at some point of time an opportunity to tender the issue of insanity. It is only a denial of that opportunity which goes to the question of jurisdiction. That opportunity was afforded here. Any error that may be committed in evaluating the evidence tendered is beyond the reach of review by the civil courts.'
And in Burns v. Wilson, 346 U.S. 137, 142, 73 S. Ct. 1045, 1048, 97 L. Ed. 1508, the court reiterated:
'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. In military habeas corpus cases, even more than in state habeas corpus cases, it would be in disregard of the statutory scheme if the federal civil courts failed to take account of the prior proceedings -- of the fair determinations of the military tribunals after all military remedies have been exhausted. Congress has provided that these determinations are 'final' and 'binding' upon all courts. We have held before that this does not displace the civil courts' jurisdiction over an application for habeas corpus from the military prisoner. Gusik v. Schilder, 1950, 340 U.S. 128, 71 S. Ct. 149, 95 L. Ed. 146. But these provisions do mean that when a military decision has dealt fully and fairly with an allegation raised in that application, it is not open to a federal civil court to grant the writ simply to re-evaluate the evidence. Whelchel v. McDonald, 1950, 340 U.S. 122, 71 S. Ct. 146, 95 L. Ed. 141.
'We turn, then, to this case.
'Petitioners' applications, as has been noted, set forth serious charges -- allegations which in their cumulative effect, were sufficient to depict fundamental unfairness in the process whereby their guilt was determined and their death sentences rendered. Had the military courts manifestly refused to consider those claims, the District Court was empowered to review them de novo. * * *'
Here, as in Burns v. Wilson supra, 'the military reviewing courts scrutinized the trial records before rejecting petitioners' contentions', and in lengthy opinions concluded that petitioner had been accorded a full and fair hearing.
Petitioner also alleges that he has recovered his memory and seeks to present what he claims to be facts he now recalls. An attempt to co-ordinate various allegations in the papers filed by him compels one to doubt any such recovery of memory. It partakes more of an imaginative reconstruction in a light favorable to him. The question of guilt or innocence is not however, as already indicated, before us.
It has not bearing on the issue of whether he had a fair trial. As was stated in Suttles v. Davis, 10 Cir., 215 F.2d 760, 763, certiorari denied 348 U.S. 903, rehearing denied 348 U.S. 932, 75 S. Ct. 343, 99 L. Ed. 731, 'Obviously, it cannot be said that they have refused to fairly consider claims not asserted.'
Nor can a claim that after discovered evidence will tend to show that the accused did not commit the crime be made the basis of habeas corpus in any event.
The Rule to Show Cause will accordingly be discharged and the application for a writ of habeas corpus in forma pauperis will be denied.