Unpublished Dispositionnotice: Tenth Circuit Rule 36.3 States That Unpublished Opinions and Orders and Judgments Have No Precedential Value and Shall Not Be Cited Except for Purposes of Establishing the Doctrines of the Law of the Case, Res Judicata, or Collateral Estoppel.jeffrey L. Hardison, Petitioner-appellant, v. George H. Braxton, Colonel, United States Disciplinarybarracks, Fort Leavenworth, Kansas, Respondent-appellee, 930 F.2d 33 (10th Cir. 1991)

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

This is an appeal from the denial of a petition for writ of habeas corpus. Petitioner, an inmate at the disciplinary barracks at Fort Leavenworth, challenges the jurisdiction of a military court martial to try him for the murder of a Philippine citizen. The district court denied his petition, and we affirm.

Petitioner asserts two claims. First, he contends the district court erred in holding the government of the Republic of the Philippines formally waived its primary jurisdiction to try him. The district court, however, found that the Philippine government lost primary jurisdiction over petitioner because he was not physically present in the Republic when its charges were filed. The court further held the Philippines "effectively waived its subject matter jurisdiction" when it dismissed its charges against petitioner. (emphasis added). We agree with these conclusions.

Next, petitioner contends the military court had no jurisdiction over him because the offense with which he was charged was not "service connected," citing O'Callahan v. Parker, 395 U.S. 258 (1969). The Supreme Court overruled O'Callahan in Solorio v. United States, 483 U.S. 435 (1987), specifically eliminating the "service connected" test as a basis for military court jurisdiction. Id. at 450.

Petitioner's motions to proceed without payment of fees and to amend are GRANTED.

The judgment of the district court is AFFIRMED. The mandate shall issue forthwith.