* This order and judgment is not binding precedent, except under the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.

1 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.

F I L E D

United States Court of Appeals

Tenth Circuit

DEC 21 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ROBERT R. INGHAM,

Petitioner-Appellant,

v.

HERBERT R. TILLERY, Colonel,

Respondent-Appellee.

No. 99-3123

(D.C. No. 96-3065-RDR)

(D. Kan.)

(42 F. Supp. 2d 1188)

ORDER AND JUDGMENT *

Before EBEL , LUCERO , and MURPHY , Circuit Judges.

Petitioner, a former member of the United States Army convicted pursuant

to a guilty plea of disobeying an order and breaking arrest, seeks review of the

denial of his petition for writ of habeas corpus brought pursuant to 28 U.S.C.

§ 2241. 1

 Following a general court-martial, Petitioner was also convicted of
-2-

sodomy, indecent acts and indecent liberties with a child, as well as indecent

assault and adultery. He was sentenced to a dishonorable discharge, confinement

for forty years, forfeiture of pay and allowances, and reduction in rank. 

On appeal to the United States Army Court of Military Review, he claimed

that the evidence for the sodomy, indecent acts, and assault offenses was

insufficient, both legally and factually; the specifications for the offenses were

multiplicious for sentencing; the denial of his challenges for cause of two court

members was erroneous; his civilian trial counsel was ineffective; and the

sentence was inappropriate. See United States v. Ingham , 36 M.J. 990, 991-92

(A.C.M.R. 1993), review granted in part , 39 M.J. 391 (C.M.A. 1994), aff’d , 42

M.J. 218 (U.S. Armed Forces 1995), cert. denied, 516 U.S. 1063 (1996). Upon

careful review, the conviction and sentence were upheld. See United States v.

Ingham , 36 M.J. at 997. 

Petitioner then filed for review in the United States Court of Military

Appeals, presenting eight issues:

(1) insufficient evidence;

(2) multiplicious charges;

(3) error in denying challenges for cause against two members of the

court;

(4) ineffective assistance of defense counsel;
2 See United States v. DuBay , 37 C.M.R. 411, 413 (C.M.A. 1967)

(establishing procedure for holding hearing to determine issues raised collaterally

which require findings of fact and conclusions of law). 

-3-

(5) excessive sentence;

(6) error in denial of his request for a DuBay hearing; 2

(7) error in denying a continuance; and

(8) error in the admission of a video tape.

See Ingham v. Tillery , 42 F. Supp. 2d 1188, 1190-91 (D. Kan. 1999). 

In addition, petitioner moved to assert an additional argument that his

defense counsel had failed to object to the alleged erroneous “beyond a

reasonable doubt” instruction. See Vol. I, Doc. 11, attachment 8; United States v.

Grostefon , 12 M.J. 431, 436-37 (C.M.A. 1982) (accused’s specified errors must

be drawn to attention of court).

The United States Court of Military Appeals granted review on three issues: 

alleged ineffective assistance of counsel, excessiveness in sentencing, and the

denial of a DuBay hearing. See United States v. Ingham , 39 M.J. 391 (1994). 

The court denied petitioner’s motion to raise the argument regarding the alleged

erroneous instruction, see Vol. I, Doc. 11, attachment 9, and otherwise affirmed

the conviction. See United States v. Ingham , 42 M.J. 218, 230 (U.S. Armed

Forces 1995). 

In this action, petitioner challenged his conviction on the grounds that
-4-

(1) the evidence was insufficient;

(2) defense counsel was ineffective;

(3) some charges were multiplicious;

(4) challenges for cause against two members of the court were

erroneously denied;

(5) excessive sentence;

(6) inadequate advice from counsel regarding possible pretrial

negotiations;

(7) loss or destruction of video tape containing favorable evidence;

(8) erroneous denial of a DuBay evidentiary hearing; and

(9) failure to object to alleged erroneous instruction regarding reasonable

doubt.

See Ingham v. Tillery , 42 F. Supp. 2d at 1189. 

