EXHAUSTION OF REMEDIES AND HABEAS CORPUS
A Thesis
uresented to
The Judge Advocate General's School, U.S. Army
The opinions and conclusions expressedherein are those of the individual studentauthor and do not necessarily represent theviews of either ihe Judge Advocate General'sSchool, U.S.Army, or any other governmentalacency. References to this study shouldinclude the foregoing statement.
by
Vajor Joe L. ■Woodward, OF105593
April 1969
SCOPE
A study of the civilian and military habeas corpus
cases that examine the requirement that petitioner ex
haust his other remedies as a condition precedent to
the issuance of the writ.
TABLE OF CONTENTS
Page
I. INTRODUCTION 1
II. HISTORICAL DEVELOPMENT 4
A. The Exhaustion Doctrine Created by-
Judicial Decision 4
B. The Exhaustion Doctrine Statutorily
Applied 7
III. EXHAUSTION AND THE MILITARY PETITIONER 10
A. Application of the Exhaustion Doctrine
to Military System 10
B. Exhaustion of Administrative Remedies 14
C. Exhaustion and the Sentenced Prisoner 15
1. Statutory Remedies 15
2. Judicially Created Remedies 20
3. Application of Federal Statutory
Remedies 23
D. Exhaustion and the Military Petitioner
Prior to Trial 27
IV. MANNER OF AND EFFECT OF FAILURE TO
EXHAUST REMEDIES 36
A. Manner of Exhausting Remedies 36
B. Effect of Failure to Exhaust
Remedies 37
EXHAUSTION OF REMEDIES AND HABEAS COHPUS
I INTRODUCTION
"The tension between proper regard for
habeas corpus, the great writ of lib
erty and the duty of civil courts to
abstain from intervening in matters
constitutionally committed to military
justice inevitably raises questions of
great delicacy and difficulty." - 1
Frankfurter, J.
With the advent of the citizen soldier, and the in
creasing application of civilian standards to the con
duct and treatment of this new character, there has de
veloped a considerable body of law dealing with both his
efforts to avoid military service in general and his
endeavors to extricate himself from the seeming harsh
ness of military discipline once he has become a member
of the military society. The most common method of
achieving either goal is through the application for
habeas corpus filed in the Federal court system. One
limitation on the availability of the writ of habeas
corpus is the so-called exhaustion of remedies doctrine.
Two recent decisions by United States Courts of
Appeals which are diametrically opposed in regards
to the application of this doctrine to military peti
tioners have called to mind once more Justice Frank-
1
Burns v Wilson, 346 U.S. 137 (1953)
furter's sage pronouncement. In the case of Noyd y_ A'c-
2namara, the Court of Appeals for the 10th Circuit ap
proved a holding by the district court for New Mexico -
that a military person seeking release by habeas corpus
would have to first submit his claim as a defense in a
trial by court-martial. Certiorari was denied by the
3 .Supreme Court. The Court of Appeals for the Second
Circuit flatly rejected this rule in holding for the
4
petitioner in the case of Hammond v Lenfest.
Exhaustion of remedies, though definitely not jur-
5lsdictional, operates in the nature of a condition pre
cedent to the perfection of the right to habeas corpus.
Therefore, in order to appreciate the concept, one must
be fully aware not only of the history behind the devel
opment of the exhaustion doctrine, but also the nature
and manner of exhausting such administrative or judicial
remedies as may be available to the prospective petition
er within the military scheme.
2
Noyd v VcNamara, 378 F.2d 538 (10th Cir. 1967)
3
389 U.S. 1022 (1967)
4
Hammond v Lenfest, 398 F.2d 705 (2nd Cir. 1968)
5
-Vainwright v Simpson, (5th Cir. 1966) 360 F.2d 307
2
The object of this article will be to inquire into
the establishment of the doctrine of exhaustion or rem
edies and trace its development by comparing the mili
tary and civilian cases that examine the requirement
that petitioners exhaust their other remedies prior to
applying for habeas corpus. Three general categories of
military personnel are of concern in this matter. First,
there is the inductee who has submitted to induction as
required by statute and is testing the legality of that
induction by habeas corpus; secondly there are the person-
nel already in the military who for some reason or another
decide they are entitled to release, but who have neither
been charged with nor tried for a military offense; and
lastly there are the service members who are either facing
charges before or have been tried by court-martial. In
order to narrow the scope of the article the first group
will be omitted in discussing the specific remedies avail
able to the military petitioner and attempting to resolve
the point beyond which he need not go to resolve the matter
6
Military Selective Service Act of 1967 § 10(b)(3)(50 U.3.C. App. 460(b)(3))
7
Generally these are either inductees or enlistees
who have developed some form of conscientious objection
since entering the service.
within military law.
II HISTORICAL DEVELOPMENT
A. The Exhaustion doctrine as applied by
judicial decision
The doctrine of exhaustion of remedies was first an-
Q
nounced in a United States Supreme Court case in 1886.
The original concept was the avoidance of conflict be
tween state and federal judiciary by imposing on appli
cants for habeas corpus the duty to seek all available
methods of relief within the state system through the
orderly course of trial and appellate procedure set up
for the adjudication of criminal cases.
At first the doctrine was applied in its narrowest
terms and made applicable to applications made by all
persons confined pursuant to state authority. At a lat
ter date some courts came to view the doctrine as being
applicable only when the petitioner was in confinement
pursuant to the judgment of a state court. However, as
Professor Aonald Sokol points out in his work on federal
habeas corpus:
"The early cases spoke of a person ex
hausting his remedies if he was held
in custody pursuant to State process.
Subsequently,the Court began to speak
8
Ex parte Royall, 117 U.S. 241 (1886)
in terms of custody pursuant to a state
judgment. This was no doubt true only
because most of the cases involved de
tention as a result of a state judg
ment. There did not appear to be any g
intent to narrow the doctrine. "
It seems clear that the Supreme Court originally was con
cerned primarily with petitioners who were being held
under state indictments and for some time thereafter
the language of the Court's opinions bear that out. For
example in Johnson v Hoy the Court stated:
"Habeas corpus is not ordinarily avail
able to test in advance of trial the
Constitutionality of a statute under
which a prisoner was indicted, but the
orderly course of the trial should be
pursued and the usual remedies ex- ,„
hausted."
The same principle was applied to a federal prisoner be
ing held for trial by a U.S. district court in Jones v
1 ^Pickens, and adhered to as late as 1951 when Justice
Vinson, speaking for the court in Stack v Boyle stated
9
Sokol, A Handbook of Federal Habeas Corpus, the
Richie Company, 1965
10
Ex parte.Royall, 117 U.S. 241 (1886)
11Johnson v Hoy, 227 U.S.245 (1913)
12
ID., at p. 247
13
Jones v Pickens, 245 U.S.390 (1918)
14
342 U.3.1 (1951)
5
"V/hile habeas corpus is an approp
riate remedy for one held in custody in
violation of the Constitution, 28 U.3.C.
