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UNITED STATES EX REL. ATKINSON v. KISH

September 15, 1959

UNITED STATES ex rel. Franklin E. ATKINSON, Petitioner,
v.
Colonel William J. E. KISH, Commandant, Branch United States Disciplinary Barracks, New Cumberland, Pennsylvania, Respondent



The opinion of the court was delivered by: FOLLMER

This is an application for a writ of habeas corpus by Franklin E. Atkinson, a prisoner serving a sentence by a general court-martial. Petitioner contends:

(a) that the court-martial lacked jurisdiction over the offense of larceny, for which he was convicted, since it was committed prior to his discharge and reenlistment on May 22, 1956;

 (b) that he was denied the effective assistance of counsel because his counsel failed to place evidence on the German law of liens before the court-martial.

 The record of the court-martial was introduced into evidence.

 The facts on which the parties are in substantial agreement are as follows: petitioner initially enlisted in the United States Army on October 4, 1948, and served therein for three years until his discharge therefrom in the grade of Private First Class on October 3, 1951. He reenlisted in the Regular Army on the following day, October 4, 1951, in the grade of Corporal for a period of six years. This six year enlistment would not normally have expired until October 3, 1957. The petitioner while still serving in this enlistment with the United States Army in Straubing, Germany, applied for immediate reenlistment in the Regular Army for another six year period under the provisions of Army Regulations 635-205, Department of the Army, dated April 2, 1956. *fn1" Pursuant to his application and in accordance with the above-cited Army Regulations, petitioner was discharged for the convenience of the Government on May 21, 1956 and immediately reenlisted the following day, May 22, 1956, for a period of six years service.

 Respondent claims that in compliance with the said Army Regulations the discharge certificate was not delivered to petitioner until the oath was administered and the reenlistment thereby effected on May 22, 1956. Petitioner claims that he received his honorable discharge certificate on May 21, 1956.

 While serving in his last enlistment, as aforesaid, in the grade of Sergeant, petitioner was arraigned before a general court-martial convened at Munich, Germany, on July 10, 1957, on offenses of larceny of $ 975, in military payment certificate, the property of Sergeant Warren M. Sager, in violation of Article 121, Uniform Code of Military Justice (Act of May 5, 1950, 81st Congress, c. 169, § 1, 64 Stat. 108, 50 U.S.C. (Chap. 22) §§ 551-736, 1952 Edition); *fn2" dishonorable failure to pay a debt in the amount of $ 465, owed to Courtland Corporation, Tangiers, North Africa, in violation of Article 134, Uniform Code of Military Justice (10 U.S.C. 934), and two offenses of making false official statements, with intent to deceive, in violation of Article 107, Uniform Code of Military Justice (10 U.S.C. 907). The larceny offense was alleged to have been committed on May 2, 1955, which date was prior to his discharge and reenlistment on May 22, 1956. At the outset of the trial and prior to arraignment petitioner introduced a civilian attorney with offices in the City of Munich, Germany, *fn3" and another attorney serving as an enlisted man in the Army and requested that they defend him before the court-martial in lieu of the regularly appointed military defense counsel. Accordingly, pursuant to petitioner's request the regularly appointed military defense counsel was excused from further participation in the trial and the attorneys of his own choice, each of whom possessed the legal qualifications listed in Article 27(b), Uniform Code of Military Justice (10 U.S.C. § 827(b)), represented him throughout the trial. *fn4" At the arraignment petitioner pleaded not guilty to all the charges. On July 12, 1957, the general court-martial found petitioner guilty of all offenses charged and sentenced him to be dishonorably discharged from the services, forfeiture of all pay and allowances, and confinement at hard labor for five years. *fn5"

 The case was carefully reviewed by the Staff Judge Advocate *fn6" and by a Board of Review, *fn7" in accordance with the appellate review provided by Congress to correct the trial errors in presenting the procedure for the administration of military justice.

 Thereafter on petition of petitioner for grant of review the case was considered by the United States Court of Military Appeals. *fn8" In this proceeding, at his request, petitioner was represented by military appellate defense counsel designated by The Judge Advocate General.

 The Court of Military Appeals denied review of the error assigned by petitioner, i.e., that the applicability of the German lien law to the facts and circumstances surrounding the purchase, sale and financing of the automobile would render invalid the conviction of larceny by false pretense alleged in Charge I, and accordingly affirmed the convictions under Charge I, alleging the offense of larceny, and of Charge II, alleging the offense of dishonorably failing to pay a due debt. The Court reversed the findings of guilty under Charge III and the two specifications thereunder alleging the offenses of making false official statements with the intent to deceive and dismissed them. The case was then returned to the Board of Review for reconsideration of the sentence on the basis of the remaining affirmed findings of guilty. After further review of the case, the Board of Review, in reassessing the sentence on the basis of the remaining findings of guilty pursuant to the mandate of the Court of Military Appeals, determined that only so much of the sentence as provides for dishonorable discharge, total forfeitures and confinement at hard labor for three years was appropriate, and accordingly affirmed the sentence as thus modified. *fn9"

 The petitioner then forwarded a petition for grant of review of the decision of Board of Review *fn10" on further review. A few days thereafter petitioner forwarded to the United States Court of Military Appeals a motion to withdraw petition for review, which was granted, and the sentence was accordingly ordered into execution.

 This Court in habeas corpus does not sit in appellate review over such proceedings and the proceedings cannot be collaterally impeached for mere error or irregularity committed within the sphere of authority of the military court. It is not the function of habeas corpus to determine whether incompetent evidence was admitted and considered, or to review possible errors of law in the trial, or from the cold record to reweigh the testimony and pass upon the guilt or innocence of the accused. *fn11"

 '* * * This likewise could have been but was not raised in the military courts any may not therefore be considered when presented for the first time in the application for habeas corpus. 3 (Footnote 3. See also Suttles v. Davis, 10 Cir., 215 F.2d 760, 763.) Moreover, this is not a proper matter for review in habeas corpus. In Hiatt v. ...


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