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O'MALLEY v. HIATT

October 24, 1947

O'MALLEY
v.
HIATT, Warden



The opinion of the court was delivered by: MURPHY

We have for disposition a rule to show cause why a writ of habeas corpus should not issue to release from the United States Penitentiary at Lewisburg, Pennsylvania, a military prisoner who is serving a sentence of fifteen (15) years. Petitioner was adjudged guilty and sentenced by an Army court-martial April 18, 1945; sentence was approved April 29, 1945, and the Lewisburg Penitentiary designated as the place of confinement.

Prior to his incarceration at Lewisburg Penitentiary, petitioner had been a military prisoner at the Midwestern Branch, United States Disciplinary Barracks, Fort Benjamin Harrison, Indiana, under sentence of a military court-martial to serve five (5) years. Petitioner was adjudged guilty and sentenced July 4, 1944; the sentence was approved August 19, 1944. Under date of July 9, 1945, by direction of the President, confinement under the five (5) hear sentence in excess of two and three-fourths years was remitted. Petitioner was dishonorably discharged August 6, 1946, and released from confinement at the Detention Barracks September 22, 1946. The Army authorities should have made provision for his immediate transfer to the Lewisburg Penitentiary to commence service of the fifteen (15) year sentence, but through some mistake or inadvertence petitioner was given a Separation Qualification Record, WD AGO Form 100 July 1, 1945, a notice to notify his draft board on his return to his home in this district, and was released from custody. Just how the mistake occurred the record does not reveal.

 Petitioner returned to his home. From March 15, 1947, to September 24, 1947, he was in custody of the penal authorities of the Commonwealth of Pennsylvania for violation of its laws subsequent to his release from the Detention Barracks. Immediately upon his release from the custody of the State authorities he was again taken into custody by the Army and lodged in the Penitentiary under and by virtue of the authority of a duly authenticated copy of General Court-Martial Order No. 1155 which requires petitioner to serve a sentence of fifteen (15) years.

 When the petition for a writ of habeas corpus was presented, we granted a rule to show cause why a writ should not issue directed as requested to the Army authorities. The petition was later amended to include as party respondent Warden Hiatt of the Lewisburg Penitentiary. We also ordered the warden to produce petitioner so that he could testify at the hearing on the rule. An answer to the rule was duly filed by the warden admitting custody of petitioner and stating the authority for the detention was conferred by General Court-Martial Order No. 1155 which requires service of a fifteen (15) year sentence.

 At the hearing all evidence offered was received in evidence. Petitioner testified on direct and cross examination and placed in evidence a copy of his Separation Qualification Record and the Selective Service paper. Respondent offered in evidence the complete court-martial records of each of petitioner's trials and sentences as duly approved, and petitioner's 'Enlisted Record and Report of Separation Dishonorable Discharge,' WD AGO 53-57, 1 November 1944.

 Upon motion of counsel for respondent we dismissed the proceedings as to the Army authorities becuase of lack of jurisdiction of the parties respondent, none of whom were at anytime herein concerned with the Middle District of Pennsylvania, and because petitioner was not in their custody or being detained by them. Petitioner was in the custody of Warden Hiatt. Sanders v. Allen et al., 1938, 69 App.D.C. 307, 100 F.2d 717; 39 C.J.S., Habeas Corpus, Sec. 54, pp. 597, 598; McGowan v. Moody, 22 App.D.C. 148. '* * * the writ shall be directed to the person in whose custody the party is detained.' R.S. Sec. 755, 28 U.S.C.A. § 455. '* * * district courts, within their respective jurisdictions, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty. * * * ' R.S. § 752, February 13, 1925, c. 229, § 6, 43 Stat. 940, 28 U.S.C.A. § 452; United States ex rel. Belardi v. Day, 3 Cir., 50 F.2d 816; United States ex rel. Harrington v. Schlotfeldt, 7 Cir., 136 F.2d 935, certiorari denied Krause v. United States, 327 U.S. 781, 66 S. Ct. 680, 90 L. Ed. 1008; Boyce v. United States, D.C.D.Pa. 1943, 52 F.Supp. 115; 39 C.J.S., Habeas Corpus, § 69c, p. 615.

 There remains the question of the legality of the detention of petitioner. No question has been raised as to the jurisdiction of the military court-martial, as to the subject matter or person. No complaint has been made as to any failure to preserve the constitutional safeguards to which petitioner was entitled through the court-martial proceedings. The contention of petitioner is stated in his petition as follows: That on September 22, 1946, he was 'separated from the United States Army by official action on the part of competent Army authorities and officers. Having been returned to civilian status by the United States Army through its properly constituted officers I am no longer subject to the discipline and control of the United States Army and its officers and agents. I am therefore illegally held in custody at the the present time.'

