Allen v. VanCantfort, Civ. No. 11-92.

• Decision Date: 04 August 1970
• Docket Number: Civ. No. 11-92.
• Parties: Denzil R. ALLEN, Petitioner, v. Rolland F. VanCANTFORT, Respondent.
• Court: U.S. District Court — District of Maine

316 F. Supp. 222

Denzil R. ALLEN, Petitioner, v. Rolland F. VanCANTFORT, Respondent.

Civ. No. 11-92.

United States District Court, D. Maine, S. D.

August 4, 1970.

George E. Martz, Indianapolis, Ind., Jeremiah D. Newbury, Portland, Me., Peter L. Obremskey, Lebanon, Ind., for petitioner.

Terry Reiniche, Lt. Col., U.S.M.C., Office of Judge Advocate General of Navy, Washington, D. C., Peter Mills, U. S. Atty., Portland, Me., for respondent.

OPINION AND ORDER OF THE COURT

GIGNOUX, District Judge.

On September 9, 1968, at Da Nang, Republic of Vietnam, Denzil R. Allen, then a Lance Corporal in the United States Marine Corps, was found guilty by a general court-martial, upon his plea of guilty, of five specifications of premeditated murder, in violation of Article 118 of the Uniform Code of Military Justice, 10 U.S.C. § 918. He was sentenced to be reduced to Pay Grade E-1, to be confined at hard labor for the term of his natural life, to forfeit all pay and allowances, and to be dishonorably discharged from the service. On October 12, 1968, the convening authority, pursuant to a pretrial agreement, approved only so much of the sentence as provided for a dishonorable discharge, confinement at hard labor for 20 years, forfeiture of all pay and allowances, and reduction to Pay Grade E-1. On the same date, the convening authority designated the United States Naval Disciplinary Command at Kittery, Maine, as the place of temporary custody pending appellate review of the conviction pursuant to Article 66 of the Uniform Code of Military Justice, 10 U.S.C. § 866, and petitioner has been confined in the Disciplinary Command Barracks at Kittery since December 11, 1968. On November 7, 1969, the United States Navy Court of Military Review affirmed the findings of guilty and the sentence as approved. The Court also denied Allen's petition for a new trial under Article 73 of the Uniform Code of Military Justice, 10 U.S.C. § 873. On February 19, 1970, the United States Court of Military Appeals denied Allen's petition for grant of review of the decision of the Court of Military Review pursuant to Article 67 of the Uniform Code of Military Justice, 10 U.S.C. § 867. Having finally exhausted his military remedies, see Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146 (1950); Noyd v. Bond, 395 U.S. 683, 693-698, 89 S.Ct. 1876, 23 L.Ed.2d 631 (1969)¹, Allen has now filed in this Court a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 et seq. He has been represented by civilian counsel of his own choosing throughout the proceedings in this Court, and an evidentiary hearing has been held, at which there was received in evidence the complete record of petitioner's court-martial and subsequent proceedings before the military courts and such additional testimony as petitioner chose to present. Petitioner's sole contention in this Court is that he was denied his Fifth Amendment right to due process of law and his Sixth Amendment right to counsel in his court-martial proceedings because of the ineffective assistance of his trial counsel.²

I

At the outset, it must be recognized that the scope of review available to a military prisoner petitioning for habeas corpus in the District Courts of the United States is considerably narrower than that available to a civilian prisoner seeking the same relief. The controlling cases are Hiatt v. Brown, 339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. 691 (1950) and Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508, reh. denied, 346 U.S. 844, 74 S.Ct. 3, 98 L.Ed. 363 (1953). See also Whelchel v. McDonald, 340 U.S. 122, 71 S.Ct. 146, 95 L.Ed. 141 (1950).

In Hiatt v. Brown, supra, the Supreme Court held that it was beyond the competence of the civil courts to review due process claims arising in military proceedings. The Court said:

The Court of Appeals also concluded that certain errors committed by the military tribunal and reviewing authorities had deprived respondent of due process. We think the court was in error in extending its review, for the purpose of determining compliance with the due process clause, to such matters as the propositions of law set forth in the staff judge advocate's report, the sufficiency of the evidence to sustain respondent's conviction, the adequacy of the pretrial investigation, and the competence of the law member and defense counsel. (citation omitted) It is well settled that "by habeas corpus the civil courts exercise no supervisory or correcting power over the proceedings of a court-martial. * * * The single inquiry, the test, is jurisdiction." (citation omitted) In this case the court-martial had jurisdiction of the person accused and the offense charged, and acted within its lawful powers. The correction of any errors it may have committed is for the military authorities which are alone authorized to review its decision. (citations omitted) 339 U.S. at 110-111, 70 S.Ct. at 498.

