                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                   February 10, 2016
                                    TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                      Clerk of Court


 DAVID A. VALOIS,

          Petitioner - Appellant,

 v.                                                      No. 15-3255
                                               (D.C. No. 5:13-CV-03029-KHV)
 COMMANDANT, USDB - FORT                                 (D. of Kan.)
 LEAVENWORTH,

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, HARTZ and MORITZ, Circuit Judges. **



      David A. Valois appeals pro se 1 from the district court’s denial of his

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
      1
         Because he proceeds pro se, we construe his filings liberally. See United
States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
      Valois is a former member of the United States Air Force. In October of

2005, he murdered his infant son. Valois was charged with murder by engaging

in an act inherently dangerous to another and evincing a wanton disregard for

human life in violation of Article 118(3) of the Uniform Code of Military Justice,

10 U.S.C. § 918(3). A military judge at a general court martial tried Valois.

Although Valois pleaded guilty to involuntary manslaughter, the judge found him

guilty of murder. Valois was sentenced to dismissal from the military, forfeiture

of pay and allowances, and fifty years of confinement. A pretrial agreement

reduced his confinement to twenty-five years.

      In 2010, Valois filed a claim for administrative relief with the Commandant

of the Disciplinary Barracks in Fort Leavenworth, Kansas, where he is currently

serving his sentence. He challenged the amount of good conduct time credits the

prison applied to his sentence. Valois then filed several additional requests for

relief, all of which were denied. The Air Force Court of Criminal Appeals

subsequently denied his writ of habeas corpus without prejudice because of his

lack of counsel. After that denial, Valois filed a § 2241 petition in the district

court. The district court denied his petition.

      Valois properly challenges the execution of his sentence by seeking relief

under 28 U.S.C. § 2241. Valois argues that he is entitled to good conduct time

credits of ten, rather than five, days per month. He also argues that the reduction




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of possible good conduct time credits is a violation of the Constitution’s Ex Post

Facto Clause.

      Federal civil courts possess only limited authority to review court-martial

proceedings. Thomas v. U.S. Disciplinary Barracks, 625 F.3d 667, 670 (10th Cir.

2010). As we have held, “[i]f the grounds for relief that Petitioner raised in the

district court were fully and fairly reviewed in the military courts, then the

district court was proper in not considering those issues.” Roberts v. Callahan,

321 F.3d 994, 995 (10th Cir. 2003). Valois argues that he did not need to exhaust

his claims in the military courts because military courts do not address collateral

consequences of court-martial sentences, such as good conduct time credits. The

government does not address failure to exhaust, so we deem that argument

waived.

      Turning to the merits, we agree with the district court’s thoughtful and

well-reasoned analysis of various Department of Defense and Air Force

regulations and directives regarding good conduct time credits. As that court

found, the Secretary of the Air Force operates under the authority of the

Department of Defense to which the Secretary belongs. Because it is subordinate

to the Department of Defense, the Air Force is bound by law to follow the

policies of the Department. Here, the Air Force Secretary explicitly adopted the

Department’s good conduct time credits policy by deferring to it. We agree with

the district court that acquiescence to a higher authority is not unlawful. AFI 31-

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205, adopted by the Air Force in 2004, states, “[f]or sentences over one year,

refer to DoDI 1325.7, E261.1.” AFI 31-205 at ¶ 5.7.1.2.1. DoDI 1325.7 grants

prisoners five days’ good conduct time credit per month. There is no evidence

that the Air Force ever amended or removed this deferral to the Department of

Defense’s good conduct time policy. Thus, the policy has been valid since its

2004 issuance.

      Valois argues that several of the Under Secretary for Personnel and

Readiness’s directive-type memoranda regarding the reduction of good conduct

time credits from ten to five days per month were without authority. But we

agree with the district court’s finding that it is clear Under Secretaries of the

Department of Defense have authority to promulgate directive-type memoranda.

These memoranda were a proper exercise of that authority.

      Valois also contends that some of these directive-type memoranda expired

because no action was taken on them for at least 180 days. But no Department of

Defense authority requires that memoranda automatically expire, and Valois cites

no support for this proposition. The Department of Defense did not cancel or

amend the 2004 good conduct time credits memoranda until 2013. Thus, lack of

action in the interim did not automatically cancel the regulations. Accordingly,

we find that the 2004 memoranda and the Air Force’s deference to DoDI 1325.7,

now DoDI 1325.07, are valid. Thus, Valois’s good conduct time credits are

limited to five days per month.

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      Finally, Valois argues that this less generous good conduct time credit

scheme illegally increases his confinement in violation of the Ex Post Facto

Clause of the Constitution. That Clause prohibits laws that “retroactively alter

the definition of crimes or increase the punishment for criminal acts.” Calif.

Dep’t of Corr. v. Morales, 514 U.S. 499, 504 (1995) (emphasis added). But the

policy change Valois challenges went into effect before his offense, conviction,

and sentencing. Therefore, Valois is not entitled to relief under the Ex Post Facto

Clause.

      The judgment of the district court is AFFIRMED.

                                                    ENTERED FOR THE COURT

                                                    Timothy M. Tymkovich
                                                    Chief Judge




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