Schilder v. Gusik, 10978.

• Decision Date: 05 June 1950
• Docket Number: No. 10978.,10978.
• Citation: 180 F.2d 662
• Parties: SCHILDER v. GUSIK.
• Court: U.S. Court of Appeals — Sixth Circuit

180 F.2d 662 (1950)

SCHILDER v. GUSIK.

No. 10978.

United States Court of Appeals Sixth Circuit.

March 20, 1950.

Writ of Certiorari Granted June 5, 1950.

Alan R. Browne, Office of the Judge Advocate General, Washington, D. C., R. J. O'Donnell, and Loren G. Windom, Columbus, Ohio, Reginald C. Miller, Lt. Colonel, Office of Judge Advocate General, Washington, D. C., on the brief, for appellant.

Morris Morgenstern and Bernard B. Direnfeld, Cleveland, Ohio, Morris Morgenstern, John Price (Deceased), Bernard B. Direnfeld, Leo Chimo, E. J. Sklenicka, Cleveland, Ohio, John Baker, Columbus, Ohio, Francis Picklow, Anthony Lysowski, Cedric Griffith, and Joseph Horwitz, Cleveland, Ohio, on the brief, for appellee.

Before SIMONS, McALLISTER and MILLER, Circuit Judges.

Writ of Certiorari Granted June 5, 1950. See 70 S.Ct. 1014.

SIMONS, Circuit Judge.

This is an appeal by the warden of the Federal Reformatory at Chillicothe, Ohio, from an order of discharge in a habeas corpus proceeding releasing the appellee from custody while under sentence of a military court for murder. The appellee Thomas Gusik was, in August, 1947, a member of a Guard Company stationed at or near Tirrenia, Italy. Early in the morning of August 13, two Italian civilians were shot and killed near the wire fence which enclosed the depot along Gusik's guard post. On September 18 Gusik was charged with the murder of these persons in violation of the 92nd Article of War, 10 U.S.C.A. § 1565. Trial was had on these charges before a general court-martial appointed by the Commander of the Port of Leghorn, U. S. Army. There was evidence which, if credited, tended to prove that Gusik had lured certain Italian black-marketeers with whom he had had contact to his post by a prearranged signal, that he had previously threatened to get even with their leader, that he had permitted them to approach and cut the wire without calling upon them to halt or firing a warning shot, and had fired a burst from his automatic carbine at the wire. Conviction and sentence followed.

The record of the trial was reviewed by the Staff Judge Advocate of the Port of Leghorn, who found the evidence sufficient to sustain the findings and sentence and that the court was legally constituted and had jurisdiction of the accused and the offense charged. The Commander of the Port of Leghorn approved the sentence. The Board of Review in the office of the Judge Advocate General, reviewed the case and likewise found the trial record legally sufficient to support the sentence, the court legally constituted and with jurisdiction. The Judge Advocate General approved the holding of the Board of Review but recommended to the Secretary of the Army that the sentence be reduced from life imprisonment to 16 years. His recommendation was accepted. Gusik being confined in the Southern District of Ohio, sued out a writ of habeas corpus in the court below and was discharged from custody on the ground that he was deprived of liberty without due process of law because no thorough and impartial pre-trial investigation had been conducted in compliance with Article of War 70, 10 U.S.C.A. § 1542, the trial Judge Advocate failed to call all material witnesses and Gusik was denied the effective assistance of counsel.

The warden appeals, challenges jurisdiction of the district court to grant the writ, contends that pre-trial investigation pursuant to Article of War 70 is not an indispensable prerequisite to Army court-martial jurisdiction, asserts the competency of the defense counsel as evidenced by his law degrees and wide experience in court-martial procedure, denies that there were errors at the trial but contends that if any were made they may not be collaterally attacked by petition for the writ of habeas corpus. The order of discharge is defended by Gusik not only on the grounds relied upon by the district judge but on the ground that the law member of the court-martial was not a member of the Judge Advocate General's Department and because errors at the trial which, separately considered, might not have been prejudicial yet in their cumulative effect constituted denial to Gusik of his constitutional right to due process of law.

For reasons to be presently set forth we find it unnecessary to consider any of the issues above recited. On February 1, 1949, amended Articles of War became effective. 10 U.S.C.A. §§ 1472-1593. Article of War 53 as amended provides that upon application of an accused person upon good cause shown, the Judge Advocate General is authorized "to grant a new trial, or to vacate sentence, restore rights, privileges, and property affected by such sentence, * *". On March 31, 1949, when the order of release was filed, Article 53 was in effect, and a certificate of the Chief of the New Trials Division in the office of the Judge Advocate General of the Army, discloses that no petition or other application for relief under Article 53 had been received on behalf of Gusik up to the date of certification on January 18, 1950. Article 53 provides for the grant of a new trial or the vacation of a sentence within one year after final disposition of a court-martial case, and in cases involving offenses committed during World War Second, the application may be made within one year after the termination of the war. It is not disputed that the remedy provided by Article 53 was, at the time of the decision below, and still is within permissible time.

Habeas corpus to review the action of another court is in its nature extraordinary. It may not be availed of until other remedies have been exhausted. Goto v. Lane, 265 U.S. 393, 44 S.Ct. 525, 68 L. Ed. 1070; Ex Parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572. It is therefore clear that unless there is validity to one or more of the contentions by which the availability of the new remedy to Gusik is here challenged, the writ of habeas corpus was prematurely filed and improvidently granted.

Gusik contends that by reason of Executive Order Dec. 7, 1948, 10020, making effective the amended Articles of War as of February 1, 1949, to all court-martial processes taken on and after that date, Article 53 has no retroactive effect with respect to a court-martial sentence imposed, reviewed and approved prior to that date. The text of the President's proclamation is, so far as material, printed in the margin.¹ The contention is without merit. Article 53 is a remedial measure. It creates no new offenses, increases no penalties and is...