Morris v. Curtis

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 15, 2026
• Docket: 24-3107
• Status: Unpublished

Opinion

Appellate Case: 24-3107 Document: 38-1 Date Filed: 06/15/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 15, 2026 ____________________________________________ Christopher M. Wolpert Clerk of Court CHRISTOPHER P. MORRIS,

Petitioner - Appellant,

v. No. 24-3107 (D.C. No. 5:23-CV-03133-JWL) DOUGLAS J. CURTIS, (D. Kan.) Commandant, United States Disciplinary Barracks,

Respondent - Appellee. ___________________________________________

ORDER AND JUDGMENT * ____________________________________________

Before BACHARACH, KELLY, and EID, Circuit Judges. ____________________________________________

This appeal involves a habeas challenge to a court martial for sex

offenses involving an underage girl. See 28 U.S.C. § 2241. (The offenses

were violation of a lawful general regulation, sexual assault of a child, and

child endangerment through culpable negligence.) In district court, the

* The parties do not request oral argument and it would not help us decide the appeal. So we have decided the appeal based on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).

This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 24-3107 Document: 38-1 Date Filed: 06/15/2026 Page: 2

soldier unsuccessfully sought habeas relief based on the failure to require

unanimity in the court martial, violation of the right to counsel in the

preliminary hearing, and failure to disclose exculpatory evidence. The

soldier renews these arguments on appeal.

Before seeking relief in federal court, the soldier had presented these

arguments to the Army Court of Criminal Appeals and the Court of

Appeals for the Armed Forces. These courts rejected the arguments. The

soldier renews the same arguments here, but he can prevail only if the

military courts failed to provide full and fair consideration. Lips v.

Commandant, U.S. Disciplinary Barracks, 997 F.2d 808, 811 (10th Cir.

1993). So we consider whether the Army Court of Criminal Appeals and

Court of Appeals for the Armed Forces fully and fairly considered the

soldier’s arguments.

His first argument is that the court martial didn’t require a

unanimous verdict of guilt. The Army Court of Criminal Appeals rejected

this argument, stating that it didn’t consider the issue meritorious. Though

the statement was concise, we’ve regarded similar explanations as enough

to show full and fair consideration. Watson v. McCotter, 782 F.2d 143, 145

(10th Cir. 1986).

The soldier then presented the argument to the Court of Appeals for

the Armed Forces, which denied review. We’ve again regarded similar

2 Appellate Case: 24-3107 Document: 38-1 Date Filed: 06/15/2026 Page: 3

denials of review as full and fair consideration. Fricke v. Sec’y of Navy,

509 F.3d 1287, 1289 (10th Cir. 2007).

The soldier insists that the Army Court of Criminal Appeals and the

Court of Criminal Appeals for the Armed Forces applied the wrong

standard. But we assess the fairness of these tribunals’ consideration of the

unanimity issue without considering whether they applied the correct

standard. Drinkert v. Payne, 90 F.4th 1043, 1048 (10th Cir. 2024). 1

The soldier’s second argument is that he was denied counsel of his

choice in a preliminary hearing. To prevail, the soldier needed to show an

issue of substantial constitutional dimension. See Lips v. Commandant,

U.S. Disciplinary Barracks, 997 F.2d 808, 811 (10th Cir. 1993) (requiring

a substantial constitutional issue); Drinkert, 90 F.4th at 1047 (stating that

habeas relief is unavailable if any element, such as the presence of a

substantial constitutional issue, is absent). But in a court martial,

preliminary hearings are creatures of statute rather than the Constitution.

See Snow v. Oklahoma, 489 F.2d 278, 279 (10th Cir. 1973) (stating that the

federal constitution does not entitle an accused to a preliminary hearing).

So there’s no constitutional right to counsel at a preliminary hearing.

1 We relied on Drinkert in rejecting a virtually identical argument (that the Army Court of Criminal Appeals had applied the wrong standard in declining to require unanimity for a court-martial). Livingston v. Curtis, No. 24-3128, 2025 WL 2814422, at *3 (10th Cir. Oct. 3, 2025) (unpublished).

3 Appellate Case: 24-3107 Document: 38-1 Date Filed: 06/15/2026 Page: 4

Stewart v. Cox, 344 F.2d 947, 947–48 (10th Cir. 1965). Because the

argument lacks a substantial constitutional dimension, the alleged inability

to use chosen counsel at the preliminary hearing wouldn’t support habeas

relief.

Finally, the soldier argues that the prosecution withheld exculpatory

evidence. He unsuccessfully made the same argument to the Army Court of

Criminal Appeals and the Court of Appeals for the Armed Forces. So the

soldier needed to show that the issue is legal rather than factual. See Lips,

997 F.2d at 811 (stating that the question must be legal rather than

factual).

The duty to disclose exculpatory evidence turns on facts because the

court must consider what evidence was withheld and how that evidence

could have affected the outcome. Because the issue is fact-intensive, the

alleged failure to disclose exculpatory evidence wouldn’t support habeas

relief. 2

2 In connection with a court-martial, we have previously characterized a similar claim (withholding of evidence) as a factual issue Hubbard v. Berrong, No. 93-3079, 1993 WL 415268, at *3 (10th Cir. Oct. 20, 1993) (unpublished).

4 Appellate Case: 24-3107 Document: 38-1 Date Filed: 06/15/2026 Page: 5

Because the military courts fully and fairly considered the soldier’s

arguments, we affirm the denial of habeas relief. 3

Entered for the Court

Robert E. Bacharach Circuit Judge

3 We grant the soldier’s request for leave to proceed in forma pauperis.