395 U.S. 683 (1969), 830, Noyd v. Bond

Docket Nº:No. 830
Citation:395 U.S. 683, 89 S.Ct. 1876, 23 L.Ed.2d 631
Party Name:Noyd v. Bond
Case Date:June 16, 1969
Court:United States Supreme Court
 
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Page 683

395 U.S. 683 (1969)

89 S.Ct. 1876, 23 L.Ed.2d 631

Noyd

v.

Bond

No. 830

United States Supreme Court

June 16, 1969

Argued April 24, 1969

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Syllabus

Petitioner, an Air Force officer at Cannon Air Force Base, was found guilty by a court-martial of willfully disobeying a lawful order. He was sentenced, inter alia, to a year's confinement at hard labor and immediately ordered confined to his quarters. The convening authority approved the sentence and ordered petitioner confined in the U.S. Disciplinary Barracks at Fort Leavenworth, Kans., pending completion of appellate review. Petitioner (1) appealed on the merits to the military tribunals (where final review is pending) and (2) sought habeas corpus relief from the District Court, arguing that Articles 71(c) and 13 of the Uniform Code of Military Justice required his release pending the outcome of his military appeal. The District Court, overruling the Government's contention that petitioner should be required to exhaust his military remedies before seeking habeas corpus relief from the civilian courts, found petitioner's incarceration at Fort Leavenworth would be invalid under Article 71(c). That court refused to review the legality of petitioner's confinement at Cannon Air Force Base. The Court of Appeals, relying on Gusik v. Schilder, 340 U.S. 128, reversed, and held that the District Court could not grant petitioner relief until he had challenged the validity of his confinement before the military appellate tribunals. Shortly after the Court of Appeals decision, petitioner recognized that his sentence was scheduled to expire and he might be released from custody before this Court had an opportunity to pass on his claims regarding his confinement, and that his case might become moot. The Court of Appeals, on petitioner's request, agreed to stay its mandate, but refused to require petitioner's release from custody at the Cannon Air Force Base. MR. JUSTICE DOUGLAS, following petitioner's application to him during a recess of this Court, ordered that petitioner be placed in "a nonincarcerated status" until the full Court could pass on the matter, and petitioner was released two days before his sentence was to expire. The Government contended that petitioner's case had nevertheless become moot, arguing that MR. JUSTICE DOUGLAS'

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order did not come within the category of a "suspension," which, under Article 57(b), tolls the running of a sentence.

Held:

1. The case is not moot. MR. JUSTICE DOUGLAS' order, even if it did not constitute a "suspension" under Article 57(b), was sufficient to interrupt the running of petitioner's sentence under the rationale of § 97(c) of the Manual for Courts-Martial that a military prisoner who has been freed from confinement may not receive credit for time served during the period of his release. Pp. 688-693.

2. Habeas corpus petitions from military prisoners should not be entertained by civilian courts until all available remedies within the military court system have been exhausted, Gusik v. Schilder, supra, and since this principle applies with equal force to ancillary matter such as the legality of petitioner's confinement pending completion of military review, petitioner's failure to exhaust his remedy in the Court of Military Appeals forecloses the relief requested here. Pp. 693-698.

402 F.2d 441, affirmed.

HARLAN, J., lead opinion

MR. JUSTICE HARLAN delivered the opinion of the Court.

Petitioner is a career officer in the Air Force who has come to believe that this country's participation in the Vietnamese conflict is unjust and immoral. Having decided that he would do nothing to further the Nation's military effort in Southeast Asia, Captain Noyd refused to obey an order, issued December 5, 1967, requiring him

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to teach one of the junior officers at the Cannon Air Force Base, New Mexico, to fly a military airplane.1

In response, Major General Charles Bond, Jr., the Commander of the Twelfth Air Force, convened a general court-martial at the Cannon Base. On March 8, 1968, the court-martial found Noyd guilty of willfully disobeying a lawful order; on the following day, petitioner was sentenced to one year's confinement at hard labor, forfeiture of all pay and allowances, and dismissal from the Air Force. As soon as the court-martial announced its sentence, Captain Noyd was ordered confined to his quarters. The court-martial's judgment was then forwarded to General Bond for the review required by 10 U.S.C. § 864, and, on May 10, 1968, the General approved the sentence, ordering that:

Pending completion of appellate review, the accused will be confined in the United States Disciplinary Barracks, Fort Leavenworth, Kansas.

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At this point, petitioner's attorneys undertook two courses of action. On the one hand, they appealed the merits of petitioner's conviction to the Air Force Board of Review, which is the appellate military tribunal Congress has established to oversee the administration of criminal justice in petitioner's branch of the Armed Forces. On the other hand, they sought habeas corpus relief from the civilian courts, arguing that the Uniform Code of Military Justice required that petitioner be released from confinement pending the outcome of his military appeal.

[89 S.Ct. 1879] At the present time, petitioner's appeal from his conviction is still pending in the higher reaches of the military court system. While the Air Force Board of Review has now affirmed the judgment of the court-martial, the Court of Military Appeals, the highest military tribunal, has agreed to review Captain Noyd's case. Petitioner does not suggest that we may properly interfere with the orderly process of military review by considering the merits of his conviction at this juncture. Rather, we are now only asked to vindicate his asserted right to remain free from confinement while the validity of his conviction is still being litigated in the appellate military courts.

I

Captain Noyd's effort to invoke the assistance of the civilian courts was precipitated by General Bond's order transferring petitioner to the disciplinary barracks at Fort Leavenworth. Shortly after the order was issued, and before it was carried out, petitioner sought a writ of habeas corpus from the United States District Court for the District of New Mexico, arguing that both his confinement at the Cannon Air Force Base and his proposed transfer to Fort Leavenworth were in violation of two provisions of the Uniform Code of Military Justice.

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First, petitioner contended that his confinement constituted an attempt to "execute" his sentence in violation of Article 71(c) of the Code, which provides:

No sentence which includes, unsuspended, a dishonorable or bad-conduct discharge, or confinement for one year or more, may be executed until affirmed by a board of review and, in cases reviewed by it, the Court of Military Appeals.

10 U.S.C. § 871(c). (Emphasis supplied.) Second, petitioner argued that Article 13 of the Code2 only authorized confinement of a convicted serviceman pending his appeal after the military has found that restraint is necessary to prevent the serviceman's flight from the jurisdiction. Since no such finding has been made in this case, petitioner argued that the civilian court should require his complete release.

The Government, in addition to opposing Captain Noyd's claims on the merits, argued that petitioner should be required to exhaust his military remedies before seeking habeas corpus relief from the civilian courts. The District Court, however, refused to apply the exhaustion principle in the present case, finding that the military court system did not provide petitioner with an adequate remedy by which he could test the validity of his confinement, pending appeal, in an expedited manner.

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Turning to the merits, the District Judge granted petitioner part of the relief he requested. While the court refused to review the legality of Noyd's confinement at the Cannon Air Force Base, the court did find that petitioner's incarceration at Fort Leavenworth would constitute an "execution" of his sentence in violation of Article 71(c), and so declared General Bond's order invalid.3

[89 S.Ct. 1880] Both sides appealed to the Court of Appeals for the Tenth Circuit, which reversed the District Court's grant of partial relief. Relying on this Court's decision in Gusik v. Schilder, 340 U.S. 128 (1950), a unanimous panel held that the District Court could not properly grant petitioner any form of relief until he had first challenged...

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