Petition for Writ of Certiorari — Lee v. Swope

i

TABLE OF CONTENTS

Pace

INN IO cata acadsshemapepes saddle ill abouts 3

p. Jarisdictional Statement — 1

C. Questions Presented by Appeal 000. 3

D. Concise Statement of the Case oo. c ee ceeeeeeeeeee 3

. eae eeaAae EE |

F. Reasons for Allowance of Writ 0000000. .eeceeeeeeeeeee 6

EERE IE SRLS TOT Te 7

Appendix A [Opinion of the United States Court of

Appeals for the Ninth Circuit, filed September 14,

Appendix B [Opinion of the United States District

Court for the Northern District of California, South-

ern Division, filed October 22, 1954] ww.

Appendix C [Dying Declaration of Charlie W. Taylor,

dr. B/N 2285, RAS4562206)

Appendix D [Record of Court Commitment] _.............

Appendix E [Letter from United States Board of

Parole, dated October 26, 1955) ooo. eee eeeoecceeeeeoeee

Appendix F [Article I. Section 8 (14), Constitution of

INO IOI i Fn Se

Appendix G [Amendment Article V, Constitution of

I i

Appendix H [Amendment, Article VI, Constitution of

the United States]

19

19

oe as bla a a oat os ONS Pome el

ii

INDEX OF AUTHORITIES CITED

Pace

Bowen v. Johnston, Warden, 306 U.S. 19 5

Commonwealth ex rel Quinn vs. Smith, 191 F. 2d 504 6

Ex parte Henderson, 11 Fed Cas 1067 ___.............. 5

Gutterman v. Hiatt, Warden, 65 F. Supp. 285 — 6-9

Joblonowski v. State of New Jersey, 29N.J.S.114_. 6

Jones v. United States, 137 U.S. 202 0. 5

Skiriotes v. Florida, 313 U.S. 69 -......................-.....-... 5

State v. Ballard, 9 N.J. 402 ___ 6

United States ex rel Flannery v. Commanding Gen-

I i ss ined 5

United States v. Bowman, 200 U.S. 94 ee. 5

United States ex rel Hirshberg v. Cooke, 336 U.S. 210

United States ex rel Audrey M. Toth v. Donald A.

Quarles, Secretary of the United States Air Force

SCUS, decided November 7, 1955, not reported __.... 5

United States ex rel Turpin v. Snyder, 183 F. 2d 742

ae tsinceneacalgael 6

STATUTES

Article I, Section 8 (14), Constitution of the United

PERERA EEE ASRS Sina A eS OE 19

Amendment, Article V, Constitution of the United

States 20

Amendment, Article VI, Constitution of the United

States 20

In the

Supreme Court of the Anited States

OCTOBER TERM, 1955

JOHN LEE,

Petitioner,

vs.

E. B. SWOPE, Rae

Warden, United States Penitentiary,

Alcatraz, California,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

‘

Petitioner, John Lee, prays that a Writ of Certiorari

issue to review the judgment of the United States Court of

Appeals for the Ninth Circuit entered in the above-entitled

case on September 14, 1955.

B. JURISDICTIONAL STATEMENT

This appeal is taken from a judgment of the United States

Court of Appeals for the Ninth Circuit, San Francisco,

California, entered September 14, 1955, affirming a decree

of the United States District Court, Northern District of

2

California, Southern Division, San Francisco, California,

entered October 22, 1954, dismissing petitioner’s petition

for a writ of habeas corpus for the reason that, ‘‘The peti-

tioner does not challenge the validity of the twenty year

sentence, which the records show was imposed for a crime

committed by the petitioner when he was a member of the

United States Army and while stationed in France. The

return also shows that the expiration of the twenty-year

judgment and sentence with part good time credit will

occur on October 24, 1960. It is obvious therefore that the

petitioner is being detained by the Warden under a valid

sentence. In this situation this Court is clearly without

jurisdiction to hear the petition.’’ - - - - ‘‘The petitioner

challenges the jurisdiction of the Army Court-Martial over

the offense at Camp Cooke. He contends he bad been dis-

honorably discharged two years before the offense was

committed and therefore the civil, not the military courts,

had jurisdiction. His challenge to that sentence is pre-

maturé, and therefore this Court does not reach the merits

of his petition.’’

This statement is filed for the purpose of showing that

this Court has jurisdiction of this appeal, and that it should

exercise its jurisdiction because the questions are sub-

stantial and involves the interpretation of the United States

Constitution, Article I, Section 8, and Amendments V and

VI. 3

We originally claimed jurisdiction under Section 2255 of

Title 28, U.S.C. Since appellant is a military prisoner, sen-

tenced by a military court martial, it would apear that Sec-

tion 2255 does not apply to this proceeding but that Sections

2941, 2242 and 2243 of Title 28, U.S.C. do apply. Appeal in

a habeas corpus proceeding is provided by Section 2253 of

Title 28, U.S.C.

