Taylor v. Andraschko
Appeal Court of Appeals for the Tenth Circuit, Case No. 02-3029

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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 5 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
CURTIS A. TAYLOR,
Petitioner - Appellant, No. 02-3029
v. (D.C. No. 01-CV-3296-RDR)
COL. STEVEN L. ANDRASCHKO, (D. Kansas)
Respondent - Appellee.
ORDER AND JUDGMENT *

Before EBEL , LUCERO , and HARTZ , 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.

Curtis Taylor ("Petitioner") was convicted by a general court martial of attempted murder and aggravated assault, in violation of Articles 80 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 880 and 928. Proceeding pro se ,

This order and judgment is not binding precedent, except under the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. he appeals the United States District Court's dismissal of his petition for habeas corpus filed under 28 U.S.C. § 2241. He claims that he was entitled to a mistrial because the prosecutor referred to inadmissible evidence during his opening statement. We have jurisdiction under 28 U.S.C. § 1291. We affirm the dismissal by the district court because the military courts gave full and fair consideration to the issue now raised by Petitioner.

We have "consistently granted broad deference to the military in civilian collateral review of court-martial convictions." Watson v. McCotter , 782 F.2d 143, 144 (10th Cir. 1986). "[W]hen a military decision has dealt fully and fairly with an allegation raised in [a petition for habeas corpus], it is not open to a federal civil court to grant the writ simply to re-evaluate the evidence." Burns v. Wilson , 346 U.S. 137, 142 (1953); accord Watson , 782 F.2d at 144 . "Only when the military has not given a petitioner's claims full and fair consideration does the scope of review by the federal civil court expand." Lips v. Commandant, United States Disciplinary Barracks , 997 F.2d 808, 811 (10th Cir. 1993). A federal court's review of a military conviction is appropriate only if the following conditions are met:
(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
[End Page 2]
issues involved or failed to apply proper legal standards."
Id.

Petitioner contends that the military courts did not give his case full and fair consideration. He asserts that those courts improperly rejected his appeals by relying on an unprecedented rule that he waived any error in the denial of a mistrial by failing to object to the trial tribunal's curative instruction. We disagree.

After Petitioner's conviction, he first appealed to the United States Navy- Marine Corps Court of Criminal Appeals (NMCCA), which affirmed the conviction. The court cited case law for the propositions that a mistrial is a drastic remedy and that a military judge should explore other options, such as a curative instruction. It noted that the judge had given a curative instruction at Petitioner's trial, and, in response to Petitioner's contention that the curative instruction was inadequate, it wrote:
The curative instruction the military judge crafted and
gave to the members was not as comprehensive and clear
as it would have been had he spent more time on it and
involved the parties in the drafting process. However, the
appellant did not object to that instruction as given.
Therefore, he waived any issue involving that instruction.
R.C.M. 801(g), 920(f). Moreover, we are confident that
the curative instruction, combined with the other
instructions the military judge gave to the members at
appropriate points during the trial, effectively focused the
members' attention on their obligation to base their
findings and sentence on admissible evidence, and not on
[End Page 3]
the statements or arguments of counsel. No inadmissible
evidence came before the members. Finally, we are
satisfied that the trial counsel was operating in good faith
on his recollection of the military judge's ruling on the
motion in limine . Therefore, we are confident that the
objectionable part of the trial counsel's opening statement
had no prejudicial impact. The appellant received the
substantially fair trial to which he is entitled.
United States v. Taylor , 1998 WL 433959, at *3 (N.M.Ct.Crim.App. July 20, 1998).

Petitioner focuses on the court's statement that he waived the issue by not objecting to the instruction. He asserts that no rule or precedent required him to object to the instruction once he had moved for a mistrial. We reject his argument on two grounds. First, given the precedents stating that a curative instruction is preferable to a mistrial, there was no unfair surprise in requiring trial counsel to explain to the military judge why the particular curative instruction in his case was inadequate.

Second, the appellate court did not rest its decision solely on waiver. As an alternative ground for affirmance, it found the instruction to be adequate. Petitioner argues that we cannot rely on this alternative ground. He cites Harris v. Reed , 489 U.S. 255 (1989), for the proposition that when a court states plainly that a claim has been procedurally defaulted, a later court should presume that the claim was not decided on the merits. But Harris says no such thing. On the contrary, it expressly recognizes that a court can rest a decision on alternate [End Page 4] grounds""a procedural default and the merits. Id. at 264 n.10. We have no doubt that the NMCCA fully and fairly considered Petitioner's mistrial claim.

Moreover, Petitioner's claim also received adequate review by the United States Court of Appeals for the Armed Forces, which affirmed the decision by the NMCCA. Again, the court found waiver. United States v. Taylor , 53 M.J. 195, 198 (C.A.A.F. 2000). But it then proceeded to state the following:
Second, [Petitioner] makes much of the trial
members' inadmissible questions to LCpl Franklin.
However, these questions do not constitute evidence that
the members of the court martial did not understand or
would not follow the military judge's instructions. The
judge's instructions to them were to only consider evidence
provided from the trial testimony. The judge did not order
them to refrain from asking any questions concerning the
subject matter of a particular motion in limine that he had
granted in part. Arguably, these questions demonstrate that
some members' curiosity may have been aroused by the
trial counsel's opening reference to gang colors. However,
the mere fact of the questions does not lead us to conclude
that the members refused to follow the judge's instruction
to only consider the evidence presented from the witnesses
when deliberating . Thus, the presumption that the members
followed the military judge's instructions has not been
rebutted.
Accordingly, we agree with the Court of Criminal
Appeals that the military judge did not abuse his discretion
by refusing to grant [Petitioner] a mistrial.
(citations omitted) Thus, this second appellate court also gave full and fair consideration to Petitioner's issue, ruling against him on a proper waiver ground [End Page 5] and also ruling that the curative instruction prevented any prejudice from the prosecutor's remarks.

We AFFIRM the judgment of the district court.
Entered for the Court
Harris L Hartz
Circuit Judge

[End Page 6]

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