exhaustion of remedies and habeas corpus

EXHAUSTION OF REMEDIES AND HABEAS CORPUS

A Thesis

uresented to

The Judge Advocate General's School, U.S. Army

The opinions and conclusions expressedherein are those of the individual studentauthor and do not necessarily represent theviews of either ihe Judge Advocate General'sSchool, U.S.Army, or any other governmentalacency. References to this study shouldinclude the foregoing statement.

by

Vajor Joe L. ■Woodward, OF105593

April 1969

SCOPE

A study of the civilian and military habeas corpus

cases that examine the requirement that petitioner ex

haust his other remedies as a condition precedent to

the issuance of the writ.

TABLE OF CONTENTS

Page

I. INTRODUCTION 1

II. HISTORICAL DEVELOPMENT 4

A. The Exhaustion Doctrine Created by-

Judicial Decision 4

B. The Exhaustion Doctrine Statutorily

Applied 7

III. EXHAUSTION AND THE MILITARY PETITIONER 10

A. Application of the Exhaustion Doctrine

to Military System 10

B. Exhaustion of Administrative Remedies 14

C. Exhaustion and the Sentenced Prisoner 15

1. Statutory Remedies 15

2. Judicially Created Remedies 20

3. Application of Federal Statutory

Remedies 23

D. Exhaustion and the Military Petitioner

Prior to Trial 27

IV. MANNER OF AND EFFECT OF FAILURE TO

EXHAUST REMEDIES 36

A. Manner of Exhausting Remedies 36

B. Effect of Failure to Exhaust

Remedies 37

V. CONCLUSIONS AND RECOMMENDATIONS 40

VI. TABLE OF CASES AND STATUTES 46

VII. BIBLIOGRAPHY 51

EXHAUSTION OF REMEDIES AND HABEAS COHPUS

I INTRODUCTION

"The tension between proper regard for

habeas corpus, the great writ of lib

erty and the duty of civil courts to

abstain from intervening in matters

constitutionally committed to military

justice inevitably raises questions of

great delicacy and difficulty." - 1

Frankfurter, J.

With the advent of the citizen soldier, and the in

creasing application of civilian standards to the con

duct and treatment of this new character, there has de

veloped a considerable body of law dealing with both his

efforts to avoid military service in general and his

endeavors to extricate himself from the seeming harsh

ness of military discipline once he has become a member

of the military society. The most common method of

achieving either goal is through the application for

habeas corpus filed in the Federal court system. One

limitation on the availability of the writ of habeas

corpus is the so-called exhaustion of remedies doctrine.

Two recent decisions by United States Courts of

Appeals which are diametrically opposed in regards

to the application of this doctrine to military peti

tioners have called to mind once more Justice Frank-

1

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

furter's sage pronouncement. In the case of Noyd y_ A'c-

2namara, the Court of Appeals for the 10th Circuit ap

proved a holding by the district court for New Mexico -

that a military person seeking release by habeas corpus

would have to first submit his claim as a defense in a

trial by court-martial. Certiorari was denied by the

3 .Supreme Court. The Court of Appeals for the Second

Circuit flatly rejected this rule in holding for the

4

petitioner in the case of Hammond v Lenfest.

Exhaustion of remedies, though definitely not jur-

5lsdictional, operates in the nature of a condition pre

cedent to the perfection of the right to habeas corpus.

Therefore, in order to appreciate the concept, one must

be fully aware not only of the history behind the devel

opment of the exhaustion doctrine, but also the nature

and manner of exhausting such administrative or judicial

remedies as may be available to the prospective petition

er within the military scheme.

2

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

3

389 U.S. 1022 (1967)

4

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

5

-Vainwright v Simpson, (5th Cir. 1966) 360 F.2d 307

2

The object of this article will be to inquire into

the establishment of the doctrine of exhaustion or rem

edies and trace its development by comparing the mili

tary and civilian cases that examine the requirement

that petitioners exhaust their other remedies prior to

applying for habeas corpus. Three general categories of

military personnel are of concern in this matter. First,

there is the inductee who has submitted to induction as

required by statute and is testing the legality of that

induction by habeas corpus; secondly there are the person-

nel already in the military who for some reason or another

decide they are entitled to release, but who have neither

been charged with nor tried for a military offense; and

lastly there are the service members who are either facing

charges before or have been tried by court-martial. In

order to narrow the scope of the article the first group

will be omitted in discussing the specific remedies avail

able to the military petitioner and attempting to resolve

the point beyond which he need not go to resolve the matter

6

Military Selective Service Act of 1967 § 10(b)(3)(50 U.3.C. App. 460(b)(3))

7

Generally these are either inductees or enlistees

who have developed some form of conscientious objection

since entering the service.

within military law.

II HISTORICAL DEVELOPMENT

A. The Exhaustion doctrine as applied by

judicial decision

The doctrine of exhaustion of remedies was first an-

Q

nounced in a United States Supreme Court case in 1886.

The original concept was the avoidance of conflict be

tween state and federal judiciary by imposing on appli

cants for habeas corpus the duty to seek all available

methods of relief within the state system through the

orderly course of trial and appellate procedure set up

for the adjudication of criminal cases.

At first the doctrine was applied in its narrowest

terms and made applicable to applications made by all

persons confined pursuant to state authority. At a lat

ter date some courts came to view the doctrine as being

applicable only when the petitioner was in confinement

pursuant to the judgment of a state court. However, as

Professor Aonald Sokol points out in his work on federal

habeas corpus:

"The early cases spoke of a person ex

hausting his remedies if he was held

in custody pursuant to State process.

Subsequently,the Court began to speak

8

Ex parte Royall, 117 U.S. 241 (1886)

in terms of custody pursuant to a state

judgment. This was no doubt true only

because most of the cases involved de

tention as a result of a state judg

ment. There did not appear to be any g

intent to narrow the doctrine. "

It seems clear that the Supreme Court originally was con

cerned primarily with petitioners who were being held

under state indictments and for some time thereafter

the language of the Court's opinions bear that out. For

example in Johnson v Hoy the Court stated:

"Habeas corpus is not ordinarily avail

able to test in advance of trial the

Constitutionality of a statute under

which a prisoner was indicted, but the

orderly course of the trial should be

pursued and the usual remedies ex- ,„

hausted."

The same principle was applied to a federal prisoner be

ing held for trial by a U.S. district court in Jones v

1 ^Pickens, and adhered to as late as 1951 when Justice

Vinson, speaking for the court in Stack v Boyle stated

9

Sokol, A Handbook of Federal Habeas Corpus, the

Richie Company, 1965

10

Ex parte.Royall, 117 U.S. 241 (1886)

11Johnson v Hoy, 227 U.S.245 (1913)

12

ID., at p. 247

13

Jones v Pickens, 245 U.S.390 (1918)

14

342 U.3.1 (1951)

5

"V/hile habeas corpus is an approp

riate remedy for one held in custody in

violation of the Constitution, 28 U.3.C.

