Timothy A. Witham v. UNITED STATES OF AMERICA, Probation Office, Bowling Green Kentucky

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0016P (6th Cir.)
File Name: 04a0016p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
TIMOTHY A. WITHAM,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Probation Office, Bowling
Green Kentucky; UNITED
STATES MARINE CORPS;
UNITED STATES DEPARTMENT
OF THE NAVY,
Respondents-Appellees.
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No. 02-5700
Appeal from the United States District Court
for the Western District of Kentucky at Bowling Green.
No. 01-00013—Joseph H. McKinley, Jr., District Judge.
Argued: October 29, 2003
Decided and Filed: January 14, 2004
Before: RYAN, MOORE, and ROGERS, Circuit Judges.
2 Witham v. United States, et al. No. 02-5700
1Under military law, the Convening Authority is the military
com manding o fficer who is authorized to convene and refer charges to a
court-martial. See 10 U .S.C. § 822 (a). In this case, the Convening
Autho rity was M ajor General R ay Smith.
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COUNSEL
ARGUED: George A. Gallenthin, Philadelphia,
Pennsylvania, for Appellant. Terry M. Cushing,
ASSISTANT UNITED STATES ATTORNEY, Louisville,
Kentucky, for Appellees. ON BRIEF: George A.
Gallenthin, Philadelphia, Pennsylvania, for Appellant. Terry
M. Cushing, Candace G. Hill, ASSISTANT UNITED
STATES ATTORNEY, Louisville, Kentucky, for Appellees.
_________________
OPINION
_________________
ROGERS, Circuit Judge. The petitioner-appellant,
Timothy A. Witham, appeals from the district court’s denial
of a habeas corpus petition challenging his conviction by
general court-martial of several counts of larceny and
wrongful disposition of government property. Witham raised
five issues for habeas review before the district court: (1) that
there was no verbatim record of the trial proceedings, (2) that
the Convening Authority1 lacked proper authority to refer
charges against Witham to the court-martial, (3) that his Fifth
and Sixth Amendment rights were violated when the
prosecution only subpoenaed two of fourteen witnesses
Witham had requested to be procured for his defense, (4) that
he received ineffective assistance of counsel at his court-
martial, and (5) that his Fifth Amendment right to confront
witnesses was violated at trial. Witham’s main contention
before us appears to be that the district court should have

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No. 02-5700 Witham v. United States, et al. 3
210 U.S.C. §866(b)(1) provides for automatic review in the Court of
Criminal Appeals of any case “in which the sentence, as approved,
extends to . . . dishonorable or bad-conduct discharge, or confinement for
one year or more.”
granted Witham an evidentiary hearing prior to rejecting his
habeas corpus petition.
No certificate of appealability was required for us to hear
this appeal from the denial of this federally court-martialed
defendant’s habeas corpus petition. Contrary to Witham’s
argument on appeal, the district court properly refused to hold
a hearing, where three of Witham’s claims were fully and
fairly litigated in the military courts, and the remaining two
claims were raised for the first time in the district court. We
therefore affirm the judgment of the district court.
On April 9, 1998, Witham, then a Staff Sergeant in the
United States Marine Corps, was convicted of multiple
offenses arising from a conspiracy to steal and re-sell military
property, weapons and explosives. Witham was sentenced to
confinement for five years, dishonorable discharge, and
forfeiture of all pay and allowances.
After approval of the sentence, the Convening Authority
forwarded the trial record to the Navy-Marine Corps Court of
Criminal Appeals for review.2 On appeal, Witham claimed
that (1) the Government wrongfully refused to subpoena
witnesses, (2) he received ineffective assistance of counsel,
(3) his rights under the Fifth Amendment Due Process Clause
were violated by excessive post-trial delay, (4) the Convening
Authority was disqualified because two of Witham’s co-
conspirators had received favorable treatment in sentencing,
(5) the Commandant of the Marine Corps exerted unlawful
command influence in posting a message to a “military-
oriented web site,” and (6) the trial record was not verbatim.
The court affirmed Witham’s conviction and sentence.
4 Witham v. United States, et al. No. 02-5700
3W itham actually filed his petition in the district court prior to the
final disposition of his military appeals, but once his military appeals were
exhausted, the Governme nt answered his petition and the proceeding went
forward.
In affirming, the Court of Criminal Appeals fully addressed
three of the claims Witham raises before us. The court
considered Witham’s claim that the prosecution failed to
subpoena witnesses, finding that he had waived it by failing
to object at trial. The court rejected Witham’s ineffectiveness
claim on its merits, finding that his detailed defense counsel
had performed effectively and demonstrated thorough pre-
trial preparation. The court also addressed the merits of
Witham’s claims regarding the trial record, finding that there
was no showing of “substantial omissions” and that,
therefore, his claim failed.
After losing in the Court of Criminal Appeals, Witham
filed a Petition for a Grant of Review in the United States
Court of Appeals for the Armed Forces. The Court of
Appeals for the Armed Forces refused to hear Witham’s
claims.
Having exhausted his military remedies, Witham then
sought habeas corpus review in the district court.3 Witham’s
petition, raising five issues, contended that (1) no verbatim
transcript of the general court martial exists, (2) the
convening authority lacked authority to refer charges against
Witham, (3) Witham’s due process and Sixth Amendment
rights were violated because the prosecution subpoenaed only
two of the fourteen witnesses requested by Witham,
(4) Witham received constitutionally ineffective assistance
due to trial counsel’s inadequate pretrial preparation and trial
errors, and (5) Witham’s Fifth Amendment right to confront
witnesses was violated because the military court refused to
allow a particular tape to be played into the record in its
entirety.

