Appellate Case: 20-3149 Document: 010110849668 Date Filed: 04/25/2023 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`April 25, 2023
`
`Christopher M. Wolpert
`Clerk of Court
`
`PUBLISH
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`ANTHONY V. SANTUCCI,
`
` Petitioner - Appellant,
`
`v.
`
`COMMANDANT, United States
`Disciplinary Barracks, Fort Leavenworth,
`Kansas,
`
` Respondent - Appellee.
`_________________________________
`
`
`
`
`
`No. 20-3149
`
`Appeal from the United States District Court
`for the District of Kansas
`(D.C. No. 5:19-CV-03116-JWL)
`_________________________________
`
`John N. Maher (Kevin J. Mikolashek with him on the opening brief), Maher Legal
`Services PC, Geneva, Illinois, for Petitioner-Appellant.
`
`Jared S. Maag, Assistant United States Attorney (Kate E. Brubacher, United States
`Attorney, and James A. Brown, Assistant United States Attorney with him on the brief),
`Office of the United States Attorney, District of Kansas, Topeka, Kansas, for
`Respondent-Appellee.
`
`_________________________________
`
`Before HOLMES, Chief Judge, EBEL, and EID, Circuit Judges.
`_________________________________
`
`HOLMES, Chief Judge.
`_________________________________
`
`Petitioner-Appellant Anthony Santucci appeals from the denial of his 28
`
`U.S.C. §§ 2241 and 2243 petition for a writ of habeas corpus. In 2014, a military
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`Appellate Case: 20-3149 Document: 010110849668 Date Filed: 04/25/2023 Page: 2
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`jury convicted Mr. Santucci of rape, forcible sodomy, battery, and adultery. He
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`asserts that a court-martial trial judge deprived him of his Fifth Amendment right to
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`due process by failing to instruct the jury on an affirmative defense and issuing
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`unconstitutional propensity instructions at his trial. The U.S. Army Court of
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`Criminal Appeals (the “ACCA”) agreed with Mr. Santucci that the court-martial
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`tribunal erred on both issues; nevertheless, it affirmed Mr. Santucci’s convictions on
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`the basis that these errors were harmless.
`
`In his habeas petition, Mr. Santucci argued, in relevant part, that the ACCA
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`misapplied the harmless error standard by failing to review the cumulative impact of
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`the erroneous instructions. Because, in his view, the military tribunals deprived him
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`of his constitutional right to a fair trial, Mr. Santucci contended that the district court
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`was authorized to review the merits of his claims. On habeas review, the U.S.
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`District Court for the District of Kansas denied Mr. Santucci’s petition, finding that
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`the ACCA had fully and fairly considered his claims. Mr. Santucci appeals, arguing
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`that the federal district court should have adjudicated his constitutional claims on the
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`merits. Had the court done so, says Mr. Santucci, habeas corpus relief would have
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`been appropriate because the erroneous instructions, viewed cumulatively, prejudiced
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`him beyond a reasonable doubt.
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` Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s
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`judgment.
`
`
`
`2
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`

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`Appellate Case: 20-3149 Document: 010110849668 Date Filed: 04/25/2023 Page: 3
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`I
`
`A
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`Military officials charged Mr. Santucci, then an Army private stationed in Fort
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`Polk, Louisiana, with violating Articles 120, 125, 128, and 134 of the Uniform Code
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`of Military Justice (“UCMJ”), following allegations that he raped a woman, TW, in
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`July of 2013. See 10 U.S.C. §§ 920, 925, 928, 934.1 In 2014, a jury sitting as a
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`general court-martial convicted Mr. Santucci on one count each of rape, sexual
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`assault, forcible sodomy, and battery, as well as two counts of adultery.2 Relevant to
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`this appeal, the charges against Mr. Santucci regarding TW were tried together with
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`other charges for sexual assault and adultery involving a second alleged victim, JM.
`
`
`Military court-martial procedures are governed by the UCMJ, 10 U.S.C.
