Gatekeeping, Not Merits: The Tenth Circuit Reaffirms Burns/Dodson Limits on Habeas Review of Nonunanimous Court‑Martial Verdicts and Rejects “Missing Transcript” Attacks

Introduction

In Livingston v. Curtis, the Tenth Circuit affirmed the denial of a habeas petition under 28 U.S.C. § 2241 by a former Army warrant officer, Richard L. Livingston, who sought to vacate his court‑martial convictions. The appeal presented two principal issues:

Whether a court‑martial’s allowance of nonunanimous findings violates the Constitution in light of Ramos v. Louisiana, and whether Article III courts may reach the merits of that claim on habeas when the military appellate courts have already addressed it.
Whether the military courts lacked jurisdiction to affirm a sentence exceeding six months because the record of trial was not “substantially verbatim,” allegedly due to a missing transcript of a pretrial Article 39(a) session.

The court, in a nonprecedential order and judgment (per Judge Kelly, joined by Judges Matheson and Bacharach), held it lacked warrant to reach the merits of the nonunanimity claim under the Burns v. Wilson “full and fair consideration” framework, as applied through the Tenth Circuit’s Dodson factors and clarified in Santucci and Drinkert. The court separately rejected the “missing transcript” argument on the facts, concluding there was no omitted session and thus no defect in the record. The judgment of the district court was affirmed.

Summary of the Opinion

Nonunanimous verdict claim: Applying Burns and the four Dodson factors, the Tenth Circuit concluded that Mr. Livingston failed to show the military courts did not give “full and fair consideration” to his Ramos-based challenge. Although the first two factors favored review (constitutional dimension; pure legal issue), he neither argued the third factor (military considerations) nor satisfied the fourth, most important factor—adequate consideration and application of proper legal standards by the military court. Because the Army Court of Criminal Appeals (ACCA) had summarily rejected the claim after stating it gave “full and fair consideration,” and because a summary rejection can suffice, the Tenth Circuit declined to reach the merits, noting in dicta that the Sixth Amendment jury right does not apply in the military system.
“Substantially verbatim” record claim: Without deciding whether the verbatim transcript requirement is jurisdictional (and whether Burns/Dodson would apply), the court affirmed the district court’s factual finding that there was no missing Article 39(a) session. The record—including the March 7 arraignment (with advisements and deferrals), an April 17 written forum selection and not‑guilty pleas, and the July 22 reference to a “previous session”—along with the senior court reporter’s affidavit, showed no unrecorded hearing occurred. With no omission, the “substantially verbatim” challenge failed.
Disposition: Affirmed. The court did not hold that nonunanimous court‑martial verdicts are constitutional as a matter of Article III law; rather, it held the habeas gatekeeping standard barred merits review where the military courts had already given full and fair consideration.

Background

Mr. Livingston was convicted in a general court‑martial. A military judge accepted guilty pleas to some offenses on July 29, 2019. On August 1, 2019, an officer panel found him guilty, contrary to his pleas, of multiple offenses including rape, sexual assault (two specifications), aggravated sexual contact, several assaults, conduct unbecoming, and obstruction of justice, under the UCMJ.

On direct review, the ACCA set aside one conviction but otherwise affirmed the findings and approved a sentence of 16 years and 11 months. While the appeal was pending, Ramos v. Louisiana held the Sixth Amendment requires unanimous verdicts in state criminal trials. Mr. Livingston argued Ramos extends to courts‑martial; ACCA summarily rejected that claim with a “full and fair consideration” notation, and the Court of Appeals for the Armed Forces (CAAF) denied further review. The same day, however, CAAF granted review in United States v. Anderson and later upheld nonunanimous court‑martial verdicts as constitutional under military law. The Supreme Court denied certiorari in Anderson in 2024.

In federal habeas, Mr. Livingston raised three grounds: hearsay (later abandoned on appeal), a “non‑verbatim” record contention (alleging a missing pretrial transcript), and a due process challenge to nonunanimous findings. The district court denied the first two claims and, after a stay, denied the third, applying Burns/Santucci to conclude the military courts had given full and fair consideration.

