David Tillery v. J. Shartle

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 24, 2019
• Docket: 17-17208
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 24 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DAVID TILLERY, No. 17-17208

Petitioner-Appellant, D.C. No. 4:16-cv-00204-CKJ

v. MEMORANDUM* J. T. SHARTLE, Warden,

Respondent-Appellee.

Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding

Submitted July 15, 2019**

Before: SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.

David Tillery appeals pro se from the district court’s judgment denying his

28 U.S.C. § 2241 petition for a writ of habeas corpus challenging his conviction by

court-martial and life sentence for premeditated murder. We have jurisdiction

under 28 U.S.C. § 1291. Reviewing de novo, see Alaimalo v. United States, 645

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). F.3d 1042, 1047 (9th Cir. 2011), we affirm.

Tillery first contends that the Fifth Amendment’s Double Jeopardy Clause

barred his subsequent prosecution for murder at court-martial following the

dismissal of the state court murder charge, that the military waived jurisdiction to

prosecute him for murder, and that he was entitled to de facto immunity from

prosecution. The district court properly denied habeas relief on these claims

because both the United States Army Court of Criminal Appeals and the United

States Court of Appeals for the Armed Forces fully and fairly considered them.

See Burns v. Wilson, 346 U.S. 137, 142, 144 (1953) (collateral review of military

convictions is “limited” to whether the military courts “fully and fairly” considered

the issues raised in the habeas petition).

Tillery next claims his court-martial conviction violated paragraph 153(a) of

the Manual for Court Martial because it was based on uncorroborated witness

testimony and his military trial counsel was ineffective for failing to subpoena an

allegedly key state court witness or move to enter the witness’s trial testimony as

part of the court-martial record. The district court properly denied habeas relief on

these claims because Tillery waived them. See Davis v. Marsh, 876 F.2d 1446,

1448 (9th Cir. 1989) (a habeas petitioner waives claims not raised in the military

courts “absent a showing of cause and prejudice”).

Tillery next contends that the district court erred in denying his summary

2 17-17208 judgment motions. Reviewing de novo, see Sully v. Ayers, 725 F.3d 1057, 1067

(9th Cir. 2013), we conclude that the court properly denied the motions because

Tillery presented no basis for summary judgment on any issue raised in the

motions.

Tillery also contends that the district court abused its discretion in denying

the request for witness and document subpoenas, and granting the motion to quash

the subpoenas. The court did not abuse its discretion, see Laub v. United States

Dep’t of Interior, 342 F.3d 1080, 1084 (9th Cir. 2003) (stating standard of review),

because Tillery failed to demonstrate good cause for the information and

documents requested by the subpoenas. See Bracy v. Gramley, 520 U.S. 899, 904

(1997) (a habeas petitioner “is not entitled to discovery as a matter of ordinary

course,” but rather must show “good cause” for the requested discovery).

We reject as meritless Tillery’s contentions that the district court denied him

due process and fundamental fairness by issuing adverse rulings, permitting the

Magistrate Judge to use the government’s brief in its recitation of the facts in the

report and recommendation, and allegedly failing to respond properly to his

summary judgment motions.

With regard to Tillery’s remaining arguments, we do not consider claims

raised for the first time on appeal, or matters raised for the first time in the reply

brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). Moreover, we

3 17-17208 do not consider documents attached to Tillery’s reply brief that were not part of the

record below. See Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir.

1988).

Tillery’s motions to supplement the reply brief are denied.

AFFIRMED.

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