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May 13, 1981

Lieutenant Scott E. WILSON

The opinion of the court was delivered by: SHAPIRO



 A petition for writ of habeas corpus has been filed by Army Private Jerry Bowman against respondent Navy Lieutenant Scott E. Wilson, Brig Officer at the Naval Confinement Facility, Philadelphia Navy Yard, that challenges Bowman's confinement there while awaiting Army court martial. The issue is whether Bowman's present confinement is legal in the circumstances under which the Army recently obtained custody of Private Bowman; at the time he was seized by military police, Private Bowman was confined to the District of Columbia by Order of the Superior Court. Pursuant to statute, following an acquittal of criminal charges by reason of insanity, Superior Court Judge Samuel Block had committed petitioner to St. Elizabeth's Hospital and later placed him on outpatient status without knowledge of an Army detainer lodged against him in the District of Columbia. On May 6, 1981, we entered an order granting the relief requested in Private Bowman's petition for writ of habeas corpus: Lieutenant Wilson was ordered to deliver Private Bowman to the United States Marshal's Service for return in custody to the District of Columbia for a hearing before Judge Block. In the alternative, we allowed the Army to return Private Bowman to Fort George M. Meade to await such hearing and to remain in such custody until further order of Judge Block. We determined that Private Bowman's present custody is illegal as it violates an outstanding court Order of the Superior Court of the District of Columbia. This memorandum states the findings of fact and conclusions of law in support of that Order.

 The facts are largely undisputed. Petitioner is a member of the United States Army assigned to Fort Dix, New Jersey. On September 17, 1979 charges of two violations of 10 U.S.C. § 925 (forcible sodomy), three violations of 10 U.S.C. § 886 (AWOL) and one violation of 10 U.S.C. § 934 (communicating a threat to injure) against Private Bowman were referred for trial by General Court Martial. On October 16, 1979, Private Bowman escaped from confinement prior to court martial.

 On March 12, 1980, petitioner was arrested in the District of Columbia; he was subsequently indicted for burglary, assault, and destruction of property. *fn1" On or about March 13, 1980, District of Columbia authorities informed the Armed Forces Police Detachment, Washington, D.C. that the District had custody of Private Bowman. *fn2" On March 16, 1980, the Armed Forces Police lodged a detainer concerning Private Bowman with the District of Columbia Detention Facility. On July 30, 1980, petitioner was examined by Dr. John N. Follansbee, a retired Army psychiatrist, formerly Psychiatric Consultant to the United States Army Medical Command, Europe, and Chief of the Psychiatric Clinic at Walter Reed Army Medical Center. Dr. Follansbee determined that Private Bowman had a severe paranoid personality organization and that the alleged criminal conduct was a product of that mental illness. *fn3" On September 3, 1980, the Honorable Samuel Block of the Superior Court for the District of Columbia, with the consent of the United States Attorney, found petitioner not guilty of all charges by reason of insanity. Under D.C.Code § 24-301(d), which mandates commitment after an acquittal by reason of insanity, petitioner was immediately committed to St. Elizabeth's Hospital for treatment. On November 6, 1980, upon recommendation of the Hospital, again with the consent of the United States Attorney, Judge Block modified his order of commitment to allow conditional release of Private Bowman subject to his compliance with an outpatient treatment plan requiring petitioner to reside with his mother, report to St. Elizabeth's for treatment once a week, attend Alcoholic's Anonymous meetings and participate in the Model Neighborhood Area Community Mental Health Center program. Should Private Bowman's mental condition so warrant or should he violate the conditions of his release, the Order provided for return to inpatient status at St. Elizabeth's Hospital (Appendix 1 to this Memorandum, November 6, 1980 Order of Judge Block).

