                                                                                    F I L E D
                                                                             United States Court of Appeals
                                                                                     Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                     APR 9 2004
                              FOR THE TENTH CIRCUIT
                                                                                PATRICK FISHER
                                                                                           Clerk

    BRETT WRIGHT,

                Petitioner-Appellant,

    v.                                                             No. 03-3214
                                                           (D.C. No. 02-CV-3126-RDR)
    COMMANDANT, USDB,                                                (D. Kan.)

                Respondent-Appellee.


                              ORDER AND JUDGMENT                   *




Before SEYMOUR , Circuit Judge, BRORBY , Senior Circuit Judge, and
HENRY , Circuit Judge.



         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 F ED . R. A PP . P. 34(a)(2); 10   TH   C IR . R. 4.1(G). The case is

therefore ordered submitted without oral argument.

         Petitioner Brett Wright appeals the district court’s decision denying him

habeas corpus relief,    see 28 U.S.C. § 2241, from his convictions and sentence


*
      This order and judgment is not binding precedent, except under the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.
imposed in an Army general court-martial. We affirm.

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

proceedings. See Burns v. Wilson , 346 U.S. 137, 139-42, 144 (1953) (plurality).

If the military courts have fully and fairly reviewed Pvt. Wright’s claims, we

cannot review them.    See Roberts v. Callahan , 321 F.3d 994, 995 (10th Cir.),

cert. denied , 124 S. Ct. 447 (2003). In determining whether we can review a

claim, we consider four factors:

       1. The asserted error must be of substantial constitutional
       dimension. . . . 2. The issue must be one of law rather than of
       disputed fact already determined by the military tribunals. . . .
       3. Military considerations may warrant different treatment of
       constitutional claims. . . . 4. The military courts must give adequate
       consideration to the issues involved and apply proper legal standards.

Id. at 996 (quotation omitted). These factors “merely aid[] our determination of

whether the federal court may reach the merits of the case,” and do not “constitute

a separate hurdle” to federal-court review.         Id. at 997.

       After considering these four factors and independently reviewing the

record, see id. , we conclude the military courts fully and fairly considered

Pvt. Wright’s claims four through seven,      1
                                                  in which he alleges the court-martial




1
      Pvt. Wright asserted an eighth claim in his § 2241 petition, challenging the
Army Court of Appeals’ decision to reassess his sentence, rather than remand for
a new sentencing proceeding. Pvt. Wright, however, does not reassert that claim
before this court. We therefore deem it abandoned.

                                              -2-
proceedings denied him due process, the trial record was incomplete,     2
                                                                             the

convening authority exercised improper command control, and the judge abused

his discretion in denying Pvt. Wright’s challenge to a court-martial member for

cause. We thus may not review these claims.        See id.

       This court can, however, consider habeas claims challenging the

court-martial’s jurisdiction.    See, e.g., McClaughry v. Deming   , 186 U.S. 49,

68-69 (1902); Monk v. Zelez , 901 F.2d 885, 888 (10th Cir. 1990) (per curiam).

Pvt. Wright characterizes his first three claims as jurisdictional arguments. We

nevertheless conclude these claims do not warrant habeas relief.

       “A court-martial organized under the laws of the United States is a court of

special and limited jurisdiction.”    Runkle v. United States , 122 U.S. 543, 555

(1887). “[W]holly unlike the case of a permanent court created by constitution or

by statute,” however, a court-martial “is a special body convened for a specific

purpose, and when that purpose is accomplished its duties are concluded and the

court is dissolved.”   Deming , 186 U.S. at 64. Further, it is a “creature of statute,

and, as a body or tribunal, it must be convened and constituted in entire

conformity with the provisions of the statute, or else it is without jurisdiction.”



2
       In his brief, Pvt. Wright now asserts this claim implicates the
court-martial’s jurisdiction, as well as due process. To the extent this claim does
implicate the court-martial’s jurisdiction, it does so based only on the same
allegations we later address as part of Pvt. Wright’s first claim.

                                            -3-
Id. at 62.

       In challenging his court-martial’s jurisdiction, Pvt. Wright first contends

the particular court-martial that tried and convicted him lacked jurisdiction

because it was formed under court-martial convening order (CMCO) nine but his

case was originally referred under CMCO seven. Even if this were error, it would

not be jurisdictional error.   See, e.g., United States v. King   , 28 M.J. 397, 398-99

(C.M.A. 1989); United States v. Emerson , 1 C.M.A 43, 44-45 (1951);          United

States v. Fields , 17 M.J. 1070, 1071 (A.F.C.M.R. 1984). Because the military

courts already fully and fairly considered this claim, we are unable to review it

further. See Roberts , 321 F.3d at 997.