(Supp IV) § 2241(c)(3), the DistrictCourt should withhold relief in this

collateral habeas corpus action where

an adequate criminal Proceeding had .

not been exhausted." ^

Thus while it can be seen that the courts have created

a doctrine limiting the availability of habeas corpus,

the exact nature of the doctrine remains to be explained.

Some courts have spoken of it as jurisdictional in nat

ure and declared that in the absence of a showing of ex

haustion of available remedies they are without power to

act on a petition for habeas corpus. Others have de

nominated exhaustion as a condition precedent to habeas

17corpus. The language of the Supreme Court that the

exhaustion provision is "a doctrine that teaches that one

court should defer action on causes properly within its

jurisdiction until the courts of another sovereignty with

concurrent power, and already cognizant of the litigation,

15

3tack v Boyle, 342 U.3.1 (1951)

16

Osborne v Swope, 230 F.2d 395 (9th Cir. 1956)

17

/'cKinney v Finletter, 205 F.2d 761 (10th Cir 1953)

6

1 8have had an opportunity to pass upon the matter"

should leave it unquestioned that the doctrine is "not

one defining power but one which relates to the approp-

19riate exercise of power," Therefore the principle

being one of comity, adherence to it in the face of ob

vious injustice would seen not to be required. The one

best statement of the nature and application of the doc

trine of exhaustion comes out of the Court of Appeals

for the 1st Circuit:

"The rule that administrative relief

must be exhausted did not

originate in the Constitution or in

any statute, but came into being simply

as a point of judicial policy

and the courts do not recognize that it

must always be applied in hidebound on

fashion." Zk)

B. The exhaustion doctrine statutorily applied.

Beyond the limitations placed on the availability

of the writ of habeas corpus prior to exhaustion of

other remedies by judicial decision, there are two addi

tional statutory limitations applying to the doctrine of

18

Darr v Buford, 229 U.S. 200, 204 (1950)

19

Bowen v Johnston, 306 U.S. 19, 27 (1939)

20

Smith v U.S., 199 F.2d 377 (1st Cir 1952)

7

exhaustion of remedies. 1 he first of these is the ex

haustion of state remedies doctrine codified in 28 U.3.C.

§ 2254, The second is the motion to vacate sentence,

codified in 28 U.S.C. § 2255, which applies to federal

prisoners only.

Despite the fact that a person in the military is

in federal "custody," § 2254 is important in that fed

eral courts often analogize their dealings with the -nil-

21itary system to those with a state system. The nature

of the exhaustion of state remedies doctrine can best be

understood by looking at the words of the statute. Sec

tion 2254 provides in pertinent part:

"An application for a writ of habeas

corpus in behalf of a person in custody

pursuant to the judgment of a state court

shall not be granted unless it appears

that the applicant has exhausted the reme

dies available in the Courts of the State,

or that there is either an absence of avail

able State corrective process or the exist

ence of circumstances rendering such proc

ess ineffective to protect the rights of

the prisoner.

An applicant shall not be deemed to have

exhausted the remedies available in the

courts of the state with the meaning of

this section, if he has the right under

the law of the state, to raise by any

available procedure, the question pres- 99

ented."

21


22

28 U.S.C. § 22548

7/hen § 2254 was codified in 1948, one of the Senate amend

ments was that exhaustion should pertain only to state

23judgments. However, the revisor's notes make it

clear that the statute was intended to codify then ex-

24isting law, particularly as expressed in Ex parte

25Hawk, and it is probable that no change in the law

was affected by the amendment. But a good argument can

be made that § 2254 is applicable only when the petition

er is confined pursuant to a state court judgment. If

that be the rule, and if the military system is to be

treated in the same manner as the individual state sys-

26terns, then it is clear that a military petitioner who

is merely facing charges to be tried by court-martial

would not have to exhaust his military remedies prior

27to making application for habeas corpus. Althouoh

23

80th Congress, 3. Kept. 1559, Amendment 47

24

Revisor's Notes to 28 U.S.C. § 2254

25

Ex parte Hawk, 321 U.S. 114 (1944)

26

Burns v A'ilson, 346 U.S. 137 (1953)

27

Since the answer to this question forms the basisfor this article, detailed discussion of the point is considered inappropriate at this point. See Part III.

there is some authority to the contrary, that does

29not seem to be the majority view.

Because military persons confined pursuant to the

sentence of a court-martial are federal prisoners, con-

30sideration of the applicability of § 2255 is of some

concern. In order to determine whether or not section

312255 of the Judicial Code should be applied to mili

tary prisoners it is necessary to resolve the question

32of the exact nature of a military court-martial.

Ill EXHAUSTION AND THE .MILITARY PETITIONED

A. Application of Exhaustion Doctrine to

Military System

"Habeas Corpus to review the action

of another court is in its nature extra

ordinary, and will not be used, if avail

able at all, till other remedies have

been exhausted." ^3

28


29

Noyd v .VcNamara, 378 G.2d 538 (2nd Cir. 1967) cert

denied, 389 U.S. 1022 (1967)

30

28 U.S.C. § 2255

31

Title 28, United States Code

32

See Part IV

33

'Vhelchel v ■'.cDonald, 176 F.2d 260 (5th Cir. 1949)

10

Twenty years ago the Fifth Circuit Court of Appeals

announced the above cited rule in reversing a district

court decision granting habeas corpus to a prisoner con

fined as a result of a court-martial. The United States

34Supreme Court upholding that decision and a similar

holding from the Court of Appeals for the Sixth Circuit 35

promulgated the rule that prevails today regarding fed

eral civil court1s dealings with military prisoners who

are applicants for habeas corpus. Justice Douglas,

speaking for a unanimous court revealed the high Court's

thinking in regard to the military judicial system, say

ing :

"An analogy is the petition for

habeas corpus in the federal court

challenging the jurisdiction of a state

court. If the state procedure provides

a remedy, which though available, has

not been exhausted, the federal courts ^r

will not interfere."

Both of these cases dealt with prisoners who had already

been tried by military courts and were collateral attacks

on the legality of those trials. The Court with these de

cisions was doing no more than placing the military within

34

7/helchel v McDonald, 340 U.S. 122 (1950)

35

Gusik v Schilder, 180 F.2d 662 (6th Cir 1950)

36

Gusik v Schilder, 340 U.S. 128, 131 (1950)

11

the purview of the old commity doctrine of exhaustion of

37remedies which had been codified in 1948.

Since that date the exhaustion doctrine has been

more or less uniformly applied to cases concerning mili

tary prisoners who applied for habeas corpus relief in

the federal court system. However, with the recent in

flux into the armed services of a class of "citizen" sol

dier who often, for either religious beliefs or other

reasons, becomes disenchanted with the military life,

habeas corpus and the military has taken on new dimen

sions. Starting with the proposition that being in the

military is in and of itself sufficient restraint to

38authorize the bringing of habeas corpus action, the

federal courts have steadily eroded the doctrine of ex

haustion until one is required to look with a different

set of glasses at each case, depending upon the status

of the applicant.

Although the military petitioner is under federal

restraint, the manner in which the doctrine of exhaust

ion of remedies is applied to him is certainly quite dif

ferent than that normally applied in cases of federal

37

28 U.S.C. § 2254

38

Wales v Whitney, 114 U.S. 564 (1885)

12

custody. If any doubt existed at the time, the Supreme

39Court in a 1953 decision confirmed its prior reason

ing in Gusik and Whelchel4 that the military system

would be treated much as a state court system in regards

to habeas corpus proceedings. Chief Justice Vinson writ

ing for the majority stated:

"Military law, like state law, is a

jurisprudence which exists separate

and apart from the law which governs 42

our federal judicial establishment."

That this analogy is as viable today as it was when an

nounced is evidenced by the fact that no decision has

43ever challenged this contention and Gusik continues to

be cited as the controlling case in the exhaustion of rem-

44

edies area.

39


40

Gusik v Schilder, 340 U.S. 128 (1950)

41

Whelchel v McDonald, 340 U.S. 122 (1950)

42

Burns v Wilson, 346 U.S. 137, 139 (1953)

43


44

E.G. see Noyd v McNamara, 378 F.2d 705 (10th Cir

1967) and Hammond v Lenfest, 398 F.2d 705 (2nd Cir 1968)

13

B. Exhaustion of Administrative Remedies

In discussing the military petitioner who has en

tered the service either through voluntary enlistment or

who was inducted without objection and now wishes to

challenge the legality of the military1s retention of

custody over him, it is necessary to remember that he

has available to him administrative channels through

which he can seek release. Depending on the nature of

claim the petitioner must request discharge either under

45 45

the provision of AR 635-20, AR 645-120 or AR

47635-200. It is axiomatic that a military petitioner

in the category now under discussion should be required

to exhaust these available remedies prior to seeking re

lease through habeas corpus. Even the 2nd Circuit, which

goes the farthest in allowing an application for habeas

corpus without the petitioner having exhausted all avail-

4ftable military remedies, would agree with this proposition.

45

Army Regulations 635-20, 3 December 1968

46

Army Regulations 635-120, 8 April 1968

47

Army Regulations 635-200, 15 July 1966, as changed.

48

United States ex rel. McKiever v Jack, 351 F.2d672 (2nd Cir 1965)

14

C. Exhaustion and the Sentenced Prisoner

1. Statutory Remedies

As to the military petitioner who is confined pur

suant to the judgment of a court-martial, no question as

to the necessity of exhausting his available remedies

49

exists. This applies equally to remedies that were

in existence at the time of his petition and those which

might have been created afterward but are in existence

50while his case is pending. From the time judgment is

entered in any court-martial a comprehensive system of

remedies immediately became available to the accused.

51The Manual for Courts-Martial and the Uniform Code

52

of Military Justice provide methods for the accused

to call to the attention of the convening authority any

53 . . x. 54errors or injustices occurring at the trial of the

49


50

Id., at p. 132

51

Manual for Courts-Martial, United States. 1969

52

10 U.S.C. §§ 801, et seq.

53

10 U.S.C. § 838

54

Manual for Courts-Martial, United States, 1969

para. 48 j

15

case. These two remedies, though generally unknown to

accused and often neglected by counsel, could if proper

ly employed become very real and effective remedies.

Articles 60 55 and 6456 of the Uniform Code 57 require

the convening authority to review each record of trial

and "approve only such findings of guilty and the sent

ence as such part or amount of the sentence as he finds

correct in law and fact and as he in his discretion de-

termines should be approved." This review could, and

it might reasonably be argued should, perform the same

function in the military system that Section 2255 of the

59Judiciary Act performs in the federal court system.

That is, it gives the sentencing court, here the conven

ing authority in his judicial capacity, 60 the opportunity

55

10 U.S.C. § 860

56

10 U.S.C. § 864

57

Uniform Code of Military Justice, 10 U.S.C. §§ 801et seq.

58

10 U.S.C. § 864

59

28 U.S.C. § 2255

60

10 U.S.C. § 864, United States v Russo, 11 U.S.C.M.A. 352, 29 C.M.R. 168 (1960)

16

to correct any errors in the trial at the time and place

where such correction is most feasible. Because of

the fact that legally qualified counsel have been una

vailable to an accused, an equally sound argument exists

that such remedies at the summary and special court-mar

tial levels would be inadequate or ineffective. This

condition will be greatly alleviated with the passage of

the Military Justice Act of 1968, but even now there

is no requirement for counsel on summary court-martial

cases and no assurance that qualified counsel will always

be appointed in special courts-martial cases and it

would be a harsh rule that would require the exhaustion

of uncertain and unknown remedies. However, in a general

court-martial where the accused is represented by legally

trained counsel and the convening authority must refer

64the record to his staff judge advocate for an opinion,

such remedies should prove effective and would often el

iminate further time consuming review. This of course

61

62

63

64

82

82

ID

10

Stat

Stat

U.S.C

1335

1335

. § 860

17

presumes objectivity on the part of convening author

ities and their staff judge advocates. It is also argu

ably true that there should be no requirement to exhaust

these particular remedies as the above cited reviews are

65required by law and occur automatically without action

by the accused. Presumably, therefore, any errors should

be discovered and corrected without accused or his coun

sel pointing them out.

Formerly appeal and review of summary and special

courts-martial was concluded at the general court-martial

level and except for petition under the provisions of

10 U.S.C. §§ 1552 and 1553 the accused would normally

have exhausted his remedies at this time without having

taken any action. With the enactment of the Military

Justice Act of 1968, however, two new remedies have be-

68come available. Additionally, since there is a high

65

Uniform Code of Military Justice, Arts. 60 and 64

66

This is true only as regards Army courts-martialas the Navy and Air Force have followed a policy of ad-juding bad conduct discharges in special court-martialcases thereby making the provisions of Arts. 66,67 and73 applicable to those cases.

67

10 E.S.C. §§ 1552-1553

68

82 Stat. 1335, §§ 869 and 873

18

degree of probability that the Army will initiate a pol

icy similar to that of the Navy and Air Force in regard

to bad conduct discharges assessed by special courts-mar

tial, the remedies heretofore available only to the ac

cused convicted by general court-martial become appli

cable in that type case.

69In general court-martial cases further resort

may be had to a Court of Military Review, to the

71Court of Military Appeals, to the Secretary of the

72 . , . , 73Army, and petitioning for a new trial. Addition

ally, Article 69 applies in those cases "which have been

finally reviewed, but not reviewed by a Court of Mili

tary Review."

69

And in those special court-martial cases wherein

a bad conduct discharge has been adjudjed.

70

10 U.S.C. § 866

71

10 U.S.C. § 867

72

10 U.S.C. § 874

73

10 U.S.C. § 873

74

10 U.S.C. § 869

19

2. Judicially Created Remedies

In addition to the statutory remedies available to

prisoners confined pursuant to sentence of a court-mar

tial, the Court of Military Appeals has opened judicial

doors by holding that it possesses the powers conferred

75to federal courts under the All Writs Act. in a rec

ent decision the United States Court of Military Appeals

stated:

"[t]his court is not powerless to accordrelief to an accused who has palpably

been denied constitutional rights in any

court-martial; and that an accused who

has been deprived of his rights need not

go outside the military justice system

to find relief in the civilian courts

of the Federal judiciary."

The United States Supreme Court apparently agrees

with the Court of Military Appeals in this regard as in

78U.S. y_ Auqenblick a unanimous court noted:

"An additional remedy, apparently now

available, but not clearly known at the

time of this court-martial conviction is

75

28 U.S.C. § 1651 U.S. v Frischolz, 16 U.S.CM.A.

150, 36 C.M.R. 306 (1966)

76

United States Court of Military Appeals

77

United States v Bevilacqua, 18 U.S.CM.A. 10, 12,

39 C.M.R. 10, 12 (1968)

78

United States v Augenblick, 37 U.S.Law Wk.4081(1969)

20

reviewed by the Court of Military Ap

peals. In U.S.. y_ Bevilacqua. 18 U.S.Ct.M.A. 10, 12, decided November 8, 1968,that court held that it has jurisprudence to 'accord relief to an accused

who has palpably been denied constitu- 79tional rights in a court-martial ...'"

The courts' decision in this case indeed opened up fert

ile grounds to plow, so to speak. Not the least of these

80is, that if the All Writs Act applies to the Court of

Military Appeals, how far down in the military judicial

system do these powers permeate. Assuming arquendo that

the Court's reasoning in U.S. v Frischolz. 81 wherein it

held directly that the Congressional intent was to bring

82the Court of Military Appeals within the purview of

go

the All Writs Act, is correct, then it is equally log

ical to hold that all courts created by the same act of

84

congress are vested with the same powers. And though

79

United States v Augenblick, 37 U.S.Law Wk 4081(1969)

80

28 U.S.C. § 1651

81

16 U.S.CM.A. 150, 36 C.M.R. 306 (1966)

82


83

28 U.S.C. § 1651

et seq.

84

Uniform Code of Military Justice, 10 U.S.C. §§ 801

21

it bogles the brain to accept the thought, the end re

sult of this reasoning would be the application of Sec

tion 1651 to all courts within the Uniform Code 86

right down to the summary court-martial. It cannot be

said that the Court of Military Appeals was unaware of

such results when it began to delve into this question,

for in one of its initial ventures into the field of jud

icial expansion of jurisdiction it felt compelled to com

ment on the complications that might arise from its de-. . 87

cision. It is not inconceivable that the Court will

soon have occasion to pass on its own judgment, since

the Military Justice Act of 1968 68 provides for the ap

pointment of military judges to lower level courts 89

and it is not improbable that such a judge might elect

to exercise his judicial prerogatives. Furthermore, it

cannot be said that Congress did not intend such a result

85

28 U.3.C. § 1651

86

Uniform Code of Military Justice, 10 U.S.C. §§ 801" v s e c] ■

81

27 C.M.R^TU^)-3- V88

82 Stats. 1335

89

Id., Sec. 816

22

as one of the stated purposes of the 1968 Act 90 was to

91conform military practice to that of civilian courts.

Had Congress chosen to abolish the summary court alto

gether and make the appointment of military judges to

special courts-martial mandatory, a much stronger argu

ment along these lines could be made. But the fact that

Congress didn*t take such action could as well be taken

to show recognition of service exigencies as to refute

the intention to place such sweeping powers in the hands

of an inferior court.

3. Application of Federal Statutory

Remedies

In 1937, Congress disturbed over the unreasonable

number of habeas corpus applications being filed in dist

rict courts wherein a federal penitentiary was located

92 Q3enacted Section 2255 of Title 28. Section 2255

provides that any prisoner in custody under sentence "of

90

Military Justice Act of 1968, 82 Stat. 1335

91

90th Congress, S. Rept. 1601

92

28 U.S.C. § 2255

93

Id.

23

94a court established by Act of Congress" may move the

court which imposed the sentence to vacate, set aside or

correct the sentence. The act further provides that:

"[a]n application for a writ of habeascorpus in behalf of a prisoner who is

authorized to apply for relief by motion

pursuant to this section, shall not be

entertained if it appears that the ap

plicant has failed to apply for relief

by motion to the court which sentenced

him " yD

No court has ever refused a military applicant for habeas

corpus relief on the grounds that he failed to comply

96with the provisions of Section 2255, nor even sug

gested that such a motion to vacate was appropriate. In

fact the Court of Appeals for the 10th Circuit stated

that a motion to vacate sentence was not proper where the

97prisoner was sentenced by Court-martial. However, no

reason was advanced as to why such a motion would not be

98proper. From the fact that Section 2255 was mentioned

at all it can be concluded that the government must have

94

28 U.S.C. § 2255

95

28 U.S.C. § 2255

96

28 U.S.C. § 2255

97

Palomera v Taylor, 344 F.2d 937 (10th Cir. 1965),cert denied 382 U.S. 946

98

28 U.S.C. § 2255

24

raised it as a failure to exhaust remedies but no other

military case has been discovered involving this propo

sition. In Burchfield v Hiatt. Fuqate v Hiatt 10°

and parker v Hiatt, the government contended that 28

U.S.C. § 2255 and Article 53 of the Articles of War, 102

which gave the Judge Advocate General discretion to grant

new trials in certain court-martial cases, were the same

and the petitioners in those cases would have to exhaust

1 no

their remedies under Article 53 in order for habeas

corpus to lie. The district judge in each case held Art-

104 105icle 53 and section 2255 not to be the same and

granted the petitions. All three cases were reversed by

the Fifth Circuit Court of Appeals on the bases of their

holding in Whelchel v McDonald, that exhaustion of the

107remedy provided by Article 53 was a necessary precedent

99

86 F.Supp. 18 (ND.Ga. 1949)

100

86 F.Supp.22 (ND Ga. 1949)

101

86 F.Supp. 27 (ND Ga. 1949)

102

62 Stat. 639

103

Id.

