Lewis v. Sanford, 2259.
| Citation | 79 F. Supp. 77 |
| Decision Date | 22 January 1948 |
| Docket Number | No. 2259.,2259. |
| Parties | LEWIS v. SANFORD, Warden. |
| Court | U.S. District Court — Northern District of Georgia |
J. Ellis Mundy, U. S. Atty., Harvey H. Tisinger, Asst. U. S. Atty., and Eugene Ferry Smith, Colonel, J. A. G. D., Staff Judge Advocate, Third Army, all of Atlanta, Ga., for respondent.
Petitioner was charged before a General Court-Martial convened at Pinecastle Army Air Field, Orlando, Florida, with violation of the 93rd Article of War, 10 U.S.C.A. § 1565, the specifications being four acts of Sodomy and four Assaults With Intent to Commit a Felony, viz: Sodomy, and found guilty of the charges and specifications.
A sentence of twenty-five years imprisonment was imposed December 5, 1946, and duly approved according to law.
Application for habeas corpus was presented alleging that petitioner was denied due process of law in that he was permitted to consult with counsel only one time in advance of trial; that witnesses essential to his defense were not produced to testify in his favor; and that he was not guilty of the charges against him and therefore unjustly convicted. Writ was granted and a hearing had thereon at which petitioner testified and documentary evidence was introduced.
The burden of proof is on the plaintiff (Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461, 146, A.L. R. 357; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830) to establish "the failure to observe that fundamental fairness essential to the very concept of justice." Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166. "Courts sit as well to convict the guilty as to acquit the innocent, and complaint alone, without a showing, that a fair trial has been denied, will not support a reversal." Couchois v. United States, 5 Cir., 142 F.2d 1, 2, certiorari denied 323 U.S. 754, 65 S. Ct. 81, 89 L.Ed. 604.
The mere fact that only one conference was had between petitioner and Defense Counsel does not, without more, amount to denial of a constitutional right. The record discloses that the General Court-Martial, and all of its supporting personnel including Defense Counsel, was detailed on November 18, 1946, and that petitioner's trial did not occur until December 5, 1946, almost three weeks later. In the absence of proof to the contrary, this period of time appears to have been ample for the preparation of petitioner's case. Moreover, petitioner had been previously tried on October 28, 1946 by a General Court-Martial for the identical offenses, and its judgment set aside by reviewing authorities. "No showing is made that petitioner was not permitted to consult with his counsel sufficiently to prepare his defense, and reasonable restrictions may be imposed as to the time and place of consultation between an accused and his attorney without infringing constitutional rights." Altmayer v. Sanford, 5 Cir., 148 F.2d 161, 162.
The only request by petitioner for the production of witnesses, disclosed by the record, occurred during the progress of the investigation when Corporal Lorenzo Fitch was...
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