Burns v. Wilson

Decision Date12 October 1953
Docket NumberNo. 422,422
Citation98 L.Ed. 363,346 U.S. 844,74 S.Ct. 3
PartiesRobert W. BURNS and Herman P. Dennis, Jr., Petitioners, v. Charles E. WILSON, Secretary of Defense, Harold E. Talbot, Secretary of the AirForce, General Hoyt S. Vandenberg, Chief of Staff, United States Air Force
CourtU.S. Supreme Court

Petition for rehearing denied. Separate opinion filed by Mr. Justice FRANKFURTER.

Opinion of Mr. Justice FRANKFURTER.

Further study and reflection have reinforced the conviction I expressed last June—and on even broader grounds than I then indicated—that this case should set down for reargument. Fundamental issues which have neither been argued by counsel nor considered by the Court are here involved. On such important questions, the military authorities, the bar, and the lower courts (including the Court of Military Appeals) ought not to be left with the inconclusive determination which our disposition of the case last June implies. One has a right to assume that there is greater likelihood of securing agreement of views for a Court opinion at the beginning than at the end of a term.

The CHIEF JUSTICE took no part in the consideration or decision of this case.

First. One of these problems concerns the effect of recent developments in the scope of inquiry on habeas corpus upon the relationship of the federal district courts in their habeas corpus jurisdiction to courts-martial. If the main opinion stands, matters which are open for inquiry on collateral attack upon a judgment of conviction entered in a United States District Court, a constitutional tribunal, will be foreclosed from inquiry when the judgment of conviction collaterally assailed is that of a court-martial, an executive tribunal of limited jurisdiction ad hoc in nature. This has not been the law up to now; and the assertion that 'in military habeas corpus the inquiry, the scope of matters open for review, has always been more narrow than in civil cases' 346 U.S., at page 139, 73 S.Ct. at page 1047, is, I respectfully submit, demonstrably incorrect.

1. The first case in this Court involving the collateral attack, by habeas corpus, on the judgment of a court-martial was Ex parte Reed, 100 U.S. 13, 25 L.Ed. 538. Here is the test there laid down, 100 U.S. at page 23, 25 L.Ed. 538:

'The court had jurisdiction over the person and the case. It is the organism provided by law and clothed with the duty of administering justice in this class of cases. Having had such jurisdiction, its proceedings cannot be collaterally impeached for any mere error or irregularity, if there were such, committed within the sphere of its authority. Its judgments, when approved as required, rest on the same basis and are surrounded by the same considerations which gave conclusiveness to the judgments of other legal tribunals, including as well the lowest as the highest, under like circumstances. The exercise of discretion, within authorized limits, cannot be assigned for error and made the subject of review by an appellate court.'

It was thus clearly stated that the standard for collateral consideration of judgments of courts-martial is the same as that applied on collateral consideration of judgments of other tribunals. Once 'jurisdiction' is shown to exist, the inquiry ends; the question is not whether that jurisdiction was well or wisely exercised, or whether error was committed, it is only whether there was power to act at all.

This was always the traditional scope of inquiry when the judgment sought to be examined on habeas corpus was that of a federal or territorial or District of Columbia court. E.g., Matter of Moran, 203 U.S. 96, 27 S.Ct. 25, 51 L.Ed. 105 (Oklahoma territorial court; opinion by Holmes, J.); Harlan v. McGourin, 218 U.S. 442, 448, 31 S.Ct. 44, 54 L.Ed. 1101 (U.S. circuit court; opinion by Day, J.); Matter of Gregory, 219 U.S. 210, 31 S.Ct. 143, 55 L.Ed. 184 (District of Columbia court; opinion by Hughes, J., with copious citation of authority).

And so, in the earlier cases scrutinizing military sentences by habeas corpus, it was similarly laid down that 'The single inquiry, the test, is jurisdiction.' In re Grimley, 137 U.S. 147, 150, 11 S.Ct. 54, 34 L.Ed. 636. 'Courts-martial are lawful tribunals, with authority to finally determine any case over which they have jurisdiction, and their proceedings, when confirmed as provided, are not open to review by the civil tribunals, except for the purpose of ascertaining whether the military court had jurisdiction of the person and subject-matter, and whether, though having such jurisdiction, it had exceeded its powers in the sentence pronounced.' Carter v. Roberts, 177 U.S. 496, 498, 20 S.Ct. 713, 44 L.Ed. 861; Carter v. McClaughry, 183 U.S. 365, 380 381, 22 S.Ct. 181, 187—188, 46 L.Ed. 236; Grafton v. United States, 206 U.S. 333, 347—348, 27 S.Ct. 749, 752, 51 L.Ed. 1084. Allegations of irregularity or illegality in the composition of courts-martial were, of course, rigorously scrutinized, e.g., McClaughry v. Deming, 186 U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049; cf. Kahn v. Anderson, 255 U.S. 1, 41 S.Ct. 224, 65 L.Ed. 469; but apart from this obvious amenability to judicial inquiry, the judgment of a court-martial meeting the test above quoted was unassailable even by the most extreme allegations of prejudice, unfairness, and use of perjured testimony. See Carter v. Woodring, 67 App.D.C. 393, 92 F.2d 544.

