Davis v. United States

Me. Justice Powell,

concurring in part and dissenting in part.

I agree with the Court’s holding that review under 28 U. S. C. § 2255 is available to petitioner, due to the intervening change in the law of the Circuit. But I would dispose of the case finally, not remand it.

Petitioner’s case turns on whether his conviction for refusing induction has been invalidated by Gutknecht v. United States, 396 U. S. 295 (1970). Both parties have raised, briefed and argued this issue, and it is properly before us. We should, in the interest of judicial economy if for no other reason, decide the Gutknecht issue and bring to an end this lengthy litigation, rather than remand it to the Court of Appeals for that court’s fourth round of consideration,

In my view, petitioner’s reliance upon Gutknecht is misplaced. Petitioner reads Gutknecht as invalidating the former delinquency regulations of the Selective Service System in every possible application, 1 He espouses a per se rule under which any induction order that derived from an application of those delinquency regulations is illegal. Gutknecht does not have such a broad sweep.

*348 In Gutknecht , the registrant was declared a delinquent for failing to retain his registration and classification papers in his possession at all times. He had surrendered these papers in an act of protest against the Vietnam conflict. As a consequence of the delinquency declaration, he was rushed — indeed it might be said railroaded— to induction. The entire process lasted less than two months, and Gutknecht was issued an induction order on the day after Christmas, only six days after he had been declared a delinquent. He was deprived of his standing in the order of call and was truly “accelerated” in that he was ordered to induction prior to the date on which he would have been called if treated in the normal manner. Gutknecht, in essence, was caught up in the tide of punitive actions by the Selective Service System in the late 1960’s against those who were thought to be evading military service because of opposition to the Vietnam conflict.

The Court’s opinion in Gutknecht repeatedly refers to this deliberately punitive attitude of the Service and its use of the then prevailing delinquency regulations as a means, short of criminal prosecution, for dealing with such persons. See, e. g., 396 U. S., at 306-308 . But I do not read Gutknecht as overturning the former delinquency regulations in all circumstances, or as depriving boards of a reasonable and effective alternative procedure for dealing with recalcitrant registrants who plainly were seeking to avoid military service. If the stated rationale of the holding in Gutknecht is accepted, that case invalidated those regulations only insofar as they were applied punitively to advance the-date of a registrant’s induction or to deprive him of procedural rights that he had not waived. See United States v. Dobie, 444 F. 2d 417 (CA4 1971). The reasons relied upon by the Court in Gutknecht and in the concurring opinion *349 of Mr. Justice Stewart, 396 U. S., at 314 , are incompatible with a per se rule proscribing all board authority to order an evasive registrant to report for induction. Thus, in my view United States v. Fox, 454 F. 2d 593 (CA9 1971), on which Davis relies, was incorrectly decided.

In the instant case it is undisputed that Davis was not, as a result of being declared delinquent, ordered to report for induction at a point in time prior to the normal order of his call. Indeed, due to the board's patient efforts to deal with Davis’ repeated attempts to obstruct the induction process, Davis was ordered to report for induction some seven months later than would have been the case if the process had been allowed to function normally. There is no hint of vindictiveness or of an attempt to punish Davis.

The only impact on Davis of being declared delinquent, other than a delay in the issuance of an order to report for induction, was that the declaration of delinquency permitted the board under then prevailing regulations to issue an induction order in the absence of a pre-induction physical examination and of the resulting form letter notifying Davis of his acceptability for service. 2 Davis attempts to portray these preconditions *350 on induction as significant procedural rights of which he was unfairly deprived by the board. The argument is frivolous. Davis frustrated every effort of the board over a period of more than two years to accord him the right to a physical examination. Thus he waived the procedural rights on which he now seeks to rely. Moreover, he would have received such an examination in any event if he had reported for induction. And the form notifying a registrant of acceptability for service is hardly a matter of major moment, particularly to one who had long been on notice of the pendency of an induction order.

On the record in this case, no one could seriously contend that Davis was the victim of punitive action or that he was not treated with tolerance and forbearance. In my view, the Court in Gutknecht could hardly have intended to invalidate an induction order in such circumstances.

I would affirm the judgment.

Gutknecht concerned primarily 32 CFR § 1642.13 (1969), now superseded, which assigned first priority in the order of induction to delinquents. That regulation is not at issue here.

Under 32 CFR § 1631.7 (1967), which has been withdrawn, the board could issue induction orders to those classified I-A or I-A-0 who had been (i) found acceptable for service and (ii) mailed a Statement of Acceptability at least 21 days before the date fixed for induction, provided:

“That a registrant classified in Class I-A or Class I-A-0 who is a delinquent may be selected and ordered to report for induction . . . notwithstanding the fact that he has not been found acceptable for service ... and has not been mailed a Statement of Acceptability . . . .” Davis received his induction notice under this regulation. Davis maintains that Gutknecht invalidated the above proviso clause, thus depriving the board of the power to induct him in the absence of *350 a finding of acceptability (i. e., a pre-induction physical) and a Statement of Acceptability. But, as noted, Gutknecht dealt with punitive treatment of delinquents, not all treatment of such registrants. Moreover, the above regulation was not at issue in Gutknecht .