Morales v. Obarski
| Decision Date | 22 September 1971 |
| Docket Number | Civ. No. 431-71. |
| Citation | 337 F. Supp. 368 |
| Parties | Alexis George MORALES, Petitioner, v. Col. Stanley J. OBARSKI, Base Commander, Ramsey Air Force Base, Aguadilla, Puerto Rico, Paul Seamans, Secretary of the Air Force, Respondents. |
| Court | U.S. District Court — District of Puerto Rico |
Roberto José Maldonado, Rio Piedras, P. R., for petitioner.
Julio Morales Sánchez, U. S. Atty., San Juan, P. R., for respondents.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner filed on June 18, 1971, a Petition for Writ of Habeas Corpus seeking his release or discharge from the custody of the respondents. In the alternative, the petitioner seeked that he be not removed from the jurisdiction of this Court, pending the final determination of his petition and that upon a final determination, this Court issue an order directing the respondents to discharge him from their custody and from the custody of the Armed Forces.
On July 13, 1971, this Court issued an Order to Show Cause why the Writ of Habeas Corpus should not be issued as prayed.
The respondents filed on July 20, 1971, a motion to dismiss the petition on the grounds that neither the petitioner nor his custodian, are in the jurisdiction of this Court, as required by Schlanger v. Seamans, 401 U.S. 487, 91 S.Ct. 995, 28 L.Ed.2d 251 (1971); Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948); Wurster v. Perrin, 303 F.Supp. 480 (D.P.R.1969); Morales Crespo v. Perrin, 309 F.Supp. 203 (D.P.R.1970); United States ex rel. Rudick v. Laird, 412 F.2d 16 (2nd Cir. 1969), cert. den. 396 U.S. 918, 90 S.Ct. 244, 24 L.Ed.2d 197; Jarret v. Resor, 426 F.2d 213 (9th Cir. 1970); and Pérez Jiménez v. Laird, 325 F.Supp. 457 (D.P.R.), decided on April 30, 1971 by Judge Fernández Badillo.
A hearing on the Order to Show Cause was held on July 22, 1971 at which time this Court instructed the parties to file, not later than August 20, 1971, simultaneous memoranda, to be accompanied with affidavits and all pertinent documents covering the question of the jurisdiction of this Court. On motion of petitioner, the date of the filing of said memoranda was extended to September 3, 1971.
On August 23, 1971, the petitioner, who on said date was present in Puerto Rico because of a leave granted to him, filed a motion requesting this Court to issue a Temporary Restraining Order. Appearing that there was no opposition on the part of the respondents and that irreparable harm would have been caused to the petitioner if he were removed from the jurisdiction, making it impossible for him to confer with his attorney, this Court granted the motion on the same day.
This Court heard, on August 30, 1971, more argument for the petitioner and the respondent on the order to show cause.
Again, on September 3, 1971, the case was called for hearing on a motion of petitioner for an extension of the temporary restraining order granted on August 23, 1971. The Court granted the motion. On this same date, the petitioner and the respondents filed the memorandum of law this Court requested from them on July 22, 1971. The petitioner was given until September 8, 1971 to file any opposition to the respondents' memorandum of law. It was further stated by the Court that any failure on the part of the petitioner to file any memorandum in opposition to respondents' memorandum of law, would not keep the Court from entering a decision on this case.
On September 8, 1971, the petitioner requested an extension for filing a memorandum of law in opposition to respondents' memorandum of law and the Court granted an extension until September 9, 1971 at 5:00 P.M. The petitioner failed to file any memorandum in opposition to respondents' memorandum of law on said date.
The Temporary Restraining Order granted on August 23, 1971 and extended on September 3, 1971, was extended by this Court on September 13, 1971 and on September 17, 1971 in order to file formal Findings of Fact, Conclusions of Law and Judgment.
The jurisdiction of this Court was invoked pursuant to Title 28, United States Code, Sections 2241(a), 2241(c) (1) and 2241(c) (3).
On the basis of the foregoing, the exhibits admitted in evidence, the memoranda of law submitted by the parties and the affidavits and Air Force Regulations attached to the respondents' memorandum of law, this Court hereby enters the following
Petitioner was a reservist under the control of the Air Force Personnel Center in Denver, Colorado, as a "non-unit participant". He was serving his term in the Reserve in Puerto Rico under the administrative supervision of said Air Force Personnel Center and had no obligation to attend drills in any unit in Puerto Rico or elsewhere.
