UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ BRENT A. BURKE, Petitioner - Appellant,

v. ERICA NELSON, Respondent - Appellee. No. 16-3314 (D.C. No. 5:15- CV-03245-JWL) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , O’BRIEN , and PHILLIPS , Circuit Judges.

________________ _________________ The Commonwealth of Kentucky tried four times to convict Brent A. Burke of double murder. Four mistri als resulted. Then the United States Army charged and convicted Burke for th e double murder. In a 28 U.S.C. § 2241 habeas corpus petition, Burke now argues that the Army lacked jurisdiction to tr y him and, further, that it violated his Fifth Amendment rights at trial. Burke is currently in custody at the United States Disciplinary Barracks in Fort Leavenworth, Kansas. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s order denying Burke’s petition.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 4, 2017
Elisabeth A. Shumaker Clerk of Court2 I On October 15, 2007, the Commonwealth of Kentucky arrested Burke for murdering his estranged wife and her former mother-in-law from an earlier marriage. At all relevant times, Burke was an active-duty sergeant in the Army. Starting in September 2009 and ending in April 2011, Kentucky pr osecuted Burke four se parate times for the murders, each trial ending in mistrial—bec ause of evidence mi shandling, a sick prosecution witness, and then two hung juries. Never during these years of legal proceedings did Burke request a discharge from, or object to his continued enlistment in, the military. On May 20, 2011, in fact, five days before his May 25 Expiration of Term of Service (ETS) date, Burke sent a letter to his battalion commander stating his intent to remain in the Army. On June 29, 2011, af ter the fourth mistrial, state prosecutors dismissed the charges against Bu rke without prejudice. The next day, Kentucky released Burke into the cu stody of the United States Army. On July 8, 2011, the Army charged Burke with the mu rders and other associated crimes. On May 8, 2012, a court-martial pane l convicted Burke of the two murders, burglary, child endangerment, and obstruction of justice. Burke was sentenced to life confinement without parole, as well as a reprimand, a re duction in rank to private, forfeiture of all pay and allowanc es, and a dishonorable discharge. During the appeals process, Burke first argued to the court-ma rtial convening authority that the Army had lacked jurisdiction over him and had violated his Fifth Amendment rights by admitting into evidence at his court-martial his ear lier statements to Kentucky police. The convening authority denied Burke relief. Bu rke then appealed to the Army Court of3 Criminal Appeals (ACCA), raising multiple issues, including those premised on jurisdiction and the Fifth Amendment. Af ter oral argument on the Fifth Amendment issue, the ACCA affirmed the core findings of guilt and the sentence. 1 Burke then submitted a Petition for Grant of Review to th e Court of Appeals for the Armed Forces (CAAF), once again raising the Fifth Amendm ent and lack-of-jurisdiction issues, among a host of others. The CAAF denied Burke’s Pe tition. Finally, Burke tu rned to the federal courts and filed a Petition for Writ of Habeas Corpus in the Dist rict of Kansas. On September 14, 2016, the district court denied Burke’s Petition. Burke now appeals pro se, raising only the two well-litigated issues of military jurisdiction and the Fifth Amendment. 2
II Burke proceeds pro se on appeal, so we co nstrue his pleadings liberally, but we do not serve as his advocate. Yang v. Archuleta , 525 F.3d 925, 927 n. 1 (10th Cir. 2008). We review de novo the district c ourt’s denial of habeas relief. Fricke v. Secretary of Navy , 509 F.3d 1287, 1289 (10th Cir. 2007). But we generally limit our review of courtsmartial, which are military tribunals of speci al and limited jurisdiction, to two issues: (1) was military jurisdiction proper?; and (2) did the military give full and fair consideration to a petitioner’s constitutional claims? Id. at 1289-90. In reviewing the

1 The ACCA dismissed one charge as an unreasonable multiplication of other charges. The United States had conceded th e error. The dismissal did not change the sentence.

2 The district court has already granted Burke in forma pauperis status for this proceeding.4 military’s jurisdiction to hear the case, we make our own determination without affording any deference to the military court’s determination. Id. at 1290. But in evaluating the “full and fair consideration” standard g overning constitutional cl aims, we deny claims that were briefed and argued before a military court, even if the result was summary dismissal. Watson v. McCotter , 782 F.2d 143, 145 (10th Cir. 1986). First, Burke claims that the military la cked the proper jurisdiction to try him. Court-martial jurisdiction did not attach to him, he says, until charges were preferred against him on July 8, 2011. By that time, he argues, because hi s ETS date had passed and because military regulations state that enlistment should end thirty days after an ETS date, he was no longer in the military a nd therefore beyond the reach of any courtmartial. But Burke is mistaken that he had a right to an auto matic or constructive discharge from the United States armed forces. “[A] ll servicemen, ‘including those awaiting discharge after expiration of their terms of en listment’ are subject to the Code of Military Justice.” Fricke , 509 F.3d at 1290 (quoting Desjardins v. Department of Navy , 815 F. Supp. 96, 98 (E.D.N.Y. 1993) (quoting 10 U.S.C. § 802( a)(1))). The statute governing military discharge makes clear th at a member of the armed forc es “may not be discharged or released from active duty until his discharge certificate or certificate of release from active duty . . . and his final pay or a substantia l part of that pay, are ready for delivery.” 10 U.S.C. § 1168(a). Burke attempts to counter th is body of law by pointing to military regulations that he contends required his discharge before his c ourt martial. In particular, he points to an5 Army regulation provi ding that “[i]f charges have not be en preferred, the Soldier will not be retained more than 30 days beyond the ETS unless the general court-martial convening authority approves retention.” Army Regulation 635-200, 1-22(b). Burke’s ETS date was May 25, 2011. He was not char ged until July 8, 2011, more than thirty days later. But the regulation is not the only law applying here. Cour ts have already rejected any view that Regulation 1-22(b) provid es an automatic discharge power. In United States v. Hutchins , 4 M.J. 190, 192 (C.M.A. 1978 ), the Court of Military Appeals 3 acknowledged that the regulation obliges a c ourt-martial convening authority to act when a service member is retained more th an thirty days past his ETS date. Id. But it also concluded that the regulation “has no e ffect on court-martial jurisdiction.” Id. Military regulations must yield to Congressional requirements for m ilitary discharge. Id. And the language Congress used leaves no room for any self-enforcing discharge. See id. ; 10 U.S.C. § 1168(a). Burke’s citation to United States v. Russo , 1 M.J. 134, 135 (C.M.A. 1975) does nothing to change this. As Hutchins noted, the defendant in Russo was never subject to the Code of Military Justice, b ecause recruiter misconduct and failure to meet enlistment standards rendered th e enlistment void from its inception. 4 M.J. at 192. Here, no one disputes that Burk e’s enlistment was valid. 4

