# James Roy Gosa v. J. A. Mayden, Warden, Federal Correctional Institution, Tallahassee, Florida > Court of Appeals for the Fifth Circuit · October 12, 1971 · 450 F.2d 753 URL: https://www.frixlaw.com/law-library/cases/9457516 ## Case - **Full name:** James Roy GOSA, Petitioner-Appellant, v. J. A. MAYDEN, Warden, Federal Correctional Institution, Tallahassee, Florida, Respondent-Appellee - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** October 12, 1971 - **Citations:** 450 F.2d 753; 1971 U.S. App. LEXIS 7644 - **Precedential status:** Published - **Opinion:** Dissent by Godbold - **Judges:** Godbold, Simpson, Clark - **Cited by:** 13 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9457516 ## Opinion text GODBOLD, Circuit Judge (dissenting). I believe that the present state of the authorities requires us to hold that O’Callahan v. Parker, 395 U.S. 258 , 89 S.Ct. 1683 , 23 L.Ed.2d 291 (1969) is retroactive. Predicting how the Supreme Court as final arbiter may decide that issue is a luxury not available to us as an intermediate appellate court. We apply the law as it comes to us. I agree with the majority interpretation of O’Callahan . Once it is concluded that the decision rested upon lack of jurisdiction by the court martial in the sense of lack of adjudicatory power, then the action of other courts martial which in like circumstances purported to exercise adjudicatory power that we now know Congress could not constitutionally give them cannot be validated by applying standards which, in other contexts, have been applied to selectively depart from the normal and traditional rule of retroactivity. 1 The “purpose-reliance-effect” test of Stovall v. Denno, 388 U.S. 293 , 87 S.Ct. 1967 , 18 L.Ed.2d 1199 (1967) is not a substantive end in itself but a tool of sorts for trying to find a way across areas not yet well charted. Judge Clark has spelled out some of the effects of retroactive application of O’Callahan . They are so sweeping that all too easily the mind jumps to giving recognition to them by feeding them into a handy standard under which “effect” is a strong if not compelling factor. But the retro-activity eases since Linkletter 1A have viewed retroactivity versus prospectivity in the context of considering the effect of a newly articulated rule of constitutional law upon past actions taken by courts of general jurisdiction which had adjudicatory power. In that context, upon application of the new rule, one learned by hindsight that such courts had acted erroneously. DeStefano v. Woods, 392 U.S. 631 , 88 S.Ct. 2093 , 20 L.Ed.2d 1308 (1968), which gave only prospec *768 tive effect to Duncan v. Louisiana, 391 U.S. 145 , 88 S.Ct. 1444 , 20 L.Ed.2d 491 (1968) (right to jury trial in all serious state criminal cases) and Bloom v. Illinois, 391 U.S. 194 , 20 L.Ed.2d 522 , 88 S.Ct. 1477 (1968) (right to jury trial in all state prosecutions for serious criminal contempts), is a case of that nature. None of the post -Linkletter cases has considered the question in the context of impact upon past actions taken by courts of special and limited jurisdiction, such as courts martial, where the effect of a choice of prospectivity will determine the adjudicatory power, in fact the very existence, of the court that has earlier acted. A court-martial organized under the laws of the United States is a court of special and limited jurisdiction. It is called into existence for a special purpose and to perform a particular duty. When the object of its creation has been accomplished it is dissolved. * * To give effect to its sentences it must appear affirmatively and unequivocally that the court was legally constituted; that it had jurisdiction; that all the statutory regulations governing its proceedings had been complied with, and that its sentence was conformable to law. Runkle v. United States, 122 U.S. 543, 555-556 , 7 S.Ct. 1141, 1146 , 30 L.Ed. 1167, 1170 (1887). A court-martial is wholly unlike the case of a permanent court created by constitution or by statute and presided over by one who had some color of authority although not in truth an officer de jure, and whose acts as a judge of such court may be valid where the public is concerned. The court exists even though the judge may be disqualified or not lawfully appointed or elected. But in this case the very power which appointed the members of and convened the court violated the statute in composing that court. It is one act, appointing the members of and convening the court, and in performing that act the officer