                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         MAR 3 2004
                                     TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 ERVIN M. GRAVES,

           Petitioner - Appellant,
 vs.                                                   No. 03-3290
                                               (D.C. No. 01-CV-3152-RDR)
 STEVEN L. ANDRASCHKO,                                   (D. Kan.)

           Respondent - Appellee.


                              ORDER AND JUDGMENT *


Before KELLY, HENRY, and TYMKOVICH, Circuit Judges. **


       Petitioner-Appellant Ervin M. Graves was convicted by a military court

martial of attempted rape and premeditated murder, 10 U.S.C. §§ 880, 918(1),

918(4), and 934. Proceeding pro se, he appeals the district court’s dismissal of

his petition for a writ of habeas corpus under 28 U.S.C. § 2241. In a carefully

drafted memorandum and order, the district court denied all relief. R. Doc. 26.


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      The parties are familiar with the facts and we need not restate them here.

See generally United States v. Graves, 47 M.J. 632, 634-35 (A. Ct. Crim. App.

1997). On appeal, Mr. Graves claims that (1) the construction of the relevant

murder statute, 10 U.S.C. § 918, violates due process because it makes no

meaningful distinction between premeditated and unpremeditated murder, though

providing for different penalties for the two crimes; (2) the jury instructions

failed adequately to distinguish the elements of premeditated murder from those

of unpremeditated murder, and (3) the general court martial was without

jurisdiction because the military judge was not a member in good standing of a

state bar, but rather was an inactive member.

      Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm for

substantially the reasons contained in the district court’s memorandum and order.

The judgment of the district court is

      AFFIRMED.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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