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

                            FOR THE TENTH CIRCUIT                               April 4, 2017
                        _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
BRENT A. BURKE,

      Petitioner - Appellant,

v.                                                           No. 16-3314
                                                    (D.C. No. 5:15-CV-03245-JWL)
ERICA NELSON,                                                  (D. Kan.)

      Respondent - Appellee.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before HARTZ, O’BRIEN, and PHILLIPS, Circuit Judges.
                   _________________________________

       The Commonwealth of Kentucky tried four times to convict Brent A. Burke of

double murder. Four mistrials resulted. Then the United States Army charged and

convicted Burke for the double murder. In a 28 U.S.C. § 2241 habeas corpus petition,

Burke now argues that the Army lacked jurisdiction to try him and, further, that it

violated his Fifth Amendment rights at trial. Burke is currently in custody at the United

States Disciplinary Barracks in Fort Leavenworth, Kansas. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm the district court’s order denying Burke’s petition.

       *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                             I

       On October 15, 2007, the Commonwealth of Kentucky arrested Burke for

murdering his estranged wife and her former mother-in-law from an earlier marriage. At

all relevant times, Burke was an active-duty sergeant in the Army. Starting in September

2009 and ending in April 2011, Kentucky prosecuted Burke four separate times for the

murders, each trial ending in mistrial—because of evidence mishandling, a sick

prosecution witness, and then two hung juries. Never during these years of legal

proceedings did Burke request a discharge from, or object to his continued enlistment in,

the military. On May 20, 2011, in fact, five days before his May 25 Expiration of Term of

Service (ETS) date, Burke sent a letter to his battalion commander stating his intent to

remain in the Army. On June 29, 2011, after the fourth mistrial, state prosecutors

dismissed the charges against Burke without prejudice. The next day, Kentucky released

Burke into the custody of the United States Army. On July 8, 2011, the Army charged

Burke with the murders and other associated crimes.

       On May 8, 2012, a court-martial panel convicted Burke of the two murders,

burglary, child endangerment, and obstruction of justice. Burke was sentenced to life

confinement without parole, as well as a reprimand, a reduction in rank to private,

forfeiture of all pay and allowances, and a dishonorable discharge. During the appeals

process, Burke first argued to the court-martial convening authority that the Army had

lacked jurisdiction over him and had violated his Fifth Amendment rights by admitting

into evidence at his court-martial his earlier statements to Kentucky police. The

convening authority denied Burke relief. Burke then appealed to the Army Court of

                                             2
Criminal Appeals (ACCA), raising multiple issues, including those premised on

jurisdiction and the Fifth Amendment. After oral argument on the Fifth Amendment

issue, the ACCA affirmed the core findings of guilt and the sentence.1 Burke then

submitted a Petition for Grant of Review to the Court of Appeals for the Armed Forces

(CAAF), once again raising the Fifth Amendment and lack-of-jurisdiction issues, among

a host of others. The CAAF denied Burke’s Petition. Finally, Burke turned to the federal

courts and filed a Petition for Writ of Habeas Corpus in the District of Kansas. On

September 14, 2016, the district court denied Burke’s Petition. Burke now appeals pro se,

raising only the two well-litigated issues of military jurisdiction and the Fifth

Amendment.2

                                              II

       Burke proceeds pro se on appeal, so we construe his pleadings liberally, but we do

not serve as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). We

review de novo the district court’s denial of habeas relief. Fricke v. Secretary of Navy,

509 F.3d 1287, 1289 (10th Cir. 2007). But we generally limit our review of courts-

martial, which are military tribunals of special and limited jurisdiction, to two issues:

(1) was military jurisdiction proper?; and (2) did the military give full and fair

consideration to a petitioner’s constitutional claims? Id. at 1289-90. In reviewing the


       1
        The ACCA dismissed one charge as an unreasonable multiplication of other
charges. The United States had conceded the error. The dismissal did not change the
sentence.
       2
       The district court has already granted Burke in forma pauperis status for this
proceeding.
                                              3
military’s jurisdiction to hear the case, we make our own determination without affording

any deference to the military court’s determination. Id. at 1290. But in evaluating the

“full and fair consideration” standard governing constitutional claims, we deny claims

that were briefed and argued before a military court, even if the result was summary

dismissal. Watson v. McCotter, 782 F.2d 143, 145 (10th Cir. 1986).

       First, Burke claims that the military lacked the proper jurisdiction to try him.

Court-martial jurisdiction did not attach to him, he says, until charges were preferred

against him on July 8, 2011. By that time, he argues, because his ETS date had passed

and because military regulations state that enlistment should end thirty days after an ETS

date, he was no longer in the military and therefore beyond the reach of any court-

martial.

       But Burke is mistaken that he had a right to an automatic or constructive discharge

from the United States armed forces. “[A]ll servicemen, ‘including those awaiting

discharge after expiration of their terms of enlistment’ are subject to the Code of Military

Justice.” Fricke, 509 F.3d at 1290 (quoting Desjardins v. Department of Navy, 815 F.

Supp. 96, 98 (E.D.N.Y. 1993) (quoting 10 U.S.C. § 802(a)(1))). The statute governing

military discharge makes clear that a member of the armed forces “may not be discharged

or released from active duty until his discharge certificate or certificate of release from

active duty . . . and his final pay or a substantial part of that pay, are ready for delivery.”