`1
`§§ 801–946a. A general court-martial has jurisdiction to try military personnel for
`serious offenses, including rape and sexual assault. See id. §§ 818(c), 920. In
`noncapital cases, a general court-martial is tried before a military judge and eight
`panel members. See id. § 816(b)(1). As a unit, the members operate in a manner
`roughly similar to a jury in a civilian proceeding. See Mendrano v. Smith, 797 F.2d
`1538, 1540–41 (10th Cir. 1986) (describing differences between trial before “panel
`members” and a civilian jury but noting that “the modern military court-martial
`proceeding bears a considerable resemblance to a civilian jury trial”); cf. 6 WEST’S
`FEDERAL ADMINISTRATIVE PRACTICE § 6474, Westlaw (database updated July 2022)
`(“The accused has the option of requesting trial . . . with ‘members’ (the equivalent
`of a jury trial).” (emphasis added)). Accordingly, for convenience, we frequently use
`the term “jury” in this opinion to refer to the panel members who heard the evidence
`and received the instructions in Mr. Santucci’s trial, while remaining cognizant that
`military panels are not precise equivalents of civilian juries.
`
` 2
`
`Mr. Santucci also pleaded guilty to making a false statement to
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`investigators. See Aplt.’s App. at 55 n.1 (Army Ct. of Crim. Appeals Decision, dated
`Sept. 30, 2016). That conviction is not at issue in this appeal.
`3
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`

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`At trial, the evidence indicated that Mr. Santucci met TW—who was
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`married—at a bar, where the two had drinks and danced together. The government
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`and Mr. Santucci introduced competing narratives of what happened next. Mr.
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`Santucci testified that he went home with TW and engaged in what he believed to be
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`consensual sexual activity, including “rough” anal and vaginal sex. Aplt.’s Opening
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`Br. at 7. In his closing statement, Mr. Santucci’s defense counsel argued that TW’s
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`statements to Mr. Santucci, along with her actions following their encounter,
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`indicated that she had consented to the sexual activity—even though she had later
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`regretted that decision.
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`In contrast, the prosecution urged that TW had been too intoxicated to consent,
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`and that Mr. Santucci raped her. The prosecution elicited testimony from TW that
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`“she remembered little” after coming home from the bar with Mr. Santucci. Aplt.’s
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`App. at 56 (Army Ct. of Crim. Appeals Decision, dated Sept. 30, 2016).
`
`Nevertheless, she testified that Mr. Santucci took her to his barracks and raped her
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`while choking and slapping her. Recalling the rape, TW testified that Mr. Santucci
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`penetrated her vaginally with his penis before penetrating her anus, the latter of
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`which caused her to bleed. More generally, TW testified that Mr. Santucci’s assault
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`left her with bruises on her arms and legs, a swollen face, a sore head, and scratches
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`on her back. To corroborate TW’s testimony, the prosecution introduced medical
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`evidence of physical injuries, including evidence of bruises and scratches on her
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`arms, neck, and legs, as well as teeth marks on her face and redness on her rectum.
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`Additionally, the prosecution played the jury a recording of a 9-1-1 call that TW
`4
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`Appellate Case: 20-3149 Document: 010110849668 Date Filed: 04/25/2023 Page: 5
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`made, and elicited testimony from medical staff who treated TW for her injuries the
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`day after the incident.
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`At the close of trial, the military judge made two decisions regarding the jury
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`instructions related to this appeal. First, Mr. Santucci’s counsel requested that the
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`military judge provide an instruction to the jury that Mr. Santucci’s mistake of fact
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`would be a defense to his actions towards TW and JM. The Military Judges’
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`Benchbook summarizes the mistake of fact instruction as follows:
`
`The evidence has raised the issue of mistake on the part of
`the accused concerning whether (state the name of the
`alleged victim) consented to sexual intercourse in relation
`to the offense of rape.
`
`If the accused had an honest and mistaken belief that (state
`the name of the alleged victim) consented to the act of
`sexual intercourse, he is not guilty of rape if the accused’s
`belief was reasonable.