       Pvt. Wright next asserts that the convening authority, Col. Hardesty, did not

personally appoint one of the court-martial members, Lt. Col. Harmon, as

required by 10 U.S.C. § 825(d)(2). This claim does implicate the court-martial’s

jurisdiction, see, e.g., United States v. Ryan     , 5 M.J. 97, 101 (C.M.A. 1978), but

nevertheless fails. Col. Hardesty submitted an affidavit to the Army Court of

Appeals asserting that he did personally choose Lt. Col. Harmon, although he

referred to Lt. Col. Harmon by his command title rather than by his name. Based

on that uncontested affidavit, the court found that Col. Hardesty had personally

and properly appointed Lt. Col. Harmon to Pvt. Wright’s court-martial. We are

not free to reweigh the evidence underlying that factual finding,       see, e.g., Dodson


                                             -4-
v. Zelez , 917 F.2d 1250, 1254 (10th Cir. 1990),     which was sufficient to establish

the court-martial’s jurisdiction over Pvt. Wright’s case,        see United States v.

Allgood , 41 M.J. 492, 496 (C.A.A.F. 1995) (finding jurisdiction where record

showed convening authority did personally select court-martial members).

       Pvt. Wright also argues that the military judge who presided over his trial,

Col. Merck, was not properly detailed to that particular court-martial.

See generally 10 U.S.C. § 826(c). It is not clear this claim implicates the

court-martial’s jurisdiction.     Compare United States v. Robinson      , 43 M.J. 501,

504 (A.F. Ct. Crim. App. 1995) (concluding propriety of military judge’s detail is

not jurisdictional) with United States v. Hutto , 29 M.J. 917, 919 (A.C.M.R. 1989)

(“Proper appointment of the military judge is a jurisdictional prerequisite to the

proper composition of a courts-martial [sic].”). Even so, Col. Merck began Pvt.

Wright’s trial by declaring that he had been properly detailed, an assertion that

has been held sufficient absent contrary evidence.          See Hutto , 29 M.J. at 918-19.

Pvt. Wright failed to present any evidence calling Col. Merck’s assertion into

question. Cf. United States v. Price , 7 M.J. 644, 645 (A.C.M.R. 1979) (rejecting

similar claim under prior law);     United States v. Shearer , 6 M.J. 737, 739

(A.C.M.R. 1978) (same, in dicta).       Pvt. Wright also failed to object to Col. Merck

conducting the trial, a deficiency which waived his right to challenge the judge’s

detailing. See Robinson , 43 M.J. at 504 (failure to object forfeited challenge to


                                             -5-
judge’s detailing absent plain error).

       Finally, Pvt. Wright asserts that his court-martial included enlisted

members even though he never requested such a panel, in contravention of

10 U.S.C. § 825(c)(1) (providing for court-martial that includes enlisted members

only if accused so requests). We assume this claim implicates the court-martial’s

jurisdiction. See United States v. Hood , 37 M.J. 784, 785-86 (A.C.M.R. 1993);

United States v. Acevedo-Colon       , 2 M.J. 969, 971 (A.C.M.R. 1976).     But see Davis

v. Lansing , 202 F. Supp. 2d 1245, 1252-53 (D. Kan. 2002)         (suggesting the

contrary), aff’d , 65 Fed. Appx. 197 (10th Cir. Mar. 28, 2003).       Nonetheless, the

record specifically indicates that, immediately before trial, Pvt. Wright did

request that his court-martial include enlisted members.        See Respondent’s Dist.

Ct. Answer, attach. 3 at 166. Pvt. Wright conceded that he had made that same

request in an earlier pretrial session.    See id. , attach. 7 at 2 n.2 (Pvt. Wright’s

pro se direct-appeal brief).

       We are thus satisfied that Pvt. Wright’s court-martial had jurisdiction.

The judgment of the district court is therefore AFFIRMED. Pvt. Wright’s motion

for discovery filed with this court is DENIED.




                                              -6-
The mandate shall issue forthwith.


                                       Entered for the Court



                                       Stephanie K. Seymour
                                       Circuit Judge




                                 -7-