3 The Court of Military Ap peals (C.M.A.) later beca me the Court of Appeals for the Armed Forces (C.A.A.F.).

4 Burke also cites to an unpublished case from our ci rcuit (which the district court cited), Williams v. Weathersbee , 280 Fed. Appx. 684, 686 (10th Cir. 2008), to further his automatic-discharge argument. Williams , based in part on a reading of the6 Burke might have had a stronger argument ha d he timely objected to his retention in the military. See id. (“As no action was taken to separa te the appellant from the service and appellant did not obj ect to his retention , his military status was not terminated.”) (emphasis added). But he did not. As referenced, five da ys before his ETS date, he signaled his intention to re-en list. He did not object to his military status until July 26, 2011, eighteen days after the military had brought charges against him. And “a demand [for discharge] made after the preferral of charges is too late.” Id. at 191. But even a timely objection might not have been enough. In Dickenson v. Davis , 245 F.2d 317, 319 (10th Cir. 1957), at least sixty days had elap sed between a service member’s request for discharge and charges being brought against him. We upheld court-martial jurisdiction because of the lack of formal discharge, noting that “the stat us of the accused as a soldier was unbroken and the charge against him was based upon an offens e committed by him during his term of enlistment.” Id. That description applies equally well to Burke. In the armed forces, form alities matter. “Service in the military, whether by enlistment or otherwise, creates a status which is not and cann ot be severed by breach of

military’s court-martial manua l, noted that military ju risdiction “once established while [the service me mber] is still a member of the military” can continue past an ETS date. Id. The implication being, Burke suggests, that if it did not attach before the ETS date, it cannot do so afterward. This is incorrect. First, as discussed, Army regulations cannot override Congress’s ma ndate that discharg e not occur until the proper papers and final pa y are ready for delivery. See 10 U.S.C. § 1168(a). Second, the Manual for Courts-Martial that Williams cited states elsewhere that court-martial jurisdiction “continues past [an ETS date ] until a discharge cer tificate or its equivalent is delivered or until the Governme nt fails to act with in a reasonable time after the person objects to continued reten tion.” Rule 202(a)(2)(B)(i), Manual for Courts-Martial (2016 ed.). Burke never receiv ed discharge papers and never objected until after being charged.7 contract unfortified by a proper authoritative action.” Id. Military inaction cannot substitute for the formalities that Congress has mandated fo r discharge. The bottom line is that “[w]hether [the milita ry] should have discharged Petiti oner or not, the fact remains that Petitioner was not discharged.” Fricke , 509 F.3d at 1290. Burke’s discharge papers and final pay were never ready for delivery. He remained a member of the military until his sentence that included a dishonorable disc harge became final, and thus the military had proper jurisdiction to try him. 5
III Burke next claims that his Fifth Ame ndment rights were violated when his statements from his interview with Kentucky State Police dur ing the murder investigation were used against him at his court-martial even though he was not advised of his rights during questioning. We have no authority to de lve into the substance of this claim. As mentioned, when it comes to court-martial ru lings on constitutional claims, our review is sharply limited: so long as the claim was brie fed and argued before a military court, we must deny the claim. Watson , 782 F.2d at 145. And here Burke made his Fifth Amendment argument before the convening authority of his court-martial, which received briefs, heard argument, and then fou nd for the United States . Burke also briefed his Fifth Amendment claim in his appeal to the ACCA and that court heard arguments on

5 Because we find that the military had jurisdiction ove r Burke even if his ETS date was May 25, 2011, we need not r each Burke’s preemptiv e argument against finding that his civilian confinement ex tended his ETS date. And because we hold that the military had proper jurisdiction even if jurisd iction did not attach until charges were preferred on July 8, 2011, we do not consider whether jurisdiction actually attached earlier due to a period of confinement or a military investigation.8 the matter. The court then de nied the claim in a written opinion. Burke briefed the issue again in his Petition for Grant of Review to the CAAF, which su mmarily denied the Petition. Those multiple layers of substantive military court review are more than adequate to foreclose our own review. See id. We conclude that Burke’s Fifth Amendment claim has already been fully and fairly considered and so deny it. We affirm the district court’s de nial of Burke’s habeas petition.

Entered for the Court
Gregory A. Phillips Circuit Judge