`
`To be reasonable the belief must have been based on
`information, or lack of it, which would indicate to a
`reasonable person that (state the name of the alleged victim)
`was consenting to the sexual intercourse. In deciding
`whether the accused was under the mistaken belief that
`(state the name of the alleged victim) consented, you should
`consider the probability or improbability of the evidence
`presented on the matter.
`
`You should also consider the accused’s (age) (education)
`(experience) (prior contact with (state the name of the
`alleged victim)) (the nature of any conversations between
`the accused and (state the name of the alleged victim)) along
`with the other evidence on this issue (including but not
`limited to (here the military judge may summarize other
`evidence that may bear on the accused’s mistake of fact)).
`
`
`
`
`5
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`

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`Appellate Case: 20-3149 Document: 010110849668 Date Filed: 04/25/2023 Page: 6
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`Id. at 61–62 (Kan. Dist. Ct. Decision, dated May 26, 2020) (quoting Dep’t of Army,
`
`Pam. 27-9, MILITARY JUDGES’ BENCHBOOK, para. 3-45-13 (2012)).
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`The military judge did not specifically rule on defense counsel’s request.
`
`When delivering the instructions—implicating the offenses involving TW—the judge
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`gave mistake-of-fact instructions for the charges of sexual assault and forcible
`
`sodomy; however, the judge did not do so for the charge of rape.
`
`The second decision involved instructions related to Mr. Santucci’s charge of
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`sexually assaulting JM. Without objection from either party, the military judge
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`provided a propensity instruction in accordance with Military Rule of Evidence
`
`(“MRE”) 413. This instruction advised members of the jury that they could use “the
`
`allegations involving TW as propensity evidence in relation to the sexual assault
`
`allegation involving JM.” Aplt.’s App. at 56 (citing Dep’t of Army, Pam. 27-9,
`
`MILITARY JUDGES’ BENCHBOOK, para. 7-13-1 n.4 (2010)). Specifically, the
`
`instruction provided:
`
`Evidence that the accused committed the sexual offense of
`Rape against [TW] . . . . may have no bearing on your
`deliberations in relation to the Sexual Assault of [JM], . . . .
`unless you first determine by a preponderance of the
`evidence, and that is more likely than not, that [Santucci
`raped TW].
`
`If you determine by a preponderance of the evidence that
`[Santucci Raped TW], even if you are not convinced beyond
`a reasonable doubt about that the accused is guilty of that
`offense, you may nonetheless then consider the evidence of
`that offense for its bearing on any matter to which it is
`relevant in relation to [JM].
`
`
`
`
`6
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`

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`Appellate Case: 20-3149 Document: 010110849668 Date Filed: 04/25/2023 Page: 7
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`You may also consider the evidence of such Rape for its
`tendency, if any, to show the accused’s propensity or
`predisposition to engage in sexual offenses.
`
`Id. at 13–14 (Mr. Santucci’s Pet. for a Writ of Habeas Corpus, filed June 28, 2019)
`
`(alterations and omissions in original) (emphases omitted).
`
`Following deliberations, the jury convicted Mr. Santucci of rape, sexual
`
`assault, forcible sodomy, battery, and adultery with respect to TW. The jury also
`
`convicted Mr. Santucci of adultery for his conduct with JM but, notably, acquitted
`
`him of sexually assaulting her. The jury sentenced Mr. Santucci to twenty years’
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`confinement, a dishonorable discharge, and forfeiture of all pay and allowances.
`
`B
`
`1
`
`Mr. Santucci appealed from his conviction to the ACCA.3 Relying on a then-
`
`recent decision issued by the Court of Appeals for the Armed Forces (“CAAF”) in
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`United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), he challenged the propensity
`
`instruction provided in his case. In Hills, the CAAF reversed a defendant’s rape
`
`
`As Mr. Santucci explains, “[t]he first level of appeal in the military
`3
`process involves the Court of Criminal Appeals for the servicemember’s branch, for
`example, the Army Court of Criminal Appeals.” Aplt.’s Opening Br. at 5 n.2 (citing
`10 U.S.C. § 866). This court consists of “uniformed Judge Advocates” and review is
`mandatory for sentences involving “confinement in excess of one year, dismissal of
`an officer, or a punitive discharge.” Id. “The second level of appeal involves the
`Court of Appeals for the Armed Forces (CAAF), consisting of five civilian judges,”
`and “[r]eview at the second level is largely discretionary.” Id. (citing 10 U.S.C.
