                                                                             F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             JUL 5 2002
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                  Clerk

 CURTIS A. TAYLOR,

                Petitioner - Appellant,                     No. 02-3029
           v.                                        (D.C. No. 01-CV-3296-RDR)
 COL. STEVEN L. ANDRASCHKO,                                 (D. Kansas)

                Respondent - Appellee.


                              ORDER AND JUDGMENT            *




Before EBEL , LUCERO , and HARTZ , Circuit Judges.


       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.

       Curtis Taylor (“Petitioner”) was convicted by a general court martial of

attempted murder and aggravated assault, in violation of Articles 80 and 128,

Uniform Code of Military Justice, 10 U.S.C.     §§ 880 and 928. Proceeding    pro se ,


       This order and judgment is not binding precedent, except under the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.
he appeals the United States District Court’s dismissal of his petition for habeas

corpus filed under 28 U.S.C.    § 2241. He claims that he was entitled to a mistrial

because the prosecutor referred to inadmissible evidence during his opening

statement. We have jurisdiction under 28 U.S.C.        § 1291. We affirm the dismissal

by the district court because the military courts gave full and fair consideration to

the issue now raised by Petitioner.

       We have “consistently granted broad deference to the military in civilian

collateral review of court-martial convictions.”      Watson v. McCotter , 782 F.2d

143, 144 (10th Cir. 1986). “[W]hen a military decision has dealt fully and fairly

with an allegation raised in [a petition for habeas corpus], it is not open to a

federal civil court to grant the writ simply to re-evaluate the evidence.”   Burns v.

Wilson , 346 U.S. 137, 142 (1953);     accord Watson , 782 F.2d at 144 . “Only when

the military has not given a petitioner’s claims full and fair consideration does the

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

United States Disciplinary Barracks      , 997 F.2d 808, 811 (10th Cir. 1993). A

federal court’s review of a military conviction is appropriate only if the following

conditions are met:

              (1) the asserted error is of substantial constitutional
              dimension; (2) the issue is one of law rather than of
              disputed fact already determined by the military tribunal;
              (3) there are no military considerations that warrant
              different treatment of constitutional claims; and (4) the
              military courts failed to give adequate consideration to the

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             issues involved or failed to apply proper legal standards.”

Id.

      Petitioner contends that the military courts did not give his case full and

fair consideration. He asserts that those courts improperly rejected his appeals by

relying on an unprecedented rule that he waived any error in the denial of a

mistrial by failing to object to the trial tribunal’s curative instruction. We

disagree.

      After Petitioner’s conviction, he first appealed to the United States Navy-

Marine Corps Court of Criminal Appeals (NMCCA), which affirmed the

conviction. The court cited case law for the propositions that a mistrial is a

drastic remedy and that a military judge should explore other options, such as a

curative instruction. It noted that the judge had given a curative instruction at

Petitioner’s trial, and, in response to Petitioner’s contention that the curative

instruction was inadequate, it wrote:

             The curative instruction the military judge crafted and
             gave to the members was not as comprehensive and clear
             as it would have been had he spent more time on it and
             involved the parties in the drafting process. However, the
             appellant did not object to that instruction as given.
             Therefore, he waived any issue involving that instruction.
             R.C.M. 801(g), 920(f). Moreover, we are confident that
             the curative instruction, combined with the other
             instructions the military judge gave to the members at
             appropriate points during the trial, effectively focused the
             members’ attention on their obligation to base their
             findings and sentence on admissible evidence, and not on

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               the statements or arguments of counsel. No inadmissible
               evidence came before the members. Finally, we are
               satisfied that the trial counsel was operating in good faith
               on his recollection of the military judge’s ruling on the
               motion in limine . Therefore, we are confident that the
               objectionable part of the trial counsel’s opening statement
               had no prejudicial impact. The appellant received the
               substantially fair trial to which he is entitled.

United States v. Taylor , 1998 WL 433959, at *3 (N.M.Ct.Crim.App. July 20,

1998).

         Petitioner focuses on the court’s statement that he waived the issue by not

objecting to the instruction. He asserts that no rule or precedent required him to

object to the instruction once he had moved for a mistrial. We reject his

argument on two grounds. First, given the precedents stating that a curative

instruction is preferable to a mistrial, there was no unfair surprise in requiring

trial counsel to explain to the military judge why the particular curative

instruction in his case was inadequate.

         Second, the appellate court did not rest its decision solely on waiver. As an

alternative ground for affirmance, it found the instruction to be adequate.

Petitioner argues that we cannot rely on this alternative ground. He cites    Harris

v. Reed , 489 U.S. 255 (1989), for the proposition that when a court states plainly

that a claim has been procedurally defaulted, a later court should presume that the

claim was not decided on the merits. But      Harris says no such thing. On the

contrary, it expressly recognizes that a court can rest a decision on alternate

                                            -4-
grounds—a procedural default and the merits.    Id. at 264 n.10. We have no doubt

that the NMCCA fully and fairly considered Petitioner’s mistrial claim.

      Moreover, Petitioner’s claim also received adequate review by the

United States Court of Appeals for the Armed Forces, which affirmed the decision

by the NMCCA. Again, the court found waiver.      United States v. Taylor , 53 M.J.

195, 198 (C.A.A.F. 2000). But it then proceeded to state the following:

                     Second, [Petitioner] makes much of the trial
             members’ inadmissible questions to LCpl Franklin.
             However, these questions do not constitute evidence that
             the members of the court martial did not understand or
             would not follow the military judge’s instructions. The
             judge’s instructions to them were to only consider evidence
             provided from the trial testimony. The judge did not order
             them to refrain from asking any questions concerning the
             subject matter of a particular motion in limine that he had
             granted in part. Arguably, these questions demonstrate that
             some members’ curiosity may have been aroused by the
             trial counsel’s opening reference to gang colors. However,
             the mere fact of the questions does not lead us to conclude
             that the members refused to follow the judge’s instruction
             to only consider the evidence presented from the witnesses
             when deliberating . Thus, the presumption that the members
             followed the military judge’s instructions has not been
             rebutted.

                   Accordingly, we agree with the Court of Criminal
             Appeals that the military judge did not abuse his discretion
             by refusing to grant [Petitioner] a mistrial.

(citations omitted) Thus, this second appellate court also gave full and fair

consideration to Petitioner’s issue, ruling against him on a proper waiver ground



                                          -5-
and also ruling that the curative instruction prevented any prejudice from the

prosecutor’s remarks.

      We AFFIRM the judgment of the district court.


                                               Entered for the Court


                                               Harris L Hartz
                                               Circuit Judge




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