F I LED

United States Court of Appeals

Tenth Circuit

March 15, 2007

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EDWIN MARK ACKERMAN,

Movant,

v.

JUANITA NOVAK, Warden,

Respondent.

No. 06-1464

ORDER

Before KELLY, HENRY, and LUCERO, Circuit Judges.

PER CURIAM.

Movant Edwin Mark Ackerman has filed a motion for leave to file a second

or successive habeas petition under 28 U.S.C. § 2254, requesting permission to

file a third collateral challenge to his 1995 military conviction. Mr. Ackerman’s

motion is dismissed as unnecessary. 

I. Procedural Background

In 1995, Mr. Ackerman pleaded guilty in general “court-martial

proceedings to rape and larceny in violation of Articles 120 and 121 of the
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Uniform Code of Military Justice.” Ackerman v. Novak, 66 F. App’x 158, 159

(10th Cir. 2003). He was sentenced, in part, to life imprisonment with

confinement suspended after twenty-seven years. Id. The United States Army

Court of Criminal Appeals affirmed his convictions, and the United States Court

of Appeals for the Armed Forces denied his petition for review. Id.

Mr. Ackerman filed his first habeas petition challenging his military

conviction in 2000. He erroneously filed the petition under § 2254, and the

district court correctly construed the filing as a petition for a writ of habeas

corpus filed under 28 U.S.C. § 2241. Ackerman, 66 F. App’x at 159 n.1. In this

first habeas petition, Mr. Ackerman claimed: “(1) the evidence was insufficient

to establish his guilt; (2) there was delay in the filing of charges; and (3) he was

unable to confront his accuser at the pretrial hearing and counsel was ineffective

for failing to object on that basis.” Id. at 160. The district court denied the writ,

and this court affirmed. Id. at 160-61.

In 2001, Mr. Ackerman filed a second habeas petition challenging his

military conviction. Again, he incorrectly filed it under § 2254, and the

district court correctly construed it as a § 2241 petition. Ackerman v. Zenon,

150 F. App’x 772, 773 n.1 (10th Cir. 2005). In this second petition,

Mr. Ackerman claimed:

1) the victim failed to describe him as the suspect; 2) he was not read

his Miranda rights; 3) evidence was available, but was not submitted,

that would have established he was not identified in a physical
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line-up; 4) no DNA evidence was presented that would identify him

as the suspect; 5) he was not allowed to confront the victim at the

pretrial proceedings; 6) the commanding general illegally influenced

the negotiations of his plea; and 7) there exists newly-discovered

evidence that the victim failed to identify two tattoos on his upper

body as identifiable marks. 

Id. at 774.

The district court denied the petition, and this court dismissed the appeal. 

Id. at 774-76. We held that Mr. Ackerman’s first, third and fourth claims had

been raised in his first petition and were barred as successive absent a showing of

factual innocence, which he could not show because he pleaded guilty. Id. at 775. 

Further, his remaining claims had not been raised before the military courts and

were deemed waived. Id. This court characterized Mr. Ackerman’s appeal as

frivolous. Id. at 775-76.

II. Section 2241 is the Proper Means to Challenge Military Conviction

Mr. Ackerman has now filed a motion in this court seeking authorization

to file a second or successive § 2254 habeas petition to challenge, for the third

time, his military guilty-plea conviction. As we have now twice informed

Mr. Ackerman, however, the proper means for him to collaterally challenge his

1995 military conviction is to file a § 2241 petition for a writ of habeas corpus,

not a § 2254 petition. See Clinton v. Goldsmith, 526 U.S. 529, 537 n.11 (1999)

(citing § 2241(c) as authority for the proposition that habeas corpus is available

to service members in custody pursuant to a court-martial); Witham v. United
Federal civil courts have only limited authority to review court-martial 1

proceedings, however. See Burns v. Wilson, 346 U.S. 137, 139-42, 144 (1953). 

If the military courts have fully and fairly reviewed the military prisoner’s claims,

the federal civil courts cannot review them. See Roberts v. Callahan, 321 F.3d

994, 995-96 (10th Cir. 2003) (setting forth four factors to be considered in

determining whether a federal civil court can review a court-martial proceeding).

A motion to vacate, set aside or correct his sentence under 28 U.S.C. 2

§ 2255 is also unavailable to Mr. Ackerman “because the court-martial

immediately dissolves after sentencing and is no longer available later to hear a

collateral attack on the sentence.” Witham, 355 F.3d at 505.