`§ 867). The petitioner may seek review in the U.S. Supreme Court only on those
`issues that the CAAF reviews. See id. (citing 28 U.S.C. § 1259).
`
`
`
`
`7
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`

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`Appellate Case: 20-3149 Document: 010110849668 Date Filed: 04/25/2023 Page: 8
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`conviction after a military court-martial judge relied on MRE 413 to instruct the jury
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`that “evidence that the accused committed a sexual assault offense . . . may have a
`
`bearing on your deliberations in relation to the other charged sexual assault
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`offenses.” Id. at 353 (omission in original) (emphasis omitted). The CAAF held that
`
`the propensity instruction violated due process because it “suggest[ed] that [the]
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`conduct of which an accused is presumed innocent may be used to show a propensity
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`to have committed other conduct of which he is presumed innocent.” Id. at 356. Mr.
`
`Santucci argued that the ACCA should reverse in light of Hills, because “the
`
`prosecution took full advantage of . . . M.R.E. 413” to bolster its case. Aplee.’s
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`Suppl. App. at 53 (Mr. Santucci’s Grostefon Br., filed Apr. 28, 2016). In a Grostefon
`
`brief,4 Mr. Santucci also challenged the military judge’s failure to give the mistake-
`
`of-fact instruction for his rape charge.5
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`The ACCA considered both the propensity and mistake-of-fact instructions in
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`its opinion, finding that they merited discussion, but no relief. 6 Reviewing the MRE
`
`413 (i.e., propensity) instruction, the court held that Hills rendered the instruction
`
`
`A Grostefon brief “permits a service member to raise legal claims in the
`4
`military courts that his appellate counsel declined to present.” Brimeyer v. Nelson,
`712 F. App’x 732, 736 (10th Cir. 2017) (unpublished) (citing United States v.
`Grostefon, 12 M.J. 431 (C.M.A. 1982)).
`
` 5
`
`Mr. Santucci raised several other arguments concerning ineffective
`
`assistance of counsel, prejudicial statements by the prosecution, and the sufficiency
`of the evidence; these matters are not at issue in this appeal.
`
` 6
`
`The court rejected Mr. Santucci’s ineffective-assistance arguments
`
`without discussion. See Aplt.’s App. at 55.
`
`
`
`8
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`

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`Appellate Case: 20-3149 Document: 010110849668 Date Filed: 04/25/2023 Page: 9
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`improper. Nevertheless, it affirmed Mr. Santucci’s conviction on the ground that the
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`trial court’s decision to give the propensity instruction was harmless beyond a
`
`reasonable doubt and did not contribute to either Mr. Santucci’s conviction or
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`sentence. See Aplt.’s App. at 57.
`
`In assessing harmlessness, the court observed that the “injuries suffered by
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`TW, as corroborated by the testimony of a medical provider and other witnesses,
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`leave no doubt that TW was not a willing participant. Her testimony credibly
`
`established, as well, that she was incapable of consenting to this conduct due to her
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`extreme state of intoxication.” Id. It also found that “the propensity instruction was
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`uni-directional” because it “only allowed the panel to consider appellant’s rape of
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`TW as evidence appellant had a propensity to sexually assault JM.” Id.
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`Consequently, Mr. Santucci’s “acquittal of sexually assaulting JM removed any risk
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`of harm caused by the instruction,” and showed that the instruction had not confused
`
`the panel. Id. Relatedly, the ACCA determined that the jury’s decision to acquit Mr.
