McMahan v. Hunter

• Decision Date: 04 January 1950
• Docket Number: No. 3975.,3975.
• Citation: 179 F.2d 661
• Parties: McMAHAN v. HUNTER.
• Court: U.S. Court of Appeals — Tenth Circuit

179 F.2d 661 (1950)

McMAHAN v. HUNTER.

No. 3975.

United States Court of Appeals Tenth Circuit.

January 4, 1950.

Charles E. Dierker, Oklahoma City, Okl., for appellant.

Eugene W. Davis, Assistant U. S. Attorney, Topeka. Kan., Col. Reginald C. Miller and Major Oliver R. Wells, Washington, D. C. (Lester Luther, United States Attorney, Topeka, Kan., on the brief), for appellee.

Before PHILLIPS, Chief Judge, and BRATTON, HUXMAN, MURRAH and PICKETT, Circuit Judges.

HUXMAN, Circuit Judge.

The appellant, Robert W. McMahan, while stationed near Gabligen, Germany, with the United States Armed Forces, was charged under Articles of War 92 and 96, 10 U.S.C.A. §§ 1564, 1566, with rape and with wilfully applying to his own use, without proper authority, a truck, the property of the United States. He was tried and convicted before a Military Court-Martial of the crime of attempted rape, and was sentenced to a term of fifteen years. Later, the Commanding General, Headquarters XII, Tactical Air Command, on recommendation of the Judge Advocate General, reduced the sentence to ten years. Petitioner is now serving his sentence in the United States Federal Penitentiary at Leavenworth, Kansas.

On May 9, 1948, he filed his petition for a writ of habeas corpus against appellee, Walter A. Hunter, in the United States District Court for the District of Kansas, for release on the ground that the judgment of the court-martial was void and that, therefore, he was illegally restrained of his liberty by appellee. The basis for this contention was that the court-martial was illegally constituted and that he was denied his fundamental constitutional rights during the trial proceedings.

In view of the conclusions we have reached, it is not necessary to set out the basic facts upon which these contentions are predicated, and for the purpose of this opinion it may be assumed that these allegations are meritorious and well founded.

Habeas corpus is an extraordinary writ. It constitutes a collateral attack upon a judgment and it is generally held that it may not be resorted to until all other available remedies for relief have been exhausted.¹ So one is likewise required to exhaust his remedy before a Board or a Commission before he may resort to the writ.² Article of War 53, 10 U.S.C.A. § 1525,³ afforded the petitioner a remedy to challenge the legality of his detention. It enables a military prisoner to apply to the Judge Advocate General for relief and authorizes the Judge Advocate General for good reason, to grant a new trial, vacate the judgment, restore rights, privileges, and property affected by such sentence, etc. This is much broader relief than can be granted in a habeas corpus proceeding.

Article of War 53 went into effect February 1, 1949. As applied to persons convicted of offenses committed in World War II, an offender has one year from the date of the termination of the war, or within one year after final disposition of a case upon initial appellate review, whichever is later, to make his application. It thus appears that this remedy is available to appellant. In Whelchel v. McDonald, 176 F.2d 260, the Fifth Circuit, under like facts, held that a war prisoner could not avail himself of the benefits of the writ of habeas corpus until he had exhausted his remedy under Article of War 53. We held to the same effect in a per curiam opinion in Spencer v. Hunter, 177 F.2d 370.

Appellant contends, however, that since the judgment in this case in the United States District Court was entered prior to the effective date of Article of War 53, it cannot retroactively be made to apply to him. However, in the early case of U. S. v. The Schooner Peggy, 1 Cranch 103, 2 L.Ed. 49, the Supreme Court held that where a rule of law was changed after the decision in the trial court but before the decision in the Appellate Court, the decision in the Appellate Court must be according to the new law.⁴

On October 10, 1949, the Supreme Court denied the petition for certiorari in seven cases (70 S.Ct. 37-50), all filed against Joseph E. Ragen, a warden of an Illinois penal institution, without consideration of the question presented therein and without prejudice to the right of the petitioners to institute proceedings in the state court under the new act passed by the State of Illinois, entitled: "An Act to provide a remedy for persons convicted and imprisoned in the penitentiary, who assert that rights guaranteed them by the Constitution of the United States or the State of Illinois, or both, have been denied or violated, in proceedings in which they were convicted." Smith-Hurd Stats. c. 38, § 826 et seq. In six of these seven cases, the petition for certiorari had been filed in the Supreme Court prior to the passage of the new Illinois Statute. Thus, the Supreme Court, in effect, held that petitioners were required to exhaust their remedies under the new Statute notwithstanding...