Habeas Review of Military Proceedings

In Pacheco v. Commandant, USDB (No. 11-3301) the Tenth Circuit denied a habeas challenge to a court martial (something I had not seen before). The standard of review in such circumstances is limited. As phrased by the court: “If the military courts have given full and fair consideration to the claims asserted in the habeas petition, we [the Court of Appeals] cannot consider the merits and must deny the petition.” Moreover the court goes on to note that “[w]e generally assume that that the military has fully and fairly considered an issue if it has been briefed, even if the military court summarily rejects the petitioner’s arguments.” Given that a wholly new argument would likely be barred, review appears limited to circumstances where a petitioner can show affirmative evidence that his argument was not fairly considered. It is hard to imagine what such evidence might be.