(Supp IV) § 2241(c)(3), the DistrictCourt should withhold relief in this
collateral habeas corpus action where
an adequate criminal Proceeding had .
not been exhausted." ^
Thus while it can be seen that the courts have created
a doctrine limiting the availability of habeas corpus,
the exact nature of the doctrine remains to be explained.
Some courts have spoken of it as jurisdictional in nat
ure and declared that in the absence of a showing of ex
haustion of available remedies they are without power to
act on a petition for habeas corpus. Others have de
nominated exhaustion as a condition precedent to habeas
17corpus. The language of the Supreme Court that the
exhaustion provision is "a doctrine that teaches that one
court should defer action on causes properly within its
jurisdiction until the courts of another sovereignty with
concurrent power, and already cognizant of the litigation,
15
3tack v Boyle, 342 U.3.1 (1951)
16
Osborne v Swope, 230 F.2d 395 (9th Cir. 1956)
17
/'cKinney v Finletter, 205 F.2d 761 (10th Cir 1953)
6
1 8have had an opportunity to pass upon the matter"
should leave it unquestioned that the doctrine is "not
one defining power but one which relates to the approp-
19riate exercise of power," Therefore the principle
being one of comity, adherence to it in the face of ob
vious injustice would seen not to be required. The one
best statement of the nature and application of the doc
trine of exhaustion comes out of the Court of Appeals
for the 1st Circuit:
"The rule that administrative relief
must be exhausted did not
originate in the Constitution or in
any statute, but came into being simply
as a point of judicial policy
and the courts do not recognize that it
must always be applied in hidebound on
fashion." Zk)
B. The exhaustion doctrine statutorily applied.
Beyond the limitations placed on the availability
of the writ of habeas corpus prior to exhaustion of
other remedies by judicial decision, there are two addi
tional statutory limitations applying to the doctrine of
18
Darr v Buford, 229 U.S. 200, 204 (1950)
19
Bowen v Johnston, 306 U.S. 19, 27 (1939)
20
Smith v U.S., 199 F.2d 377 (1st Cir 1952)
7
exhaustion of remedies. 1 he first of these is the ex
haustion of state remedies doctrine codified in 28 U.3.C.
§ 2254, The second is the motion to vacate sentence,
codified in 28 U.S.C. § 2255, which applies to federal
prisoners only.
Despite the fact that a person in the military is
in federal "custody," § 2254 is important in that fed
eral courts often analogize their dealings with the -nil-
21itary system to those with a state system. The nature
of the exhaustion of state remedies doctrine can best be
understood by looking at the words of the statute. Sec
tion 2254 provides in pertinent part:
"An application for a writ of habeas
corpus in behalf of a person in custody
pursuant to the judgment of a state court
shall not be granted unless it appears
that the applicant has exhausted the reme
dies available in the Courts of the State,
or that there is either an absence of avail
able State corrective process or the exist
ence of circumstances rendering such proc
ess ineffective to protect the rights of
the prisoner.
An applicant shall not be deemed to have
exhausted the remedies available in the
courts of the state with the meaning of
this section, if he has the right under
the law of the state, to raise by any
available procedure, the question pres- 99
ented."
21
Burns v Wilson, 346 U.S. 137 (1953)
22
28 U.S.C. § 22548
7/hen § 2254 was codified in 1948, one of the Senate amend
ments was that exhaustion should pertain only to state
23judgments. However, the revisor's notes make it
clear that the statute was intended to codify then ex-
24isting law, particularly as expressed in Ex parte
25Hawk, and it is probable that no change in the law
was affected by the amendment. But a good argument can
be made that § 2254 is applicable only when the petition
er is confined pursuant to a state court judgment. If
that be the rule, and if the military system is to be
treated in the same manner as the individual state sys-
26terns, then it is clear that a military petitioner who
is merely facing charges to be tried by court-martial
would not have to exhaust his military remedies prior
27to making application for habeas corpus. Althouoh
23
80th Congress, 3. Kept. 1559, Amendment 47
24
Revisor's Notes to 28 U.S.C. § 2254
25
Ex parte Hawk, 321 U.S. 114 (1944)
26
Burns v A'ilson, 346 U.S. 137 (1953)
27
Since the answer to this question forms the basisfor this article, detailed discussion of the point is considered inappropriate at this point. See Part III.
there is some authority to the contrary, that does
29not seem to be the majority view.
Because military persons confined pursuant to the
sentence of a court-martial are federal prisoners, con-
30sideration of the applicability of § 2255 is of some
concern. In order to determine whether or not section
312255 of the Judicial Code should be applied to mili
tary prisoners it is necessary to resolve the question
32of the exact nature of a military court-martial.
Ill EXHAUSTION AND THE .MILITARY PETITIONED
A. Application of Exhaustion Doctrine to
Military System
"Habeas Corpus to review the action
of another court is in its nature extra
ordinary, and will not be used, if avail
able at all, till other remedies have
been exhausted." ^3
28
Hammond v Lenfest, 398 F.2d 705 (2nd Cir. 1968)
29
Noyd v .VcNamara, 378 G.2d 538 (2nd Cir. 1967) cert
denied, 389 U.S. 1022 (1967)
30
28 U.S.C. § 2255
31
Title 28, United States Code
32
See Part IV
33
'Vhelchel v ■'.cDonald, 176 F.2d 260 (5th Cir. 1949)
10
Twenty years ago the Fifth Circuit Court of Appeals
announced the above cited rule in reversing a district
court decision granting habeas corpus to a prisoner con
fined as a result of a court-martial. The United States
34Supreme Court upholding that decision and a similar
holding from the Court of Appeals for the Sixth Circuit 35
promulgated the rule that prevails today regarding fed
eral civil court1s dealings with military prisoners who
are applicants for habeas corpus. Justice Douglas,
speaking for a unanimous court revealed the high Court's
thinking in regard to the military judicial system, say
ing :
"An analogy is the petition for
habeas corpus in the federal court
challenging the jurisdiction of a state
court. If the state procedure provides
a remedy, which though available, has
not been exhausted, the federal courts ^r
will not interfere."
Both of these cases dealt with prisoners who had already
been tried by military courts and were collateral attacks
on the legality of those trials. The Court with these de
cisions was doing no more than placing the military within
34
7/helchel v McDonald, 340 U.S. 122 (1950)
35
Gusik v Schilder, 180 F.2d 662 (6th Cir 1950)
36
Gusik v Schilder, 340 U.S. 128, 131 (1950)
11
the purview of the old commity doctrine of exhaustion of
37remedies which had been codified in 1948.