3

(A) OPINIONS BELOW

The opinion of the United States Court of Appeals (Ap-

pendix A), for the Ninth Circuit, filed September 14, 1955,

is unreported, but is found in the record p. 1-3. The opinion

of the trial court (Appendix B), filed October 22, 1954, is

unreported, but is found in the record p. 34-36.

C. QUESTIONS PRESENTED BY APPEAL

The legal issue involved in this cause is whether the

appellant has been denied ‘‘due process’’ under the Fifth

and Sixth Amendments to the United States Constitution

when the trial court refused to pass on the legal question as

to the jurisdiction of the Army Court-Martial which ad-

judged a life sentence against the appellant on September

13, 1949, although he had been dishonorably discharged

from the Army on June 12, 1947, and hence was a ‘‘civil-

ian.’’ The trial court refused to accept jurisdiction of this

cause on the grounds that appellants’ petition for a writ of

habeas corpus was pre-mature.

CONCISE STATEMENT OF THE CASE

Appellant is now imprisoned by The Warden, Federal

Penitentiary, on Alcatraz Island, California. On October 23,

1942, he was inducted into the U.S. Army. On May 27, 1946,

he was court-martialed in Paris, France and sentenced to

dishonorable discharge from the Army and twenty years of

confinement at hard labor for a robbery and assault. On

June 12, 1947, he was dishonorably discharged from the

Army and had meanwhile been returned from France to

Camp Cooke, California to serve the sentence. On June 10,

1949, three fellow prisoners stabbed another prisoner to

death. The petitioner, Lee, took no part in the incident and

in fact attempted to prevent it as shown in the Dying Dec-

+

laration of the victim (Appendix C). Nevertheless, the peti-

tioner was tried by Army General Court-Martial on Sep-

tember 13, 1949, along with the three active participants,

and was convicted and sentenced to death. The death sen-

tences which had been adjudged all four prisoners were

commuted to life imprisonment to begin to run consecu-

tive upon completion of the then existing sentences. On

January 27, 1953, appellant, Lee, became eligible for parole

from his twenty year sentence (Appendix D) but he was

not considered for such parole because the first sentence of

twenty years had merged with the second sentence of life

to make one life sentence and hence to deprive the United

States Board of Parole of jurisdiction until 1975 (Appen-

dix E). On October 18, 1954, appellant filed a Petition for

Writ of Habeas Corpus in the United States District Court

for the Northern District of California and an Order was

entered on October 22, 1954, dismissing appellant’s petition

as pre-mature. An appeal was taken from such Order and

was heard before the U.S. Court of Appeals for the Ninth

Cirenit on July 28, 1955. On September 14, 1955, the Court

of Appeals rendered an opinion affirming the Order of the

lower court to the effect that appellant’s petition was pre-

mature. It is such order from which this appeal is taken.

E. SPECIFICATIONS OF ERROR

Appellant challenges this ruling as being a denial of due

process under the Fifth and Sixth Amendments for the

reason that appellant had been a ‘‘civilian’’ for approxi-

mately two years prior to the time of the incident which

took place in the Army disciplinary barracks at Camp

Cooke, California on June the 10th, 1949, for which a life

sentence was adjudged, to run consecutive to the then exist-

ing twenty year sentence. The trial court erred in denying

appellant a hearing on the merits:

5

1. Appellant was not and is not being imprisoned at this

time under a twenty year sentence which will expire on

October 24, 1960, but is in fact confined under a ‘‘life term”’

for Robbery and Assault with a Deadly Weapon and Mur-

der,’’ (Appendix C), as a result of the first sentence of

twenty years and the second sentence of life having merged

into one ‘‘life term.’’ This has the effect, as set forth in

Appendix C of denying the United States Board of Parole

jurisdiction, even though the petitioner became eligible for

parole from the first sentence on January 27, 1953.

2. Appellant was a ‘‘civilian’’ on June the 10th, 1949,

when the incident which gave rise to his court-martial con-

viction of September the 13, 1949 took place. Since he had

been dishonorably discharged on June the 12th, 1947, he

was no longer a member of ‘‘the land or naval forces’’ and

hence the Army court-martial which tried and convicted

him was entirely without jurisdiction and in direct viola-

tion of the Sixth Amendment as concerns, ‘‘trial, by an

impartial jury of the State and district wherein the crime

shall have been committed.’’ United States of America ex

rel, Audrey M. Toth v. Donald A. Quarles, Secretary of the

United States Air Force, decided November 7, 1955 by the

United States Supreme Court and not yet reported, Bowen

vy. Johnston, Warden, 306 U.S. 19. Jones v. United States,

137 U.S. 202, United States v. Bowman, 200 US. 94,

Skiriotes v. Florida, 313 U.S. 69, Ex parte Henderson, 11

Fed Cas 1067, United States ex rel Flannery v. Command-

ing General, 69 F. Supp. 661, United States ex rel Hirsh-

berg v. Cooke, 336 U.S. 210.

