De Coster v. Madigan, 11312.

• Decision Date: 27 June 1955
• Docket Number: No. 11312.,11312.
• Citation: 223 F.2d 906
• Parties: Carl Andrew DE COSTER, Plaintiff-Appellant, v. P. J. MADIGAN, Acting Warden, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

223 F.2d 906 (1955)

Carl Andrew DE COSTER, Plaintiff-Appellant, v. P. J. MADIGAN, Acting Warden, Defendant-Appellee.

No. 11312.

United States Court of Appeals Seventh Circuit.

June 27, 1955.

COPYRIGHT MATERIAL OMITTED

Urban P. Van Susteren, Appleton, Wis., for appellant.

James W. Booth, Lieutenant Colonel, U. S. Army, Washington, D. C., Jack C. Brown, U. S. Atty., Indianapolis, Ind., Stephen Leonard, Asst. U. S. Atty., Anderson, Ind., for appellee.

Before DUFFY, Chief Judge, and MAJOR and FINNEGAN, Circuit Judges.

MAJOR, Circuit Judge.

This is an appeal from an order of the United States District Court for the Southern District of Indiana, Indianapolis Division, denying the petition of Carl DeCoster (hereinafter called plaintiff) for a writ of habeas corpus to be directed against P. J. Madigan, Acting Warden of the United States Penitentiary at Terre Haute, Indiana. D. M. Byington (hereinafter called defendant) has now succeeded P. J. Madigan as Acting Warden and has been substituted for him as a party defendant.

Plaintiff was a soldier in the regular army, serving with the Second Infantry Division in South Korea. On June 9, 1951, a general court-martial found him guilty of the murder of a Korean woman on March 16, 1951, a violation of the 92nd Article of War, and of the attempted rape of this same woman on or about the same date, a violation of the 96th Article of War.

During the court-martial the Law Officer instructed the court with respect to the penalty it could impose on the murder charge but said nothing as to the penalty which might be imposed for attempted rape. At that time the penalties were, for murder, death or life imprisonment as a court-martial might direct, and, for attempted rape, such punishment as a court-martial might direct, subject to a maximum of twenty years' imprisonment. Table of Maximum Punishments, Section A, Manual for Courts-Martial, United States, 1951. The court-martial sentenced plaintiff to life imprisonment.

It should be noted that on May 31, 1951, the Articles of War were superseded by the Uniform Code of Military Justice, 50 U.S.C.A. § 551 et seq., so that the substantive offenses with which plaintiff was charged were governed by the Articles but that the procedures for review of his sentence were those established by the Uniform Code.

On July 3, 1951, the Commanding General of the Second Infantry Division, the convening authority, approved the action of the court-martial and forwarded the record to the Judge Advocate General of the Army for review by a Board of Review in his office. On January 15, 1952, the Board of Review handed down its decision. It disapproved the murder conviction for lack of evidence, but approved the attempted rape conviction and decided that twenty years' imprisonment was the appropriate punishment therefor. On June 2, 1952, the United States Court of Military Appeals declined to consider plaintiff's Petition for Grant of Review. U. S. v. Fowler, DeCoster, 1 U.S.C.M.A. 713. In due course, plaintiff was transferred to the penitentiary at Terre Haute, where he is now confined.

The issue which was presented to the District Court and to this Court is whether, under the particular circumstances here involved, the action of the Board of Review in deciding upon the twenty year imprisonment was an error of law which can be considered and acted upon by a civilian court in a habeas corpus proceeding.

The power of the Federal courts to grant writs of habeas corpus is necessarily broad and comprehensive so that the writ will always be readily available to serve its historic purpose and to provide its fundamental protection. This power is subject to only one absolute limitation, that is, the statutory requirement that a Federal issue be involved in the alleged wrongful custody of a prisoner whose release is sought by habeas corpus. See 28 U.S.C.A. § 2241 et seq. Plainly, the power extends to a case wherein the prisoner seeking release is in custody pursuant to the action of a military tribunal. Gusik v. Schilder, 1950, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146.

Notwithstanding the existence of the power, the decisions of the Federal courts disclose a marked reluctance on the part of civilian judges to interfere, save in compelling circumstances, with the determinations of military tribunals. Two basic principles underlie this judicial attitude. First, courts-martial together with their appellate agencies form a special type of judicial system which is part of the Executive branch and which is constitutionally independent of the Federal courts. Second, in the present Uniform Code of Military Justice, as in the former Articles of War and Articles for Government of the Navy, Congress has established strong safeguards for the rights of persons accused of offenses against military law.

