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KRULL v. HIATT

UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF PENNSYLVANIA


November 13, 1947

KRULL
v.
HIATT, Warden

The opinion of the court was delivered by: FOLLMER

Petitioner, a military prisoner at the United States Penitentiary, Lewisburg, Pennsylvania, has filed his application for a Writ of Habeas Corpus. It appears that he was absent without leave from June 3, 1944, to June 5, 1944, for which he was sentenced to forfeit twenty-five dollars ($ 25) of his pay and be restricted to Company Area for forty-five (45) days. He was again absent without leave from July 19, 1944, to July 28, 1944, and again sentenced to pay forfeiture of twenty dollars ($ 20) per month for three months and placed on labor detail without confinement for three months. On November 8, 1944, he again absented himself without leave until February 13, 1945. During this period he met a girl, and through the use of a forged document, purporting to be the consent of his commanding officer thereto, married her. Having been confined pending disposition of these later violations, he and another prisoner, on or about February 22, 1945, while out of the stockade, assaulted their guard, made him partly disrobe, and escaped, taking with them a watch and other property belonging to the guard as well as the gun and clothing belonging to the United States. From the time of his escape until his apprehension about March 17, 1945, he was naturally again absent without leave. The facts were undisputed and clearly warranted petitioner's conviction on the various charges for which he was court-martialed. Under Article of War 42, the designation of a penitentiary as the place of confinement was proper.

The petition raises two contentions. Petitioner alleges that 'the evidence used against him is insufficient.' While there is no merit in this claim, this is not in any event a question which may be properly raised in Habeas Corpus. *fn1" His remaining contention is the ever reoccurring charge of incompetency of counsel. He has introduced no evidence to sustain the charge and the record of the trial negatives it. At the hearing it developed that the petitioner's real complaint was that he was dissatisfied with the length of the sentence imposed. *fn2" Certainly the mere fact that the defendant was dissatisfied with the sentence he received is not a basis for an allegation that counsel was incompetent. If this were a criterion, it is doubtful whether any counsel who has ever lost a case could qualify. The charge of incompetency of counsel is a serious one, and should not be lightly made. *fn3"

 The application for Writ of Habeas Corpus is accordingly denied and the rule to show cause dismissed.


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