Simcox v. Harris, 17497.

• Decision Date: 18 November 1963
• Docket Number: No. 17497.,17497.
• Citation: 324 F.2d 376
• Parties: Roland E. SIMCOX, Appellant, v. Jesse B. HARRIS, Warden, Medical Center for Federal Prisoners, Springfield, Missouri, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

324 F.2d 376 (1963)

Roland E. SIMCOX, Appellant, v. Jesse B. HARRIS, Warden, Medical Center for Federal Prisoners, Springfield, Missouri, Appellee.

No. 17497.

United States Court of Appeals Eighth Circuit.

November 18, 1963.

Roland E. Simcox, pro se.

F. Russell Millin, U. S. Atty., Kansas City, Mo., for appellee.

Before JOHNSEN, Chief Judge, and MATTHES, Circuit Judge.

PER CURIAM.

The appeal is from an order denying an application for a writ of habeas corpus. Appellant, who presently is in the Medical Center for Federal Prisoners, Springfield, Missouri, is under sentence by a court-martial for some offenses committed while he was confined at Camp Gordon, Georgia, on a sentence for some offenses committed while he was a member of the United States Army in Korea.

The Korean sentence was to a term of imprisonment and to dishonorable discharge from the army. The term of imprisonment has been served, and appellant is now confined on the Camp Gordon sentences. He alleges that the provision for dishonorable discharge also has been executed but that this had occurred before his commission of the Camp Gordon offenses.

The contentions on which the application for a writ was predicated were that the discharging of appellant from military service for the Korean offenses made him a civilian; that he was thereafter without military status; that a military court consequently could not have jurisdiction over him and his subsequent offenses; and that the Camp Gordon courtmartial proceedings and his present confinement therefore were void.

On Kahn v. Anderson, 255 U.S. 1, 41 S.Ct. 224, 65 L.Ed. 469, there could exist no basis to urge these contentions, at least before the lower federal courts. Article 2(7) of the Uniform Code of Military Justice, 10 U.S.C.A. § 802(7) — which is a re-enactment of a similar provision in previous statutes — makes subject to the Code's provisions, "Persons in custody of the armed forces serving a sentence imposed by a court-martial" — which was the status of appellant at the time of the Camp Gordon offenses. The Kahn case would require it to be held that, although appellant had been discharged from the service, he remained a military prisoner while he was confined on the Korean sentence, and that he was "for that reason subject to military law and trial by court-martial for offenses committed during such imprisonment". 255 U.S. at 7 and 8, 41 S.Ct. at 225, 65 L.Ed. 469.

Appellant seeks to escape the holding of the Kahn case by arguing that there are later decisions of the Supreme Court which are inconsistent with it, and that it therefore should be regarded as no longer being the law. Among the decisions upon which he so relies are United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8; Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148; and Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268.

This is a repeated attempt by appellant to obtain such a declaration and holding from the lower federal courts. He has previously urged his contention in the courts of the Ninth Circuit and had it determined against him. In 1961, while he was confined in the Federal Penitentiary, Alcatraz, California, on the Camp Gordon sentences, he made application on this basis for a writ of habeas corpus in the District Court for the Northern District of California, and his application was denied. The...