Accordingly, the Federal courts have developed the general rule that the scope of a civilian court's review of military proceedings should be limited to a rather narrow area. A number of cases have laid down the strict but simple rule that a civilian court may look into only the elementary matters of a court-martial's jurisdiction of the person accused and the offense charged and its power to impose the sentence awarded. See In re Grimley, 137 U.S. 147, 11 S.Ct. 54, 34 L.Ed. 636; Carter v. McClaughry, 183 U.S. 365, 22 S.Ct. 181, 46 L.Ed. 236; United States ex rel. Feld v. Bullard, 2 Cir., 290 F. 704, certiorari denied 262 U. S. 760, 43 S.Ct. 706, 67 L.Ed. 1220; Hiatt v. Brown, 339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. 691. Other cases have announced the complementary rule that a civilian court may not review the merits of or re-evaluate the evidence presented in court-martial proceedings. See Mosher v. Hudspeth, 10 Cir., 123 F.2d 401, certiorari denied 316 U.S. 670, 62 S.Ct. 1039, 86 L.Ed. 1745; Whelchel v. McDonald, 340 U.S. 122, 71 S.Ct. 146, 95 L.Ed. 141.

Several recent cases, however, appear to have expanded the scope of review slightly, or, at least, to have shifted the emphasis from mere "jurisdiction" and "power," as the proper subjects for civilian court review, to broader considerations of the "fullness" and "fundamental fairness" of the court-martial proceedings. See Whelchel v. McDonald, supra; Kuykendall v. Hunter, 10 Cir., 187 F.2d 545; Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508; White v. Humphrey, 3 Cir., 212 F.2d 503. Finally, because a civilian court should not review errors which are or were capable of correction within the military judicial system, there is the rule which requires the exhaustion of a prisoner's administrative or military remedies before he petitions for a writ of habeas corpus. See Burns v. Wilson, supra; Easley v. Hunter, 10 Cir., 209 F.2d 483; Suttles v. Davis, 10 Cir., 215 F.2d 760, certiorari denied 348 U.S. 903, 75 S.Ct. 228, rehearing denied 348 U.S. 932, 75 S.Ct. 343.

In the light of these rules, the curious combination of circumstances involved in this case presents a situation which we think properly lies within the scope of a civilian court's review. While the court-martial obviously had jurisdiction of plaintiff and the offenses with which he was charged, it did not fully and fairly deal with him. The Law Officer instructed the court-martial that the minimum sentence which could be imposed on the murder charge was life imprisonment. But the Law Officer gave no instructions as to the punishment which could be imposed on the attempted rape charge. The court-martial found plaintiff guilty of both murder and attempted rape, but its sentence was life-imprisonment, the minimum sentence for the murder charge alone. Of course, any suggestion that the court-martial should have sentenced plaintiff for a term of life plus twenty years would be ridiculous, but equally so is the assertion that the court-martial did or intended to impose any part of its sentence for attempted rape. It lacked even the necessary instructions upon which such award of punishment would have to be based. Imposition of sentence by the proper authority is an essential step in administration of criminal justice. Here, under the statute, only the court-martial was authorized to take this step; it failed to do so.

This crucial omission left open the door for the Board of Review, after disapproving the murder conviction and upon its own motion, to decide that twenty years was the appropriate sentence for attempted rape. We are unable to discern how this action can fairly be characterized as other than an original imposition of sentence by the Board. The court-martial imposed no such sentence, yet after the review of his case, plaintiff was confronted with a twenty year term. This action of imposing sentence was beyond the Board's authority because the statute grants it no such power. 50 U. S.C.A. § 653, U.C.M.J. art. 66.

Therefore, under the cases cited earlier in this opinion which lay down the rule that a civilian court can look into a court-martial's jurisdiction and power, the Board's action in imposing sentence was void. It is true that those cases dealt with unauthorized actions of courts-martial, but the principle they set forth is equally applicable to Boards of Review. Here, there was ample justification for a civilian court, without any reconsideration of the merits or re-evaluation of the evidence, to issue a writ of habeas corpus and to order plaintiff's discharge from custody.

Defendant does not disagree with the basic point, upon which our conclusion is largely predicated, that the Board of Review lacked power to impose sentence. Instead, defendant argues that the Board merely remitted that portion of the sentence which became excessive after disapproval of the murder conviction. To support this contention, defendant cites McKinney v. Finletter, 10 Cir., 205 F.2d 761, and points out the long-followed and well-recognized practice of courts-martial to impose a single gross sentence no matter how many charges and specifications there...