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No. 02-5700 Witham v. United States, et al. 5
The case was referred to a magistrate, who recommended
denial of the petition. The magistrate judge explained first
that the district court’s review of a court-martial proceeding
is limited to a consideration of whether the petitioner’s claims
were given a “full and fair consideration by the military
courts.” The magistrate judge concluded, after a review of the
record, that the military courts had, in fact, fully and fairly
considered the claims Witham raised before them. These
included his assertions regarding the completeness of the trial
record, the Government’s failure to subpoena defense
witnesses, and the alleged ineffectiveness of defense counsel.
The magistrate judge further found that Witham had failed to
raise his remaining two claims before the military courts and
that Witham had therefore procedurally defaulted those
claims. The magistrate judge also recommended that the
district court deny Witham a certificate of appealability on the
grounds that Witham could not demonstrate that reasonable
jurists would debate the validity of the district court’s ruling.
The district court adopted the recommendation of the
magistrate, refused to grant an evidentiary hearing, denied the
petition, and denied a certificate of appealability.
Witham appeals from the district court’s judgment. On this
appeal he urges us to find that his petition has been
“mislabeled” as a petition arising under 28 U.S.C. §2241 and
that it, in fact, arises under §2255. Witham further urges us
to find that §2255 guarantees him an evidentiary hearing and
that the district court erred by not granting him that hearing
with respect to the five issues that he raised in the district
court. Because the district court did not abuse its discretion
when it denied Witham an evidentiary hearing, we affirm.
We review de novo a district court’s legal determinations in
resolving a petition for habeas corpus. See Charles v.
Chandler, 180 F.3d 753, 755 (6th Cir. 1999). The denial of
an evidentiary hearing in a habeas corpus case, however, is
reviewed only for an abuse of discretion. Lott v. Coyle, 261
F.3d 594, 602 (6th Cir. 2001).
6 Witham v. United States, et al. No. 02-5700
First of all, as the government properly concedes, this court
may consider this appeal despite the absence of a certificate
of appealability. As we explain below, Witham’s claim is
properly brought under 28 U.S.C. §2241 and not under 28
U.S.C. § 2255. The federal statutory provision requiring a
certificate of appealability applies to (A) final orders in
habeas cases where detention arose “out of process issued by
State court” and (B) final orders under §2255. 28 U.S.C.
§2253(c)(1). Neither category applies here. The statute does
not require a certificate of appealability for appeals from
denials of relief in cases properly brought under § 2241,
where detention is pursuant to federal process. This result
may be anomalous, since there is little discernible reason to
exempt collateral challenges to court-martial convictions from
the general certificate-of-appealability requirement with
respect to federal court collateral challenges to state or
federal criminal convictions. Nonetheless, the statutory
language imposing the certificate-of-appealability
requirement clearly does not extend to cases where, as in
court-martial cases, detention arose out of federal process but
the proceeding is not under § 2255.
For reasons that are not entirely clear, Witham maintains
that his claim is, in actuality, a motion to vacate sentence
under 28 U.S.C. §2255. In pertinent part, that provision
provides:
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be
released upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to
impose such sentence, . . . or is otherwise subject to
collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.
28 U.S.C. §2255 (emphasis added). Undoubtedly, Witham is
a “prisoner in custody under sentence of a court established
by Act of Congress.” See 10 U.S.C §§817-818 (setting forth

