                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               September 1, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT



 DANIEL ISAIAH TAYLOR,

               Petitioner - Appellant,                  No. 09-3083
          v.                                            (D. Kansas)
 MARK S. INCH, Commandant,                    (D.C. No. 5:07-CV-03238-RDR)
 USDB-Ft. Leavenworth,

               Respondent - Appellee.


                            ORDER AND JUDGMENT *


Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.


      Daniel Isaiah Taylor is a military prisoner serving a 30-year sentence for

unpremeditated murder in the United States Disciplinary Barracks at

Ft. Leavenworth, Kansas. He filed a pro se petition for a writ of habeas corpus

under 28 U.S.C. § 2241 in the United States District Court for the District of




      *
       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not binding precedent except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Kansas. The court dismissed the petition and denied relief. We affirm the district

court.

I.       BACKGROUND

         In the early morning hours of November 23, 2003, after a night of drinking,

Mr. Taylor had an argument with fellow soldier Brandon Gallegos and shot him to

death. On January 7, 2004, Mr. Taylor was charged with premeditated murder. A

general court-martial was convened at Fort Lewis, Washington. Mr. Taylor was

represented by appointed military counsel as well as by privately retained

counsel.

         Mr. Taylor’s defense team retained Dr. David D. Moore to conduct a

psychological and substance-abuse evaluation of Mr. Taylor before trial.

Dr. Moore interviewed Mr. Taylor on March 6 and issued a report summarizing

his findings and conclusions on April 12. Dr. Moore concluded that at the time of

the incident (1) Mr. Taylor suffered from a “mental disease and defects” that

prevented him from “form[ing] the requisite specific intent and mens rea included

in the charges,” R., Vol. 1 at 187–88, (2) Mr. Taylor’s intoxication “could not be

considered voluntary” because of his “preceding relapse into active alcoholism

due to the contributing acute symptoms of ADHD,” id. at 188, and (3) Mr. Taylor

“by reason of involuntary intoxication and related behavioral health problems . . .

lacked culpability for the crime charged,” id.




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      Dr. Moore informed Mr. Taylor’s defense team of his conclusions on

March 14, 2004, before completing the April 12 report. On March 17 the defense

team filed a notice with the court-martial informing it of Dr. Moore’s conclusion

that Mr. Taylor lacked mental responsibility for the crime charged. As a result,

the presiding military judge ordered an inquiry into Mr. Taylor’s mental capacity

and responsibility under Rule for Courts-Martial 706. A sanity board, consisting

of one psychiatrist and one psychologist, was convened to evaluate Mr. Taylor.

On April 5 the board concluded that at the time of the incident Mr. Taylor did not

suffer from “a severe mental disease or defect” and that he was not “unable to

appreciate the nature and quality or wrongfulness of his conduct.” Id. at 93.

      On March 25 Mr. Taylor entered into an agreement under which he would

plead guilty to the lesser-included charge of unpremeditated murder. On the same

date, he signed a stipulation of facts regarding the incident; and on April 14 he

pleaded guilty to unpremeditated murder. Before accepting his plea, the military

judge engaged him in a lengthy discussion. The judge explained the elements of

the offense to which he had pleaded guilty and asked him to describe the facts

surrounding the incident. The judge asked several questions to determine

Mr. Taylor’s mental state at the moment he shot Gallegos. Mr. Taylor answered

affirmatively the judge’s question: “[D]id you acquire the intent to inflict great

bodily harm upon Specialist Gallegos?” Id. at 74. The judge also discussed with

Mr. Taylor the potential applicability of the affirmative defenses of self-defense

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and heat of passion. The judge accepted Mr. Taylor’s plea and sentenced him to a

reduction in rank, a forfeiture of all pay and allowances, a dishonorable

discharge, and 65 years’ confinement. On June 25, 2004, the convening authority

disapproved confinement exceeding 30 years but approved the remainder of the

sentence.

      Mr. Taylor’s case was forwarded to the Army Court of Criminal Appeals

(ACCA) for mandatory review. Instead of pursuing his appeal before the ACCA,

however, Mr. Taylor filed with the ACCA a Petition for a Writ of Extraordinary

Relief in the Nature of a Writ of Habeas Corpus. The petition raised two issues:

(1) that Mr. Taylor had received ineffective assistance of counsel because his

defense team had failed, after repeated requests, to provide him with a copy of

Dr. Moore’s report; and (2) that he had received ineffective assistance of counsel

because his defense team had failed to present Dr. Moore’s conclusions to the

court-martial. On September 29, 2004, the ACCA denied Mr. Taylor’s petition,

stating: “On consideration of the Petition for Extraordinary Relief in the Nature

of a Writ of Habeas Corpus filed by Petitioner pro se in the above cause on 29

September 2004, the Petition is DENIED.” Id. at 120. The court provided no

further discussion or reasoning.

      Mr. Taylor appealed the denial of his petition to the Court of Appeals for

the Armed Forces (CAAF). He contended (1) that the ACCA had erred by

denying his petition, and (2) that he had received ineffective assistance of

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appellate counsel because his appellate counsel had refused to move for a new

trial or to provide assistance with his petition. On December 20, 2004, the CAAF

remanded Mr. Taylor’s appeal to the ACCA to determine whether Mr. Taylor was

seeking to sever the attorney-client relationship. On March 9, 2005, the CAAF

dismissed Mr. Taylor’s pro se appeal because he was represented by counsel. On

April 25 the ACCA issued an order granting Mr. Taylor’s request to withdraw his

case from the automatic-review process.

