Knighten v. Commandant, 10th Cir. (2005)
Knighten v. Commandant, 10th Cir. (2005)
TENTH CIRCUIT
PATRICK FISHER
Clerk
LESTER KNIGHTEN,
Petitioner - Appellant,
No. 04-3436
v.
D. Kansas
Respondent - Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
After examining the brief 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
*
4(c)(1). See United States v. Cebellos-Martinez, 387 F.3d 1140, 1144 n.4 (10th
Cir. 2004). Hence, we have jurisdiction.
Turning to the merits, our review of court-martial proceedings is very
limited. See Burns v. Wilson, 346 U.S. 137, 142 (1953).
If the grounds for relief that Petitioner raised in the district court
were fully and fairly reviewed in the military courts, then the district
court was proper in not considering those issues. Likewise, if a
ground for relief was not raised in the military courts, then the
district court must deem that ground waived. The only exception to
the waiver rule is that a petitioner may obtain relief by showing
cause and actual prejudice.
Roberts v. Callahan, 321 F.3d 994, 995 (10th Cir. 2003) (internal citations
omitted). To aid in determining whether an issue has received full and fair
consideration, we consider the following factors:
(1) [t]he asserted error must be of substantial constitutional
dimension[;] (2) [t]he issue must be one of law rather than of
disputed fact already determined by the military tribunals[;] (3)
[m]ilitary considerations may warrant different treatment of
constitutional claims[; and] (4) [t]he military courts must give
adequate consideration to the issues involved and apply proper legal
standards.
Id. at 996 (internal ellipses omitted). [W]hen an issue is briefed and argued
before a military board of review, we have held that the military tribunal has
given the claim fair consideration, even though its opinion summarily disposed of
the issue with the mere statement that it did not consider the issue meritorious or
requiring discussion. Watson v. McCotter, 782 F.2d 143, 145 (10th Cir. 1986).
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On appeal Applicant raises the following grounds for relief: (1) the trial
court erred in closing the courtroom to the public; (2) the trial court erred in
failing to give an attempted-rape instruction as a lesser-included offense; (3) the
NMCCA erred in relying on conflicting affidavits in resolving claims of
ineffective assistance of counsel; (4) the federal district court erred in finding that
trial counsel had provided effective representation; (5) Applicants guilty plea
was improvident because there were defenses to the charge of willful
disobedience; and (6) the detailing authority erred in failing to provide a
qualified counsel.
Applicants first claim relates to the closure of his trial to the public. He
asserts four separate errors: (1) closure of the courtroom during voir dire; (2)
closure of the courtroom during the victims testimony; (3) failure of the trial
court to articulate reasons on the record supporting closure of the trial during the
victims testimony; and (4) failure of the trial court to reopen the courtroom
following the victims testimony.
Applicant cannot rely on his first and fourth alleged errors because he did
not raise them before the district court. We do not consider on appeal issues not
raised in the district court. OConnor v. City & County of Denver, 894 F.2d
1210, 1214 (10th Cir. 1990).
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however, may be waived, so long as the waiver is knowing and intelligent. See
Singer v. United States, 380 U.S. 24, 35 (1965) (defendant can . . . waive his
right to a public trial); Hutchins v. Garrison, 724 F.2d 1425, 1431 (4th Cir. 1983)
(waiver of [the right to an open trial] is effective only if it is an intentional
relinquishment of a known right or privilege (internal quotation marks omitted)).
Counsel can waive the right on behalf of a client, at least in the absence of an
objection by the client. United States v. Sorrentino, 175 F.2d 721, 723 (3d Cir.
1949); see also Martineau v. Perrin, 601 F.2d 1196, 1200-01 (1st Cir. 1979);
United States v. Moses, 4 M.J. 847, 849 (A.C.M.R 1978). Because of the express
waiver by Applicants counsel and our limited standard of review, the district
court properly denied relief on this claim.
Applicants second (lesser-included-offense instruction), third (relying on
affidavits to resolve ineffective-assistance claims), fourth (ineffective assistance
of counsel), and fifth (improvidence of guilty plea) claims were each extensively
analyzed by the military court, see United States v. Knighten, 2000 WL 122392, at
*6-14 (N-M. Ct. Crim. App. 2000) (unpublished), and further review by this court
would hence be improper. See Roberts, 321 F.3d at 995.
Applicants sixth claim is closely related to his ineffective-assistance-ofcounsel claims. He contends that he was not detailed competent counsel.
Although the NMCCA did not specifically address the matter, we agree with the
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