                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                October 30, 2008
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                           FOR THE TENTH CIRCUIT




    SOLOMON J. TEMPLAR, formerly
    known as Joseph L. Thomas,

         Petitioner - Appellant,
                                                        No. 08-3094
    v.                                        (D.C. No. 5:05-CV-03009-RDR)
                                                         (D. Kan.)
    COLONEL HARRISON,
    Commandant,

         Respondent - Appellee.


                            ORDER AND JUDGMENT *


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


         Solomon J. Templar, previously known as Joseph L. Thomas, appeals

pro se from the denial of his 28 U.S.C. § 2241 habeas petition. He was convicted

and sentenced to death by a general court-martial for the premeditated murder of

his wife, but his sentence was overturned by the Court of Appeals for the Armed



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Forces, see United States v. Thomas, 46 M.J. 311 (C.A.A.F. 1997), and he was

resentenced to life in prison with a dishonorable discharge. While incarcerated at

Fort Leavenworth, Kansas, Mr. Templar filed his § 2241 petition in the district

court. Applying our precedent, however, the district court denied relief because

the military courts had accorded full and fair consideration to the issues he raised.

      In this appeal, Mr. Templar maintains he is entitled to relief due to three

errors stemming from instructions given to the members of the court-martial. He

argues that the military judge (1) misinstructed the members that they could

reconsider non-unanimous findings of guilt; (2) misinstructed the members that

they could reconsider non-unanimous findings of aggravating factors necessary to

authorize a death sentence; and (3) misinstructed the members that a two-thirds

vote was required to impose a life sentence, rather than the actual three-fourths

vote necessary to do so. 1

      The government responds that all three issues were given full and fair

consideration by the military courts, and thus the petition was correctly denied.

The government adds, however, that Mr. Templar’s second and third claims are

moot because his original sentence was set aside. According to the government,

notwithstanding any instructional errors that may have occurred at the original


1
       Mr. Templar also raises several additional claims for the first time in his
reply brief, but because “[t]his court does not ordinarily review issues raised for
the first time in a reply brief,” Stump v. Gates, 211 F.3d 527, 533 (10th Cir.
2000), we deem those claims waived.

                                         -2-
sentencing hearing, the latter two claims are moot because they relate to issues

that did not arise at resentencing.

      We begin with Mr. Templar’s first claim. “We review the district court’s

denial of habeas relief de novo,” Fricke v. Sec’y of Navy, 509 F.3d 1287, 1289

(10th Cir. 2007), but our review of court-martial proceedings is “limited generally

to jurisdictional issues and to determination of whether the military gave [full

and] fair consideration to each of the petitioner’s constitutional claims,” id. at

1290 (quotation and emphasis omitted); see also Burns v. Wilson, 346 U.S. 137,

142 (1953) (extending the scope of federal civil court review over court-martial

proceedings where the military courts had not “dealt fully and fairly” with a

petitioner’s claims). An issue receives full and fair consideration if it has been

briefed and argued, even if the military court summarily disposes of the matter.

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

      Mr. Templar repeats his contention raised in the military courts that the

judge misinstructed the members that they could reconsider a non-unanimous


2
       Some prior decisions from this court elaborate four factors to be considered
before granting habeas review of military cases. See, e.g., Roberts v. Callahan,
321 F.3d 994, 996 (10th Cir. 2003) (“1. The asserted error must be of substantial
constitutional dimension. 2. The issue must be one of law rather than of disputed
fact already determined by the military tribunals. 3. Military considerations may
warrant different treatment of constitutional claims. 4. The military courts must
give adequate consideration to the issues involved or apply proper legal
standards.” (quotation and ellipses omitted)). Here, the dispute concerns whether
Mr. Templar’s claim received full and fair consideration, and thus our analysis
focuses on that inquiry.

                                          -3-
finding of guilt. But after great scrutiny, the military appellate courts rejected

this claim. See United States v. Thomas, 39 M.J. 626 (N-M.C.M.R. 1993), aff’d,

43 M.J. 550, 581 (N-M. Ct. Crim. App. 1995), aff’d in part and rev’d in part on

other grounds, 46 M.J. 311 (C.A.A.F. 1997); see also United States v. Thomas,

60 M.J. 521, 535-36 (N-M.C.M.R. 2004) (declining to consider claim after

remand but noting that relief would be inappropriate). Because the claim has

already received full and fair consideration, we may not now grant the writ

“simply to re-evaluate the evidence.” Lips v. Commandant, U.S. Disciplinary

Barracks, 997 F.2d 808, 811 (10th Cir. 1993) (quotation omitted). The district

court was therefore correct to deny relief on Mr. Templar’s first claim.