3. Not only was appellant denied due process when he

was tried by a military tribunal which was entirely without

jurisdiction but he was again denied his ‘‘ right to a speedy

and public trial’? under the Sixth Amendment when the

trial court refused to pass on the legal issue involved in

appellant’s petition—whether the Army court-martial

which sentenced him on September 13, 1949, did or did not

have legal jurisdiction to try him. By refusing to take juris-

diction until October 24, 1960, the trial courts order can

have no effect but to prejudice petitioner as to his rights

under the Sixth Amendment. If the petitioner is forced to

wait until 1960, it is very doubtful if he can ever be afforded

a fair trial since ‘‘evidence may be lost, witnesses may die

or their memories fail, or the delay may work some other

prejudice, resulting in a denial of relief.’’ Commonwealth

ex rel Quinn v. Smith, 191 F. 2d 504, United States ex rel

Turpin v. Snyder, 183 F. 2d 742, Gutterman v. Hiatt, War-

den, 65 F. Supp. 285, Joblonowski v. State of New Jersey,

29 N.J. 8. 114, State v. Ballard, 9 N.J. 402.

F. REASONS FOR ALLOWANCE OF THE WRIT

1. This case involves the Construction and interpreta-

tion of Article 1, Section 8 wherein Congress is given the

power ‘‘to make Rules for the Government and Regulation

of the land and naval Forces’’ and of Amendment V where-

in is provided, ‘‘No person shall be held to answer for a

capital, or otherwise infamous crime, unless on a present-

ment or indictment of a Grand Jury except in cases arising

in the land or naval forces,’’ and of Amendment VI wherein

is provided, ‘‘In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall have

been committed.”’

2. Is a person a member of ‘‘the land or naval forces”’

after he has been dishonorably discharged from the Army

and is confined in an Army disciplinary barracks in the

continental United States, in time of peace, serving a sen-

tence adjudged by court-martial?

3. Is such person subject to trial by Army court-martial

7

for the alleged civilian offense of murder committed while

such discharged prisoner is confined in the Army disci-

plinary barracks, in time of peace, in Camp Cooke, Cali-

fornia?

4. Issuch person denied a ‘‘speedy’’ trial when the trial

court refused to take jurisdiction on a Petition for Writ

of Habeas Corpus so as to pass on the legal issue in this

cause at this time but forces the appellant to wait until

October 24, 1960, to get a hearing on the legal issue of

jurisdiction of the Army to court-martial a dishonorably

discharged soldier?

5. Assuming that a final determination should be made

ruling that discharged persons serving a sentence adjudged

by court-martial are not subject to trial for civilian offenses

committed in the continental United States in time of peace,

then does the fact that appellant would be forced to stand

trial after October 24, 1960, for an offense allegedly com-

mitted on June 10, 1949, amount to a denial of a ‘‘speedy’’

trial as provided for in the Sixth Amendment?

CONCLUSION

Wherefore, for the reasons hereinbefore stated, it is re-

spectfully sukmitted that this Petition for Writ of Certio-

rari be granted.

Charles Upton Shreve

Carl L. Rhoads

716 Ford Building

Detroit 26, Michigan

WOodward 2-4056

Jack L. Blaine

775 Post Street

San Francisco 9, California

Counsel for Appellant

8

APPENDIX A

OPINION OF THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

(Filed Sept. 14, 1955)

JOHN LEE,

Appellant,

vs.

E. B. SWOPE,

Warden, United States Penitentiary,

Alcatraz, California,

Appellee.

Appeal from the United States District Court for the

Northern District of California,

Southern Division

Before: STEPHENS, ORR, and CHAMBERS, Circuit

Judges

STEPHENS, Circuit Judge

The district court’s! order here appealed from is as

follows:

‘‘Ordered that petitioner’s petition for a writ of

habeas corpus be and the same is hereby dismissed

without prejudice, and the order to show cause hereto-

fore issued out of this Court is hereby discharged.”

(Dated and filed October 22, 1954.)

The district court refused relief because the petition for

the writ reveals upon its face that even if the petitioner’s

attack upon the validity of his conviction by a United States

1 United States District Court for the Northern Distri-. of California,

Southern Division.

9

[Army] Court Martial was upheld, it would not act to

release the petitioner from custody, since he is also being

held under a former unexpired sentence, the validity of

which is not attacked.

Petitioner claims he has been denied ‘‘due process’’ un-

der the Fifth and Sixth Amendments to the United States

Constitution, in that the first, or valid sentence, will not

expire for around six years and that he may be prejudiced

if the validity of the second sentence is not inquired into

promptly. The basis for the claim of invalidity is that peti-

tioner was tried by a United States [Army] Court Martial

after petitioner had been restored to civilian status, for an

alleged offense committed while he was a member of the

United States Army.

Petitioner seeks to bolster his claim that the district court

should have taken jurisdiction and decided the merits of it,

by citing Gutterman v. Hiatt, Warden, 1946, D.C. Pa., 65 F.

Supp. 285, and U.S. ex rel. Pruett v. Hiatt, 1944, 55 F.

Supp. 993. Neither of these cases supports the claim. In

fact, they are directly against it. It is true the court in the

Gutterman case, at page 288, said:

‘«* * * Tit] considered petitioner’s contentions as

to both sentences in order that he may be fully ad-

vised in relation thereto.’’

The ruling on the point of using habeas corpus in the cir-

cumstances was, however, as follows:

‘* As already stated, petitioner is restrained by rea-

son of two sentences, either of which considered

independently, would not as yet have expired; con-

sequently, if any one of the two sentences is valid,

he would not be entitled to immediate release.’’ [cit-

ing numerous authorities.) 65 F. Supp. 285, 288.

10

This court has held to the principle stated in the quota-

tion, in the following cases:

Ex parte Melendez, 9 Cir., 1938, 98 F.2d 791;

McNealy v. Johnston, 9 Cir., 1938, 100 F.2d 280;

Dunlap v. Swope, 9 Cir., 1939, 103 F.2d 19;

Demaurez v. Squier, 9 Cir., 1941, 121 F.2d 960;

Graham v. Squier, 9 Cir., 1944, 145 F.2d 348;

McDonald v. Johnston, 9 Cir., 1945, 149 F.2d 768;

Oddo v. Swope, 9 Cir., 1951, 193 F.2d 492;

W oollomes v. Heinze, 9 Cir., 1952, 198 F.2d 577.

The Supreme Court of the United States has definitely

settled the question in McNally v. Hill, 1934, 293 U.S. 131,

137, wherein it says:

‘There is no warrant in either the statute or the

writ for its use to invoke judicial determination of

questions which could not affect the lawfulness of

the custody and detention, and no suggestion of such

use has been found in the commentaries on the Eng-

lish common law.’’

The judgment is affirmed.

11

APPENDIX B

Opinion of the United States District Court for the

Northern District of California, Southern Division

(Filed October 22, 1954)

JOHN LEE, Petitioner,

vs.

EDWIN B. SWOPE, Warden, United States Penitentiary,

Aleatraz, California, Respondent.

MEMORANDUM AND ORDER

The petitioner has filed an application for a writ of ha-

beas corpus challenging the legality of a life sentence im-

posed by a United States Court Martial on September 13,

1949, upon conviction of the offense of conspiracy to com-

mit murder. The petition states that the offense was com-

mitted while the petitioner was a prisoner in the custody

of the United States Army at Camp Cooke, California, and

after the petitioner had been dishonorably discharged from

the United States Army.

The return to the order to show cause alleges, the accu-

racy of which petitioner concedes, that petitioner is im-

prisoned in the United States Penitentiary at Alcatraz,

California, under and by virtue of a judgment and sentence

of a General Court Martial approved on the 28th day of

March, 1947, as modified by an order of the Secretary of the

Army on the 16th day of April, 1949, sentencing the prisoner

to a term of twenty years. It was this sentence that the

petitioner was in the process of serving when the offense

was committed at Camp Cooke, California, for which the

life sentence was imposed. The petitioner does not chal-

lenge the validity of the twenty-year sentence, which the

12

records show was imposed for a crime committed by the

petitioner when he was a member of the United States

Army and while stationed in France. The return also shows

that the expiration of the twenty-year judgment and sen-

tence with part good time credit will occur on October 24,

1960.

It is obvious, therefore, that the petitioner is being

detained by the Warden under a valid sentence. In this

situation this Court is clearly without jurisdiction to hear

the petition. It is only necessary to cite a few of the many

cases which support this conclusion.

See: McNally vs. Hill, Warden, 293 U.S. 131; Dunlap vs.

Swope, 9th Cir., 103 F.2d 19; Lopez vs. Swope, 9th Cir.,

205 F.2d 8; and Butterfield vs. Wilkinson, 9th Cir.,

No. 14035, decided July 23, 1954.

The petitioner challenges the jurisdiction of the Army

Court Martial over the offense at Camp Cooke. He contends

he had been dishonorably discharged two years before

the offense was committed and therefore the civil, not the

military courts, had jurisdiction. His challenge to that

sentence is pre-mature, and therefore this Court does not

reach the merits of his petition.

Since this Court is without jurisdiction, it is

Ordered that petitioner’s petition for a writ of habeas

corpus be and the same is hereby dismissed without preju-

dice, and the order to show cause heretofore issued out of

this Court is hereby discharged.

/s/ OLIVER J. CARTER,

United States District Judge

13

APPENDIX C

SWORN STATEMENT

I, Charlie W. Taylor, Jr., R/N 2285 RA 34532295, General

Prisoner, Branch USDB, Camp Cooke, California, after

having the 24th Article of War read to me, and after being

told that it is not necessary for me to answer any questions

that might tend to incriminate me, and that any statement

made by me may be used against me, make the following

statement :

I was to take a shower. So I pulled off all my clothes and

the water was too hot at that time. I heard a door open

and somebody was coming out that wasn’t supposed to be

out. Lee went up and told the Sergeant to let him out—

three guys to clean up—Spasoff, Barnes and Coons. So I

waited for the Sergeant. I was waiting for him to let them

out. The water was too hot. He had to unlock the door to

let them out. They all came out. I saw them with knives and

I thought there was something. So I said, what was this.

I was still upstairs then. I said, ‘‘Sergeant, get these guys

up.’’ And I figured when they looked at me—they said,

‘You started this stuff.’’ I grabbed a chair and throw it

in front of me. When I did this Barnes ran to me and he

tried to stick me that time. He stuck me all right, but when

I was holding him back, the other two guys came and Coons

struck me with an iron pipe. So, when I fell, this guy Spas-

off struck me when I fell. Then Barnes stuck me, then Spas-

off, and they was hitting me too. Coons kept continually

hitting me and Spasoff and this other boy was cutting me.

The sergeant was standing by the gate telling them to break

it up. After they hit me for a while, I said, ‘‘Fellows, give

me a break. This isn’t fair.’’ I was laying down and the

guy Coons hit me on the head and knocked me down. So I

got up and when I went to get up they stuck me four or five

14

times, both Spasoff and Barnes stuck me. The sergeant let

me out and then the Sergeant opened the door and he went

to call for the doctor. I got as far as the door and then I

fell down and then they called the doctor.

They had it planned, but I didn’t know anything about it.

But I heard them talking the night before. I heard some

of the prisoners talking. This new sergeant came up and

he hadn’t been up there on duty in ‘‘I’’ block for a long

time. So when he let them out, I was supposed to clean one

side and Lee the other side. So he let me take a shower. And

the water was hot. I called the sergeant who was upstairs

opening the doors letting the other prisoners out. So I said,

‘‘What about getting me some cold water, sergeant?’’ And

all the time these other guys was coming out, which they

wasn’t supposed to be out. Lee had told the Sergeant to let

these other guys out and they weren’t supposed to be out.

Lee was telling the sergeant to let them out and the Ser-

geant didn’t know they weren’t supposed to be out. I was

standing in my shorts—sitting on the top of the table,

rather. I seen all these guys coming after me. So I said,

‘‘What’s this?’’ Coons said, ‘‘1’m going to fuck you up. You

started all this shit.’’ I was where that big table is. I went

back to the cage and started to get a chair to protect my-

self and I picked up the chair to stall them awhile. I said,

‘‘You guys want to fight, and we’ll fight fair and get it

over with.’’ All of them said, ‘‘No, we are going to fuck

you up.’’ I blocked Barnes. Barnes rushed at me and took

a swap at me with the knife and I blocked him. Coons hit

me with an iron pipe, and Spasoff stuck me in the back

when I stumbled. Then they began to cut and hit and hit-

ting and cutting me at the same time. So I ran towards my

cell. They hit me again. I got sick and wanted to throw up.

Lee was standing hollering—telling them to break it up, the

sergeant was coming. The sergeant was there all the time. I

15

told the sergeant when these guys were coming up, ‘‘ These

guys aren’t supposed to be here.’’ And the sergeant said,

well, he didn’t know and I stood there. That’s when they

started cutting me. Lee told the sergeant to let them out,

but he didn’t do no cutting. But he told the guy to let them

out. After they cut me, he told them to break it up. He told

them to give me a break. And then the sergeant tried to grab

them. So the sergeant went out and finally decided to call

up. When the sergeant went out to call up, they started

again.

This was all because of the rules up there. The rule was

for me and Lee to clean up and not to have any food up

there. But they keep coffee up there from the chow all day

and drink it and mess up the things up there in the block,

spill it all over the floor. And I asked them about it. That’s

what got them mad. ‘‘I am going to pour all this coffee out,”’’

I told them. I didn’t think nothing to it. And that’s why

they messed me up. Everybody is human and I was fighting

everybody fair. I told Barnes this little colored kid up

there, he is very scared. His name is Barney, something

like that. Well, anyway, the other night, he was upstairs

with them. One colored guy was up on the tier with these

four white guys. I got up the other morning and the guys

said all of these guys tried to set his bed on fire and burn

him up. I told the sergeant, ‘‘There’s going to be a race

riot.’’ Like there was going to be the same thing that hap-

pened to me. I told the sergeant, ‘‘ You put this colored guy

downstairs.’’ But for the time being the Major wasn’t here.

The commander of the guard came by. So they moved him

out there. So I told this guy, you tend to your business and

don’t bother the guys. So ever since then the ball has been

rolling. Every night there would be some kind of junk. They

are going to kill somebody, and they have been making

knives there for the last week in their cells. Every night

16

you can hear them sawing. I didn’t think it was for me. I

don’t want to be rattling and tattling, but this place is going

—they are still making knives and everything all over the

place.

Q. In connection with these knives, have you seen any

of those knives?

A. Iseen them that cut me today, I seen them.

Q. You haven’t seen other knives?

A. Ihave seen guys with knives, but that’s another case.

Q. Did you know of any definite information that some-

thing like that would happen to you?

A. Not to me, but I told everybody. I told the sergeant

there was going to be a bad thing. I didn’t know it was me.

I have been waiting to catch Major Raven. This new Major,

he doesn’t even talk. I was going to talk to Major Raven

before somebody gets hurt, but it just happened.

Q. Is there any definite cause for the colored boys and

white boys having difficulty in the block?

A. That was the whole thing. They all wanted to get E.

K. Johnson and Barney and I told them, ‘‘If you guys want

to fight, we will just have it. If you all start the mess, we

are going to call the commander of the guard or we are

going to have a fight and the best man wins, because you

guys have knives.’’ I have been repeating that for about

two or three weeks. So they put it on me.

Q. Do you know anything that would cause this trouble

to lead up as it did?

A. Well, call it racial trouble. Well, you know two or

three colored guys got out a while back. Everybody knows

about that. Well, that’s what I am saying. Everybody got

their nose open. See, I don’t never treat nobody wrong. If

I am supposed to do anything for a guy, I do it, see. I don’t

do no more than that. They are mad at me because I won’t

gives anybody cigarettes or things. I don’t give nobody

17

anything and they got mad at me and I didn’t want to get

in trouble by giving anything like that and that was what

they are mad at me about. I am as surprised as you. I didn’t

know this was going to happen. The other night they told

the boys—the sergeant told the guys take it easy with that

noise.

Q. But you have heard them filing and sawing?

A. Yes.

Q. But that’s the best you can give us on what happened

prior to the incident and during the incident that happened?

I mean, you can’t think of anything that you could add

about these three men jumping on you.

A. I was just thankful and lucky that I didn’t get killed.

Charlie W. Taylor, Jr.

R/N 2285

A True Copy

Albert A. Davis

Ist Lt. JAGC

Subscribed and sworn to before me this ___ day of June,

1949.

Arthur Salinger

Lt. Col., AGD

Summary Court

ie b ‘ans EES PALLY EL AIOE YOO EIEIO EL AO CANE BEN A LP EIU

18

APPENDIX D

‘eet Bibdor RECORD OF COURT COMMITMENT yy 7

PENAL AND CTIA: INSTITUTIONS

py (Oh trmdobrer. UNITED STATES PENITENTIARY October 20, 19%

Record Clerz, 0.°.P- ——"eakeilee (eopy)

Alcatraz, Ca-!:ornia ALCATRAZ, CALIFORNIA

——“[Lentloah

Inst. Name John Lee No. 10lL-aZ

Alias Color Thite Age32 (b-25-2)

True Name John Lee pana melon 4 TOT9-A

Offense

fit Robbery & Assault ¥/D Weapon; #2: Murder COmof6L, & OCHO #72

District™** ARMI - Franos;

#2: USDB—~Camp Cooke, Calif.ABME - ASH 33 402 97%

Sentence*=' 20 Years #2: Life mo pee jet Qeamaant Paid

35 to 20

Sentence changed April 18, 1949 Pd the * ae K Reason therefor,

Zs ee,

May 27, 1946 Sept. 13, 19K6 When arrested

as heldover) ayy

Commitee’ to Vet. Int... C082 9 19K - Mieme Wheeeneted

Sentence begins _ #1 May Z7, 19 #21 Oct. 7h, 1960 Residence

dan.. 27, 1953 Oct. 23,1975

Time in jail before trial

Total good 1859 A

Bod fama 120 otal eet

_ Forfeited good time T-ALL Lie 249

Amount forteited ap one ty Ey

Restoration good time

Amount restored

Expires full term fls May 27, 1966 #2 LIFE

a

Person to be notified in case of

serious illness or death si

ey Name of Institution Location | agi

2 = See Cocke, Loopees —Name ire. Pauline Lee.

Sl ae _ Gabat. | Relation to prisoner vother_

Aires 223 Blaventt “t»

Be ne “ a .

ACTION OF BOARD

7 No. Parole War.

Date ‘app. | Forth. Efe. | ‘Rel. Sa om] |

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DETAINERS FILED

“Date Nature of Detainer c | Notify Whom

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19

APPENDIX E

United States Department of Justice

United States Board of Parole

Washington

October 26, 1955

Mr. Charles Upton Shreve

Attorney and Counselor at Law

716 Ford Building

Detroit 26, Michigan

Re: John Lee

Reg. No. 1014-AZ

Dear Mr. Shreve:

This acknowledges your letter of October 14, 1955, re-

garding the parole status of John Lee who is presently serv-

ing a General Court-Martial sentence on a Life term for

Robbery and Assault with a Deadly Weapon and Murder.

Mr. Lee does not become eligible for parole on his Life

sentence until 1975. Our Board has no jurisdiction to act

until that time. You are probably aware of the fact that his

case is reviewed annually by the Clemency Board in the

Office of the Provost Marshal General, Department of the

Army.

Sincerely yours,

THOMAS O. GROVER,

Parole Executive.

APPENDIX F

Article I, Section 8 (14), Constitution of the United

States :

‘‘The Congress shall have power—To make Rules

for the Government and Regulation of the land and

naval Forces.’’

20

APPENDIX G

Amendment, Article V, Constitution of the United States !

‘‘No person shall be held to answer for a capi

or otherwise infamous crime, unless on a present

ment 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 publie

danger ; nor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb;

nor shall be compelled in any Criminal Case to be a

witness against himself, nor be deprived of life, lib-

erty, or property, without due process of law; nor

shall private property be taken for public use, with

out just compensation.’’

APPENDIX H

Amendment, Article VI, Constitution of the Uni d

States:

‘‘In all criminal prosecutions, the accused sh

enjoy the right to a speedy and public trial, by a

impartial jury of the State and district wherein the

crime shall have been committed, which district sh ]

have been previously ascertained by law, and to be

informed of the nature and cause of the accusation;

to be confronted with the witnesses against him, t

have compulsory process for obtaining Witnesses in

his favor, and to have the Assistance of Counsel for

his defence.’’ /

INDEX

Page

EE > a SU iron dante Naw aawas eR hance 6 Se 1

ne oie WCE ea bh ele bose DRSSEL Reo bee 1

nn ce dae y onl wale ween busines eek oA 2

Ne orig aS oo eS eira as havniw ns peo 2

Sav ae CaS CRGNG a endehes ck dee es ive wenee ke 3

is ge ae ied aww eid eel iie Ua wily ue bes 5

CITATIONS

Cases:

Holloway v. Looney, 207 F. 2d 433, certiorari de-

i Lt oe och ads deh cas een 4

Johnson v. Aderhold, 73 F. 2d 102............... 4

Makan v. Anderson, 266 US. 1.........0ccec000. 4

Mahoney v. Johnston, 144 F. 2d 663, certiorari de-

CN EC ahs aici a kwh wai ebeaNwa.s 4

McIntosh v. Steele, 184 F. 2d 721, certiorari denied,

eee Wet kate ae hs iid dae ds 66 ees 4

meerveme ¥. Mes, BOB US. 1B1. 2... ccc accccesccns 3

Pope v. Huff, 117 F. 2d 779, certiorari denied sub

nom. Pope v. Curran, 314 U.S. 669............ 4

Teramine v. Shuttleworth, 151 F. 2d 602, certiorari

oa che wkuheawnstoee 4

ee ks) ee er ee 4

(1)

_

Inthe Supreme Court of the Wnited States

OctoBEeR TERM, 1955

No. 599

JOHN LEE, PETITIONER

Vv.

E. B. Sworrt, Warden, United States Penitentiary,

Aleatraz, California

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Appeals (Pet. App.

A. 8-10, R. 68-70) is reported at 225 F. 2d 674. The

opinion of the District Court (Pet. App. B. 11-12,

R. 34-36) is not reported.

JURISDICTION

The judgment of the Court of Appeals was en-

tered September 14, 1955 (R. 71). On November

29, 1955, Mr. Justice Douglas extended the time for

filing a petition for a writ of certiorari to January

11, 1956. The petition was filed on December 30,

(1)

2

1955. The jurisdiction of this Court is invoked

under 28 U. 8S. C. 1254(1).

