Simcox v. Madigan

• Decision Date: 23 January 1962
• Docket Number: No. 17513.,17513.
• Citation: 298 F.2d 742
• Parties: Roland E. SIMCOX, Petitioner, v. Paul J. MADIGAN, Warden, Federal Penitentiary, Alcatraz, California, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

298 F.2d 742 (1962)

Roland E. SIMCOX, Petitioner, v. Paul J. MADIGAN, Warden, Federal Penitentiary, Alcatraz, California, Respondent.

No. 17513.

United States Court of Appeals Ninth Circuit.

January 23, 1962.

Robert E. Hannon, Castro Valley, Cal., for appellant.

Burke Marshall, Asst. Atty. Gen., Cecil F. Poole, U. S. Atty., San Francisco, Cal., Harold H. Greene, David Rubin, Attorneys, Dept. Justice, Washington, D. C.

Before HAMLIN and DUNIWAY, Circuit Judges, and SOLOMON, District Judge.

HAMLIN, Circuit Judge.

This is an appeal from an order denying a petition for a writ of habeas corpus entered on September 30, 1960, in the United States District Court for the Northern District of California, Southern Division.

The facts are generally undisputed. On February 9, 1952, while appellant was a member of the United States Army in Korea, he was tried by a general court-martial for disobeying orders and for striking a non-commissioned officer in violation of Articles 90 and 91 of the Uniform Code of Military Justice, 10 U.S. C.A. §§ 890 and 891. He was found guilty and sentenced to a dishonorable discharge from the service and to twenty years imprisonment. Subsequently, the term of imprisonment was reduced to ten years.

On February 27, 1953, while in military confinement at Camp Gordon, Georgia, appellant was sentenced to a further term of imprisonment for the capital offense of mutiny, 10 U.S.C.A. § 894. The sentence for this offense was finally fixed at twelve years. On June 15, 1953, and on January 28, 1954, while still in military confinement, appellant received additional sentences by courts-martial for violations of the articles of the Uniform Code of Military Justice.

On or about July 15, 1960, appellant, contending that he had completed serving the sentence imposed by the court-martial in Korea and had commenced serving the twelve-year sentence imposed by the court-martial at Camp Gordon, Georgia, filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of California, Southern Division, wherein he challenged the jurisdiction of the army court-martial which had convicted him at Camp Gordon, Georgia, and the two subsequent courts-martial. The district court issued an order to show cause, respondent filed a return thereto, and appellant filed a traverse. On September 30, 1960, the district court ordered that the petition for a writ of habeas corpus be denied, from which order appellant filed his appeal in this court. We have jurisdiction under the provisions of 28 U.S.C.A. §§ 1291 and 2253.

It is the contention of appellant that, because appellant received a dishonorable discharge in the Korea court-martial proceedings in addition to a sentence of imprisonment, the three subsequent courts-martial had no jurisdiction to try him and to impose further sentences.

Article 2(7) of the Uniform Code of Military Justice, 10 U.S.C.A. § 802(7), provides:

"The following persons are subject to this chapter Uniform Code of Military Justice:

* * * * * *

"(7) Persons in custody of the armed forces serving a sentence imposed by a court-martial."

Appellant contends that either the Congress did not intend to include dishonorably discharged persons in Article 2(7) of the Uniform Code of Military Justice or if it did, the article is unconstitutional when applied to such dishonorably discharged persons.¹

In Kahn v. Anderson, 255 U.S. 1, 41 S. Ct. 224, 65 L.Ed. 469 (1920), the Supreme Court had before it the same contention. In that case the petitioners while undergoing imprisonment in the United States Disciplinary Barracks at Leavenworth under a sentence imposed by courts-martial were placed on trial before a general court-martial and convicted of murdering a fellow prisoner. The petitioners asserted that they did not possess the military status essential to cause them to be subject to the court's jurisdiction and that to be tried by a court-martial would deprive them of the constitutional rights of indictment by a grand jury and jury trial. The Court there said:

"As we have seen, the pleadings disclose that the alleged crimes were charged to have been committed by the accused while they were confined in a United States military prison undergoing punishment inflicted upon them, and upon this it is contended that, either by implications resulting from the length of the sentences previously imposed and which were being suffered, or by assumption that there was a provision in the sentences to that effect, it resulted that the accused, by the convictions and sentences, ceased to be soldiers and were no longer subject to military law. But, as the allegations of the petition and the contention based upon them concede that the petitioners were, at the time of the trial and sentence complained of, military prisoners undergoing punishment for previous sentences, we are of opinion that, even if their discharge as soldiers had resulted from the previous sentences which they were serving, it would be here immaterial, since, as they remained military prisoners, they were for that reason subject to military law and trial by court-martial for offenses committed during such imprisonment. Thus, in dealing with that question, in Carter v. McClaughry, 183 U.S. 365, 383, 22 Sup.Ct. 181, 188, 46 L.Ed. 236, 246 it was said:

"`The accused was proceeded against as an officer of the Army, and jurisdiction attached in respect of him as such, which included not only the power to hear and determine the case, but the power to execute and enforce the sentence of the law. Having been sentenced, his status was that of a military prisoner held by the authority of the United States as an offender against its laws.

"`He was a military prisoner though he had ceased to be a soldier; and for offences committed during his confinement he was liable to trial and punishment by court-martial under the rules and articles of war. RevStat. § 1361.\'

"See, in addition, Act of March 4, 1915, c. 143, 38 Stat. at L. 1084; 2d Article of War, par. `e\'; 16 Ops. Atty.Gen. 292; In re Craig, C.C. 70 Fed. 969; Ex parte Wildman, Fed.Cas.No.17,653a."²

Appellant attempts to escape the holding in Kahn by contending that the authorities cited in Kahn do not sanction court-martial jurisdiction over discharged persons and by contending that the basis or theory of the Kahn case has since been expressly repudiated by the United States Supreme Court. We do not agree.

In Carter v. McClaughry, 183 U.S. 365, 22 S.Ct. 181 (1901), the defendant contended that the court-martial lacked jurisdiction to impose sentence, because he had lost his status as a soldier. The Supreme Court, in language which is set forth above,³ rejected this contention by holding that the termination of the defendant's status as a soldier and the imposition of sentence of the court-martial were contemporaneous events arising out of the crimes for which he was being court-martialed. In view of this holding and because the court-martial was not for crimes committed while the defendant was in military confinement, it was perhaps unnecessary for the Court to go on to say that jurisdiction of courts-martial existed over persons committing crimes while in military confinement. However that may be, it is clear that the Kahn case presented facts and contentions similar to those of appellant herein and that the Court adopted the relevant statement on point which appeared in the Carter case.

In In re Craig, 70 Fed. 969 (D.Kan. 1895), which is cited in Kahn, the facts show that Craig had been tried by a military court-martial for desertion, had been sentenced to a dishonorable discharge, and to confinement at hard labor in Leavenworth. While serving this sentence he assaulted the prison commandant. He was tried by a court-martial for assault with intent to kill and was sentenced to an additional term of ten years. The court said:

"Much stress, however, is laid on the fact that when the offense for which Craig was tried and convicted was committed, he had been discharged from the army, and was no longer subject to military law or discipline. This contention overlooks the fact that the discharge was issued in part execution of a sentence which directed that he should not only be dishonorably discharged, with the forfeiture of all pay and allowances, but that he should also be held and confined at hard labor for a given period in a military prison. A discharge executed under these circumstances and for such a purpose cannot be said to have had the effect of severing his connection with the army, and of freeing him forthwith from all the restraints of military law. The discharge was no doubt operative to deprive him of pay and allowances, but so long as he was held in custody under sentence of a court-martial, for the purpose of enforcing discipline and punishing him for desertion, he remained subject to military law, which prevailed in the prison where he was confined, and subject also to the jurisdiction of a court-martial for all violations of such law committed while he was so held. The views thus expressed are supported by an opinion of Judge Foster, United States district judge for the district of Kansas, in the case of Ex parte Wildman, Fed.Cas. No.17,653a, which was decided in the year 1876; also, by an opinion of Attorney General Devens (16 Op. Attys.Gen. 292), and by an elaborate decision of Judge Sawyer in Re Bogart, Fed.Cas.No.1,596, 2 Sawy. 396."⁴

In Ex parte Wildman, 29 Fed.Cas. p. 1232 No. 17,653a (D.C.Kan.1876), also cited in the Kahn case, the admitted facts show that while Wildman was a private soldier in the military service of the United States he was tried by a general court-martial in 1874 and sentenced to be dishonorably discharged from the service and to be imprisoned for eighteen months in the military prison, which time expired on June 20, 1876. In March, 1875, in pursuance of that sentence he was actually discharged from the service. In August,...