                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         DEC 21 1999
                           FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                Clerk

    ROBERT R. INGHAM,

                Petitioner-Appellant,

    v.                                                  No. 99-3123
                                                  (D.C. No. 96-3065-RDR)
    HERBERT R. TILLERY, Colonel,                          (D. Kan.)
                                                    (42 F. Supp. 2d 1188)
                Respondent-Appellee.


                            ORDER AND JUDGMENT          *




Before EBEL , LUCERO , and MURPHY , Circuit Judges.



         Petitioner, a former member of the United States Army convicted pursuant

to a guilty plea of disobeying an order and breaking arrest, seeks review of the

denial of his petition for writ of habeas corpus brought pursuant to 28 U.S.C.

§ 2241. 1 Following a general court-martial, Petitioner was also convicted of


*
      This order and judgment is not binding precedent, except under the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.
1
       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.
sodomy, indecent acts and indecent liberties with a child, as well as indecent

assault and adultery. He was sentenced to a dishonorable discharge, confinement

for forty years, forfeiture of pay and allowances, and reduction in rank.

      On appeal to the United States Army Court of Military Review, he claimed

that the evidence for the sodomy, indecent acts, and assault offenses was

insufficient, both legally and factually; the specifications for the offenses were

multiplicious for sentencing; the denial of his challenges for cause of two court

members was erroneous; his civilian trial counsel was ineffective; and the

sentence was inappropriate.   See United States v. Ingham , 36 M.J. 990, 991-92

(A.C.M.R. 1993), review granted in part , 39 M.J. 391 (C.M.A. 1994),    aff’d , 42

M.J. 218 (U.S. Armed Forces 1995),     cert. denied, 516 U.S. 1063 (1996). Upon

careful review, the conviction and sentence were upheld.    See United States v.

Ingham , 36 M.J. at 997.

      Petitioner then filed for review in the United States Court of Military

Appeals, presenting eight issues:

      (1)    insufficient evidence;

      (2)    multiplicious charges;

      (3)    error in denying challenges for cause against two members of the

             court;

      (4)    ineffective assistance of defense counsel;


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       (5)    excessive sentence;

       (6)    error in denial of his request for a   DuBay hearing;   2



       (7)    error in denying a continuance; and

       (8)    error in the admission of a video tape.

See Ingham v. Tillery , 42 F. Supp. 2d 1188, 1190-91 (D. Kan. 1999).

       In addition, petitioner moved to assert an additional argument that his

defense counsel had failed to object to the alleged erroneous “beyond a

reasonable doubt” instruction.     See Vol. I, Doc. 11, attachment 8;     United States v.

Grostefon , 12 M.J. 431, 436-37 (C.M.A. 1982) (accused’s specified errors must

be drawn to attention of court).

       The United States Court of Military Appeals granted review on three issues:

alleged ineffective assistance of counsel, excessiveness in sentencing, and the

denial of a DuBay hearing. See United States v. Ingham , 39 M.J. 391 (1994).

The court denied petitioner’s motion to raise the argument regarding the alleged

erroneous instruction,   see Vol. I, Doc. 11, attachment 9, and otherwise affirmed

the conviction.   See United States v. Ingham , 42 M.J. 218, 230 (U.S. Armed

Forces 1995).

       In this action, petitioner challenged his conviction on the grounds that


2
       See United States v. DuBay , 37 C.M.R. 411, 413 (C.M.A. 1967)
(establishing procedure for holding hearing to determine issues raised collaterally
which require findings of fact and conclusions of law).

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       (1)    the evidence was insufficient;

       (2)    defense counsel was ineffective;

       (3)    some charges were multiplicious;

       (4)    challenges for cause against two members of the court were

              erroneously denied;

       (5)    excessive sentence;

       (6)    inadequate advice from counsel regarding possible pretrial

              negotiations;

       (7)    loss or destruction of video tape containing favorable evidence;

       (8)    erroneous denial of a DuBay evidentiary hearing; and

       (9)    failure to object to alleged erroneous instruction regarding reasonable

              doubt.

See Ingham v. Tillery , 42 F. Supp. 2d at 1189.

