                                                                            FILED
                            NOT FOR PUBLICATION                             JAN 19 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CURTIS A. GIBBS,                                 No. 11-15166

               Petitioner - Appellant,           D.C. No. 1:07-cv-01563-SKO

  v.
                                                 MEMORANDUM *
J. E. THOMAS,

               Respondent - Appellee.



                    Appeal from the United States District Court
                         for the Eastern District of California
                   Sheila K. Oberto, Magistrate Judge, Presiding **

                           Submitted January 17, 2012 ***

Before:       LEAVY, TALLMAN, and CALLAHAN, Circuit Judges.

       Federal prisoner Curtis A. Gibbs appeals pro se from the district court’s

judgment denying his 28 U.S.C. § 2241 habeas petition challenging his conviction

by court-martial and life sentence for murder. We have jurisdiction under 28


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

        **    The parties consented to proceed before a magistrate judge.

       ***   The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1291, and we affirm.

      Gibbs contends (1) that his dishonorable discharge was an administrative act

that violated 5 U.S.C. § 551 and 32 C.F.R. § 45.3, thereby depriving respondent of

jurisdiction over him; (2) that a member of the military jury committed fraud upon

the court by concealing, during voir dire, prejudicial conversations he had

concerning Gibbs’ case, in violation of his rights under Article 25 of the Uniform

Code of Military Justice and 10 U.S.C. § 825; and (3) that the prosecution

committed gross misconduct in violation of his due process rights under the

Fourteenth Amendment.

      The district court properly dismissed the first claim without prejudice

because Gibbs did not exhaust administrative remedies available to him. See

Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Muhammad v. Sec’y of

Army, 770 F.2d 1494, 1495 (9th Cir. 1985). As for the second and third claims, the

district court properly denied habeas relief because both the United States Navy-

Marine Corps Court of Military Review and the United States Court of Military

Appeals fully and fairly considered those claims. See Broussard v. Patton, 466

F.2d 816, 818 (9th Cir. 1972).

      AFFIRMED.




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