                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-13-2005

Fell v. Zenk
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3002




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                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 04-3002
                                   ________________

                                  THOMAS E. FELL,
                                                        Appellant

                                            v.

                                 MICHAEL ZENK
                      ____________________________________

                    On Appeal From the United States District Court
                       For the Middle District of Pennsylvania
                             (D.C. Civ. No. 01-cv-00266)
                     District Judge: Honorable James M. Munley
                            __________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    JULY 1, 2005

            Before: RENDELL, AMBRO AND FUENTES, CIRCUIT JUDGES


                                  (Filed : July 13, 2005)
                                   _________________

                                      OPINION
                                  _________________


PER CURIAM

      This is an appeal by Thomas E. Fell from an order dismissing his petition for a writ

of habeas corpus. Fell was convicted in 1989 of felony murder, robbery, and sodomy

following a general court martial, and he is serving a sentence of imprisonment of 25
years. His conviction was affirmed by the Army Court of Military Review, see United

States v. Fell, 33 M.J. 628 (A.C.M.R. 1991),1 and review was denied by the Court of

Military Appeals, see United States v. Fell, 36 M.J. 40 (C.M.A. 1992). Fell, who was at

the time imprisoned at the Federal Correctional Institution at Allenwood in White Deer,

Pennsylvania, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in

United States District Court for the Middle District of Pennsylvania. The District Court

denied his petition and motion for reconsideration, and this appeal followed.

       We will affirm.2 The United States District Courts have jurisdiction under 28


   The Army Court of Military Review is now known as the Army Court of Criminal
Appeals.

     We conclude that we have jurisdiction. Federal Rule of Appellate Procedure
4(a)(1)(B) provides that a notice of appeal be filed within 60 days after entry of judgment
where the United States is a party. Judgment was entered in this case on January 27,
2004. Fell’s notice of appeal filed on July 15, 2004 was filed several months too late. A
timely filed Rule 59(e) motion for reconsideration will toll the time for taking an appeal,
Fed. R. App. Pro. 4(a)(4)(A)(iv), but Fell’s motion for reconsideration was not filed until
February 23, 2004. Federal Rule of Civil Procedure 59(e) provides that such a motion be
filed no later than 10 days after entry of the judgment, or in this case by February 10,
2004. The District Court granted Fell an extension of time to file his motion for
reconsideration, but a district court may not waive or extend the time period in which to
file a Rule 59(e) motion. de la Fuente v. Central Electric Co-op, Inc., 703 F.2d 63, 65 (3d
Cir. 1983). See also Fed. R. Civ. Pro. 6(b). The Court’s order doing so thus is a nullity.
However, a prisoner’s motion for reconsideration will be deemed filed at the time it is
delivered to prison authorities for mailing. Smith v. Evans, 853 F.2d 155, 161 (3d Cir.
1988). We find that Fell delivered his motion for reconsideration to prison authorities for
mailing on February 8, 2004. We base our conclusion on the fact that his affidavit in
support of his motion for reconsideration is dated February 7. The motion for
reconsideration includes a certificate of service indicating a mailing date of “January 8, ”
which we do not believe was the correct mailing date; however, Fell could have merely
misstated the month. Because we find that the motion was mailed on February 8, it was
timely under Smith v. Evans, and tolled the time for taking an appeal. The order denying

                                             2
U.S.C. § 2241 over habeas corpus petitions filed by persons confined pursuant to a

sentence received from a military court. However, absent a challenge to the

constitutionality of the statute under which the petitioner was convicted, a court’s inquiry

in a military habeas case may not go further than its inquiry in a state habeas case.

Brosius v. Warden, U.S. Penitentiary, Lewisburg, PA, 278 F.3d 239, 245 (3d Cir. 2002)

(citing Burns v. Wilson, 346 U.S. 137, 142 (1953) ("In military habeas corpus cases, even

more than in state habeas corpus cases, it would be in disregard of the statutory scheme if

the federal civil courts failed to take account of the prior proceedings.”)).

       We thus have assumed, for the sake of argument, that 28 U.S.C. § 2254(d) applies,

see Brosius v. Warden, U.S. Penitentiary, Lewisburg, Pa., 278 F.3d 239, 245 (3d Cir.