      As for Mr. Templar’s second and third claims, we take up the mootness

question under a de novo standard of review. See R.M. Inv. Co. v. United States

Forest Serv., 511 F.3d 1103, 1107 (10th Cir. 2007), cert. denied, 128 S. Ct. 2484

(2008). The issue of mootness is a threshold consideration “because the existence

of a live case or controversy is a constitutional prerequisite to federal court

jurisdiction.” Garcia v. Bd. of Educ. of Albuquerque Pub. Sch., 520 F.3d 1116,

1123 (10th Cir. 2008) (quotation omitted). The case or controversy requirement

ensures “that, throughout the litigation, the [complaining party] must have

suffered or be threatened with, an actual injury traceable to the [opposing party]

and likely to be redressed by a favorable judicial decision.” Id. (quotation

omitted).

                                          -4-
      Mr. Templar predicates his second and third claims on the instructions and

attendant voting methods used to determine his original sentence. Pursuant to

Rule for Courts-Martial (RCM) 1004(b)(4)(A), members cannot authorize a

sentence of death unless they find at least one aggravating factor. An aggravating

factor is found when the members vote by secret written ballot and unanimously

“concur in a finding of the existence of at least one such aggravating factor.”

RCM 1004(b)(7). If the members ultimately choose to impose a sentence of

confinement for life, they must do so by a three-fourths vote. RCM

1006(d)(4)(B).

      Mr. Templar contends in his second claim that the military judge wrongly

instructed the members that if they did not unanimously agree on an aggravating

factor, and there was a request to reconsider their votes, the members could recast

their votes to reach a unanimous decision. Mr. Templar asserts that without

mandating that members vote only once by secret written ballot, this instruction

permitted members to cast multiple oral votes in violation of RCM 1004(b)(7),

which potentially allowed senior ranking members to influence the votes of junior

members. In his third claim, Mr. Templar contends that the military judge

misinstructed the members that only a two-thirds vote was necessary to impose a

life sentence, rather than the three-fourths vote required by RCM 1006(d)(4)(B).

      We agree that these claims are moot, although for reasons somewhat

different than those proffered by the government. The asserted errors potentially

                                         -5-
prejudiced Mr. Templar in two ways, the first of which is obvious: permitting the

members to cast multiple oral votes could have facilitated the imposition of the

death penalty, since senior ranking members could have pressured junior members

to acquiesce in the punishment of death. For our purposes, any prejudice of this

sort was clearly mooted when the C.A.A.F. set aside Mr. Templar’s death

sentence and ordered a new hearing. The other error – the military judge’s

understatement of the majority of members needed to impose a life sentence –

could not have facilitated the death penalty because, as the Navy-Marine Corps

Court of Criminal Appeals recognized, the instruction only made it easier for the

members to sentence him to life, which we know they did not.

      The second way Mr. Templar could have been prejudiced is less obvious

and requires an understanding of the sentencing process in capital military cases.

Under the Uniform Code of Military Justice, the offense for which Mr. Templar

was convicted, premeditated murder, carries a mandatory sentence of either life in

prison or death. See 10 U.S.C. § 918(1). But if the members cannot agree on an

appropriate sentence, that is, if they do not unanimously decide to impose death,

or do not agree to impose life in prison by a three-fourths majority, the military

judge may declare a mistrial on the sentence and return the case to the convening

authority, who may then “order a rehearing on sentence only or order that a

sentence of no punishment be imposed.” RCM 1006(d)(6); see also Dodson v.

Zelez, 917 F.2d 1250, 1260-61 (10th Cir. 1990) (recognizing that RCM 1006(d)(6)

                                         -6-
authorizes a sentence of no punishment if the required votes are not attained). At

this point, the sentencing alternatives following a mistrial are potentially much

more favorable to the defendant, and consequently, any error that makes it easier

for the members to agree on a sentence prejudices the defendant by preempting

the potential for a more lenient sentence. The prejudice stemming from this lost

opportunity for leniency can be found in both of Mr. Templar’s claims: multiple

votes could have facilitated the members’ agreement on death, while the judge’s

erroneous instruction could have facilitated their agreement on life.

      In reality, however, neither claim is redressible because after his sentence

was overturned, Mr. Templar entered into a pre-sentencing agreement with the

convening authority to eliminate his exposure to the death penalty. See ROA,

Vol. 2 at 50-53. And under the terms of that agreement, he affirmatively elected

to be resentenced by a military judge, which effectively waived the possibility of

a mistrial and the potentially favorable sentence that could ensue. Put differently,

after regaining the opportunity for a more lenient sentence if there were a

mistrial, Mr. Templar voluntarily relinquished it in order to secure the certainty

of a life sentence. Therefore, even if we were to hold that his first sentencing

proceeding involved error, we could not afford relief by ordering a potential

benefit that he affirmatively waived. Thus, the claims are moot. 3

3
       The government argues in the alternative that these claims received full and
fair consideration in the military courts. This may be a valid position, but given
                                                                      (continued...)

                                         -7-
      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     David M. Ebel
                                                     Circuit Judge




3
 (...continued)
our disposition, we need not address the argument.

                                       -8-