`
`Santucci on the assault charges related to JM showed that it was “not confused in
`
`applying the appropriate burden of proof-beyond a reasonable doubt [standard] as to
`
`each charged offense.” Id.
`
`The ACCA nevertheless also held that the military judge should have
`
`instructed the jury on the mistake-of-fact defense. See id. at 58 (“‘Providing the
`
`panel with an incorrect instruction as to an affirmative defense is an error of
`
`constitutional magnitude’ which we examine to determine if it is harmless beyond a
`
`reasonable doubt.” (quoting United States v. Chandler, 74 M.J. 674, 685 (C.A.A.F.
`9
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`Appellate Case: 20-3149 Document: 010110849668 Date Filed: 04/25/2023 Page: 10
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`2015))). But again, the court reasoned that “[w]hile some evidence raised the
`
`instructional requirement with respect to rape, [it was] confident beyond a reasonable
`
`doubt that [the mistake-of-fact instruction’s] omission did not contribute to the
`
`verdict,” id. at 57–58, due to the “strength of TW’s testimony, corroborated by
`
`medical providers and witnesses, regarding the injuries she sustained as a result of
`
`his violence on the night in question,” id. at 57.
`
`The court consequently held, “[v]iewing the evidence in its entirety,” that “this
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`was clearly not a situation from which appellant could have feasibly claimed an
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`honest, reasonable, mistaken belief that TW was consenting to his misconduct.” Id.
`
`The ACCA found its harmlessness conclusion—based on the omission of the
`
`mistake-of-fact instruction regarding the rape charge—was bolstered by the fact that
`
`Mr. Santucci also was convicted of forcible sodomy even though the panel had
`
`received the mistake-of-fact instruction for that offense. Moreover, the court
`
`emphasized that Mr. Santucci’s theory at trial seemed to focus on the argument that
`
`TW “actually consented, not that [Mr. Santucci] mistakenly believed she did.” 7 Id.
`
`Mr. Santucci further appealed to the CAAF, but principally argued that the
`
`military judge who presided over his court-martial was illegitimately appointed under
`
`the Appointments Clause. In another Grostefon supplement, Mr. Santucci also
`
`argued that the ACCA had incorrectly applied Hills to the issue of the improper
`
`
`The ACCA dismissed Mr. Santucci’s conviction for sexual assault of
`7
`TW on the grounds that combining the rape and sexual assault specifications
`constituted an unreasonable multiplication of charges. See Aplt.’s App. at 58. This
`determination is not at issue in this appeal.
`
`
`
`10
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`propensity instructions and challenged the sufficiency of the evidence against him.
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`He did not, however, in either brief mention the omitted mistake-of-fact instruction.
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`Nor did Mr. Santucci argue that the ACCA conducted an improper harmless error
`
`analysis because it allegedly failed to review the cumulative impact of the
`
`instructions on his trial.
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`The CAAF granted review on the Appointments Clause issue but affirmed
`
`without discussion. The Supreme Court then denied Mr. Santucci’s petition for
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`certiorari.
`
`2
`
`His direct appeal having proven unsuccessful, Mr. Santucci filed the petition
`
`for a writ of habeas corpus at issue here. In relevant part, he argued that the military
`
`judge failed to provide the requested mistake-of-fact instruction, erroneously applied
`
`the propensity instruction, and that the ACCA compounded these constitutional
`
`errors by failing to conduct a proper cumulative-error analysis. Mr. Santucci also
`
`claimed that he suffered from ineffective assistance of counsel due to his trial
`
`counsel’s inadequate preparations.
`
`And, importantly for our purposes, Mr. Santucci contended that the district
`
`court could reach the merits of his claims because “constitutional protections were
`
`not observed at the trial court level or during direct appeal.” Id. at 35. Mr. Santucci
`
`acknowledged that military courts are better suited than their civilian counterparts to
`
`assess “matters impacting good order and discipline.” Id. at 39. But unlike claims
`
`involving “the unique nature of the military”—which provide “the basis for civilian
`11
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`Appellate Case: 20-3149 Document: 010110849668 Date Filed: 04/25/2023 Page: 12
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`judicial deference”—his habeas claims, reasoned Mr. Santucci, challenge whether
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`“constitutional safeguards were observed.” Id. Because, in his view, “the military’s
`
`‘full and fair consideration’ [of those claims was] fatally flawed,” id. at 37, an Article
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`III court’s deference to the military tribunal would be critically misplaced, see id. at
`
`39.
