Appellate Case: 23-3138 Document: 010110962359 Date Filed: 12/04/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 4, 2023 _________________________________ Christopher M. Wolpert Clerk of Court EVERALD S. ALLEN, JR.,
Petitioner - Appellant,
v. No. 23-3138 (D.C. No. 5:23-cv-03061-JWL) KEVIN PAYNE, Commandant, United (D. Kan.) States Disciplinary Barracks,
Respondent - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before McHUGH, MURPHY, and CARSON, Circuit Judges. _________________________________
Petitioner Everald S. Allen, Jr., proceeding pro se,1 appeals from the district
court’s denial of his petition for a writ of habeas corpus filed under 28 U.S.C. § 2241.
Mr. Allen, who is confined at the United States Disciplinary Barracks at Fort
Leavenworth, Kansas, argues that the district court erred in declining to reach the merits
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. 1 Because Mr. Allen proceeds pro se, “we liberally construe his filings, but we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
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of his habeas petition after concluding that the United States Army Court of Criminal
Appeals (“ACCA”) had already given those claims full and fair consideration.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s order
denying Mr. Allen relief under 28 U.S.C. § 2241. We also deny Mr. Allen’s motion to
proceed in forma pauperis (“IFP”) because we conclude that he advances no non-
frivolous arguments in this matter.
I. BACKGROUND
Mr. Allen, then a Staff Sergeant in the U.S. Army, was tried for multiple
offenses before a general court-martial at Fort Bragg, North Carolina in May 2013. A
military panel sitting as a general court-martial convicted Mr. Allen of one
specification of aggravated sexual assault, one specification of abusive sexual
contact, and one specification of obstruction of justice. The panel sentenced
Mr. Allen to reprimand, forfeit of all pay and allowances, a reduction in rank,
confinement for twenty years, and dishonorable discharge from service. Mr. Allen
was assigned to confinement at the United States Disciplinary Barracks in Fort
Leavenworth, Kansas.
Mr. Allen appealed his convictions to the ACCA and submitted a brief in
support thereof. Mr. Allen’s brief raised three assignments of error: (1) that the
panel’s findings that Mr. Allen committed sexual assault were factually and legally
insufficient; (2) that military commanders are prohibited from exercising unlawful
command influence (“UCI”) over their subordinate personnel; and (3) that
Mr. Allen’s twenty-year sentence was too severe. Mr. Allen subsequently submitted a
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supplemental brief raising two additional assignments of error: (4) that Mr. Allen was
denied a fair and impartial panel; and (5) that the military trial judge erred by
denying a panel member’s request for a transcript of testimony during deliberations.
In support of his first assignment of error—that the panel’s findings were
factually and legally insufficient—Mr. Allen argued that the victim’s testimony
contained “many inconsistencies and unreliable aspects” and was largely not credible
because of her intoxicated state at the time of the assault. ROA Vol. III at 61–62.
Mr. Allen also noted that there was “no conclusive evidence of rape” and there was
“no DNA linking [Mr. Allen] to the offense of rape.” Id. at 64. In support of his
second assignment of error—that military commanders exercised UCI over his court-
martial proceedings—Mr. Allen argued that military commanders and the President
of the United States exercised UCI by giving orders “to fix the sexual assault
problem in the military.” Id. at 67.
Considering all assignments of error raised by Mr. Allen and arguments in
support thereof, the ACCA affirmed the findings and sentence of the general court-
martial. United States v. Allen, 2016 WL 1221908, at *1 (A. Ct. Crim. App. Mar. 28,
2016). The ACCA held that although Mr. Allen raised five assignments of error in his
appeal, only “[o]ne assignment of error”—whether the military judge erred by
denying a panel request to have a copy of court transcripts to review in the
deliberation room—“merit[ed] discussion but no relief.” Id. The ACCA declined to
discuss the remaining assignments of error. Id.
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Mr. Allen next submitted a petition for grant of review to the United States
Court of Appeals for the Armed Forces (“CAAF”). Mr. Allen raised only three
assignments of error: (1) that the panel’s findings that Mr. Allen committed sexual
assault were factually and legally insufficient; (2) that military commanders are
prohibited from exercising UCI over their subordinate personnel; and (3) that the
military trial judge erred by denying a panel member’s request for a transcript of
testimony during deliberations. The petition for grant of review repeated the
arguments Mr. Allen raised in his initial appeal. With respect to the first assignment
of error, Mr. Allen argued that the panel’s findings were factually and legally
insufficient because the testimony against him was not credible and there was no
physical evidence linking him to the assault. With respect to the second assignment
of error, Mr. Allen argued again that “[s]everal military commanders and the
President of the United States committed Unlawful Command Influence by orders
given to fix the sexual assault problem in the military” via the media. ROA Vol. IV at
70.