       The district court applied the appropriate review principles as outlined in

Burns v. Wilson , 346 U.S. 137, 142 (1953) (recognizing limited function of civil

courts is to determine whether military courts gave fair consideration to

petitioner’s claims).   See also Lips v. Commandant, United States Disciplinary

Barracks , 997 F.2d 808, 811 (10th Cir. 1993) (acknowledging that under     Burns

where military courts fully and fairly considered claims asserted in federal habeas

corpus petition, the petition should be denied). If issues have been briefed and


                                          -4-
argued before the military tribunal, a federal habeas court assumes the tribunal

has given the claims full and fair consideration even if the military court

summarily disposed of the issues.       See id. at 812 n.2. The district court

determined that all but one issue had been presented to and decided by the

military courts.   See Ingham v. Tillery , 42 F. Supp. 2d at 1192 . We agree.

       We comment on only two of petitioner’s claims. First, as to his claim that

his counsel was ineffective for failing to advise him of “potential benefits in

negotiating a pretrial agreement,” Appellant’s Br. at 21-22, petitioner does not

explain why he did not (or could not) raise the issue within the military court

system. Indeed, his appellate counsel (who was different from trial counsel) did

raise trial counsel’s alleged ineffectiveness as to several other deficiencies in

representation, see United States v. Ingham , 36 M.J. at 995-96; United States v.

Ingham , 42 M.J. at 223-29, which were given thorough consideration.

       Moreover, petitioner could have submitted the particular claim of

ineffective trial counsel on his own.     See United States v. Grostefon , 12 M.J. at

436-37 (outlining procedure permitting accused to raise issues for consideration

by court of military review). Accordingly, we agree that this claim is barred.      See

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

merits of petitioner’s claims if not raised before military courts).




                                             -5-
       Petitioner also contends that the military judge gave an improper

instruction on the definition of reasonable doubt. Specifically, he claims the

language “proof beyond reasonable doubt means proof to a moral certainty”

violates the Supreme Court’s teachings in      Cage v. Louisiana , 498 U.S. 39, 40-41

(1990) (per curiam) (striking, as contrary to reasonable doubt requirement,         an

instruction containing phrases “grave uncertainty,” “actual substantial doubt,” and

“moral uncertainty”).

       In Cage, the Supreme Court was concerned with an instruction equating

reasonable doubt with grave uncertainty and actual substantial doubt, which the

Court concluded “suggest a higher degree of doubt than is required for acquittal

under the reasonable doubt standard.”       See id. at 41. It was the consideration of

those statements along with “the reference to ‘moral certainty,’ rather than

evidentiary certainty” that the Court determined could have caused the jury to find

guilt on a degree of proof below that required under the Due Process Clause.             See

id.

       In petitioner’s case, however, reasonable doubt was not compared to grave

uncertainty or actual substantial doubt.     See United States v. Gray , 37 M.J. 730,

748-49 (A.C.M.R. 1992) (distinguishing        Cage from situation where grave

uncertainty and actual substantial doubt not used),     aff’d , 51 M.J. 1 (1999).

Moreover, the Supreme Court has clarified that “moral certainty language cannot


                                             -6-
be sequestered from its surroundings.”      See Victor v. Nebraska , 511 U.S. 1, 16

(1994) (distinguishing    Cage instruction as simply telling jurors to be morally

certain of defendant’s guilt with nothing else to lend meaning to phrase from the

situation where jurors also told to base conclusion on evidence in case). Here, the

instruction also described reasonable doubt as “not a fanciful or ingenious doubt

or conjecture, but an honest, conscientious doubt suggested by the material

evidence, or lack of it in the case.” Vol. I, Doc. 11, attachment 8 at 12. Finally,

the United States Court of Military Appeals has upheld a virtually identical

instruction as compatible with post-     Cage holdings of the Supreme Court.      See

United States v. Meeks , 41 M.J. 150, 155-57 (C.M.A. 1994). Accordingly, this

issue is without merit.

      For these and the reasons set forth in       Ingham v. Tillery , 42 F. Supp. 2d

1188 (D. Kan. 1999), the judgment of the district court is AFFIRMED. The

mandate shall issue forthwith.

                                           ENTERED FOR THE COURT



                                           Carlos F. Lucero
                                           Circuit Judge




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