Swisher v. United States

• Decision Date: 04 January 1966
• Docket Number: No. 17986,17995.,17986
• Citation: 354 F.2d 472
• Parties: Thomas T. SWISHER, Appellant, v. UNITED STATES of America, Appellee. Thomas T. SWISHER, Appellant, v. UNITED STATES of America, and Dr. Jesse D. Harris, Warden, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

354 F.2d 472 (1966)

Thomas T. SWISHER, Appellant, v. UNITED STATES of America, Appellee.

Thomas T. SWISHER, Appellant, v. UNITED STATES of America, and Dr. Jesse D. Harris, Warden, Appellees.

Nos. 17986, 17995.

United States Court of Appeals Eighth Circuit.

January 4, 1966.

Robert G. Russell, Kansas City, Mo. (Court-appointed), for appellant.

Abraham Nemrow, Lieutenant Colonel, JAGC, Dept. of Army, Washington, D. C., F. Russell Millin, U. S. Atty., and Clifford M. Spottsville, Asst. U. S. Atty., Kansas City, Mo., for appellee.

Before VAN OOSTERHOUT, MATTHES and MEHAFFY, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

Petitioner Thomas T. Swisher has appealed from final judgment entered in each of the above-entitled cases denying habeas corpus relief from his conviction and sentence by a court-martial. In No. 17,986 petitioner was represented by counsel in the trial court. No. 17,995 involves a subsequent pro se petition for writ of habeas corpus filed by petitioner. Petitioner is represented in both appeals before us by court-appointed counsel. The trial court's opinion denying the writ in case No. 17,986 is reported at 237 F. Supp. 921 and the opinion denying the writ in No. 17,995 is reported at 239 F. Supp. 182.

The trial court, in its opinion reported at 237 F.Supp. 921 which covers some forty-one pages, thoroughly sets out the history of this extensive litigation and fairly and accurately sets out the evidence bearing upon the issues here involved. Little purpose would be served in re-covering the same ground. The two cases are consolidated here. We shall in this opinion attempt to cover all material issues raised by both appeals.

Petitioner, while a member of the armed forces, was convicted on August 29, 1958, by a general court-martial legally convened on the following charges: robbery in violation of Article 122, Uniform Code of Military Justice; assault with intent to commit murder; assault with intent to commit rape, and interstate transportation of a stolen motor vehicle in violation of 18 U.S.C.A. § 2312, the latter three charges being in violation of Article 134, Uniform Code of Military Justice. The charged offenses were committed on July 12, 1958. Petitioner pleaded not guilty to all of such charges. He was represented by counsel at his trial. Substantial evidence introduced at the trial shows that petitioner by artifice lured Mrs. Connell, the wife of another soldier on the base, to an isolated spot on the Fort Jackson, South Carolina, military base, and that he there took off much of her clothing, attempted rape, brutally beat and kicked his victim, and thinking that he had killed her he concealed the body in some brush, stole her purse containing money and her car and transported the car across state lines.

Petitioner was sentenced to a dishonorable discharge, forfeiture of pay and thirty years imprisonment. After a complete review by the Staff Judge Advocate, as required by Article 61 of the Uniform Code of Military Justice (10 U.S.C.A. § 861), the sentence was approved by the convening authority. The proceeding was reviewed by a Board of Review pursuant to 10 U.S.C.A. § 866. Appointed counsel, as well as employed counsel, represented petitioner and presented argument before the Board of Review. The Board found petitioner was not guilty of robbery upon the basis that the intent to steal was not formed until after the assault. The Board upheld the conviction upon all other charges. The sentence of imprisonment was reassessed to twenty-five years. Later the Secretary of the Army extended clemency and reduced the sentence to twenty-three years.

Petitioner petitioned the Court of Military Appeals for review of the decision of the Board of Review pursuant to 10 U.S.C.A. § 867(b) (3) and was there represented by counsel. Such petition was denied. Final appellate review of the case having thus been completed (10 U.S.C.A. § 871(c)), the sentence as approved by the Board of Review was ordered executed.

Petitioner does not now assert nor has he ever claimed that he did not commit the acts charged. His defense throughout the military proceedings was his incompetency at the time of the crime. Such issue was fully and fairly tried and determined against him and carefully reviewed at the appellate level. Such determination is not subject to challenge here.

The case now numbered 17,986 has heretofore been before this court. In Swisher v. United States, 8 Cir., 326 F. 2d 97, petitioner sought habeas corpus relief from his conviction based upon the ground that petitioner was not competent to stand trial at the time of his court-martial. The trial court by opinion reported at 211 F.Supp. 917 dismissed the petition on the ground that the court was without jurisdiction to entertain it and that there were insufficient allegations charging that the competency to stand trial issue was not fully and fairly determined by the military proceeding. We vacated the order of dismissal and remanded for further proceedings, stating in part:

"Our conclusion is that appellant has set forth therein some factors which give facial indication of a possible issue existing, that his mental competency to stand trial may not have been constitutionally adjudicated at his court-martial.

* * * * * *

"Whether a `fair determination by the military tribunal\' has been made as to that issue is a question that cannot, and should not, be resolved by us on the present record. Cf. Whelchel v. McDonald, 340 U.S. 122, 71 S.Ct. 146, 95 L.Ed. 141 (1950)." 326 F.2d 97, 98.

We recognize that sanity at the time of the offense and mental competency at the time of the trial are entirely different questions. We quoted from Hayes v. United States, 8 Cir., 305 F.2d 540, which relies on Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835, which holds that a party convicted of a crime in a federal civil court has a right to collaterally attack his conviction on the ground of incompetency at the time of trial where such issue has not been raised and adjudicated in the trial resulting in the conviction. See Simmons v. United States, 8 Cir., 253 F.2d 909, 912. We recognized the limitations imposed by Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 and stated, "`(t)he scope of matters open for review' in the instant habeas corpus proceeding is limited by appellant to the issue of his competency to stand trial before his court-martial." 326 F.2d 97, 98.

The competency to stand trial issue is the one most heavily relied upon by petitioner in his present appeals. Our opinion reported at 326 F.2d 97 is the law of the case upon this issue. The trial court clearly and accurately points out, at pp. 939 to 943 of 237 F.Supp., that petitioner had a full opportunity at his court-martial to raise the competency to stand trial issue. His counsel unequivocally stated that such issue was not being raised. Such counsel by affidavit states the issue was not pressed because he could not obtain evidence to support the issue. See pp. 957-958 of 237 F.Supp. Since such issue was not raised at the court-martial, it was not expressly adjudicated in such proceeding.

The trial court at pp. 924-929 of 237 F.Supp. discusses the law relating to the scope of review in habeas corpus of military convictions. The authorities cited and discussed establish that the scope of a habeas corpus review of a military conviction is more narrow than a habeas corpus review of a conviction by a civil court. The question of whether the reach of habeas corpus is broad enough to cover the competency to stand trial issue in a military proceeding has not been definitely determined by the Supreme Court and such issue is not free from doubt. Whelchel v. McDonald, 340 U.S. 122, 71 S.Ct. 146, holds that a military prisoner who has had a fair opportunity to raise the issue of sanity at the time of the...