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Date: Filed /
STATES COURT OF APPEALS
ORDER AND JUDGMENT(*)
Before EBEL, KELLY, and LUCERO, Circuit Judges.(2)
Mr. Whitney, a military prisoner appearing pro se, appeals from the district
court's dismissal without prejudice of his habeas petition, 28 U.S.C. § 2241, for
failure to exhaust military remedies. By way of background, Mr. Whitney was
convicted of rape, forcible sodomy, assault, assault consummated by a battery,
and indecent assault, 10 U.S.C. §§ 920, 925, 928, 934, and was sentenced to a
dishonorable discharge, seven years confinement, and reduction to E-1. With the
exception of the assault conviction, which it found to be a lesser included offense
of rape and forcible sodomy, the Air Force Court of Criminal Appeals affirmed
the convictions, but credited Mr. Whitney with 22.5 days of prior confinement.
United States v. Whitney, No. ACM 32807, 2000 WL 268291 (A.F. Ct. Crim.
App. Feb. 22, 2000), review granted in part, 54 M.J. 321 (C.A.A.F. Sept. 7,
2000). It appears that Mr. Whitney's case is still pending in the Court of Appeals
for the Armed Forces.
On appeal, Mr. Whitney argues that the district court should have granted
the writ and ordered his release from military confinement. We are in agreement
with the district court that Mr. Whitney must complete the military review
process and that no exceptions to this requirement are present in this case; Mr.
Whitney "can show no harm other than that attendant to resolution of his case in
the military court system." Schlesinger v. Councilman, 420 U.S. 738, 758
(1975); see also Parisi v. Davidson, 405 U.S. 34, 40-42 (1972); Gusik v.
Schilder, 340 U.S. 128, 133 (1950); New v. Cohen, 129 F.3d 639, 644-45 (D.C.
Entered for the Court
Paul J. Kelly, Jr.
Click footnote number to return to corresponding location in the text.
*. This order and judgment is not binding
precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
2. After examining the briefs and the appellate
record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral
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