The CAAF summarily denied Mr. Allen’s petition for grant of review. Daily
J., 75 M.J. 404 (C.A.A.F. Jul. 25, 2016). Mr. Allen subsequently filed a petition for
reconsideration en banc to the CAAF, arguing only that the military trial judge erred
in denying a panel member’s request for a transcript of trial testimony during
deliberations. The CAAF denied Mr. Allen’s petition for reconsideration.
Mr. Allen, acting pro se, next filed a motion for reconsideration to the ACCA.
In the motion, Mr. Allen argued that he was prejudiced by UCI in his court-martial
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proceedings. The ACCA found that it “lack[ed] jurisdiction to reconsider
[Mr. Allen’s] case given that appellate review of [the] case has been completed,” and
accordingly returned the motion for reconsideration back to the Mr. Allen without
action.
Several years later, Mr. Allen filed a petition for a writ of habeas corpus in
district court under 28 U.S.C. § 2241. In his petition, Mr. Allen asserted three
grounds for the challenge: (1) UCI, (2) factual and legal insufficiency of the panel’s
findings, and (3) a lack of unanimous verdict by the military panel. The district court
deemed Mr. Allen’s third ground—lack of unanimous verdict—to be unexhausted,
and he ultimately proceeded with only the first two grounds.
In support of his claim that the panel’s findings were factually and legally
insufficient, Mr. Allen argued that “there was no evidence or anything of evidentiary
value found” linking Mr. Allen to the assault. ROA Vol. I at 10. In support of his
claim that military commanders exercised UCI over his court-martial proceedings,
Mr. Allen stated that the military panel was prejudiced by “then-president Obama’s
repeated and angered public comments demanding military leaders to prosecute every
allegation of sexual assault by court-martial” and similar sentiments expressed by the
Secretary of Defense. Id.
The district court denied Mr. Allen’s request for habeas corpus relief, holding
that the “the military courts gave full and fair consideration to [Mr. Allen’s] claims.”
Allen v. Payne, 2023 WL 4361209, at *2 (D. Kan. June 30, 2023). The district court
also explained that relief is not warranted because “neither claim involves a pure
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question of law” and that the UCI claim “is peculiar to the military courts and thus
uniquely military considerations could affect any constitutional analysis.” Id.
Mr. Allen appealed to this court.
II. DISCUSSION
A. Legal Standards
“We review the district court’s denial of habeas relief de novo,” but the scope
of our review of military convictions “is limited generally to jurisdictional issues and
to determination of whether the military gave fair consideration to each of the
petitioner’s constitutional claims.” Fricke v. Sec’y of Navy, 509 F.3d 1287, 1289‒90
(10th Cir. 2007) (internal quotation marks omitted); see also Burns v. Wilson, 346
U.S. 137, 144 (1953) (“It is the limited function of the civil courts to determine
whether the military have given fair consideration to [a petitioner’s] claims.”).
Therefore, “where an allegation has been fully and fairly considered by the military
courts, the federal civil courts may not review the merits.” Roberts v. Callahan, 321
F.3d 994, 996 (10th Cir. 2003). “Only when the military has not given a petitioner's
claims full and fair consideration does the scope of review by the federal civil court
expand.” Lips v. Commandant, 997 F.2d 808, 811 (10th Cir. 1993).
In determining whether military courts have failed to afford a claim full and
fair consideration, a federal habeas court must evaluate the following four factors,
often called the Dodson factors:
1. The asserted error must be of substantial constitutional dimension[;] 2. [t]he issue must be one of law rather than of disputed fact already determined by the military tribunals[;] 3. [m]ilitary considerations may 6 Appellate Case: 23-3138 Document: 010110962359 Date Filed: 12/04/2023 Page: 7
warrant different treatment of constitutional claims[;] [and] 4. [t]he military courts must give adequate consideration to the issues involved and apply proper legal standards.
Dodson v. Zelez, 917 F.2d 1250, 1252–53 (10th Cir. 1990) (quotation marks omitted).
“Dodson’s four-factor test illuminates the contours of the full-and-fair-consideration
standard and thereby helps us in determining whether military tribunals have not
fully and fairly considered a petitioner’s claims.” Santucci v. Commandant, U.S.
Disciplinary Barracks, 66 F.4th 844, 856 (10th Cir. 2023) (quotation marks omitted).
“[P]etitioners must establish—in substance—that each of the four Dodson factors
weighs in their favor to be eligible for full merits review of their claims.” Id. In other
words, “a petitioner’s favorable showing regarding [some] Dodson factors,” but not
others, “is not sufficient to set the table for full merits review.” Id. at 857. A
petitioner’s failure to make a showing on any one of the Dodson factors is “fatal to
their efforts to secure full merits review.” Id. at 858.
