                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-16-2009

Derrick Laster v. Charles Samuels
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2778




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-2778
                                      ___________

                                DERRICK O. LASTER,
                                                Appellant

                                            v.

                             CHARLES E. SAMUELS,
                                    WARDEN
                      ____________________________________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                         (D.C. Civil Action No. 06-cv-06017)
                      District Judge: Honorable Noel L. Hillman
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   April 14, 2009

          BEFORE: SLOVITER, AMBRO and STAPLETON, Circuit Judges

                             (Opinion filed April 16, 2009 )

                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

      Pro se petitioner Derrick O. Laster is a military prisoner in custody of the Federal

Bureau of Prisons. He appeals from the judgment of the District Court denying his
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons that

follow, we will affirm.

       In 2003, Laster was a Lance Corporal in the United States Marine Corps, stationed

at Camp Lejeune, North Carolina, when an investigation was initiated into whether he

had engaged in sexual intercourse with, and used a video camera to film sexual conduct

with, a 13-year old girl. At a general court marital convened by the 2nd Marine Division,

Laster pled guilty to following three offenses: raping a person under the age of sixteen, in

violation of 10 U.S.C. § 920; taking indecent liberties with a child under the age of

sixteen, in violation of 10 U.S.C. § 934; and willful possession of child pornography, also

in violation of 10 U.S.C. § 934. During the proceedings, Laster, while represented by

appointed military defense counsel, entered into a Stipulation of Fact in which he

admitted the facts underlying the three crimes to which he pled guilty. Laster also signed

a Memorandum of Pretrial Agreement (“PTA”) on August 13, 2003, which outlined the

agreement regarding his sentence, and agreed to the admissibility into evidence of the two

videotaped recordings of himself and the victim.

       On August 28, 2003, Laster appeared with counsel before the court-martial and

pled guilty to the three charges discussed above. He was sentenced to dishonorable

discharge, 25 years confinement, forfeiture of pay and allowances, and a reduction in pay

grade. The convening authority, a Commanding Major General of the Marine Corps, then

approved Laster’s sentence and suspended execution of that portion of the sentence in



                                             2
excess of 14 years, as outlined in the PTA. See 10 U.S.C. 860(c)(2). The convening

authority issued pretrial confinement credit of 136 days (April 14, 2003 to August 27,

2003) and designated Fort Leavenworth, Kansas as the place of confinement. See id.

The record of trial was then sent to the Judge Advocate General of the Navy for review.

See 10 U.S.C. § 864. Because the sentence included a punitive discharge and

confinement for a year or more, the record of trial was referred to the United States Navy-

Marine Corps Court of Criminal Appeals for review of legal error, factual sufficiency and

appropriateness of sentence. See 10 U.S.C. § 866(b). Military counsel from the Navy-

Marine Corps’ Office of Appellate Defense Counsel was appointed to represent Laster in

connection with that review. See 10 U.S.C. 870(c). Laster’s appellate defense counsel

submitted the case to the U.S. Navy-Marine Corps Court of Criminal Appeals without

specific assignments of error,1 and, on May 20, 2004, the Court affirmed. Laster could

have petitioned the United States Court of Appeals for the Armed Forces for review of

the decision, but he did not. See 10 U.S.C. § 867(b). The record does not reflect that

Laster has sought any other form of relief from any military tribunal.



   1
       Appellate counsel’s submission read:

         The undersigned states that they have been designated by the Judge
         Advocate General of the Navy as appellate defense counsel in the above-
         captioned case pursuant to the accused’s required, that they have carefully
         examined the Record of Trial in the case, that they do not admit that the
         findings and sentence are correct in law and fact, and that they submit the
         case on its merits to this Honorable Court without specific assignment of
         errors or brief.

                                               3
       On December 14, 2006, Laster filed a petition pursuant to 28 U.S.C. § 2241 in the

United States District Court for the District of New Jersey. In his petition, Laster raised

three grounds for relief: (1) the provision in the PTA conceding the admissibility of the

videotapes into evidence violated his right to due process and the Rules for Court

Martials § 705(C)(1)(b); (2) the failure of his appellate counsel to raise any issues on

appeal deprived him of the right to an effective appeal; and (3) he did not receive

sufficient credit for time served before trial. The Government initially filed a motion to

dismiss, arguing that the District Court lacked jurisdiction to consider the merits of the

first two claims, and that the third claim was unexhausted and without merit. The District

Court denied Laster’s third claim on the merits, as it was clear that Laster had been

awarded credit for pre-trial time served and Laster failed to indicate what other credit he

thought he was entitled to or why. With respect to the remaining two claims, the District

Court denied the Government’s motion to dismiss, as the record had not yet been filed.