`
`The district court denied Mr. Santucci’s petition. See Santucci v.
`
`Commandant, No. 19-3116-JWL, 2020 WL 2735748, at *4 (D. Kan. May 26, 2020).
`
`The court noted that its “review of court-martial decisions generally is limited to
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`jurisdictional issues and to a determination of whether the military courts gave full
`
`and fair consideration to the petitioner’s constitutional claims.” Id. at *2 (citing
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`Fricke v. Sec’y of the Navy, 509 F.3d 1287, 1290 (10th Cir. 2007)). Applying this
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`standard, the court denied Mr. Santucci’s request for habeas relief. See id. at *3–4.
`
`Specifically, focusing on the ACCA’s analysis of Mr. Santucci’s claims as to the
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`mistake-of-fact and propensity instructions, as well as its conclusions of
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`harmlessness, the district court concluded that the military courts “fully and fairly
`
`considered” Mr. Santucci’s claims. Id. In response to Mr. Santucci’s argument that
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`the ACCA’s “full and fair” consideration was constitutionally flawed because it did
`
`not assess the harmfulness of the erroneous instructions through a cumulative lens,
`
`the court explained as follows:
`
`The Court has considered this argument but concludes that
`this matter was
`given
`constitutionally
`adequate
`consideration in the military courts. Notably, the ACCA
`agreed that the military judge should have instructed the
`panel on mistake of fact and that the military judge erred in
`12
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`Appellate Case: 20-3149 Document: 010110849668 Date Filed: 04/25/2023 Page: 13
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`giving the propensity instruction. It is not the legal issue of
`whether the instructions were proper that is in dispute.
`Rather, it is the application of those findings to the
`evidentiary record that is the core of the argument. The
`military courts had the full evidentiary record and resolved
`the claims against petitioner. The Court finds these claims
`were given thorough consideration in the military courts,
`and this court may not re-evaluate the evidence.
`
`
`Id. at *4.8
`
`Mr. Santucci then filed this appeal.
`
`II
`
`Mr. Santucci challenges the district court’s denial of habeas relief, arguing that
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`the presence of substantial constitutional questions that are largely free of factual
`
`disputes in his habeas petition meant that the district court was dutybound to
`
`adjudicate his constitutional claims on the merits, and he is entitled to habeas relief.9
`
`
`Mr. Santucci also argued that he had been deprived of effective
`8
`assistance of counsel in violation of his Sixth Amendment rights, pointing to “25
`unreasonable errors” that his trial counsel allegedly made. Aplt.’s App. at 27; see
`also id. at 29–34 (discussing the alleged errors). Analyzing the ineffective-assistance
`claim, the district court held that, as in Mr. Santucci’s case, “where a military court
`has ‘summarily disposed of the issue with the mere statement that it did not consider
`the issue meritorious or requiring discussion,’ it ‘has given the claim fair
`consideration.’” Santucci, 2020 WL 2735748, at *4 (quoting Watson v. McCotter,
`782 F.2d 143, 145 (10th Cir. 1986)).
`
` 9
`
`In a footnote, Mr. Santucci states that he has not renewed his Sixth
`
`Amendment claim based on ineffective assistance of counsel due to word limitations,
`but requests that the court “evaluate his claim as set forth in his original Petition for a
`Writ of Habeas Corpus which is a part of the Appendix,” and states that he “stands
`ready to brief the issue upon the Court’s instruction.” Aplt.’s Opening Br. at 52 n.4.