Since that date the exhaustion doctrine has been
more or less uniformly applied to cases concerning mili
tary prisoners who applied for habeas corpus relief in
the federal court system. However, with the recent in
flux into the armed services of a class of "citizen" sol
dier who often, for either religious beliefs or other
reasons, becomes disenchanted with the military life,
habeas corpus and the military has taken on new dimen
sions. Starting with the proposition that being in the
military is in and of itself sufficient restraint to
38authorize the bringing of habeas corpus action, the
federal courts have steadily eroded the doctrine of ex
haustion until one is required to look with a different
set of glasses at each case, depending upon the status
of the applicant.
Although the military petitioner is under federal
restraint, the manner in which the doctrine of exhaust
ion of remedies is applied to him is certainly quite dif
ferent than that normally applied in cases of federal
37
28 U.S.C. § 2254
38
Wales v Whitney, 114 U.S. 564 (1885)
12
custody. If any doubt existed at the time, the Supreme
39Court in a 1953 decision confirmed its prior reason
ing in Gusik and Whelchel4 that the military system
would be treated much as a state court system in regards
to habeas corpus proceedings. Chief Justice Vinson writ
ing for the majority stated:
"Military law, like state law, is a
jurisprudence which exists separate
and apart from the law which governs 42
our federal judicial establishment."
That this analogy is as viable today as it was when an
nounced is evidenced by the fact that no decision has
43ever challenged this contention and Gusik continues to
be cited as the controlling case in the exhaustion of rem-
44
edies area.
39
Burns v Wilson, 346 U.S. 137 (1953)
40
Gusik v Schilder, 340 U.S. 128 (1950)
41
Whelchel v McDonald, 340 U.S. 122 (1950)
42
Burns v Wilson, 346 U.S. 137, 139 (1953)
43
Gusik v Schilder, 340 U.S. 128 (1950)
44
E.G. see Noyd v McNamara, 378 F.2d 705 (10th Cir
1967) and Hammond v Lenfest, 398 F.2d 705 (2nd Cir 1968)
13
B. Exhaustion of Administrative Remedies
In discussing the military petitioner who has en
tered the service either through voluntary enlistment or
who was inducted without objection and now wishes to
challenge the legality of the military1s retention of
custody over him, it is necessary to remember that he
has available to him administrative channels through
which he can seek release. Depending on the nature of
claim the petitioner must request discharge either under
45 45
the provision of AR 635-20, AR 645-120 or AR
47635-200. It is axiomatic that a military petitioner
in the category now under discussion should be required
to exhaust these available remedies prior to seeking re
lease through habeas corpus. Even the 2nd Circuit, which
goes the farthest in allowing an application for habeas
corpus without the petitioner having exhausted all avail-
4ftable military remedies, would agree with this proposition.
45
Army Regulations 635-20, 3 December 1968
46
Army Regulations 635-120, 8 April 1968
47
Army Regulations 635-200, 15 July 1966, as changed.
48
United States ex rel. McKiever v Jack, 351 F.2d672 (2nd Cir 1965)
14
C. Exhaustion and the Sentenced Prisoner
1. Statutory Remedies
As to the military petitioner who is confined pur
suant to the judgment of a court-martial, no question as
to the necessity of exhausting his available remedies
49
exists. This applies equally to remedies that were
in existence at the time of his petition and those which
might have been created afterward but are in existence
50while his case is pending. From the time judgment is
entered in any court-martial a comprehensive system of
remedies immediately became available to the accused.
51The Manual for Courts-Martial and the Uniform Code
52
of Military Justice provide methods for the accused
to call to the attention of the convening authority any
53 . . x. 54errors or injustices occurring at the trial of the
49
Gusik v Schilder, 340 U.S. 128 (1950)
50
Id., at p. 132
51
Manual for Courts-Martial, United States. 1969
52
10 U.S.C. §§ 801, et seq.
53
10 U.S.C. § 838
54
Manual for Courts-Martial, United States, 1969
para. 48 j
15
case. These two remedies, though generally unknown to
accused and often neglected by counsel, could if proper
ly employed become very real and effective remedies.
Articles 60 55 and 6456 of the Uniform Code 57 require
the convening authority to review each record of trial
and "approve only such findings of guilty and the sent
ence as such part or amount of the sentence as he finds
correct in law and fact and as he in his discretion de-
termines should be approved." This review could, and
it might reasonably be argued should, perform the same
function in the military system that Section 2255 of the
59Judiciary Act performs in the federal court system.
That is, it gives the sentencing court, here the conven
ing authority in his judicial capacity, 60 the opportunity
55
10 U.S.C. § 860
56
10 U.S.C. § 864
57
Uniform Code of Military Justice, 10 U.S.C. §§ 801et seq.
58
10 U.S.C. § 864
59
28 U.S.C. § 2255
60
10 U.S.C. § 864, United States v Russo, 11 U.S.C.M.A. 352, 29 C.M.R. 168 (1960)
16
to correct any errors in the trial at the time and place
where such correction is most feasible. Because of
the fact that legally qualified counsel have been una
vailable to an accused, an equally sound argument exists
that such remedies at the summary and special court-mar
tial levels would be inadequate or ineffective. This
condition will be greatly alleviated with the passage of
the Military Justice Act of 1968, but even now there
is no requirement for counsel on summary court-martial
cases and no assurance that qualified counsel will always
be appointed in special courts-martial cases and it
would be a harsh rule that would require the exhaustion
of uncertain and unknown remedies. However, in a general
court-martial where the accused is represented by legally
trained counsel and the convening authority must refer
64the record to his staff judge advocate for an opinion,
such remedies should prove effective and would often el
iminate further time consuming review. This of course
61
62
63
64
82
82
ID
10
Stat
Stat
U.S.C
1335
1335
. § 860
17
presumes objectivity on the part of convening author
ities and their staff judge advocates. It is also argu
ably true that there should be no requirement to exhaust
these particular remedies as the above cited reviews are
65required by law and occur automatically without action
by the accused. Presumably, therefore, any errors should
be discovered and corrected without accused or his coun
sel pointing them out.
Formerly appeal and review of summary and special
courts-martial was concluded at the general court-martial
level and except for petition under the provisions of
10 U.S.C. §§ 1552 and 1553 the accused would normally
have exhausted his remedies at this time without having
taken any action. With the enactment of the Military
Justice Act of 1968, however, two new remedies have be-
68come available. Additionally, since there is a high
65
Uniform Code of Military Justice, Arts. 60 and 64
66
This is true only as regards Army courts-martialas the Navy and Air Force have followed a policy of ad-juding bad conduct discharges in special court-martialcases thereby making the provisions of Arts. 66,67 and73 applicable to those cases.