104

62 Stat. 639

104

28 U.S.C. § 2255

106

176 F.2d 260(5th Cir.1949), affirmed 340 U.S.122(1950)107

62 Stat. 6392.0

to the filing for habeas corpus.

Without more it would therefore appear that Section

1082255 is inapplicable to military prisoners. But a

careful examination reveals that the provision speaks of

the same"court established by Act of Congress" 109 re

ferred to in the All Writs Act. U0 Ergo, if the All

Writs Act applies to military courts then, too,

113so should Section 2255. Herein substantially more

difficulty lies, for Section 2255 provides that the

motion may be made at any time, and unless in applying

115Section 2255 to the military prisoner the sentencing

court is interpreted to be the convening authority or

108

28 U.S.C. § 2255

109

Id.

110

28 U.S.C. § 1651

111

Id.

112

U.S. v Frischolz, 16 U.S.CM. 150, 36 C.M.R. 306(1966)

113

28 U.S.C. § 2255

114

Id.

115

28 U.S.C. § 2255

26

his successor in command such application would be virtu

ally impossible. Also, since once a convening authority

takes action on a case and forwards it, it is out of his

hands and further action on his part is precluded.

D. EXHAUSTION AND THE MILITARY PETITIONER

PRIOR TO TRIAL

If the law regarding exhaustion of remedies subse

quent to the judgment of a court-martial is well set-

117tied, the law concerning how far a petitioner, either

not facing charges at all or under charges pending trial

by court-martial, must go prior to trial in exhausting

available remedies is equally unsettled. Substantially

this boils down to a question of whether or not a mil

itary applicant seeking release by habeas corpus has ex

hausted his military remedies if he has not submitted his

claim for release as a defense in a trial by court-mar

tial. This problem has only recently come to the fore

and it wasn't until the division of authority between the

Tenth and Second Circuits

given serious consideration.

118Tenth and Second Circuits that the problem has been

11610 U.S.C. § 86b a_

117


118Compare Noyd v McNamara, 378 F.2d 538(l0th Cir.

1967) and Hammond v Lenfest, 398 F.2d 705 (2nd Cir.1968)

27

An early case dealing indirectly on the matter was

11 Qdecided by the Ninth Circuit 7 in 1951. In that case

an inductee, who after having correctly protested his

draft classification, reported for induction, went to

camp, wore the uniform and received pay. He then went

absent without leave. He was later apprehended, tried

and convicted of desertion. There is no evidence that

he interposed his claim of illegal induction as a defense

at the court-martial. On review the case was reversed

and a rehearing ordered. While the proceedings were in

this stage, he petitioned for habeas corpus. The Court

of Appeals in overruling the trial judge's dismissal of

the petition stated that the petitioner's actions in re

porting for induction were no more than were necessary

120to exhaust his administrative remedies. The court

apparently gave no consideration to the fact that the

petitioner was currently pending trial by court-martial

and could have asserted the issue of wrongful induction

as a defense to the charge of desertion, or to challenge

the jurisdiction of the court-martial. Six years later

a district court within the same circuit reached the

119

Cox v Wedemeyer, 192 F.2d 920 (9th Cir. 1951)

120

ID, p. 924

28

opposite conclusion in holding:

"Insofar as petitioner may be under any

restraint of threatened military re

straint arising out of the applicability

of any provision of the Uniform Code of

Military Justice, 50 U.S.C.A. § 551 et

seq., to him, the military judicial rem

edies in any resulting courts-martial

proceedings are adequate and available,

and the petition herein, upon that ground,

fails to state a claim for relief becausepetitioner has failed to exhaust those

remedies."

Although petitioner appealed the dismissal of the peti

tion the Court of Appeals avoided the issue by holding

the question moot as the petitioner had in the interim

1 00received and had executed a bad conduct discharge.

Shortly thereafter the Court of Appeals again was called

upon for a ruling on exhaustion in a military case.

This time the court switched positions. In affirming the

district court's dismissal of the petition for failure to

exhaust military remedies the Court held:

"Although very interesting questions lurk

here, we conclude that the doctrine of

exhaustion of remedies is implied in the

trial court's judgment dismissing the

121

Petitioner of Green, 156 F.Supp 174, 181 (S.D.Cal. 1957)

122

264 F.2d 63 (9th Cir. 1957)

123

Hooper v Hartman, 274 F.2d 429 (9th Cir. 1959)

29

proceedings and such a holding is cor-

rect."

125*n Brown v McNamara the district court, in a

case of claimed conscientious objection which arose two

weeks after a voluntary enlistment, declared that the

judiciary should not interfere with the internal affairs

of the military unless exceptional circumstances exist.

In a footnote to its affirmance of the dismissal of the

habeas corpus petition the Court of Appeals for the Third

Circuit noted the following:

Claimed "conscientious objector" status

can always be raised as a defense to a

prosecution for refusing to obey orders.

From any judgment or sentence comprehens

ive appeal is available. 10 U3C § 817,

859-876. This involves resort to a board

of review (10 U.S.C. § 866) to the Courtof Military Appeals (10 U.S.C. § 867),to the Secretary of the Army (10 U.S.C.§ 874), and petition for a new trial(10 U.S.C. § 873). Apellant has notpursued all these available remedies.

On this record we are unwilling to ex

pand the principle of Dumbroski v

Pfister, 380 U.S. 479, 85 S.Ct. T116,14 LEd.2d 22 (1965), in order to assurefor appellant determination of constitu

tional issues without exposing him to

court-martial proceedings.

124

Hooper v Hartman, 274 F.2d 429 (9th Cir. 1959)

125

263 F. Supp. 686 (D.C.N.J. 1967)

126

Brown v McNamara, 263 F.Supp 686 (D.C.N.J. 1967)

127

Note 5, Brown v McNamara, 387 F.2d 150 (3rd Cir L967)

30

That dicta seems to place the Court of Appeals for the

Third Circuit in direct accord with the Tenth, whose

language in upholding the district court's dismissal of

a petition in Noyd v_ Me Namara was the initial decis

ion to directly hold that a person in the military would

have to subject himself to trial by court-martial in ord

er to exhaust his military remedies as a necessary pre-

129cedent to availability of a writ of habeas corpus.

