Opposition Brief — Allen v. VanCantfort

Gu the Supreme Court of the Gnited States

OcrosEer TERM, 1970

No. 1542

Denzi. R. ALLEN, PETITIONER

v.

RottanD F. VanCantrort

Deantoni

ON PRTITION FOR A WRIT OF OERTIORARI TO THB UNITED

STATES COURT OF APPHALS FOR THE FIRST OIROUIT

MEMORANDUM FOR THE UNITED STATES IN. OPPOSITION

Petitioner, then a lance corporal in the United

States Marine Corps, was, on June 5, 1968, charged

before a general court-martial, convened at Da Nang,

South Vietnam, with five specifications of premedi-

tated murder, in violation of Article 118, U.C.M.J.,

10 U.S.C. 918. The convening authority had directed,

before the trial, that the case be treated as non-capital

(Pet. App. 34, 53). Petitioner then entered a plea of

guilty with respect to all five specifications and

was sentenced to twenty years’ confinement at

hard labor, a reduction to Pay Grade E-1 and

dishonorable discharge from the service. On ap-

peal to the United States Navy Court‘of Military Re-

, Ay!

423-850—71

2

view, the conviction was affirmed, and the United

States Court of Military Appeals denied a petition

for further review (Pet. App. 32, 55-61).

Petitioner then instituted the present habeas corpus

proceedings, seeking to set aside his conviction essen-

tially on the grounds: (1) that his military counsel was

ineffective in the manner in which he elected to pre-

sent an insanity defense, and (2) that the acceptance

of the guilty plea was in violation of military law

because the crimes charged were capital offenses.

These contentions were exhaustively analyzed and

properly rejected by both the district court (Pet. App.

40-71; 316 F. Supp. 222) and the court of appeals

(Pet. App. 31-39; 436 F. 2d 625) ; we rely here on the

comprehensive opinions below.

In asserting the incompetence ° ‘of counsel in ar-

ranging the guilty plea without raising the defense

of insanity—a defense which his counsel knew could

be presented on appeal under military law and which

he planned so to raise and did in fact raise on appeal

(Pet. App. 36-38, 52-61)—petitioner relies on assert-

edly conflicting cases dealing with incapacity to stand

trial (Pet. 14-18). Those cases, however, are inap-

posite; there is in this case no evidence which raises

a serious question of petitioner’s competence to stand

trial under the standard of Dusky v. United States,

362 U.S. 402, or of his capacity to agree to the guilty

plea or confess his guilt. — mg

Accordingly, under the circumstances of this case,

the court below properly found (Pet. App. 36) that

the strategy adopted by petitioner’s trial counsel “not

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only fails to shock the conscience but appears to have

been eminently sound,’ particularly in view of the

fact that the evidence against petitioner, including

his own confession, was overwhelming and the fact

that his “chances of obtaining a favorable report from

the military psychiatrists available in Vietnam ap-

peared to be remote” (Pet. App. 36).

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

Erwin N. Griswo.p,

Solicitor General.

May 1971.

tw,

*Even if, as petitioner maintains (Pet. 21), counsel could

have had petitioner sent to the United States for psychiatric

evaluation, and then returned to Vietnam to stand trial (rather

than enter a guilty plea), his decision not to do so was one

of trial strategy. Counsel cannot now be faulted for electing

the alternative course—equally proper under military law—of

having his client plead guilty and then having him returned to

the United States, where petitioner could submit to psychiatric

evaluation and raise his insanity defense for the first time on

appeal before the United States Navy Court of Military

Review.

U.S. GOVERNMENT PRINTING OFFICE: teT!