Ramos v. United States, Civ. A. No. 4420.

• Citation: 319 F. Supp. 1207
• Decision Date: 02 December 1970
• Docket Number: Civ. A. No. 4420.
• Parties: Anthony Dennis RAMOS v. UNITED STATES of America.
• Court: U.S. District Court — District of Rhode Island

319 F. Supp. 1207

Anthony Dennis RAMOS v. UNITED STATES of America.

Civ. A. No. 4420.

United States District Court, D. Rhode Island.

December 2, 1970.

Seth K. Gifford, Providence, R. I., for petitioner.

Lincoln C. Almond, U. S. Atty. for R. I., Joseph C. Johnston, Jr., and Constance L. Messore, Asst. U. S. Attys. R. I., Providence, R. I., for respondent.

OPINION

PETTINE, District Judge.

Introduction

This is a petition brought under 28 U.S.C. § 2255¹ seeking to set aside or reduce a two and one-half year sentence which I imposed upon petitioner on October 4, 1968, and which he began serving on August 15, 1969, following his conviction under 50 U.S.C. App. § 462, for refusal to report for induction into the Armed Forces. Petitioner contends first that he was prejudiced by the failure of his local draft board to inform him of his right to be counselled by a Government Appeal Agent and to be advised of administrative procedures in accordance with Local Board Memorandum No. 82 of the Selective Service System; and secondly that since the date of his conviction and sentence the criterion for determination of conscientious objector status under 50 U.S.C. App. § 456(j)² has been changed by Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970) (hereinafter referred to as Welsh), and as a consequence his sentence should be vacated or reduced.

The Facts

Following an indictment for refusing to report for induction, petitioner moved for dismissal on the grounds that the local board acted arbitrarily and capriciously in denying him a Conscientious Objector classification and that inadequate notice was given him regarding the denial of his claim.

An evidentiary hearing was held on the motion and it disclosed that after several student deferments, the petitioner was classified I-A and was mailed a Form SSS 110. Following a series of letters between himself and the draft board, he filed Conscientious Objector Form SSS 150 which resulted in a reopening of his classification and consideration of his C.O. claim on the basis of the statements he set forth therein. I deem it essential to set forth verbatim and in its entirety the petitioner's profession of beliefs, as this is the totality of the evidence bottoming the local board's findings.

Petitioner's Statement to the Local Board (SSS Form 150)

"As you know many many volumes have been written on the nature of the supreme being; his whereabouts, physical make-up, his affect on our lives. I am not able to express my feelings in such a scholarly manner. Therefore I shall try in as few words as possible to explain my beliefs and feelings in and towards the supreme being.

`God' is not the same God as is found in most organized religions. (The Quakers and many Eastern religions may be excluded). He does not need a big fancy temple erected to himself. He does not favor one man over another, or one religion over another, or one nation over another. God is not a super Ego sitting on a cloud raining down damnation on us poor weak humans. God is an idea, a force that pervades all existence. He is the laws that make the Earth go around the sun; the laws that make the entire universe exist. He is that special mystical something that enables all cultures, all nations, all religions to create a certain set of rules that they know they should live by in order to exist. The most basic of these rules can be found in the Christian bible, The Koran, in Hindu and Buddhist writings and so on Ad-Infinitum.

1) Thou Shall Not Kill;

2) Love Thy Neighbor As Thyself

3) Do Unto Others As You Would Have Others Do Unto You.

These rules are not only rules that we should live by, they are rules that we must live by if man is going to continue existing.

The world has never completely followed the rules of Gods universe. Thou shall not kill has been amended to— Thou will kill if I the state demand it of you, if not you will be punished.

Love thy neighbor as thyself is now translated as—I love my neighbor as long as he is not Negro, Italian, Irish, Polish, Hungarian, Puerto Rican, German, Catholic, Protestant. The list is endless and may be filled in according to ones own religious and ethnic preferences.

Do unto others as you would have others do unto you has been corrupted into —You better do it to him before he gets a chance to do it to you or else you won't get ahead.

Gentlemen, I submit to you that I cannot and will not live in any manner other than that which I believe is right. God is not standing on a golden cloud threatening to punish me for doing evil, but he has established a floor plan for a good and just life. It is up to me and man to follow these rules or perish.