10 U.S.C. § 1168(a).

       Burke attempts to counter this body of law by pointing to military regulations that

he contends required his discharge before his court martial. In particular, he points to an

                                               4
Army regulation providing that “[i]f charges have not been preferred, the Soldier will not

be retained more than 30 days beyond the ETS unless the general court-martial

convening authority approves retention.” Army Regulation 635-200, 1-22(b). Burke’s

ETS date was May 25, 2011. He was not charged until July 8, 2011, more than thirty

days later.

       But the regulation is not the only law applying here. Courts have already rejected

any view that Regulation 1-22(b) provides an automatic discharge power. In United

States v. Hutchins, 4 M.J. 190, 192 (C.M.A. 1978), the Court of Military Appeals3

acknowledged that the regulation obliges a court-martial convening authority to act when

a service member is retained more than thirty days past his ETS date. Id. But it also

concluded that the regulation “has no effect on court-martial jurisdiction.” Id. Military

regulations must yield to Congressional requirements for military discharge. Id. And the

language Congress used leaves no room for any self-enforcing discharge. See id.;

10 U.S.C. § 1168(a). Burke’s citation to United States v. Russo, 1 M.J. 134, 135 (C.M.A.

1975) does nothing to change this. As Hutchins noted, the defendant in Russo was never

subject to the Code of Military Justice, because recruiter misconduct and failure to meet

enlistment standards rendered the enlistment void from its inception. 4 M.J. at 192. Here,

no one disputes that Burke’s enlistment was valid.4


       3
        The Court of Military Appeals (C.M.A.) later became the Court of Appeals
for the Armed Forces (C.A.A.F.).
       4
         Burke also cites to an unpublished case from our circuit (which the district
court cited), Williams v. Weathersbee, 280 Fed. Appx. 684, 686 (10th Cir. 2008), to
further his automatic-discharge argument. Williams, based in part on a reading of the
                                             5
       Burke might have had a stronger argument had he timely objected to his retention

in the military. See id. (“As no action was taken to separate the appellant from the service

and appellant did not object to his retention, his military status was not terminated.”)

(emphasis added). But he did not. As referenced, five days before his ETS date, he

signaled his intention to re-enlist. He did not object to his military status until July 26,

2011, eighteen days after the military had brought charges against him. And “a demand

[for discharge] made after the preferral of charges is too late.” Id. at 191. But even a

timely objection might not have been enough. In Dickenson v. Davis, 245 F.2d 317, 319

(10th Cir. 1957), at least sixty days had elapsed between a service member’s request for

discharge and charges being brought against him. We upheld court-martial jurisdiction

because of the lack of formal discharge, noting that “the status of the accused as a soldier

was unbroken and the charge against him was based upon an offense committed by him

during his term of enlistment.” Id. That description applies equally well to Burke.

       In the armed forces, formalities matter. “Service in the military, whether by

enlistment or otherwise, creates a status which is not and cannot be severed by breach of


military’s court-martial manual, noted that military jurisdiction “once established
while [the service member] is still a member of the military” can continue past an
ETS date. Id. The implication being, Burke suggests, that if it did not attach before
the ETS date, it cannot do so afterward. This is incorrect. First, as discussed, Army
regulations cannot override Congress’s mandate that discharge not occur until the
proper papers and final pay are ready for delivery. See 10 U.S.C. § 1168(a). Second,
the Manual for Courts-Martial that Williams cited states elsewhere that court-martial
jurisdiction “continues past [an ETS date] until a discharge certificate or its
equivalent is delivered or until the Government fails to act within a reasonable time
after the person objects to continued retention.” Rule 202(a)(2)(B)(i), Manual for
Courts-Martial (2016 ed.). Burke never received discharge papers and never objected
until after being charged.
                                               6
contract unfortified by a proper authoritative action.” Id. Military inaction cannot

substitute for the formalities that Congress has mandated for discharge. The bottom line

is that “[w]hether [the military] should have discharged Petitioner or not, the fact remains

that Petitioner was not discharged.” Fricke, 509 F.3d at 1290. Burke’s discharge papers

and final pay were never ready for delivery. He remained a member of the military until

his sentence that included a dishonorable discharge became final, and thus the military

had proper jurisdiction to try him.5

                                             III

       Burke next claims that his Fifth Amendment rights were violated when his

statements from his interview with Kentucky State Police during the murder investigation

were used against him at his court-martial even though he was not advised of his rights

during questioning. We have no authority to delve into the substance of this claim. As

mentioned, when it comes to court-martial rulings on constitutional claims, our review is

sharply limited: so long as the claim was briefed and argued before a military court, we

must deny the claim. Watson, 782 F.2d at 145. And here Burke made his Fifth

Amendment argument before the convening authority of his court-martial, which

received briefs, heard argument, and then found for the United States. Burke also briefed

his Fifth Amendment claim in his appeal to the ACCA and that court heard arguments on


       5
         Because we find that the military had jurisdiction over Burke even if his ETS
date was May 25, 2011, we need not reach Burke’s preemptive argument against
finding that his civilian confinement extended his ETS date. And because we hold
that the military had proper jurisdiction even if jurisdiction did not attach until
charges were preferred on July 8, 2011, we do not consider whether jurisdiction
actually attached earlier due to a period of confinement or a military investigation.
                                             7
the matter. The court then denied the claim in a written opinion. Burke briefed the issue

again in his Petition for Grant of Review to the CAAF, which summarily denied the

Petition. Those multiple layers of substantive military court review are more than

adequate to foreclose our own review. See id. We conclude that Burke’s Fifth

Amendment claim has already been fully and fairly considered and so deny it.

       We affirm the district court’s denial of Burke’s habeas petition.



                                             Entered for the Court


                                             Gregory A. Phillips
                                             Circuit Judge




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