      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206             2       Witham v. United States, et al.                 No. 02-5700
   ELECTRONIC CITATION: 2004 FED App. 0016P (6th Cir.)
               File Name: 04a0016p.06                                            _________________
                                                                                      COUNSEL
UNITED STATES COURT OF APPEALS
                                                          ARGUED:          George A. Gallenthin, Philadelphia,
             FOR THE SIXTH CIRCUIT                        Pennsylvania, for Appellant.         Terry M. Cushing,
               _________________                          ASSISTANT UNITED STATES ATTORNEY, Louisville,
                                                          Kentucky, for Appellees. ON BRIEF: George A.
TIMOTHY A. WITHAM,               X                        Gallenthin, Philadelphia, Pennsylvania, for Appellant. Terry
          Petitioner-Appellant, -                         M. Cushing, Candace G. Hill, ASSISTANT UNITED
                                  -                       STATES ATTORNEY, Louisville, Kentucky, for Appellees.
                                  -   No. 02-5700
           v.                     -                                              _________________
                                   >
                                  ,                                                  OPINION
UNITED STATES OF AMERICA , -
                                                                                 _________________
Probation Office, Bowling         -
Green Kentucky; UNITED            -                          ROGERS, Circuit Judge.          The petitioner-appellant,
STATES MARINE CORPS;              -                       Timothy A. Witham, appeals from the district court’s denial
UNITED STATES DEPARTMENT -                                of a habeas corpus petition challenging his conviction by
                                  -                       general court-martial of several counts of larceny and
OF THE NAVY ,
                                  -                       wrongful disposition of government property. Witham raised
       Respondents-Appellees. -                           five issues for habeas review before the district court: (1) that
                                 N                        there was no verbatim record of the trial proceedings, (2) that
       Appeal from the United States District Court       the Convening Authority1 lacked proper authority to refer
 for the Western District of Kentucky at Bowling Green.   charges against Witham to the court-martial, (3) that his Fifth
No. 01-00013—Joseph H. McKinley, Jr., District Judge.     and Sixth Amendment rights were violated when the
                                                          prosecution only subpoenaed two of fourteen witnesses
              Argued: October 29, 2003                    Witham had requested to be procured for his defense, (4) that
                                                          he received ineffective assistance of counsel at his court-
         Decided and Filed: January 14, 2004              martial, and (5) that his Fifth Amendment right to confront
                                                          witnesses was violated at trial. Witham’s main contention
Before: RYAN, MOORE, and ROGERS, Circuit Judges.          before us appears to be that the district court should have


                                                              1
                                                                Under military law, the Convening Authority is the military
                                                          com manding o fficer who is authorized to convene and refer charges to a
                                                          court-martial. See 10 U .S.C. § 822 (a). In this case, the Convening
                                                          Autho rity was M ajor General R ay Smith.

                           1
No. 02-5700                  Witham v. United States, et al.            3    4       Witham v. United States, et al.                     No. 02-5700

