Calley v. Callaway

Decision Date19 July 1974
Docket NumberNo. 74-2285.,74-2285.
Citation496 F.2d 701
PartiesWilliam L. CALLEY, Jr., Petitioner-Appellee, v. Howard H. CALLAWAY, Secretary of the Army, et al., Respondents-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

William Schloth, U. S. Atty., Charles T. Erion, Asst. U. S. Atty., Macon, Ga., Capt. Arnold Anderson Vickery, Dept. of the Army, Capt. David P. Schulingkamp, Washington, D. C., for respondents-appellants.

Kenneth M. Henson, Columbus, Ga., J. Houston Gordon, Covington, Tenn., G. W. Latimer, Salt Lake City, Utah, for petitioner-appellee.

Before BROWN, Chief Judge, and RIVES and WISDOM, Circuit Judges.

Rehearing En Banc Denied July 19, 1974. See 497 F.2d 1384.


Appellants-Respondents contest District Court orders restraining any change in petitioner-appellee Calley's place or conditions of confinement, and granting bail to petitioner-appellee Calley pending a final determination on the merits of his petition for writ of habeas corpus. We reverse.

On March 29, 1971, Calley was found guilty by a military jury of premeditated murder of not fewer than twenty-two Vietnamese civilians and of assault with intent to murder one Vietnamese civilian. He was sentenced to confinement at hard labor for life, dismissal from the service, and forfeiture of all pay and allowances. The convening authority approved the finding of guilty and the sentence, except that he reduced the confinement portion of the sentence to twenty years.

On February 16, 1973, the Court of Military Review affirmed Calley's conviction in a seventy-page opinion and denied his petition for a new trial. United States v. Calley, 46 CMR 1131 (ACMR 1973). The Court of Military Appeals affirmed on December 21, 1973, United States v. Calley, 22 USCMA 534, 48 CMR 19 (1973), and denied a petition for reconsideration on February 4, 1974. The Secretary of the Army approved the findings and sentence of the court-martial on April 15, 1974. In a separate action, the Secretary commuted the confinement portion of the sentence to ten years. The President of the United States notified the Secretary of the Army on May 3, 1974, that he had reviewed the case and had determined that no further action would be taken.

At some time in early 1974, Calley learned that the Department of the Army would move him on February 12 from Fort Benning, Georgia, where he was under house arrest, to the disciplinary barracks at Fort Leavenworth, Kansas. On February 11 Calley instituted an action for a writ of habeas corpus in the United States District Court for the Middle District of Georgia. Calley also filed a separate request for a temporary restraining order to prevent his removal from the jurisdiction and an application for bail pending the final determination of his petition for writ of habeas corpus. The District Court issued an ex parte order on February 11 restraining the respondents from changing the place of custody of the petitioner or the conditions of his confinement. On February 27, after the submission of briefs, evidence and oral argument, the District Court released Calley upon one thousand dollars bond pending determination of his petition for the writ. On March 8, 1974, the appellants-respondents filed a motion to revoke bail or alternatively to stay the Court's order of February 27. Following a hearing, the District Court denied the appellants-respondents' motion on May 10, 1974. This appeal followed.

Bail should be granted to a military prisoner pending postconviction habeas corpus review only when the petitioner has raised substantial constitutional claims upon which he has a high probability of success, and also when extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective. See Aronson v. May, 1964, 85 S. Ct. 3, 13 L.Ed.2d 6 (Douglas, J. on application for bail); Glynn v. Donnelly, 1 Cir., 1972, 470 F.2d 95; Woodcock v. Donnelly, 1 Cir., 1972, 470 F.2d 93; Benson v. California, 9 Cir., 1964, 328 F.2d 159, cert. denied, 380 U.S. 951, 85 S.Ct. 1086, 13 L.Ed.2d 970; Boyer v. City of Orlando, 5 Cir., 1968, 402 F.2d 966, 968; Baker v. Sard, 1969, 137 U.S. App.D.C. 139, 420 F.2d 1342.1

In the present case, our examination convinces us that the District Court did not really apply the above-described two-fold standard in determining whether to grant bail to Calley. Applying the proper standard to the facts of this case, we conclude that the allegations made by Calley, and the circumstances revealed by the record, do not justify a grant of bail pending determination of the merits of the petition.

We therefore reverse the order granting bail, and return Calley to military custody pending determination by the District Court of the merits of Calley's petition for habeas corpus relief. In returning Calley to military custody, we return him to full military custody, including the prescription of the place of his custody...

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165 cases
  • Calley v. Callaway
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • September 10, 1975
    ...application. On June 13, 1974, this Court reversed the district court's orders, returning Calley to the Army's custody. Calley v. Callaway, 5 Cir., 1974, 496 F.2d 701. On September 25, 1974, District Judge Elliott granted Calley's petition for a writ of habeas corpus and ordered his immedia......
  • Ahad v. Lowe
    • United States
    • U.S. District Court — Middle District of Pennsylvania
    • January 6, 2017
    ...e.g., Eaton v. Holbrook , 671 F.2d 670, 670 (1st Cir. 1982) ; Iuteri v. Nardoza , 662 F.2d 159, 161 (2d Cir. 1981) ; Calley v. Callaway , 496 F.2d 701, 702 (5th Cir. 1974).Lucas v. Hadden , 790 F.2d 365, 367 (3d Cir. 1986).This settled principle, in turn, has been expressly extended to habe......
  • Wilcox v. Ford
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • April 3, 1987
    ...before the court contesting the legality of his incarceration. In re Wainwright, 518 F.2d 173, 174 (5th Cir.1975); Calley v. Callaway, 496 F.2d 701, 702 (5th Cir.1974); Mitchell v. Bell, 458 F.Supp. 1044, 1049 (M.D.Ala.1978). At a minimum, it is clear that a habeas petitioner who has had a ......
  • Landano v. Rafferty
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 11, 1992
    ...F.2d 1048, 1050 (3d Cir.1987), which presented such a situation, we applied the standards set forth in Hilton. 19 In Calley v. Callaway, 496 F.2d 701, 702 (5th Cir.1974), where the bail issue was presented in a similar posture, the court held that bail pending post-conviction habeas corpus ......
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