B. Analysis
With this deferential framework in mind, we turn to Mr. Allen’s habeas
petition. Mr. Allen asserts two claims before this court: the evidence supporting his
convictions is factually and legally insufficient, and his court-martial proceedings
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were unfairly prejudiced by the presence of UCI. Mr. Allen cannot satisfy the
Dodson factors for either of his claims.2
We first conclude that neither of Mr. Allen’s claims involves a pure question
of law. The second Dodson factor “indicate[s] that we may only review issues of law
rather than of disputed fact already determined by the military tribunals.” Santucci,
66 F.4th at 874 (quotation marks omitted). “[I]t is not open to a federal civil court to
grant the writ simply to re-evaluate the evidence.” Id. at 854 (quotation marks
omitted). Mr. Allen’s first claim, for insufficiency of the evidence underlying his
convictions, implicates questions of fact. Mr. Allen argues that the evidence
presented against him at trial was insufficient because, among other purported
reasons, the victim’s testimony was not credible and there was no physical evidence
linking Mr. Allen to the assault. Appellant’s Br. at 7–8. The essential question raised
by this claim is whether the facts in evidence in the court-martial proceeding were
sufficient to justify Mr. Allen’s convictions. Any consideration of this claim would
require us to weigh the credibility of witnesses and the facts in evidence, going
beyond our permissible scope of review of the decisions of military tribunals. See
2 Regarding the first Dodson factor, we briefly note that Mr. Allen argues that his UCI claim presents a Due Process Clause violation in his opening brief and raises for the first time in his reply brief an allegation that the Government knowingly presented falsified evidence during trial. Setting aside the rule that new arguments generally may not be presented in reply, Wheeler v. Comm'r, 521 F.3d 1289, 1291 (10th Cir. 2008), we find we do not need to reach a conclusion as to the first Dodson factor for either claim, since Mr. Allen’s failure to meet other Dodson factors necessarily proves fatal to his claims, see Santucci v. Commandant, U.S. Disciplinary Barracks, 66 F.4th 844, 857 (10th Cir. 2023).
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Santucci, 66 F.4th at 875 (“[I]t [was] not the duty of the civil courts simply to repeat
that process—to re-examine and reweigh each item of evidence of the occurrence of
events which tend to prove or disprove one of the allegations in the applications for
habeas corpus.” (second and third alteration in original) (quoting Burns, 346 U.S. at
144)). Therefore, Mr. Allen’s first claim raises a factual question that renders
improper our review.
Likewise, Mr. Allen’s claim of UCI necessarily involves questions of fact.
Mr. Allen claims that his court-martial proceeding was prejudiced by statements to
the media made by former President Barack Obama, former Secretary of Defense
Chuck Hagel, and former Senator Claire McCaskill urging “a more aggressive stance
on sexual abuse” in the military. Appellant’s Br. at 4. Considering this claim would
require us to evaluate several issues of fact, including whether the statements by
President Obama and other officials “constitute unlawful influence,” whether there
was “unfairness in the court-martial proceedings,” and whether “the unlawful
influence caused that unfairness.” See United States v. Barry, 78 M.J. 70, 77
(C.A.A.F. 2018) (listing the elements required to state a claim for UCI). Therefore,
each of Mr. Allen’s claims involves factual issues rendering improper review on the
merits. Mr. Allen’s failure to show that the second Dodson factor weighs in his favor
with respect to either of his two claims is “fatal to [his] efforts to secure full merits
review.” Santucci, 66 F.4th at 858. Accordingly, we affirm the district court’s order
declining to conduct a full review of his habeas petition on the merits.
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Further buttressing denial of Mr. Allen’s petition, the third Dodson factor also
weighs against Mr. Allen’s UCI claim, because that claim is specific to military
courts.3 See Barry, 78 M.J. at 76 (holding that unlawful influence may be committed
by any person subject to the Uniform Code of Military Justice, that is, members of
the military); see also United States v. Harvey, 64 M.J. 13, 17 (C.A.A.F. 2006) (“Our
responsibility to protect the military justice system against unlawful command
influence comes from our statutory mandate to provide oversight of the military
justice system.”). Since “unique military considerations apply to this issue,”
Mr. Allen’s UCI claim fails to satisfy the third Dodson factor, which is fatal to his
petition for full merits review. Dodson, 917 F.2d at 1253.