67
10 E.S.C. §§ 1552-1553
68
82 Stat. 1335, §§ 869 and 873
18
degree of probability that the Army will initiate a pol
icy similar to that of the Navy and Air Force in regard
to bad conduct discharges assessed by special courts-mar
tial, the remedies heretofore available only to the ac
cused convicted by general court-martial become appli
cable in that type case.
69In general court-martial cases further resort
may be had to a Court of Military Review, to the
71Court of Military Appeals, to the Secretary of the
72 . , . , 73Army, and petitioning for a new trial. Addition
ally, Article 69 applies in those cases "which have been
finally reviewed, but not reviewed by a Court of Mili
tary Review."
69
And in those special court-martial cases wherein
a bad conduct discharge has been adjudjed.
70
10 U.S.C. § 866
71
10 U.S.C. § 867
72
10 U.S.C. § 874
73
10 U.S.C. § 873
74
10 U.S.C. § 869
19
2. Judicially Created Remedies
In addition to the statutory remedies available to
prisoners confined pursuant to sentence of a court-mar
tial, the Court of Military Appeals has opened judicial
doors by holding that it possesses the powers conferred
75to federal courts under the All Writs Act. in a rec
ent decision the United States Court of Military Appeals
stated:
"[t]his court is not powerless to accordrelief to an accused who has palpably
been denied constitutional rights in any
court-martial; and that an accused who
has been deprived of his rights need not
go outside the military justice system
to find relief in the civilian courts
of the Federal judiciary."
The United States Supreme Court apparently agrees
with the Court of Military Appeals in this regard as in
78U.S. y_ Auqenblick a unanimous court noted:
"An additional remedy, apparently now
available, but not clearly known at the
time of this court-martial conviction is
75
28 U.S.C. § 1651 U.S. v Frischolz, 16 U.S.CM.A.
150, 36 C.M.R. 306 (1966)
76
United States Court of Military Appeals
77
United States v Bevilacqua, 18 U.S.CM.A. 10, 12,
39 C.M.R. 10, 12 (1968)
78
United States v Augenblick, 37 U.S.Law Wk.4081(1969)
20
reviewed by the Court of Military Ap
peals. In U.S.. y_ Bevilacqua. 18 U.S.Ct.M.A. 10, 12, decided November 8, 1968,that court held that it has jurisprudence to 'accord relief to an accused
who has palpably been denied constitu- 79tional rights in a court-martial ...'"
The courts' decision in this case indeed opened up fert
ile grounds to plow, so to speak. Not the least of these
80is, that if the All Writs Act applies to the Court of
Military Appeals, how far down in the military judicial
system do these powers permeate. Assuming arquendo that
the Court's reasoning in U.S. v Frischolz. 81 wherein it
held directly that the Congressional intent was to bring
82the Court of Military Appeals within the purview of
go
the All Writs Act, is correct, then it is equally log
ical to hold that all courts created by the same act of
84
congress are vested with the same powers. And though
79
United States v Augenblick, 37 U.S.Law Wk 4081(1969)
80
28 U.S.C. § 1651
81
16 U.S.CM.A. 150, 36 C.M.R. 306 (1966)
82
United States Court of Military Appeals
83
28 U.S.C. § 1651
et seq.
84
Uniform Code of Military Justice, 10 U.S.C. §§ 801
21
it bogles the brain to accept the thought, the end re
sult of this reasoning would be the application of Sec
tion 1651 to all courts within the Uniform Code 86
right down to the summary court-martial. It cannot be
said that the Court of Military Appeals was unaware of
such results when it began to delve into this question,
for in one of its initial ventures into the field of jud
icial expansion of jurisdiction it felt compelled to com
ment on the complications that might arise from its de-. . 87
cision. It is not inconceivable that the Court will
soon have occasion to pass on its own judgment, since
the Military Justice Act of 1968 68 provides for the ap
pointment of military judges to lower level courts 89
and it is not improbable that such a judge might elect
to exercise his judicial prerogatives. Furthermore, it
cannot be said that Congress did not intend such a result
85
28 U.3.C. § 1651
86
Uniform Code of Military Justice, 10 U.S.C. §§ 801" v s e c] ■
81
27 C.M.R^TU^)-3- V88
82 Stats. 1335
89
Id., Sec. 816
22
as one of the stated purposes of the 1968 Act 90 was to
91conform military practice to that of civilian courts.
Had Congress chosen to abolish the summary court alto
gether and make the appointment of military judges to
special courts-martial mandatory, a much stronger argu
ment along these lines could be made. But the fact that
Congress didn*t take such action could as well be taken
to show recognition of service exigencies as to refute
the intention to place such sweeping powers in the hands
of an inferior court.
3. Application of Federal Statutory
Remedies
In 1937, Congress disturbed over the unreasonable
number of habeas corpus applications being filed in dist
rict courts wherein a federal penitentiary was located
92 Q3enacted Section 2255 of Title 28. Section 2255
provides that any prisoner in custody under sentence "of
90
Military Justice Act of 1968, 82 Stat. 1335
91
90th Congress, S. Rept. 1601
92
28 U.S.C. § 2255
93
Id.
23
94a court established by Act of Congress" may move the
court which imposed the sentence to vacate, set aside or
correct the sentence. The act further provides that:
"[a]n application for a writ of habeascorpus in behalf of a prisoner who is
authorized to apply for relief by motion
pursuant to this section, shall not be
entertained if it appears that the ap
plicant has failed to apply for relief
by motion to the court which sentenced
him " yD
No court has ever refused a military applicant for habeas
corpus relief on the grounds that he failed to comply
96with the provisions of Section 2255, nor even sug
gested that such a motion to vacate was appropriate. In
fact the Court of Appeals for the 10th Circuit stated
that a motion to vacate sentence was not proper where the
97prisoner was sentenced by Court-martial. However, no
reason was advanced as to why such a motion would not be
98proper. From the fact that Section 2255 was mentioned
at all it can be concluded that the government must have
94
28 U.S.C. § 2255
95
28 U.S.C. § 2255
96
28 U.S.C. § 2255
97
Palomera v Taylor, 344 F.2d 937 (10th Cir. 1965),cert denied 382 U.S. 946
98
28 U.S.C. § 2255
24
raised it as a failure to exhaust remedies but no other
military case has been discovered involving this propo
sition. In Burchfield v Hiatt. Fuqate v Hiatt 10°
and parker v Hiatt, the government contended that 28
U.S.C. § 2255 and Article 53 of the Articles of War, 102
which gave the Judge Advocate General discretion to grant
new trials in certain court-martial cases, were the same
and the petitioners in those cases would have to exhaust
1 no
their remedies under Article 53 in order for habeas
corpus to lie. The district judge in each case held Art-
104 105icle 53 and section 2255 not to be the same and
granted the petitions. All three cases were reversed by
the Fifth Circuit Court of Appeals on the bases of their
holding in Whelchel v McDonald, that exhaustion of the
107remedy provided by Article 53 was a necessary precedent
99
86 F.Supp. 18 (ND.Ga. 1949)
100
86 F.Supp.22 (ND Ga. 1949)
101
86 F.Supp. 27 (ND Ga. 1949)
102
62 Stat. 639
103
Id.
