Capobianco v. Laird, 529
| Decision Date | 31 March 1970 |
| Docket Number | No. 529,Docket 34139.,529 |
| Citation | 424 F.2d 1304 |
| Parties | Joseph CAPOBIANCO, Petitioner-Appellant, v. Hon. Melvin LAIRD, Secretary of Defense; Hon. Stanley Resor, Secretary of the Army; Commanding Officer, Armed Forces Examining and Entrance Station, Fort Hamilton, Brooklyn, New York, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Paul G. Chevigny, New York City (Alan H. Levine, New York Civil Liberties Union, New York City, of counsel), for petitioner-appellant.
Steve C. Arniotes, Asst. U. S. Atty. (Vincent T. McCarthy, U. S. Atty. for the Eastern District of New York, Brooklyn, N. Y.), Edward R. Neaher, U. S. Atty. for the Eastern District of New York, Brooklyn, N. Y., of counsel, for respondents-appellees.
Before LUMBARD, Chief Judge, and FRIENDLY and FEINBERG, Circuit Judges.
This appeal from an order of the District Court for the Eastern District of New York denying a writ of habeas corpus is another of the increasing number of cases relating to claims that conscientious objection had crystallized after notice to report for induction.
Joseph Capobianco, a Roman Catholic, enjoyed deferment as an undergraduate student (II-S) until July, 1968, when he was classified I-A. He requested an occupational deferment in October 1968 as a caseworker with the New York City Department of Social Services and in April 1969 as a high school teacher at St. Pius the Tenth School in Queens. Both requests were denied and on May 1, 1969, he was ordered to report for induction on May 20. This was postponed to allow him to appear before the local board in support of his application for occupational deferment. On May 29 he advised the board that he was a conscientious objector and requested the proper forms. The board sent these and further postponed induction. On June 24 Capobianco filed the completed forms, in which he alleged that due to circumstances beyond his control occurring on or about May 29 he had become a conscientious objector. He supported his application with five letters attesting to his character and sincerity.
The local board advised Capobianco on August 13, 1969, of its decision that the evidence submitted "does not justify the reopening of your case and reconsideration of your present classification" and ordered him to report for induction on August 21. The board placed the following memorandum in Capobianco's Selective Service file:
Applicant appeared. Form 150 read and reviewed, and summary of Form 150 read and reviewed. Applicant has tried on various occasions to seek a deferment through teaching and Social Service. When all else failed applicant suddenly realized on May 29, 1969 that he is a C.O. Board does not feel that these are his religious beliefs and were arrived at not because of religious convictions but to avoid service in Armed Forces.
Capobianco submitted to induction but immediately filed a petition for habeas corpus in the District Court for the Eastern District of New York. Judge Rosling conducted a hearing and denied the writ.
In Paszel v. Laird, 426 F.2d 1169, another panel of this court including the writer has been presented with the question whether the making of a prima facie case for reclassification after a notice to report for induction, which we believe Capobianco did here, automatically entitles a registrant to a reopening of his classification, as Judge Bartels there held, or, as the Government urges, merely requires the local board to consider the request for reopening and, in the event of denial, to support this with a basis in fact. We do not find it necessary to resolve that issue here since, taking the view more favorable to the Government, the hearing showed the lack of any basis in fact for the refusal to reopen.
The petitioner testified that his beliefs crystallized during the week of May 29, 1969, after he had followed procedures of his Roman Catholic faith for resolving questions of morality; but, pursuant to instructions of the Court, he did not testify about the substance of his beliefs. Lester Grossman, a member of the local board, testified that if petitioner were sincere, "it would have been brought to the attention of the Board long before"; that he did not believe the petitioner's claim because of his "many deferments"; that he...
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...that would arise if denial of CO status were sought to be supported solely on the basis of lateness in filing. Compare Capobianco v. Laird, 424 F.2d 1304 (2d Cir. 1970); United States v. Geary, 368 F.2d 144 (2d Cir. 1966), cert. denied, 389 U.S. 959, 88 S.Ct. 335, 19 L.Ed.2d 368, reh'g deni......
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...for deferment or exemption does not in itself provide a basis for concluding that an individual is not sincere. Capobianco v. Laird, 424 F.2d 1304 (2d Cir. 1970). The reasons are many and persuasive. A request for other deferments is entirely consistent with late crystallization of conscien......
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