Swisher v. United States

• Decision Date: 22 March 1965
• Docket Number: No. 15391-1.,15391-1.
• Citation: 239 F. Supp. 182
• Parties: Thomas Theodore SWISHER, Petitioner, v. UNITED STATES of America and Dr. Jesse D. Harris, Warden, Respondent.
• Court: U.S. District Court — Western District of Missouri

239 F. Supp. 182

Thomas Theodore SWISHER, Petitioner, v. UNITED STATES of America and Dr. Jesse D. Harris, Warden, Respondent.

No. 15391-1.

United States District Court W. D. Missouri, W. D.

March 22, 1965.

Thomas Theodore Swisher, pro se.

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

JOHN W. OLIVER, District Judge.

This case concerns still another petition for habeas corpus and a motion for the appointment of a guardian ad litem filed by Thomas T. Swisher, a military prisoner. Past petitions have made us well acquainted with the military proceeding concerning this petitioner.

On January 25, 1965, pursuant to the direction of our controlling court in Swisher v. United States, 8 Cir. 1964, 326 F.2d 97, and after we had directed petitioner's employed counsel to include every possible ground upon which petitioner might in the then future claim to be entitled to relief in an amended petition for habeas corpus in Case No. 14178-1, we denied petitioner's application for writ of habeas corpus.

On February 25, 1965 and before the time for appeal expired in No. 14178-1, petitioner filed a new petition for habeas corpus in which he attempts to raise questions concerning alleged violations of the Fifth and Sixth Amendments based upon factual allegations that he was not represented by counsel during post-arrest interrogation by military interrogators and because he was coerced into signing two confessions which he alleges were admitted in evidence against him at the court martial. Petitioner now relies upon Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), in this habeas corpus proceeding involving a military prisoner. He also relies upon certain alleged violations of the Uniform Code of Military Justice.

On February 26, 1965, petitioner also filed a motion for the appointment of a guardian ad litem in which he alleges that "he might not be able to continue this cause without the benefit of a guardian ad litem to advise and counsel him in this cause." Petitioner alleges that he does not have the assistance of counsel in connection with this, his most recent application for habeas corpus. We have verified that the most recent of petitioner's employed counsel no longer represents him. We do not believe the appointment of one more attorney in the long line of appointed and employed counsel is indicated in light of what we believe is the controlling law applicable to this case.

In our memorandum opinion of January 25, 1965, in No. 14178-1, D.C., 237 F.Supp. 921, we discussed the various recent cases in the Supreme Court of the United States in which repeated recognition was given to the principle that "in military habeas corpus the inquiry, the scope of matters open for review, has always been more narrow than in civil cases" (quoted from page 139 of Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, at page 1047, 97 L.Ed. 1508 (1953)). We also pointed out that Burns held that it was the "limited function of the civil courts to determine whether the military have given fair consideration to each of the claims" presented to the military tribunal and that Whelchel v. McDonald, 340 U.S. 122, 71 S.Ct. 146, 95 L.Ed. 141 (1940), held that "it is only a denial of the opportunity * * * to tender the issue * * * which goes to the question of jurisdiction." If, according to Whelchel, the opportunity to tender the issue was afforded, no question of due process can be involved because "any error that may be committed in evaluating the evidence tendered the military tribunal is beyond the reach of review by...