104
62 Stat. 639
104
28 U.S.C. § 2255
106
176 F.2d 260(5th Cir.1949), affirmed 340 U.S.122(1950)107
62 Stat. 6392.0
to the filing for habeas corpus.
Without more it would therefore appear that Section
1082255 is inapplicable to military prisoners. But a
careful examination reveals that the provision speaks of
the same"court established by Act of Congress" 109 re
ferred to in the All Writs Act. U0 Ergo, if the All
Writs Act applies to military courts then, too,
113so should Section 2255. Herein substantially more
difficulty lies, for Section 2255 provides that the
motion may be made at any time, and unless in applying
115Section 2255 to the military prisoner the sentencing
court is interpreted to be the convening authority or
108
28 U.S.C. § 2255
109
Id.
110
28 U.S.C. § 1651
111
Id.
112
U.S. v Frischolz, 16 U.S.CM. 150, 36 C.M.R. 306(1966)
113
28 U.S.C. § 2255
114
Id.
115
28 U.S.C. § 2255
26
his successor in command such application would be virtu
ally impossible. Also, since once a convening authority
takes action on a case and forwards it, it is out of his
hands and further action on his part is precluded.
D. EXHAUSTION AND THE MILITARY PETITIONER
PRIOR TO TRIAL
If the law regarding exhaustion of remedies subse
quent to the judgment of a court-martial is well set-
117tied, the law concerning how far a petitioner, either
not facing charges at all or under charges pending trial
by court-martial, must go prior to trial in exhausting
available remedies is equally unsettled. Substantially
this boils down to a question of whether or not a mil
itary applicant seeking release by habeas corpus has ex
hausted his military remedies if he has not submitted his
claim for release as a defense in a trial by court-mar
tial. This problem has only recently come to the fore
and it wasn't until the division of authority between the
Tenth and Second Circuits
given serious consideration.
118Tenth and Second Circuits that the problem has been
11610 U.S.C. § 86b a_
117
Gusik v Schilder, 340 U.S. 128 (1950)
118Compare Noyd v McNamara, 378 F.2d 538(l0th Cir.
1967) and Hammond v Lenfest, 398 F.2d 705 (2nd Cir.1968)
27
An early case dealing indirectly on the matter was
11 Qdecided by the Ninth Circuit 7 in 1951. In that case
an inductee, who after having correctly protested his
draft classification, reported for induction, went to
camp, wore the uniform and received pay. He then went
absent without leave. He was later apprehended, tried
and convicted of desertion. There is no evidence that
he interposed his claim of illegal induction as a defense
at the court-martial. On review the case was reversed
and a rehearing ordered. While the proceedings were in
this stage, he petitioned for habeas corpus. The Court
of Appeals in overruling the trial judge's dismissal of
the petition stated that the petitioner's actions in re
porting for induction were no more than were necessary
120to exhaust his administrative remedies. The court
apparently gave no consideration to the fact that the
petitioner was currently pending trial by court-martial
and could have asserted the issue of wrongful induction
as a defense to the charge of desertion, or to challenge
the jurisdiction of the court-martial. Six years later
a district court within the same circuit reached the
119
Cox v Wedemeyer, 192 F.2d 920 (9th Cir. 1951)
120
ID, p. 924
28
opposite conclusion in holding:
"Insofar as petitioner may be under any
restraint of threatened military re
straint arising out of the applicability
of any provision of the Uniform Code of
Military Justice, 50 U.S.C.A. § 551 et
seq., to him, the military judicial rem
edies in any resulting courts-martial
proceedings are adequate and available,
and the petition herein, upon that ground,
fails to state a claim for relief becausepetitioner has failed to exhaust those
remedies."
Although petitioner appealed the dismissal of the peti
tion the Court of Appeals avoided the issue by holding
the question moot as the petitioner had in the interim
1 00received and had executed a bad conduct discharge.
Shortly thereafter the Court of Appeals again was called
upon for a ruling on exhaustion in a military case.
This time the court switched positions. In affirming the
district court's dismissal of the petition for failure to
exhaust military remedies the Court held:
"Although very interesting questions lurk
here, we conclude that the doctrine of
exhaustion of remedies is implied in the
trial court's judgment dismissing the
121
Petitioner of Green, 156 F.Supp 174, 181 (S.D.Cal. 1957)
122
264 F.2d 63 (9th Cir. 1957)
123
Hooper v Hartman, 274 F.2d 429 (9th Cir. 1959)
29
proceedings and such a holding is cor-
rect."
125*n Brown v McNamara the district court, in a
case of claimed conscientious objection which arose two
weeks after a voluntary enlistment, declared that the
judiciary should not interfere with the internal affairs
of the military unless exceptional circumstances exist.
In a footnote to its affirmance of the dismissal of the
habeas corpus petition the Court of Appeals for the Third
Circuit noted the following:
Claimed "conscientious objector" status
can always be raised as a defense to a
prosecution for refusing to obey orders.
From any judgment or sentence comprehens
ive appeal is available. 10 U3C § 817,
859-876. This involves resort to a board
of review (10 U.S.C. § 866) to the Courtof Military Appeals (10 U.S.C. § 867),to the Secretary of the Army (10 U.S.C.§ 874), and petition for a new trial(10 U.S.C. § 873). Apellant has notpursued all these available remedies.
On this record we are unwilling to ex
pand the principle of Dumbroski v
Pfister, 380 U.S. 479, 85 S.Ct. T116,14 LEd.2d 22 (1965), in order to assurefor appellant determination of constitu
tional issues without exposing him to
court-martial proceedings.
124
Hooper v Hartman, 274 F.2d 429 (9th Cir. 1959)
125
263 F. Supp. 686 (D.C.N.J. 1967)
126
Brown v McNamara, 263 F.Supp 686 (D.C.N.J. 1967)
127
Note 5, Brown v McNamara, 387 F.2d 150 (3rd Cir L967)
30
That dicta seems to place the Court of Appeals for the
Third Circuit in direct accord with the Tenth, whose
language in upholding the district court's dismissal of
a petition in Noyd v_ Me Namara was the initial decis
ion to directly hold that a person in the military would
have to subject himself to trial by court-martial in ord
er to exhaust his military remedies as a necessary pre-
129cedent to availability of a writ of habeas corpus.