2002) and we may not grant relief unless the Army Court’s determination on the merits

resulted in a decision that was contrary to, or involved an unreasonable application of,

clearly established federal law. Id. Such a rule makes sense because the Army Court’s

review is by no means a perfunctory one. See 10 U.S.C. § 866(c).3


the motion for reconsideration was entered on the docket on May 26, 2004. The notice of
appeal filed on July 15, 2004 was filed within 60 days of that order.

   Section 866(c) provides:

              In a case referred to it, the Court of Criminal Appeals may ... affirm only
              such findings of guilty, and the sentence or such part or amount of the
              sentence, as it finds correct in law and fact and determines, on the basis of
              the entire record, should be approved. In considering the record, it may
              weigh the evidence, judge the credibility of witnesses, and determine
              controverted questions of fact, recognizing that the trial court saw and heard
              the witnesses.

                                              3
       On direct appeal to the Army Court of Military Review, Fell argued that the

military judge erred by not giving panel members the felony murder instruction he

requested, specifically, that he must have had the intent to commit the underlying felony

at the time of the actions that caused the victim’s death, and by giving a mistake in fact

instruction that was defective. He also argued that the military judge erred in not properly

accounting for the panel members as required by Rule for Courts-Martial § 813(a), and in

denying his motion for a finding of not guilty of felony murder. Last, he argued that the

evidence was insufficient to support the felony murder, robbery, and sodomy convictions.

Additionally, Fell raised two issues personally, see United States v. Grostefon, 12 M.J.

431, 436-37 (C.M.A. 1982) (providing for means to raise issues appellate counsel deems

unworthy), that he was denied a fair trial because the military judge referred to his

statement as a confession, and his sentence was excessive.

       In a thorough opinion affirming, the Army Court found that the military judge did

err with respect to the mistake of fact instruction; however, the court ruled that Fell

suffered no prejudice as a result of the error. Fell, 33 M.J. at 632. The Army Court found

no error with respect to the military judge’s refusal to give the felony murder instruction

requested by the defense, because the intent to steal required in robbery may be formed

after the commission of an assault which renders the victim helpless. Id. (citing United

States v. Washington, 12 M.J. 1036 (A.C.M.R. 1982)). The Army Court did conclude



10 U.S.C. § 866(c) (West 1998).

                                              4
that the military judge erred by failing to account for all panel members as required by

R.C.M. 813(a)(4); however, the error was not jurisdictional in nature and Fell suffered no

prejudice as a result. Id. at 633-34. The Army Court rejected the remaining claims,

including those Fell raised personally.

       A concise list of Fell’s numerous federal civil habeas claims, including several that

were not raised on direct appeal, appears in the appellee’s brief at pp. 11-13. The

Magistrate Judge, in a Report and Recommendation, which the District Court adopted,

concluded that Fell had received “full and fair consideration” of all issues raised in the

military courts, and he thus was not entitled to habeas relief in a civil court. Claims not

raised in the military courts were waived.4

       Fell moved for reconsideration, contending, among other things, that the District

Court incorrectly concluded that he had not raised four of his habeas claims in the

military courts. Those claims were that the Staff Judge Advocate provided the convening

authority with advice that was materially inaccurate in violation of his duty under Article



    In addition, Fell amended his habeas petition to challenge the United States Parole
Commission’s failure to give him meaningful and annual reviews, and the Bureau of
Prisons’ failure to re-credit him with certain forfeited good time credits. The Magistrate
Judge concluded, and the District Court agreed, that the United States District Court for
the District of New Jersey previously had addressed the parole claim in a separate action
and properly rejected it. The sentence computation claim could not be pressed against the
Bureau of Prisons, because only the Commandant, pursuant to regulation, can restore lost
good time for military prisoners in the custody of the Bureau of Prisons. Fell’s remedy, if
any, would lie with the Department of the Army. Fell has not pursued these issues
concerning parole matters and sentence calculation on appeal, and we thus will not
address them further.

                                              5
34, 10 U.S.C. § 834, he received ineffective assistance of counsel, the military judge

presiding at his court martial was biased, and the prosecutor committed misconduct in

making an inflammatory argument.

