                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                           January 5, 2017
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
TED C. SQUIRE,

      Petitioner - Appellant,

v.                                                          No. 16-3030
                                                  (D.C. No. 5:14-CV-03081-KHV)
SIOBAN LEDWITH,                                              (D. Kan.)

      Respondent - Appellee.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before TYMKOVICH, Chief Judge, HARTZ and PHILLIPS, Circuit Judges.
                 _________________________________

      Ted C. Squire is a military prisoner who appeals the denial of his habeas

petition filed under 28 U.S.C. § 2241, which challenged his conviction by a general

court martial for engaging in a sexual act with a child under the age of 12 in violation

of Article 120 of the Uniform Code of Military Justice, 10 U.S.C. § 920. We affirm.

                                           I

      Mr. Squire was charged with one specification of engaging in a sexual act with


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
a child who had not attained the age of 12 and two specifications of engaging in lewd

acts with a child who had not attained the age of 16. The latter counts were

withdrawn before trial, at which time Mr. Squire pleaded not guilty to the single

specification of engaging in a sexual act with a child who had not attained the age of

12. After his conviction, the convening authority approved a sentence of 238 months

in prison.1 The Army Court of Criminal Appeals (ACCA) affirmed, see United

States v. Squire, 2012 WL 3602088, at *7 (A. Ct. Crim. App. 2012) (unpublished),

and the Court of Appeals for the Armed Forces denied relief after granting

discretionary review, United States v. Squire, 72 M.J. 285, 291 (C.A.A.F. 2013).

Mr. Squire later filed this § 2241 petition in the district court,2 but the district court

denied his claims, concluding all but one, which he waived, had received full and fair

consideration by the military courts.

                                             II

       We review de novo the district court’s denial of habeas relief. Fricke v. Sec’y

of Navy, 509 F.3d 1287, 1289 (10th Cir. 2007). But our scope of review is limited.


       1
        General courts-martial may be convened by the President, the Secretary of
Defense, and certain authorized military officers. 10 U.S.C. § 822. Once a military
judge or the court members adjudge a sentence, the convening authority takes action
on the sentence and may approve or disapprove it in whole or in part, so long as the
severity of punishment is not increased. See Rule for Courts-Martial 1107(a), (d).
The court members here sentenced Mr. Squire to twenty years in prison and a
reduction in rank. The convening authority approved 238 months’ confinement and
the rank reduction.
       2
         Mr. Squire filed his § 2241 petition in the United States District Court for the
District of Columbia, which transferred the petition to the District of Kansas.


                                             2
“‘When a military decision has dealt fully and fairly with an allegation raised in [a

habeas] application, it is not open to a federal civil court to grant the writ simply to

re-evaluate the evidence.’” Thomas v. U.S. Disciplinary Barracks, 625 F.3d 667, 670

(10th Cir. 2010) (brackets omitted) (quoting Burns v. Wilson, 346 U.S. 137, 142

(1953)). If the military courts fully and fairly consider a habeas claim, the district

court may not review the claim. See Roberts v. Callahan, 321 F.3d 994, 995

(10th Cir. 2003). If the claim was not raised in the military courts, it is waived and

may not be considered absent a showing of cause and actual prejudice. See id. Only

if the claim was raised in the military courts but not given full and fair consideration

will “the scope of review by the federal civil court expand.” Lips v. Commandant,

U.S. Disciplinary Barracks, 997 F.2d 808, 811 (10th Cir. 1993).

      To assess the fairness of the consideration, our review of a military
      conviction is appropriate only if the following four conditions are met:
      (1) the asserted error is of substantial constitutional dimension, (2) the
      issue is one of law rather than disputed fact, (3) no military
      considerations warrant a different treatment of constitutional claims,
      and (4) the military courts failed to give adequate consideration to the
      issues involved or failed to apply proper legal standards.