However, the Tenth Circuit had much earlier rendered a
decision which foretold this result. In Gorko \/ Command-
130ing Officer, where the petitioner's conviction for
murder had been reversed by the Court of Military Appeals,
the Court in dismissing a petition alleging double jeop
ardy held he had not exhausted his military remedies,
saying:
"Exhaustion of all available military rem
edies is required before reliance may be
had on habeas corpus. The Uniform Code of
Military Justice provides that no person,
without his consent, may be tried a second
time for the second offense. The adequacy
and availability of the military remedy is
not questioned. Consideration of the ques
tion by the courts is, accordingly, prem-
ature."
128Noyd v McNamara, 267 F.Supp 701 (DC.D.Col.1967)
129
378 F.2d 538 (10th Cir. 1967)
130314 F.2d 858 (10th Cir. 1963)
131
ID. at p. 860
31
The Court of Appeals for the Fifth Circuit, althougi agree-
132ing with Hammond on the theory of exhaustion, i.e.
that it is not limitation on the exercise of jurisdic
tion but is a matter of comity, takes a position very
similar to that of the Third and Tenth Circuits as to
whether or not submission to trial by court-martial would
be necessary to exhaust remedies. In a per curiam opin
ion the Court of Appeals stated:
"'The military courts, like the State
courts, have the same responsibilities as
do the federal courts to protect a person
from a violation of his constitutional
rights.1 cf. Burns v Wilson, supra. We
are unwilling to presume in this case that
the military courts will not fully and
fairly consider the claims by the peti
tioner of the violation of his constitu
tional rights and of failure of the Army -,03
to abide by its own regulations."
The opposite view is of course the one presented by
the Second Circuit in Hammond v Lenfest. The Court in
135flatly rejecting the Noyd rule, said:
"To the extent that Noyd might suggest
that a court-martial is a prerequisite for
Federal court review of a claim that the
132
Hammond v Lenfest, 398 F.2d 705 (2nd Cir.1968)
133
In re Kelley, 401 F.2d 211 (5th Cir. 1968)
134
Hammond v Lenfest, 398, F.2d 705 (2nd Cir. 1968)
135
378 F.2d 538 (10th Cir. 1967)
32
petitioner, at the time of the bringing of
the suit, is not lawfully in the armed .-.
forces, we reject its reasoning."
137^n Crane v Hedrick the United States District Court
for the Northern District of California agreed with this
138line of reasoning. In Crane the Government relied
139on Noyd as the basis for a motion to dismiss the pe-
140tition. Explaining Noyd as standing for no more than
"the sensible and settled proposition that courts do not
141intervene in military affairs," the court concluded:
"If respondent's contention were to pre
vail, the only way one in petitioner's
position could raise his Constitutional
claims of wrongful detention would be by
first committing a crime and facing the
possibility of imprisonment. Neither
Congress nor the majority of the federal
136
398 F.2d 705 (2nd Cir. 1968)
137Crane v Hedrick, 284 F.Supp 250 (N.D.Cal. 1968)
138
Id.
139378 F.2d 538 (10th Cir. 1967)
140
ID.
141
284 F.Supp 250, 252
33
courts has been willing to exact that
price of persons seeking such relief."
A close examination of the cases to this point would
reveal that all the petitioners in the cases holding
that submission of the claim as a defense at a trial by
court-martial was necessary to exhaust remedies were at
the time of the bringing of the petition facing charges
before a military court. On the other hand the peti-
143tioners in cases following the Hammond reasoning,
144with the exception of Cox, were not currently facing
charges or impending courts-martial. Therefore one
145could agree with Judge Friendly*s dissent in Hammond
wherein he concluded:
"My brothers seem to concede, as I think
Supreme Court decisions compel, that if
a court-martial had been convened, habeas
corpus would not be until military reme-
dies had been exhausted."
147
However in the cases of Mankiewicz v_ Ray and Cooper
142
284 F.Supp. 250, 253
143
398 F.2d 705
144
Cox v Wedemeyer, 192 F.2d 920 (9th Cir. 1951)
145
Hammond v Lenfest, 398 F.2d 705 (2nd Cir. 1968)
146
ID. at p.
147
United States ex rel Mankiewicz v Ray, 399 F.2d
900 (2nd Cir. 1968)
34
1481 Barker the Second Circuit and the United States
District Court, for Maryland, took under consideration
applications for habeas corpus where the petitioners
were at the time facing trial by courts-martial already
149convened. In Mankiewicz the district court had de-
150nied the petition prior to the Hammond decision. The
Court of Appeals reversing the district court's order,
merely returned the case for reconsideration by the Navy
Department, of petitioner's conscientious objector claim
151under newly promulgated directives. Judge Friendly
concurred in the handling of the case but again stated
152his objections to extending Hammond to a case wherein
1 S^a court-martial had already been convened. The Mary
land district court, however, went even farther in granting
148
Cooper v Barker, 291 F.Supp. 952 (D.M. 1968)
149
Mankiewicz v Ray, 399 F.2d 900 (2nd Cir. 1968)
150
Hammond v Lenfest, 398 F.2d 705 (2nd Cir. 1968)
151
Department of Defense Directive No. 1300.6, June
10, 1968
152
Hammond v Lenfest, 398 F.2d 705 (2nd Cir. 1968)
153
Cooper v Barker, 291 F.Supp. 952 (D.Md. 1968)
35
petitioner's application for habeas corpus. The court
stated that the requirement of exhaustion of remedies
was applicable only to administrative remedies and held
that since the Navy was obviously withholding action on
the administrative proceedings pending the results of a
court-martial that petitioner had not failed to exhaust
154his remedies as the Navy refused to permit him to do so.
IV MANNER OF AND EFFECT OF FAILURE TO
EXHAUST REMEDIES
A. Manner of Exhausting Remedies
Generally speaking military personnel seeking to
exhaust an administrative or judicial remedy are required
to take some affirmative action such as submitting an ap-
155plication for discharge or petitioning the Court of
Military Appeals for review of their court-martial.
Since each statute or regulation that creates such a rem
edy normally sets out the procedure for obtaining relief
thereunder, and methods of appeal from adverse findings,
it would be futile to attempt a synthesis of the vary
ing rules in an article such as this. Suffice it to say,
154
Cooper v Barker, 291 F.Supp. 952 (D.Md. 1968)
155
E.G. Army Regulations, 635-120, 8 April 1968
156
10 U.S.C. § 867
36
that one should look closely at every regulation or stat
ute under which he is seeking action to make sure he has
complied with its mandates prior to looking to outside
judicial agencies for relief.