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No. 02-5700 Witham v. United States, et al. 7
the jurisdiction of courts-martial). Furthermore, he claims
jurisdictional and Constitutional infirmities in his sentence.
That does not change the fact, however, that Witham cannot
petition the court which imposed the sentence for relief.
General courts-martial are ad hoc proceedings which
dissolve after the purpose for which they were convened has
been resolved. As a result, there is not a sentencing court in
which a military prisoner may bring a §2255 motion. Gilliam
v. Bur. of Prisons, No. 99-1222, 2000 WL 268491, at *1 (8th
Cir. March 3, 2000) (unpub.). Moreover, neither the Uniform
Code of Military Justice nor the Manual for Courts-Martial
provides for collateral review within the military courts. See
United States v. Murphy, 50 M.J. 4, 5 (C.A.A.F. 1998).
Our decisions indicate that §2255 is intended to be an
avenue of relief to be pursued before the court which imposed
sentence. In Martin v. Perez, 319 F.3d 799, 802-03 (6th Cir.
2003), we explained that Congress enacted §2255 as a means
of ensuring a simpler method of review by vesting
jurisdiction in the sentencing jurisdiction, which already has
a record of the case, rather than in the jurisdiction of
confinement, which would typically have to start from
scratch. Section 2255 is not a different form of relief from
§2241, but rather, a different avenue intended to provide a
more convenient process for prisoners who can pursue relief
before the sentencing court. Id. The savings clause of §2255
provides that, on a showing that the §2255 remedy is
“inadequate or ineffective to test the legality of the
detention,” a prisoner may seek a writ of habeas corpus
under§2241. This clause applies to the military prisoner,
because the court-martial immediately dissolves after
sentencing and is no longer available later to hear a collateral
attack on the sentence. See also Clinton v. Goldsmith, 526
U.S. 529, 537 n. 11 (citing § 2241(c) as authority for
proposition that habeas corpus is available to servicemembers
in custody pursuant to court martial).
8 Witham v. United States, et al. No. 02-5700
On the merits, the district court properly determined that
Witham is not entitled to relief. As the magistrate judge
explained, three of Witham’s claims were fully and fairly
considered by the military courts. Where there is no colorable
jurisdictional question, a finding of full and fair consideration
ends our habeas corpus inquiry. See Burns v. Wilson, 346
U.S. 137, 142 (1953); see also Lips v. Commandant, United
States Disciplinary Barracks, 997 F.2d 808, 811 (10th Cir.
1993) (“[I]f the military gave full and fair consideration to
claims asserted in a federal habeas corpus petition, the
petition should be denied.”). Witham’s two remaining claims
were procedurally defaulted. Where a petitioner has failed to
raise a claim in the military courts, a federal court will not
review the claim unless the petitioner has established “cause”
and “prejudice” for failing to raise the error. Lips, 997 F.2d
at 812 (citing Murray v. Carrier, 477 U.S. 478, 491 (1986)).
As the magistrate below noted, Witham made no effort to
show “cause” or “prejudice” to excuse his procedural
defaults. The district court therefore properly accepted the
magistrate’s recommendation not to review those claims on
the merits.
Witham’s primary argument before this court is that the
district court should have granted a hearing on his claims.
Regardless of whether Witham seeks collateral review under
§ 2241 or § 2255, his assertion on appeal that he was entitled
to an evidentiary hearing is baseless. Witham points to no
authority standing for the proposition that a petition under
§2255 is entitled to an automatic evidentiary hearing.
Moreover, we have consistently held that a district court’s
denial of an evidentiary hearing subsequent to a §2255
motion or a petition for habeas corpus is reviewed for an
abuse of discretion. See, e.g., Ross v. United States, 339 F.3d
483, 490 (6th Cir. 2003); Lott, supra. The district court in
this case did not abuse its discretion by refusing to grant
Witham a hearing.
Witham relies on Townsend v. Sain, 372 U.S. 293, 313
(1963), to assert that the district court was required to conduct

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No. 02-5700 Witham v. United States, et al. 9
an evidentiary hearing. In Townsend, the Court held that,
where there is a factual dispute, “the federal court in habeas
corpus must hold an evidentiary hearing if the habeas
applicant did not receive a full and fair evidentiary hearing in
a state court, either at the time of trial or in a collateral
proceeding.” Id. at 312. Townsend, however, does not
support Witham’s position. Even assuming—without
deciding the question—that Townsend applies in the military
context, it nevertheless applies only where the petitioner can
show that he was not afforded a full and fair evidentiary
hearing in the courts below. Witham has not made any
showing that the military courts failed fully and fairly to
gather and evaluate the evidence relating to his claims. Even
if Witham had tried to make such a showing, the record
indicates that he would have failed. The Navy-Marine Corps
Court of Criminal Appeals evaluated a detailed record from
the court-martial on each of the claims Witham presented to
it.
Moreover, the Townsend Court made it clear that, where a
petitioner asserted that he had not received a full and fair
evidentiary hearing in a state court, the district court retained
the discretion to make the threshold determination of whether
or not a full and fair hearing occurred in the lower courts.
The court explained, “[o]ur final category [the circumstance
under which a habeas applicant did not receive a full and fair
hearing] is intentionally open-ended because we cannot here
anticipate all the situations wherein a hearing is demanded.
It is the province of the district judges first to determine such
necessities in accordance with the general rules.” Id. at 317-
18.
The standard the district courts must apply requires them
first to determine whether a factual dispute exists, and second,
to determine whether the record conclusively shows that the
petitioner is not entitled to relief. Ross, 339 F.3d at 490.
Only if the court finds a factual dispute and that the petitioner
may be entitled to relief should it grant an evidentiary
hearing.
10 Witham v. United States, et al. No. 02-5700
Under the second prong of analysis, the record before us
conclusively shows that Witham is not entitled to relief. As
explained above, two of his claims are procedurally defaulted,
and the remaining three claims were fully and fairly
considered by the military courts. Not only has Witham
never made the effort to argue that his claims were not fully
and fairly considered, but the record clearly shows that they
were. Because Witham is conclusively not entitled to relief,
no hearing was required.
Finding no abuse of discretion, we AFFIRM the judgment
of the district court.

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