However, the Tenth Circuit had much earlier rendered a

decision which foretold this result. In Gorko \/ Command-

130ing Officer, where the petitioner's conviction for

murder had been reversed by the Court of Military Appeals,

the Court in dismissing a petition alleging double jeop

ardy held he had not exhausted his military remedies,

saying:

"Exhaustion of all available military rem

edies is required before reliance may be

had on habeas corpus. The Uniform Code of

Military Justice provides that no person,

without his consent, may be tried a second

time for the second offense. The adequacy

and availability of the military remedy is

not questioned. Consideration of the ques

tion by the courts is, accordingly, prem-

ature."

128Noyd v McNamara, 267 F.Supp 701 (DC.D.Col.1967)

129

378 F.2d 538 (10th Cir. 1967)

130314 F.2d 858 (10th Cir. 1963)

131

ID. at p. 860

31

The Court of Appeals for the Fifth Circuit, althougi agree-

132ing with Hammond on the theory of exhaustion, i.e.

that it is not limitation on the exercise of jurisdic

tion but is a matter of comity, takes a position very

similar to that of the Third and Tenth Circuits as to

whether or not submission to trial by court-martial would

be necessary to exhaust remedies. In a per curiam opin

ion the Court of Appeals stated:

"'The military courts, like the State

courts, have the same responsibilities as

do the federal courts to protect a person

from a violation of his constitutional

rights.1 cf. Burns v Wilson, supra. We

are unwilling to presume in this case that

the military courts will not fully and

fairly consider the claims by the peti

tioner of the violation of his constitu

tional rights and of failure of the Army -,03

to abide by its own regulations."

The opposite view is of course the one presented by

the Second Circuit in Hammond v Lenfest. The Court in

135flatly rejecting the Noyd rule, said:

"To the extent that Noyd might suggest

that a court-martial is a prerequisite for

Federal court review of a claim that the

132

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

133

In re Kelley, 401 F.2d 211 (5th Cir. 1968)

134

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

135

378 F.2d 538 (10th Cir. 1967)

32

petitioner, at the time of the bringing of

the suit, is not lawfully in the armed .-.

forces, we reject its reasoning."

137^n Crane v Hedrick the United States District Court

for the Northern District of California agreed with this

138line of reasoning. In Crane the Government relied

139on Noyd as the basis for a motion to dismiss the pe-

140tition. Explaining Noyd as standing for no more than

"the sensible and settled proposition that courts do not

141intervene in military affairs," the court concluded:

"If respondent's contention were to pre

vail, the only way one in petitioner's

position could raise his Constitutional

claims of wrongful detention would be by

first committing a crime and facing the

possibility of imprisonment. Neither

Congress nor the majority of the federal

136

398 F.2d 705 (2nd Cir. 1968)

137Crane v Hedrick, 284 F.Supp 250 (N.D.Cal. 1968)

138

Id.

139378 F.2d 538 (10th Cir. 1967)

140

ID.

141

284 F.Supp 250, 252

33

courts has been willing to exact that

price of persons seeking such relief."

A close examination of the cases to this point would

reveal that all the petitioners in the cases holding

that submission of the claim as a defense at a trial by

court-martial was necessary to exhaust remedies were at

the time of the bringing of the petition facing charges

before a military court. On the other hand the peti-

143tioners in cases following the Hammond reasoning,

144with the exception of Cox, were not currently facing

charges or impending courts-martial. Therefore one

145could agree with Judge Friendly*s dissent in Hammond

wherein he concluded:

"My brothers seem to concede, as I think

Supreme Court decisions compel, that if

a court-martial had been convened, habeas

corpus would not be until military reme-

dies had been exhausted."

147

However in the cases of Mankiewicz v_ Ray and Cooper

142

284 F.Supp. 250, 253

143

398 F.2d 705

144


145


146

ID. at p.

147

United States ex rel Mankiewicz v Ray, 399 F.2d

900 (2nd Cir. 1968)

34

1481 Barker the Second Circuit and the United States

District Court, for Maryland, took under consideration

applications for habeas corpus where the petitioners

were at the time facing trial by courts-martial already

149convened. In Mankiewicz the district court had de-

150nied the petition prior to the Hammond decision. The

Court of Appeals reversing the district court's order,

merely returned the case for reconsideration by the Navy

Department, of petitioner's conscientious objector claim

151under newly promulgated directives. Judge Friendly

concurred in the handling of the case but again stated

152his objections to extending Hammond to a case wherein

1 S^a court-martial had already been convened. The Mary

land district court, however, went even farther in granting

148

Cooper v Barker, 291 F.Supp. 952 (D.M. 1968)

149

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

150


151

Department of Defense Directive No. 1300.6, June

10, 1968

152


153

Cooper v Barker, 291 F.Supp. 952 (D.Md. 1968)

35

petitioner's application for habeas corpus. The court

stated that the requirement of exhaustion of remedies

was applicable only to administrative remedies and held

that since the Navy was obviously withholding action on

the administrative proceedings pending the results of a

court-martial that petitioner had not failed to exhaust

154his remedies as the Navy refused to permit him to do so.

IV MANNER OF AND EFFECT OF FAILURE TO

EXHAUST REMEDIES

A. Manner of Exhausting Remedies

Generally speaking military personnel seeking to

exhaust an administrative or judicial remedy are required

to take some affirmative action such as submitting an ap-

155plication for discharge or petitioning the Court of

Military Appeals for review of their court-martial.

Since each statute or regulation that creates such a rem

edy normally sets out the procedure for obtaining relief

thereunder, and methods of appeal from adverse findings,

it would be futile to attempt a synthesis of the vary

ing rules in an article such as this. Suffice it to say,

154

Cooper v Barker, 291 F.Supp. 952 (D.Md. 1968)

155

E.G. Army Regulations, 635-120, 8 April 1968

156

10 U.S.C. § 867

36

that one should look closely at every regulation or stat

ute under which he is seeking action to make sure he has

complied with its mandates prior to looking to outside

judicial agencies for relief.