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States, 355 F.3d 501, 505 (6th Cir. 2004) (noting that § 2241 is the proper means

to collaterally attack a court-martial conviction). Under § 2241, federal courts

have authority to issue a habeas corpus writ to prisoners “in custody under or by

color of the authority of the United States.” 28 U.S.C. § 2241(c)(1). In contrast, 1

§ 2254 is the means by which a prisoner “in custody pursuant to the judgment of a

[s]tate court” can seek habeas relief from a state-court judgment. See 28 U.S.C.

§ 2254(a). Mr. Ackerman seeks to challenge his military conviction; thus, § 2254

is inapplicable. 

2

III. Is Circuit Court Authorization Required to File a Second § 2241 Petition?

A. Generally

Under the Antiterrorism and Effective Death Penalty Act (AEDPA),

authorization from the appropriate circuit court of appeals is required before a

state prisoner may file a second or successive § 2254 habeas petition, or before

a federal prisoner may file a second or successive 28 U.S.C. § 2255 motion. 

See 28 U.S.C. § 2244(b)(3); id. § 2255 para. 8. This court has not yet addressed,
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however, whether a similar appellate-court pre-authorization requirement applies

before a prisoner may file a second or successive writ of habeas corpus

under § 2241.

Prior to AEDPA, this court held in George v. Perrill, 62 F.3d 333, 334

(10th Cir. 1995), that “a section 2241 petition which presents no new grounds for

relief is subject to dismissal as a successive petition unless the ends of justice

require consideration of the merits.” We based this holding on the pre-AEDPA

version of 28 U.S.C. § 2244(a), which stated:

No circuit or district judge shall be required to entertain an

application for a writ of habeas corpus to inquire into the detention

of a person pursuant to a judgment of a court of the United States if

it appears that the legality of such detention has been determined by

a judge or court of the United States on a prior application for a writ

of habeas corpus and the petition presents no new ground not

heretofore presented and determined, and the judge or court is

satisfied that the ends of justice will not be served by such inquiry.

George, 62 F.3d at 334 (quoting pre-AEDPA version of § 2244(a)).

AEDPA amended § 2244(a) in 1996 to now read: 

No circuit or district judge shall be required to entertain an

application for a writ of habeas corpus to inquire into the detention

of a person pursuant to a judgment of a court of the United States if

it appears that the legality of such detention has been determined by

a judge or court of the United States on a prior application for a writ

of habeas corpus, except as provided in section 2255.

28 U.S.C. § 2244(a) (emphasis added).

The reference to § 2255 in the AEDPA-amended version of § 2244(a)

appears to incorporate the appellate pre-authorization gatekeeping requirements of
28 U.S.C. § 451 states: 3

As used in this title:

The term “court of the United States” includes the Supreme

(continued...)

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§ 2255 para. 8, which sets forth the grounds upon which a circuit court may

authorize a second or successive § 2255 motion, and, in turn, incorporates the

pre-authorization procedures in § 2244(b)(3). We do not decide this issue,

however, because we conclude, for the reasons discussed below, that § 2244(a)

does not apply when a prisoner is challenging a military court-martial conviction. 

B. Section 2241 Challenge to a Military Court-Martial Conviction

Section 2244(a) applies by its terms only to a petitioner who is in detention

“pursuant to a judgment of a court of the United States.” See Rosales-Garcia v.

Holland, 322 F.3d 386, 398-99, 398 n.13 (6th Cir. 2003) (holding that § 2244(a)

does not apply to a § 2241 petition brought by an INS detainee); see also

Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 2000) (same, holding that INS

detainee is not in custody pursuant to a judgment of a “court of the United

States”). Under 28 U.S.C. § 451, which is a definition applicable to all of Title

28 of the United States Code, the term “court of the United States” is defined as

“the Supreme Court of the United States, courts of appeals, district courts . . . and

any court created by Act of Congress the judges of which are entitled to hold

office during good behavior.” Id. The phrase “court of the United States,” as 3
(...continued) 3

Court of the United States, courts of appeals, district courts

constituted by chapter 5 of this title, including the Court of

International Trade and any court created by Act of Congress the

judges of which are entitled to hold office during good behavior.