granted Witham an evidentiary hearing prior to rejecting his                    In affirming, the Court of Criminal Appeals fully addressed
habeas corpus petition.                                                      three of the claims Witham raises before us. The court
                                                                             considered Witham’s claim that the prosecution failed to
  No certificate of appealability was required for us to hear                subpoena witnesses, finding that he had waived it by failing
this appeal from the denial of this federally court-martialed                to object at trial. The court rejected Witham’s ineffectiveness
defendant’s habeas corpus petition. Contrary to Witham’s                     claim on its merits, finding that his detailed defense counsel
argument on appeal, the district court properly refused to hold              had performed effectively and demonstrated thorough pre-
a hearing, where three of Witham’s claims were fully and                     trial preparation. The court also addressed the merits of
fairly litigated in the military courts, and the remaining two               Witham’s claims regarding the trial record, finding that there
claims were raised for the first time in the district court. We              was no showing of “substantial omissions” and that,
therefore affirm the judgment of the district court.                         therefore, his claim failed.
  On April 9, 1998, Witham, then a Staff Sergeant in the                        After losing in the Court of Criminal Appeals, Witham
United States Marine Corps, was convicted of multiple                        filed a Petition for a Grant of Review in the United States
offenses arising from a conspiracy to steal and re-sell military             Court of Appeals for the Armed Forces. The Court of
property, weapons and explosives. Witham was sentenced to                    Appeals for the Armed Forces refused to hear Witham’s
confinement for five years, dishonorable discharge, and                      claims.
forfeiture of all pay and allowances.
                                                                                Having exhausted his military remedies, Witham then
  After approval of the sentence, the Convening Authority                    sought habeas corpus review in the district court.3 Witham’s
forwarded the trial record to the Navy-Marine Corps Court of                 petition, raising five issues, contended that (1) no verbatim
Criminal Appeals for review.2 On appeal, Witham claimed                      transcript of the general court martial exists, (2) the
that (1) the Government wrongfully refused to subpoena                       convening authority lacked authority to refer charges against
witnesses, (2) he received ineffective assistance of counsel,                Witham, (3) Witham’s due process and Sixth Amendment
(3) his rights under the Fifth Amendment Due Process Clause                  rights were violated because the prosecution subpoenaed only
were violated by excessive post-trial delay, (4) the Convening               two of the fourteen witnesses requested by Witham,
Authority was disqualified because two of Witham’s co-                       (4) Witham received constitutionally ineffective assistance
conspirators had received favorable treatment in sentencing,                 due to trial counsel’s inadequate pretrial preparation and trial
(5) the Commandant of the Marine Corps exerted unlawful                      errors, and (5) Witham’s Fifth Amendment right to confront
command influence in posting a message to a “military-                       witnesses was violated because the military court refused to
oriented web site,” and (6) the trial record was not verbatim.               allow a particular tape to be played into the record in its
The court affirmed Witham’s conviction and sentence.                         entirety.



    2                                                                            3
     10 U.S.C. §866(b)(1) provides for automatic review in the Court of             W itham actually filed his petition in the district court prior to the
Criminal Appeals of any case “in which the sentence, as approved,            final disposition of his military appeals, but once his military appeals were
extends to . . . dishonorable or bad-conduct discharge, or confinement for   exhausted, the Governme nt answered his petition and the proceeding went
one year or more.”                                                           forward.
No. 02-5700              Witham v. United States, et al.       5    6      Witham v. United States, et al.           No. 02-5700

