ANDREW P. SHOLTES, Naval Consolidated Brig v. RICHARD V. SPENCER, Secretary of the Navy

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREW P. SHOLTES, Naval
Consolidated Brig,
Petitioner-Appellant,
v.
RICHARD V. SPENCER, Secretary of the
Navy,
Respondent-Appellee.
No. 18-56110
D.C. No.
3:18-cv-01330-MMA-BLM
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Submitted November 7, 2019**
Pasadena, California
Before: FARRIS and McKEOWN, Circuit Judges, and KENDALL,*** District
Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Virginia M. Kendall, United States District Judge for
the Northern District of Illinois, sitting by designation.
FILED
NOV 12 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
Andrew P. Sholtes (“Sholtes”) appeals the district court's denial of his
petition for habeas relief under 28 U.S.C. § 2241, alleging the military trial judge
erred in failing to admit evidence at trial of the victim's sexual history and
disposition and drug use in violation of his Fifth and Sixth Amendment rights. The
parties are familiar with the facts, so we do not repeat them here. We have
jurisdiction under 28 U.S.C. § 1291. We affirm the district court.
We review de novo the dismissal of Sholtes’s habeas petition. Alaimalo v.
United States, 645 F.3d 1042, 1047 (9th Cir. 2011) (citation omitted). The narrow
question in reviewing a petition for habeas from a prisoner confined pursuant to a
court martial is whether the military proceedings have “dealt fully and fairly with
an allegation raised in that application.” Burns v. Wilson, 346 U.S. 137, 142
(1953).
The military proceedings easily meet this standard. In a thorough 19-page
analysis, the Navy-Marine Corps Court of Criminal Appeals ("NMCCA")
addressed Sholtes's claims and sub-claims, identifying the relevant legal standard
and applying it to the facts before making its conclusion. Sholtes does not raise any
new claims not considered by the NMCAA.
Sholtes additionally argues the district court erred in summarily dismissing
his petition. A district court may summarily dismiss a habeas petition when “it
appears from the application that the applicant or person detained is not entitled” to

-- 2 of 3 --

3
relief. 28 U.S.C. § 2243. It is plain from Sholtes's petition—which incorporates the
NMCAA decision in its entirety— that the military proceedings "fully and fairly"
considered his claims. Thus, the district court did not err when it summarily
dismissed his petition.
AFFIRMED.

-- 3 of 3 --