plainly violated the law. Is such a court a valid court and the members thus detailed de facto officers of such valid court? Clearly not. By the violation of the law [in constituting its membership] the body lacked any statutory authority for its existence, and it lacked, therefore, all jurisdiction over the defendant or the subject-matter of the charges against him. * * -is- -x- [T]his particular court was not legally constituted to perform the function for which alone it was convened. It was therefore in law no court. McClaughry v. Deming, 186 U.S. 49, 64-65 , 22 S.Ct. 786, 792 , 46 L.Ed. 1049, 1056 (1902). Linkletter• went to the power of the Supreme Court itself to make rulings with purely prospective effect, a power theretofore not clearly recognized though from time to time adverted to. Mishkin, The High Court, The Great Court and the Due Process of Time and Law, 79 Harv.L.Rev. 56-59 (1965). I do not doubt that this court too now has the same power. But the issue for us in this case is whether we will push outward the limits of this newly articulated judicial power into an area in which not only has the Supreme Court not recognized its applicability but also in which the concepts, considerations and consequences upon judicial institutions of application of the power are all very different. If Linkletter is to be so extended, and with such massive consequences 2 it should be by the Supreme Court itself *769 and under standards promulgated by it. 3 This conclusion is, I think, buttressed by the considerations set out by Justice Harlan concurring in Mackey v. United States, 401 U.S. 667, 675 , 91 S.Ct. 1160 , 28 L.Ed.2d 404, 410 (1971) and Elkanich v. United States, 401 U.S. 646, 675 , 91 S.Ct. 1148 , 28 L.Ed.2d 388, 410 (1971) and dissenting in Williams v. United States, IcL. Like my brethren, I am unsure of what the Supreme Court would decide, and I have attempted to avoid even a whisper of what I think the result should be. But I am firm in my view that at the Court of Appeals level we are not free in this case and at this time to selectively reject retroactivity. Therefore, I would reverse. . The argument has been made that the question of prospective or retrospective application is not properly reached. See Judge Ferguson, dissenting in Mercer v. Dillon, 19 U.S.C.M.A. 264, 271 , 41 C.M.R. 264, 271 (19 — ) : “Where jurisdiction is lacking, there can be no question of prospective or retrospective application, for when a court-martial proceeds without jurisdiction, its action is null and void. McClaughry v. Deming, 186 U.S. 49 , 46 L.Ed. 1049 , 22 S.Ct. 786 (1902). See also Ex parte Siebold, 100 U.S. 371 , 25 L.Ed. 717 (1880).” . Linkletter v. Walker, 381 U.S. 618 , 85 S.Ct. 1731 , 14 L.Ed.2d 601 (1965). . Consequences are massive whether the decision is for retroactivity or prospectivity, and they do not become more or loss so in either direction by mere characterization. Sly brothers point to the administrative and judicial problems which retro-activity would create. But prospectivity will leave in effect what nil agree will bo many thousands of convictions with all their attendant consequences. And pro-spectivity will becloud established rules of the effect of judgments of courts of limited and special jurisdiction acting outside their powers. *769 If our conclusion were in favor of retro-activity we could stay our decision pending Supreme Court review, which would avoid' the purely interim problems. In any event, interim problems arising between the time of a decision by this court and a decision by the Supremo Court on the merits, are hardly a proper foundation for a particular merits decision by this court. . My position is analogous to, but somewhat more firm than that of Judge AA'einstein in United States ex rel. Flemings v. Chafee, 330 F.Supp. 193, 200 (E.D.N.Y.1971) : “The mixture of theory and practical considerations in determining the extent to which new rules will be applied retroactively, particularly in this time of changing personnel and views on the Supreme Court, make reasonable predictions almost impossible. In such circumstances, bearing in mind that the traditional and standard rule is still one of retroactivity and that this is particularly true where jurisdiction in the sense of lack of power over the subject matter or person is involved, a nisi prius court should apply the traditional rule unless it is perfectly clear that the Supreme Court will not do so.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9457516. Public record. Not legal advice.