* * *

The term “judge of the United States” includes judges of the

courts of appeals, district courts, Court of International Trade and

any court created by Act of Congress, the judges of which are

entitled to hold office during good behavior.

“The judicial Power of the United States, shall be vested in one supreme 4

Court, and in such inferior Courts as the Congress may from time to time ordain

and establish,” and “[t]he Judges, both of the supreme and inferior Courts, shall

hold their Offices during good Behaviour . . . .” U.S. Const., art. III, § 1.

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used in Title 28 and § 451, has been held to denote Article III courts, whose 4

judges have life tenure and may be removed only by impeachment. See In re

Volpert, 110 F.3d 494, 498 (7th Cir. 1997) (stating that “because the ‘good

behavior’ language contained in § 451 mirrors that contained in Article III, it is

reasonable to infer that the phrase ‘court[s] of the United States’ denotes Article

III courts whose judges have life tenure and may be removed only by

impeachment” (citing Perroton v. Gray (In re Perroton), 958 F.2d 889, 893

(9th Cir. 1992)); see also N. Pipeline Constr. Co. v. Marathon Pipe Line Co.,

458 U.S. 50, 59 (1982) (“The ‘good Behaviour’ Clause guarantees that Art. III

judges shall enjoy life tenure, subject only to removal by impeachment.”).

The court has not been directed to, nor has it been able to locate, any case

directly holding that a military justice court is not a “court of the United States”
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as that term is defined in § 451 and used in § 2244(a). The Court of Military

Appeals, now the United States Court of Appeals for the Armed Services, did

hold that the term “judge of the United States,” as defined in § 451 as “judges

of . . . any court created by Act of Congress, the judges of which are entitled to

hold office during good behavior,” is inapplicable to military judges. United

States v. Rachels, 6 M.J. 232, 234 (C.M.A. 1979). The government’s position,

given in response to the court’s request for supplemental briefing, is that a

military justice court is not a “court of the United States” under § 2244(a) and

§ 451 because military judges are not entitled to hold office during good

behavior. We agree with the government’s position.

“Military law . . . is a jurisprudence which exists separate and apart from

the law which governs in our federal judicial establishment.” Burns v. Wilson,

346 U.S. 137, 140 (1953). Military courts are legislative courts, established

under Article I, Section 8, Clause 14 of the Constitution, which grants Congress

the power “[t]o make Rules for the Government and Regulation of the land and

naval Forces.” See, e.g., Gosa v. Mayden, 413 U.S. 665, 686 (1973) (“a military

tribunal is an Article I legislative court with jurisdiction independent of judicial

power created and defined by Article III”). Pursuant to its Article I authority,

see Solorio v. United States, 483 U.S. 435, 438-39 (1987), Congress enacted the

Uniform Code of Military Justice, 10 U.S.C. §§ 801 to 950, which established
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“an integrated system of military courts and review procedures.” Schlesinger v.

Councilman, 420 U.S. 738, 758 (1975). 

“At the trial level are the courts-martial . . . .” Weiss v. United States,

510 U.S. 163, 167 (1994). Courts-martial are ad hoc tribunals that are called into

existence by order of a commander, called a convening authority, for the purpose

of considering a set of charges that the commander has referred to the court. 

See Manual for Courts-Martial, United States, Rules for Courts-Martial (R.C.M.)

504(a) (2005 ed.) (“A court-martial is created by a convening order of the

convening authority.”), and R.C.M. 601(a) (“Referral is the order of a convening

authority that charges against an accused will be tried by a specified

court-martial.”); see also McClaughry v. Deming, 186 U.S. 49, 64 (1902)

(a court-martial “is a special body convened for a specific purpose, and when that

purpose is accomplished its duties are concluded and the court is dissolved”);

Witham, 355 F.3d at 505 (“General courts-martial are ad hoc proceedings which

dissolve after the purpose for which they were convened has been resolved”). 

The Supreme Court, noting that “[t]he military is a specialized society separate

from civilian society with laws and traditions of its own,” has recognized that

“the acts of a court martial, within the scope of its jurisdiction and duty, cannot

be controlled or reviewed in the civil courts, by writ of prohibition or otherwise,”

with the limited exception for collateral attack seeking a declaration that a
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judgment is void “because of lack of jurisdiction or some other equally

fundamental defect.” Schlesinger, 420 U.S. at 746-47, 757 (quotations omitted). 

