                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-1222
                                    ___________

Donovan B. Gilliam, Sr.,               *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
     v.                                * District Court for the
                                       * Western District of Missouri.
Bureau of Prisons; P. W. Keohane,      *      [UNPUBLISHED]
                                       *
            Appellees.                 *
                                  ___________

                           Submitted:   March 3, 2000

                                Filed: March 10, 2000
                                    ___________

Before WOLLMAN, Chief Judge, FLOYD GIBSON, and RICHARD S. ARNOLD,
      Circuit Judges.
                             ___________

PER CURIAM.

       Donovan Gilliam appeals the district court’s order dismissing for lack of
jurisdiction his petition filed pursuant to 28 U.S.C. § 2241. The district court denied
Gilliam leave to appeal in forma pauperis (IFP). We grant Gilliam permission to
proceed IFP, and because we conclude that the district court has jurisdiction to
consider Gilliam’s section 2241 petition, we reverse the dismissal order and remand the
case to that court.
       Gilliam, a prisoner at the United States Medical Center for Federal Prisoners at
Springfield, Missouri, was convicted in November 1971 by a general court-martial at
Fort Leavenworth, Kansas, of premeditated murder and conspiracy in the bludgeoning
death of a fellow inmate at the disciplinary barracks. The Army Court of Military
Review (now the Army Court of Criminal Appeals) approved a guilty finding of the
lesser charge of unpremeditated murder and a 45-year sentence. United States v.
Gilliam, 47 C.M.R. 649 (A.C.M.R. 1973). The Court of Military Appeals (now the
Court of Appeals for the Armed Forces) affirmed. United States v. Gilliam, 48 C.M.R.
260 (C.M.A. 1974).

       Gilliam filed a section 2241 petition on October 20, 1998, seeking relief from his
1971 murder conviction on the ground that the Army had given him LSD (a
hallucinogenic drug) without his knowledge and had hypnotized him to commit the
murder. The district court dismissed the petition for lack of jurisdiction, reasoning that
because Gilliam challenged the validity of his military conviction, his petition was, in
reality, a 28 U.S.C. § 2255 petition which should have been filed in the court of
conviction. We believe this conclusion fails to consider the manner by which military
criminal prosecutions proceed.

       The court-martial which tries criminal charges against a member of the military
is convened--that is, comes into existence--only after charges have been preferred.
After rendition of its verdict and sentence, the court-martial is disbanded. Strictly
speaking, a person convicted in a court-martial proceeding may not file a section 2255
challenge in the court of conviction because, following conviction, that court ceases to
exist. See United States v. DuBay, 37 C.M.R. 411, 413 n.2 (C.M.A. 1967) (noting
that, unlike the civil courts, the court-martial structure does not allow for consideration
of collateral issues by the trial court).

       The practice in the military courts confirms the lack of a formal method by which
collateral challenges may be prosecuted. In United States v. Murphy, 50 M.J. 4

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(C.A.A.F. 1998), the Court of Appeals for the Armed Forces (the highest military
tribunal) considered an appeal by an Army sergeant convicted of murder and other
offenses. Along with “classic appellate issues relating to trial,” the defendant sergeant
raised, and the court considered, “numerous collateral attacks on his conviction,
primarily based upon his claims of ineffective assistance of counsel.” Id. at 5. By way
of explaining its consideration of the collateral challenges, the court said

      Unlike the practice in the United States Circuit Courts of Appeal and
      District Courts, neither the UCMJ [Uniform Code of Military Justice] nor
      the Manual for Courts-Martial, United States, 1984, provides procedures
      for collateral, post-conviction attacks on guilty verdicts. See 28 U.S.C.
      § 2255, et seq. Nevertheless, we have relied upon a variety of procedures
      to ensure that a military accused’s rights are fully protected. See, e.g.,
      United States v. Henry, 42 MJ 231, 238 (1995) (remanded to Court of
      Criminal Appeals for consideration of affidavits of respective parties);
      United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967)
      (evidentiary hearing).

Id. at 5-6. Based on the defendant’s claims of ineffective counsel, the Murphy court
granted the defendant relief from the death sentence. In United States v. Walters, 45
M.J. 165 (C.A.A.F. 1996), Chief Judge Cox concurred in the denial of relief on the
defendant’s claim of ineffective counsel, but “once again urge[d] the Joint-Service
Committee on Military Justice to consider and recommend to the President a procedure
by which collateral attacks on courts-martial might be litigated.” Id. at 167.

       Both Murphy and Walters suggest that the Court of Appeals for the Armed
Forces--while noting that military courts have managed to address collateral issues
raised by military defendants--has concluded that section 2255 is not available for
bringing collateral challenges to military convictions.




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       The Supreme Court in Gusik v. Schilder, 340 U.S. 128 (1950), established the
general rule that habeas corpus petitions from military prisoners should not be
entertained by federal civilian courts until all available remedies within the military
court system have been exhausted. In Burns v. Wilson, 346 U.S. 137 (1953), the Court
held that federal civil courts, while they have jurisdiction over a habeas petition from
a military prisoner, must defer to the decision of the military court if that court has
given fair consideration to the claims advanced in the habeas petition. Id. at 142-44.

        In Schlomann v. Ralston, 691 F.2d 401 (8th Cir. 1982), cert. denied, 459 U.S.
1221 (1983), we denied habeas relief in a case with substantial parallels to Gilliam’s
case. Schlomann (like Gilliam) was a military prisoner at the United States Medical
Center who had been convicted by a general court-martial of murder and other
offenses. He filed two habeas petitions (presumably pursuant to section 2241, although
this is not specified in the opinion), alleging that he was insane at the time of trial and
that counsel was ineffective for failing to press the competency issue. We affirmed the
district court’s dismissal of the habeas petition, but reviewed the merits of the claims.
We found the military Board of Review’s determination of Schlomann’s sanity at the
time of the offense sufficiently probative on the issue of his competency to stand trial
and concluded that his attorneys had made a reasonable tactical decision not to press
the trial competence claim. Id. at 403-04.

       Recently, the Supreme Court has again noted the availability of section 2241 as
a means for a person convicted by court-martial to seek habeas relief after exhausting
his direct military appeals and such post-conviction remedies as he may have under the
Uniform Code of Military Justice. Clinton v. Goldsmith, ___ U.S. ___, 119 S. Ct.
1538, 1543 n.11 (1999).

      Accordingly, we reverse the district court order dismissing Gilliam’s section
2241 petition for lack of jurisdiction and remand the case to the district court for further
proceedings. We do not by this action express an opinion regarding either the merits

                                            -4-
of Gilliam’s claim or his exhaustion of any military remedies that may have been
available to him to press that claim, but leave those determinations in the first instance
to the district court.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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