B. Effect of Failure to Exhaust Remedies

Failure on the part of an applicant to exhaust

either his administrative or judicial remedies prior to

petitioning for habeas corpus can have consequences

which range from requiring proceedings to be stayed pend-

157ing exhaustion to a complete foreclosure to the right

158to habeas corpus. Generally the former situation

arises where the petitioner prematurely brings his ac

tion during the pendency of other administrative or jud-

159icial proceedings in the military system. it was

generally thought that when a petitioner had deliberately

bypassed an available remedy he was thereafter precluded

from substituting habeas corpus proceedings. And

should the time within which the bypassed remedy could

157


158Nash v United States, 342 F.2d 366 (5th Cir.1965)

159Cooper v Barker, 291 F.Supp. 952 (D.Md. 1968)

160

Larson v United States, 275 F.2d 673 (5th Cir.I960)', cert, denied 363 U.S. 849

37

have been exercised expired, then the petitioner would be

161permanently foreclosed from habeas corpus. However,

the United States Supreme Court in Fay v^ Noia held

that situations exist where a petitioner might not waive

his rights to future habeas corpus proceedings by fail-

1 (IT

ing to seek available appellate remedy. In Fay the

petitioner had not appealed a felony murder conviction

because of fear of a death sentence on retrial and the

Court held this not to constitute waiver. In addition

164Fay represents a direct holding that "§ 2254 is lim

ited in its application to failure to exhaust state rem

edies still open to the habeas corpus applicant at the

time he files his application in the federal court."

The Court of Appeals for the Fifth Circuit applied Fay

to dispose of a Government contention that failure to

161

Osborn v Swope, 230 F.2d 395 (9th Cir. 1956)

162

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

163

372 U.S. 391 (1963)

164

372 U.S. 391 (1963)

165

372 U.S. 391 (1963) at p. 435

166

372 U.S. 391 (1963)

38

exhaust remedies under articles 67 and 73 of the

Uniform Code of Military Justice by a military habeas

corpus petitioner precluded the federal district court

from granting relief. The court stated:

The relief available under Article 67

must be sought within 30 days from the

time of the decision of a board of re

view, and that under article 73 within

one year after approval by the convening

authority of an approval of a court-mar

tial sentence. Inasmuch as these reme

dies are no longer available to appel

lant it appears that under Fay v_ Noia

prior failure to seek military review

is no longer necessarily a bar to habeas uq

corpus relief otherwise available,"

These holdings leave "up in the air" the question of

whether or not a petitioner who has bypassed available

remedies will be forced to live with that decision for

evermore, as neither expressly overruled prior decisions

to that effect. It appears that the test for waiver set

167

10 U.S.C. § 867

168

10 U.S.C. § 873

169

10 U.S.C. § 801, et seq.

170

Williams v Heritage, 323 F.2d 731 (5th Cir. 1963)

39

171out in Johnson v_ Zerbst, that to constitute a waiver

you must have "an intentional relinquishment of abandon-

172ment of a known right or privilege" will continue to

govern in the exhaustion area. Fortunately the most

frequent action occurs when a premature application is

dismissed, leaving the petitioner with his normal methods

of exhaustion.

V CONCLUSION AND RECOMMENDATIONS

Where the law concerning habeas corpus and the mil

itary is concerned it must be remembered that there are

173several "neighboring but distant domains."

Habeas corpus is an extraordinary remedy and thus

should be reserved for instances where other types of re

lief are not generally available. Hence, the Supreme

Court recently stated that habeas corpus would not lie

in a case where the petitioner's application for habeas

174corpus was filed prior to his actual induction,

171

304 U.S. 458 (1938)

172

Johnson v Zerbst, 304 U.S. 458, at p. 464 (1958)

173

Caputo v Sharp, 282 F.Supp 362 (ED. Pa. 1968)

174

Clark v Gabriel, 36 U.S. Law Wk. 3443 (1968)

40

upholding the validity of the Military Selective Service

175Act of 1967 which prohibits the judicial review of

a local draft Board*s classification of a registrant,

"except as a defense to a criminal prosecution insti

tuted after the registrant has responded either affirma

tively or negatively to an order to report for induc

tion...." Therefore it can be seen that the law con

cerning preinduction proceedings is quite distinct from

the involved in post-induction cases although the two are

closely related.

A second distinct situation limiting the availabil

ity of habeas corpus relief exists where the relator has

been convicted by a court-martial. Here the analogy is

made to the law governing collateral attack in federal

177court of state court convictions. In this situation

a petitioner must first exhaust his remedies under the

1 ~7P>Uniform Code of Military Justice. The nature of such

remedies including those added by the Military Justice

175

50 U.S.C. App. § 460(b)(3)

176

Sec. 10(b)(3) Military Selective Service Act of1967, 50 U.S.C. App. § 460(b)(3)

177


178

10 U.S.C. § 860, et seq.

41

169Act of 1968 was discussed extensively in part III .

Whether or not these remedies will be expanded to in-

1 ROelude 28 U.3.C. § 2255 is open to argument. It is

contended here that Section 2255 of Title 28 by re

ferring to courts created by an "Act of Congress" bring

courts-martial into its purview just as surely as Sec-

tion 1651 confers upon the Court of Military Appeals

powers under its provisions by using the identical lang

uage. However, it must be recognized that such a remedy

would be generally ineffectual under the language of the

statute because of the transitory nature of courts-mar

tial, unless by "court" you refer to the officer conven

ing courts within a particular jurisdiction. Therefore

it is safe to assume that failure to exhaust, or comply,

1 ft "3with Section 2255 will never operate to deprive a

petitioner convicted by court-martial of the right to

habeas corpus.

179

82 Stat. 1332

180

28 U.S.C. § 2255

181

Id.

182

28 U.S.C. § 1651

183

28 U.S.C. § 2255

42

Reaching a conclusion on the question of whether

or not exhaustion of remedies requires an applicant to

present his claim as a defense in a trial by court-mar

tial is a task far more fraught with danger and diffi

culty. It would be a harsh rule that would require an

applicant to either break the law prior to induction in

order to have his claim heard or submit to induction and

then break the law to perfect his right to habeas corpus.

That would in fact be the result of presentation of a

claim to release as a defense to court-martial charges

is required, for there is no other manner of presenting

such a claim to a military court. It is doubtful if Cong^

ress was possessed of any such intent when it enacted the

184Military Selective Act of 1967. No court, not even

those which purport to establish this rule, has gone that

far, even though once military law has been broken they

would apply this rule as an absolute. Certainly those

who have submitted to induction, and exhausted their ad

ministrative remedies for relief stand in much better

stead than those who have taken the law into their own

hands.

184

Military Selective Service Act of 1967, Sec.