The district court applied the appropriate review principles as outlined in

Burns v. Wilson , 346 U.S. 137, 142 (1953) (recognizing limited function of civil

courts is to determine whether military courts gave fair consideration to

petitioner’s claims). See also Lips v. Commandant, United States Disciplinary

Barracks , 997 F.2d 808, 811 (10th Cir. 1993) (acknowledging that under Burns

where military courts fully and fairly considered claims asserted in federal habeas

corpus petition, the petition should be denied). If issues have been briefed and
-5-

argued before the military tribunal, a federal habeas court assumes the tribunal

has given the claims full and fair consideration even if the military court

summarily disposed of the issues. See id. at 812 n.2. The district court

determined that all but one issue had been presented to and decided by the

military courts. See Ingham v. Tillery , 42 F. Supp. 2d at 1192 . We agree. 

We comment on only two of petitioner’s claims. First, as to his claim that

his counsel was ineffective for failing to advise him of “potential benefits in

negotiating a pretrial agreement,” Appellant’s Br. at 21-22, petitioner does not

explain why he did not (or could not) raise the issue within the military court

system. Indeed, his appellate counsel (who was different from trial counsel) did

raise trial counsel’s alleged ineffectiveness as to several other deficiencies in

representation, see United States v. Ingham , 36 M.J. at 995-96; United States v.

Ingham , 42 M.J. at 223-29, which were given thorough consideration.

Moreover, petitioner could have submitted the particular claim of

ineffective trial counsel on his own. See United States v. Grostefon , 12 M.J. at

436-37 (outlining procedure permitting accused to raise issues for consideration

by court of military review). Accordingly, we agree that this claim is barred. See

Watson v. McCotter , 782 F.2d 143, 145 (10th Cir. 1986) (declining to review

merits of petitioner’s claims if not raised before military courts).
-6-

Petitioner also contends that the military judge gave an improper

instruction on the definition of reasonable doubt. Specifically, he claims the

language “proof beyond reasonable doubt means proof to a moral certainty”

violates the Supreme Court’s teachings in Cage v. Louisiana , 498 U.S. 39, 40-41

(1990) (per curiam) (striking, as contrary to reasonable doubt requirement, an

instruction containing phrases “grave uncertainty,” “actual substantial doubt,” and

“moral uncertainty”). 

In Cage, the Supreme Court was concerned with an instruction equating 

reasonable doubt with grave uncertainty and actual substantial doubt, which the

Court concluded “suggest a higher degree of doubt than is required for acquittal

under the reasonable doubt standard.” See id. at 41. It was the consideration of

those statements along with “the reference to ‘moral certainty,’ rather than

evidentiary certainty” that the Court determined could have caused the jury to find

guilt on a degree of proof below that required under the Due Process Clause. See

id. 

In petitioner’s case, however, reasonable doubt was not compared to grave

uncertainty or actual substantial doubt. See United States v. Gray , 37 M.J. 730,

748-49 (A.C.M.R. 1992) (distinguishing Cage from situation where grave

uncertainty and actual substantial doubt not used), aff’d , 51 M.J. 1 (1999). 

Moreover, the Supreme Court has clarified that “moral certainty language cannot
-7-

be sequestered from its surroundings.” See Victor v. Nebraska , 511 U.S. 1, 16

(1994) (distinguishing Cage instruction as simply telling jurors to be morally

certain of defendant’s guilt with nothing else to lend meaning to phrase from the

situation where jurors also told to base conclusion on evidence in case). Here, the

instruction also described reasonable doubt as “not a fanciful or ingenious doubt

or conjecture, but an honest, conscientious doubt suggested by the material

evidence, or lack of it in the case.” Vol. I, Doc. 11, attachment 8 at 12. Finally,

the United States Court of Military Appeals has upheld a virtually identical

instruction as compatible with post- Cage holdings of the Supreme Court. See

United States v. Meeks , 41 M.J. 150, 155-57 (C.M.A. 1994). Accordingly, this

issue is without merit.

For these and the reasons set forth in Ingham v. Tillery , 42 F. Supp. 2d

1188 (D. Kan. 1999), the judgment of the district court is AFFIRMED. The

mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge