Petition for a Writ of Certiorari — Noyd v. Bond

SUPREME COURT. U. : 0 ee

» Supeeme Court of the Vnited £ States

“Ton F. DAVIS, CLERK

Gortenn Seem, 1968

es Capramn Daz E. Noyn,

) 13 1968

Petitioner,

NS re m

MaJor.GENERAL CHARLES R. Bonn, Jr., Commander, Twelfth Air

Force, United States Air Force; CoLoNEL GrorceE R. Dorr,

\* . Commander, 832nd° Combat. Support Group, and Commander,

Cannon Air Force Base, New Mexico; CoLONEL ROBERT R.

Scorr, Commander, 832nd Air Division, Cannon Air Force Base,

New Mexico; COLONEL Jimmy J. JUMPER, Commander, 27th

Tactical Fighter Wing, Cannon Air Force ’Base, New. Mexico ; ‘

LIEUTENANT COLONEL JAMES L. GLESSNER, Ir, Commander, — d

524th Tactical Fighter Squadron, Cannon’ Air Force Base, New

Mexico; Caprain CHARLES THOMPSON,: Commander, 832nd Se- .

curity Police Squadron, Cannon Air Force Base, New Mexico,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE —

UNITED STATES COURT OF APPEALS)

FOR THE TENTH CIRCUIT

Marvin. M. -KaRpaTKin

: 660 Madison Avenue

New York, New York 10021

JOHN DEJ. PEMBERTON, JR.

Mentvin L. WouLF’.

Burt NEuBORNE

156 Fifth Avenue .

- New York, New York 10010

Pavut A. Pores

520 Simms Building

Albuquerque, New “Mexico 87101

. Wim F. Reynarp

507 American National Bank Building

Denver, Colorado 80202

Attorneys for Petitioner

Of Counsel : me

Aurrer H. McRaz. : a,

‘Wiarp F. Kirts \ eX ,

ALAN H. LEvINE

Ruopa H. KarPaTKIn.

MicHakEL N. PoLLET

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‘ “1 Lye Fn gee, ee es - 1 i - neni m sieaieeeriicimeiitmeatinls SL =

Opinions Below ioe oie»

J urisdjetion ;

8

Questions Presented - a

+ ~

Constitytional ind Statutory Provisions Involved

' Statement of the Case .

Reasons for Granting the Writ

Y y

-

Port I

The Court of Appeals improperly applied the doc-

trine of exhaustion of military remedies, and

' thereby deprived petitioner of Federal habeas —

eorpus-relief,-which is the only adequate, effective

and practical remedy available. Its narrow juris-

- dictional holding is in conflict with decisions of

other Courts of Appeals she ae

(a)- Tnadequacy and ineffectiveness of suggested -

5 military remedies ....... - 10

(b) ) Questionable _ applicability of exhaustion , a a

~ trine’ ae _ 14

*. (ce): Conflict between the circuits . ; al

Port II

The incarceration of petitioner pending the com-

pletion of military appellate review is in acknowl-

edged violation of the ‘Uniform Code of Military

Justice ...... . : 21

he < Be 3 - . PAGE

Porst TT ae eer | pO ee

The continued incarceration of Captain, Noyd pend-.

ing the completion of the militaryappellate process -

would deprive him of his Kberty without due

‘process of law in that to fribunal—civilian or

military—has ever passed vpn the merits of. his...

defense — 26.

Contcuusiox : ; . “31

Appexpix | ai

‘Onl of the Court of Appeals, Tenth Cire, )

' Filed October 30, 1968 ....: , “la

Opinion ef the District Court, District of ‘New -

"+ Mexico, Dated May 24, 1968 .. a “ oe

General Court-Martial, Order No. 13° — ie

: Opinion of the Air Force Board of Review —-- 158

7 Opinion of the District ict Court, ‘District of Colorado,

” — March 29, "1967 ial 28a

Vee hg

~ -

very OF ——

Vases: pie

Brown v. idnidinin 387 F. 2d 150 (3d Cir, 1967),’

_° cert. den. 390 U.S. 1005. (1968) . ee

‘Burns v. Wilson, 346 U. S. 137 (1953) a a

Caputo.v. Sharp, 282 F. Supp. 362 (E. D. Pa:'1968) «... 15

- Damico v. California, 389 U.-S.416 (1967) . ee

——_

ana”

tp

"Fay v. Noia, 372 U. S. 391 (1963) ime

wen

Or: Gibbs v. Blackwell, 354 F. 2d 469 (5th Cir, 1965) Dawe

Gibson v. U. S., 329 U. S, 338 8 6 Y-

- Gonzales v. Williams, 192 U: S. (1904) ”

Green v. Schilder, 162 F. 2d 803 (10th Cir. 1947 2.

"Greene v. U. S., 376 U."S. 149 (1964) ae

‘Gusik v. penane, 340 U. S. 128 ane) sebekiaicned 9- 10, 14, 15, 20

er

‘Hammond. Lenfest, 398 F. 2d 705 (2d Cir. 1968) . 18, 20, 28

Inre » Kelly, —F- 23—, 37.0. 'S. L. Week 2165 (5th |

Cir., Aug. 30, 1968) | 18

In re Yokoyama, 170 F. a 467.(S. D. Calif. 1960) 15

Kelly v. Hunter, 80 F. Supp. 851 (D. Kans. 1948) . - 20

Lee County School Dist. No. 1 v. Gardner, 263 F. Supp.

26 (D. S. C. 1967). 17

Levy v. Dillon, —— F. Supp. —— . Kone x tly 86,

1968) -.22: : 20

Levy v. Resor, 37 CMR 399 (1967) aes cara

‘Levy v. Resor, —— F. Supp. - —— (D. 8. C. 1967), aff'd _

384 F. 2d 689 (4th Cir- 1967), cert. den. 389 U. S.

1049 (1967) .... 20

iy Lockhart v..U. 8, ——- F. 2d, 87 U8 L, Wook s

2269 (9th Cir., Oct. 23, =~ dovite 16.

“McNeese v. Bd. of Education, 373 U. S. 668 (1963) . 16,17 ©

Monroe \ v. Pape, 365 U. S. 167 C= cS 2

-.. Noyd v. Bond, 285 F. Supp. 785 (D. N. Mex. 1968), ——

ft

t OW '. PAGE

Natural Gas. Pipeline Co. v. | Slattery, 302 U. ad 300.

. (1937) ? 16

‘Neaiey : v. Greenough, 120 F. } bon. 833, (D. Pena 1954) 15 .

NLRBB v. Marine Workers, 391°U. S. 418 (1968) ...... 16

.. FB, 2d—— (10th Cir. 1968)’ 2, 8, 13, 18, 21, 36,29 -

; Noyd v. McNamara, 267 F. Supp. 701 (D. Colo. 1967),

aff'd 378 F. 2d 538 (10th Cir. 1967), cert. den. 389 -

¢ U.S. 1022 (1967) i. , .O, 7, 18, 20, 26, 27, 28, 29

Orloff v. Willoughby, 345 U. s. 83 (1953) ..: tense, ae:

Peck v. Caseiins, 120 F. Supp. 560 (N. D. Cait 1954) 15

Powers v. Powers, 400 F. 2d 438 (5th Cir. 1968) -.......... 19

_ Public Utilities Comm. v. United Fuel Gas Co., 317

U. S. 456 (1943) apie 17

Reid v. Covert, 354 U. S. 1 (1957) . eine, te

Skinner & Eddy Corp. v, U. S., 249 U. S. 557 (1919) 17

Smith v. Illinois Bell Tel. Co., 270 U. S. 587 (1926) -...

- Sweet v. Taylor, 178 F. Seen. an at Kans. 1959) ....

U. S. v. Ansell; 16 CMR 450 (1954)

U.S. v. Doyle, 17 CMR 542 (1954)

U. S. v. Duggins, 1 CMR 539 (1951)

me

- U.S. v. Emerson, 20 CMR 434 (1954) -......:

8. v. Garcia, 17 CMR 88 (1954) ..

. Johnson, 15 CMR 583 (1954). ..

. Johnston, 2 CMR 759 (1952)

Vv

Vv

v

Vv

Vv

. Lock, 36 CMR 72. (1965)

Sasaas

hae

6

16

20

25

25

25

25

25

v. Hightower, 14 CMR 908 (1954) ce

. Luicero, 18 CMR 942 (1955) nnnecn nie nnn, 23, 24 -

(DT ritees Ah BT zc. <= —_

> -

eo

U. S. v. Mason, 16 CMR 795 (1954)

U. S. v. Mayer, 3 CMR 667 (1952) “25.

S. v. Noyd, ACM 20121, —_ CMR’ — . __5, 6, 27, 28, 29

U.

U.S. v. O'Malley, 1 CMR 469 (1951) 25

U. Sv. Ranes, 3:CMR 550, pet. for rev.-den. 3 CMR

¥50 (1952) vee Wee Fe 22-23, 24

U.S. v. Sarae, 9 CMR 633 (1953) 202 0- 23.

U. S. v. Smith, 2 CMR 817 (1952) .. ig 9, 11, 22, 24

-U. S. v: Watkins, 163 F. 2d 328 (24 Cir. Sf TS + ie

U. S. v. Williams, 16 CMR 717 (1954) ae.

U.S. ex rel. Guagliardo v. McElroy, 158 F. Supp. 171

(D. D. C. 1958), 259 F. 2d 927 (D. C. Cir. 1958),

' aff'd 361 U. S. 281 (1960) ..: 15

U.S. ex rel, Mankiewies v. a mer 2d 900 (24 Cir. x

1968). ....... 18

U. S. ex rel. Toth v. Quarles, 350 U. S. ft (1955) aie 15 -

Watkins + v. Ruppert, 224 F. 2d 47 (2d Cir. 1955) .. -.te. 20

United States Constitution:

"Article I, Section 9(2) onc eeeinceeeen ene

| Fifth ‘Amendment | a |

Statutes: | .

28 U.S. C. §1254(1) .. ae ae’

28 U.S. C. §2241(a) ihe 4.

.- Civil Rights Act, 42 U. S.C. $1983 (1964) 17

~ Military Justice Act of 1968:

§2(24), amending Article 54(a) of the Uniform ;

Code -of Military Justice -.. 14 .

$4(a), 37 U.S. L. Week 27 2

ae ee ~ Nt .

“eee \ . :

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: aes Da . eee .

i [ . ° e :

.

2 A.

_ vi a

Ne : Ce

Uniform Code of Military Justice: Ry : ons

‘Article 67(b)(3),10 U. S. ra §867(b) (3) ~~" ag

Article 71(¢), 10 U. 's. Cc. §871(e) ee Af $5 5, 7, 10, 21,

'22, 23, 24, 25,.26 eo

“Article 90, 10°U. 8. €. $890. i tec a

Other Authorities: as. vee 7 i:

3 ‘Davis, ‘Adlibidabeetiose ta Treatise, | $620 01,

-20.07 16

| Hapihincartats, Twelfth ne Force (TAC) henerad

Court-Martial Order | ‘No. 13 dated 10. May

1968 . joj 6, 7, 11, 21, 29

Servicemen in Ciwilion Courts, “76 Yale L. J. 380°

(1966) » ‘ 14 :

Warren, The Bill of Rights and the Military, 37

N. Y. U/ L: Rev. 181 (1962) ee

.

Supreme Court uf the Mnited States

. Octosze TERM, 1968

Carrany Daz EB. Now,

7 . ‘Petitioner,

Vo

one Guscimat, a R. Boxo, J R., -Coimmpander, Twelfth .

Air Force, United. States Air Force; Corone, Grorce

_ BR. Dozrr, Commander, 832nd Combat Support Group,

and Commander, Cannon Air Force Base, New Mexico;

.Cotone Rozert R. Scorr, Commander, 832nd Air Divi- ©

sion, Cannon Air Force Base, New Mexico; Cotons.

Jimmy J. Jumper, ‘Commander, 27th Tactical Fighting

Wing, Cannon Air Force Base, New Mexico; Liruren- -

ANT COLONEL James L. GLessNeERr, JR., Conmanser, 524th

Tactical Fighter Squadron, Cannon Air Force Base,

New Mexico; Carrain Crarces Tompson, Commander,

. 832nd Slosaxtés Police Squadron, Cannon Air Force

Base, ™ ew. . Mexico,

* nnivialene :

—~<»—_

PETITION FOR A WRIT OF CERTIORARI To THE

' UNITED STATES COURT OF APPEALS

. F OR THE TNE CIRCUIT

Petitioner prays that a writ of octavian 3 issue to review

the judgment of the United States Court of Appeals for

the Tenth Circuit, entered in the above-entitled case on

' October 30, 1968.

| lshitiane Below _ st

_

“The Court of himetie for the Tenth Circuit ssc

‘the decision of the United States District Court, for the

District of New Mexico, ‘Hon. H. “Vearle Payne, Chief

J udge, presiding, in an-opinion which is not yet. reported, -

and is printed in the Appendix, infra, p. la. The opinion

. of the District Court is reported at 285 F. Supp: 785

(D. N. Mex. 196), and is printed i in the Appendix, infra,

| P. 7a.

Jurisdiction

The judgment: ‘of the Court of Appeals was entered on |

~~ QOetober 30, 1968. - Jurisdiction is conferred on this Court

pursuant to 28 U.S. C. eens

Questions Presented - :

_- 1. Where a military prisoner is ordered into confine-

ment to commence serviig a court-martial sentence, in

apparent violation of a provision of the Uniform Code

of Military Justice whigh forbids execution of such sen-

tence until after the completion. of military appellate re-

view, is a Federal court deprived of habeas corpus juris-

diction by the doctrine of exhaustion of military remedies?

2. Cana military prisoner be ordered into confinement

- to commence serving a court-martial sentence of one year’s

confinement prior to the completion. of military appellate —

review in the face of Article 71(c) of the UCMJ which

forbids execution of such sentence until after the com-

pletion of military review?

rs

:

8. Petitioner is an Air Force officer who became & con-

scientious objector after 11 years of honorable service,

and whose application for classification as a conscientious

objector and either separation or reassignment to duties -

not conflicting with his conscience, was denied by the Sec-

retary of the-Air Force. Judicial review of the denial of

‘his application was declined by the U. S. District Court

for the District of Colorado and by the 10th Circuit on

the grounds of exhaustion of military remedies, such courts -

holding that wrongful denial could be raised as a defense

to any ensuing court-martial for disobedience of an order.

This Court denied certiorari. At the ensuing general court- —

martial, petitioner was convicted of. disohedience and sen-

tenced to dismissal, total forfeiture of all pay and allow-

ances, and confinement for one year. In such court-martial’

proceeding and in the review thereof by an Air Force

_ Board of Review, jurisdiction to consider. petitioner’s de-

fense based on wrongful denial of conscientious objection —

was again declined, the Board of Review holding that only

the Federal courts had jurisdiction to remedy erroneous

‘administrative action by the Secrétary of the Air Force:

, Although UCMJ, Article 71(c) forbids execution of any

sentence involving confinément of one year.or more prior

to the completion. of militz:y appellate review, petitioner.

was ordered into confinement by respondents: “pending

-completion of appellate review.”

(a) Under these circumstances has petitioner been de-

prived of his liberty without due“process of law in that

he has heen tried, convicted, sentenced, and ordered into

confinement before, there has been any hearing on the

merits uf his case?

‘ e

— were PRESTON TGS BEANE TRONS TRA POS =

4

(b) Is the 10th Circuit’s reversal of the District Court’s

' partial grant of habeas corpus, again on grounds of ex-

haustion of military remedies, an unconstitutional suspen-

sion of the writ of habeas corpus? eis —

Constitutional and er Provisions Involved -

Fifth Amendment to the United States Conatitisios:

“No-person: shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be # witness against

himself, nor be deprived: of life, liberty, or property,

without due process of law; nor shall private prop-

erty be taken for public use, — just. ——

sation.” ~

United States Constitution, Article I, Section 9(3): |

= “The Privilege of the Writ of Habeas Corpus shall

not be suspended, unless when in Cases of Rebellion

or Invasion the public Safety may require it.”

28 U. &. C. $2241(a):

“(a) Writs of habeas.corpus may be granted by

the Supreme Court, any justice thereof, ‘the district

courts and any.circuit judge within their respective

jurisdictions. The order of a circuit judge shall be

entered in the records of the district court of the dis-

trict wherein the restraint complained of is had.”

.

Uniform Code of Military Justice, Art. 71(c);

10 U. 8. C. §871(c): |

“(e) No sentence which includes, unsuspended, a dis-

honorable‘or bad-conduct discharge, or confinement for

one year or more, may be executed until affirmed by

a’ board of review and, in cases reviewed by it, the

Court of Military Appeals.” ©

: Statement of the Case

Petitioner, a Captain in the United States Air Force,

~ was convicted-on March 8, 1968 by a General Court-Martial

_ at Cannon Air Force Base, Clovis, New Mexico, of violat-

ing Article 90 of the Uniform Code of Military Justice.

Article 90 proscribes the willful. disobedience of a lawful

_ order. The order which Captain N oyd, a former fighter

pilot, was accused of disobeying was that he fly an instruc.

tional mission with a student pilot in order to train him -

‘for combat duty in Vietnam. Petitioner’s principal™de-

fense was that, prior to the order in question, he had made

application for Separation or reassignment: as a conscien-

_ tious objector, that such application had been wrongfully

denied by the Secretary of the Air Force pursuant to an

* error of law, and that such error of law tainted the sub-

sequent order to train the student pilot and rendered it il-

“legal. The essential error of law made by the Secretary,

_and the underlying substantive question in all of the Noyd

litigation’ is that Captain Noyd was deemed disqualified

* The.-first case was the unsuccessful: effort to secure pre-court

martial judicial review of the denial of his application, Noyd v.

McNamara, 267 F. Supp. 701 (D. Colo. 1967), aff'd 378 F. 2d 538

~ (10th Cir. 1967), cert. den. 389 U. S. 1022 (1967).. Next chme et)

court-martial proceedings, U. S. v. Noyd, ACM 20121, —— CMR

——. This case, Noyd v. Bond, supra, was instituted in an effort

to prevent the unlawful execution of Capt. Noyd’s sentence of one

year’s confinement prior to completion of appellate review. =

oe

because he ¥ was a discriminating pacifist rather than a uni-

versal pacifist.

On March 9, 1968, he was saislaihaui to dismissal ‘ioaes

~ the service, forfeiture of all pay and allowances and one

year’s confinement. Immediately following his sentence, |

petitioner was ordered confined to his quarters pending ap-

peal by order of respondent Colonel Doerr, the Base Com- —

‘mander of Cannon Air Force Base. On May 10, 1968, the »

General Court-Martial convening authority, the respondent

General Bond, approved the conviction and sentence and

ordered ‘petitioner ‘confined at the United States Discipli-:

nary Barracks, Fort Leavenworth, Kansas {pending com-

‘pletion of appellate review.” [Headquarters, Twelfth Air |

Force (TAC} General Court-Martial Order No. 13 dated 10 |

‘May 1968 (hereinafter “GCMO13”)]. GCMO13 is printed’ _

in the Appendix, infra, p. 18a, see ‘infra,-p. Y4a. ys .

a

— _———Pursuant to military law, petitioner was entitled to ap-

pellate review of his conviction by an Air Force Board of. -

- Review and further review, on petition for grant of review,

by the United States Court of Military Appeals. On/Sep- -

tember 3, 1968, an Air Force Board of Review upheld peti-

tioner’s conviction, ruling that it lacl@d jurisdiction to

review whether the Secretary had acted unlawfully. United .

States v. Noyd, ACM 20121, - CMR ——. The opinion

of the Air Force Board of Review has not yet been reported. .

It is printed in the Appendix, infra, p. 15a. Captain Noyd’s

_ petition for grant of review to the vourt of Military Ap-

peals was filed on November 22, 196 , and i is oe pend-

ing. _

The only judge thus far to rule on the merits of Captain

Noyd’s defenses was sufficiently moved .to issue a@ pre-

liminary injunction restraining the Air Force from placing

Captain Noyd in a position where he would be-compelled to

a

disobey an order. Noyd v. Mettenare, se Supp. ——.

(D. Colo., Mar. 29, 1967) per Judgé Doyle. This decision

by J tins Doyle has ngt yet been reported. It is printed

in the Appendix, infra, p. 28a. Judge Doyle subsequently —

invoked the doctrine of exhaustion of-military remedies -

- and ruled that the merits’ of Captain Noyd’s legal defenses

must be passed upon by the military courts prior to con-

sideration by the Federal District Court. Noyd v. Mc- ©

Namara, 267 F. Supp. 701-(D. Colo, 1967), aff’d 378 F.2d.

_ 588 (10th Cir. 1967), cert. den. 389°U. S. 1022 (1967) 2 Un-. -

_ fortunately, the military courts have, thus far, declined. to- ae

pass upon those defenses. See — ie pp.

23a. ‘

Nevertheless, Captain’ Noyd on been in physical con-

finement since March 9, 1968, pending appellate review of

his‘conviction. Not content with confinement to his quarters

at Cannon Air Force Base, the respondent General Bond,

ordered Captain Noyd confined to the United. States Dis-

ciplinary Barracks at Fort Leavenworth, Kansas pending

the results of his appeal. (G@CMO\13). The order of con-

. finement . to Leavenworth led to the filing of a petition.

for a writ of habeas corpus in the United: States District

Court for the District of New Mexico. Only the order of

the Federal District Court, entered on May 24, 1968;- has

prevented the — of the Leavenworth | confinement

order. |

Chief J udge Payne, in his decision i in the District. Court, .

recognized that any attempt to jail Captain Noyd prior to

the completion of military appellate review would constitute

a clear violation of Article 71(c) of the Uniform Code of

Military Justice, since Article 71(c) forbids execution of a

sentence which includes confinement of one year or more, -

prior to the completion of appellate review. Accordingly,

he invalidated the. attempt to incarcerate Captain ~— at -

é

- ae en ata gn engage

Fort Leavenworth pending the completion of appellate

.

.

review, 285. F. Supp. 785. See. Appendix, infra, p. 12a.

Both sides appealed Judge Payne’s decision to the Court

. of Appeals. Petitioner appealed from so much of Judge

_ Payne’s decision as declined to order his complete release

from confinement pending completion of military appeals.

Respondents appealed from so much of the decision of the

eg District Court as partially granted the writ.

“The Court of Appeals ruled below, however, that: the

District Court lacked the power to relieve petitioner from

' premature confinement at Leavenworth pending appeal be-

cause petitionenggad “failed fo exhaust his military reme.

dies.” The District Court was. reversed. Opinion below,

p. 6, infra, p. 6a.

This petition for certiorari seeks reversal of the hititin

-of the Court of Appeals, and reinstatement of the decision -

of the District Court. It farther seeks.a direction to: the

District Court to modify its decision and order, and to

direct the granting of the iineareicies habeas corpus ‘petition

in full.

, Ctinwitansoaly with this petition for certiorari, petitioner

‘is filing with the Circuit Justice an application for release

, from confinemént pending certiorari.

~

| Following Judge Payne’s decision, the respondent Doerr |

ordered petitioner moved from his family quarters, to which

he had previously been confined, to a room in a bachelor

officer’s quarters. The conditions of his confinement since

then have remained substantially the same. They include:

’ absolute restriction to his room except for authorized exits,

at specific hours, and in each case with prior notification to

a a at aT Ni I ia i ee etre 0 ed ea te ee, ee

Rages sapere, ernest

‘Security Police, to obtain meals and to take care of per-

sonal needs; restriction of exercise to one weekly period of

14 hours; restriction of visiting by his wife and two infant

children to two weekly visits of two hours each; all non-

family visiting is restricted to one weekly one-hour period;

a large sign is affixed to his door which reads “Off Limits to

: Military Personnel”. i )

Reasons for Granting the Writ

Certiorari should be granted because the Court of. Ap-

peals decided important questions of Federal law which —

have not been but should be settled by this Court, and

also because the jurisdictional holding of the Court of

Appeals appears to conflict with applicable rulings of other .

Courts of Appeals. , :

POINT I | |

The Court of Appeals improperly applied the doctrine » |

of exhaustion of military remedies,. and ‘thereby de-—

prived petitioner of Federal habtas corpus relief, which ‘

is the only adequate, effective and practical remedy

available. Its narrow jurisdictional holding is in conflict

with decisions of other Courts of Appeals.

The Court of Appeals did not rule on the merits of peti-

‘tioner’s claim that he was ordered incarcerated in violation

of military law.? Citing one Supreme Court decision, Gusik

_ .* However, the citation by the Court of Appeals of three decisions

of military Boards-of: Review, U. 8. v. Smith, 2 CMR 817 (1952) ;

U. 8. v. Ranes, 3: CMR 550 (1952); and U. 8. v. Incero, 18 CMR

942 (1955), all of which uphold petitioner’s contention that such

confinement is unlawful, strongly suggests that the Court of Ap-

peals agreed with.the District Court on the merits. See discussion

of. merits in Point II; infra. . ~ nar

10

v. .. Bchilder, 340 U. S. 128 (1950), my a number of its own

prior décisibns, it declined jurisdiction on’ the grounds

that petitioner. had not exhausted all possible military

remedies . «

-~ »

(a) Inadequacy onl ineffectiveness of ; ee

military remedies.

‘The possible military pie which the Court below:

noted included review by an Air Force Board of Review;*

further review, upon grant of petition therefor, by the Court

of Military Appeals; and application for an extraordinary

_ writ to the. Court of ey Appeals.

*The Tenth Circuit stated it to be “well established ... that -

habeas corpus is not available to review military confinement until

after all remedies afforded rs the UCMJ have first. been ex-

hausted.” Opinion, below, p. 5, Appendix, infra, p. 4a. But. in

‘Gustk v. Schilder, ‘supra, this Court’s declination of jurisdiction

on grounds of non-exhaustion was in response to a petition which

_ sought review of various errors’ in the court-martial proceedings.

Gusik was not, as is this case, an attack on the lawfulness of the,

confinement, unconnected with any possible trial errors. It may

indeed be “well established” that habeas corpus is not available to

review military trials until after exhaustion. But see argument,

—winfra, at pp. 14-17. However, petitioner respectfully sp geod that |

it is not at all well established that the bare question of military

confinement itself—uncoupled with a collateral attack on judicial .

proceedings resulting in confinement—igs not amenable to Federal

habeas corpus. In any event, this Court has never so held in Gusik

or im any other decision. Moreover, the decision below that a Fed-

eral court is powerless, pre-exhaution, to redress a violation of

Article 71(c) of the UCMJ is a case of first impression.

*The Court below’s observation.that the Board of Review had

heard oral argument ‘but not-yet rendered its decision is inaccurate.

Oral argument before the Board of Review was on August 22, 1968;

'. its decision was handed down on September 3, 1968. Argument

before the Court below was on October 2, 1968, and its decision was

filed on October 30, 1968.

atk | |

. None of these suggested remedies can provide the ade-

quate, effective and practical relief which is available -

through Federal habeas corpus.} In the Board of Review

decisions cited by the Court below, relief was indeed ,

granted, but only after varying periods of unlawful incar-

ceration while awaiting decision. In U.S. v Smith, 2 CMR

817 (1952), the intervening period was 514 thonths; in U. 8.

v. Ranes, 3 CMR 550 (1952), it was 214 months; in this’

case, had the Board of Review reversed, it would have

meant that petitioner would have nonetheless been illegally .

confined from March 9,-1968 to September 3, 1968, almost

six months of a one-year sentence. : a)

Federal habeas corpus relief, on the other hand, can be

and in this case was, instantaneous and effective. GCMO

13, the Leavenworth eonfinement order, was issued May

10, 1968. Petitioner promptly obtained a show causé order

_ from the District Court, which contained a stay. Briefs

were presented, the matter was heard, and the Court ‘ren- -

dered its decision on May 24,.1968, fourteen days after the

confinement order.

The length of the record, the complexity of the issues,

and the technical problems of preparing for a full appel-

late review on the merits are all factors which will bear.

on the length’ of illegal incarceration, if this were to’ be

the only remedy. Utilization of this remedy would tend ‘to

pressure counsel for an unlawfully incarcerated accused to.

press for speedy review on the question of confinement and

not take ‘the time to adequately review, ‘research and pre-

pare for the other questions. : :

-For obvious reasons, awaiting review on the merits by .

the Court of Military Appeals could ‘not, possibly produce _

\

. .

12 5

\ 74

relief, in most cases, . enti, approximately & year after

conviction.°

The. third: suggested militaty remedy -is the application

for an extraordinary writ to the Court of Military Appeals .

in the light of its holding in Levy v. Resor, 37 CMR 399 -

> 1967), that it has jurisdiction to hear such writs. But the ~

_ Court below, we:respectfully contend, overlooked a number »

of serious practical difficulties which would be created by- —

establishing the Court of Military Appeals as the exclusive

forum within which a military prisoner may challenge the

lawfulness of his detention, pending appeal: 3

(1) A jurisdictional requirement which funnels virtually

all military habeas corpus applications through the Court

_ of Military Appeals would place an extraordinary strain ©

upon.the facilities of that €ourt. The Court of Military

_ Appeals is a three judge appellate tribunal. It lacks both |

the facilities and the manpower to accommodate the vast in-

crease in evidentiary hearings which such a jurisdictional

rule would entail. At the present time, the Court is obliged

by the | pressure of cases to regulate its appellate caseload —

by the judicious use of its discretionary power ‘to grant

review “upon petition of the accused and on good cause

shown” UCMJ, Art. 67(b) (3) ; 10: U. S. C. $867(b) (3). To

the extent that the Court is burdened as the primary forum

from which military habeas corpus petitions ..must be

launched, it will be correspondingly legs able” to fulfill its

primary role of ee tribunal.

+ The court-martial record of the five-day trial in this case con-

sists of 402 pages, plus several hundred unnumbered pages of ex-

hibits. Petitioner filed his petition for grant of review on November,

22, 1968. If review is granted, hy the time briefs are filed, oral

; argument is heard, and decision is rendered, Captain Noyd’s one-

year term will. probably be over, even without giving effect to

provisions for time off for good behavior.

2S

=

\

Ne”

.

13

?

(2) The very nature of a habeas corpus writ requires the |

_ presence of the petitioner at his hearing. However, it would

be extremely impracticable for military authorities to trans-

port prisoners great distances: to Washington, D. C. to ap-

pear before the Court of Military Appeals. ot

(3) It will be virtually impossible "ean

to secure civilian counsel to initiate a writ in the Court of

_ Military Appeals. It would be prohibitively expensive for

a military. prisoner ‘detained i in New Mexico or Hawaii, for

example, to secure civilian counsel willing to'travel to Wash-

— D. C. in order to initiate a. ne corpus proceed-

(4) The Court of Military Appeals. does not, sit datiog

the:summer months. The very fact that the Court of Mili-.

tary Appeals recesses for the summer indicates that it does

_ not view itself as the exclusive forum within which to ini-

tiate'a habeas corpus writ ee the legality of mili-

_ tary detention.

As Chief Judge inn a itiatiog in the District Court:

“. ... the circumstances present here are such as to

render the military remedy. process ineffective to pro-

tect the petitioner’s rights.” 285 F. Supp. at 788. Infra,

* Dp. 11a.

This Court should grant certiorari, and reverse the decision

, below, because its narrow jurisdictional position, if allowed

_to stand, will have the effect of denying ———- ‘relief °

to large numbers of military prisoners.°

e athe Un United Stat Disciplinary Barrasks at Fort Leavenworth,

_ Kansas and many siratie bases are located within the Tenth

Circuit.

ea ee

POSE RS OE NE ne Pont

.

Fy , : : EG :

The relief sought by petitioner, if granted by this Court,

will not be in circumvention of the military appellate proc-.

_ ess, but rather in support of.it. What meaning is there to

. military appellate review if an accused languishes in con-

finement during its pendency,-and when he is ultimately

declared to have been unjustly convicted, his term has

already been served? If there is here a lacuna in. the

_ administration of military justice, possibly susceptible of

cure by 7 7 in the interim only Federal habeas.

corpus can provide effective justice and preserve ‘me in-

— of the emery appellate process.

(b) Questionable applicability of exhaustion doctrine.

The only ‘justification offered by the Tenth Circuit for

its holding is the reinvocation of the doctrine of exhaustion

of military remedies. -It is questionable, however, if the

doctrin’. is as monolithic as the Court below suggests. The

‘doctrine as asserted in Gusik v. Schilder, 340 U. S. 128°

(1950),*° does not. appear to have been reaffirmed by this

Court in the succeeding eighteen years, notwithstanding

7 Cf. §2(24) of the Military Justice Act of 1968, which amends

Article 54(a) of the UCMJ to allow discretionary deferment of the

service of a sentence of confinement pending appellate review: The

amendment becomes effective “on the first day of the tenth month

following in the month in which it was enacted.” % — 37 * 8.

Law W. 27, 29,30.

8 Gusik may very well be explained by the iii condi-

tions of military justice revealed in many of the early post-World

War II cases. See Servicemen in Civilian Courts, 76 Yale L. J.

380, 383-385 (1966). A great public outcry against: large-scale

abuses led ultimately to the enactment of the Uniform Code of

Military Justice in 1950. But one of the stopgap measures enacted

by Congress was an amendment to the Articles of War which gave

the Judge Advocate General of each service vast power to order

new trials and grant other relief. Faced with this specific recent

expression of congressional intent, it is not difficult to understand

a judicial reluctance to disregard ‘the new remedy.

one

many opportunities to do so. In U. S. ex rel. Guagliardo v.

McElroy, 259 F. 2d 927 (D. C. Cir. 1958), aff’d 361 U. S.

' 281 (1960), the Court of Appeals. held that the Gusik doc-

trine was of necessity greatly weakened by this Court’s

decisions in Reid v. Covert, 354 U. S. 1 (1957) and U. S.

ex rel. Toth v. Quarles, 350 U. S. 11 (1955), and the Court.

concluded that Gustk must be limited to attempts “to attack

collaterally a court-martial judgment. because of alleged

errors in the court:marital proceedings.” 259 F. 2d at 929.°

_ Obviously petitioner in this case does not seek habeas

-corpus to attack the many errors which he believes oc- .

curred in his court-martial proceedings. He is content: to

exhaust all his military remedies for the redress of those

errors. Habeas corpus is sought so that if these’ errors

are redressed in military channels, he will not have been ~

deprived of this redress by intervening confinement.

There is little difference conceptually if the remedy ©

which one is told. he must exhaust prior to judicial review

is an “administrative” remedy, oy a “state court” remedy,

or a “military” remedy. The Rosen application of the

' doctrine can often have the effect, as in this case, of ren-

dering a right remediless. . ;

_ Indeed, it is now universally recognized that the doctrine

that administrative remedies must be exhausted »efore re-

sorting to the courts is not a rule of constitutional or even

of statutory dimensions. It came into “being siniply as a

point of judicial policy and convenience adopted by the -

courts and will not be applied in a hidebound fashion. This —

® Accord: Neary v. Greenough, 120 F. Supp. 833, 838 (D. Maine

1954) ; see In re Yokoyama, 170 F. Supp. 467 (S, D. Calif. 1959) ;

U. 8. ex rel. Guagliardo v. McElroy, 158 F. Supp. 171, 173 (D.

D. C. 1958) ; see also Caputo v. Sharp, 282 F. oo 362 (E. D. Pa.

1968) ; Peck v. Carpenter, 120 F. Supp. 560 (N. D. Calif. 1954).

16 ©

judge-made- rule will be’ disregarded if there is good rea- °°

‘son for making an exception. See Natural Gas Pipeline

Co. v. Slattery, 302 U. S. 300 (1937); Lockhart v. U. S.,

— F. 2d — , 37 U. S. Law W. 2269 (9th Cir., Oct. 23,

1968).. “The statement that courts so often repeat in‘ their

opinions—that judicial relief must’ be. denied until admin-

istrative remedies have been exhausted—is seriously at

variance with the holdings.” 3. Davis, Administrative Law

_ Treatise, §20.01, at 56 (1958). .

A major exception to the doctrine of exhaustion is rec-

ognized where it is clear that the administrative remedy

is inadequate, as is the military remedy in this case. This

_ Court applied such exception last term in the case of NLRB

v. Marine Workers, 391 U. S. 418 (1968). See also Greene

v. U. 8., 376 U. S. 149 (1964) ; McNeese v. Board of Educa-

tion, 373 U. S. 668 (1963) ; 3 Davis, supra, $20.07. ©

Furthermore, this Court has refused to apply the doctrine

of. exhaustion where the administrative remedy is inade-.

‘quate or ineffective because of the harm which would re-

sult due to delay on the part of the administrative agency.

See Smith v. Illinois Bell Telephone Co., 270 U. S. 587,

591-592 (1926) (“Property may be as effectively taken by

long-continued and unreasonable delay in putting an end

to confiseatory rates”).

A second major exception to the doctrine of exhaustion

has been applied by this Court where legal questions are

presented which are of the type traditionally determined

by courts-and there is no requirement of administrative _

expertise. In Gonzales v. Williams, 192 U. S. 1 (1904),

where the sole question before the Department of Immi-

gration and Naturalization was whether or not the peti--

tioner was an “alien”, this Court held that there was no

17

requirement of exhaustion. Similarly, this Court, in Public

Utilities Commission v. United Fuel Gas *Co., 317 U. S.

456, (1943),"denied the applicability of the doctrine in a

case attacking a state commission’s orders as invalid,

Saying:

v

“No inquiry beyond the orders themselves and the

undisputed facts which underlie them is necessary in

se to discover that they are in conflict with the

federal Act.” Id. at 469.

See also Skinner & Eddy Corp. v: U. 8., 249 U. S. 557

(1919); U. S. v. Watkins, 163 F. 2d 328 (2d Cir. 1947);

Lee County School District No. 1 v. Gardner, 263 F. Supp..

_ 26 (D. S. C. 1967). testa

There are, in any event, increasing indications that this

Court’ and other courts are critically examining the appro-

priateness of the invocation of the doctrine and its often .

harmful consequences. In Fay v. Noia, 372 U.S. 391 (1963)

it was held that the doctrine of exhaustion of state reme-

dies would not be allowed to defeat the manifest federal

policy that federal constitutional rights cannot be denied

without a full opportunity for federal judicial scrutiny.”

(c) Conflict between the circuits. oot

It is not surprising therefore that a conflict has de-

veloped between the circuits, or the question of whether

the doctrine of exhaustion precludes Federal habeas corpus _ |

for American military personnel.

*° Likewise, the doctrine of exhaustion is held inapplicable to’

suits brought under the Civil Rights Act, 42 U.S. C. §1983 ( 1964)..

See Damico v. California, 389 U. S. 416 (1967) ; McNeese v. Board |

of Education, supra; Monroe v. Pape, 365 U. 8. 167 (1961).

18

In Noyd v. McNamara, 378 F. 2d 538 (10th Cir. 1967),

cert. den: 389 U. S. 1022 (1967), and again in Noyd v..

* Bond, below, the Court-of Appeals for the Tenth Circuit. =

adopted an extraordinarily restrictive view of the power

and duty of the Federal courts in this area. The Tenth

Circuit, in Noyd v. McNamara, supra, declined to rule on

the merits of ‘Captain Noyd’s substantive defenses prior

to his. court-martial, and now in Noyd v. ‘Bond, has pre-

vented a Federal District Court from enjoining petitioner’ S

premature incarceration pending appeal. -

In Hammond v. Lenfest, 398 F. 2d 705 (2d Cir. 1968),

however, the Second Circuit adopted a jurisdictional posi- —

tion squarely at variance with that of the Tenth Circuit..

In Hammond v. Lenfest, supra, the Second Circuit ruled

that a serviceman was not obliged to submit to a court- |

‘martial prior to raising his,defense of conscientious ob-

. jection in-a Federal court. In so holding, the majority

explicitly rejected the reasoning of the Tenth Circuit in -

Noyd v..McNamara. See also, U. 8. ex rel. Mankiewicz

v. Ray, 399 F. 2d 900 (2d Cir. 1968). ¥

In In re Kelly, —— F. 2d , 37 U. S. Law W. 2165

(5th Cir., Aug. 30, 1968), the Fifth Circuit also explicitly

rejected the reasoning of the Terith Circuit in Noyd and

chose to adopt the reasoning of the Second Circuit in

Hammond. The Fifth Circuit stated:

“In Noyd v. McNamara, 267 F. Supp. 701 (D. Colo.

1967), aff’d 378 F. 2d 538 (10th Cir. 1967), cert. den.

U. S.-1022-(1967), the Tenth Circuit considered

the courts: were without jurisdiction to entertain the

suit pending exhaustion of military justice procedures.

In Hammond v. Lenfest, 36 U. S. a. W. 2765 (2d

oe

__ nee.

‘Gir, June 10,1968), the Second Circuit, in a 2-1 de-

___@sion, rejected Noyd and went the other way...

“We view the requirement of éxhitstion-asdid the

"majority in Hammond. .-. .” :.

See also Powers v. Powers, 400 F. 2d 438 (5th Cir. 1968) ;

Brown v. McNamara, 387 F. 2d 150, 153, n. 5 (3d Cir. 1967),

cert. den. 390 U. S. 1005 (1968).

Thus, a sharp conflict between the circuits exists as to

_ the nature and extent of: the duty of the Federal courts ‘to

entertain applications for writs of habeas corpus challeng-

ing the legality of*military detention. In view of the ex-

traordinary importance attached to the writ of habeas

“corpus as “the great writ of liberty”,” petitioner respect- .

fully urges that this Court issue a writ of certiorari to

the Court of Appeals for the Tenth Circuit in order to

clarify the delicate question of when, and under what cir:

cumstances, civilian courts may entertain applications for

writs of habeas corpus challenging the legality of military

detention. : |

Tn addition, the restrictive jurisdictional position of the

Tenth Circuit ignored a well-established body of case law

which upholds Federal ‘habeas corpus jurisdiction to re-

view the propriety of military post-conviction restraint.

+, Gibbs v. Blackwell, 354 F, 24 469 (5th Cir. 1965); Levy v.

™ The Chief Justice has observed that:

_ “When the authority of the military has such a sweeping capac-

ity for affecting the lives of our citizenry, the wisdom of treat-

ing the military establishment as an enclave beyond the reach

of civilian courts almost inevitable is drawn into question.”’.

Warren, The Bill of Rights and the Military, 37 N. Y. U. L.

_ Rev. 181, 188 (1962). . ; °

20

4

Resor, +— F.Supp. —— (D. S. C. 1967), aff’d 384 F. 2d

- 689 (4th Cir. 1967), cert. den. 389 U. S. 1049 (1967); Levy -

- ve Dillon, —— F. Supp. —— (L-543,-D. Kans,, July 29,

1968) ; see Green v. Schilder, 162 F. 2d 808 (10th Cir. 1947); .

‘Kelly v. Hunter, 80 F. Supp. 851 (2.'Kans, 1948); Sweet -

enon

v. Faylor, 178 F. Supp. 456 (D. Kans. 1959).

Finally, the Tenth Circuit’s jurisdictional position east |

doubt upon the well-established procedure of submitting to

induction and challenging the validity of the induction order

by an application for a writ of habeas corpus to the ap-

propriate Federal Districk Court. See Gibson v. U..S.,

329 U. S. 338, 359 (1946); Watkins v. Ruppert, 224 F. 2d

47 (2d Cir. 1955). According to the rationale of the Tenth

Circuit, such applications may not be heard in a Federal

Court until-the applicants have exhausted every conceivable

military forum, including court-martial proceedings. See

Noyd v. McNamara, supra. Such a result would be an un-

constitutional suspension of the writ of habeas corpus. See

Gustk v. Schilder, supra, 340 U..S. at 132; Hammond v.

Lenfest, supra, 398 F. 2d at 713-714.”

a By its schineiistiibaibhiis of military,law as a “separate judicial

establishment”, Opinion’ below, p. 5, infra, p. 5a, the Tenth Cir-

cuit seems to be dealing with the ‘concept of comity. However,

comity is not a doctrine which asserts lack of power in jurisdic-

tional terms, but merely a doctrine relating to the propriety of the

exercise, of power. Comity arises from the discretionary respect

which one sovereign entity entertains for the acts of another. Con-

sequently, no principle of comity can act to.bar a Federal Court

from inquiring into the lawfulness of the detention of any person

by an instrumentahty of the Federal Government itself. The mili-

tary establishment is plainly not a sovereign entity. Judicial re-

luctance to entertain habeas corpus on misplaced notions of comity

should be overruled by this Court.

3

‘POINTH

The incarceration of petitioner pending the comple-

tion of military appellate review is in acknowledged -

_ violation of the Uniform Code of Military Justice.

Article 71(c) of the Uniform Code of Military Justice,

100. S. C. $871, provides:

“No sentence which includes, unsuspended, a dishonor-

able or bad-conduct discharge’ or confinement for one

year or more, may be executed until affirmed by a

board of review and, in cases reviewed by it, the Court

of ‘Military Appeals.” ;

m °

Since petitioner was sentenced to one year’s confinement

and dismissal from the service, he clearly falls within the

- provisions of Article 71(c): Insofar as the “dismissal”

aspects of his sentence are concerned, respondents have

chosen to’ comply with Article 71(c) and have made no

attempt to execute the dismissal. However, in ‘disregard

of the wording of Article 71(c¢), respondents have con-

fined petitioner to quarters since March 9, 1968, and they. |

seek to intensify his incarceration by attenipting to im-

prison him in the United States Disciplinary Barracks. at |

Fort Leavenworth, Kansas “pending: the completion of

appellate review,” GCMO 13. Py

The District Court held, i in its partial grant of the writ,

that:

“It is the opinion of the Court that placing the peti-

-tioner i in Fort Leavenworth would, in effect, constitute,

‘in part. at least, execition of the sentence.” 285 F.

Supp. at 787. Infra, p. 9a.

22

Indeed, it would be difficult to conceive of a more effective

_ “execution” of the confinement aspects of petitioner’s

sentence.* 7

In the numerous instances when this issue has arisen,

military appellate tribunals have held that Article 71(c)

prohibits the execution of-a: sentence of one year’s confirie-

ment until the completion of appellate review.

.-In U.S. v. Smith, 2 CMR 817 (1952), the defendant was

sentenced by a court-martial to one year’s imprisonment

and a bad’ conduct discharge. The convening authority .

approved the sentence and ordered the defendant to the

_ United States Disciplinary Barracks at Cumberland, Penn-

sylvania, suspending only the bad conduct, discharge pend-

ing appellate i Aate Board of Review stated: ~3

“The action of the convening authority insofar as it ‘~

purports to order into execution that portion of the .

approved sentence involving confinement, unsuspended, |

for twelve months is void.” Id. at 822. 1, @

*In vu. 8. v: Ranes, 3 CMR 550 (1952), pet. ie rev. yom

3 CMR 150, the Air Force Board of Review was faced

with a defendant who had been sentenced to a dishonorable

discharge and confinement to the Base Guardhouse at Reese

Air Force Base for one year. The convening authority

approved the confinement and ordered it executed. -_

Air Force Board of Review stated:

_ 8 The official review of the court-martial ieinel by the Staff

Judge Advocate of the convening authority (the respondent Bond)

and concurred in and adopted by the respondent Bond explicitly.

designated the United States Disciplinary Barracks at Fort Leaven-

worth, Kansas as the “place of confinement.”

¢

23

3

.. the sentence. of the court included confinement

for one year and the convening authority purported to _

order this. sentence into execution, suspending only

‘the execution of the dishonorable discharge. The

UCMJ, Article 71(c) provides, ‘No sentence which in-

cludes, unsuspended, a dishonorable or bad-cenduct dis-

/ charge, or confinement for one year or more, may be

executed until affirmed by a board of. review and, in

cases reviewed by it, the Court of Military Appeals.’

The same prohibition is contained in $98 of the Manual

for Courts Martial and is implicit in $88(d) of the

Manual, for Courts Martial . . Therefore, that part -

of the action of the ecuvening’ authority: ‘purporting

to direct execution of the sentence is illegal.” ‘Td. at.

- 551.

The cases of U. 8. v. Sebiie: 9 CMR 633 (1953) and U. 8.

v. Lucero, 18 CMR 942 (1955) provide an excellent insight .

~ into the operation n of Article 71(c) upon sentences of one

‘year or more. In both cases, the defendants were convicted

by court-martial and sentenced to a’ substantial fine, ‘or,

imprisonment of one year. In Sarde, the convening author-

ity approved the sentence and ordered the confinement

executed until the fire was paid. The Board of Review held

that since the one year’s confinement was not ‘punitive, but

merely to compel payment of a fine, 71(c) did-not prohibit «

execution of confinement prior to appellate: review. In

Incero, nowever, the Board reversed its decision in Sarae, .

and stated :

“It is A that where there ig the possibility.

- that the sentence may extend to a year or more, the

sentence may not be executed by the convening author-

ity until appropriate appellate r review has been com-

— ” Id. at 943°

&

In U. 8. v. Hightower, 14 CMR 908 (1954), the defendant —

was sentenced by a court-martial to one year's confinement

and a’ dishonorable discharge. The convening authority.

approved the sentence and ordered it: ae execution, The

Board stated :. %

“The action of the convening authority i in this case pir-

- ports to order the sentence into execution. Since the’.

sentence extended to a dishonorable discharge, total

forfeitures and confinement at hard Jabor for one year,

it cannot be ordered into execution. until appellate

review has been completed. Therefore, so much of the —

action as purports to order the sentence into execution _

is illegal, void and a nullity.” Id: at 911. | Me

In U. 8. v. - Johnson, 35 CMR 583 (1954), the Court stated:

“So much of the’ action of ‘the convening authority as

- purports to direct execttion of the punishment. of con-

finement and forfeitures i is a nullity, since Article 71(c) 4

“of the Code forbids an order of execution ‘as to any

part df-a sentence which includes confinement for one

‘year or more until sentence has been. affirmed by a s

Board of Review and... the Court.of Military Ap-”

peals.” Id. at 584. : aoe

Since J ohnson’s conviction was affirmed onthe merits, it

was held that no prejudice inured by virtue of the pre-

a6 The Court of Anosels, in its citation of the Smith, Ranes, and

Incero decisions, apparently ee with. this plain reading. of

ace 71(e). — below, p. 6 6, infra, p. 5a.

DeNTactais

25

. mature execution of his sentence. -However, in this case, ~

‘the question of prenfature execution was raised at the incep-

tion of the appellate process: Therefore, the prejudice to

_ petitioner is readily apparent, since even if he is ultimately

~ suecessful on appeal, he would, nevertheless, have served

. the major. portion of his sentence in illegal: confinement.

_ On numerous other ogasions, military courts have recog-

nized that execution of a sentence of one year or more prior

‘to appellate review is prohibited by Article 71(c) UCMJ.

See, e.g., U.S. v. O'Malley, 1 CMR 469 (1951); U..S. v.

Duggins, 1 CMR-539 (1951); U. 8. v. Johnston, 2 CMR 759 -

. (1952) ; U. S. v. Mayer, 3 CMR 667 (1952); U. S. v. Ansell,

16 CMR 450 (1954) ; U. S. v. Williams, 16 CMR 717 (1954) ; :

U. S. v. Mason, 16 CMR 795 (1954); .U. S. v. ‘Garcia, 17

_ CMR 88 (1954); U. S. ve Doyle, 1% CMR 542 (1954); U..S.

v. Emerson, 20 CMR 434 Nciatiads U.S. v. Lock, 36 CMR 72

= — ).

- of. judicial responsibility. 55

. We are thus faced: with an issue of military law which

has been* eonsistently and uniformly determined in peti- |

tioner’s favor by. the military courts. The clear’ state.of the

military law on the ‘subject renders the jurisdictional posi-

tion of the Tenth Circuit-even more difficult to comprehend.

If a difficult and abstruse issue which had not been passed

upon by any military court were present, amore compelling .

argument for “exhaustion” could be made. However, when

faced with a well-settled proposition. of military law, there

is no justification for invoking the dubious doctrine of ex-

haustion and thereby frustrating the effective enjoyment

of a right to be free. This Court should grant certiorari

and declare its. disfavor of what is in effect an abdication’

«

©

. ‘ r

at lll lh RD Sl ial 30s a il iti

BB mcs Wikide Jat bonee oar,

26

POINT Ill

The continued incarceration of Captain Noyd pending

the completion of the military appellate process would

deprive him of his liberty without due process of law

in that: no tribunal—civilian or military—has ever

paner: upon the merits of his defense.

Absolutely fundamental to a rational viet of due process

of law is the concept that no person may be sentenced prior ' ~

to a hearing on his defense.. However, by an unfortunate

interaction between (1) Noyd v. McNamara, supra; (2),a

_.violation of Article 71(c) of the Uniform Code of Military

Justice; and (3) Noyd v. Bond, supra, Captain .Noyd has

been condemned to serve virtually his entire sentence to

confinement prior to his receiving any hearing on the merits

of his constitutional defenses. A brief summary of Cap-

tain Noyd’s strange odyssey through the courts’ demon-

strates that although he has. served approximately nine

months of his sentence, no court, civilian or military, has

ever accepted jurisdiction and ruled on the merits of his

defenses.

Initially, . Captain Noyd approached the United States

District Court in Denver, Colorado in March, 1967, when

he was an Assistant Professor. of Psychology at the Air

Force Academy. Captain Noyd explained that he believed

his application for conscientious objector status had been

unconstitutionally and unlawfully rejected by the Air Force

‘and that he was about to receive an order which would

violate his religious beliefs. -Judge Doyle initially granted

3 preliminary injunction, staying the Air Force from plac-

ing Captain Noyd in a position where he would be forced

to pened such an n ordet. Noyd v. McNamara, —— F. Supp.

i ‘soe TT es Ra Sects PT it ab

27

—— (Mar. 29, 1967). See iii infra, p. 30a. How- -

ever, several weeks later, Judge Doyle dissolved the in-

junction and dismissed the complaint, ruling that Captain

_ Noyd should submit his defense to a court-martial before -

. seeking the aid of a Federal District court. Judge Doyle’s

opinion was affirmed by the Tenth Circuit, which held that -

Captain Noyd “has not exhausted the military process. and

has not been denied, nor can we anticipate that he will be

denied, a full consideration of his cénstitutional rights ©

within the complete scope of that process.” 378 F. 2d 538,

539-540 (10th Cir. 1967). This Court denied certiorari,

‘389 U. S. 1022 (1967). In the Memorandum in Opposition

to the grant of certiorari, the Solicitor General-of the

_ United States argued:

“ . . if and when petitioner is actually confronted

with an order and charged with disobedience of it, he

will have the opportunity to present his defenses within

the traditional framework of court-martial procedures, _

review boards, resort to the service Secretaiy, and

request for relief from the Court of Military Appeals.”

Memorandum for the United States in Opposition, p. 4.

Shortly thereafter, petitioner was indeed confronted with

an order which conflicted with his conscience, charged with

disobedience and found himself before a General Court-

Martial at Cannon Air Force Base, Clovis, New Mexico.

Captain Noyd attempted -most’strenuously to present his

constitutional defenses to his court-martial. But the Law

Officer ruled that, notwithstanding the understanding of the

Tenth Circuit and the assurances of the Solicitor General,

a military court-martial did not possess jurisdiction to de-

termine petitioner’s defenses. See U. S. v. Noyd, Record

of Trial, p. 327.

28

The decision of the court-martial was affirmed by an Air

Force Board of Review, which also disclaimed. the power

to determine petitioner’s constitutional defense. In its deci-

sion. the Air Force Board of Review stated: |

“Our decision in ACM 20016, Dunn, —— CMi2 - —,

decided May, 1968, answers the contention that the’

Secretary of the Air Force made an error of law in .

denying the accused’s applications under AFR 35- 24

for clagsification as.a conscientious objector. In Dunn,

the defense likewise demanded a judicial review within .

the court martial system of a Secretarial determina-

tion that the accused was not entitled to an dadminis-

trative discharge as a conscientious objector. We held:

‘The obvious answer is that such judicial review

was not within the jurisdiction of the court martial

which tried the accused. The: jurisdiction of a

court martial is a very limited jurisdiction derived

from the power of the Congress, in Article I, Sec-.

tion 8, Clause 14, of the Constitution To make.

Rules for the Government and Regulation of the

land and naval Forces.’ [citation omitted]

** 66

.

‘ it is the Federal, not the military, courts which

have jurisdiction in a proper case to review proceed-

ings under such military regulations to deterthine 7

whether there has been substantive due process.” -

[citations omitted]** U. S. v. Noyd, infra, p. —

-

' 18 The Board cited with seinen Hammond v. Lenfest, 398 F. 2d

705 (2d Cir. 1968) which rejected the reasoning and disagreed with |

the holding of the Tenth Circuit in Noyd v. McNamara, supra.

29 -

Thus, while the civilian and military courts have mu-

tually and respectfully deferred to each other, “as nimbly

as if dancing a quadrille,” Orloff v. Willoughby, 345 U. S.

83, 87 (1953), petitioner was ordered to serve his sentence 3

at Fort Leavenworth before any court passes upon. the

merits of his defenses. Petitioner has been subjected to

an exercise in judicial frustration which many be _summa-

rized as follows: she

_ (1) the refusal of the Tenth Cirenit to permit a

decision on the merits of his-case until the military

courts have acted—Noygd v. McNamara, 378 F. 2d 538°

(10th Cir. 1967), cert. den. 389 U.S. 1022 (1967) ; é

(2) the refusal of the military courts to render a

decision on the merits of his case because they feel

they lack the power to do so—U. 8S. v. Noyd, ACM

20121, —— CMR ——, infra, pp. 20a-23a;

(3) the insistence of the military authorities upon

incarcerating petitioner at Fort Leavenworth pending

the completion of the. military diciiaas process—

GCMO 13, mfra, p. 14a; and

_ (4) the refusal of the Tenth Circuit to persnt Fed-

- eral habeas corpus review to. prevent petitioner’s un-

lawful incarceration pending’ allie v. Bond,

— F. 24 , infra, pp. la-6a. .

- Petitioner, therefore, has been teal to serve a year

“in confinement, and will in fact, serve that year, without

any tribunal ever having passed upon the merits of his

iste Arata iia ans Ube bold athe

foe apae NO Led nig

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;

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2d “neti tee

30

defense, unless this Court grants certiorari and orders

him released pending certiorari.” :

The responsibility of the Federal Courts to prevent the

occurrence of the bizzare procedural dilemma in which

petitioner has been placed is manifest. Petitioner respect-

fully urges this Court to grant certiorari in order to. re-

lieve him from the burden of being obligated to serve his

sentence prior to receiving any hearing on the merits of

his defense: At the same time a grant of certiorari will

‘clarify the broader question of the power of the military

to incarcerate a prisoner pending appeal, under any cir- .

cumstances where military courts refuse to consider legal

defenses on asserted grounds of lack of jurisdiction.

1¢ Presumably the doctrine of exhaustion of military remedies

will no longer be applicable after the Court of Military Appeals

rules, and it may then be possible to obtain judicial review on the

merits. Cf. Burns v. Wilson, 346 U. S. 137 (1953). But by that

time the one-year sentence will have been served. °

17 Simultaneously with this petition, petitioner has filed an appli-

cation for release from confinement pending certiorari. ;

-CONCLUSION *

The petition for a writ of certiorari should be granted.

- | Respectfully submitted,

Marvin M. Kanparary

660 Madison Avenue ”

N ew York, New York 10021

Joun DeJ. PEMBERTON, Jr.

Metvin L. Wor

Burr Nevsorne

156 Fifth Avenue

New York, New York 10010

Pav. A. Pamurrs

520 Simms Building

Albuquerque, New Mexico 87101

-Wiiuam F. Reynarp

507 American National Bank

Building

Denver, Colorado 80202

Attorneys for Petitioner.

Of Counsel:

Aurrep H. MoRaz

Wuuarp. F. Krrrs_-

Aan H. Levive

Ruopa H. Karparzoy

MicHaEL N. Potzezr.

| Dated : December 10, 1968.

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