Brown v. Resor
| Decision Date | 06 February 1969 |
| Docket Number | No. 24678.,24678. |
| Citation | 407 F.2d 281 |
| Parties | Londell BROWN and Warren E. Gilliam, Jr., Appellants, v. Stanley R. RESOR, as Secretary of the Army, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
M. Laughlin McDonald, Atlanta, Ga., for appellants.
Edward L. Shaheen, U. S. Atty., Q. L. Stewart, Asst. U. S. Atty., Shreveport, La., for appellee.
Before JOHN R. BROWN, Chief Judge, and FAHY* and DYER, Circuit Judges.
This is an appeal from the denial of the appellants' petitions for writs of habeas corpus1 in which each petitioner sought his release from the custody of the United States Army on the ground that he was a conscientious objector, and his induction into the Army and his general court martial sentence for refusal to obey a direct order to participate in combat training were in violation of his rights under the United States Constitution. We affirm.
This is our second consideration of the appeal. Prior to the case reaching us the first time, Brown's sentence to dishonorable discharge and three years at hard labor was reduced to a bad conduct discharge and confinement at hard labor for sixteen months. Gilliam's sentence of sixteen months at hard labor and a bad conduct discharge was modified to provide for one year confinement at hard labor in addition to the bad conduct discharge. Subsequently, but also before the appeal was heard, the Secretary of the Army granted clemency to Brown and remitted the unexecuted portion of his confinement. Brown was released from the custody of the Army on July 27, 1967. Gilliam was discharged from the Army on August 7, 1967, and was released from custody on November 8, 1967. We dismissed the appeal as being moot.2 The Supreme Court granted certiorari, vacated our judgment and remanded the case to us for further consideration in light of Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed. 2d 554 (1968).3
Carafas laid to rest any doubts concerning the meaning of the words "in custody" as used in 28 U.S.C.A. 2241.4 There, as here, the petitioner was in custody when the application for habeas corpus was filed with the District Court but petitioner had been released before completion of the proceedings on the application. The Supreme Court held that because of the Footnote omitted. Carafas v. LaVallee, supra, at 237, 238, 88 S.Ct. at 1559.
We entertain no doubt that the "collateral consequences" which may flow from appellants' convictions and to which we alluded in our original opinion, i. e., that "in many states they will not be able to vote, sit on juries or run for public office," bring this case squarely within the principles enunciated in Carafas. We therefore proceed to the merits.
On January 17, 1964, ten months after he was required to do so,5 Brown registered with his local board. Both Brown and his mother contended that they informed the clerk of the board that Brown was a conscientious objector. Several days after his registration Brown completed his classification questionnaire and furnished it to the board. He did not complete Series VIII of the questionnaire pertaining to conscientious objectors and no information concerning a request for this status appears in his Selective Service File.
On February 18, 1964, Brown was classified 1-A. He was notified of this by the board on February 24, 1964, and he took no appeal from this classification. On October 29, 1964, and on June 4, 1965, the board mailed Brown current information questionnaires which he filled out and returned to the board without objection or even a suggestion that he was a conscientious objector. He was ordered to appear for a physical examination on June 21, 1965, was found fit for military service, and he was so informed by the board on July 2, 1965. At no time did he claim that he was entitled to a conscientious objector classification or object to his 1-A classification.
Brown was inducted into the army on September 23, 1965. Claiming that he was a conscientious objector, he thereafter submitted three requests for discharge to different superiors, each of which was denied. He was required to participate in combat training. He refused to train with a weapon and was eventually convicted by general court martial for willful disobedience.
Gilliam also claims to be a conscientious objector. At the time he registered with his local board he did not seek this classification, and in the section of his questionnaire pertaining to claims for exemption as a conscientious objector Gilliam stated "does not apply." In due course Gilliam was classified 1-A and reported for induction on October 12, 1965. He acknowledged his obligation for two years' active duty and four years' reserve duty ("Acknowledgment of Service Obligation"). He made no objection to his induction.
When Gilliam arrived at Fort Polk, Louisiana, on October 19, 1965, where he was assigned for basic training, he submitted a request for discharge as a conscientious objector which was disapproved through the chain of command and Gilliam was so notified on January 24, 1966. On September 6, 1966, Gilliam filed his petition for a writ of habeas corpus, having been placed in the military stockade for his refusal to train with a weapon.
