Speer v. Hedrick, 24540.

• Decision Date: 22 December 1969
• Docket Number: No. 24540.,24540.
• Citation: 419 F.2d 804
• Parties: Application of John Michael SPEER, Appellant, v. Commander G. H. HEDRICK, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

419 F.2d 804 (1969)

Application of John Michael SPEER, Appellant, v. Commander G. H. HEDRICK, Appellee.

No. 24540.

United States Court of Appeals Ninth Circuit.

October 24, 1969.

Rehearing Denied December 22, 1969.

Michael S. Sorgen & Marvin S. Kayne, San Francisco, Cal., for appellant.

Cecil F. Poole, U. S. Atty., Jerry K. Cimmet, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before DUNIWAY and HUFSTEDLER, Circuit Judges, and PENCE, District Judge^*.

PER CURIAM:

Petitioner, appellant herein, has appealed from a district court order denying his petition for a Writ of Habeas Corpus.

Petitioner enlisted in the United States Naval Reserve on July 8, 1966, and subsequently enlisted in the United States Navy on October 25, 1966. He completed recruit training on January 26, 1967, and completed a course for hospital corpsmen on May 18, 1967. On June 6, 1967 he completed rifle and pistol training.

On December 31, 1967 petitioner received transfer orders to Vietnam. On May 13, 1968 he failed to report for transfer to Vietnam and was on unauthorized leave until June 25, 1968, when he surrendered to Naval authorities. He was subsequently court martialed and confined, pursuant to sentence, from August 28, to October 16, 1968.

On December 18, 1968 petitioner formally applied for discharge as a conscientious objector. The Conscientious Objector Board in the Navy Bureau of Personnel recommended denial of the application on the basis that petitioner's beliefs were not based on religious principles. Petitioner's commanding officer believed him sincere. However, the fact that he had completed instruction in the use of deadly weapons after his beliefs had allegedly formed, and that he sought discharge as a conscientious objector only after having been ordered to a combat zone, tended to offset the opinion of that officer.

At the habeas corpus hearing thereafter, the district judge found that an adequate basis in fact did exist for the Navy's denial of petitioner's application.

Assuming, but not deciding, that the nature of petitioner's restraint gave jurisdiction to the district court to hear the application for a writ of habeas corpus under 28 U.S.C. § 2241, and there being abundant facts in the record to support the finding of the district judge, we therefore affirm.

ON PETITION FOR REHEARING

In his motion for rehearing, petitioner sets forth three grounds upon which he urges this court to reconsider its judgment heretofore entered on October 24, 1969. Petitioner first argues that in searching the record for a basis in fact to support the decision of the United States Navy, the court should have limited its scope of inquiry to the ground set forth by the Navy in its denial of petitioner's conscientious objector petition. He insists that, inasmuch as the Navy concluded that "petitioner's desire to terminate his military service is not based on religious principles," this court should not be permitted to consider anything but those bare words and may not rationalize the Navy decision on other grounds, i. e., insincerity of beliefs.

While it is true that the Navy, in denying the conscientious objector petition, stated the conclusion noted above, it is also true, and this court so found, that the Navy bottomed that ultimate conclusion, in part, upon a finding of insincerity of belief. There having been found a causal relationship between the finding of insincerity and the conclusion that petitioner's desire to terminate service was not based on religious principles, this court did not go beyond the record or the spectrum of facts utilized by the Navy in considering petitioner's lack of sincerity as a basis in fact supporting its decision.

Petitioner next argues that this court has...