QUESTION PRESENTED

Whether petitioner, who is now serving a sen-

tence by court-martial the validity of which he

does not contest, may, by habeas corpus, chal-

lenge the validity of a second conviction by court-

martial, sentence for which is to commence at the

expiration of the sentence petitioner is now serving.

STATEMENT

Petitioner is now confined in the United States

Penitentiary at Alcatraz under a sentence of

general court-martial, approved March 28, 1947,

as modified by the Secretary of the Army on April

16, 1949, sentencing petitioner to a term of twenty

years (R. 11-21). That sentence with credit for

good time will not expire until October 24, 1960

(R. 10). The validity of that sentence is not con-

tested.

On September 13, 1949, petitioner was convicted

by court-martial of conspiracy to commit murder

on June 10, 1949, while confined under the above

sentence in the army disciplinary barracks at Camp

Cooke, California. On that conviction he was ulti-

mately sentenced to life imprisonment to commence

at the expiration of the twenty-year sentence. (R.

10). Petitioner had been dishonorably discharged

from the army under his first sentence on June 12,

1947 (R. 10).

In October, 1954, petitioner filed in the United

States District Court for the Southern District

DELI OLLIE ON Cet AEs EY 6 BIG ENN PIERS EEE BOE SW, ee ee ts YE

8

of California a petition for a writ of habeas corpus

attacking the validity of his second court-martial

conviction on the ground that, in view of his dis-

honorable discharge, he was not subject to military

jurisdiction at the time of that offense (R. 3-7).

The District Court dismissed the writ as premature

since petitioner was not being held under the sen-

tence which he was attacking (R. 34-36). The or-

der of the District Court was affirmed on appeal

(R. 71).

ARGUMENT

The holding of the courts below that the instant

petition for habeas corpus is premature since peti-

tioner is not being held in custody under the sen-

tence which he is attacking is in accord with the

principles established by this Court in McNally v.

Hill, 293 U. 8. 131, where a writ of habeas corpus

was held unavailable to a prisoner serving an ad-

mittedly valid sentence as a means of attacking a

consecutive sentence on another count which he

had not yet begun to serve. This Court there held

that the writ of habeas corpus may not be used ‘‘as

a means of securing the judicial decision of any

question which, even if determined in the prison-

er’s favor, could not have resulted in his immediate

release.’”’ 293 U.S. at p. 138. Inthe McNally case,

as here, the argument was advanced that the addi-

tional future sentence which was under attack pre-

vented the Parole Board from considering an ap-

plication for parole under the valid sentence. (293

U.S. 134), The Court held that habeas corpus was

4

nevertheless unavailable, stating (293 U. S. at p.

140):

The petitioner asks here only a ruling which

will establish his eligibility for parole, because

of the invalidity of the sentence on the third

count. The ruling souzht is such as might be

obtained in a proceeding brought to mandamus

the Parole Board to entertain his petition for

parole, if the sentence on the third count were

void for want of jurisdiction of the court to

pronounce it. This use of habeas corpus is

unauthorized by the statutes of the United

Siete 4: * *,

This ruling has been consistently followed by the

Courts of Appeals. Holloway v. Looney, 207 F. 2d

433, 434 (C. A. 10) certiorari denied, 346 U. S.

912; McIntosh v. Steele, 184 F. 2d 721, 722 (C. A.8),

certiorari denied, 340 U. S. 921; Teramine v. Shut-

tleworth, 151 F. 2d 602 (C.A. 6), certiorari denied,

397 U. 8. 784; Pope v. Huff, 117 F. 2d 779 (C.A.

D.C.), certiorari denied sub nom. Pope v. Curran,

314 U.S. 669; Mahoney v. Johnston, 144 F. 2d 663,

664 (C. A. 9), certiorari denied, 324 U. S. 853;

Johnson v. Aderhold, 73 F. 2d 102 (C. A. 5).

1 Petitioner’s attack on the jurisdiction of the second court-

martial is without foundation. In Kahn v. Anderson, 255 US.

1, this Court held that a person in the status of petitioner at

the time of the second offense, i.¢., a military prisoner held in

military confinement, could be tried by court-martial even

though he had previously been discharged from the military

service under the first sentence. The Court recognized that

holding in Toth v. Quarles, 350 U.S. 11 at p. 14.

5

CONCLUSION

It is therefore respectfully submitted that the

petition for a writ of certiorari should be denied.

Stmon EK. Sopevorr,

Solicitor General.

Warren Oxtney III,

Assistant Attorney General.

BEATRICE ROSENBERG,

Attorney.

JANUARY, 1956.

t uv. s. covernwent PRINTING OFFICE: tous 372630 e7s