Ruiz-Garcia v. Lansing, (10th Cir. 2002)

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UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RAFAEL A. RUIZ-GARCIA,

Petitioner - Appellant,

v.

MICHAEL A. LANSING,

Commandant, USDB, Ft.

Leavenworth, Kansas, and or

successor in authority in office,

Respondent - Appellee.

No.
name="1">01-3307

(D.C. No. 99-CV-3341-RDR)

(D. Kansas)

ORDER AND JUDGMENT
name="txt*">(*)

Before HENRY, Circuit Judge, BRORBY, Senior Circuit

Judge, and BRISCOE,

Circuit Judge.

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.

Petitioner Rafael A. Ruiz-Garcia, a military prisoner, appeals from the

district court's order dismissing his 28 U.S.C. § 2241 petition for writ of habeas

corpus. We affirm.

Mr. Ruiz-Garcia, while serving in the United States Marine Corps at Camp

Pendeton, California, pled guilty to and was convicted by a military judge sitting

as a general court-martial, of theft and wrongful sale of military property,

robbery, and assault. He was sentenced, inter alia, to eighteen years'

imprisonment. Pursuant to the terms of a pretrial agreement, the convening

authority suspended confinement in excess of twelve years.

The United States Navy-Marine Court of Criminal Appeals (NMCCA)

conducted a de novo review of the court-martial's findings and sentence. Having

considered Mr. Ruiz-Garcia's assertions of error, it affirmed the court-martial's

findings and sentence. Mr. Ruiz-Garcia then sought review of the NMCCA's

decision in the Court of Appeals for the Armed Forces (CAAF). The CAAF

summarily denied his petition for review and his motion for reconsideration. It

further denied his motion for leave to file supplemental assignments of error.

Mr. Ruiz-Garcia then filed an action in the NMCCA for extraordinary relief

in the nature of a petition for writ of habeas corpus. In this petition, he raised the

general claims that he subsequently presented in his federal habeas petition. The

NMCCA denied the petition. Although it concluded that Mr. Ruiz-Garcia had

essentially waived his contentions by failing to bring them during the course of

his direct appeal, the NMCCA addressed each of his claims, finding that they

lacked merit.

Mr. Ruiz-Garcia then brought this action in federal district court. In a

carefully-reasoned and thorough decision, the district court concluded that he had

failed to show his entitlement to habeas relief.

In this appeal, Mr. Ruiz-Garcia raises three issues. He contends, first, that

his counsel and the prosecution coerced him into entering into a pretrial

agreement. Second, he argues that the court-martial lacked jurisdiction over him.

Finally, he contends that his counsel was constitutionally ineffective.

Our standard of review is an exceptionally narrow one. "[I]f the military

gave full and fair consideration to claims asserted in a federal habeas corpus

petition, the petition should be denied." Lips v. Commandant, United States

Disciplinary Barracks, 997 F.2d 808, 811 (10th Cir. 1993). Issues that were not

raised before the military courts will not be considered, unless the petitioner can

show "both cause excusing the procedural default and actual prejudice resulting

from the error." Id. at 812.

In determining whether full and fair consideration was given to an issue,

federal courts apply a four-part test, examining whether "(1) the asserted error is

of substantial constitutional dimension; (2) the issue is one of law rather than of

disputed fact already determined by the military tribunal; (3) there are no military

considerations that warrant different treatment of constitutional claims; and

(4) the military courts failed to give adequate consideration to the issues involved

or failed to apply proper legal standards." Id. at 811. We review the district

court's application of these standards de novo. Monk v. Zelez, 901 F.2d

885, 888

(10th Cir. 1990).

Applying the above standards, the district court determined that Mr. Ruiz-Garcia

was not entitled to habeas relief. We agree. The judgment of the United

States District Court for the District of Kansas is therefore AFFIRMED for

substantially the same reasons stated in the district court's Memorandum and

Order of September 5, 2001.

Entered for the Court

Wade Brorby

Senior Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. 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.

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