Thomas, 625 F.3d at 670-71 (citing Dodson v. Zelez, 917 F.2d 1250, 1252-53

(10th Cir. 1990)). “While we continue to apply this four-part test, [we] have

emphasized the fourth consideration as the most important.” Id. at 671. Even a

military court’s summary disposition of a claim can show adequate consideration of

the issues involved. See Watson v. McCotter, 782 F.2d 143, 145 (10th Cir. 1986).




                                            3
                                           III

      A. Scope of Review

      Mr. Squire first disputes our scope of review. He says we no longer examine

whether the military courts gave a claim full and fair consideration, but instead we

engage in a more expansive review based on the four-factor test recited in Thomas.

This argument seeks to exploit some confusion in our earlier cases, see Roberts,

321 F.3d at 996 (describing evolution of our scope of review), but it is unavailing.

      We clarified in Roberts that the four-factor test is not a separate, independent

inquiry from the full-and-fair consideration standard, but rather it is “an aid in

determining whether the claims were fully and fairly considered.” Id. at 997. We

explained that the test “develops our understanding of full and fair consideration” to

determine “whether the federal court may reach the merits of the case.” Id. We

endorsed this approach because it is more consistent with the restrictive scope of

review outlined by the Supreme Court in Burns. See id. Accordingly, we evaluate

whether the military courts afforded a habeas claim full and fair consideration,

mindful of the four factors. See, e.g., Thomas, 625 F.3d at 670-72 (emphasizing

fourth factor and holding that a summary disposition may still demonstrate full and

fair consideration); Nixon v. Ledwith, 635 F. App’x 560, 566 (10th Cir. 2016)

(applying full-and-fair-consideration analysis without reciting four factors yet noting

the most important factor is whether the issues received adequate consideration);

Brown v. Gray, 483 F. App’x 502, 504-05 (10th Cir. 2012) (reciting four-factor test

in evaluating whether the military courts afforded claims full and fair consideration).

                                            4
      B. Mr. Squire’s Claims

      The district court denied the habeas petition, concluding that all claims were

given full and fair consideration by the military courts, except one, which was

waived. The petition lists three claims: (1) ineffective assistance on three separate

grounds; (2) a violation of Mr. Squire’s Sixth Amendment right to confront his

accuser; and (3) a due process violation predicated on the denial of his right to testify

on his own behalf.3 We consider these claims in turn.

      1. Ineffective Assistance

             a. Failure to Offer Evidence of Recantation

      Mr. Squire first claims his trial counsel was deficient in failing to submit

evidence that the 8-year old victim (the daughter of Mr. Squire’s fiancée) had

recanted. The ACCA analyzed this claim under the standards of Strickland v.

Washington, 466 U.S. 668 (1984), and concluded “there [was] a reasonable

explanation for counsel’s failure to present evidence of [the victim’s] recantation.”

Aplt. App., Vol. 4 at 225. Specifically, the ACCA observed there was “significantly


      3
         The district court read Mr. Squire’s petition to raise an additional claim based
on insufficient evidence, but we do not read the petition so broadly. The petition lists
three specifically enumerated claims, with clear subheadings, none challenging the
sufficiency of the evidence. The only reference to insufficient evidence is an isolated
statement within his claim under the Confrontation Clause, asserting that “the
evidence presented at trial, and more importantly, the evidence NOT presented at
trial due to his trial counsel’s failures, was not sufficient for the members to find it
‘more likely than not’ that he was guilty.” Aplee. Supp. App. at 35. This single,
isolated statement did not raise an independent habeas claim, as Mr. Squire
apparently acknowledges on appeal. See Aplt. Br. at 16-17 (listing habeas claims
without any reference to a claim of insufficient evidence).


                                            5
more evidence pertaining to [the victim’s] original allegations of sexual abuse than

what was presented at [Mr. Squire’s] court-martial.” Id. Thus, the ACCA found

“counsel’s decision to avoid evidence of recantation reasonable when faced with the

prospect of further incriminating evidence becoming admissible [with] an

unpredictable child witness standing by available to testify.” Id.