Analysis

Precedents Cited and Their Influence

Burns v. Wilson, 346 U.S. 137 (1953): Establishes that Article III courts have a “limited function” on habeas review of court‑martial convictions. The question is whether the military courts gave a claim full and fair consideration. If so, civilian courts do not re‑adjudicate the merits.
Dodson v. Zelez, 917 F.2d 1250 (10th Cir. 1990): The Tenth Circuit’s four‑factor test for determining whether to reach the merits of a habeas claim despite Burns. The factors examine constitutional dimension, whether the issue is legal rather than factual, whether military considerations warrant different treatment, and whether the military courts gave adequate consideration and applied proper legal standards.
Santucci v. Commandant, U.S. Disciplinary Barracks, 66 F.4th 844 (10th Cir. 2023): Clarifies that a petitioner must satisfy all four Dodson factors, and emphasizes the fourth (“adequate consideration”) as the most important. Also confirms the gatekeeping function of Dodson before reaching the merits.
Thomas v. U.S. Disciplinary Barracks, 625 F.3d 667 (10th Cir. 2010) and Watson v. McCotter, 782 F.2d 143 (10th Cir. 1986): Recognize that a military appellate court’s summary rejection does not defeat a finding of full and fair consideration, and that Article III courts defer to the military court’s determination where the claim was properly presented.
Drinkert v. Payne, 90 F.4th 1043 (10th Cir. 2024): Explains that the “apply proper legal standards” component of Dodson’s fourth factor does not authorize a merits review in disguise. The inquiry is whether the military court used the correct type of legal framework, not whether it reached the “right” result.
Ramos v. Louisiana, 590 U.S. 83 (2020): Requires unanimous jury verdicts in state criminal prosecutions. The Tenth Circuit acknowledged Ramos as the “throughline” of Livingston’s claim but did not decide whether Ramos extends to courts‑martial because Burns/Dodson precluded merits review here.
United States v. Anderson, 83 M.J. 291 (C.A.A.F. 2022), cert. denied, 144 S. Ct. 1003 (2024): CAAF held nonunanimous verdicts in courts‑martial are constitutional in the military justice context, noting historical practice and concerns about efficiency and unlawful command influence in the deliberation room. This supported Dodson’s third factor as a potential reason for different treatment in the military.
Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866) and Whelchel v. McDonald, 340 U.S. 122 (1950): Supreme Court authority recognizing that the Sixth Amendment jury trial right does not apply to military tribunals. The Tenth Circuit cited this line to underscore the distinct constitutional framework for courts‑martial.
United States v. Tate, 82 M.J. 291 (C.A.A.F. 2022) and United States v. Nelson, 3 C.M.A. 482 (1953): Define and refine the “substantially verbatim” requirement for court‑martial records, focusing on qualitative and quantitative materiality of any omission.
Fricke v. Secretary of Navy, 509 F.3d 1287 (10th Cir. 2007): Distinguishes jurisdictional questions from constitutional claims for Burns purposes and suggests “full and fair consideration” review is inapplicable to jurisdictional defects. The panel noted the issue but avoided deciding whether the verbatim requirement is jurisdictional because the factual premise (a missing transcript) failed.
Other supportive circuit decisions: Betonie v. Sizemore, 496 F.2d 1001 (5th Cir. 1974); Daigle v. Warner, 490 F.2d 358 (9th Cir. 1973); Wright v. Markley, 351 F.2d 592 (7th Cir. 1965) (recognizing limited application of the Sixth Amendment jury right in the military context).