`This is an insufficient argument to trigger our review. See, e.g., Bronson v. Swensen,
`500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to consider
`arguments that are not raised, or are inadequately presented, in an appellant’s
`opening brief.”). Furthermore, as the government points out, Mr. Santucci “does not
`13
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`Appellate Case: 20-3149 Document: 010110849668 Date Filed: 04/25/2023 Page: 14
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`More specifically, Mr. Santucci contends that the district court erroneously
`
`believed that Article III courts are barred from exercising their authority to
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`“adjudicate the merits of constitutional habeas claims” that initially were “presented
`
`to Article I tribunals.” Aplt.’s Opening Br. at 11. Mr. Santucci urges that—contrary
`
`to the district court’s alleged account of its authority—the presence of substantial
`
`constitutional issues that are largely free of factual disputes in his habeas claims
`
`obliged the district court to review his claims containing those issues on the merits.
`
`Further, Mr. Santucci contends that, upon reaching the merits, the district court
`
`should have concluded that the ACCA erred in its harmless-error analysis by not
`
`considering cumulative effects.
`
`We start by summarizing—and clarifying—the proper framework under which
`
`we review habeas claims stemming from decisions of military tribunals. We then
`
`consider and reject Mr. Santucci’s contrary arguments that effectively champion a
`
`
`seem to take any issue with how the district court resolved his claim that defense
`counsel was ineffective.” Aplee.’s Resp. Br. at 26 n.9. His failure to challenge the
`district court’s reasoning further waives our consideration of this issue. See Reedy v.
`Werholtz, 660 F.3d 1270, 1275 (10th Cir. 2011) (declining to consider an argument
`that “d[id] not challenge the [district] court’s reasoning”); Nixon v. City & Cnty. of
`Denver, 784 F.3d 1364, 1366 (10th Cir. 2015) (“The first task of an appellant is to
`explain to us why the district court’s decision was wrong.”). Lastly, “[i]n our
`adversarial system of adjudication, we follow the principle of party presentation.”
`United States v. Sineneng-Smith, --- U.S. ----, 140 S. Ct. 1575, 1579 (2020). Mr.
`Santucci had avenues open to him to either structure his briefing to include this issue
`or to file a motion requesting an expansion of the word limits; he did not avail
`himself of these avenues. Consequently, he is limited to the arguments that he did
`brief and, under the party-presentation principle, we, not only will not, but “cannot
`make arguments for him.” United States v. Yelloweagle, 643 F.3d 1275, 1284 (10th
`Cir. 2011).
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`different analytical framework for considering such claims. Lastly, applying the
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`proper analytical framework, we conclude that Mr. Santucci has not shown that the
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`military tribunals failed to consider his claims fully and fairly. And, therefore, the
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`district court appropriately denied his claim for habeas relief.
`
`A
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`1
`
`The Constitution empowers Congress to “make Rules for the Government and
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`Regulation of the land and naval Forces.” U.S. CONST. art. I, § 8, cl. 14. Pursuant to
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`that authority, Congress, through the UCMJ, “has long provided for specialized
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`military courts to adjudicate charges against service members.” Ortiz v. United
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`States, --- U.S. ----, 138 S. Ct. 2165, 2170 (2018). With “several tiers of appellate
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`review,” today’s military justice system “closely resembles civilian structures of
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`justice,” including those found in the states. Id. Congress’s power to vest military
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`courts with the authority to rule on court-martial cases “is given without any
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`connection” to Article III; “indeed, . . . the two powers are entirely independent of
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`each other.” Dynes v. Hoover, 61 U.S. 65, 79 (1857); cf. generally Rhode Island v.
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`Massachusetts, 37 U.S. 657, 674 (1838) (acknowledging that states have their own
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`judicial system independent from the judicial power of the United States).
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`As a result, “like state law,” “[m]ilitary law . . . is a jurisprudence which exists
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`separate and apart from the law which governs in our federal judicial establishment.”
