The opinion of the court was delivered by: FOLLMER
This habeas corpus proceeding was instituted by John D. McClellan, a military prisoner at United States Penitentiary, Lewisburg, Pennsylvania, who was convicted by a General Court-Martial on charges of rape, desertion and escape from confinement.
1. Noncompliance with the provisions of Article of War 70, 10 U.S.C.A. § 42, relating to pre-trial investigation.
2. The additional charge and specification thereunder was not properly sworn to inasmuch as the officer taking the accuser's oath was the Acting Assistant Adjutant of the Command.
3. Denial of counsel of his own choice and ineffective representation by the appointed defense counsel who did defend him.
4. Counsel who did defend petitioner was not a duly appointed defense counsel on the court which tried petitioner.
5. Denied the right to have witnesses summoned in his behalf at the trial.
6. Petitioner was handcuffed during his trial before the Court-Martial.
7. Conviction based on incompetent evidence.
8. Trial Judge Advocate improperly amended the record of the trial after the court adjourned.
9. Misconduct of Trial Judge Advocate in presenting case of the prosecution.
10. Board of Review erred in not granting petitioner a new trial.
The Court-Martial record is in evidence and oral testimony was presented upon the hearing in this Court, including that of the Investigating Officer, the Trial Judge Advocate, Defense Counsel, and four prisoners of the United States Penitentiary at Lewisburg, Pennsylvania, who were requested by petitioner.
We have here a case where a soldier in the Army of the United States has been convicted by a Court-Martial after an eminently fair trial, upon overwhelming evidence of guilt, of a brutal, sadistic and heinous offense against a thirteen and one-half year old girl; where the sentence has been approved and confirmed after the record of the trial was painstakingly reviewed by the agencies provided by law for that purpose, but where it is now claimed that certain errors occurring prior to and during the trial vitiated the entire proceedings.
It is the opinion of this Court, after a careful and thorough study of the Court-Martial record and seeing and hearing the witnesses on the stand in this proceeding, that the matters complained of are mere flea bites and completely without merit. To grant them credence would, in the language of Judge Hand speaking for the court in United States ex rel. McCann v. Thompson, 2 Cir., 144 F.2d 604, 608, 156 A.L.R. 240, certiorari denied 323 U.S. 790, 65 S. Ct. 313, 89 L. Ed. 630, 'grant immunity to the relator for a crime, of which, as the record now stands, he has been lawfully convicted; an immunity based in no sense upon the merits of the trial, but only upon their regularities in the accusation. Nothing could more effectively defeat the interests of justice.'
Considering the alleged errors seriatim,
1. Failure to provide a fair and impartial investigation as required by ...