Continuing Court‑Martial Jurisdiction After ETS and the Strict Dodson Gatekeeper for Military Habeas Review: Commentary on Davis v. Curtis (10th Cir. Sept. 25, 2025)

Introduction

In Davis v. Curtis, the United States Court of Appeals for the Tenth Circuit affirmed the denial of a 28 U.S.C. § 2241 habeas petition filed by a military prisoner, Matthew Evan Davis, Sr., confined at the United States Disciplinary Barracks in Leavenworth, Kansas. Proceeding pro se, Davis challenged both the jurisdiction of the court‑martial that convicted him and several non-jurisdictional aspects of his case, including ineffective assistance of counsel, the military judge’s handling of an exhibit underlying a possession of child pornography conviction, the denial of a motion to suppress, alleged judicial bias, and the government’s withdrawal and re‑referral of charges.

The Tenth Circuit’s order and judgment—nonprecedential but citable for persuasive value—does not break new doctrinal ground. Rather, it reinforces two settled but important rules governing collateral review of military convictions in Article III courts:

• First, that once court‑martial jurisdiction attaches by action with a view to trial (e.g., the preferral of charges) while the accused remains in service, that jurisdiction continues through trial, sentence, and punishment notwithstanding the expiration of the servicemember’s term of service (ETS). See R.C.M. 202(c).
• Second, that on § 2241 review of non-jurisdictional claims, Article III courts may reach the merits only where the petitioner demonstrates the military courts failed to provide “full and fair consideration” under the Tenth Circuit’s four-factor test articulated in Dodson v. Zelez and its progeny. Misapplication of a correct legal standard by the military courts does not open the door to federal merits review; the gatekeeper is whether the proper standard was applied and the claim was considered.

Summary of the Opinion

The Tenth Circuit, exercising jurisdiction under 28 U.S.C. § 1291, affirmed the District of Kansas’s denial of Davis’s § 2241 petition. The court:

• Rejected Davis’s jurisdictional challenge, holding that court‑martial jurisdiction attached when charges were preferred on January 7, 2019, while he was on active duty, and continued past his ETS date under R.C.M. 202(c). The court noted Davis had expressly acknowledged jurisdiction during the court‑martial proceedings.
• Declined to review the merits of Davis’s non-jurisdictional claims (ineffective assistance of counsel; the military judge’s failure to view images for the possession count; denial of a motion to suppress), because Davis failed to satisfy the Tenth Circuit’s “full and fair consideration” prerequisites (the Dodson factors). In particular:
  • Ineffective assistance: The military courts applied the correct Strickland standard; arguing that the standard was misapplied is not enough to obtain merits review.
  • Unreadable exhibit and suppression challenges: These raise fact-bound issues, running afoul of Dodson’s “pure law” factor and therefore not reviewable.
• Rejected as non-jurisdictional Davis’s claims of judicial bias and improper re‑referral, and further held they fail under Dodson (bias is fact-intensive; re‑referral was not shown to present a substantial constitutional issue).
• Denied Davis’s motion for leave to supplement his brief.

Factual and Procedural Background

In November 2020, pursuant to a plea agreement, Davis pleaded guilty before a military judge at a general court‑martial to multiple offenses including sexual abuse and assault of a child, battery of a child under 16, and possession of child pornography, in violation of Articles 120b, 128, and 134, UCMJ. He was sentenced to 20 years’ confinement, reduction to E‑1, and a dishonorable discharge. The United States Army Court of Criminal Appeals (ACCA) affirmed. The Court of Appeals for the Armed Forces (CAAF) denied discretionary review.

In May 2024, Davis filed a § 2241 petition in the District of Kansas. The district court denied relief. On appeal, the Tenth Circuit decided the case without oral argument, affirming in a nonprecedential order.