A general courts-martial, which is the only type of court-martial

“authorized to impose penalties of more than one year’s incarceration,” Hamdan

v. Rumsfeld, 126 S. Ct. 2749, 2805 (2006) (Breyer, J., concurring), “consists of

either a military judge and at least five members, or the judge alone if the accused

so requests,” Weiss, 510 U.S. at 167; 10 U.S.C. § 816(1). “The military

judge . . . acts as presiding officer at a . . . general court-martial.” Weiss,

510 U.S. at 167 (citing 10 U.S.C. § 826). “The judge rules on all legal questions,

and instructs court-martial members regarding the law and procedures to be

followed.” Id. (citing 10 U.S.C. § 851). A military judge “may perform such

duties only when he is assigned and directly responsible to the Judge Advocate

General, or his designee . . . .” 10 U.S.C. § 826(c). He “may perform duties of a

judicial or nonjudicial nature other than those relating to his primary duty as a

military judge of a general court-martial when such duties are assigned to him

by or with the approval of that Judge Advocate General or his designee.” Id. 

In short, a military judge must be detailed to each general court-martial, Weiss,

510 U.S. at 175 (“military judges do not have any inherent judicial authority

separate from a court-martial to which they have been detailed,” (quotation

omitted)), and can be readily assigned or reassigned to adjudicate cases, or
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transferred to entirely nonjudicial tasks, at the discretion of the Judge Advocate

General. Id. at 176.

In contrast to Article III judges who hold office during good behavior,

Article I military judges do not hold office during good behavior. See id.,

510 U.S. at 168 (“Military trial judges . . . do not serve for fixed terms and may

perform judicial duties only when assigned to do so by the appropriate Judge

Advocate General.”); id. at 193 n.8 (Souter, J., concurring) (noting that “military

judges are removable for a broad array of reasons”); O’Callahan v. Parker,

395 U.S. 258, 264 (1969) (“The presiding officer at a court-martial is not a judge

whose objectivity and independence are protected by tenure and undiminishable

salary and nurtured by the judicial tradition . . . .”), overruled on other grounds

by Solorio, 483 U.S. at 436; United States ex rel. Toth v. Quarles, 350 U.S. 11, 17

(1955) (“[T]he Constitution does not provide life tenure for those performing

judicial functions in military trials. They are appointed by military commanders

and may be removed at will.”); cf. In re Grabill Corp., 976 F.2d 1126, 1129

(7th Cir. 1992) (Easterbrook, J., dissenting from denial of rehearing en banc)

(noting that judges in the military do not hold office “during good Behavior”).

Returning then to the definition of a “court of the United States” under

§ 451, we conclude that, although military justice courts are established by an Act

of Congress, military judges are not entitled to hold office during “good

behavior,” and are not, therefore “court[s] of the United States” under § 451. 
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This position is consistent with this circuit’s holding that a bankruptcy court is

not a “court of the United States” under § 451 and 28 U.S.C. § 1927 because

bankruptcy judges hold office for a term of fourteen years, not under lifetime

appointment. Jones v. Bank of Sante Fe (In re Courtesy Inns, Ltd.), 40 F.3d 1084,

1086 (10th Cir. 1994). It is also consistent with other circuits that have

concluded that courts whose judges are not entitled to hold office during “good

behavior” do not come within the definition of a “court of the United States”

under § 451 and, thus, Title 28. See Nobles v. Comm’r, 105 F.3d 436, 438

(9th Cir. 1997) (holding that a tax court judge is not a “judge of the United

States” under § 451 because its judges serve for a fixed fifteen-year term);

Matthews v. United States, 72 Fed. Cl. 274, 277 (2006) (noting that the United

States Court of Federal Claims does not meet the definition of a “court of the

United States” under § 451, because, even though it was created by an Act of

Congress, its judges were appointed for limited terms and were not, therefore,

entitled to hold office during good behavior, but noting that 28 U.S.C. § 2503(b),

granted court authority to act under some specified provisions of Title 28). 

Thus, under § 2244(a), a prisoner convicted by a military court-martial is

not in detention “pursuant to a judgment of a court of the United States.” Id. 

Because § 2244(a) does not apply to Mr. Ackerman, there is no basis to conclude
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that he needs to obtain authorization from this court to file his proposed § 2241

petition in the district court.

Therefore, we DISMISS Mr. Ackerman’s motion for leave as unnecessary.