Miller v. Laird, 71-2705.

• Decision Date: 22 August 1972
• Docket Number: No. 71-2705.,71-2705.
• Citation: 464 F.2d 533
• Parties: Samuel C. MILLER, Plaintiff-Appellant, v. Hon. Melvin LAIRD et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

464 F.2d 533 (1972)

Samuel C. MILLER, Plaintiff-Appellant, v. Hon. Melvin LAIRD et al., Defendants-Appellees.

No. 71-2705.

United States Court of Appeals, Ninth Circuit.

July 18, 1972.

Rehearing Denied August 22, 1972.

Charles R. Khoury, Jr. (argued), San Diego, Cal., for plaintiff-appellant.

Robert Filsinger, Asst. U. S. Atty. (argued), Frederick B. Holoboff, Asst. U. S. Atty., Harry D. Steward, U. S. Atty., San Diego, Cal., for defendants-appellees.

Before KOELSCH, CARTER and WRIGHT, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Miller's second amended petition for writ of habeas corpus was denied by the district court and he appeals. We reverse and remand for further proceedings.

A Navy enlisted man since 1967, Miller had served in the western Pacific before determining in February 1970 that he considered himself a conscientious objector. While his claim for release from military service was being processed, Miller was advised, in May 1970, that he would be ordered to overseas service with his unit. He refused to board his ship and, in August 1970, filed his first petition for habeas corpus, naming as respondents the appellees Laird and Chafee and the commanding officer of the San Diego Naval Air Station. He sought, inter alia, discharge from the service, an injunction against the institution of court martial proceedings against him and his removal from the jurisdiction, and a declaratory judgment that his overseas orders in May were issued in violation of law and regulations.

Appellant amended his petition in October 1970 on the eve of threatened court martial proceedings, seeking essentially the same relief. He alleged that the Chief of Naval Personnel and others had by delay and paper-shuffling deliberately frustrated Miller's efforts to obtain a decision on the merits of his application for discharge. A temporary restraining order was refused and a hearing date of October 21 was assigned. The case was taken off the court's calendar on the court's motion and a response was ordered by December 11, 1970. The latter asserted that final Navy action on Miller's application would await determination of the pending court martial proceeding and the nature of the discharge to be ordered.

The court martial was convened and Miller was convicted in December of missing a military movement, in violation of Article 87, Uniform Code of Military Justice. He was sentenced to a bad conduct discharge, confinement for nine months, forfeiture of pay and allowances, and reduction in rank.

While he was in the brig in San Diego, Miller lodged with the clerk on April 5, 1971 a Second Amended Petition for writ of habeas corpus. On the following day the Navy transferred him to Portsmouth, New Hampshire for confinement.

The government opposed the filing of the latest petition; the court held a hearing and, on June 1, 1971, ordered the paper to be filed. The court denied the petition on July 28, 1971, holding it lacked jurisdiction because Miller was not then in the custody of any person within the judicial district citing Schlanger v. Seamans, 401 U.S. 487, 91 S.Ct. 995, 28 L.Ed.2d 251 (1971).

Miller has served his sentence, his conviction having been affirmed on military appeal, and he has exhausted his administrative remedies. The federal court retained habeas corpus jurisdiction to "dispose of the matter as law and justice may require," despite Miller's discharge. See, e. g., Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Brown v. Resor, 407 F.2d 281 (5th Cir. 1969). For example, if Miller was wrongfully denied an administrative discharge as a conscientious objector, his court martial conviction may be invalid under United States v. Noyd, 18 U.S.C.M.A. 483, 40 C.M.R. 195. Cf. Parisi v. Davidson, 405 U.S. 34, 42, 44-45 n. 13, 92 S.Ct. 815, 31 L.Ed.2d 17 (1972).

The question before us is simply stated: did the filing of the second amended petition relate back to the date of the original petition, so as to keep jurisdiction in the district court...