Gusik v. Schilder, No. 110
| Court | United States Supreme Court |
| Writing for the Court | DOUGLAS |
| Citation | 340 U.S. 128,95 L.Ed. 146,71 S.Ct. 149 |
| Parties | GUSIK v. SCHILDER |
| Docket Number | No. 110 |
| Decision Date | 04 December 1950 |
v.
SCHILDER.
Page 129
Mr. Morris Morgenstern, Cleveland, Ohio, for petitioner.
Mr. John F. Davis, Washington, D.C., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
This is a petition for a writ of habeas corpus filed in the District Court on behalf of petitioner challenging the legality of his detention by respondent. Respondent holds Gusik pursuant to a court-martial judgment convicting him of murder while he was stationed in Italy as a member of the United States Army. After conviction by the court-martial petitioner exhausted all his remedies for reversal or modification of the judgment of conviction which then existed under the Articles of War, 10 U.S.C.A. § 1471 et seq. When he secured no relief from the military authorities he filed this petition in which he challenges the jurisdiction of the court-martial both under the Articles of War and the Constitution. The District Court, after a hearing, sustained the writ and released Gusik on bond. It found that the court-martial did not have jurisdiction, because no thorough and impartial pretrial investigation was conducted in compliance with Article 70 of the Articles of War, 10 U.S.C.A. § 1542, because the Trial Judge Advocate failed to call material witnesses, and because Gusik was denied the effective assistance of counsel. The Court of Appeals reversed, 180 F.2d 662. It did not reach the merits of
Page 130
the case; it held that there was an administrative remedy which petitioner had not exhausted and that the petition must be dismissed without prejudice to the filing of a new petition after resort to the additional administrative remedy had been made.
The new remedy is Article 53 of the Articles of War, 62 Stat. 639, 10 U.S.C. (Supp. III) § 1525, 10 U.S.C.A. § 1525.1 It gives the Judge Advocate General discretion, inter alia, to grant a new trial in any court-martial case. Time limitations are specified; and 'with regard to cases involving offenses committed during World War II, the application for a new trial may be made within one year after termination of the war, or after its final disposition upon initial appellate review as herein provided, whichever is the later'. Peti-
Page 131
tioner argues that Article 53 is not applicable to World War II court-martial cases in which appellate review was completed prior to the effective date of the Article or in which habeas corpus proceedings had been instituted prior to that date. That construction of the Act would require extensive tailoring of the language of Article 53, since the new Article explicitly applies to 'cases involving offenses committed during World War II' without reference to the stage in which the cases may be on the effective date of the Article. Our conclusion is in harmony with the construction which the President, who is authorized to provide the regulations under Article 53, gave to the statutory language in Executive Order 10020 which promulgated the Manual for Courts-martial.2 That Order states that the new Manual shall be in force and effect on and after February 1, 1949 'with respect to all court-martial processes taken on or after February 1, 1949.' A petition for a new trial under Article 53 is such a process.
If Article 53 had been in force when the habeas corpus proceedings were instituted, the District Court would not have been justified in entertaining the petition unless the remedy afforded by the Article had first been exhausted. An analogy is a petition for habeas corpus in the federal court challenging the jurisdiction of a state court. If the state procedure provides a remedy, which though available has not been exhausted, the federal courts will not interfere. That is not only the holding of the Court in a long line of cases, see Mooney v. Holohan, 294 U.S. 103, 115, 55 S.Ct. 340, 343, 79 L.Ed. 791; Ex parte Hawk, 321 U.S. 114, 116, 64 S.Ct. 448, 449, 88 L.Ed. 572; it is the rule which Congress recently wrote into the Judicial...
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