Gee v. United States, 71-1063.

• Decision Date: 22 December 1971
• Docket Number: No. 71-1063.,71-1063.
• Citation: 452 F.2d 849
• Parties: Dick Andrew GEE, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

452 F.2d 849 (1971)

Dick Andrew GEE, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant.

No. 71-1063.

United States Court of Appeals, Fifth Circuit.

December 22, 1971.

James R. Gough, Asst. U. S. Atty., Anthony J. P. Farris, U. S. Atty., Edward B. McDonough, Jr., Carl Walker, Jr., Asst. U. S. Attys., Houston, Tex., for respondent-appellant.

David H. Berg, Houston, Tex., for petitioner-appellee.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

GEWIN, Circuit Judge:

In the presence of counsel, Dick Andrew Gee pled guilty to a charge of failing to submit to induction in the armed forces. He was sentenced to four years in prison. Shortly thereafter he filed a motion to vacate the sentence under 28 U.S.C.A. § 2255 and a motion to modify the sentence under Rule 35 F.R.Cr.P. The district court conducted a hearing on the motion to vacate on June 23, 1970, but no evidence was presented and no witnesses were heard. The attorneys for both parties merely conferred with the judge. During this conference the district judge decided that it was proper to review Gee's selective service record in light of Welsh v. United States.¹ He thereafter granted the motion to vacate and entered the following order:

It is hereby ordered, adjudged and decreed that petitioner Dick Andrew Gee\'s Motion to Vacate Sentence is granted.

Petitioner is hereby afforded the classification of conscientious objector under the Selective Service Act of 1967. Petitioner will be credited for the seven months of his imprisonment by deducting such time from that provided for civilian employment by the conscientious objector in accordance with 50 U.S.C. App. § 456(j).

Done this 17th day of December, 1970, at Houston, Texas.

We conclude that the district court committed error by entering the quoted order, and therefore, we vacate it and remand the case to the district court.

At the age of eighteen Gee properly registered with his local draft board. He made no claim of being a conscientious objector at that time, and during the four years he attended college he received a student deferment. Upon completion of his college course he was ordered to report for a physical examination. He was found physically fit and was ordered to report for induction. After receipt of the induction notice he wrote to his local board on November 25, 1969 requesting for the first time classification as a conscientious objector. On November 26, 1969, Gee returned Selective Service Form 150 to his local board. The board granted him a personal interview.² Following the interview he was ordered to report for induction, without any explanation as to what action, if any, was taken by the board on his conscientious objector claim. Gee appeared as ordered, but refused to step forward for induction.

The government has contended throughout this proceeding that Gee's plea of guilty should preclude further inquiry. We think this contention is well founded. It is settled in this circuit that a plea of guilty waives all defects and defenses which are not jurisdictional.³ However, these decisions have often involved defects which arose or defenses which were available prior to the plea.⁴

Gee contended and the district court agreed that Welsh, supra, which was decided after his plea of guilty established a new standard by which local boards must consider conscientious objector claims. Thus, the argument is that if Gee's claim were evaluated under the Welsh standard, his conviction would have to be set aside.

In its memorandum opinion, Gee v. United States, 319 F.Supp. 581 (S.D. Texas 1970), the district court relied upon this court's decision in United States v. Lucia⁵ in which a defendant who had pled guilty sought to set his conviction aside upon the basis of a judicially created defense which arose subsequent to his plea. In Lucia the court held that an accused could not waive a right not yet in existence, thus permitting the post-plea defense to be applied retroactively. The district court correctly noted that Lucia was affirmed upon rehearing en banc.⁶ However, it did not add that the portion of the original opinion upon which it relied for its waiver argument was expressly withdrawn by the court en banc:

A majority of the Court concludes that because of the holding on the retroactive effect of Marchetti and Grosso there is no need to discuss waiver. Section I dealing with waiver of the panel\'s decision is therefore withdrawn.⁷

Since the district court did not decide whether Welsh should be retroactive,⁸ its reliance on Lucia was misplaced. In addition, we find Lucia distinguishable in that there the effect of applying the Supreme Court decisions of Marchetti v. United States⁹ and Grosso v. United States¹⁰ retroactively was to invalidate the statute upon which the convictions were based. Welsh clearly does not invalidate the statute under which Gee was convicted.¹¹ But even assuming that the district court correctly stated the legal principles as to waiver of post plea defenses,¹² we find it unnecessary to rule on the question since we find that Welsh supplied Gee with no new defense.

