478 F.2d 772 (3rd Cir. 1973), 71-1917, Levy v. Parker

Docket Nº:71-1917.
Citation:478 F.2d 772
Party Name:Howard B. LEVY, Appellant, v. Jacob J. PARKER, as Warden of the United States Penitentiary, Lewisburg, Pennsylvania, and Stanley R. Resor, as Secretary of the Army.
Case Date:April 18, 1973
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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478 F.2d 772 (3rd Cir. 1973)

Howard B. LEVY, Appellant,

v.

Jacob J. PARKER, as Warden of the United States Penitentiary, Lewisburg, Pennsylvania, and Stanley R. Resor, as Secretary of the Army.

No. 71-1917.

United States Court of Appeals, Third Circuit.

April 18, 1973

Argued Dec. 12, 1972.

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Charles Morgan, Jr., Norman Siegel, Morris Brown, Emily Carssow, Neil Bradley, Reber F. Boult, Jr., Atlanta, Ga., Laughlin McDonald, Columbia, S. C., George W. Dean, Jr., Destin, Fla., Ambrose R. Campana, Williamsport, Pa., for appellant; Anthony G. Amsterdam, Stanford, Cal., Alan H. Levine, Burt Neuborne, Melvin L. Wulf, New York City, of counsel for appellant.

S. John Cottone, U. S. Atty., Harry A. Nagle, Asst. U. S. Atty., M. D. Pennsylvania, Lewisburg, Pa., William A. Pope,

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Crim. Div. Dept. of Justice, Washington, D. C., Arnold I. Melnick, Lieutenant Colonel, JAGC, Royce C. Lamberth, Captain, JAGC, Dept. of the Army, Washington, D. C., for appellee Parker.

Before SEITZ, Chief Judge, and ALDISERT and ROSENN, Circuit Judges.

OPINION

ALDISERT, Circuit Judge.

This appeal requires us to decide whether Articles 133 and 134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 933, 934, fail to satisfy the standards of precision required by the due process clause, and, hence, are void for vagueness. The question arises in the context of an appeal from the denial of a petition for habeas corpus brought by appellant Levy when he was confined in the United States Penitentiary at Lewisburg, Pennsylvania, following conviction by a general court-martial.

Captain Howard B. Levy, an Army doctor on active duty at Fort Jackson, South Carolina, was charged with violating Articles 90, 133 and 134 of the Uniform Code of Military Justice. Article 90, 10 U.S.C. § 890, provides in pertinent part: "Any person subject to this chapter who . . . willfully disobeys a lawful command of his superior commissioned officer: shall be punished . . . by such punishment other than death as the court-martial may direct." The specification under the Article 90 charge read:

In that Captain Howard B. Levy, U. S. Army, Headquarters & Headquarters Company, United States Army Hospital, Fort Jackson, South Carolina, having received a lawful command from Colonel Henry F. Fancy, his superior officer, to establish and operate a Phase II Training Program for Special Forces AidMen in dermatology in accordance with Special Forces AidMen (Airborne), 8-R-F16, Dermatology Training, did, at the United States Army Hospital, Fort Jackson, South Carolina, on or about 11 October 1966 to 25 November 1966, willfully disobey the same.

Article 133, 10 U.S.C. § 933, states in pertinent part: "Any commissioned officer . . . who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct." Article 134, 10 U.S.C. § 934, provides:

Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

The charges under Articles 133 and 134 emanated from public statements made by Levy to enlisted personnel, of which the following is illustrative:

The United States is wrong in being involved in the Viet Nam War. I would refuse to go to Viet Nam if ordered to do so. I don't see why any colored soldier would go to Viet Nam; They should refuse to go to Viet Nam and if sent should refuse to fight because they are discriminated against and denied their freedom in the United States, and they are sacrificed and discriminated against in Viet Nam by being given all the hazardous duty and they are suffering the majority of casualties. If I were a colored soldier I would refuse to go to Viet Nam and if I were a colored soldier and were sent I would refuse to fight. Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children. 1

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Captain Levy was convicted of (1) wilful disobedience of the lawful command of his superior officer, (2) uttering public statements designed to promote disloyalty and disaffection among the troops, and (3) "wrongfully and dishonorably making intemperate, defamatory, provoking, contemptuous, disrespectful and disloyal statements" to enlisted personnel, the latter two offenses constituting "conduct unbecoming an officer and a gentleman," and "disorders and neglects to the prejudice of good order and discipline in the armed forces." 10 U.S. C. §§ 933, 934. He was sentenced to dismissal from the service, forfeiture of all pay and allowances, and confinement for three years at hard labor. Thereafter, Levy exhausted his appeals within the military. 2 Moreover, before, during and after the military proceedings he sought relief in the federal civilian courts. 3 Finally, he filed a petition for habeas corpus alleging constitutional deprivations in the court-martial proceeding.

Preliminarily, we observe that although the court-martial found appellant guilty of charges and specifications under three articles, the court announced on general sentence for the combined charges. The general rule governing a single sentence imposed upon convictions on several charges is that the sentence will be upheld on appeal if any one of the convictions is valid, and the sentence imposed is within the statutorily authorized maximum for the valid conviction, despite the fact that convictions on the other charges may not be valid. Claasen v. United States, 142 U.S. 140, 12 S.Ct. 169, 35 L.Ed. 966 (1891). This rule is applicable to federal habeas corpus review of a court-martial conviction and sentence. Carter v. McClaughry, 183 U.S. 365, 384-385, 22 S.Ct. 181, 46 L.Ed. 236 (1902); Hunsaker v. Ridgely, 85 F.Supp. 757 (D.Me.1949). However, the rule is not jurisdictional in nature. Rather, its application is discretionary. Benton v. Maryland, 395 U.S. 784, 789-792, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Smith v. United States, 118 U. S.App.D.C. 235, 335 F.2d 270, 272 n. 2 (1964). Indeed, in Benton, the Supreme Court recognized that application of the general sentence rule has been "somewhat haphazard," and this court has observed that Benton "put into doubt" the continuing validity of that rule. United States v. McKenzie, 414 F.2d 808, 811 (3d Cir. 1969). In any case, the peculiarities associated with a sentence imposed by a military court render this case appropriate for discretionary refusal to apply the Claasen general sentence rule. 4 Because detention was mandated

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as a result of a general sentence under all three articles, it is impossible to isolate the sentence pronounced under a constitutionally valid provision from one announced under an invalid one. Therefore, we have the responsibility of inquiring whether one or more of these articles are defective.

I.

Initially, it is necessary to identify the limited contours of a civilian court's jurisdiction when presented with a habeas corpus petition from a federal prisoner whose incarceration was ordered by a court-martial. Our statement of this issue is deliberate, for we avoid the imprecise label "review." 5 Title 10 U.S.C. § 876 provides that military criminal proceedings shall be "final and conclusive," and "binding upon all departments, courts, agencies, and officers of the United States." That is, as in the case of petitions for habeas corpus filed by state prisoners under 28 U.S.C. § 2254, where there is no jurisdiction to review the state judgment, here there can be no review of the final judgment of the court-martial. Naturally, however, a federal court has jurisdiction to examine state prisoner habeas corpus cases, and the basis of this jurisdiction was made clear in Fay v. Noia, 372 U.S. 391, 430-431, 83 S.Ct. 822, 844, 9 L.Ed. 2d 837 (1963): "The jurisdictional prerequisite is not the judgment of a state court but detention simpliciter. . . . Habeas lies to enforce the right of personal liberty; when that right is denied and a person confined, the federal court has the power to release him. Indeed, it has no other power; it cannot revise the state court judgment; it can act only on the body of the petitioner. Medley, Petitioner, 134 U.S. 160, 173 [10 S.Ct. 384, 388, 33 L.Ed. 835]." Thus the federal court inquiry into "detention simpliciter" is not, jurisprudentially speaking, a review of the state judgment, but an inquiry into whether the constitutional rights of the prisoner were properly vindicated in the proceedings which caused his detention.

Accordingly, the Supreme Court has held that the rigid proscription of 10 U.S.C. § 876 erects no bar to a civilian court's habeas corpus jurisdiction in the case of a federal prisoner incarcerated under the sentence of a court-martial. Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146 (1950). 6 But unlike the extensive authority conferred in state prisoner habeas cases by Fay v. Noia, supra, and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the contours of civilian court jurisdiction in court-martial cases still remain ill-defined. The most instructive

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treatment on this issue is the Supreme Court's decision in Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953), where the Court stated that the duty of a federal court to protect individual constitutional rights is not diminished merely because...

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