 In December of 1980, the Armed Forces Police learned that petitioner had been acquitted by reason of insanity and was committed to St. Elizabeth's Hospital. *fn4" The military police contacted Joseph Henneberry, R.N., Director of Forensic Programs at St. Elizabeth's Hospital and learned that Private Bowman, no longer an inpatient, was receiving weekly treatment at St. Elizabeth's. The military police also learned that Private Bowman's next scheduled treatment at St. Elizabeth's was on December 18, 1980. The military police did not communicate with the Superior Court nor did they seek authorization from Judge Block prior to further action. When Private Bowman reported to St. Elizabeth's for his court-ordered outpatient treatment, the military police arrested him. Private Bowman was permitted to telephone his civilian attorney. Although Bowman then submitted to military custody, it is conceded by the Government on the record that he did not consent to his return to Army authorities. No hearing was held prior to or in conjunction with the taking of Private Bowman. He was turned over to Army authorities at Fort George M. Meade, Maryland and returned to Fort Dix for processing on or about December 23, 1980. On December 24, 1980, Private Bowman was taken to the Naval Confinement Facility of the Philadelphia Naval Yard in custody of Naval Lieutenant Scott E. Wilson and imprisoned there.

 Sometime prior to February 11, 1981, Judge Block became aware that Private Bowman had been taken from the jurisdiction by military police. On that date Judge Block wrote a letter to Colonel James R. Coker of the Office of the Staff, Judge Advocate at Fort Dix, New Jersey, to insist that petitioner be returned immediately (Judge Block's letter of February 11, 1981, Appendix II to this Memorandum). In that letter, Judge Block stated that "(if) there were or are any reservations about Mr. Bowman's conditional release in light of the pending military charges, I would be happy to be so informed." Judge Block enclosed with this letter, which was sent to all persons connected with this matter, copies of his Attachment Order filed that same day. The "Attachment Order of Return" (Appendix III to this Memorandum) directed to the United States Marshal, the District of Columbia Chief of Police or any authorized law enforcement officer, stated in part "(y)ou are hereby commanded to seize aforementioned Jerry S. Bowman and return him forthwith to St. Elizabeth's Hospital, Washington, D.C. *fn5" It is not disputed that the appropriate Army and Naval authorities received copies of this Order, although there is no return of service on the record.

 On April 9, 1981, Private Bowman filed a petition for writ of habeas corpus and also requested injunctive relief against the impending court martial. Respondent filed a motion to dismiss for lack of jurisdiction or, in the alternative, for transfer of this action to the Federal District Court for the District of New Jersey. By Order of April 20, 1981, this court, finding jurisdiction to entertain petitioner's writ in the Eastern District of Pennsylvania, denied respondent's motion and declined to transfer the action to New Jersey. Petitioner was ordered to submit an amended petition with factual allegations numbered and verified and respondent was instructed to submit an answer. On April 24, 1981, evidence was taken and argument heard. Thereafter, the parties submitted the relevant Army Regulations and additional argument thereon requested by the court at that hearing.

 While the Superior Court in the District of Columbia and the Federal District Court in Philadelphia addressed the problems raised by the facts underlying this petition, *fn6" a military court had proceedings preliminary to court martial before it. On February 24, 1981 a hearing was held before the military judge in the matter of United States v. Bowman. Defense counsel for Private Bowman made a motion for appropriate relief in the form of an order releasing petitioner to District of Columbia authorities. This motion was denied by the military judge who found that the matter would be resolved by the proceedings in civilian courts without a need for collateral litigation. Pursuant to this determination, the military judge granted Private Bowman a continuance for an appropriate period for civilian courts to resolve the related matters. On March 24, 1981, another continuance for the same purpose was granted. On April 15, 1981, the military judge temporarily stayed the military court proceedings as the petition for writ of habeas corpus was actively before this court. *fn7"


 This court has jurisdiction under 28 U.S.C. § 2241 over the subject matter of and the parties to this litigation. The terms under which a writ of habeas corpus may be issued are controlled by federal statute. Under 28 U.S.C. § 2241(c)(1) the writ may be extended to "a prisoner who is in custody under or by color of the authority of the United States." In any petition for habeas corpus, the court is confronted with a threshold question whether the petitioner is "in custody" for purposes of establishing the subject matter jurisdiction of the court. It is clear, however, that Private Bowman, a member of the armed services, who was confined in the Naval Brig, Philadelphia, Pennsylvania at the time his petition was filed and is presently detained there, is "in custody" within the meaning of 28 U.S.C. § 2241(c). See, Meck v. Commanding Officer, Valley Forge General Hospital, 452 F.2d 758 (3d Cir. 1971).

