Michael Gomez v. Kurt Neubaurer

MEMORANDUM

Michael James Gomez appeals the district court’s denial and dismissal with prejudice of his petition for habeas relief under 28 U.S.C. § 2241 . We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.

I

The district court held that our decision in Allen v. Steele, 759 F.2d 1469 (9th Cir.1985) (per curiam), controls and precludes the relief that Gomez sought. In Allen , we observed that “court-martial jurisdiction continues until [a] service-member is discharged” and held that “[a] discharge is not complete until the service-member receives a discharge certificate.” Id. at 1471 . Furthermore, we noted that “[cjourt-martial jurisdiction attaches when action with a view to trial takes place.” Id. (internal quotation marks omitted). Here, Gomez never received a discharge certificate, and the Air Force preferred charges on April 6, 2010 — four days before his scheduled discharge. The district court was thus correct that Allen is controlling and that it clearly establishes the Air Force’s jurisdiction over Gomez.

Gomez does not dispute that Allen controls. Rather, he argues that Allen was wrongly decided. It is axiomatic that, as a three-judge panel, we may…