* This order and judgment is not binding precedent except under the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

### SEP 3 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

THOMAS W. SPINDLE, Petitioner,

v. N/F/N TILLERY, Commandant, Respondent. No. 97-3062 (D.C. No. 95-3116-RDR) (D. Kan.)

ORDER AND JUDGMENT *

Before BRORBY, EBEL and KELLY , 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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 Clifford B. Hubbard was convicted of the same cri mes in the same courtmartial. See Hubbard v. Lowe , 1994 WL 702676, at *1 (10th Cir. Dec. 15, 1994) (unpublished disposition), cert. denied, 514 U.S. 1100 (1995).

2Shortly before trial, Private Courtney went AWOL. However, Private Courtney had previously testified against Mr. Spind le at an Article 32 hearing, which is the equivalent of a preliminary hearing. Spindle , 1993 WL 230114 at *1. Private Courtney's testimony at the Article 32 hear ing was introduced against Mr. Spindle at his court-martial. -2- Thomas W. Spindle, a federal inmate and pro se litigant, appeals the district court's denial of his petition for habeas corpus relief. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 (1994) an d affirm.

In June 1982, Mr. Spindle was convicted by a genera l court-martial at Fort Shafter, Hawaii, of felony murder, attempted sodomy , assault with intent to commit sodomy, and indecent acts with a child undersixteen years of age. 1 Spindle v. Berrong , 1993 WL 230114, at *1 (10th Cir. June 24, 1993) (unpublished disposition), cert. denied, 510 U.S. 1067 (1993). The convictions arose from the death of a fourteen year-old boy, wh ose sodomized body was found in an abandoned bomb shelter. Id. The main evidence against Mr. Spindle was the testimony of an eyewitness, Private Joseph Courtney, who was declared unavailable at the time of trial. 2 Id. In addition, testimony was introduced that Mr. Spindle confessed to being present at the scene of the murder. Id. Mr. Spindle was sentenced, inter alia , to life imprisonment. Id.-3-

Following his convictions, Mr. Spindle appealed to the Army Court of Military Review. Spindle v. Berrong , 1993 WL 63401, at *1 (D. Kan. Feb. 4, 1993). Although the court dismissed his assault co nviction, it affirmed his remaining convictions and sentence. Id. Thereafter, Mr. Spindle filed for review of his convictions in the United States Court of Mi litary Appeals. Id. The Court of Military Appeals affirmed his convictions and de nied Mr. Spindle's request for reconsideration. Id.

On January 26, 1990, Mr. Spindle filed a petition f or a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United S tates District Court for the District of Kansas. Id. at *1-2. Although Mr. Spindle asserted nine error s, the district court determined he was not entitled to any relief and dismissed his petition. Id. at *1-3. On June 24, 1993, we affirmed the dismis sal of Mr. Spindle's petition. Spindle , 1993 WL 230114 at *2.

On March 16, 1995, Mr. Spindle filed a second petit ion for habeas corpus relief pursuant to 28 U.S.C. § 2241 with the United States District Court for the District of Kansas. In his second petition, Mr. Sp indle raised the following claims for relief: (1) the government withheld exc ulpatory evidence; (2) he was denied the right to confrontation when the former t estimony of Private Courtney-4-

was admitted at trial; (3) military investigators f ailed to give proper warnings before eliciting inculpatory statements from him; ( 4) he received ineffective assistance of counsel; and (5) he was improperly co nvicted by a two-thirds vote and the jury was not properly instructed on the vot e necessary to impose life imprisonment. On February 6, 1997, the district co urt dismissed Mr. Spindle's second petition for habeas corpus relief in a twelv e page order. Mr. Spindle now appeals from the district court's dismissal of his petition.

On appeal, Mr. Spindle argues the district court er red in denying relief on each of his five claims. Before reviewing these cl aims, we first discuss our limitations on review of military court-martial con victions. Generally, "'federal courts will not entertain habeas petitions by milit ary prisoners unless all available military remedies have been exhausted.'" Khan v. Hart , 943 F.2d 1261, 1263 (10th Cir. 1991) (quoting Schlesinger v. Councilman , 420 U.S. 738, 758 (1975)). Where a prisoner has failed to raise a claim in the military courts, we will not review the claim unless the prisoner establishes cause and prejudice for failing to raise the error. Lips v. Commandant, United States Disciplinary Barr acks , 997 F.2d 808, 812 (10th Cir. 1993), cert. denied, 510 U.S. 1091 (1994). Furthermore, the Tenth Circuit consistently has granted "broad d eference" to the military in collateral review of court-martial convictions. Watson v. McCotter , 782 F.2d 143,-5-

144 (10th Cir.), cert. denied, 476 U.S. 1184 (1986). Our habeas jurisdiction "does not extend to a reassessment of the facts and issues fully and fairly considered by a military court." Khan , 943 F.2d at 1262. In determining the scope of our jurisdiction, we have identified four relevant factors: (1) whether the claimed error is of substantial con stitutional dimension, (2) whether a legal issue is involved, r ather than a factual issue previously resolved by military courts, (3) w hether military considerations may warrant different treatment of c onstitutional claims such that federal civil court intervention w ould be inappropriate, and (4) whether the military courts have given adequate consideration to the claimed error and app lied proper legal standards. Id.