On March 29, 1971, the petitioner was notified in writing by the Air Reserve Personnel Center, Denver, Colorado, that under the provisions of the Executive Order 11366 of August 4, 1967 and the Department of Defense Directive 1215.13 of February 23, 1967, he had been ordered to extended active duty for failure to comply with his incurred military obligation by reason of his failure to obtain a Ready Reserve Assignment.1 Through the same letter, he was also notified that the Special Order AB-1371 of March 23, 1971 placed him on extended active duty effective May 3, 1971.
Special Order AB-1371 of March 23, 1971, for extended involuntary active duty tour2 expressed on its Item 11, that the petitioner in this cause was assigned to Detachment 446, 2200 Support Squadron, AFRES, Ellington Air Force Base, Houston, Texas, with approximately ten (10) days enroute at Ramey Air Force Base, Aguadilla, Puerto Rico, for active duty processing and transportation to ZI. Item 12 of said special order expressed that the effective date of duty was May 3, 1971, and that the petitioner should proceed and report not later than May 3, 1971 to Consolidated Base Personnel Office, Ramey Air Force Base, Aguadilla, Puerto Rico. Said Item of the special order further stated that he was to report to the Commander of Detachment 446, 2200 Support Squadron, Ellington Air Force Base, Houston, Texas, not later than four days after arrival in ZI.
On April 17, 1971, the petitioner sent to the Air Reserve Personnel Center an "Appeal" requesting those authorities to rescind their order calling him for active duty and also requesting a hearing on the matter.
The extended active duty orders, AB-1371, was amended by Special Order AB-36703 in May 20, 1971.
Petitioner failed to comply with the Special Order AB-1371, as amended by Special Order AB-1370.
On June 4, 1971, DD Form 553, called "Absentee Wanted by the Armed Forces," was issued.4 Said form expressed that the petitioner, had been absent without leave from 2578 Air Base Group, Ellington Air Force Base, Houston, Texas, since May 4, 1971 and had been dropped from the rolls as a deserter since June 2, 1971. A copy of this form was sent to the Rio Piedras Police Department, Rio Piedras, Puerto Rico, to the Security and Law Enforcement Officer at Ramey Air Force Base, Aguadilla, Puerto Rico and to other pertinent authorities.
On June 15, 1971, the Rio Piedras Police Station, Rio Piedras, Puerto Rico, received DD Form 553 from the United States Air Force. Pursuant to said form, the Police of Puerto Rico delivered summons to the petitioner's father at his place of residence. On June 16, 1971, the petitioner in this cause appeared at the Rio Piedras Police Station. Said police station notified the petitioner's presence to Fort Buchanan, Third Army Group. Two members of the Military Police Unit of the Third Army Group, who handle the return of military absentees to military control appeared at the Police Station and proceeded to take the petitioner away.
The petitioner remained at Fort Buchanan until June 17, 1971 when he was released to the Air Force Police, who took him back to Ramey Air Force Base, Aguadilla, Puerto Rico, arriving there at approximately 2:00 P.M. of that day. At said air base, the petitioner was confined until approximately 11:30 A.M. of June 18, 1971, when he was to be taken to the terminal to board an aircraft to take him to Memphis, Tennessee, from where he was to proceed by aircraft to New Orleans, Louisiana and from said last city to Houston, Texas and then by car to Ellington Air Force Base, Texas. After some delay caused by the petitioner's refusal5 to board the aircraft, it took off at approximately 1:00 P.M.6 of said June 18, 1971.
A petition for a writ of habeas corpus was filed by the attorney for the petitioner at approximately 3:45 P.M. on June 18, 1971; that is, after the petitioner had departed by aircraft bound to Memphis, Tennessee.
The respondents, on a Motion to Dismiss the petition for the Writ of Habeas Corpus filed on July 20, 1971, assert that this Court lacks jurisdiction because neither the petitioner nor his custodian are under the jurisdiction of this Court.
In the memorandum of law filed by the respondents on September 3, 1971, in support of their motion to dismiss, the respondents reaffirm their assertion that this Court lacks jurisdiction and state as a further ground for dismissal that the petitioner has not exhausted the administrative remedies available.7
In view of the foregoing Findings of Fact, the Court makes the following
The power to hear habeas corpus petitions is granted to federal district courts by Title 28, United States Code, Section 2241, which in its pertinent part, provides:
"(a) writs of habeas corpus may be granted by * * * the district courts * * * within their respective jurisdictions."
In the recent case of Schlanger v. Seamans, 401 U.S. 487, 91 S.Ct. 995, 28 L.Ed. 2d 251 (1971), the Supreme Court of the United States decided that to satisfy Title 28, U.S.C., Section 2241(a), it is not only required for a petitioner to be in custody within the territorial jurisdiction of a district court, but that it is also a...
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