Osborn v. Swope, 14849.

• Decision Date: 10 February 1956
• Docket Number: No. 14849.,14849.
• Citation: 230 F.2d 395
• Parties: Floyd J. OSBORN, Appellant, v. Edwin B. SWOPE, Warden of the United States penitentiary at Alcatraz, California, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

230 F.2d 395 (1956)

Floyd J. OSBORN, Appellant, v. Edwin B. SWOPE, Warden of the United States penitentiary at Alcatraz, California, Appellee.

No. 14849.

United States Court of Appeals Ninth Circuit.

February 10, 1956.

Floyd J. Osborn, in pro. per.

Lloyd H. Burke, U. S. Atty., Richard H. Foster, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before MATHEWS, POPE and FEE, Circuit Judges.

PER CURIAM.

On November 17, 1954, appellant, an inmate of the United States penitentiary at Alcatraz, California, petitioned the United States District Court for the Northern District of California for a writ of habeas corpus directed to the warden of the penitentiary. The District Court did not issue any writ or any order to show cause or conduct any hearing, but, on reading and considering the petition, filed an opinion¹ and entered an order denying the petition. This appeal is from that order.

It appeared from the petition that appellant was charged with having committed a murder (a violation of Article 92 of the former Articles of War, 10 U.S.C.A. § 1564, 41 Stat. 805)² on May 2, 1947, and while subject to military law; that he was tried by a general court-martial, which found him guilty as charged and sentenced him to be imprisoned for life; that he was accordingly imprisoned at Leavenworth, Kansas, and, later, at Alcatraz, California; and that two previous petitions of his for writs of habeas corpus had been denied.³

As stated above, it appeared from the petition in this case that the offense of which appellant was found guilty was committed on May 2, 1947. It thus appeared that the offense was committed during World War II.⁴ Therefore the remedy afforded by Article 53 of the former Articles of War, 10 U.S.C.A. § 1525, 62 Stat. 639,⁵ was available to appellant from February 1, 1949, to May 31, 1951.⁶ However, it did not appear from the petition that appellant had availed himself of that remedy. Much less did it appear that he had exhausted it. It therefore did not appear that he was entitled to a writ of habeas corpus, or that the District Court had jurisdiction to grant him such a writ.⁷ Since the remedy mentioned above is no longer available to appellant, a remand or continuance of this case to permit him to exhaust that remedy⁸ would be futile.

For the reasons we have stated and for those stated in the District Court's opinion,⁹ the order appealed from is affirmed.

1 The District Court's opinion was as follows:

"Petitioner appellant, who is confined at Alcatraz Penitentiary pursuant to a judgment and sentence of a general court-martial, seeks a writ of habeas corpus on the following grounds: (1) that the prosecution knowingly used perjured testimony against him; (2) that essential witnesses for his defense were wilfully transferred so that they would be unavailable to petitioner; (3) that the pre-trial investigating officer did not conduct the impartial investigation required by the former 70th Article of War 10 U.S.C.A. § 1542; (4) that counsel for petitioner was denied sufficient time to prepare the defense.

"A previous application to this court for the writ was denied on June 16, 1954, Civil No. 33432. This prior application sought relief on a ground not asserted in the present petition. However, included in the file on the prior proceeding is a certified copy of an order of the United States District Court for the District of Kansas discharging a writ of habeas corpus granted petitioner while he was confined at Leavenworth Penitentiary. It appears from this order that the Kansas court conducted a full hearing respecting the regularity and propriety of petitioner's court-martial. The Kansas court states in the order that:

"`It is petitioner's contention that he was not given a fair and impartial trial, that evidence favorable to him was criminally repressed by the prosecution, and that he was convicted by means of false testimony obtained through coercion and duress from witnesses who formerly had been held as suspects in return for absolution. On behalf of respondent warden of the United States penitentiary at Leavenworth, Kansas the complete record of the court-martial was introduced and received in evidence, and from all of the evidence, including the testimony of the petitioner, the court makes the following finding: * * * The court further finds that the charges were properly sworn to, investigated by a military investigating officer and referred for trial before a general court-martial by the Commanding General of the Fifth Army. * * * The court further finds from the evidence that the petitioner was not convicted through the use of false testimony obtained through coercion or duress or by evidence unlawfully obtained or used by prosecuting authorities; on the contrary, the court finds that petitioner was convicted by a general court-martial, legally convened, at a trial in which he was not denied any of his legal or constitutional rights; that the trial was proper and regular in all respects and that the sentence imposed, being within the limits authorized by law for the offense of which the petitioner was found guilty, is valid and binding.'

"Although petitioner asserts in the present petition that the questions raised before the Kansas court were dissimilar to the contentions raised here, he sets forth no facts which would indicate that they...