* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 8 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JOHN C. WHITE,

Petitioner-Appellant,

v. MICHAEL A. LANSING, Warden, United States Disciplinary Barracks, Leavenworth,

Respondent-Appellee. No. 00-3247 (D.C. No. 99-CV-3162-RDR)

(D. Kan.)

ORDER AND JUDGMENT *

Before HENRY , BRISCOE , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

John C. White, pro se, appeals from the dismissal w ith prejudice of his petition for habeas corpus filed pursuant to 28 U.S .C. § 2241. Mr. White was convicted for murder of his infant daughter, aggrav ated assault, assault consummated by battery on a child, and three specif ications of malicious torture of his dog and cat by a general court martial. On appeal to the Air Force Court of Criminal Appeals (AFCCA), Mr. White raised the sameissues that later formed the basis of this habeas petition. See Appellant’s App. Ex. A; United States v. White , No. ACM 31474 (F REV), 1997 WL 643590, at *2, (A. F. Ct. Crim. App. Oct. 1, 1997) [hereinafter White II ], aff’d 50 M.J. 131 (C.A.A.F. 1998). In two separate decisions, the AFCCA dismissed the charges of assault consummated by battery on a child and aggravated assault as multip licitous with the greater offense of murder, ruled against Mr. White on all issues th at had been timely raised, declined to consider two issues that were untimely, and affirmed the sentence as modified. See United States v. White , No. ACM 31-474, 1996 WL 399973, at *5 (A.F. Ct. Crim. App. July 12, 1996) [hereinafter White I ], rev’d 47 M.J. 81 (C.A.A.F. 1997); White II , 1997 WL 643590, at *2 . Mr. White then filed thi s petition for habeas corpus, raising six basic groun ds of alleged error. The district court dismissed the petition under Lips v. Commandant, United States Disciplinary Barracks , 997 F.2d 808, 811 (10th Cir. 1993), and Watson v. McCotter , 782 F.2d 143, 145 (10th Cir. 1986), correctly not ing that when a-3-

military court decision has already dealt fully andfairly with an issue on appeal that is later raised in a habeas petition, the habe as court may not reach the merits and must deny the petition. R. Doc. 22, at 2. We have fully reviewed the record and conclude that the four grounds raised both on d irect appeal and in the habeas petition undoubtedly were fully and fairly consider ed by the AFCCA while applying correct legal standards. See Lips , 997 F.2d at 811. The district court properly denied the petition on these grounds. Mr. White also argued, however, that the AFCCA refu sed to address the two “untimely” issues he raised to the AFCCA, and that the habeas court therefore should have reached the merits on at least those two issues. See R. Doc. 20, at 1-7. They are (1) whether “the multiple charging of his one act of shaking his baby to death creates the impression that he is a bad person” and (2) whether “the specification of Charge I failed to include required elements.” White II , 1997 WL 643590, at *2 (expressly declining to consi der these issues because they were untimely and not raised in his original appeal and because defendants are entitled to only one review under 10 U.S.C. § 866). The district court did not discuss the difference between these two issues andthe other four raised in the habeas petition other than to state that the AFCCA’ s decision addressed claims of multiplicitous charges and the possible spillover effect of multiple charges. See
R. Doc. 22 at 3-4.-4-

Our review of the AFCCA opinion discloses that its discussion of multiplicitous charges relates only to convictions on lesser included offenses and not to the prejudicial effect, if any, that may ari se from charging one offense in multiple ways. See White I , 1996 WL 399973, at *2. Likewise, the AFCCA did not discuss any alleged failure to include requiredelements in the murder charge; the error alleged and addressed on direct appeal wa s the legal and factual sufficiency of evidence of intent. See id. at *3-*4. It is clear that the AFCCA held that Mr. White proc edurally defaulted direct review of these two issues. See White II , 1997 WL 643590, at *2. Consequently, in order to obtain habeas review of these two claims, Mr. White must “show both cause excusing the procedural defau lt and actual prejudice resulting from the error.” Lips , 997 F.2d at 812. This he has failed to do. As i n Lips , “nothing in the record before us indicates that there was any ‘excuse’ for either of these procedural defaults, and hence the ‘cause and actual prejudice’ standard was not met.” Id. Accordingly, the two claims “will not be reviewed ‘on the merits’ in the present habeas corpus proceeding.” Id. The judgment of the district court is AFFIRMED

. Entered for the Court

Mary Beck Briscoe Circuit Judge