Paalan v. Lansing

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 13, 1999
• Docket: 99-3220
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS SEP 13 1999 TENTH CIRCUIT PATRICK FISHER Clerk

MICHAEL P. PAALAN,

Petitioner - Appellant, No. 99-3220 v. (D. Kansas) COLONEL MICHEAL A. LANSING, (D.C. No. CV-98-3436-RDR)

Respondent - Appellee.

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , 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.

Michael P. Paalan, a prisoner at the United States Disciplinary Barracks in

Fort Leavenworth, Kansas, appeals the district court’s dismissal, without

This order and judgment is not binding precedent, except under the *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. prejudice, of his petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2441. 1 The dismissal was based on the fact that Mr. Paalan’s appeal of his trial

by general court-martial and conviction, and, inter alia , for premeditated murder,

is currently pending before the Navy-Marine Corps Court of Criminal Appeals.

Thus, Mr. Paalan has not yet exhausted his available remedies. See Khan v. Hart ,

943 F.2d 1261, 1263 (10th Cir. 1991); Capps v. Sullivan , 13 F.3d 350, 354 n.2

(10th Cir. 1993).

Mr. Paalan does not dispute the fact that his appeals are ongoing in the

military courts. Rather, he argues that federal courts should intervene because, he

asserts, the military courts have, at all relevant times, lacked jurisdiction over

him, and because his case demonstrates both special merit and hardship. He also

contends that the long delay by the military courts in resolving his appeal

warrants immediate federal court intervention. The district court did not err in

declining to do so.

Our habeas jurisdiction to review a military conviction is limited even

when the habeas petition is filed at the appropriate time. See Burns v. Wilson ,

346 U.S. 137, 142-44 (1976); Lips v. Commandant, U.S. Disciplinary Barracks ,

Mr. Paalan also seeks a certificate of appealability. However, that 1

requirement does not apply to § 2441 petitions. Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996).

-2- 997 F.2d 808, 811 (10th Cir. 1993), cert. denied , 510 U.S. 1091 (1994); Khan v.

Hart , 943 F.2d 1261, 1262-63 (10th Cir. 1991).

This petition is premature. The military courts must first decide the issues,

including the issue of jurisdiction, raised by Mr. Paalan.

AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge

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