B. Effect of Failure to Exhaust Remedies
Failure on the part of an applicant to exhaust
either his administrative or judicial remedies prior to
petitioning for habeas corpus can have consequences
which range from requiring proceedings to be stayed pend-
157ing exhaustion to a complete foreclosure to the right
158to habeas corpus. Generally the former situation
arises where the petitioner prematurely brings his ac
tion during the pendency of other administrative or jud-
159icial proceedings in the military system. it was
generally thought that when a petitioner had deliberately
bypassed an available remedy he was thereafter precluded
from substituting habeas corpus proceedings. And
should the time within which the bypassed remedy could
157
Gusik v Schilder, 340 U.S. 128 (1950)
158Nash v United States, 342 F.2d 366 (5th Cir.1965)
159Cooper v Barker, 291 F.Supp. 952 (D.Md. 1968)
160
Larson v United States, 275 F.2d 673 (5th Cir.I960)', cert, denied 363 U.S. 849
37
have been exercised expired, then the petitioner would be
161permanently foreclosed from habeas corpus. However,
the United States Supreme Court in Fay v^ Noia held
that situations exist where a petitioner might not waive
his rights to future habeas corpus proceedings by fail-
1 (IT
ing to seek available appellate remedy. In Fay the
petitioner had not appealed a felony murder conviction
because of fear of a death sentence on retrial and the
Court held this not to constitute waiver. In addition
164Fay represents a direct holding that "§ 2254 is lim
ited in its application to failure to exhaust state rem
edies still open to the habeas corpus applicant at the
time he files his application in the federal court."
The Court of Appeals for the Fifth Circuit applied Fay
to dispose of a Government contention that failure to
161
Osborn v Swope, 230 F.2d 395 (9th Cir. 1956)
162
Fay v Noia, 372 U.S. 391 (1963)
163
372 U.S. 391 (1963)
164
372 U.S. 391 (1963)
165
372 U.S. 391 (1963) at p. 435
166
372 U.S. 391 (1963)
38
exhaust remedies under articles 67 and 73 of the
Uniform Code of Military Justice by a military habeas
corpus petitioner precluded the federal district court
from granting relief. The court stated:
The relief available under Article 67
must be sought within 30 days from the
time of the decision of a board of re
view, and that under article 73 within
one year after approval by the convening
authority of an approval of a court-mar
tial sentence. Inasmuch as these reme
dies are no longer available to appel
lant it appears that under Fay v_ Noia
prior failure to seek military review
is no longer necessarily a bar to habeas uq
corpus relief otherwise available,"
These holdings leave "up in the air" the question of
whether or not a petitioner who has bypassed available
remedies will be forced to live with that decision for
evermore, as neither expressly overruled prior decisions
to that effect. It appears that the test for waiver set
167
10 U.S.C. § 867
168
10 U.S.C. § 873
169
10 U.S.C. § 801, et seq.
170
Williams v Heritage, 323 F.2d 731 (5th Cir. 1963)
39
171out in Johnson v_ Zerbst, that to constitute a waiver
you must have "an intentional relinquishment of abandon-
172ment of a known right or privilege" will continue to
govern in the exhaustion area. Fortunately the most
frequent action occurs when a premature application is
dismissed, leaving the petitioner with his normal methods
of exhaustion.
V CONCLUSION AND RECOMMENDATIONS
Where the law concerning habeas corpus and the mil
itary is concerned it must be remembered that there are
173several "neighboring but distant domains."
Habeas corpus is an extraordinary remedy and thus
should be reserved for instances where other types of re
lief are not generally available. Hence, the Supreme
Court recently stated that habeas corpus would not lie
in a case where the petitioner's application for habeas
174corpus was filed prior to his actual induction,
171
304 U.S. 458 (1938)
172
Johnson v Zerbst, 304 U.S. 458, at p. 464 (1958)
173
Caputo v Sharp, 282 F.Supp 362 (ED. Pa. 1968)
174
Clark v Gabriel, 36 U.S. Law Wk. 3443 (1968)
40
upholding the validity of the Military Selective Service
175Act of 1967 which prohibits the judicial review of
a local draft Board*s classification of a registrant,
"except as a defense to a criminal prosecution insti
tuted after the registrant has responded either affirma
tively or negatively to an order to report for induc
tion...." Therefore it can be seen that the law con
cerning preinduction proceedings is quite distinct from
the involved in post-induction cases although the two are
closely related.
A second distinct situation limiting the availabil
ity of habeas corpus relief exists where the relator has
been convicted by a court-martial. Here the analogy is
made to the law governing collateral attack in federal
177court of state court convictions. In this situation
a petitioner must first exhaust his remedies under the
1 ~7P>Uniform Code of Military Justice. The nature of such
remedies including those added by the Military Justice
175
50 U.S.C. App. § 460(b)(3)
176
Sec. 10(b)(3) Military Selective Service Act of1967, 50 U.S.C. App. § 460(b)(3)
177
Burns v Wilson, 346 U.S. 137 (1953)
178
10 U.S.C. § 860, et seq.
41
169Act of 1968 was discussed extensively in part III .
Whether or not these remedies will be expanded to in-
1 ROelude 28 U.3.C. § 2255 is open to argument. It is
contended here that Section 2255 of Title 28 by re
ferring to courts created by an "Act of Congress" bring
courts-martial into its purview just as surely as Sec-
tion 1651 confers upon the Court of Military Appeals
powers under its provisions by using the identical lang
uage. However, it must be recognized that such a remedy
would be generally ineffectual under the language of the
statute because of the transitory nature of courts-mar
tial, unless by "court" you refer to the officer conven
ing courts within a particular jurisdiction. Therefore
it is safe to assume that failure to exhaust, or comply,
1 ft "3with Section 2255 will never operate to deprive a
petitioner convicted by court-martial of the right to
habeas corpus.
179
82 Stat. 1332
180
28 U.S.C. § 2255
181
Id.
182
28 U.S.C. § 1651
183
28 U.S.C. § 2255
42
Reaching a conclusion on the question of whether
or not exhaustion of remedies requires an applicant to
present his claim as a defense in a trial by court-mar
tial is a task far more fraught with danger and diffi
culty. It would be a harsh rule that would require an
applicant to either break the law prior to induction in
order to have his claim heard or submit to induction and
then break the law to perfect his right to habeas corpus.
That would in fact be the result of presentation of a
claim to release as a defense to court-martial charges
is required, for there is no other manner of presenting
such a claim to a military court. It is doubtful if Cong^
ress was possessed of any such intent when it enacted the
184Military Selective Act of 1967. No court, not even
those which purport to establish this rule, has gone that
far, even though once military law has been broken they
would apply this rule as an absolute. Certainly those
who have submitted to induction, and exhausted their ad
ministrative remedies for relief stand in much better
stead than those who have taken the law into their own
hands.
184
Military Selective Service Act of 1967, Sec.
