Harris v. Ciccone
| Citation | 290 F. Supp. 729 |
| Decision Date | 13 August 1968 |
| Docket Number | Civ. A. No. 14960-3. |
| Parties | Robert C. HARRIS, Petitioner, v. Dr. P. J. CICCONE, Director, United States Medical Center for Federal Prisoners, Springfield, Missouri, Respondent. |
| Court | U.S. District Court — Western District of Missouri |
John J. Kitchin, Swanson, Midgley, Jones, Eager & Gangwere, Kansas City, Mo., for petitioner.
F. Russell Millin, by John Harry Wiggins, Kansas City, Mo., for respondent.
The petitioner Robert C. Harris seeks review by habeas corpus of a sentence of twenty-five years imposed by a General Court Martial at Stuttgart, Germany, on July 20, 1950. When the petition herein was filed, the petitioner was imprisoned in the United States Medical Center for Federal Prisoners, Springfield, Missouri.
Since the filing of the petition and the evidentiary hearing thereon, the petitioner has at his request and with leave of court been transferred to the United States Penitentiary at Lewisburg, Pennsylvania, and thereafter been released on parole. The transfer with leave of court and the release of petitioner on parole does not divest this Court of jurisdiction to decide this case on the merits. Holland v. Ciccone, (C.A. 8) 386 F.2d 825. Nor does petitioner's release from custody divest this Court of jurisdiction or render the case moot. Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554.
While the petitioner was still confined in the Medical Center, and while his transfer to the Lewisburg, Pennsylvania institution was anticipated, an evidentiary hearing on the petition, at which petitioner testified, was held. The findings of fact herein are based on the files and records in this case and upon the evidentiary hearing.
In addition to the records and files of this Court in this case, the record of the evidentiary hearing includes the certified complete record of the Department of the Army of the trial of petitioner by General Court Martial and the review thereof certified by the Secretary of the Army which has been admitted into evidence. (Court's Exhibits 1, 2, 3, 4 and 5).
When it became apparent that the petition raised substantial questions of law and fact, and "Order To Show Cause" why the writ should not be granted was issued to respondent's predecessor.
On motion of petitioner for appointment of counsel, John J. Kitchin, Esquire, of Kansas City, Missouri, an exceptionally able and qualified counsel, was appointed to represent the petitioner. Mr. Kitchin has performed his duties as counsel for petitioner, who was a stranger to him, with loyalty, wisdom, devotion, intelligence, and industry in keeping with the highest traditions of the Bar.
Because petitioner was transferred from custody in this District and conditionally released, decision of this cause was stayed because of possible developments in pending cases in the field of post-conviction review of Court Martial convictions. Under current decisions no relief was indicated at the time. Subsequent developments have not warranted granting relief.
At the direction of the Court, counsel for the parties met and agreed on the following statement of issues (or questions) affecting the legality of the petitioner's sentence and confinement.
1) Does the United States District Court have jurisdiction to hear petitioner's complaints?
2) Were petitioner's constitutional rights violated during the course of the investigation performed prior to court-martial because of lack of legal counsel?
3) Were petitioner's constitutional rights violated in that he had no legal representation at post-trial review?
4) Was there a failure by the prosecution to inform the accused completely of the nature of the charges against him?
5) Was petitioner adequately represented by legal counsel at his trial by court-martial?
6) Did the fact that petitioner's trial by court-martial lasted only one day deny him due process of law?
7) Were petitioner's rights violated through acceptance and consideration of testimony given by an accomplice at the trial by court-martial?
8) Was there a failure of defense counsel to call witnesses, cross-examine witnesses and introduce evidence favorable to petitioner, and was such failure in violation of the petitioner's right to a fair trial?
Counsel were unable at this point to agree on a stipulation of facts. So a statement of facts in detail by petitioner was required. Respondent was ordered to file a detailed written statement of facts in response. A statement of facts and a response were filed.
The petitioner Robert C. Harris, at all times mentioned herein concerning the time of commission of the offenses of which he was convicted and sentenced by General Court Martial until the judgment and sentence became final, was a literate adult, serving in the United States Army in Germany in the grade of corporal. His official duty station was in Gelnhausen, Germany, near Frankfurt.
While so serving on July 20, 1950, he was convicted by General Court Martial properly convened at Stuttgart, Germany, of the following offenses committed on April 23, 1950:
At the trial the petitioner was represented by a civilian counsel of his choice (though not his first choice) and by assigned military counsel. Petitioner plead not guilty, did not testify in his behalf and no alleged admissions or confessions of petitioner were admitted in evidence.
At the trial petitioner did not raise the question of the adequacy of his representation in the pretrial investigation.
The record of this case, including the official record of the General Court Martial, shows that the petitioner's conviction rested upon positive eyewitness testimony of his guilt by an accomplice strong corroborating factual testimony, and physical and opinion evidence. Neither before nor after the finding of guilty and before the Court Martial retired for sentencing did the defendant make any claim of alibi, inability to secure material evidence or inadequacy of counsel, or other claim made here. Defendant admits he was asked, after the finding of guilty and before sentence, if he had anything to say before sentence was considered (Tr. March 29, 1966, page 37).
In accordance with Article of War 47 (62 Stat. 634) the convening authority referred the record of the trial of petitioner to his Staff Judge Advocate for review. The review of the Staff Judge Advocate was a careful review of the record, including the testimony and exhibits, findings of guilt and sentence. Even minor non-prejudicial error in the admission of a conclusion of one of the victims was noted. (Court's Ex. 5).
Pursuant to Article of War 50(e) execution of the sentence was withheld until final review by the Board of Review. On August 17, 1950, the Board of Review held the record of the trial to be legally sufficient and to support the findings of guilty and the sentence imposed. (Court's Ex. 5).
On August 25, 1950, the sentence was approved and ordered to be effective. A United States penitentiary, reformatory, or other such institution was designated as the place of confinement. For execution of the sentence of imprisonment the petitioner was committed to the custody of the Attorney General. (Court's Ex. 5). Pursuant to this commitment the petitioner was imprisoned in this District.
The petitioner was not represented by employed counsel or appointed counsel in the post-trial Court Martial proceedings before the Board of Review. Petitioner did not request the appointment of counsel nor seek to employ counsel to represent him in the post-trial review proceedings. The government was not represented by counsel before the Board of Review.
Despite his recent claims and testimony, petitioner was not ignorant of the nature of the charges and specifications against him neither before nor after they were preferred.
Petitioner was not unaware of the nature of the post-trial review proceedings despite his claim that he was ignorant of the alleged "right" to counsel before the Board of Review, a "right" which did not exist in 1950.
Petitioner was represented in the pretrial investigation by two officers who were not lawyers. Petitioner made no statements or admissions during the pretrial investigation.
Before the trial petitioner attempted to employ as civilian counsel an American civilian practicing in Germany (Mr. Gower) who visited petitioner, but who proved to be unavailable. After petitioner was advised of the unavailability of Mr. Gower, petitioner requested the services of a civilian lawyer Mr. Willmore, chosen by him, who undertook the defense of petitioner in association with army-appointed counsel Major Owen. Petitioner had adequate and effective assistance of counsel at the trial level.
Despite his recent claims and testimony, petitioner's election not to testify in his defense was not the result of a misunderstanding of the grade or gravity of the alleged offenses or any of them.
In 1963, petitioner unsuccessfully sought leave to petition review of his conviction by the United States Court of Military Appeals. This leave was denied because review was not within the jurisdiction of that body which had not been created when petitioner's conviction became final. (Court's Ex. 4).
1. This Court has jurisdiction to determine the merits of the petition for...
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Harris v. Ciccone
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