*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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. 

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

### JUN 12 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ BOBBY R. CURRY, Petitioner-Appellant,

v. UNITED STATES DISCIPLINARY BARRACKS, Commandant, Fort Leavenworth, Kansas, Respondent-Appellee. No. 99-3311 (D. Kan.) (D.Ct. No. 95-CV-3532)

____________________________ ORDER AND JUDGMENT *

Before BRORBY , KELLY , 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-

Appellant Bobby R. Curry, Jr., a military prisoner appearing pro se , appeals the district court’s decision denying his petition for a writ of habeas under 28 U.S.C. § 2241. We exercise our jurisdiction under 28 U.S.C. § 1291.

The facts presented at Mr. Curry’s court-martial pr oceeding included testimony Mr. Curry stabbed his estranged girlfrien d approximately six times, causing her to cover her protruding intestines withclothing before he threw her over his shoulder and carried her out of her apartm ent into a hallway. On hearing a disturbance in the victim’s apartment, neighbors rushed into the hallway in time to see Mr. Curry exiting the victim’s apartment. T hese neighbors proceeded to block Mr. Curry, demanded he leave the victim so th ey could get medical help and ultimately, caused Mr. Curry to drop the victim on the floor and flee.

Based on this and other evidence, Mr. Curry receive d convictions for attempted premeditated murder, assault consummated by a battery, burglary, and attempted kidnapping. A military panel sentenced h im to a dishonorable discharge, confinement for thirty-five years, forfe iture of $400 pay per month for 420 months, and a reduction to grade E1. Mr. Curryappealed his conviction to the United States Army Court of Criminal Appeals, r aising nine issues of error. The Army court reviewed his appeal, affirmed it in all respects except for-3-

dismissing the attempted kidnapping charge, and red uced his sentence from thirtyfive to thirty years. Mr. Curry then sought reviewby the United States Court of Appeals for the Armed Forces, raising two additiona l issues of error. That appellate court denied his petition for review.

Unsuccessful in the military courts, Mr. Curry file d his federal petition for a writ of habeas corpus under § 2241, raising essentially the same eleven issues presented to the military courts. The district cou rt assigned the matter to a magistrate judge who carefully addressed each issue before recommending denial of Mr. Curry’s petition. After reviewing Mr. Curry ’s objections to the recommendation, the district court adopted the magi strate judge’s report and recommendation and denied Mr. Curry’s petition.

On appeal, Mr. Curry raises three of the same issue s addressed by the district court. Specifically, Mr. Curry contends: (1) his counsel acted ineffectively in failing to interview two of the go vernment’s expert physician witnesses prior to trial; (2) the Army court erred in not holding a rehearing on his other convictions and sentence after setting aside the attempted kidnapping conviction; and (3) the military judge improperly a dmitted expert testimony of the second treating physician. He also generally alleg es, as issues, that “the military-4-

judge failed to dismiss the charge of kidnapping co mpletely after asked to do so during the pretrial motion,” and the “[v]ictim had a civil suit for a large amount of money pending against ... [him] prior to the tri al.”

In appeals concerning military convictions, we revi ew the district court’s dismissal of a § 2241 petition de novo

. See Khan v. Hart , 943 F.2d 1261, 1262 (10th Cir. 1991) (relying on Monk v. Zelez , 901 F.2d 885, 888 (10th Cir. 1990), but the extent of our review is limited. Before we consider Mr. Curry’s claims on the merits, they must meet four conditions. Each c laim must (1) bear constitutional dimension, (2) consist of an issue o f law rather than fact, (3) implicate no special military considerations making federal court intervention inappropriate, and (4) have received inadequate con sideration in the military courts or had the wrong legal standards applied. See Khan , 943 F.2d at 1262-63. When an issue is briefed and argued to a military c ourt, we assume the issue received full and fair consideration, even though t he court summarily disposed of it. See Lips v. Commandant , U. S. Disciplinary Barracks , 997 F.2d 808, 812 n.2 (10th Cir. 1993), cert. denied, 510 U.S. 1091 (1994).

Applying these principles, we have carefully review ed the magistrate judge’s report and recommendation, district court’s decision, Mr. Curry’s brief,-5-

and the record on appeal. We conclude the districtcourt correctly resolved the three issues previously raised by Mr. Curry and add ressed by the magistrate judge in the report and recommendation. First, with rega rd to Mr. Curry’s demand for a rehearing after the Army court set aside his kidnap ping conviction, the magistrate judge determined the military court possessed autho rity to modify his sentence without remand to the court-martial judge and exerc ised that authority in “fully and fairly” reassessing a new sentence. The magistrate judge also held Mr. Curry demonstrated no constitutional error in the reasses sment. We agree. In addition, because the Army court dismissed the kidnapping con viction, Mr. Curry’s argument “the military judge failed to dismiss the charge of kidnapping completely after asked to do so during the pretrial motion,” is moot.

After considering the substantial evidence presente d against Mr. Curry, the magistrate judge correctly determined Mr. Curry fai led to demonstrate how better pretrial preparation by his attorney in interviewin g two physician witnesses would have resulted in a more favorable outcome. I n addition, in reviewing the Army court’s summary dismissal of Mr. Curry’s argum ent concerning improper admission of expert testimony, the magistrate judge properly determined Mr. Curry failed to show any constitutional error in th e military judge allowing a second treating physician to testify about the vict im’s wounds during the merits-6-

portion of the trial. Finally, with regard to Mr. Curry’s general allegation the “[v]ictim had a civil suit for a large amount of mo ney pending against ... [him] prior to the trial,” we will not generally consideran issue not raised or addressed by the district court, see Moore v. Gibson , 195 F.3d 1152, 1181 (10th Cir. 1999), cert. denied, 2000 WL 343946 (U.S. May 30, 2000) (No. 99-8812). In any event, despite the victim’s alleged debt, it most likely h ad little, if any, effect on Mr. Curry’s convictions given the substantial weight of evidence against Mr. Curry, especially including the victim’s neighbors’ testim ony corroborating her testimony that Mr. Curry stabbed her.

For these reasons, we AFFIRM for substantially the same reasons set forth in the magistrate judge’s February 19, 1999 Report and Recommendation and the district court’s September 2, 1999 Order.

Entered by the Court: WADE BRORBY United States Circuit Judge