I have read and do read the bible, I also read Hindu writings, I know something about the Koran. I can discuss philosophy from Plato to Kant, from Mencius to Sartre. All of these writings are simply tools to help one think but the final answer to the nature of religion and philosophy is personal. I alone must come up with my own personal idea as to the nature of God.

An example would be a translation from the bible, a book that I consider to have many truths between its pages. * * * `Beware of false prophets which come to you in sheeps clothing but inwardly they are ravening wolves. Ye shall know them by their fruits. Do men gather grapes of thorns or figs of thistles? Even so every good tree bringeth forth good fruit; but a corrupt tree bringeth forth evil fruit. A good tree cannot bring forth evil fruit, neither can a corrupt tree bring forth good fruit. Every tree that bringeth forth not good fruit is hewn down, and cast into the fire. * * *' Because of the personal character of God and Philosophy I must translate this passage in a manner that is significant to me. I will not discuss at this time who the false prophets are but the testimony to there falseness is a world that is filled with `not good fruit' hate, murder, war, poverty, starvation, all of these things in a world that could be and has all the potential to be just the opposite. I think of myself as `good fruit' that is to say a person who will not take part in hate, War, murder. A person who if given the chance will attempt to do something about poverty and hunger. A person who does not listen to the false prophets. If the world does not produce more good fruit then it will be cast into a fire of its own making the Hydrogen bomb. Basically the average man is good fruit, but he associates right and wrong with lesser things such as state, nation and church rather than the greater all encompassing truth of a supreme being.

God is alive! He is alive in me, in man, in the entire complex of my existence. All I have to do is look for him. `Seek and ye shall find.' It is what we find in our seeking that is of utmost importance."³

It should also be noted that the petitioner, in filling out Form 150, signed the following statement as printed on the application:

"I am by reason of my religious training and belief conscientiously opposed to participation in war in any form. I, therefore, claim exemption from combatant training and service in the Armed Forces."

After considering and rejecting his claim, the local board reclassified petitioner I-A.

Prior Ruling Upon Local Board's Action

All three of the board members testified at the hearing on the motion to dismiss the indictment. One of them (Mr. Theodore S. Knapp) had no recollection of the reclassification meeting; another (Edward H. Zeigler) stated in essence, that the failure of the petitioner to have previously claimed conscientious objector status during the four or five years of his I-A or II-S classification tainted his claim with insincerity and lack of genuineness; and the third (Mr. Ernest Jencks) stated that the petitioner exhibited a conviction based on a code of personal likes and dislikes—personal opinion rather than a religious belief—and that the standard he (the board member) applied for "religious belief" was "association with church groups * * * following of the religion and doctrine."⁴

Following the hearing, this court ruled that it could not be said there was no basis in fact for the board's findings or that it acted arbitrarily or capriciously and denied the motion to dismiss. No appeal was taken from this decision.

Trial and Appeal

Following a jury trial and conviction, the petitioner moved for a new trial on the ground the court was not impartial, for reasons not pertinent to these proceedings. This was denied and an appeal was taken from the denial of this motion. The appellate court was restricted in its consideration of the record by petitioner's failure to appeal the final judgment of conviction, and as a consequence the case was disposed of on technical grounds⁵ without consideration of the classification findings and procedures. Thus petitioner failed to allege, either on the motion to dismiss or during trial, any procedural error by the local board, but at the hearing upon the instant petition has shown that when reclassifying him I-A the board failed to send to him SSS Form 217 (Advice of Right to Personal Appearance and Appeal). He now contends this was a fatal procedural error—an omission of sufficient magnitude to amount to a deprivation of due process properly cognizable in this proceeding.

Issues Presented

1) Can this petitioner employ 28 U.S. C. § 2255 to challenge his conviction, which he never appealed, on the ground that the criterion for determination of conscientious objector status has been so broadened by subsequent judicial interpretation of existing law (as set forth in Welsh) that it would be a miscarriage of justice not to review the classification refusing him conscientious objector status imposed prior thereto?

2) If the answer to question 1 is YES, then is Welsh applicable to the case at bar, and if so, should it be given retroactive effect?

3) Can this petitioner employ 28 U.S. C. § 2255 to challenge his conviction on the basis

...