Brimeyer v. Nelson
712 F. App'x 732
10th Cir.2017Background
- Brimeyer was a Navy enlisted sailor convicted by court-martial in 2010 of rape of a child, aggravated sexual contact, sodomy, and receipt of child pornography; sentence: 33 years confinement and dishonorable discharge.
- NMCCA affirmed all findings except one aggregated sexual-conduct specification which was dismissed, with no sentence adjustment.
- CAAF denied review; Supreme Court denied certiorari.
- Brimeyer filed two § 2241 petitions (NMCCA and CAAF) and then a district-court habeas petition raising seven claims; district court denied, finding waiver on two claims and full/fair consideration of the rest.
- This appeal challenges only the district court’s conclusions and seeks reversal of habeas denial, affirming the district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the NMCCA and CAAF fully and fairly considered Brimeyer’s challenged claims. | Brimeyer contends some claims were not fully/fairly considered. | Government argues NMCCA addressed the claims in detail and fully and fairly considered them. | Yes; NMCCA fully and fairly considered the claims, and we affirm denial on those grounds. |
| Whether Grostefon claims were fully and fairly considered by the military courts. | Brimeyer asserts Grostefon claims were not fully/fairly reviewed. | Government shows NMCCA analyzed the Grostefon claims in the record and responded. | Yes; NMCCA fully and fairly considered the Grostefon claims. |
| Whether Brimeyer waived MRE 412 and related ineffective-assistance arguments by failing to present them on direct appeal. | Brimeyer argued waiver in district court and below but contends the military courts had not barred the claim; he preserved broader arguments. | Waiver should apply where not preserved on direct appeal, but the military courts gave full and fair consideration. | Not waived for MRE 412 claim; however the “clean-up” software argument was waived; review denied consistent with full/fair consideration. |
| What is the proper scope of federal habeas review of military convictions when the military courts have fully and fairly addressed claims. | Petitioner suggests broader re-evaluation of trial record. | Court limits review to jurisdictional issues and fair consideration, not reweighing evidence. | De novo review affirmed within four-part framework; the court affirmed district court's denial. |
Key Cases Cited
- Fricke v. Sec'y of Navy, 509 F.3d 1287 (10th Cir. 2007) (limits habeas review to fair consideration and jurisdictional issues)
- Thomas v. U.S. Disciplinary Barracks, 625 F.3d 667 (10th Cir. 2010) (full and fair consideration required for expanded review)
- O'Sullivan v. Boerckel, 526 U.S. 838 (U.S. 1999) (one full opportunity to resolve issues via the military appellate process)
- Harris v. Reed, 489 U.S. 255 (1989) (procedural bar requires independent basis for disposition)
- Roberts v. Callahan, 321 F.3d 994 (10th Cir. 2003) (cause and actual prejudice to excuse procedural default)
- Lips v. Commandant, U.S. Disciplinary Barracks, 997 F.2d 808 (10th Cir. 1993) (scope of review when claim raised in military courts but not fully explored)
- Ohlander v. Larson, 114 F.3d 1531 (10th Cir. 1997) (judicial economy supports addressing claims on appellate review)
- Tabor v. Hilti, Inc., 703 F.3d 1206 (10th Cir. 2013) (addressing issues raised but not explicitly ruled on by the district court)
- Harsco Corp. v. Renner, 475 F.3d 1179 (10th Cir. 2007) (waiver principles for appellate arguments)