Curry v. United States

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 12, 2000
• Docket: 99-3311
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 12 2000 TENTH CIRCUIT __________________________ PATRICK FISHER Clerk

BOBBY R. CURRY,

Petitioner-Appellant,

v. No. 99-3311 (D. Kan.) UNITED STATES DISCIPLINARY (D.Ct. No. 95-CV-3532) BARRACKS, Commandant, Fort Leavenworth, Kansas,

Respondent-Appellee. ____________________________

ORDER AND JUDGMENT *

Before BRORBY, KELLY, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist 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* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. 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. Appellant Bobby R. Curry, Jr., a military prisoner appearing pro se, appeals

the district court’s decision denying his petition for a writ of habeas under 28

U.S.C. § 2241. We exercise our jurisdiction under 28 U.S.C. § 1291.

The facts presented at Mr. Curry’s court-martial proceeding included

testimony Mr. Curry stabbed his estranged girlfriend approximately six times,

causing her to cover her protruding intestines with clothing before he threw her

over his shoulder and carried her out of her apartment into a hallway. On hearing

a disturbance in the victim’s apartment, neighbors rushed into the hallway in time

to see Mr. Curry exiting the victim’s apartment. These neighbors proceeded to

block Mr. Curry, demanded he leave the victim so they could get medical help

and ultimately, caused Mr. Curry to drop the victim on the floor and flee.

Based on this and other evidence, Mr. Curry received convictions for

attempted premeditated murder, assault consummated by a battery, burglary, and

attempted kidnapping. A military panel sentenced him to a dishonorable

discharge, confinement for thirty-five years, forfeiture of $400 pay per month for

420 months, and a reduction to grade E1. Mr. Curry appealed his conviction to

the United States Army Court of Criminal Appeals, raising nine issues of error.

The Army court reviewed his appeal, affirmed it in all respects except for

-2- dismissing the attempted kidnapping charge, and reduced his sentence from thirty-

five to thirty years. Mr. Curry then sought review by the United States Court of

Appeals for the Armed Forces, raising two additional issues of error. That

appellate court denied his petition for review.

Unsuccessful in the military courts, Mr. Curry filed his federal petition for

a writ of habeas corpus under § 2241, raising essentially the same eleven issues

presented to the military courts. The district court assigned the matter to a

magistrate judge who carefully addressed each issue before recommending denial

of Mr. Curry’s petition. After reviewing Mr. Curry’s objections to the

recommendation, the district court adopted the magistrate judge’s report and

recommendation and denied Mr. Curry’s petition.

On appeal, Mr. Curry raises three of the same issues addressed by the

district court. Specifically, Mr. Curry contends: (1) his counsel acted

ineffectively in failing to interview two of the government’s expert physician

witnesses prior to trial; (2) the Army court erred in not holding a rehearing on his

other convictions and sentence after setting aside the attempted kidnapping

conviction; and (3) the military judge improperly admitted expert testimony of the

second treating physician. He also generally alleges, as issues, that “the military

-3- judge failed to dismiss the charge of kidnapping completely after asked to do so

during the pretrial motion,” and the “[v]ictim had a civil suit for a large amount

of money pending against ... [him] prior to the trial.”

In appeals concerning military convictions, we review the district court’s

dismissal of a § 2241 petition de novo. See Khan v. Hart, 943 F.2d 1261, 1262

(10th Cir. 1991) (relying on Monk v. Zelez, 901 F.2d 885, 888 (10th Cir. 1990),

but the extent of our review is limited. Before we consider Mr. Curry’s claims on

the merits, they must meet four conditions. Each claim must (1) bear

constitutional dimension, (2) consist of an issue of law rather than fact, (3)

implicate no special military considerations making federal court intervention

inappropriate, and (4) have received inadequate consideration in the military

courts or had the wrong legal standards applied. See Khan, 943 F.2d at 1262-63.

When an issue is briefed and argued to a military court, we assume the issue

received full and fair consideration, even though the court summarily disposed of

it. See Lips v. Commandant, U. S. Disciplinary Barracks, 997 F.2d 808, 812 n.2

(10th Cir. 1993), cert. denied, 510 U.S. 1091 (1994).

Applying these principles, we have carefully reviewed the magistrate

judge’s report and recommendation, district court’s decision, Mr. Curry’s brief,

-4- and the record on appeal. We conclude the district court correctly resolved the

three issues previously raised by Mr. Curry and addressed by the magistrate judge

in the report and recommendation. First, with regard to Mr. Curry’s demand for a

rehearing after the Army court set aside his kidnapping conviction, the magistrate

judge determined the military court possessed authority to modify his sentence

without remand to the court-martial judge and exercised that authority in “fully

and fairly” reassessing a new sentence. The magistrate judge also held Mr. Curry

demonstrated no constitutional error in the reassessment. We agree. In addition,

because the Army court dismissed the kidnapping conviction, Mr. Curry’s

argument “the military judge failed to dismiss the charge of kidnapping

completely after asked to do so during the pretrial motion,” is moot.

After considering the substantial evidence presented against Mr. Curry, the

magistrate judge correctly determined Mr. Curry failed to demonstrate how better

pretrial preparation by his attorney in interviewing two physician witnesses

would have resulted in a more favorable outcome. In addition, in reviewing the

Army court’s summary dismissal of Mr. Curry’s argument concerning improper

admission of expert testimony, the magistrate judge properly determined Mr.

Curry failed to show any constitutional error in the military judge allowing a

second treating physician to testify about the victim’s wounds during the merits

-5- portion of the trial. Finally, with regard to Mr. Curry’s general allegation the

“[v]ictim had a civil suit for a large amount of money pending against ... [him]

prior to the trial,” we will not generally consider an issue not raised or addressed

by the district court, see Moore v. Gibson, 195 F.3d 1152, 1181 (10th Cir. 1999),

cert. denied, 2000 WL 343946 (U.S. May 30, 2000) (No. 99-8812). In any event,

despite the victim’s alleged debt, it most likely had little, if any, effect on Mr.

Curry’s convictions given the substantial weight of evidence against Mr. Curry,

especially including the victim’s neighbors’ testimony corroborating her

testimony that Mr. Curry stabbed her.

For these reasons, we AFFIRM for substantially the same reasons set forth

in the magistrate judge’s February 19, 1999 Report and Recommendation and the

district court’s September 2, 1999 Order.

Entered by the Court:

WADE BRORBY United States Circuit Judge

-6-