      Moreover, the ACCA concluded there was no showing of prejudice because

even with evidence that the victim recanted, the government’s evidence of sexual

assault was overwhelming:

      Even had trial defense counsel presented evidence of recantation, the
      government’s case against [Mr. Squire] still included DNA evidence
      that his semen was inside [the victim’s] vagina and on the interior of her
      underwear. In addition, [Mr. Squire] made a partial admission to
      [investigators] that if his semen was found inside [the victim], he had
      penetrated her, but that it was an ‘accident.’ The evidence against
      [Mr. Squire] was overwhelming, and would still be so in light of
      evidence of a recantation.

Id. at 226. The ACCA gave this claim full and fair consideration.

             b. Failure to Proffer Rebuttal DNA Expert

      Mr. Squire also claims that trial counsel was ineffective in failing to proffer an

expert witness to rebut the government’s expert, who testified that DNA in the

victim’s underwear belonged to Mr. Squire. He claims that the DNA evidence

presented by the government may have been corrupted by, among other things, “gaps

in the chain of custody of the ‘rape kit,’” Aplee. Supp. App. at 29, and that counsel’s

failure to put on a rebuttal expert resulted in prejudice. The district court ruled that

Mr. Squire waived this claim by failing to present it to the military courts, but he


                                            6
argues that he did raise this claim in his Grostefon brief. See United States v.

Grostefon, 12 M.J. 431, 436 (C.M.A. 1982) (permitting military defendants to submit

issues on appeal pro se even if defense counsel believes such issues are meritless).4

      Mr. Squire’s Grostefon brief did not raise an ineffective-assistance claim based

on trial counsel’s failure to put on a rebuttal expert witness. Rather, he argued a

different theory—that trial counsel was ineffective for failing to question “the

government’s DNA expert on the possibility of transference of DNA matter from

[Mr. Squire’s] underwear to [the victim’s] underwear while it was sitting in a clothes

hamper.” Aplt. App., Vol. 3 at 188 (capitalization omitted). He also challenged the

reliability of the DNA evidence, arguing it was improperly tested, but he did not

argue that counsel was ineffective for not making that argument. See id. at 187-88.

These claims, while perhaps somewhat similar to Mr. Squire’s present theory, do not

assert that counsel was ineffective for failing to put on a rebuttal DNA expert. See

Bland v. Sirmons, 459 F.3d 999, 1012 (10th Cir. 2006) (holding that a state prisoner

cannot exhaust his federal habeas claim by presenting a “somewhat similar” claim in

state court (internal quotation marks omitted)). The ACCA summarily rejected those

arguments and all other Grostefon issues, see Aplt. App., Vol. 4 at 226, after full and

fair consideration, see Watson, 782 F.2d at 145 (“When an issue is briefed and argued


      4
         Mr. Squire does not contend that he raised this claim in his counselled appeal
brief to the ACCA, in which he advanced a different theory to challenge the DNA
evidence, namely, that the trial judge abused her discretion in admitting the DNA
evidence because there was “a fatal break in the chain of custody.” Aplt. App.,
Vol. 1 at 22 (capitalization omitted).


                                           7
before a military board of review, we have held that the military tribunal has given

the claim fair consideration, even though its opinion summarily disposed of the issue

with the mere statement that it did not consider the issue meritorious or requiring

discussion.”). But it did not consider Mr. Squire’s new claim that counsel was

ineffective for failing to proffer a rebuttal DNA expert. This claim, therefore, is

waived, and absent any argument for finding cause and prejudice, the district court

correctly denied it.