In the present case, Mr. Spindle first argues he is entitled to habeas relief because the government failed to disclose exculpato ry fingerprint evidence removed from the victim's body. Mr. Spindle raisedthis same claim in his first habeas petition. See Spindle , 1993 WL 63401 at *1. However, the district court declined to review the issue because Mr. Spindle di d not raise the issue before the military courts. Id. We affirmed the district court's decision not to review the claim on appeal. Spindle , 1993 WL 230114 at *1. In his present petition, M r. Spindle contends his failure to raise the exculpato ry evidence issue in the military courts should be excused because he was provided in effective assistance of counsel. Assuming, without deciding, Mr. Spindle c an establish cause for failing3 We also conclude that no fundamental miscarriage of justice will result

from our failure to consider this claim. See Klein v. Neal , 45 F.3d 1395, 1400 (10th Cir. 1995) ("habeas corpus petitioner may exc use a procedural default by demonstrating either 'cause for the default and act ual prejudice as a result of the alleged violation of federal law, or ... that failu re to consider the claims will result in a fundamental miscarriage of justice.'") (quoting Brecheen v. Reynolds , 41 F.3d 1343, 1353 (10th Cir. 1994), cert denied, 515 U.S. 1135 (1995)). -6- to raise the issue, we do not believe he can show a ctual prejudice stemming from the error he asserts. Mr. Spindle contends the gov ernment unlawfully withheld latent fingerprints obtained from the victim's body , thus denying him a "mistake of identity" defense. However, the evidence before the military courts revealed that as many as four people were involved in the ev ents leading up to the murder. See Hubbard, 1994 WL 702676 at *2. Thus, even if the fingerpr ints from the victim's body were shown to be the prints of anothe r, this would not establish a probability that Mr. Spindle would have been acquitted. Consequently, we conclude Mr. Spindle cannot establish he was prejud iced by the government's alleged failure to provide him with the latent fing erprints. 3 We therefore affirm the district court's refusal to grant Mr. Spindle r elief based on the government's alleged failure to provide him with exculpatory evi dence.

Second, Mr. Spindle contends he is entitled to habe as relief because the military court erroneously allowed the testimony of Private Courtney to be admitted against him, even though Private Courtney was not present at Mr.-7-

Spindle's court-martial. According to Mr. Spindle, he was denied the opportunity to effectively cross-examine Private Courtney. As noted by the district court, however, Mr. Spindle raised a nearly identical clai m in his first petition for a writ of habeas corpus. The district court in the first habeas proceeding considered this claim on the merits and determined that Mr. Courtne y's testimony was properly admitted under "a firmly rooted hearsay exception." Spindle , 1993 WL 63401 at *3. Furthermore, the court determined Mr. Courtneywas subjected to cross examination at the Article 32 hearing, and this cro ss-examination was read to the jury at trial. Id. On appeal, we concluded the admission of Private Co urtney's testimony did not infringe Mr. Spindle's constituti onal rights. Spindle , 1993 WL 230114 at *2.

Because Mr. Spindle's objections to Private Courtne y's testimony have been previously considered and rejected by a federal cou rt, we are only required to reconsider such objections if Mr. Spindle has "supp lement[ed] his constitutional claim with a colorable showing of factual innocence ." Kuhlmann v. Wilson , 477 U.S. 436, 454 (1986). To satisfy this standard, Mr . Spindle must show "sufficient claims and facts that -- had the jury considered th em -- probably would have convinced the jury that the defendant was factually innocent ." Parks v. Reynolds , 958 F.2d 989, 995 (10th Cir.), cert. denied, 503 U.S. 928 (1992) (emphasis in-8-

original). After thoroughly reviewing Mr. Spindle' s appellate brief and all relevant portions of the record, we conclude Mr. Sp indle has failed to make such a showing. Consequently, we conclude the district court did not err in failing to review Mr. Spindle's claim concerning the testimonyof Private Courtney.

Third, Mr. Spindle argues he is entitled to habeas relief because he received ineffective assistance of counsel. To prevail on h is ineffective assistance of counsel claim, Mr. Spindle must show his counsels' representation "fell below an objective standard of reasonableness," and the defi cient performance prejudiced Mr. Spindle. Strickland v. Washington , 466 U.S. 668, 687-88 (1984). To establish prejudice, Mr. Spindle "must show that th ere is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

In the present case, Mr. Spindle claims his represe ntation was deficient in several regards. First, he argues his counsel did not effectively cross-examine Private Courtney because he lacked "sufficient data , lab results or documentation" and because Private Courtney went AWOL before the c ourt-martial. After reviewing defense counsel's cross-examination of Pr ivate Courtney at the Article 32 hearing, we agree with the district court that t he cross-examination was-9-

adequate. Although counsel may have lacked data orlab reports, there is no indication that this was due to the deficiencies of defense counsel. Nor is there any indication in the record that Private Courtney' s absence at trial was due to any actions of defense counsel. Thus, we conclude Mr. Spindle's counsel's crossexamination of Private Courtney was not deficient.