 In his brief petitioner's counsel cites authorities to the effect that 'change of status is controlling on whether or not the military authorities have lost jurisdiction over a former member of the United States Army,' and cites Billings v. Truesdell, 321 U.S. 542, 64 S. Ct. 737, 88 L. Ed. 917 (induction); In re Morrissey, 137 U.S. 157, 11 S. Ct. 57, 34 L. Ed. 644 (minor); Ex parte Caplis, D.C., 275 f. 980 (registrant); In re Grimley, 137 U.S. 147, 11 S. Ct. 54, 34 L. Ed. 636 (over enlistment age); Ex parte Wilson, D.C., 33 F.2d 214 (ex-naval officer who had been dropped from the rolls by letter of the President, later attempted to court-martial for offense while in service); Ex parte Romano, D.C., 251 F. 762 (alien not subject to draft); In re Di Bartolo, D.C., 50 F.Supp. 929 (one accompanying the Army); Ex parte Weitz, D.C., 256 F. 58 (one accompanying the Army, contractor's chauffeur); Wallace v. United States, 258 U.S. 296, 42 S. Ct. 318, 66 L. Ed. 626 (confirmation of successor and removal of former officer). None of these cases are controlling; none of them meet the situation with which we are confronted. Petitioner assumes that by the dishonorable discharge and the release from confinement he had been released from the jurisdiction of the United States Army. We hold to the contrary.

 Petitioner enlisted as a soldier in the service of the United States on January 17, 1940 for three years. Act of June 3, 1916, c. 134, Sec. 27, 39 Stat. 185, Act of June 4, 1920, c. 227, subchapter 1, Sec. 27, 41 Stat. 775, 10 U.S.C.A. § 628. The period of enlistment was extended for the duration of the war and six months. Act of December 13, 1941, c. 571, Sec. 1, 55 Stat. 799, Id., Sec. 2, 55 Stat. 800, 50 U.S.C.A.Appendix, §§ 731, 732.

 Ex parte Quirin, 317 U.S. 1, at page 26, 63 S. Ct. 1, 10, 87 L. Ed. 3, 'By the Articles of War, 10 U.S.C. §§ 1471-1593, 10 U.S.C.A. §§ 1471-1593, Congress has provided rules for the government of the Army. It has provided for the trial and punishment, by courts martial, of violations of the Articles by members of the armed forces and by specified classes of persons associated or serving with the Army. Arts. 1, 2.'

 Article of War 2 provides, inter alia, 'The following persons are subject to these articles and shall be understood as included in the term 'any person subject to military law,' or 'persons subject to military law,' * * * (e) all persons under sentence adjudged by courts-martial.' Act of June 4, 1920, c. 227, subchapter 2, Sec. 1, 41 Stat. 787, 10 U.S.C.A. § 1473 and subd. (e).

 The sentence was 'to be dishonorably discharged from the services, to forfeit all pay and allowances due or to become due and to be confined at hard labor at such place as the reviewing authority may direct for five (5) years.'

 General Court-Martial Order No. 297, August 19, 1944, provided 'The sentence is approved and will be duly executed but the execution of that portion thereof adjudging dishonorable discharge is suspended until the soldier's release from confinement. The 2912th Disciplinary Training Center, Shepton Mallet, Somerset, England, is designated as the place of confinement.'

 General Court-Martial Order No. 4, January 2, 1945, provided, '* * * so much of the sentence published in General Court-Martial Orders No. 297 * * * 19 August 1944 as remains unexecuted on 15 January 1945, is suspended * * * .'

 Petitioner was released from confinement January 15, 1945. On January 16, 1945, he was given a pass permitting him to be absent from his station until January 17, 1945. He did not return. On March 10, 1945, at Cardiff, Wales, having allegedly committed several criminal violations he received injuries attempting to escape from arrest but was apprehended by civil officials and turned over to the United States Army at the Army Hospital, Rhyd, Lafar, Glamorgan, South Wales.

 After due request charges were preferred, investigation made, and in due course a report recommended trial by general court-martial and that the previous suspension be revoked.

 General Court-Martial Order No. 867, April 4, 1945, provided, 'So much of the order published in General Court-Martial Orders No. 4 * * * 2 January, 1945, as suspends execution of sentence to confinement and forfeiture of pay * * * is vacated, and that part of said sentence will be carried into execution.

 'The United Kingdom Base Guardhouse, Shepton Mallet, Somers, England, is designated as the place of confinement.'

 The Judge Advocate examined the charge, accompanying papers of investigation, and recommended trial by general court-martial. A general court-martial was convened at Newport, Monmouthshire, Wales, by Special Orders No. 94, Headquarters, United Kingdom Base Communications Zone, dated April 4, 1945. Petitioner was duly arraigned for violation of A.W. 61, 10 U.S.C.A. § 1533 (absent without leave); A.W. 93, 10 U.S.C.A. § 1565 (1) housebreaking (2) larceny); A.W. 96, 10 U.S.C.A. § 1568 )unlawfully wearing uniform of Second Lieutenant, United States Army). Petitioner represented by counsel plead not guilty. He was convicted of all charges and sentenced 'To be dishonorably discharged from the ...


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