Schlomann v. Moseley

• Decision Date: 24 March 1972
• Docket Number: No. 473-70.,473-70.
• Citation: 457 F.2d 1223
• Parties: Kenneth H. SCHLOMANN, Petitioner-Appellant, v. R. I. MOSELEY, Warden, United States Penitentiary, Leavenworth, Kansas, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

457 F.2d 1223 (1972)

Kenneth H. SCHLOMANN, Petitioner-Appellant, v. R. I. MOSELEY, Warden, United States Penitentiary, Leavenworth, Kansas, Respondent-Appellee.

No. 473-70.

United States Court of Appeals, Tenth Circuit.

March 24, 1972.

Donald E. Phillipson, of Davis, Graham & Stubbs, Denver, Colo., for petitioner-appellant.

Lieutenant Colonel Arnold I. Melnick, Washington, D. C. (Robert J. Roth, U. S. Atty., Richard L. Meyer, Asst. U. S. Atty., and Captain Michael A. Katz, Office of the Judge Advocate Gen., Dept. of the Army, with him on brief), for respondent-appellee.

Before JONES^* and HOLLOWAY, Circuit Judges, and BRATTON,^** District Judge.

HOLLOWAY, Circuit Judge.

The central issue before us is the retroactivity of O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed. 2d 291. Specifically, the question is whether the 1969 opinion may be invoked to set aside convictions by a General Court Martial for non-service connected offenses although such convictions became final prior to the decision in O'Callahan. The issue arises in habeas proceedings in which the District Court held O'Callahan not retroactive and denied relief.

The facts are detailed in the opinion of the Court of Military Appeals which affirmed the convictions, United States v. Schlomann, 16 USCMA 414, 37 CMR 34, and therefore we refer only briefly to the principal facts. The tragic offenses occurred on July 1, 1963. Appellant Schlomann was then an Army enlisted man stationed at Fort Wainwright, Alaska. However, the Government concedes that these offenses against civilians in Alaska were not service connected. See note 2, infra.

That afternoon Schlomann and his wife had visited a bar and restaurant near the Fort but she departed for work. Schlomann returned to a Noncommissioned Officers' Club on the post but then left the post again by taxicab, while carrying an unopened liquor bottle, and arrived at a local skating rink shortly after 9:00 p. m. He had been drinking beer, was belligerent and was carrying a rifle. He ordered the cab driver, Mr. Howard, out of the taxi and shortly thereafter shot Howard, approached and shot him again and he died of these wounds. Schlomann was convicted of unpremeditated murder for Howard's death under Article 118 of the Uniform Code of Military Justice, 10 U.S.C. § 918.

After further difficulties at the skating rink, Schlomann drove the cab to a nearby motel. While a Mrs. Leonard was attempting to call for police help, he shot and wounded her. For this offense he was convicted of assault with a dangerous weapon in violation of Article 128 of the Code, 10 U.S.C. § 928. He then shot and killed her husband and one George Stockton. At about the time of these shootings he was demanding money. For these homicides he is under two convictions for felony murder in violation of Article 118 of the Code, 10 U.S.C. § 918. In connection with his demands at the motel he was also convicted of attempted robbery under Article 80 of the Code, 10 U.S.C. § 880.

All of the charges were tried together by a General Court-Martial in 1964 at Fort Richardson, Alaska, and Schlomann was found guilty of the charges as stated. He was sentenced to a dishonorable discharge, total forfeitures, confinement at hard labor for life and reduction in grade. The sentences remained undisturbed by all reviewing authorities and the convictions and sentences as rendered were affirmed by the Board of Review and the Court of Military Appeals as reflected in United States v. Schlomann, supra.

Schlomann is in custody at Leavenworth and commenced these habeas proceedings in the United States District Court for the District of Kansas. In a first case filed in October, 1969, he raised the issues we consider, alleging that the military tribunals were without jurisdiction so that his convictions were void. The District Court denied relief in May, 1970. A further habeas proceeding was brought in June, 1970, on the same grounds. The Court's opinion, rendered that month, said the petition was successive, but also considered the merits and denied relief. These opinions are reported at 340 F.Supp. 1393, 1395. Schlomann appealed from both judgments by a timely notice. We, therefore, consider both cases as to all of the contentions raised by Schlomann.¹

Before turning to the issues we should say we are satisfied that these offenses were not service connected under present requirements for military jurisdiction. This test of O'Callahan has been analyzed in detail and is the measure of service connected offenses. See Relford v. United States Disciplinary Commandant, 401 U.S. 355, 365, 91 S.Ct. 649, 28 L.Ed.2d 102. Under all of these guidelines the offenses lack connection to the military. Moreover, the Government concedes that the offenses were not service connected. Therefore, if the O'Callahan requirement as to service connected offenses applies to these earlier convictions, they may not be sustained as meeting that requirement as was the case in Relford and Swisher v. Moseley, 442 F.2d 1331 (10th Cir.).²