 The provision of § 2241(a) limiting the power of federal courts to grant a writ of habeas corpus to cases "within their respective jurisdictions" involves inquiry into two issues: whether jurisdiction exists over the person of the petitioner and whether jurisdiction exists over the person of petitioner's custodian. See, Meck, supra, at 761. Although no longer critical to a jurisdictional determination since the Supreme Court's decision in Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S. Ct. 1123, 35 L. Ed. 2d 443 (1973), this court clearly has jurisdiction over the person of Jerry Bowman who is confined in the Eastern District of Pennsylvania.

 The court also has personal jurisdiction over petitioner's custodian, Navy Lieutenant Scott E. Wilson, who is commanding officer in charge at petitioner's place of confinement, supervisor of the conditions of said confinement, and final arbiter, as a practical matter, of all petitioner's requests for privileges, medical or legal assistance. The Government argues that, because Private Bowman is assigned to Fort Dix, the commanding officer of that New Jersey installation is his true custodian and his petition can therefore only be filed in New Jersey. Although Army Private Bowman is confined in a Navy Brig in accordance with an administrative agreement between the two branches of the Armed Forces, Lt. Wilson is the personification of the Army's "presence" in Bowman's life. See, Strait v. Laird, 406 U.S. 341, 32 L. Ed. 2d 141, 92 S. Ct. 1693 (1972). Bowman had not been in contact with or in the control of the Army, prior to his arrest at St. Elizabeth's Hospital, since October of 1979. Almost immediately from the time of said arrest, Wilson has had direct and total control over Private Bowman. Although perhaps not technically in Bowman's Army chain of command, Wilson is the fundamental link between the Army and Private Bowman and it is Wilson's command, when received from higher, legitimate authority, which governs the physical whereabouts, the release or the confinement of Private Bowman. See, Strait, supra; Meck v. Commanding Officer, Valley Forge General Hospital, 452 F.2d 758 (3d Cir. 1971) (where petitioner was physically confined within the Eastern District of Pennsylvania by military authorities there, district court had jurisdiction of the person of petitioner, notwithstanding that his commanding officer may have been outside the district); Hayes v. Secretary of Army, 465 F. Supp. 646 (W.D.Pa.1979) (habeas corpus jurisdiction where immediate custodian located in the district).

 The Supreme Court in Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S. Ct. 1123, 35 L. Ed. 2d 443 (1973), while holding that a prisoner's physical presence within the territorial confines of a district is not an invariable prerequisite to exercise of a district court's habeas corpus jurisdiction, was careful to note that "(n)othing in this opinion should be taken to preclude the exercise of concurrent habeas corpus jurisdiction over the petitioner's claim by a federal district court in the district of confinement." 410 U.S. 484 at 499, n.15, 93 S. Ct. 1123 at 1131, 35 L. Ed. 2d 443, n.15. The Army cannot prevent petitioner from having his petition for a writ of habeas corpus heard in the district wherein he is confined by placing him for an extended period in the total physical control of an officer located in the district and then arguing, under a narrow interpretation of the meaning of chain of command, that the officer, Lt. Wilson, is not the custodian of the person he holds prisoner, Private Bowman.

 The requirement of exhaustion of remedies available to Private Bowman in the military courts does not present a problem here for reasons to be discussed in Part III of this Memorandum. Jurisdiction to entertain ...

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