Legal Reasoning

1) The nonunanimous verdict claim and the Burns/Dodson gatekeeping screen

The court framed the dispositive inquiry under Burns: Did the military courts give the claim full and fair consideration? To decide whether to reach the merits, it applied the Dodson factors:

Factor 1 (constitutional dimension): Satisfied. The claim implicates Fifth and Sixth Amendment issues. Whether the claim ultimately prevails is a merits question; gatekeeping asks only whether a constitutional issue is raised.
Factor 2 (pure issue of law): Satisfied. Whether unanimity is constitutionally required in courts‑martial is a legal question.
Factor 3 (military considerations): Not satisfied. Mr. Livingston did not argue that military considerations do not warrant different treatment. Moreover, the court observed that CAAF in Anderson identified historical and functional reasons justifying nonunanimous verdicts in the military, supporting different treatment.
Factor 4 (adequate consideration and proper legal standards): Not satisfied. This “most important” factor controlled the outcome. ACCA expressly stated it gave “full and fair consideration” and rejected the claim; summary disposition does not negate adequate consideration. Mr. Livingston’s argument focused on the correctness of ACCA’s conclusion (i.e., the merits), but under Drinkert, the question is whether ACCA applied the right kind of legal standard, not whether it reached the right answer. There was no basis to conclude ACCA failed to consider the Fifth and Sixth Amendment frameworks or otherwise applied an improper legal test.

Because Mr. Livingston failed to show all four factors weighed in his favor—especially the fourth—the Tenth Circuit declined to reach the merits. It therefore did not decide whether Ramos extends to courts‑martial, while noting that Supreme Court authority and circuit precedents recognize that the Sixth Amendment jury trial right does not apply in the military justice system.

2) The “substantially verbatim” record challenge and the alleged missing Article 39(a) session

The court next addressed the claim that the trial record was not “substantially verbatim” (R.C.M. 1112, 1114), which, if true, might arguably limit the sentence to six months in the absence of a certified verbatim transcript. The parties disputed whether the verbatim requirement is “jurisdictional” for Burns purposes (Fricke suggests jurisdictional issues stand apart), but the Tenth Circuit sidestepped that threshold question because the district court found, and the record confirmed, that no pretrial session was missing from the transcript.

The court traced the procedural chronology:

March 7 arraignment: The military judge advised Mr. Livingston of forum rights and granted deferrals of forum selection and pleas.
April 17 filing: Mr. Livingston submitted written not‑guilty pleas and elected an officer panel.
July 22 pretrial hearing: The judge referred to a “previous session” at which he informed Mr. Livingston of forum rights and confirmed the not‑guilty pleas. The district court read this as referencing the March 7 advisements and the April 17 written submissions, not a separate unrecorded session.

The senior court reporter’s affidavit stated that the only pretrial sessions were March 7, May 14, and July 22—all transcribed. Mr. Livingston did not identify a date or particulars of any missing hearing, though he would have been present if it existed. On this record, the Tenth Circuit agreed: there was no omission. Without an omission, there was necessarily a substantially verbatim record, so the sentencing authority was not impaired.

The court added alternative reasoning: even assuming Burns/Dodson applied and were satisfied, the claim would still fail because the record is substantially verbatim; and even assuming the requirement is jurisdictional, there was no jurisdictional defect because there was no missing transcript.

Impact and Practical Implications

Habeas gatekeeping reaffirmed post‑Ramos: The decision underscores that Article III courts will not reach the merits of constitutional challenges to court‑martial procedures—such as nonunanimous verdicts—if the military appellate courts have provided “full and fair consideration.” Summary dispositions can satisfy this standard. Petitioners must tailor their arguments to show an absence of adequate consideration or the application of an improper legal framework in the military courts, not simply reargue the merits.
Dodson factor four is dispositive in practice: The Tenth Circuit continues to treat the fourth factor as the most important. Conclusory assertions that a military court’s conclusion was wrong will not suffice. Petitioners should identify concrete indications that the military court ignored the claim, misapprehended it, applied the wrong legal test, or refused to consider pertinent constitutional frameworks.
Military exceptionalism remains salient: The court recognized the longstanding doctrinal distinction that the Sixth Amendment jury trial right does not apply to courts‑martial, and it cited CAAF’s Anderson to note institutional reasons for nonunanimous verdicts. This signals that, even were merits reached in future cases, courts may credit military‑specific considerations.
“Substantially verbatim” challenges require concrete proof of omissions: The panel’s factual resolution illustrates that ambiguous references in a transcript to a “previous session” will not establish a missing session where other record materials (arraignment transcripts, written pleas, forum elections, affidavits) explain the reference. Defense counsel contemplating such challenges should build a precise factual record (dates, content, and purpose of the purported session) and be prepared to rebut court reporter affidavits.
Jurisdictional status of verbatim‑transcript requirement remains open: The Tenth Circuit flagged but did not resolve whether the verbatim transcript requirement is jurisdictional. Future litigation may revisit this question, but Livingston suggests courts can—and likely will—resolve the factual premise first, mooting the need for a jurisdictional ruling where no omission is shown.
Persuasive but nonbinding: As an unpublished order and judgment, Livingston is not binding precedent in the Tenth Circuit (except as to law of the case, res judicata, collateral estoppel), but it is citable for persuasive value. It nevertheless reflects current circuit practice in military habeas cases.

