Morales Crespo v. Perrin, Civ. No. 870-69.
| Decision Date | 24 February 1970 |
| Docket Number | Civ. No. 870-69. |
| Citation | 309 F. Supp. 203 |
| Parties | Candido MORALES CRESPO, on behalf of his minor son Candido Morales Irizarry, Petitioner, v. Bert PERRIN, Commanding Officer Headquarters, U. S. Army Forces Southern Command, Puerto Rico, Jack K. Sterne, Commanding Officer, Command Support Detachment, Third Army, Ft. Buchanan, Puerto Rico, Respondents. |
| Court | U.S. District Court — District of Puerto Rico |
Roberto Jose Maldonado, San Juan, P. R., and Olaguibet Lopez Pacheco, Río Piedras, P. R., for petitioner.
Blas C. Herrero, U. S. Atty., San Juan, P. R., for respondents.
This case came on for hearing on January 2, 1970 upon the show cause order issued by this Court on December 23, 1969 and the return thereto filed by respondents on December 29, 1969. Appearing for the petitioner was Mr. Olaguibeet A. Lopez Pacheco, Esq. and U. S. Attorney Blas C. Herrero, Jr. for respondents.
Statements of the attorneys for both parties having been heard, a memorandum of law requested on the issue of whether the Court lacks jurisdiction to entertain the petition for writ of habeas corpus having been filed and thoroughly examined and the Court, otherwise fully advised in the premises, finds that it lacks jurisdiction to entertain the present petition for writ of habeas corpus because it has been filed in an improper district.
Candido Morales Irizarry voluntarily enlisted into the Armed Forces of the United States on June 19, 1969 at the Armed Forces Entrance and Examining Station, Fort Brooke, Puerto Rico. Two days later he was ordered to report to the US Army Personnel Center, Fort Jackson, South Carolina. On June 30, 1969 he was transferred to Company A, 4th Battalion, 2d Brigade, US Army School/Training Center at Fort Gordon, Fort Gordon, Georgia, where he received basic training. After basic training, on September 30, 1969 Private Morales was reassigned within Fort Gordon to Company E, 8th Battalion, Third Advanced Infantry Training Brigade where he satisfactorily completed his advanced infantry training.
On November 4, 1969 petitioner received orders1 which authorized him twenty (20) days leave before having to report to the United States Army Overseas Replacement Station, Oakland Army Terminal, Oakland, California on December 1, 1969. He was to be processed at Oakland for onward movement to the Republic of Vietnam.
During his leave Morales came to visit Puerto Rico and on December 1, 1969 failed to report as ordered and remained in Puerto Rico in a status of absence without leave. On December 22, 1969 he voluntarily presented himself to military authorities at Fort Buchanan. Having ascertained his status as a member of the Armed Forces, the Army authorities at Fort Buchanan began assisting the petitioner in obtaining transportation to Oakland, California. While engaged in this process petitioner's attorney filed the present petition in this Court.
Although applicant is physically present within the territorial limits of this district, he has never been assigned to an Army post within this district. When he was granted leave, he was free to come to Puerto Rico but was not required to do so.
Title 28, United States Code, Section 2241(a) provides that:
"Writs of habeas corpus may be granted by * * * the district courts * * * within their respective jurisdiction."
This statutory language limits the power of the district courts to hear and determine a petition for writ of habeas corpus to those instances in which the applicant is "both physically present in the court's territorial jurisdiction and is detained or held in custody within that district."
United States ex rel. Rudick v. Laird, 412 F.2d 16, 20 (2d Cir. 1969) states that:
* * * A member of the Armed Forces who is voluntarily in a place other than an assigned post is...
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Meck v. Commanding Officer, Valley Forge Gen. Hosp., 19276.
...Oakland, Cal., who was AWOL and turned himself in to civilian authorities at his home in Eugene, Oregon). But see Morales Crespo v. Perrin, 309 F.Supp. 203 (D.P.R.1970) (Army enlisted man assigned to Oakland, Cal., who was AWOL and turned himself in to military authorities at his home in Pu......
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United States ex rel. Armstrong v. Wheeler, Civ. A. No. 70-1755.
...for habeas corpus either in the district of his prior active duty station or in that of his subsequent station. Morales Crespo v. Perrin, supra, 309 F.Supp. at 205; Weber v. Clifford, 289 F.Supp. 960, 961 The Army's contacts with Armstrong in Philadelphia from 1967 to the present make the c......
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...Armstrong v. Wheeler, 321 F.Supp. 471 (E.D. Pa.1970); U.S. ex rel. Lohmeyer v. Laird, 318 F.Supp. 94 (D.C.Md.1970); Morales Crespo v. Perrin, 309 F.Supp. 203 (D.C.P.R.1970); Silberberg v. Willis, 306 F.Supp. 1013 (D.C.Mass. 1969), rev'd on other grounds, 420 F.2d 662 (1st Cir. 1970); Laxer ......
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...to demonstrate that the petitioner is already A.W.O.L. Feliciano v. Laird, 426 F.2d 424, 427 n. 4 (2d Cir. 1970); Morales Crespo v. Perrin, 309 F.Supp. 203, 205 (D.P.R.1970); United States ex rel. Armstrong v. Wheeler, 321 F.Supp. 471, 476 (E.D.Pa. 1970); Laxer v. Cushman, 300 F.Supp. 920, ......