       In its original order the District Court determined that it could not address these

issues because Fell did not raise them on direct appeal to the Army Court of Military

Review. On reconsideration, the District Court noted that Fell raised these issues in

subsequent military habeas petitions to the Army Court of Criminal Appeals and the

Court of Appeals to the Armed Forces. Although the District Court still believed that the

issues were waived, it held in the alternative that Fell had failed to show that the claims

were not fully and fairly considered by the military courts, as required by Burns v.

Wilson, 346 U.S. 137, 142 (1953). Because he failed to make the required showing,

relief in a civil court was unavailable to him.

       On appeal, Fell appears to raise the same arguments he raised in his motion for

reconsideration. Turning to those arguments, the record shows that Fell raised all but the

first of them in a pro se Petition for Extraordinary Relief in the Nature of a Writ of

Habeas Corpus with the Army Court of Criminal Appeals. He raised the first argument in

a petition to the Court of Appeals for the Armed Forces. He also unsuccessfully appealed

these decisions. Although we might agree as a general matter that, if an issue was not

raised at any time in the military courts, we may not review it, Watson v. McCotter, 782

F.2d 143, 154 (10 th Cir. 1986), the issue presented by this appeal, whether Fell properly



                                              6
resorted to military habeas petitions to raise claims that were not raised on direct appeal,

is not that issue.

       Fell adequately established that his four arguments were raised in petitions for

extraordinary relief filed in the United States Army Court of Criminal Appeals and the

United States Court of Appeals for the Armed Forces. We are not persuaded that these

arguments would not have been given due consideration such that we would hold them

waived. See, e.g., Diaz v. Navy Judge Advocate General, 59 M.J. 34, 37 (C.A.A.F. 2003)

(granting petition for extraordinary relief, and remanding to Navy-Marine Corps Court of

Criminal Appeals, where delay in direct appeal jeopardized due process guarantee);

United States v. Murphy, 50 M.J. 4, 5 (C.A.A.F. 1998) (discussing openness to collateral

challenges based on ineffective assistance of counsel notwithstanding absence of § 2255

procedure).

       However, even assuming that these arguments are not waived, we agree with the

District Court that they do not provide a basis for habeas relief in a civil court. We have

carefully reviewed the record, and we conclude that Fell’s constitutional rights were not

violated. See Brosius, 278 F.3d at 244 (in Burns “a majority of the Court ... applied a

deferential standard of review to the claims that, on the undisputed facts, the habeas

petitioners’ constitutional rights were violated”). The essential facts here are not in

dispute.5 Fell had consensual sex with an individual he believed to be a woman, and upon



    The legal significance of the facts was, of course, disputed.

                                              7
discovering that the individual was a man, beat him, broke his neck, robbed him after

rendering him helpless, and left him alone and without assistance. The man later died of

his injuries.

       Claims of ineffective assistance of counsel and prosecutorial misconduct

ultimately turn on actual prejudice and the reliability of the verdict. See United States v.

Quick, 59 M.J. 383, 387 (C.A.A.F. 2004) (addressing ineffective assistance of counsel

claims); United States v. Meek, 44 M.J. 1, 5 (C.A.A.F. 1996) (addressing claims of

prosecutorial misconduct). The finding of guilty in Fell’s case was reliable. In addition,

there is no evidence on this record to indicate that the military judge was biased, that the

Staff Judge Advocate misrepresented to the convening officer the Article 32 investigating

officer’s conclusion that the evidence pointed to voluntary manslaughter rather than

felony murder, or that the defense was willing to plead guilty to felony murder. The

decision of the military courts to deny relief on these claims is thus not contrary to federal

law nor an unreasonable application of it. It is entitled to deference, cf. 28 U.S.C. §

2254(d)(1), and there is no basis for granting habeas relief here.

       To the extent that Fell also challenges on appeal the District Court’s determination

that he received “full and fair consideration” of all issues raised on direct appeal, we

agree with the District Court, for the reasons given by the District Court, that the Army

Court’s written opinion establishes that it undertook an analysis of the relevant law and

decided the issues in accordance with military precedent. See District Court Opinion, at



                                              8
7-10; Order Denying Motion for Reconsideration, at 4-5 n.2. That decision is entitled to

deference, cf. 28 U.S.C. § 2254(d)(1), and does not provide a basis for a civil court to

grant habeas relief.

       We will affirm the order of the District Court denying the habeas petition and

motion for reconsideration.




                                             9