In Burns v. Wilson, supra, the prevailing opinion³ approved Hiatt v. Brown and 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. In military habeas corpus cases, even more than in state habeas corpus cases, it would be in disregard of the statutory scheme if the federal civil courts failed to take account of the prior proceedings — of the fair determinations of the military tribunals after all military remedies have been exhausted. Congress has provided that these determinations are "final" and "binding" upon all courts. We have held before that this does not displace the civil courts' jurisdiction over an application for habeas corpus from the military prisoners. (citation omitted) But these provisions do mean that when a military decision has dealt fully and fairly with an allegation raised in that application, it is not open to a federal civil court to grant the writ simply to re-evaluate the evidence. (citation omitted)

* * * * * *

* * * It is not the duty of the civil courts * * * to re-examine and reweigh each item of evidence of the occurrence of events which tend to prove or disprove one of the allegations in the applications for habeas corpus. It is the limited function of the civil courts to determine whether the military have given fair consideration to each of these claims. (citation omitted) 346 U.S. at 142, 144, 73 S.Ct. at 1048 (emphasis supplied)

The Supreme Court has neither elaborated nor modified the "fair consideration" test pronounced in Burns v. Wilson in any material respect.⁴ Although the restrictiveness of the Burns rule has been questioned by some courts, Rushing v. Wilkinson, 272 F.2d 633, 641 (5th Cir. 1959), cert. denied, 364 U.S. 914, 81 S.Ct. 280, 5 L.Ed.2d 229 (1960); Sweet v. Taylor, 178 F.Supp. 456, 458 (D.Kan.1959); see also Weiner, Courts-Martial and the Bill of Rights, 72 Harv. L.Rev. 266, 303 (1958), and apparently ignored by others, White v. Humphrey, 212 F.2d 503, 507 (3rd Cir.), cert. denied, 348 U.S. 900, 75 S.Ct. 222, 99 L.Ed. 707 (1954); Harris v. Ciccone, 290 F. Supp. 729, 733 (W.D.Mo.1968); In re Stapley, 246 F.Supp. 316, 320-322 (D. Utah 1965), cf. Ashe v. McNamara, 355 F.2d 277, 280 n. 3 (1st Cir. 1965), it is now reasonably clear, at least until the Supreme Court has spoken to the contrary, that in considering constitutional claims presented by military prisoners, a federal court's inquiry is limited to the question of whether the military tribunals have given full and fair consideration to the contentions raised by the petitioner. Kennedy v. Commandant, U. S. Naval Disciplinary Barracks, 377 F.2d 339, 342 (10th Cir. 1967); Rushing v. Wilkinson, supra, 272 F.2d at 641-642; Mitchell v. Swope, 224 F.2d 365, 366-367 (9th Cir. 1955); Bourchier v. Van Metre, 96 U.S.App.D.C. 181, 223 F.2d 646, 647-648 (1955); Suttles v. Davis, 215 F.2d 760, 761, 763 (10th Cir.), cert. denied, 348 U.S. 903, 75 S.Ct. 228, 99 L.Ed. 709 (1954); Easley v. Hunter, 209 F.2d 483, 486-487 (10th Cir. 1953); Swisher v. United States, 237 F.Supp. 921, 924-929 (W.D.Mo.1965), aff'd, 354 F.2d 472 (8th Cir. 1966). See generally Note, Developments in the Law — Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1208-1238 (1970).

II

The contention that petitioner was denied the effective assistance of counsel in his court-martial proceedings is based upon his claim that his trial counsel unduly influenced and improperly persuaded him to sign a pretrial agreement and to plead guilty. Petitioner asserts that his trial counsel failed to advise petitioner of his legal rights; that his trial counsel failed to investigate the charges against petitioner and to talk to material witnesses critical to his defense; and, most particularly, that his trial counsel failed to develop the defense of insanity and to have petitioner examined by psychiatrists prior to trial. After a careful examination of the military record, this Court is wholly satisfied that each one of these claims was fully and fairly considered and decided by the military courts on review and that there was no error in their affirmance of the judgment of the court-martial.

The military record discloses that petitioner and six other marines were arrested and charged with the premeditated and brutal murders of five Vietnamese civilians on May 5 and 6, 1968. Petitioner and several of the others confessed to the killings. Petitioner was the only one charged with all five killings, and the evidence clearly indicated that he was the ringleader. Initially, petitioner was assigned as trial defense counsel, Captain John E. Russell, an officer in the Judge Advocate General's Corps, who represented him in the mandatory pretrial investigation pursuant to Article 32 of the Uniform Code of Military Justice, 10 U.S.C. § 832. Russell interviewed the available witnesses and planned a defense based principally upon petitioner's insanity. Since Russell's tour in Vietnam was to terminate before peti...