                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        April 6, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 KINN EY FITZGERA LD RUSSELL,

               Petitioner-A ppellant,                    No. 06-3394
          v.                                              (D. Kansas)
 JAM ES W . HARRISON, JR.,                       (D.C. No. 06-CV-3126-RDR)
 Commandant, United States
 Disciplinary Barracks,

               Respondent-Appellee.



                            OR D ER AND JUDGM ENT *


Before KELLY, M U RPH Y, and O'BRIEN, Circuit Judges.




      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 case is therefore ordered submitted without oral argument.

      Kinney F. Russell, a military prisoner proceeding pro se, appeals from the

district court’s dismissal of his 28 U.S.C. § 2241 habeas corpus petition. The


      *
        This order and judgment is not binding precedent except under the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.
district court dismissed Russell’s § 2241 petition without prejudice because

Russell had not exhausted his military remedies. See Schlesinger v. Councilman,

420 U.S. 738, 758 (1975). Exercising jurisdiction pursuant to 28 U.S.C. § 1291, 1

we affirm the judgment of the district court.

      Russell does not contend he has exhausted his military remedies. Instead,

he contends the military lost jurisdiction to hold him when he was dishonorably

discharged from the military. Concomitantly, Russell argues that because he is no

longer an active member of the military, the military courts are barred from

review ing, under the Uniform Code of M ilitary Justice, the propriety of his

incarceration. As noted by the district court, however, both the Supreme Court

and this court have held that a complete discharge does not deprive the military of

jurisdiction over individuals similarly situated to Russell. Kahn v. Anderson, 255

U.S. 1, 8-9 (1920); Ricks v. Nickels, 295 F.3d 1124, 1131 (10th Cir. 2002). Thus,

Russell is simply wrong in asserting he cannot exhaust his military remedies

because the military courts no longer have jurisdiction over him and the district

court was correct in dismissing Russell’s § 2241 petition without prejudice based

on Russell’s failure to exhaust.




      1
       Because Russell is a federal prisoner proceeding under § 2241, he need not
obtain a certificate of appealability as a prerequisite to this court reaching the
merits of his appeal. McIntosh v. United States Parole Comm., 115 F.3d 809, 810
n.1 (10th Cir. 1997).

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     The order of the United States D istrict Court for the District of Kansas is

hereby AFFIRM ED.


                                      ENTERED FOR THE COURT



                                      M ichael R. M urphy
                                      Circuit Judge




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