Mr. Spindle also contends his counsel was deficientbecause he failed to obtain key evidence. However, Mr. Spindle fails to specify what key evidence counsel failed to uncover. Consequently, we are un able to ascertain any deficiency from this contention.

Next, Mr. Spindle claims his counsel "adopted [the] impossible strategy [of] plac[ing] the petitioner at the scene of the c rime on the night the victim was abducted and killed." At Mr. Spindle's court-marti al, an officer investigating the murder of the young boy testified that Mr. Spindle acknowledged that he was with the boy on the night he was killed. Private Courtn ey's testimony, which was read at the court-martial, also placed Mr. Spindle at th e scene of the crime on the night of the murder. In light of this testimony, we do n ot believe counsel for Mr. Spindle was ineffective in adopting a strategy thatplaced Mr. Spindle at the scene of the crime.-10-

Finally, Mr. Spindle contends his counsel was ineff ective because he failed to object to testimony concerning threats Mr. Spind le allegedly made to his exwife and another soldier. Assuming without decidin g that defense counsel was deficient in failing to object to this testimony, w e do not believe Mr. Spindle can establish he was prejudiced by this testimony. In light of the entire testimony at the court-martial, we conclude it is very unlikely Mr. Spindle would have been acquitted in the absence of the testimony concernin g the alleged threats. We therefore find Mr. Spindle is not entitled to habea s relief for his ineffective assistance of counsel claim.

Fourth, Mr. Spindle contends he should receive habe as relief because he was not provided proper warnings, as required by Miranda v. Arizona , 384 U.S. 436 (1966) and Article 31(d) of the Uniform Code of Military Justice, before he made inculpatory statements to the military investi gators. At his court-martial, Mr. Spindle argued his statements to the military i nvestigators were not voluntary, and he moved to suppress these statements. After h earing evidence and arguments on the motion to suppress, the military j udge concluded Mr. Spindle's statements were voluntary and made following properwarnings. Although Mr. Spindle failed to challenge the military judge's ru ling on direct appeal, he did argue that his statements were made without receivi ng proper warnings in his-11-

subsequent petition for a military writ of habeas c orpus. However, the military court of criminal appeals denied his petition.

As determined by the district court in its order de nying Mr. Spindle's habeas petition, we believe the military courts hav e given full and fair consideration to Mr. Spindle's claim that he did no t receive proper warnings before making inculpatory statements. Because Mr. Spindle has made no showing that the military courts employed improper legal st andards or committed errors of constitutional magnitude with respect to this claim , we conclude no further consideration is warranted.

Finally, Mr. Spindle contends the district court sh ould have granted him habeas relief because he was improperly convicted b y a two-thirds vote and because the military judge failed to properly instr uct the jury that a three-fourths vote is required to sentence a defendant to life imprisonment. The Uniform Code of Military Justice provides, in pertinent part, "[ n]o person may be convicted of any [crime for which the death penalty is not mandatory], except ... by the concurrence of two-thirds of the members present atthe time the vote is taken." 10 U.S.C. § 852(a)(2) (1994). We have previously h eld that this two-thirds voting requirement satisfies the requirements of due proce ss. Mendrano v. Smith , 797-12-

F.2d 1538, 1544-47 (10th Cir. 1986). In the present case, Mr. Spindle was convicted of crimes for which the death penalty was not mandatory. Consequently, his conviction on the basis of two-th irds vote was not improper.

Once the court members determine a defendant is gui lty, the members must deliberate on the sentence. 10 U.S.C. § 852(b)(2) provides "[n]o person may be sentenced to life imprisonment or to confinement fo r more than ten years, except by the concurrence of three-fourths of the members present at the time the vote is taken." At Mr. Spindle's court-martial, the court members were instructed that in determining Mr. Spindle's sentence, "[they] will .. . vote on secret written ballot on each proposed sentence in its entirety beginning with the least severe until a sentence is adopted by the required concurrence of three-fourths of the members, that is seven -- excuse me six of the seven members now present." Thus, contrary to Mr. Spindle's contentions, it is clear the courtproperly instructed the court members that a three-fourths vote was required to s entence Mr. Spindle.

Based upon the foregoing reasons, we conclude Mr. S pindle is not entitled to habeas corpus relief. Hence, we AFFIRM the district court's denial and dismissal of Mr. Spindle's petition for a writ of h abeas corpus. However, having recently held that habeas proceedings under 28 U.S. C. § 2241 are not "civil-13-

actions" subject to the filing fee provisions of th e Prison Litigation Reform Act, 28 U.S.C. § 1915(a)(2) and (b), McIntosh v. United States Parole Comm'n , 115 F.3d 809, 812 (10th Cir. 1997), we REMAND to the district court with instructions to vacate its order assessing Mr. Spin dle docket fees.

Entered for the Court

WADE BRORBY United States Circuit Judge