   The case was referred to a magistrate, who recommended             First of all, as the government properly concedes, this court
denial of the petition. The magistrate judge explained first        may consider this appeal despite the absence of a certificate
that the district court’s review of a court-martial proceeding      of appealability. As we explain below, Witham’s claim is
is limited to a consideration of whether the petitioner’s claims    properly brought under 28 U.S.C. §2241 and not under 28
were given a “full and fair consideration by the military           U.S.C. § 2255. The federal statutory provision requiring a
courts.” The magistrate judge concluded, after a review of the      certificate of appealability applies to (A) final orders in
record, that the military courts had, in fact, fully and fairly     habeas cases where detention arose “out of process issued by
considered the claims Witham raised before them. These              State court” and (B) final orders under §2255. 28 U.S.C.
included his assertions regarding the completeness of the trial     §2253(c)(1). Neither category applies here. The statute does
record, the Government’s failure to subpoena defense                not require a certificate of appealability for appeals from
witnesses, and the alleged ineffectiveness of defense counsel.      denials of relief in cases properly brought under § 2241,
The magistrate judge further found that Witham had failed to        where detention is pursuant to federal process. This result
raise his remaining two claims before the military courts and       may be anomalous, since there is little discernible reason to
that Witham had therefore procedurally defaulted those              exempt collateral challenges to court-martial convictions from
claims. The magistrate judge also recommended that the              the general certificate-of-appealability requirement with
district court deny Witham a certificate of appealability on the    respect to federal court collateral challenges to state or
grounds that Witham could not demonstrate that reasonable           federal criminal convictions. Nonetheless, the statutory
jurists would debate the validity of the district court’s ruling.   language imposing the certificate-of-appealability
                                                                    requirement clearly does not extend to cases where, as in
  The district court adopted the recommendation of the              court-martial cases, detention arose out of federal process but
magistrate, refused to grant an evidentiary hearing, denied the     the proceeding is not under § 2255.
petition, and denied a certificate of appealability.
                                                                      For reasons that are not entirely clear, Witham maintains
   Witham appeals from the district court’s judgment. On this       that his claim is, in actuality, a motion to vacate sentence
appeal he urges us to find that his petition has been               under 28 U.S.C. §2255. In pertinent part, that provision
“mislabeled” as a petition arising under 28 U.S.C. §2241 and        provides:
that it, in fact, arises under §2255. Witham further urges us
to find that §2255 guarantees him an evidentiary hearing and            A prisoner in custody under sentence of a court
that the district court erred by not granting him that hearing          established by Act of Congress claiming the right to be
with respect to the five issues that he raised in the district          released upon the ground that the sentence was imposed
court. Because the district court did not abuse its discretion          in violation of the Constitution or laws of the United
when it denied Witham an evidentiary hearing, we affirm.                States, or that the court was without jurisdiction to
                                                                        impose such sentence, . . . or is otherwise subject to
  We review de novo a district court’s legal determinations in          collateral attack, may move the court which imposed the
resolving a petition for habeas corpus. See Charles v.                  sentence to vacate, set aside or correct the sentence.
Chandler, 180 F.3d 753, 755 (6th Cir. 1999). The denial of
an evidentiary hearing in a habeas corpus case, however, is         28 U.S.C. §2255 (emphasis added). Undoubtedly, Witham is
reviewed only for an abuse of discretion. Lott v. Coyle, 261        a “prisoner in custody under sentence of a court established
F.3d 594, 602 (6th Cir. 2001).                                      by Act of Congress.” See 10 U.S.C §§817-818 (setting forth
No. 02-5700              Witham v. United States, et al.      7    8     Witham v. United States, et al.              No. 02-5700

the jurisdiction of courts-martial). Furthermore, he claims           On the merits, the district court properly determined that
jurisdictional and Constitutional infirmities in his sentence.     Witham is not entitled to relief. As the magistrate judge
That does not change the fact, however, that Witham cannot         explained, three of Witham’s claims were fully and fairly
petition the court which imposed the sentence for relief.          considered by the military courts. Where there is no colorable
                                                                   jurisdictional question, a finding of full and fair consideration
   General courts-martial are ad hoc proceedings which             ends our habeas corpus inquiry. See Burns v. Wilson, 346
dissolve after the purpose for which they were convened has        U.S. 137, 142 (1953); see also Lips v. Commandant, United
been resolved. As a result, there is not a sentencing court in     States Disciplinary Barracks, 997 F.2d 808, 811 (10th Cir.
which a military prisoner may bring a §2255 motion. Gilliam        1993) (“[I]f the military gave full and fair consideration to
v. Bur. of Prisons, No. 99-1222, 2000 WL 268491, at *1 (8th        claims asserted in a federal habeas corpus petition, the
Cir. March 3, 2000) (unpub.). Moreover, neither the Uniform        petition should be denied.”). Witham’s two remaining claims
Code of Military Justice nor the Manual for Courts-Martial         were procedurally defaulted. Where a petitioner has failed to
provides for collateral review within the military courts. See     raise a claim in the military courts, a federal court will not
United States v. Murphy, 50 M.J. 4, 5 (C.A.A.F. 1998).             review the claim unless the petitioner has established “cause”
                                                                   and “prejudice” for failing to raise the error. Lips, 997 F.2d
   Our decisions indicate that §2255 is intended to be an          at 812 (citing Murray v. Carrier, 477 U.S. 478, 491 (1986)).
avenue of relief to be pursued before the court which imposed      As the magistrate below noted, Witham made no effort to
sentence. In Martin v. Perez, 319 F.3d 799, 802-03 (6th Cir.       show “cause” or “prejudice” to excuse his procedural
2003), we explained that Congress enacted §2255 as a means         defaults. The district court therefore properly accepted the
of ensuring a simpler method of review by vesting                  magistrate’s recommendation not to review those claims on
jurisdiction in the sentencing jurisdiction, which already has     the merits.
a record of the case, rather than in the jurisdiction of
confinement, which would typically have to start from                Witham’s primary argument before this court is that the
scratch. Section 2255 is not a different form of relief from       district court should have granted a hearing on his claims.
§2241, but rather, a different avenue intended to provide a        Regardless of whether Witham seeks collateral review under
more convenient process for prisoners who can pursue relief        § 2241 or § 2255, his assertion on appeal that he was entitled
before the sentencing court. Id. The savings clause of §2255       to an evidentiary hearing is baseless. Witham points to no
provides that, on a showing that the §2255 remedy is               authority standing for the proposition that a petition under
“inadequate or ineffective to test the legality of the             §2255 is entitled to an automatic evidentiary hearing.
detention,” a prisoner may seek a writ of habeas corpus            Moreover, we have consistently held that a district court’s
under§2241. This clause applies to the military prisoner,          denial of an evidentiary hearing subsequent to a §2255
because the court-martial immediately dissolves after              motion or a petition for habeas corpus is reviewed for an
sentencing and is no longer available later to hear a collateral   abuse of discretion. See, e.g., Ross v. United States, 339 F.3d
attack on the sentence. See also Clinton v. Goldsmith, 526         483, 490 (6th Cir. 2003); Lott, supra. The district court in
U.S. 529, 537 n. 11 (citing § 2241(c) as authority for             this case did not abuse its discretion by refusing to grant
proposition that habeas corpus is available to servicemembers      Witham a hearing.
in custody pursuant to court martial).
                                                                     Witham relies on Townsend v. Sain, 372 U.S. 293, 313
                                                                   (1963), to assert that the district court was required to conduct
No. 02-5700              Witham v. United States, et al.       9    10   Witham v. United States, et al.            No. 02-5700