              c. Failure to Challenge DNA Evidence

       Mr. Squire’s third ineffective-assistance claim asserts that trial counsel was

deficient in failing to challenge the admission of the rape kit containing the victim’s

underwear. He maintains that the DNA evidence in the rape kit is unreliable because

there was no foundation establishing that the underwear actually belonged to the

victim. He also insists that despite “gaps in the handling and retention of the ‘rape

kit’ evidence,” Aplee. Supp. App. at 30, his counsel failed to object when the

government’s expert confirmed that Mr. Squire’s DNA was present in semen

collected from the underwear.5

       The district court concluded that Mr. Squire had raised this claim, and the

ACCA had summarily rejected it, but we conclude that Mr. Squire waived it. His

brief to the ACCA claimed that trial counsel was ineffective for failing to put on


       5
        Although we offer no opinion on the merits of this claim, the ACCA noted
that counsel did object to the admission of the rape kit, apparently quite vigorously.
See Aplt. App., Vol. 4 at 224 n.5.


                                           8
evidence that the victim recanted. In advancing that claim, he also made an

attenuated argument that the DNA evidence was unreliable. See Aplt. App., Vol. 1 at

47-48. But the claimed ineffectiveness was trial counsel’s failure to offer evidence

that the victim had recanted, not counsel’s failure to seek to exclude the DNA

evidence. Mr. Squire also challenged the reliability of the DNA evidence, but he

never claimed that trial counsel was ineffective for failing to make that argument.

See Hawkins v. Mullin, 291 F.3d 658, 668-69 (10th Cir. 2002) (holding that state

claim asserting trial-court error relating to mitigating evidence and separate claims of

ineffective assistance did not exhaust specific federal claim of ineffective assistance

relating to mitigating evidence). These distinct theories failed to preserve

Mr. Squire’s present claim of ineffective assistance based on counsel’s supposed

failure to challenge the DNA evidence. And even if any shared predicate for these

evolving theories could have preserved the claim, the district court correctly

recognized that the ACCA’s summary rejection of all Grostefon issues satisfies the

full and fair consideration standard. See Thomas, 625 F.3d at 672 (“We . . . decline

to presume a military appellate court has failed to consider all the issues presented to

it before making a decision.”).

      2. Right to Confrontation

      Mr. Squire also claimed the trial judge violated his right to confront the

child-victim by admitting into evidence statements she had made to two examining

physicians. After the assault, the victim’s mother brought the child to a military

hospital, where she was examined and referred to a civilian hospital for further

                                           9
examination. At both locations, the victim told examining doctors that Mr. Squire

penetrated her with his penis. The ACCA discussed this claim at length, devoting

five pages of analysis to whether Mr. Squire’s confrontation rights had been violated.

Citing Crawford v. Washington, 541 U.S. 36 (2004), the ACCA concluded there was

no constitutional violation because the statements were non-testimonial. The ACCA

also ruled that even if the military judge had erred in admitting the statements

through one of the doctors, any error was harmless beyond a reasonable doubt, given

the findings of the DNA analysis. The CAAF affirmed in a detailed published

opinion. See Squire, 72 M.J. at 291. The military courts afforded this claim full and

fair consideration.

      3. Right to Testify

      Mr. Squire’s last claim alleges that his due process rights were violated when

his trial counsel denied him the right to testify on his own behalf. According to

Mr. Squire, he changed his mind after initially electing not to testify, but his attorney

declined to let him on the stand. Mr. Squire says the ACCA completely ignored this

claim, but we disagree. He raised this claim in his Grostefon brief, and although the

ACCA did not specifically discuss it, the court expressly stated that it considered the

entire record and the parties’ submissions, including the issues raised in the

Grostefon brief and at oral argument. The ACCA need not give “explicit detail” for

rejecting a claim presented to it. See Thomas, 625 F.3d at 671-72 (holding that the

ACCA afforded full and fair consideration even without oral argument or providing

any explanation for its dismissal). And we will not presume the court overlooked

                                           10
this claim. See id. at 672. Under the circumstances here, we are satisfied that the

military courts gave this claim full and fair consideration.

                                           IV

      The judgment of the district court is affirmed.


                                            Entered for the Court

                                            Gregory A. Phillips
                                            Circuit Judge




                                           11