Instead, the Court ordered the Government to file an answer and the military court record.

       Laster then filed a motion for reconsideration regarding the denial of his claim

regarding the credit he received for time served. In it, he requested that the District Court

grant him 7 days’ good time credit for every day in confinement in the brig at Camp

Lejeune due to “the harsh living conditions, treatment by staff, and sanitary conditions.”

Laster alleged, without citation, that other inmates and detainees held in the brig at Camp

Lejeune had been awarded such credit.



                                              4
       On May 21, 2008, after having received an answer from the Government regarding

claims one and two, as well as multiple submissions from Laster regarding the merits of

all three of his claims, the District Court issued an opinion and order denying Laster’s

petition on the merits. Laster appealed.

       The United States District Courts have jurisdiction pursuant to 28 U.S.C. § 2241

over habeas corpus petitions filed by persons confined pursuant to a sentence received

from a military court. See Armann v. McKean, 549 F.3d 279, 285 (3d Cir. 2008). We

have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 & 2253. We most

recently considered the standard of review applied by a federal civil court to a military

prisoner’s habeas petition in Armann, in which we reaffirmed our allegiance to the U.S.

Supreme Court precedent dictating that “when a federal civilian court reviews a habeas

corpus petition of a servicemember convicted in the military courts, Burns v. Wilson

requires the federal habeas court to deny relief where the military courts provided full and

fair consideration to the claim or claims asserted in the habeas petition.” Id. at 286 (citing

Burns v. Wilson, 346 U.S. 137, 142 (1953)). Such review is impossible where, as here,

Appellant has failed to even attempt to exhaust any of his claims through available

military court channels. See Schlesinger v. Councilman, 410 U.S. 738, 758 (1975)

(observing that “federal courts normally will not entertain habeas petitions by military

prisoners unless all available military remedies have been exhausted”); Noyd v. Bond,

395 U.S. 683, 693 (1969) (recognizing “general rule that habeas corpus petitions from



                                              5
military prisoners should not be entertained by federal civilian courts until all available

remedies within the military court system have been invoked in vain”); Gusik v. Schilder,

340 U.S. 128, 131-32 (1950) (analogizing exhaustion in habeas corpus proceedings

involving military prisoners to exhaustion in habeas corpus proceedings involving state

prisoners). Inasmuch as the record reflects that Laster has failed to exhaust his remedies

within the military court system, we will affirm the judgment of the District Court on the

ground that all of his claims are unexhausted.2

       Throughout the proceedings, Laster has argued that he was unable to participate in

his appeal because his trial record was confiscated by the United States Disciplinary

Barracks upon his entry. To the extent Laster seeks to rely on this argument to excuse his

failure to exhaust, we are unpersuaded. Documents submitted by Laster in support of his

claim indicate that, as of May 24, 2004, Laster had received a copy of his Record of Trial.

(Supplemental App., 51.) As the proceedings before the United States Navy-Marine

Corps Court of Criminal Appeals concluded on May 20, 2004, Laster still had sixty days

to petition the United States Court of Appeals for the Armed Forces for review of that

decision. See 10 U.S.C. § 867(b). Accordingly, even assuming Laster lacked access to

his trial record at some point during his appeal proceedings, there is no reason why he



   2
    In so holding, we express no opinion as to what remedies remain available to Laster at
the present time. We do, however, hold that our affirmance is without prejudice to
Laster’s attempting to exhaust any avenues of relief which may remain available to him,
and returning to the District Court at such time as the exhaustion requirement has been
satisfied.

                                              6
could not have presented this issue to the United States Court of Appeals for the Armed

Forces in a timely manner.

      Based on the foregoing, we will affirm the judgment of the District Court.

Appellee’s motion to supplement the record is denied as unnecessary.




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