      On April 27 Mr. Taylor filed a Petition for a Writ of Mandamus or in the

Alternative a Writ of Prohibition in federal district court, requesting an order to

compel the Army to appoint a military lawyer to represent him in the review of

his conviction by the Office of the Army Judge Advocate General (JAG). The

district court denied the petition.

      On June 21 Mr. Taylor filed an Application for Relief from Court-Martial

Findings And/Or Sentence with the Office of the Army Judge Advocate General

(JAG). He contended (1) that the judge had failed to explain the defenses of

voluntary intoxication 1 and lack of mental responsibility to him after his

statements at the plea hearing established the elements of those defenses, (2) that

he had not been aware of Dr. Moore’s conclusions before he pleaded guilty, and


      1
       In a later filing before the district court Mr. Taylor contended that the term
voluntary intoxication in this petition was a typographical error, and that he
meant to state that the judge had failed to resolve the defense of involuntary
intoxication.

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(3) that he had received ineffective assistance of counsel because his defense

team failed to inform him of Dr. Moore’s conclusions and discuss with him a

defense of lack of mental responsibility. On November 30, 2005, Mr. Taylor

received a letter from Charles A. Cosgrove, General Attorney, Criminal Law

Division of JAG, which stated:

      Pursuant to a delegation of authority from The Judge Advocate
      General, I completed action on your Application for Relief pursuant
      to Article 69(b) of the Uniform Code of Military Justice on
      November 30, 2005. After thoroughly reviewing the record and
      considering all arguments raised in your request, I determined that
      the findings are correct in law and fact.

Id. at 190. Attached was a document labeled “Action Pursuant to Article 69(b)

Uniform Code of Military Justice,” id. at 191. Signed by Cosgrove “FOR THE

JUDGE ADVOCATE GENERAL,” it stated:

      In the general court-martial case of United States v Private First
      Class Daniel I. Taylor, . . . the accused’s Application for Relief
      pursuant to Article 69(b), Uniform Code of Military Justice, the
      record of trial, the entirety of the Application for Relief, specifically
      to include the assignments of error, and all relevant documentation
      have been carefully reviewed.

      I find that the applicant has not established a proper and specific
      basis for relief under one or more of the enumerated statutory
      grounds. Accordingly, the Application for Relief is denied.

Id.

      On June 20, 2006, Mr. Taylor filed with the CAAF a petition for

extraordinary relief in the nature of a writ of habeas corpus. The record does not




                                         -6-
show what issues Mr. Taylor raised in this petition. Ten days later the CAAF

entered an order stating:

             Notice is hereby given that a petition for extraordinary relief in
      the nature of a writ of mandamus or a writ of habeas corpus was filed
      under Rule 27(a) on June 20, 2006, and placed on the docket this
      30th day of June, 2006. On consideration thereof, it is, by the Court,
      this 30th day of June, 2006,

             ORDERED:

             The said petition is hereby denied.

Id. at 193. And on July 26 Mr. Taylor filed with the ACCA a Petition for Writ of

Extraordinary Relief challenging the denial by the JAG of his Application for

Relief. He contended (1) that the JAG had erroneously determined that his

conviction and sentence were supported by law, and (2) that he had not received a

full and fair review of his conviction. On August 22, 2006, the ACCA entered an

order stating: “On consideration of the Petition for Writ of Extraordinary Relief

filed in the above cause on 2 August 2006, the Petition is hereby DENIED.” Id.

at 199.

      Finally, on September 13, 2007, Mr. Taylor filed his petition for relief

under 28 U.S.C. § 2241 in federal district court. He raised three grounds for

relief: (1) that the military judge had failed to resolve the defenses of involuntary

intoxication and lack of mental responsibility, ignoring his statements at the plea

hearing that he was intoxicated at the time of the offense and not inquiring about

the results of his mental evaluation; (2) that before his plea he had not been fully

                                         -7-
informed of his mental-health status or of the potential defense of lack of mental

responsibility; and (3) that he had received ineffective assistance of counsel

because his defense team had failed to inform him of Dr. Moore’s conclusions

and discuss a possible mental-responsibility defense.

      The district court denied Mr. Taylor’s petition. It decided that Mr. Taylor

had raised his claims through his application for relief with the JAG and through

his petition for extraordinary relief with the ACCA, and that he had received a

full and fair review. Accordingly, it dismissed his § 2241 petition.

II.   DISCUSSION

      Our review of court-martial proceedings is very limited. See Burns v.

Wilson, 346 U.S. 137, 142 (1953).

      If the grounds for relief that Petitioner raised in the district court
      were fully and fairly reviewed in the military courts, then the district
      court was proper in not considering those issues. Likewise, if a
      ground for relief was not raised in the military courts, then the
      district court must deem that ground waived. The only exception to
      the waiver rule is that a petitioner may obtain relief by showing
      cause and actual prejudice.

Roberts v. Callahan, 321 F.3d 994, 995 (10th Cir. 2003) (citations omitted).

“When an issue is briefed and argued before a military board of review, we have

held that the military tribunal has given the claim fair consideration, even though

its opinion summarily disposed of the issue with the mere statement that it did not

consider the issue meritorious or requiring discussion.” Watson v. McCotter, 782

F.2d 143, 145 (10th Cir. 1986); see also Armann v. McKean, 549 F.3d 279,

                                         -8-
292–93 (3rd Cir. 2008) (full and fair review satisfied when military prisoner had

sufficient opportunity to raise claim before court-martial and to argue claim on

appeal to military appellate court, despite summary disposition of claim by

military appellate court). Under this standard Mr. Taylor is not entitled to relief

in federal court.

III.   CONCLUSION

       We AFFIRM the judgment below.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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