Analysis

Precedents and Authorities Cited and Their Roles

• Santucci v. Commandant, U.S. Disciplinary Barracks, 66 F.4th 844 (10th Cir. 2023) — Confirms that federal courts may entertain § 2241 petitions from military prisoners. It frames the gateway but not the breadth of review.
• Fricke v. Secretary of Navy, 509 F.3d 1287 (10th Cir. 2007) — Sets the general limit on Article III review of military convictions: typically confined to jurisdictional issues and whether the military courts gave fair consideration to constitutional claims. Also confirms independent review of jurisdictional issues.
• Dodson v. Zelez, 917 F.2d 1250 (10th Cir. 1990) and Thomas v. U.S. Disciplinary Barracks, 625 F.3d 667 (10th Cir. 2010) — Articulate the four-factor “full and fair consideration” test, often called the Dodson factors. Satisfaction of all four is required before a federal court may reach the merits of non-jurisdictional claims.
• Drinkert v. Payne, 90 F.4th 1043 (10th Cir. 2024) — Reinforces that each Dodson factor is critical and that failure on any factor forecloses merits review. Particularly salient here, Drinkert clarifies that the fourth factor asks whether the military courts applied the proper legal standard, not whether they correctly applied it.
• McCracken v. Gibson, 268 F.3d 970 (10th Cir. 2001) — Establishes panel-law rule: a Tenth Circuit panel is bound by prior panel precedent (and cannot overrule Dodson) absent en banc reconsideration or a contrary Supreme Court decision.
• Strickland v. Washington, 466 U.S. 668 (1984) — Supplies the two-pronged standard for ineffective assistance (deficient performance and prejudice). Its use by the military courts satisfied Dodson’s “proper legal standard” requirement with respect to Davis’s IAC claim.
• Rules for Courts-Martial (R.C.M.) 202(c) — Provides that court‑martial jurisdiction attaches when action with a view to trial is taken (including the preferral of charges) and continues through trial, sentence, and punishment notwithstanding the expiration of the accused’s term of service.
• Williams v. Weathersbee, 280 F. App’x 684 (10th Cir. 2008), relying on Smith v. Vanderbush, 47 M.J. 56 (C.A.A.F. 1997) — Recognize the settled rule that once in personam court‑martial jurisdiction attaches during service, it continues despite ETS.
• Solorio v. United States, 483 U.S. 435 (1987) — Holds that the military’s subject‑matter jurisdiction turns on the accused’s status as a servicemember, not on a “service connection” of the offense. The panel used Solorio to underscore that alleged judicial bias or case-management steps like re‑referral are not jurisdictional.

Legal Reasoning

1) Jurisdictional Challenge

Davis argued that the court‑martial lacked jurisdiction because his service extensions expired shortly before the court‑martial convened. The panel rejected this argument by applying R.C.M. 202(c): court‑martial jurisdiction attached on January 7, 2019, when charges were preferred while Davis indisputably remained on active duty. From that point forward, jurisdiction continued “for all purposes of trial, sentence, and punishment” irrespective of ETS. This is consistent with Tenth Circuit persuasive authority and CAAF precedent recognizing the doctrine of “continuing jurisdiction.”

The court also noted that Davis acknowledged both personal and subject‑matter jurisdiction during the court‑martial (including through a stipulation and counsel’s response to the military judge). Although a party cannot concede subject‑matter jurisdiction where it does not exist, this acknowledgment reinforced that the defense identified no jurisdictional defect at the time. The core legal basis, however, was the attachment rule in R.C.M. 202(c), which independently resolved the issue.

2) Framework for Reviewing Non‑Jurisdictional Claims under § 2241

The panel restated the Tenth Circuit’s approach: federal habeas courts may not revisit the merits of non‑jurisdictional claims absent a showing that the military courts failed to provide “full and fair consideration.” The Dodson factors require:

• (1) a substantial constitutional dimension,
• (2) an issue of law (not a dispute of fact),
• (3) no special military considerations warrant different treatment, and
• (4) a failure by the military courts to give adequate consideration to the issues or to apply the proper legal standards.

Citing Drinkert, the court emphasized that the petitioner must satisfy all four factors; failure on any is fatal to federal merits review. The panel rejected Davis’s constitutional criticism of the Dodson framework as binding circuit law that only the en banc court or the Supreme Court could alter.

3) Application to Davis’s Non‑Jurisdictional Claims

• Ineffective assistance of counsel (IAC): Davis claimed trial counsel failed to advise that an unconditional guilty plea would waive appellate review of certain pretrial rulings. While he argued ACCA unreasonably applied the governing law, he conceded the military courts identified and applied the correct legal standard—Strickland. Under Drinkert and Dodson, the fourth factor asks whether the proper standard was applied, not whether it was applied correctly. Because the military courts used Strickland, Davis could not clear Dodson’s gate, and the Tenth Circuit declined merits review.
• Unreadable exhibit (possession of child pornography count): Davis asserted a due process problem because the military judge convicted without personally viewing the images; the exhibit in the record was unreadable on review. The Tenth Circuit characterized resolution of the claim as fact-bound—particularly in light of record evidence that Davis had conceded in the court‑martial proceedings that the images were child pornography. Because Dodson factor (2) requires a pure issue of law (not fact disputes), this claim could not be reviewed on the merits.
• Motion to suppress (cell phone evidence): The court noted that Fourth Amendment suppression issues generally turn on the facts. Without identifying a pure legal question, Davis could not satisfy Dodson factor (2). Merits review was therefore unavailable.
• Purported “jurisdictional” claims: judicial bias and re‑referral: The panel explained that neither claim implicates jurisdiction. Under Solorio, military jurisdiction turns on the accused’s status as a servicemember, not on judicial impartiality or the government’s case-management decisions. Even if re‑framed as non-jurisdictional claims, they faltered under Dodson: the bias claim is fact-intensive (failing factor (2)), and Davis did not show that re‑referral presented a substantial constitutional question (failing factor (1)).

