Palomera v. Taylor

• Decision Date: 03 May 1965
• Docket Number: No. 8018.,8018.
• Citation: 344 F.2d 937
• Parties: Marion R. PALOMERA, Appellant, v. J. C. TAYLOR, Warden, United States Penitentiary, Leavenworth, Kansas, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

344 F.2d 937 (1965)

Marion R. PALOMERA, Appellant, v. J. C. TAYLOR, Warden, United States Penitentiary, Leavenworth, Kansas, Appellee.

No. 8018.

United States Court of Appeals Tenth Circuit.

May 3, 1965.

Marion R. Palomera, pro se.

Benjamin E. Franklin, Asst. U. S. Atty., Newell A. George, U. S. Atty., Abraham Nemrow, Lt. Colonel, JAGC, and James R. Robinson, Lt. Colonel, JAGC, Office of the Judge Advocate Gen., for appellee.

Before PICKETT, BREITENSTEIN and HILL, Circuit Judges.

HILL, Circuit Judge.

This is an appeal from a denial of a petition for a writ of habeas corpus. Petitioner in his written papers alluded to this proceeding as being both a motion to vacate the sentence within the purview of 28 U.S.C. § 2255 and a petition for habeas corpus. The lower court considered the matter only as a petition for habeas corpus and we agree. A motion under 28 U.S.C. § 2255 is not proper here because the petitioner was sentenced by a military court-martial convened in 1944.

The facts may be summarized as follows: In 1944, the appellant was on active duty as a Second Lieutenant in the U. S. Army. On May 13 of that year, he was convicted by a General Court-Martial of premeditated murder in violation of Article of War 92 and sentenced to be dismissed from the service, to forfeit all pay and allowances and to be confined at hard labor for the term of his natural life. Appellate review, as required by the then applicable Articles of War, was completed and on October 12, 1944, the sentence was ordered executed. On February 11, 1950, by direction of the President, so much of the confinement as was in excess of thirty years, was remitted. On September 7, 1950, the period of confinement was further reduced to twenty-four years. He was released on parole on January 24, 1953. The parole was revoked on 24 April 1963 and he was returned to Federal custody. His present place of confinement is the U. S. Penitentiary at Leavenworth, Kansas, where his sentence will expire on July 31, 1973 (with good-time reduction) and at full term on September 8, 1978.

Before taking up each of petitioner's contentions, it may be helpful to set forth as nearly as possible the scope of our review in this case. While the civil courts are authorized to review a military conviction on habeas corpus, that review has generally been limited to determine whether the court-martial had jurisdiction of the person accused and the offense charged and whether it acted within its lawful powers. Hiatt v. Brown, 339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. 691 (1950). This review has also been held to include an examination of the accused's Constitutional rights but only to see that the military courts have given due consideration to the guarantees afforded by the Constitution. Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953); Easley v. Hunter, 209 F.2d 483 (10th Cir., 1953); Suttles v. Davis, 215 F.2d 760 (10th Cir., 1954).

Petitioner first asserts that he was mentally incompetent at the time of his arrest and trial. The only question for us to decide is whether or not the accused had an opportunity to present the insanity issue. Once we see that opportunity afforded, our inquiry must end. Whelchel v. McDonald, 340 U.S. 122, 71 S.Ct. 146, 95 L.Ed. 141 (1950). It appears that the first issue of the accused's mental competency arose in the pre-trial investigating officer's report. Again at the trial where the accused was represented by counsel, a medical officer who previously examined the petitioner testified at length concerning his psychiatric...