Thus, up to December 6, 1937, when the Court denied certiorari, 302 U.S. 752, 58 S.Ct. 283, 82 L.Ed. 582, in the case last cited—it was the last of Oberlin Carter's long series of attempts at judicial review of his court-martial—the scope of habeas corpus in both military and civil cases was equally narrow: in both classes of cases it was limited solely to questions going to the 'jurisdiction' of the sentencing court.

2. Later in the 1937 Term, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, was decided and blazed a new trial. It was held that procedural errors—what theretofore were deemed matters not going to the defined constitution of the tribunal acting within the scope of its power over subject matter and persons—may be inquired into collaterally on habeas corpus, if they amounted to a deprivation of constitutional right. By giving a new content to 'jurisdiction,' the case was brought within the formula that only 'jurisdiction' may be the subject of inquiry in habeas corpus. The judgment successfully assailed in that case was one entered in a United States District Court. Since 1938 the basic premise of Johnson v. Zerbst has been neither questioned nor limited in any instance involving collateral attack, by way of habeas corpus, on judgments of conviction entered by a civil court.

3. The effect of Johnson v. Zerbst on judgments of conviction pronounced by a court-martial first appears to have been considered in Shapiro v. United States, 69 F.Supp. 205, 107 Ct.Cl. 650. There the Court of Claims applied Johnson v. Zerbst to invalidate a conviction by an otherwise properly constituted court-martial, on the ground that the unreasonably short time permitted the accused to prepare his defense deprived him of the effective assistance of counsel in violation of the Sixth Amendment. The court-martial was held to have lost 'jurisdiction' to proceed. For purposes of the pending Petition for Rehearing and our responsibility for adequate consideration of the issues it is pertinent that the Shapiro case was not cited to us in any of the briefs in the present case.

Later decisions in the Court of Claims, where of course collateral attack is by way of a petition for back pay resting on allegations that the assailed court martial proceedings were void, have followed the rationale of the Shapiro case. Thus, in Sima v. United States, 96 F.Supp. 932, 938, 119 Ct.Cl. 405, 406, the court said: 'From the entire record in this case, we cannot say that plaintiff was deprived of his rights under the Fifth and Sixth Amendments to the Constitution of the United States to the extent that the verdict of the court-martial was void.' And in Fly v. United States, 100 F.Supp. 440, 442, 120 Ct.Cl. 482, 498: 'Only when the errors committed are so gross as to amount to a denial of due process does the erring court martial lose its jurisdiction and its power to issue a valid decree. Compare Sima v. United States, with Shapiro v. United States, both supra.'

4. This Court has never considered the applicability of Johnson v. Zerbst to military habeas corpus cases. But if denial of the right to counsel makes a civil body legally nonexistent, i.e., without 'jurisdiction,' so as to authorize habeas corpus, by what process of reasoning can a military body denying such right to counsel fail to be equally non-existent legally speaking, i.e., without 'jurisdiction,' so as to authorize habeas corpus? Again, if a denial of due process deprives a civil body of 'jurisdiction,' is not a military body equally without 'jurisdiction' when it makes such a denial, whatever the requirements of due process in the particular circumstances may be?

It is true that in Hiatt v. Brown, 339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. 691, the traditional older rule on military habeas corpus was restated and applied, and that we there disapproved the tendency of some of the lower federal courts to review court-martial records collaterally as if the habeas corpus court were a statutory agency of direct military appellate review in the Judge Advocate General's office, e.g., Hicks v. Hiatt, D.C., M.D.Pa., 64 F.Supp. 238. But the present problem was never suggested and never considered by us. Neither the Government's petition for certiorari nor its briefs cited Johnson v. Zerbst; and the respondent argued the point only inferentially until after the case went against him. The case cannot be deemed authority for an important point not discussed or considered. But assuredly Hiatt v. Brown does not sustain the proposition for which it was cited in ...

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