The opinion of the court was delivered by: FOLLMER
Gordon Jay Thompson, an inmate at the United States Penitentiary, Lewisburg, Pennsylvania, has filed this petition for a writ of habeas corpus. On August 25, 1969, this court issued a Rule to Show Cause upon the respondent, Jacob J. Parker, Warden, United States Penitentiary, Lewisburg, Pennsylvania. An answer has been filed in response to the Rule as well as a memorandum of points and authorities in support of the answer. Petitioner has since filed a traverse to the answer. The Department of the Army has furnished this court with a complete record in the general court-martial case of Private (E-2) Gordon J. Thompson, RA 11 347 712.
The material facts are as follows: the petitioner, Gordon Jay Thompson, while serving as a soldier, grade of private, in the United States Army, was arrested around March 4, 1959, at Fort Sill, Oklahoma, during an investigation of an offense of murder allegedly committed on February 21, 1959, at Fort Monmouth, New Jersey. Thompson was subsequently charged with premeditated murder in violation of Article 118, Uniform Code of Military Justice (10 U.S.C. § 918); with larceny in violation of Article 121, Uniform Code of Military Justice (10 U.S.C. § 921); and with reckless driving in violation of Article 111, Uniform Code of Military Justice (10 U.S.C. § 911). He was tried and convicted by a general court-martial of the three charges on July 28, 1959, and was sentenced to be confined at hard labor for the term of his natural life.
Relator through his counsel unsuccessfully appealed the judgment of conviction to all the military appellate courts including the United States Court of Military Appeals.
In 1962, petitioner filed in this court a petition for a writ of habeas corpus. As grounds for relief, he alleged that the military court-martial lacked the jurisdiction to try him for a capital offense committed within the United States during a time of peace. This court ruled adversely to the petitioner and dismissed the petition. Thompson v. Willingham, 217 F. Supp. 901 (M.D. Pa. 1962). The United States Court of Appeals for the Third Circuit affirmed this decision. 318 F.2d 657 (3d Cir. 1963).
On November 16, 1966, relator filed a second petition for a writ of habeas corpus. He again raised the jurisdictional issue. Additionally he alleged that (1) he was denied due process of law by unfavorable news publicity; (2) that there was an unreasonable delay in informing him of the charges against him; (3) that he was convicted by a two-thirds (2/3) vote rather than by unanimity; (4) that he did not have a jury trial; and (5) that statements made by him and admitted in evidence were obtained in violation of his privilege against self-incrimination under the Fifth Amendment. This court by an Order dated February 1, 1967, summarily dismissed all but the final allegation concerning the use of the statements. An evidentiary hearing was held on this issue. This court determined that the military had given fair consideration to the question, and in reliance on Burns v. Wilson, 346 U.S. 137, 73 S. Ct. 1045, 97 L. Ed. 1508 (1953),
dismissed the petition. Again, the United States Court of Appeals for the Third Circuit affirmed this disposition. United States ex rel. Thompson v. Parker, 399 F.2d 774 (3d Cir. 1968). The United States Supreme Court denied certiorari. 393 U.S. 1059, 89 S. Ct. 701, 21 L. Ed. 2d 701 (1969).
The instant petition for a writ of habeas corpus raises four issues all of which have been adjudicated in the prior habeas corpus proceedings in this court. Petitioner alleges that (1) statements introduced at his court-martial were obtained in violation of his privilege against self-incrimination; (2) that he was held incommunicado for forty (40) days without charges and for over one hundred (100) days was not apprised of the charges against him; (3) that as a result of adverse news coverage, he was denied a fair and impartial hearing; and (4) that the court-martial court lacked jurisdiction to try him.
Title 28, U.S.C. § 2244(a) provides that:
No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus and the petition presents no new ground not theretofore presented and determined, and the judge of court is satisfied that the ends of justice will not be served by such inquiry.
The application of this statute was discussed at some length by the Supreme Court in Sanders v. United States, 373 U.S. 1, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963). The Court emphasized the principle that the disposition of petitions raising issues previously adjudicated requires the exercise of sound judicial discretion. The Court held that "Controlling weight may be given to denial of a prior application for federal habeas corpus or § 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application." Id., at 15, 83 S. Ct. at 1077.
Application of the foregoing principles lead me to the conclusion that the "ends of justice" would not be served in reaching the merits of the issues raised in the instant petition with the exception of the fourth issue relating to the jurisdiction of the court-martial court. Petitioner's claim that he was confined without charges and that there was undue publicity prejudicing his right to a fair trial were never presented to the appellate courts of the military, but were raised for the first time in petitioner's second habeas corpus petition filed in this court in 1966. We held then that the failure on the part of relator to raise these issues for review before the military courts foreclosed his raising these issues in a federal court.
Nothing in the nature of "new grounds" is alleged in the instant petition to cause us to relitigate these issues. No new facts or intervening changes in the law have been pleaded. Petitioner does now have the benefit of private counsel, but we do not believe this fact alone warrants further review.
Accordingly both issues will be dismissed.
Petitioner urges us to reconsider our ruling with respect to his contention that coerced statements were introduced in evidence against him in light of the recent case of Kauffman v. Secretary of the Air Force, 135 U.S. App. D.C. 1, 415 F.2d 991 (D.C. Cir. 1969). That case in applying Burns v. Wilson, supra, held that "the test of fairness requires that military rulings on constitutional issues conform to Supreme Court standards * * *." Id., at 997. The application and interpretation of the Burns "fully and fairly" test has caused a split of opinion among the lower federal courts. The test has been increasingly under attack as being inadequate and incapable of application. Cf. Civilian Court Review of Court Martial Adjudications, 69 Col. L. Rev. 1269 (1969). Kauffman is another interpretation of this rule. Our Court of Appeals has interpreted the test more narrowly. In ruling on petitioner's last appeal, the court stated that "Under the principle announced in Burns, therefore, the district court, after determining that the military courts had given due consideration to petitioner's contentions, quite correctly refused to review and re-evaluate the facts surrounding petitioner's allegations." United States ex rel. Thompson v. Parker, 399 F.2d 774, 776 (3d Cir. 1968).
With all deference to the United States Court of Appeals for the District of Columbia, it is my opinion that the Burns test was correctly applied to the circumstances of this case and that nothing could be gained by a further review. Accordingly this issue will be dismissed.
Finally, it is my opinion that petitioner's jurisdictional claim which has twice been rejected by this court, must be reviewed in light of O'Callahan v. Parker, 395 U.S. 258, 89 S. Ct. 1683, 23 L. Ed. 2d 291 (1969). The majority of the Court in O'Callahan held that a member of the Armed Forces who is charged with the commission of a crime cognizable in a civilian court and having no military significance or connection is entitled to his constitutional rights of indictment by a grand ...