                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAR 8 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    JOHN C. WHITE,

                Petitioner-Appellant,

    v.                                                  No. 00-3247
                                                 (D.C. No. 99-CV-3162-RDR)
    MICHAEL A. LANSING, Warden,                            (D. Kan.)
    United States Disciplinary Barracks,
    Leavenworth,

                Respondent-Appellee.


                             ORDER AND JUDGMENT           *




Before HENRY , BRISCOE , and MURPHY , 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.




*
      This order and judgment is not binding precedent, except under the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.
       John C. White, pro se, appeals from the dismissal with prejudice of his

petition for habeas corpus filed pursuant to 28 U.S.C. § 2241. Mr. White was

convicted for murder of his infant daughter, aggravated assault, assault

consummated by battery on a child, and three specifications of malicious torture

of his dog and cat by a general court martial. On appeal to the Air Force Court of

Criminal Appeals (AFCCA), Mr. White raised the same issues that later formed

the basis of this habeas petition.   See Appellant’s App. Ex. A;   United States v.

White , No. ACM 31474 (F REV), 1997 WL 643590, at *2, (A.F. Ct. Crim. App.

Oct. 1, 1997) [hereinafter    White II ], aff’d 50 M.J. 131 (C.A.A.F. 1998). In two

separate decisions, the AFCCA dismissed the charges of assault consummated by

battery on a child and aggravated assault as multiplicitous with the greater offense

of murder, ruled against Mr. White on all issues that had been timely raised,

declined to consider two issues that were untimely, and affirmed the sentence as

modified. See United States v. White , No. ACM 31-474, 1996 WL 399973, at *5

(A.F. Ct. Crim. App. July 12, 1996) [hereinafter     White I ], rev’d 47 M.J. 81

(C.A.A.F. 1997); White II , 1997 WL 643590, at *2 . Mr. White then filed this

petition for habeas corpus, raising six basic grounds of alleged error.

       The district court dismissed the petition under   Lips v. Commandant, United

States Disciplinary Barracks , 997 F.2d 808, 811 (10th Cir. 1993), and     Watson v.

McCotter , 782 F.2d 143, 145 (10th Cir. 1986), correctly noting that when a


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military court decision has already dealt fully and fairly with an issue on appeal

that is later raised in a habeas petition, the habeas court may not reach the merits

and must deny the petition. R. Doc. 22, at 2. We have fully reviewed the record

and conclude that the four grounds raised both on direct appeal and in the habeas

petition undoubtedly were fully and fairly considered by the AFCCA while

applying correct legal standards.    See Lips , 997 F.2d at 811. The district court

properly denied the petition on these grounds.

       Mr. White also argued, however, that the AFCCA refused to address the

two “untimely” issues he raised to the AFCCA, and that the habeas court

therefore should have reached the merits on at least those two issues.          See R. Doc.

20, at 1-7. They are (1) whether “the multiple charging of his one act of shaking

his baby to death creates the impression that he is a bad person” and (2) whether

“the specification of Charge I failed to include required elements.”       White II ,

1997 WL 643590, at *2 (expressly declining to consider these issues because they

were untimely and not raised in his original appeal and because defendants are

entitled to only one review under 10 U.S.C. § 866). The district court did not

discuss the difference between these two issues and the other four raised in the

habeas petition other than to state that the AFCCA’s decision addressed claims of

multiplicitous charges and the possible spillover effect of multiple charges.         See

R. Doc. 22 at 3-4.


                                            -3-
       Our review of the AFCCA opinion discloses that its discussion of

multiplicitous charges relates only to convictions on lesser included offenses and

not to the prejudicial effect, if any, that may arise from charging one offense in

multiple ways.   See White I , 1996 WL 399973, at *2. Likewise, the AFCCA did

not discuss any alleged failure to include required elements in the murder charge;

the error alleged and addressed on direct appeal was the legal and factual

sufficiency of evidence of intent.     See id. at *3-*4.

       It is clear that the AFCCA held that Mr. White procedurally defaulted

direct review of these two issues.     See White II , 1997 WL 643590, at *2.

Consequently, in order to obtain habeas review of these two claims, Mr. White

must “show both cause excusing the procedural default and actual prejudice

resulting from the error.”     Lips , 997 F.2d at 812. This he has failed to do. As in

Lips , “nothing in the record before us indicates that there was any ‘excuse’ for

either of these procedural defaults, and hence the ‘cause and actual prejudice’

standard was not met.”       Id. Accordingly, the two claims “will not be reviewed

‘on the merits’ in the present habeas corpus proceeding.”        Id.

       The judgment of the district court is     AFFIRMED .

                                                           Entered for the Court



                                                           Mary Beck Briscoe
                                                           Circuit Judge

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