee.
ORDER AND JUDGMENT
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal.
This order and judgment is not binding precedent, except under the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 10th Cir. R. 36.3.
John C. White, pro se, appeals from the dismissal with prejudice of his
petition for habeas corpus filed pursuant to 28 U.S.C. 2241. Mr. White was
convicted for murder of his infant daughter, aggravated assault, assault
consummated by battery on a child, and three specifications of malicious torture
of his dog and cat by a general court martial. On appeal to the Air Force Court of
Criminal Appeals (AFCCA), Mr. White raised the same issues that later formed
the basis of this habeas petition.
United States v.
White , No. ACM 31474 (F REV), 1997 WL 643590, at *2, (A.F. Ct. Crim. App.
Oct. 1, 1997) [hereinafter
(C.A.A.F. 1997); White II , 1997 WL 643590, at *2 . Mr. White then filed this
petition for habeas corpus, raising six basic grounds of alleged error.
The district court dismissed the petition under
States Disciplinary Barracks , 997 F.2d 808, 811 (10th Cir. 1993), and
Watson v.
McCotter , 782 F.2d 143, 145 (10th Cir. 1986), correctly noting that when a
-2-
military court decision has already dealt fully and fairly with an issue on appeal
that is later raised in a habeas petition, the habeas court may not reach the merits
and must deny the petition. R. Doc. 22, at 2. We have fully reviewed the record
and conclude that the four grounds raised both on direct appeal and in the habeas
petition undoubtedly were fully and fairly considered by the AFCCA while
applying correct legal standards.
See R. Doc.
20, at 1-7. They are (1) whether the multiple charging of his one act of shaking
his baby to death creates the impression that he is a bad person and (2) whether
the specification of Charge I failed to include required elements.
White II ,
See
not discuss any alleged failure to include required elements in the murder charge;
the error alleged and addressed on direct appeal was the legal and factual
sufficiency of evidence of intent.
It is clear that the AFCCA held that Mr. White procedurally defaulted
direct review of these two issues.
Consequently, in order to obtain habeas review of these two claims, Mr. White
must show both cause excusing the procedural default and actual prejudice
resulting from the error.
Lips , nothing in the record before us indicates that there was any excuse for
either of these procedural defaults, and hence the cause and actual prejudice
standard was not met.
Id.
AFFIRMED .
Entered for the Court