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`Burns v. Wilson, 346 U.S. 137, 140 (1953) (plurality opinion). Unsurprisingly,
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`certain substantive differences emerge from this independence. For instance, the
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`Appellate Case: 20-3149 Document: 010110849668 Date Filed: 04/25/2023 Page: 16
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`Constitution’s grand jury indictment requirement does not apply to “cases arising in
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`the land or naval forces.” U.S. CONST., amend. V. Nor do the Fifth and Sixth
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`Amendments extend “the right to demand a jury to trials by military commission.”
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`Ex parte Quirin, 317 U.S. 1, 40 (1942). And the Constitution “does not provide life
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`tenure for those performing judicial functions in military trials.” United States ex rel.
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`Toth v. Quarles, 350 U.S. 11, 17 (1955).
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`Congress, likewise, has largely exempted the court-martial from direct Article
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`III review. See, e.g., Schlesinger v. Councilman, 420 U.S. 738, 746 (1975) (noting
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`that, at the time, Congress had not yet “deemed it appropriate to confer on th[e]
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`[Supreme] Court ‘appellate jurisdiction to supervise the administration of criminal
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`justice in the military’” (quoting Noyd v. Bond, 395 U.S. 683, 694 (1969))). In fact,
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`Congress did not empower the Supreme Court to review military justice cases until
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`1983 and, even then, it restricted the Court’s review to only certain cases appealed
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`from the CAAF. See 28 U.S.C. § 1259; see also United States v. Denedo, 556 U.S.
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`904, 909–10 (2009) (noting that the Supreme Court has jurisdiction to review any
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`CAAF decision granting “relief”). Notably, Congress has never empowered the
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`lower federal courts to directly review the outcomes of court-martial proceedings.
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`Moreover, collateral review of court-martial verdicts has been narrowly
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`circumscribed. Indeed, the Supreme Court did not review a court-martial habeas case
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`until 1879. See Ex parte Reed, 100 U.S. 13 (1879); see generally Richard D. Rosen,
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`Civilian Courts and the Military Justice System: Collateral Review of Courts-
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`Martial, 108 MIL. L. REV. 5, 20–30 (1985) (discussing the history of collateral
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`Appellate Case: 20-3149 Document: 010110849668 Date Filed: 04/25/2023 Page: 17
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`challenges in the federal judiciary to military tribunal proceedings). Federal courts
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`are empowered under 28 U.S.C. § 2241 to entertain habeas petitions from military
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`prisoners. But “our review of court-martial proceedings is very limited.” Thomas v.
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`U.S. Disciplinary Barracks, 625 F.3d 667, 670 (10th Cir. 2010); see Wolff v. United
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`States, 737 F.2d 877, 879 (10th Cir. 1984) (“[T]he range of inquiry in acting upon
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`applications for habeas corpus for persons confined by sentence of military courts is
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`more narrow than in civil cases.” (quoting Kennedy v. Commandant, 377 F.2d 339,
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`342 (10th Cir. 1967))). As a testament to this deferential posture, we have said that
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`the deference we give to military tribunals is even “greater” than that we owe “to
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`state courts.” Thomas, 625 F.3d at 671.
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`Prior to 1953, our limited review exclusively focused on determining whether
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`the military court-martial tribunal had jurisdiction over the habeas petitioner. See
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`Hiatt v. Brown, 339 U.S. 103, 111 (1950) (“It is well settled that ‘by habeas corpus
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`the civil courts exercise no supervisory or correcting power over the proceedings of a
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`court-martial. The single inquiry, the test, is jurisdiction.’” (quoting United States v.
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`Grimley, 137 U.S. 147, 150 (1890))); Easley v. Hunter, 209 F.2d 483, 486 (10th Cir.
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`1953) (“From early times, our courts have recognized that the Constitution confers
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`upon Congress, and not the courts, the power to provide for the trial and disposition
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`of offenses committed by those in the armed forces and that the civil courts are
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`limited to a consideration of the jurisdiction of courts-martial and that they have no
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`supervisory or correcting power over their decisions.”); see also Calley v. Callaway,
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`519 F.2d 184, 194 (5th Cir. 1975) (providing “[a] brief historical outline” of the
`1