10(b)(3)(50 U.S.C. App. § 460(b)(3)

43

Explaining away Cox v_ Wedemeyer and Cooper v_

1 RA

Barker as decisions proving the old adage that "hard

cases make bad law," a good workable rule that could be

drawn from the cited cases would be to permit those peti

tioners who had not committed an offense while in a mili

tary status to litigate the legality of their detention

after having exhausted their administrative remedies

only. While those petitioners who had committed an of

fense would be required to submit a claim of illegal de

tention as a defense in a court-martial proceeding. This

would eliminate Judge Friendly*s feared "race to the

1 R7courthouse."

At the same time petitioners would be required to

give timely notice of their claims for relief and mili

tary authorities to exercise discretion in their treat

ment of persons claiming a right to release. In view of

the foregoing that the armed forces should establish, by

regulation, procedures setting up a system for presenting

a claim for release. For those persons who had not

185


186

Cooper v Barker, 291 F.Supp. 952 (D. Md. 1968)

187

Hammond v Lenfest, 398 F.2d 705 at p. 717 (2ndCir. 1968)

44

violated any military law, expedition of military admin

istrative procedures and a corresponding relief from all

but routine duties would be initiated. The claim could

then be presented in a petition for habeas corpus out

side the military system. For those who had violated

military law the swift institution of charges and court-

martial proceedings would insure a fair and impartial de

termination within the military with complete constitu

tional consideration. To insure that the federal civil

courts give due consideration to the military system,

any case falling within this latter category should be

pursued to the highest court necessary to get a determin

ative holding.

TABLE OF CASES AND STATUTES

Pages

United States Supreme Court

Augenblick v. United States, 37 U.S.Law Wk. ltO8l

(1969) 20, 21

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

(1939) 7

Burns v. Wilson, 346 U.S. 137

(1953) 1, 8, 9, 13, 38

Clark v. Gaberial, 36 U.S. Law Wk.

(1969 ) 38

Darr v. Buford, 229 U.S. 200

(1950) 7

Ex Parte Hawk, 321 U.S. 114

(1944) 9

Ex Parte Royall, 117 U.S. 241

(1886) 4, 5

Fay v. Noia, 372 U.S. 391

(1963) 38

Gusik v. Schilder, 340 U.S. 128

(1950) 11,13, 15, 27, 36

Johnson v. Hoy, 227 U.S. 245

(1913) 5

Johnson v. Zerbst, 304 U.S. 458

(1938) 40

Jones v. Pickens, 245 U.S. 390

(1918) 5

Larson, v. United States, 363 U.S, 849

(I960) 37

46

Pages

Noyd v. McNamara, 389 U.S. 1022

(1967) 10

Palomera v. Taylor, 382 U.S. 946

(1965) 24

Stack v. Boyle, 342 U.S. 1

(1951) 5, 6

Whelchel v. McDonald, 340 u.S. 122

(1950) 11, 13

United States Courts of Appeals

Brown v. McNamara, 387 F.2d 150 (3rd Cir.1967) 30

Cox v. Wedemeyer, 192 F.2d 920 (9th Cir.1951) 41, 34, 41

Gorko v. Commanding Officer, 314 F.2d 858

(10th Cir. 1963) 31

Gusik v. Schilder, 180 F.2d 662 (6th Cir.1950) 11

Hammond v. Lenfest, 398 F.2d 705 (2nd Cir.

1968) 2, 10, 13,15, 27, 32, 33, 34, 35, 41

Hooper v. Hartman, 274 F.2d 429 (10th Cir.1957) 32

In re Kelly, 401 F.2d 211 (5th Cir.

1968) 32

Larson v. United States, 275 F.2d 673 (5th Cir.1960) # 37

McKinney v. Finletter, 205 F.2d 761 (10th Cir.1953) 6

Nash v. United States, 342 F.2d 366 (5th Cir.

1965) 36

47

Pages

Noyd v. McNamara, 378 F.2d 538 (10th Cir.1967) 2, 10, 13

15, 27, 32, 33, 34, 35, 41

Osborn v. Swope, 230 F.2d 395 (9th Cir.

1956) 6, 39

Palomera v. Taylor, 344 F.2d 937 (10th Cir.

1965) 24

Petition of Green, 264 F.2d 63 (9th Cir.

1957) 7 29

Smith v. United States, 199 F,2d 377 (1st Cir.1952) 7

United States ex. rel.Mankiewicz v. Ray, 399 F.2d

900 (2nd Cir. 1968) 34, 35

United States ex. rel. McKiever v. Jack, 351

F.2d 672 (2nd Cir. 1965) 14

Wainwright v. Simpson, 360 F.2d 307 (5th Cir.

1966) 2

Welchel v. McDonald, 176 F.2d 260 (5th Cir.

1949) 10, 25

Williams v. Heritage, 323 F.2d 731 (5th Cir.1963) 39

United States District Court

Brown v. McNamara, 263 F.Supp. 686 (D.C.N.J.

1949) 30

Burchfield v. Hiatt, 86 F.Supp. 18 (N.D.Ga.

1949) 25

Caputo v. Sharp, 282 F.Supp. 362 (E.D. Pa.

1968) 37

Cooper v. Barker, 291 F. Supp. 952 (D. Md.

1968) 35, 36, 37, 41

48

Pages

Crane v. Hedrick, 284 F.Supp. 250 (N.D.Cal.1968) 33, 34

Fugate v. Hiatt, 86 F.Supp. 22 (N.D.Ga.

1949) 25

Noyd V. McNamara, 267 F.Supp. 701 (D.C.Cal.

1967) 31

Parker v, Hiatt, 86 F.Supp, 27 (N.D.Ga.1949) 25

Petition of Green, 156 S.Supp. 174 (S.D.Cal.

1957) 29


United States v. Bevilacqua, 18 U.S. C.M.A. 10

39 C.M.R. 10 Q968) 20

United States v. Frischolz, 16 U.S.CM.A. 150,

36 C.M.R. 306 (1966) 20, 21,26

United States v. Tavares, 10 U.S.CM.A. 282,

27 C.M.R. 356 (1959) 22

Federal Statutes

10 U.S.C §§ 801, et. seq. (1950)

10 U.S.C § 838 (1950)

10 U.S.C. § 860 (1950)

10 U.S.C § 865 (1950)

10 U.S.C § 865 (1950)

10 U.S.C § 1552 (1962)

10 U.S.C § 1553 (1962)

49

28 U.S.C. § 1651 (1948)

28 U.S.C. § 2241 (1948)

28 U.S.C. § 2254 (1966)

28 U.S.C. § 2255 (1948)

50 U.S.C. Appdx. § 460(b)(3)(1967)

62 Stats. 639 (1948)

82 Stat. § 1332 (1968)

Regulations

Department of Defense Directive 1300.6, June 10, 1968

Army Regulations 635-20, 3 December 1968

Army Regulations 635-120, 8 April 1968

Army Regulations 635-200, 15 July 1966, as changed

50

BIBLIOGRAPHY

Pages

Sokol, Ronald, A Handbook of Federal Habeas

Corpus, The Michie Company, 1965......

51

exhaustion of remedies and habeas corpus

Documents