UNITED STATES COURT OF APPEALS January 16, 2024

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

SAMUEL D. DRINKERT,

Petitioner - Appellant,

v. No. 22-3208

COLONEL KEVIN PAYNE,

Respondent - Appellee. _________________________________

Appeal from the United States District Court for the District of Kansas (D.C. No. 5:22-CV-03045-JWL) _________________________________

Submitted on the briefs: **

Robert Feldmeier, The Law Offices of Robert Feldmeier, Raleigh, North Carolina for Petitioner - Appellant.

Jared S. Maag, Assistant United States Attorney (Duston J. Slinkard and James A. Brown with him on the briefs), District of Kansas, Topeka, Kansas, for Respondent - Appellee. _________________________________

Before HARTZ, TYMKOVICH, and ROSSMAN, Circuit Judges.

 Pursuant to Fed. R. App. P. 43(c)(2), Michael Johnston, is replaced by Kevin Payne as the Commandant, United States Disciplinary Barracks, Ft. Leavenworth, Kansas. Appellee’s motion to substitute party is granted. ** After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Appellate Case: 22-3208 Document: 010110984043 Date Filed: 01/16/2024 Page: 2

_________________________________

HARTZ, Circuit Judge. _________________________________

Petitioner Samuel Drinkert appeals from the denial by the United States District

Court for the District of Kansas of his application for a writ of habeas corpus filed under

28 U.S.C. § 2241. He challenges his convictions by a court martial for violations of the

Uniform Code of Military Justice, arguing that the military courts improperly admitted

prior consistent statements by one of his alleged sexual-assault victims. We agree with

the district court that he is not entitled to relief.

I. BACKGROUND

We adopt the following summary of the relevant facts by the United States Navy-

Marine Corps Court of Criminal Appeals (NMCCA):

[Mr. Drinkert]’s convictions arise out of separate incidents involving two victims, his brother’s ex-girlfriend, [Ms. F.], and a co-worker, [Ms. W.].

...

The incidents involving [Ms. W.] occurred . . . in March and April 2018 at [Mr. Drinkert’s] residence, where [Ms. W.], a co-worker and friend of [Mr. Drinkert], spent a significant amount of time due to her unstable housing situation. On 30 March 2018, [Mr. Drinkert], [Ms. W.], and a mutual friend were at the house consuming alcohol and socializing. [Ms. W.] became sleepy and woke up the next morning in [Mr. Drinkert]’s bed (when he brought her breakfast). On 3 April 2018, [Ms. W.] and [Mr. Drinkert] were again at [Mr. Drinkert]’s residence drinking and socializing. [Ms. W.] eventually became tired and went to bed. While her memory became hazy, she recalled being in [Mr. Drinkert]’s bedroom prior to falling asleep and awoke early the next morning with [Mr. Drinkert]’s penis inside her vagina. She feigned being asleep while [Mr. Drinkert] ejaculated inside of her, cleaned her with baby wipes, put her underwear on, and left for work. When [Ms. W.] confronted [Mr. Drinkert] about the incident a