* This order and judgment is not binding precedent, e xcept under the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

### February 17, 2006 Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
GLENN E. HURN,

Petitioner-Appellant, No. 05-3206
v. (D.C. No. 04-CV-3008-RDR) COLLEEN L. MCGUIRE, Commandant, United States Disciplinary Barracks, (D. Kan.)

Respondent-Appellee.

ORDER AND JUDGMENT *
Before HENRY , McKAY, and EBEL , Circuit Judges.

After examining the briefs and the appellate record , this panel has determined unanimously that oral argument would notmaterially 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 ora l argument. Mr. Hurn appeals the district court’s dismissal of his 28 U.S.C. § 2241 petition that alleged ineffective assistance of cou nsel due to the failure to raise a-2-

speedy trial defense. On July 10, 1996, the milita ry detained Mr. Hurn. On August 2, 1996, Mr. Hurn’s counsel requested an inq uiry into Mr. Hurn’s mental capacity. Mr. Hurn was examined by a competency bo ard and found that he was unfit to stand trial but that he was expected to be competent to stand trial after two or three months’ medical treatment. The compet ency board reexamined Mr. Hurn on January 30, 1997, and found him competent t o stand trial. Mr. Hurn was then arraigned on February 21, 1997. Following tri al, Mr. Hurn was convicted by general court-martial of rape, forcible sodomy, ind ecent acts, four specifications of assault consummated by a battery, and indecent a ssault, all involving a child under sixteen years of age, and was sentenced to co nfinement for life. Mr. Hurn is currently an inmate in the United States Discipl inary Barracks at Fort Leavenworth, Kansas. Mr. Hurn appealed his conviction to the Navy-Marine Corps Court of Criminal Appeals (“NMCCA”), alleging thirteen error s in the proceedings, none of which involved ineffective assistance of counsel or the right to a speedy trial. The NMCCA affirmed Mr. Hurn’s conviction. Mr. Hurnthen appealed to the United States Court of Appeals for the Armed Forces (“CAAF”), alleging twentyone errors, none of which involved ineffective assi stance of counsel or the right to a speedy trial. The CAAF affirmed Mr. Hurn’s co nviction. Mr. Hurn also petitioned the military courts for a writ of habeas corpus, and it was in these-3-

proceedings that Mr. Hurn first raised the speedy t rial defense. The military courts dismissed Mr. Hurn’s habeas petition. Mr. H urn now seeks relief in federal court under 28 U.S.C. § 2241, claiming thatthe delay between his pretrial confinement and his arraignment constituted a violation of his speedy trial rights and that his trial counsel was ineffective because he failed to inform Mr. Hurn of this right. Additionally, Mr. Hurn alleges that ap pellate counsel was ineffective because he failed to raise an ineffective assistanc e of counsel claim regarding the trial counsel’s work. In a May 6, 2005 Memorandum and Order, the district court dismissed Mr. Hurn’s § 2241 petition because the in quiry into Mr. Hurn’s mental capacity and his treatment tolled the speedy trial requirements, and there was, therefore, no ineffective assistance of counsel.. We treat the district court’s order as a Rule 56 gr ant of summary judgment and review it de novo. Stanko v. Maher , 419 F.3d 1107, 1111 (10th Cir. 2005). We have carefully reviewed Mr. Hurn’s brief, the di strict court’s order, and the record on appeal, and for substantially the same re asons set forth in the district court’s May 6, 2005 Order, we AFFIRM the district court’s dismissal of Mr. Hurn’s petition for 28 U.S.C. § 2241 habeas corpus relief. Entered for the Court
Monroe G. McKay Circuit Judge-4-