Finally, we also conclude that Mr. Allen’s claims fail on “the most important,
that is, the fourth, adequate-consideration factor,” because the military courts fully
and fairly considered each of Mr. Allen’s claims. Santucci, 66 F.4th at 858 (internal
quotation marks omitted). In his appeals before the ACCA and CAAF, Mr. Allen
raised and fully briefed his claims of insufficiency of evidence and UCI. Neither
military appellate court found either issue meritorious or requiring discussion. The
fact that neither court specifically addressed the arguments for each claim does not
favor Mr. Allen. We do not “presume a military appellate court has failed to consider
3 Since we have already concluded that Mr. Allen’s claim does not survive under each Dodson factor, see Santucci, 66 F.4th at 857, and since no arguments are presented concerning whether the sufficiency of the evidence claim implicates unique military concerns, we decline to reach the third Dodson factor concerning Mr. Allen’s sufficiency of the evidence claim.
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all the issues presented to it before making a decision.” Thomas v. U.S. Disciplinary
Barracks, 625 F.3d 667, 672 (10th Cir. 2010). Rather, “[w]hen an issue is briefed and
argued before a military board of review, we have held that the military tribunal has
given the claim fair consideration, even though its opinion summarily disposed of the
issue with the mere statement that it did not consider the issue meritorious or
requiring discussion.” Watson v. McCotter, 782 F.2d 143, 145 (10th Cir. 1986); see
also Roberts v. Callahan, 321 F.3d 994, 997 (10th Cir. 2003) (“[W]here an issue is
adequately briefed and argued before the military courts the issue has been given fair
consideration, even if the military court disposes of the issue summarily.”); see also
Thomas, 625 F.3d at 671 (“[F]ull and fair consideration does not require a detailed
opinion by the military court.”); Lips, 997 F.2d at 812 n.2 (holding that a court gave
full and fair consideration to claims that were not specifically addressed in the
opinion because the court stated that it had “examined the remaining assignments of
error and resolved them against the appellant”).
The ACCA gave full and fair consideration to Mr. Allen’s claims. Mr. Allen
fully briefed the issues of insufficiency of evidence and the presence of UCI in his
petition before the ACCA. The ACCA found that the claims did not “merit[]
discussion,” and affirmed the findings and sentence as adjudged by the court-martial.
Allen, 2016 WL at *1. Therefore, we may conclude that the ACCA court fully and
fairly considered the claims currently before us. We also conclude that the CAAF
gave full and fair consideration to Mr. Allen’s claims when it denied his petition
following “consideration of the petition for grant of review of the decision of the
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United States Army Court of Criminal Appeals.” ROA Vol. III at 39. Because
Mr. Allen has failed to make a sufficient showing as to the fourth—and most
important—Dodson factor, the district court correctly declined to conduct a full
merits review of his claims.
For the foregoing reasons, we affirm the district court’s denial of Mr. Allen’s
petition for habeas corpus.
C. Motion to Proceed In Forma Pauperis
Finally, Mr. Allen has filed a motion to proceed IFP. “In order to succeed on
his motion, an appellant must show a financial inability to pay the required filing fees
and the existence of a reasoned, nonfrivolous argument on the law and facts in
support of the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505
(10th Cir. 1991); see also Fed. R. App. P. 24(a)(3)(A) (providing an exception for
allowing an appellant to proceed IFP when the appeal is not taken in good faith);
United States v. Ballieu, 480 F. App’x 494, 498 (10th Cir. 2012) (unpublished)
(defining “good faith” as presenting a nonfrivolous issue); see also Allen v. Falk, 624
F. App'x 980, 986 (10th Cir. 2015) (“[W]e will only grant pauper status if we
conclude that the appeal contains a non-frivolous argument.”); Rolland v.
Primesource Staffing, L.L.C., 497 F.3d 1077, 1079 (10th Cir. 2007) (considering and
denying a party’s motion to proceed IFP because the appellant failed to raise a
reasoned, nonfrivolous argument).
Mr. Allen’s claims are frivolous. In the present habeas petition, Mr. Allen
renews two arguments that have been fully and fairly considered by the military
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courts and are replete with issues of fact. Thus, it is well established that this court is
precluded from conducting a full merits review of Mr. Allen’s claims. Santucci, 66
F.4th at 856. “An appeal is frivolous when the result is obvious, or the appellant’s
arguments of error are wholly without merit.” Olson v. Coleman, 997 F.2d 726, 728
(10th Cir. 1993) (quotation marks omitted). Because Mr. Allen’s arguments of error
are wholly meritless, we hold that Mr. Allen advanced no nonfrivolous arguments in
this habeas petition and accordingly deny his application to proceed IFP.
III. CONCLUSION
Because Mr. Allen fails to satisfy all four Dodson factors, we DENY his petition
for a writ of habeas corpus and DISMISS this matter. We also DENY his motion to
proceed IFP.
Entered for the Court
Carolyn B. McHugh Circuit Judge