The district court felt very strongly that Welsh created a new standard which if applied to Gee compelled classification as a conscientious objector. However, after a comparison of Welsh with its predecessor, United States v. Seeger,¹³ we conclude that Welsh announced no new standard, merely a clarification of Seeger. In Seeger, Justice Clark described the test of conscientious objection:

It is essentially an objective one, namely, does the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption.¹⁴

In Welsh, Justice Black stated:

What is necessary under Seeger for a registrant\'s conscientious objection to all war to be "religious" within the meaning of § 6(j) is that this opposition to war stem from the registrant\'s moral, ethical or religious beliefs about what is right and wrong and that these beliefs be held with the strength of traditional religious convictions.¹⁵

Justice Black went on to reject the government's argument that the facts presented in Welsh were distinguishable from those presented in Seeger. Although Seeger is not the model of clarity, we think it was certainly adequate to place Gee on notice that his claim of conscientious objection based on nonreligious beliefs was not so foreclosed by the existing law as to compel a guilty plea.¹⁶

Even if Welsh had been decided before Gee was classified, since he waited until after receipt of his notice of induction to file his claim, there was no requirement that the board hear such a claim unless new facts were presented showing a change of status caused by circumstances beyond his control.¹⁷ No such facts appear in the record. Only recently in United States v. Solomon¹⁸ this court stated the prerequisites necessary for a reopening after notice of induction has been mailed:

Thus it would seem that after the order to report has been mailed, the prima facie case which registrant must make is twofold: first, he must show that new facts present a prima facie case for exemption, and in addition he must show that the new facts resulted from circumstances over which the registrant had no control.¹⁹

The court went on to hold that where no prima facie case is established, due process does not require that the board give its reasons for refusing to reopen.²⁰

In Ehlert v. United States²¹ the Supreme Court made it clear that a late crystallization of beliefs is not such a change in circumstances that would require a board to reopen a registrant's case. Having already received his notice of induction, and having been denied a reopening of his case by the board, under Ehlert, Gee's only alternative was to present his claim after induction through Army channels.²²

We find no defect in the board's handling of Gee's case, but even if the board had erred in some respect, inherent in Gee's plea of guilty was a waiver of all procedural defects. Gee has not raised a defect in the board's procedure which rises to the jurisdictional level necessary to vitiate his plea of guilty.

Moreover, it is our opinion that the district court exceeded its authority by ordering that Gee be afforded the classification of conscientious objector as set forth in the court's final order dated December 17, 1970. The December order followed the court's memorandum opinion in which it had granted the motion to vacate subject to the condition that Gee indicate to the court within thirty days his willingness to accept civilian duty.²³

Courts do not sit as super draft boards and have no authority to substitute their notions of what a classification should be in lieu of the classification given by the board. The decisions of local boards made in conformity with the law and authorized regulations are final even though courts may disagree with such decisions.²⁴

For the reasons stated herein the court should have denied Gee's motion to vacate. The order of the district court is vacated and the case is remanded with directions that an order be entered denying the motion to vacate.²⁵

Vacated and remanded with directions.

1 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970).

2 The final sentence in the letter sent to Gee by the Board notifying him of the interview read as follows:

This appearance does not take the place of the personal appearance you may request after classification action, if your classification is reopened. (emphasis added)

3 E. g., Colson v. Smith, 438 F.2d 1075 (5th Cir. 1971); Smith v. Smith, 433 F.2d 582 (5th Cir. 1970); Zales v. Henderson, 433 F.2d 20, 23 (5th Cir. 1970). See also Hillaire v. United States, 438 F.2d 128 (5th Cir. 1971).

4 Compare Alexander v. United States, 290 F.2d 252 (5th Cir.) cert. denied, 368 U.S. 891, 82 S.Ct. 144, 7 L.Ed.2d 89 (1961), and United States v. Lucia, 416 F.2d 920 (5th Cir. 1967), aff'd en banc, 423...