* This order and judgment is not binding precedent, except under the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.

** After examining the briefs and 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. 

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

### FEB 9 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOHN J. HAEGER, Petitioner-Appellant,

v. MICHAEL A. LANSING, Commandant, USDB-Ft. Leavenworth, Kansas, Respondent-Appellee. No. 00-3106 (D.C. No. 99-CV-3025-RDR)

(D. Kan.)

ORDER AND JUDGMENT *

Before HENRY , BALDOCK , and LUCERO , Circuit Judges. **

John J. Haeger, a prisoner confined in the United S tates Disciplinary Barracks at Fort Leavenworth, Kansas, seeks to appe al the district court’s order denying his petition for a writ of habeas corpus. Mr. Haeger was formerly an2

enlisted member of the United States Navy. In 1990 , he pleaded guilty before a military tribunal to charges of conspiracy to commi t espionage and attempted espionage. A general court martial panel sentenced him to nineteen years’ imprisonment, dishonorable discharge from naval service, forfeiture of pay and allowances, and a reduction in grade. Mr. Haeger then appealed to the Navy and Marine Corps Court of Military Review. After that court affirmed his sentence, th e Court of Military Appeals denied his petition for grant of review. In 1993, Mr. Haeger filed a petition for a writ of habeas corpus with the

United States District Court for the District of Ka nsas. There, he argued that the court-martial lacked jurisdiction because the milit ary judge was designated in violation of the Appointments Clause of the United States Constitution and that the military judge lacked the necessary independenc e because he had not been appointed for a fixed term. The federal district c ourt denied Mr. Haeger’s petition. See Haeger v. Lowe , No. 93-3548-RDR, 1997 WL 103948, at *1 (D. Kan. Feb. 27, 1997) (noting that, in Weiss v. United States , 510 U.S. 163 (1994), the Supreme Court held that the Appointments Clause does not require military officers serving as judges to be appointed a second time and that the lack of a fixed term does not violate the Due Process Clause)

. In 1998, Mr. Haeger filed a petition for a writ of habeas corpus with the3

Navy-Marine Corps Court of Criminal Appeals. He ar gued that the court-martial lacked jurisdiction for three reasons: (1) because the convening authority did not comply with the Manual of the Judge Advocate Genera l; (2) because that official had not entered into an agreement with the Departme nt of Justice; and (3) because the Secretary of the Navy had not approved the pretrial agreement. See Rec. doc. 14, at 7-8 (Respondent’s Answer and Return, filed M ay 14, 1999) (citing military appellate record at 442). The Navy-Marine Corps Co urt of Criminal Appeals denied Mr. Haeger’s petition. In this case, Mr. Haeger advances several challenge s to the court-martial proceedings, including: (1) that the court-martial was improper because the convening authority was one of his accusers; (2) th at the military judge did not meet the statutory qualifications; (3) that he was coerced into signing a pretrial agreement because the initial description of the ch arges did not refer to them as non-capital; (4) that the convening authority did n ot obtain the approval of the necessary parties to the pretrial agreement; and (5 ) that the court-martial lacked jurisdiction because the government failed to alleg e “exclusive/concurrent juridiction.” Rec. doc. 1, at 7A (Petition filed J an. 19, 1999). As a result of these errors, Mr. Haeger maintains, his sentence and conv iction are invalid. The district court denied Mr. Haeger’s petition. I t concluded that his petition set forth allegations that officials faile d to follow military regulations but4

that it failed to allege violations of the federal constitution. In habeas cases, our review of the decisions of military courts is extremely deferential. If the petitioner’s claims have been fully and f airly considered by the military courts, we will generally deny relief. Lips v. Commandant, U.S. Disciplinary Barracks , 997 F.2d 808, 811 (10th Cir. 1993). Additionally, before we may consider its merits, a claim raised in habeas must: (1) assert a constitutional violation; (2) consist of an issue of law rather than fact; (3) implicate no special military considerations ma king federal court intervention inappropriate; and (4) have received inadequate con sideration in the military courts or had the wrong legal standards applied. See Khan v. Hart , 943 F.2d 1261, 1262-63 (10th Cir. 1991). When a prisoner fa ils to raise a claim in the military courts, a federal court will not review th e claim unless the prisoner establishes cause and prejudice for failing to raise the error. See Lips , 997 F.2d at 812. Under those standards, Mr. Haeger has fail ed to make a substantial showing of the denial of a constitutional right. As to his claims that the convening authority was o ne of his accusers and that he was coerced into pleading guilty, we note t hat Mr. Haeger has failed to rebut the respondent’s assertion that he failed to raise them in the military proceedings. There is also no indication that Mr. Haeger claimed in the military proceedings that the prosecution failed to allege “ exclusive/concurrent1 We also note that the military courts have conclude d that violations

of the rule that the convening authority should notbe an accuser are subject to harmless error analysis. See United States v Ridley , 22 M.J. 43, 48 (C.M.A.1986) (noting that there was no indication i n the record of an attempt by the accuser to exert improper influence). As to th e voluntariness of Mr. Haeger’s guilty plea, the sections of the military record id entified by the respondent indicate that Mr. Haeger was properly informed of t he allegations against him and that he stated that he had had an opportunity t o review the pretrial agreement and was voluntarily pleading guilty. See Rec. doc. 14, at 16-18 (citing military record, vol. II, at 332-33). 5 jurisdiction.” Because Mr. Haeger has demonstrated neither cause nor prejudice for this default, we may not consider these claims here. 1 As to the other issues raised by Mr. Haeger here, t he respondent has established that they were fully and fairly conside red by the military courts. Moreover, we agree with the district court that Mr. Haeger’s allegations do not

rise to the level of constitutional violations. Mr. Haeger has failed to provide any support for the legal proposition that violations o f military regulations concerning the parties necessary to approval pretrial agreemen ts confer due process rights on the defendant, absent a showing of prejudice. See United States v. Swan , 43 M.J. 788, 792 (N.M. Ct. Crim. App. 1995) (concluding that failure to follow a military regulation was subject to harmless error analysis). Accordingly, we DENY Mr. Haeger’s motion for a cert ificate of appealability and DISMISS this appeal. Entered for the Court,6 Robert H. Henry United States Circuit Judge