                                                                             F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                              SEP 27 2002
                              FOR THE TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

    PATRICK M. SMITH,

                  Petitioner - Appellant,

    v.                                                   No. 01-3399
                                                  (D.C. No. 00-CV-3170-RDR)
    (NFN) (NMI) COMMANDANT,                               (D. Kansas)
    United States Disciplinary Barracks,

                  Respondent - Appellee.


                              ORDER AND JUDGMENT          *




Before O’BRIEN and PORFILIO , Circuit Judges, and             KANE , ** Senior District
Judge.



         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      This order and judgment is not binding precedent, except under the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. 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.
**
      The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
      Petitioner Patrick M. Smith, a military prisoner appearing pro se, appeals

from the district court’s order dismissing his 28 U.S.C. § 2241 petition for writ of

habeas corpus. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm.

      After petitioner entered a guilty plea to the charges, a military judge sitting

as a general court-martial convicted petitioner of the kidnaping, rape, and felony

murder of a female child slightly less than three years of age. The military judge

sentenced petitioner to a dishonorable discharge, confinement for life, forfeiture

of all pay and allowances, and reduction to the rank of Private E1, and he

imposed a fine of $100,000. The military judge also included an enforcement

provision for the collection of the fine which provided that, in the event the fine

was not paid by the time petitioner was considered for parole, petitioner would be

further confined for additional fifty years or until the fine is paid, or he dies,

whichever occurs first.

      Petitioner appealed to the United States Army Court of Criminal Appeals

(Army Court), arguing, among other things, that the military judge exceeded his

sentencing authority in imposing the $100,000 fine and the related enforcement

provision, and that the fine was unconstitutional under the Eighth Amendment.

The Army Court concluded that the military judge exceeded his sentencing

authority in imposing the fine enforcement provision, but it affirmed the fine in




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all other respects.   See United States v. Smith , 44 M.J. 720, 722-25 (A. Ct. Crim.

App. 1996).

       Petitioner then filed two petitions for review in the United States Court of

Appeals for the Armed Forces (CAAF), arguing once again, among other things,

that the $100,000 fine was unconstitutional. R., Doc. 9, Attach. 4, at 2-4 and

Attach. 7, at 3-7. After remanding the case to the Army Court on an unrelated

issue, the CAAF summarily affirmed the constitutionality of the fine.      Id. Attach.

6, at 5 and Attach. 8.

       Petitioner then filed a petition for writ of habeas corpus in the Army Court.

In his petition and related filings, petitioner asserted the following claims: (1) the

military judge was statutorily unqualified, and therefore without jurisdiction, to

act as a military judge under 10 U.S.C. § 826(b) because he was not an active

member of a federal bar or the bar of the highest court of a state at the time of the

court-martial; (2) the military judge exceeded his sentencing authority in

imposing the $100,000 fine; (3) petitioner’s guilty plea was coerced and

involuntary and amounted to an     Alford plea; and (4) despite the fact that a referral

letter from the Army Court appointed the Defense Appellate Division, U.S. Army

Legal Services Agency, to represent petitioner in the military habeas proceeding,

petitioner was never contacted by the Defense Appellate Division and he was

deprived of his right to counsel under 10 U.S.C. § 870(c)(2). R., Doc. 9, Attach.


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9, at 3-6 and Attach. 16, at 3-11. After the government filed responses to

separate orders entered by the Army Court directing it to show cause why the

petition should not be granted and to demonstrate why the military judge was

qualified to conduct the court-martial,     id. Attachs. 10, 14, 15, and 17, the Army

Court entered an order summarily denying the petition,      id. Attach. 11.

       Petitioner then filed a habeas petition under 28 U.S.C. § 2241 in the United

States District Court for the District of Kansas, asserting the same claims he

asserted in his military habeas petition.    Id. Doc. 1 at 6-7. In a very thorough and

well-reasoned memorandum and order, the district court dismissed the petition

and denied all relief because it concluded that the military courts had given full

and fair consideration to petitioner’s claims and that the claims are without

merit. 1 Id. Doc. 36 at 3-9. On appeal, petitioner asserts the same habeas claims

that he presented to the Army Court and the district court.

       A federal district court’s habeas review of a military court-martial is

limited. It will not review a petitioner’s claims if the military courts fully and

fairly considered the claims.     Lips v. Commandant, United States Disciplinary

Barracks , 997 F.2d 808, 811 (10th Cir. 1993). This court has held that if an issue

was raised before the military courts, four conditions must be met before a district



1
      The district court also denied petitioner’s motion for reconsideration. R.,
Doc. 39.

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court may review the issue: (1) the asserted error is of substantial constitutional

dimension; (2) the issue is one of law rather than fact; (3) there are no military

considerations that warrant different treatment of the constitutional claims; and

(4) the military courts failed to give adequate consideration to issues involved or

failed to apply the proper legal standards.     Id. Further, when an issue has been

briefed and argued before a military tribunal, a federal habeas court assumes the

military tribunal has given the claim full and fair consideration, even if the

military court summarily disposed of the issue.       Watson v. McCotter , 782 F.2d

143, 145 (10th Cir. 1986).

       The district court correctly ruled that federal habeas review is inappropriate

in this case because the military courts fully and fairly considered petitioner’s

claims. And even if petitioner’s claim regarding the qualifications of the military

judge could be characterized as raising a jurisdictional issue,   see Monk v. Zelez ,

901 F.2d 885, 888 (10th Cir. 1990) (indicating that jurisdictional issues arising

from court-martial proceedings are reviewed de novo), we agree with the district

court that petitioner has failed to establish that the military judge was unqualified

under 10 U.S.C. § 826(b).




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      We AFFIRM the judgment of the district court for substantially the same

reasons stated in its memorandum and order dated November 14, 2001.


                                                 Entered for the Court


                                                 John C. Porfilio
                                                 Circuit Judge




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