                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JUL 7 2000
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 CHARLES EVANS,

          Petitioner - Appellant,
                                                        No. 00-3127
 v.
                                                   (D.C. No. 00-CV-3115)
                                                     (District of Kansas)
 MICHAEL LANSING,

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before BALDOCK, HENRY and LUCERO, Circuit Judges.



      Charles Evans, appearing pro se, appeals from the district court’s dismissal

without prejudice of his habeas petition pending exhaustion of remedies available

in the military courts. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we

affirm.

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

United States District Court for the District of Kansas, alleging numerous


      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
constitutional violations arising out of his conviction by military court martial in

March 1998. The district court dismissed his petition without prejudice pending

resolution of his direct appeal before the Navy Marine Corps Court of Criminal

Appeals.

      The Supreme Court has stated unequivocally that

      implicit in the congressional scheme embodied in the [Uniform] Code [of
      Military Justice] is the view that the military court system generally is
      adequate to and responsibly will perform its assigned task. . . . [T]his
      congressional judgment must be respected and . . . it must be assumed that
      the military court system will vindicate servicemen’s constitutional rights.
      We have recognized this, as well as the practical considerations common to
      all exhaustion requirements, in holding that federal courts normally will not
      entertain habeas petitions by military prisoners unless all available military
      remedies have been exhausted.

Schlesinger v. Councilman, 420 U.S. 738, 758 (1975) (citing Gusik v. Schilder,

340 U.S. 128, 131-32 (1950); Noyd v. Bond, 395 U.S. 683, 693-94 (1969))

(emphasis added); see also Khan v. Hart, 943 F.2d 1261, 1263 (10th Cir. 1991).

Where a prisoner has failed to raise a claim in the military courts, a federal court

will not review the claim unless the prisoner establishes cause and prejudice for

failing to raise the error. See Lips v. Commandant, United States Disciplinary

Barracks, 997 F.2d 808, 812 (10th Cir. 1993). Based on the record before us,

Evans’s conclusory allegation that exhaustion would be futile does not persuade

us to depart from the general rule requiring exhaustion established in Schlesinger.

Nor is this a case in which a conscientious objector or a civilian, for example, was


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improperly subjected to military court martial, meriting a departure from the

exhaustion requirement. See Parisi v. Davidson, 405 U.S. 34, 42 (1972)

(conscientious objector subjected to court martial); Noyd, 395 U.S. at 696 n.8

(discussing United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955); Reid v.

Covert, 354 U.S. 1 (1957); McElroy v. United States ex rel. Guagliardo, 361 U.S.

281 (1960)) (civilians subjected to courts martial). Absent “harm other than that

attendant to the resolution of his case” within the military system, the district

court correctly dismissed Evans’s petition without prejudice, and no legal

impediment stands in the way of his bringing a § 2241 petition after “all available

military remedies have been exhausted.” Schlesinger, 420 U.S. at 758 (internal

quotations and citations omitted).

      The judgment of the district court is AFFIRMED.

      The mandate shall issue forthwith.

                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




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