Impact and Practical Implications

The decision underscores several practical points for military practitioners and habeas counsel:

• Continuing court‑martial jurisdiction post‑ETS is robust. If any action “with a view to trial”—especially preferral of charges—occurs while the accused is in service, jurisdiction will persist through trial and punishment even if ETS later passes. For jurisdictional challenges to succeed, petitioners must focus on whether jurisdiction ever attached (e.g., whether preferral or other triggering actions occurred while the accused was in service) or whether the accused’s status undermined jurisdiction at the critical time.
• Dodson gatekeeping remains stringent in the Tenth Circuit. To obtain merits review of non‑jurisdictional claims in § 2241:
  • Frame the issue as a pure legal question rather than a factual dispute.
  • Demonstrate that the military courts applied the wrong legal standard or failed to consider the claim, not merely that they misapplied the correct standard.
  • Show a substantial constitutional dimension and explain why no special military considerations counsel otherwise.
• Claims of judicial bias and procedural case management (e.g., re‑referral) are not jurisdictional. They may be important, even structural on direct review in some contexts, but they do not affect the existence of court‑martial jurisdiction for § 2241 purposes and often turn on facts that will not clear Dodson’s second factor.
• Record completeness matters, but admissions can be decisive. An unreadable exhibit may not open a federal merits review if the record contains binding admissions or stipulations that supply factual predicates, thereby rendering the dispute factual rather than purely legal.
• IAC claims must be pitched to the standard applied, not its application. Because the military courts used Strickland, arguing “unreasonable application” does not by itself permit federal review under Dodson in the Tenth Circuit. Petitioners would need to show use of an incorrect legal framework or failure to consider the claim.

More broadly, Davis v. Curtis aligns with the Tenth Circuit’s consistent approach of deference to the military justice system on non‑jurisdictional matters in collateral review, reserving Article III merits review for narrow circumstances where the military courts failed to apply the right law or to consider the issue at all.

Complex Concepts Simplified

• § 2241 military habeas: A federal remedy allowing military prisoners to challenge custody. Review is narrower than in civilian habeas because Article III courts typically defer to the military courts’ handling of non‑jurisdictional issues unless specific “full and fair consideration” criteria are unmet.
• Dodson factors (“full and fair consideration”): A four-part test determining whether a federal court can reach the merits of a non‑jurisdictional claim. All four must be met; it is a strict gatekeeper in the Tenth Circuit.
• Preferral of charges: A formal act in the military justice system where charges are sworn and presented against an accused. Under R.C.M. 202(c), preferral is one way jurisdiction “attaches.”
• ETS (Expiration of Term of Service): The date a servicemember’s enlistment ends. Once court‑martial jurisdiction has attached before ETS, jurisdiction continues through trial and punishment despite ETS.
• R.C.M. 202(c): The rule codifying attachment and continuity of court‑martial jurisdiction once action with a view to trial has been taken during the period of service.
• Solorio rule: The Supreme Court’s holding that military jurisdiction depends on the accused’s status as a servicemember, not on whether the offense is “service-connected.”
• Strickland test: The constitutional standard for ineffective assistance of counsel—requiring proof of deficient performance and resulting prejudice.
• Re‑referral: In military justice, referring charges to a court‑martial for trial more than once, sometimes with modifications or additional charges. It is a procedural step and, absent other defects, does not implicate jurisdiction.

Conclusion

Davis v. Curtis is a careful application of well-settled principles. The Tenth Circuit reaffirmed that court‑martial jurisdiction, once attached during a servicemember’s active duty by an action such as preferral of charges, continues beyond ETS through sentencing and punishment. Equally, the court reinforced that the Dodson “full and fair consideration” test sharply limits Article III merits review of non‑jurisdictional claims in § 2241 petitions arising from military convictions. It is not enough to disagree with how military courts applied the correct legal standard; the path to federal merits review requires a showing that the military courts either failed to consider the claim or used the wrong legal rule, and that the issue is one of pure law with substantial constitutional import.

As persuasive authority, this order and judgment will guide practitioners within the Tenth Circuit and beyond: jurisdictional attacks premised on ETS lapses will fail where charges were preferred during service, and non‑jurisdictional challenges must be crafted to fit the narrow Dodson framework to warrant any federal court engagement with the merits.