With this background we turn to the assignment of errors urged by the appellants. First, Brown asserts a violation of Fifth Amendment due process because the board failed to follow Selective Service Regulations which resulted in his unlawful induction into the Army. To support this he attacks the finding of fact by the District Court that he never claimed to be a conscientious objector until after his induction. Gilliam argues that the District Court was in error in finding that he was ever actually inducted into the Army.
Brown claims that he was unlawfully inducted into the Army because of the failure of the board to follow Selective Service Regulations, thus violating Due Process of Law guaranteed by the Fifth Amendment to the Constitution.
Brown's complaint that the board violated Section 1621.116 of the Regulations in not furnishing him a Form No. 150 so that he could record his conscientious objector status and in not informing him that his Classification Questionnaire was deficient under Section 1621.137 because Series VIII of the Classification Questionnaire should have been completed so that he could obtain Form No. 150, necessarily rests upon Brown's assertion that he notified the Clerk of the board at the time of his registration that he was a conscientious objector.
The District Court found Brown v. Reaves, supra, 294 F.Supp. at 858. A careful review of the record convinces us that the Trial Court's finding is not clearly erroneous — it is clearly correct. Smith v. Beto, 5 Cir. 1968, 395 F.2d 747.8
Notwithstanding that Gilliam did not seek classification as a conscientious objector and served nearly eleven months in the military service, he then for the first time claimed that he was never given an opportunity to take, or to decline to take, the traditional "step forward" into the Army, nor the oath of induction, both of which, he argues, are prerequisite to military jurisdiction.9 Gilliam asserts that although he reported for induction as ordered he was in an adjoining room at the time of the induction ceremonies and that he did not step forward like the others.
Gilliam's argument that he did not take the oath gives us little pause. Failure to take the oath has no legal significance.10
We are equally unimpressed with Gilliam's claim that, having failed to step forward, he was never inducted into the Army, and, therefore, was not subject to military jurisdiction. We need not iterate the chronology of Gilliam's various contacts with his draft board which we have previously chronicled. Suffice it to repeat here only that he failed to offer any objection to his induction, signed an acknowledgment of his service obligation, complied with his order to report to Fort Polk, and for almost eleven months thereafter conducted himself as a soldier.
In Mayborn v. Heflebower, 5 Cir. 1944, 145 F.2d 864, the selectee consistently represented himself to be an ordained minister and exempt from military service. At the induction station he refused to take the oath and when he told the officer of this he was informed that he was nevertheless in the army. Thereafter he performed the duties of a soldier from January 5, 1944, to March 27, 1944. When he refused to obey an order, he was court martialed. We held that the taking of the oath was not a prerequisite to induction and further said:
We are of the further opinion that whether or not all formalities prerequisite to induction were observed, the subsequent conduct of the parties was such that the irregularities were cured or the right to invoke them was waived. It is manifest that the induction officers regarded appellant as a soldier at all times after the induction ceremony was completed, and appellant voluntarily accepted the benefits and assumed the obligations incident to membership in the armed forces. The idea that a soldier\'s tenure in the...
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Strait v. Laird 8212 83
...(CA2 1968); Brown v. McNamara, 387 F.2d 150 (CA3 1967); United States ex rel. Brooks v. Clifford, 409 F.2d 700 (CA4 1969); Brown v. Resor, 407 F.2d 281 (CA5 1969); Packard v. Rollins, 422 F.2d 525 (CA8 1970); Sertic v. Laird, 418 F.2d 915 (CA9 1969). This Court has considered petitions for ......
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Hackett, Matter of
...almost invariably arises within the mootness context. See, e.g., Matthews v. Florida, 463 F.2d 679, 681 (5 Cir.1972); Brown v. Resor, 407 F.2d 281 (5 Cir.1969), cert. den. 399 U.S. 933, 90 S.Ct. 2249, 26 L.Ed.2d 806 (1970); Nix v. State, 233 Ga. 73, 209 S.E.2d 597, 598 (Sup.Ct.1974), aff'd ......
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...omitted.) Similar results on analogous facts were reached in Lawrence v. Woods, 432 F.2d 1072 (7th Cir. 1970), and Brown v. Resor, 407 F.2d 281 (5th Cir. 1969). Of course, both Carafas and Lawrence had been in physical custody under the sentences attacked at the time their petitions were fi......
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