Thus, the retroactivity of O'Callahan is the critical question we face.³ The particular issues presented are: (1) whether retroactive application of O'Callahan is compelled by its jurisdictional terminology and its reasoning that military tribunals lack power to adjudicate non-service connected offenses; (2) whether O'Callahan should be made retroactive under generally applied tests for newly announced constitutional rules; and (3) whether, in any event, trial by the military tribunal for these offenses denied due process and other rights.⁴

The jurisdictional terminology and constitutional interpretations of O'Callahan v. Parker

The question of the retroactivity of O'Callahan v. Parker presents difficult problems. They are more complex than many studied in determining whether a new procedural rule or a new principle implementing a constitutional guarantee are to be applied retroactively. The complexity arises from the nature of the holding in O'Callahan. In the opinion the Court referred back to the question on which certiorari was granted, repeating that it involved whether under the circumstances a court-martial may ". . . have jurisdiction to try a member of the Armed Forces." 395 U.S. at 261, 89 S.Ct. at 1685, 23 L.Ed.2d 291. The Court's conclusions were stated as follows:

"We have concluded that the crime to be under military jurisdiction must be service connected, lest `cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger,\' as used in the Fifth Amendment, be expanded to deprive every member of the armed services of the benefits of an indictment by a grand jury and a trial by a jury of his peers. The power of Congress to make `Rules for the Government and Regulation of the land and naval Forces,\' Art. I, § 8, cl. 14, need not be sparingly read in order to preserve those two important constitutional guarantees. For it is assumed that an express grant of general power to Congress is to be exercised in harmony with express guarantees of the Bill of Rights." (395 U.S. at 272-273, 89 S. Ct. at 1690)

* * * * * *

"We have accordingly decided that since petitioner\'s crimes were not service connected, he could not be tried by court-martial but rather was entitled to trial by the civilian courts." (395 U.S. at 274, 89 S.Ct. at 1692)

The jurisdictional basis of O'Callahan seems clear. We agree that its limitations on the Code and military courts were stated in terms of "adjudicatory power." See Gosa v. Mayden, 450 F.2d 753, 756-757 (5th Cir.); United States ex rel. Flemings v. Chafee, 330 F.Supp. 193, 195-196 (E.D.N.Y.); contra, United States v. King, ACM 20361, review denied USCMA 40 CMR 327. Therefore, we must consider whether the jurisdictional basis of O'Callahan compels its retroactive application.

It is fundamental that a conviction by a tribunal lacking jurisdiction may be set aside by habeas proceedings. McClaughry v. Deming, 186 U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049; In re Snow, 120 U.S. 274, 285, 7 S.Ct. 556, 30 L.Ed. 658. It may be argued forcefully that where a later opinion decides that jurisdiction did not exist as to some subject matter, it must apply retroactively. However, we are not persuaded that because the later decision is grounded in jurisdictional terms that consideration is foreclosed as to how it should apply. Such a retroactivity question is more critical and the factors may be viewed differently, but the jurisdictional terminology does not dispense with the duty to decide whether "the Court may in the interest of justice make the rule prospective . . . where the exigencies of the situation require such an application." Johnson v. New Jersey, 384 U.S. 719, 726-727, 86 S.Ct. 1772, 1777, 16 L. Ed.2d 882; Linkletter v. Walker, 381 U. S. 618, 628, 85 S.Ct. 1731, 14 L.Ed.2d 601; Tehan v. U. S. ex rel. Shott, 382 U. S. 406, 410, 86 S.Ct. 459, 15 L.Ed.2d 453.

We are satisfied that O'Callahan v. Parker made "a clear break with the past," Desist v. United States, 394 U.S. 244, 248, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248, and that we should consider whether its application should be prospective or retroactive. Linkletter v. Walker, supra, recognized the duty to make such a determination as to cases announcing new constitutional rules, as had earlier been done otherwise. E. g. Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360. Since the broad principle for considering the soundness of prospective or retroactive application applies to constitutional rulings, we are persuaded that determination should be made for the O'Callahan ruling also. We agree that for such newly announced jurisdictional rule, a prospective application is a proper "judicial technique of general application" McSparran v. Weist, 402 F.2d 867, 877 (3d Cir.), cert. denied, 395 U.S. 903, 89 S.Ct. 1739, 23 L.Ed.2d 217.

Where the exigencies of the situation...