10(b)(3)(50 U.S.C. App. § 460(b)(3)
43
Explaining away Cox v_ Wedemeyer and Cooper v_
1 RA
Barker as decisions proving the old adage that "hard
cases make bad law," a good workable rule that could be
drawn from the cited cases would be to permit those peti
tioners who had not committed an offense while in a mili
tary status to litigate the legality of their detention
after having exhausted their administrative remedies
only. While those petitioners who had committed an of
fense would be required to submit a claim of illegal de
tention as a defense in a court-martial proceeding. This
would eliminate Judge Friendly*s feared "race to the
1 R7courthouse."
At the same time petitioners would be required to
give timely notice of their claims for relief and mili
tary authorities to exercise discretion in their treat
ment of persons claiming a right to release. In view of
the foregoing that the armed forces should establish, by
regulation, procedures setting up a system for presenting
a claim for release. For those persons who had not
185
Cox v Wedemeyer, 192 F.2d 920 (9th Cir. 1951)
186
Cooper v Barker, 291 F.Supp. 952 (D. Md. 1968)
187
Hammond v Lenfest, 398 F.2d 705 at p. 717 (2ndCir. 1968)
44
violated any military law, expedition of military admin
istrative procedures and a corresponding relief from all
but routine duties would be initiated. The claim could
then be presented in a petition for habeas corpus out
side the military system. For those who had violated
military law the swift institution of charges and court-
martial proceedings would insure a fair and impartial de
termination within the military with complete constitu
tional consideration. To insure that the federal civil
courts give due consideration to the military system,
any case falling within this latter category should be
pursued to the highest court necessary to get a determin
ative holding.
TABLE OF CASES AND STATUTES
Pages
United States Supreme Court
Augenblick v. United States, 37 U.S.Law Wk. ltO8l
(1969) 20, 21
Bowen v. Johnston, 306 U.S. 19,
(1939) 7
Burns v. Wilson, 346 U.S. 137
(1953) 1, 8, 9, 13, 38
Clark v. Gaberial, 36 U.S. Law Wk.
(1969 ) 38
Darr v. Buford, 229 U.S. 200
(1950) 7
Ex Parte Hawk, 321 U.S. 114
(1944) 9
Ex Parte Royall, 117 U.S. 241
(1886) 4, 5
Fay v. Noia, 372 U.S. 391
(1963) 38
Gusik v. Schilder, 340 U.S. 128
(1950) 11,13, 15, 27, 36
Johnson v. Hoy, 227 U.S. 245
(1913) 5
Johnson v. Zerbst, 304 U.S. 458
(1938) 40
Jones v. Pickens, 245 U.S. 390
(1918) 5
Larson, v. United States, 363 U.S, 849
(I960) 37
46
Pages
Noyd v. McNamara, 389 U.S. 1022
(1967) 10
Palomera v. Taylor, 382 U.S. 946
(1965) 24
Stack v. Boyle, 342 U.S. 1
(1951) 5, 6
Whelchel v. McDonald, 340 u.S. 122
(1950) 11, 13
United States Courts of Appeals
Brown v. McNamara, 387 F.2d 150 (3rd Cir.1967) 30
Cox v. Wedemeyer, 192 F.2d 920 (9th Cir.1951) 41, 34, 41
Gorko v. Commanding Officer, 314 F.2d 858
(10th Cir. 1963) 31
Gusik v. Schilder, 180 F.2d 662 (6th Cir.1950) 11
Hammond v. Lenfest, 398 F.2d 705 (2nd Cir.
1968) 2, 10, 13,15, 27, 32, 33, 34, 35, 41
Hooper v. Hartman, 274 F.2d 429 (10th Cir.1957) 32
In re Kelly, 401 F.2d 211 (5th Cir.
1968) 32
Larson v. United States, 275 F.2d 673 (5th Cir.1960) # 37
McKinney v. Finletter, 205 F.2d 761 (10th Cir.1953) 6
Nash v. United States, 342 F.2d 366 (5th Cir.
1965) 36
47
Pages
Noyd v. McNamara, 378 F.2d 538 (10th Cir.1967) 2, 10, 13
15, 27, 32, 33, 34, 35, 41
Osborn v. Swope, 230 F.2d 395 (9th Cir.
1956) 6, 39
Palomera v. Taylor, 344 F.2d 937 (10th Cir.
1965) 24
Petition of Green, 264 F.2d 63 (9th Cir.
1957) 7 29
Smith v. United States, 199 F,2d 377 (1st Cir.1952) 7
United States ex. rel.Mankiewicz v. Ray, 399 F.2d
900 (2nd Cir. 1968) 34, 35
United States ex. rel. McKiever v. Jack, 351
F.2d 672 (2nd Cir. 1965) 14
Wainwright v. Simpson, 360 F.2d 307 (5th Cir.
1966) 2
Welchel v. McDonald, 176 F.2d 260 (5th Cir.
1949) 10, 25
Williams v. Heritage, 323 F.2d 731 (5th Cir.1963) 39
United States District Court
Brown v. McNamara, 263 F.Supp. 686 (D.C.N.J.
1949) 30
Burchfield v. Hiatt, 86 F.Supp. 18 (N.D.Ga.
1949) 25
Caputo v. Sharp, 282 F.Supp. 362 (E.D. Pa.
1968) 37
Cooper v. Barker, 291 F. Supp. 952 (D. Md.
1968) 35, 36, 37, 41
48
Pages
Crane v. Hedrick, 284 F.Supp. 250 (N.D.Cal.1968) 33, 34
Fugate v. Hiatt, 86 F.Supp. 22 (N.D.Ga.
1949) 25
Noyd V. McNamara, 267 F.Supp. 701 (D.C.Cal.
1967) 31
Parker v, Hiatt, 86 F.Supp, 27 (N.D.Ga.1949) 25
Petition of Green, 156 S.Supp. 174 (S.D.Cal.
1957) 29
United States Court of Military Appeals
United States v. Bevilacqua, 18 U.S. C.M.A. 10
39 C.M.R. 10 Q968) 20
United States v. Frischolz, 16 U.S.CM.A. 150,
36 C.M.R. 306 (1966) 20, 21,26
United States v. Tavares, 10 U.S.CM.A. 282,
27 C.M.R. 356 (1959) 22
Federal Statutes
10 U.S.C §§ 801, et. seq. (1950)
10 U.S.C § 838 (1950)
10 U.S.C. § 860 (1950)
10 U.S.C § 865 (1950)
10 U.S.C § 865 (1950)
10 U.S.C § 1552 (1962)
10 U.S.C § 1553 (1962)
49
28 U.S.C. § 1651 (1948)
28 U.S.C. § 2241 (1948)
28 U.S.C. § 2254 (1966)
28 U.S.C. § 2255 (1948)
50 U.S.C. Appdx. § 460(b)(3)(1967)
62 Stats. 639 (1948)
82 Stat. § 1332 (1968)
Regulations
Department of Defense Directive 1300.6, June 10, 1968
Army Regulations 635-20, 3 December 1968
Army Regulations 635-120, 8 April 1968
Army Regulations 635-200, 15 July 1966, as changed
50