Complex Concepts Simplified

Court‑martial: A military criminal proceeding. Instead of a civilian jury, a “panel” of service members sits as the trier of fact unless the accused elects trial by military judge alone.
Nonunanimous panel verdicts: Under Article 52(a), UCMJ (10 U.S.C. § 852(a)(3)), most convictions can be reached by a supermajority (“at least three‑fourths of the members present”), not by a unanimous vote, in contrast to civilian criminal juries post‑Ramos.
Burns “full and fair consideration”: A threshold habeas concept specific to court‑martial convictions. If the military courts have fairly addressed a claim, civilian courts ordinarily do not re‑evaluate the merits.
Dodson factors: The Tenth Circuit’s four‑part screen for deciding whether to bypass Burns and reach the merits—(1) constitutional dimension, (2) pure legal issue, (3) whether military considerations warrant different treatment, and (4) whether the military court gave adequate consideration and applied proper legal standards.
“Apply proper legal standards” (under Dodson factor four): This asks whether the military court used the correct type of legal framework (e.g., considered relevant constitutional provisions), not whether it reached the “right” outcome. It is not an invitation to merits review.
Article 39(a) session: A pretrial (or other) court‑martial session akin to a motions or status hearing, often used for arraignment, advisements, and preliminary rulings.
“Substantially verbatim” record: Courts‑martial must have a record that is effectively complete for significant proceedings—though not necessarily literally word‑for‑word. Omissions are assessed for qualitative (does the omission relate to the merits evidence?) and quantitative (is the omission trivial in the context of the whole record?) significance.
Jurisdictional vs. nonjurisdictional errors: A jurisdictional defect undermines the court’s power to act; such errors are typically reviewable notwithstanding ordinary gatekeeping doctrines. Nonjurisdictional errors, by contrast, may be subject to Burns/Dodson limits in military habeas.

Conclusion

Livingston v. Curtis reinforces a familiar but often decisive feature of military habeas practice: Article III courts will not reach the merits of constitutional challenges—here, to nonunanimous court‑martial verdicts—when the military appellate courts have already provided full and fair consideration. The Tenth Circuit applied the Dodson framework and emphasized that petitioners must carry the burden on all four factors, especially the fourth, without converting the inquiry into a backdoor merits review.

On the record‑adequacy challenge, the court’s careful reconstruction of the pretrial timeline and reliance on the court reporter’s affidavit show how factbound these claims are. Absent concrete evidence of an omitted session, the “substantially verbatim” requirement will not unsettle lengthy approved sentences.

Although unpublished, Livingston offers persuasive guidance: Ramos does not, by itself, open the door to merits review of nonunanimity challenges to courts‑martial on habeas; petitioners must demonstrate a failure of full and fair consideration within the military system. And transcript‑based jurisdictional attacks will falter without precise, corroborated proof of omissions. Together, these holdings preserve longstanding limits on Article III oversight of military convictions while leaving open, for another day, whether the verbatim‑transcript requirement is jurisdictional in the Tenth Circuit.