Levy v. Dillon

• Decision Date: 18 September 1969
• Docket Number: No. 78-68.,78-68.
• Citation: 415 F.2d 1263
• Parties: Captain Howard Brett LEVY, Appellant, v. Colonel Wilbur DILLON, Commandant, United States Disciplinary Barracks, Fort Leavenworth, Kansas, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

415 F.2d 1263 (1969) Captain Howard Brett LEVY, Appellant, v. Colonel Wilbur DILLON, Commandant, United States Disciplinary Barracks, Fort Leavenworth, Kansas, Appellee.

No. 78-68.

United States Court of Appeals Tenth Circuit.

September 18, 1969.

Burt Neuborne, New York City (Alan H. Levine, New York City, Wayne T. Stratton, Topeka, Kan., and Charles Morgan, Jr., Atlanta, Ga., with him on the brief) for appellant.

Capt. Richard F. Locke, JAGC, Washington, D. C. (Benjamin E. Franklin, U. S. Atty., Kenneth F. Crockett, Asst. U. S. Atty., Topeka, Kan., and Lt. Col. Arnold I. Melnick, JAGC, Washington, D. C., with him on the brief) for appellee.

Before LEWIS, BREITENSTEIN and HICKEY, Circuit Judges.

HICKEY, Circuit Judge.

Captain Howard Brett Levy, a commissioned medical officer of the United States Army on active duty, was tried and found guilty of violating Articles 90, 133 and 134 of the Uniform Code of Military Justice (U.C.M.J.) on June 2, 1967, by general court-martial. He was sentenced on June 3 of that year to dismissal from the service, forfeiture of pay and allowances, and confinement at hard labor for three years. The sentence was approved by the convening authority, the Commanding General of the United States Army Training Center, Fort Jackson, South Carolina. An appeal was taken to the Army Board of Review, No. 2. On September 1, 1968, the Board of Review affirmed the conviction and sentence. Thereafter Levy filed a petition seeking review by the United States Court of Military Appeals. On January 6, 1969, the Court of Military Appeals denied the petition for review on the merits of the conviction and sentence.

During these proceedings involving the merits of the conviction and sentence, Levy filed a petition in the Federal District Court for the District of South Carolina seeking a writ of habeas corpus or, in the alternative, admission to bail pending the completion of military appeals on the merits. On July 6, 1967, this petition was dismissed. It was appealed to the Fourth Circuit Court of Appeals who affirmed the dismissal and granted an order authorizing the transfer of Captain Levy from Fort Jackson to Fort Leavenworth, Kansas. See Levy v. Resor (D.So.Car.1967), aff'd 384 F.2d 689, cert. denied, 389 U.S. 1049, 88 S.Ct. 789, 19 L.Ed.2d 843 (1968).

At the time he initiated the district court proceedings, Levy filed a petition requesting the same relief from the Court of Military Appeals. On July 7, 1967, the Court of Military Appeals denied his petition, concluding that the provisions for bail under the Eighth Amendment of the Constitution of the United States and the Bail Bond Act did not apply to members of the military service. However, the opinion affirmed the right of the members of the military service to petition the Court of Military Appeals for a writ of habeas corpus. Levy v. Resor, 37 C.M.R. 399 (1967).

Pursuant to the order of the Fourth Circuit Court of Appeals and under the discretion reposed in the Commanding Officer pursuant to § 21(d) of the Manual for Courts-Martial, 1951,¹ Captain Levy was transferred from Fort Jackson to Fort Leavenworth.

On July 1, 1968, a petition was filed in Levy's behalf for a writ of habeas corpus with the United States District Court for the District of Kansas. This petition charged that his confinement at Fort Leavenworth constituted a de facto execution of his sentence prior to the completion of military review of his conviction and sentence on the merits, above discussed.

The bases of this charge are the provisions contained in Article 71(c) U.C. M.J.²

The District Court for the District of Kansas held a full evidentiary hearing and concluded that Levy had not exhausted his military remedies,³ that he was not being held in violation of any recognized right, and that his sentence to restraint at Fort Leavenworth was not a de facto execution of the conviction and sentence then being considered in appellate review. Accordingly, the petition was dismissed. This appeal presents the issues raised in the trial court.

In October of 1968 this court published its opinion in Noyd v. Bond, 402 F.2d 441 (10th Cir. 1968). That case established the requirement of exhausting all military remedies, including petitioning the Court of Military Appeals for habeas corpus, before jurisdiction of a federal district court attached. Immediately after this opinion was promulgated, Levy filed a petition in the Court of Military Appeals raising the same issues presented to the Kansas District Court. On November 27, 1968, the Court of Military Appeals denied that petition without opinion.

It will be noted from the foregoing that approximately two weeks before oral argument of this matter in this court a review of the merits of the original conviction and sentence was denied by the Court of Military Appeals. Immediately before argument the mandate came down ordering the execution of sentence.

The burden of the argument made by the government in this case is that the issue is now moot. It is contended that the mandate ordering the execution of the sentence had the effect of mooting the application for a writ of habeas corpus, because any arguable violation of Article 71(c) U.C.M.J. no longer exists. Peyton v. Rowe, 391 U.S. 54, 66, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968) and Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), teach that if, at the time the habeas corpus petition is considered, justice requires relief for the applicant, a federal court possesses power to grant any form of relief necessary to satisfy the requirement of justice. We therefore conclude that the case is not moot.

Recognizing the fact that the original conviction and sentence, which had the effect of denying the liberty of the petitioner, is not being considered in this proceeding, we proceed to consider the collateral attack herein presented.

At the outset, we recognize that cruel and unusual punishment under the Eighth Amendment is not an issue here.

The limited question before us concerns itself with the order of the Fourth Circuit Court of Appeals authorizing the transfer and affirming the exercise of discretion⁴ of the Commanding Officer at Fort Jackson. The issue can be further refined to whether or not the conditions of restraint established in the record are more rigorous than necessary.

Exhibits B and E...