an evidentiary hearing. In Townsend, the Court held that,             Under the second prong of analysis, the record before us
where there is a factual dispute, “the federal court in habeas      conclusively shows that Witham is not entitled to relief. As
corpus must hold an evidentiary hearing if the habeas               explained above, two of his claims are procedurally defaulted,
applicant did not receive a full and fair evidentiary hearing in    and the remaining three claims were fully and fairly
a state court, either at the time of trial or in a collateral       considered by the military courts. Not only has Witham
proceeding.” Id. at 312. Townsend, however, does not                never made the effort to argue that his claims were not fully
support Witham’s position. Even assuming—without                    and fairly considered, but the record clearly shows that they
deciding the question—that Townsend applies in the military         were. Because Witham is conclusively not entitled to relief,
context, it nevertheless applies only where the petitioner can      no hearing was required.
show that he was not afforded a full and fair evidentiary
hearing in the courts below. Witham has not made any                  Finding no abuse of discretion, we AFFIRM the judgment
showing that the military courts failed fully and fairly to         of the district court.
gather and evaluate the evidence relating to his claims. Even
if Witham had tried to make such a showing, the record
indicates that he would have failed. The Navy-Marine Corps
Court of Criminal Appeals evaluated a detailed record from
the court-martial on each of the claims Witham presented to
it.
   Moreover, the Townsend Court made it clear that, where a
petitioner asserted that he had not received a full and fair
evidentiary hearing in a state court, the district court retained
the discretion to make the threshold determination of whether
or not a full and fair hearing occurred in the lower courts.
The court explained, “[o]ur final category [the circumstance
under which a habeas applicant did not receive a full and fair
hearing] is intentionally open-ended because we cannot here
anticipate all the situations wherein a hearing is demanded.
It is the province of the district judges first to determine such
necessities in accordance with the general rules.” Id. at 317-
18.
   The standard the district courts must apply requires them
first to determine whether a factual dispute exists, and second,
to determine whether the record conclusively shows that the
petitioner is not entitled to relief. Ross, 339 F.3d at 490.
Only if the court finds a factual dispute and that the petitioner
may be entitled to relief should it grant an evidentiary
hearing.
