Swisher v. United States

• Decision Date: 25 January 1965
• Docket Number: No. 14178-1.,14178-1.
• Citation: 237 F. Supp. 921
• Parties: Thomas T. SWISHER, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Western District of Missouri

237 F. Supp. 921

Thomas T. SWISHER, Petitioner, v. UNITED STATES of America, Respondent.

No. 14178-1.

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

January 25, 1965.

Wyman Wickersham, Kansas City, Mo., for petitioner.

Clifford M. Spottsville, Asst. U. S. Atty., Kansas City, Mo., for respondent.

JOHN W. OLIVER, District Judge.

Introduction

The history of petitioner's most recent effort to obtain a post-conviction reversal of his Court-Martial conviction will aid in understanding our treatment and disposition of this latest petition for writ of habeas corpus. The general factual background is stated in Swisher v. United States, W.D.Mo.1962, 211 F. Supp. 917 and in Swisher v. United States, 8 Cir.1964, 326 F.2d 97. Those reported decisions do not reveal that both this Court and the Court of Appeals have considered numerous other applications that petitioner had filed in which he had prayed for some form of judicial relief.¹

On June 21, 1963, the Court of Appeals entered an order in its Case No. 17372 (subsequently reported in 326 F. 2d 97, as above noted) in which it reviewed various orders it had made in regard to various proceedings petitioner had attempted to commence in that court. The Court of Appeals considered what it described as "a folder of voluminous papers, stapled together, and entitled by him the petitioner `Motion for a Writ of Mandamus'". That order stated that the Court of Appeals would "treat and give effect to Swisher's papers here as an application for leave to appeal in forma pauperis from the District Court's order making denial of his habeas corpus application, upon the question whether the Court erred in making denial of the application without a hearing."

That order further stated, as later noted on page 97 of 326 F.2d, that "leave to appeal in forma pauperis will be granted for the purpose of settling the question of Swisher's right to a hearing on his mental competency, and of attempting to put an end to his continuous applications for a writ in the District Court and his repetitive applications for a writ of mandamus here."

Request for appointment of counsel was initially denied in the Court of Appeal's order of July 14, 1963, but on July 24, 1963, on a further application of petitioner, the Court of Appeals appointed Wyman Wickersham, Esq.² of the Kansas City, Missouri, Bar "to serve as counsel for him in preparing briefs particularly on the following questions:

"1. Is there any provision in the Military Justice Code for making collateral attack against a conviction and sentence on the ground that the defendant was mentally incompetent to stand trial?

"2. If the Military Justice Code is without such remedy, does any right exist to make such an attack against a military conviction and sentence in the civil courts?

"3. If such jurisdiction exists in the civil courts, was the District Court required to hold a hearing and make a determination on appellant's claim of such incompetency in the present situation?"

The Court of Appeals ordered that the appeal would be heard on the files and records of the District Court and that "all other motions or requests contained in other proceedings that then pended" were overruled.³

The opinion of the Court of Appeals did not reach the questions it had ordered briefed in its order of July 24, 1963. The Court of Appeals concluded from its review of the records before it, some of which were not before this Court, that a "possible issue" existed relating to whether petitioner's "mental competency to stand trial may not have been constitutionally adjudicated at his court martial." The Court of Appeals added that "we cannot presently dispose of that possible issue on the basis of the record before us" (page 97 of 326 F.2d) and remanded the case "for further proceedings in accordance with due process of law" (page 98 of 326 F.2d).

After the mandate from the Court of Appeals was filed in this Court, we convened a series of both formal and informal pre-trial conferences in order to insure that all possible material and relevant evidence be made a part of an entirely new and complete record. Sanders v. United States, 373 U.S. 1, 22, 83 S.Ct. 1068, 1081, 10 L.Ed.2d 148 (1963), teaches that one possible solution to the problem of repetitious post-conviction applications is an "imaginative handling" of a particular complaint in order "to ascertain all possible grounds upon which the prisoner might claim to be entitled to relief."

Petitioner was accordingly granted leave to file an amended petition for writ of habeas corpus under instructions to include every possible ground upon which the petitioner might claim to be entitled to relief. As a result of the conferences between the Court and counsel, a stipulation and a supplemental stipulation were executed and filed. The exhibits attached to those stipulations are voluminous and, as we shall detail later, both parties agreed that there is no other evidence that either party wanted to adduce.

Petitioner's amended petition, for the reasons stated, alleged every possible ground for relief. Petitioner's briefs, however, concentrated on the particular issues to which we shall first direct attention.

Scope of Review in Habeas Corpus Involving a Military Prisoner

In one of our memorandum opinions involving an earlier petition for habeas corpus filed by the present petitioner we noted that in order to decide that case we were "not required to determine whether the scope of review of a District Court over court-martial proceedings is the same as the scope of its review over civil trials" (page 918 of 211 F.Supp.). We also noted, however, in Footnote 2 on page 918 of 211 F.Supp., that Judge Wisdom, in Rushing v. Wilkinson, 5 Cir.1959, 272 F.2d 633, 641, cert. denied 364 U.S. 914, 81 S. Ct. 280, 5 L.Ed.2d 229, had suggested that "a strong case could be made to show a trend in the direction. * * that the scope of collateral review of military trial should be as broad as the scope of collateral review of a civilian trial."⁴

As the point must be reached in this case, we now hold, as Judge Wisdom held in Rushing, that Hiatt v. Brown, 339 U.S. 103, 111, 70 S.Ct. 495, 94 L.Ed. 691 (1950); Ex Parte Reed, 100 U.S. 13, 23, 25 L.Ed. 538 (1879); Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953), and other cases we shall presently discuss, definitely determine that the scope of review on habeas corpus is more narrow in cases involving military prisoners than it is in cases involving civil prisoners.

Hiatt v. Brown, supra, involved a court-martial conviction for murder. The district court's grant of habeas corpus was affirmed by the Court of Appeals. The Supreme Court reversed. The Supreme Court noted in Footnote 6 on page 110 of 339 U.S., on page 498 of 70 S.Ct., that the Court of Appeals had cited the following instances of error in the military proceedings that had been reviewed by the District Court:

"(1) Accused was convicted on the theory that although he was on duty as a sentry at the time of the offense, it was incumbent upon him to retreat from his post of duty.

"(2) Accused has been convicted of murder on evidence that does not measure to malice, premeditation, or deliberation.

"(3) The record reveals that the law member appointed was grossly incompetent.

"(4) There was no pre-trial investigation whatever upon the charge of murder.

"(5) The record shows that counsel appointed to defend the accused was incompetent, gave no preparation to the case, and submitted only a token defense.

"(6) The appellate reviews by the Army reviewing authorities reveal a total misconception of the applicable law."

In regard to those errors the Supreme Court noted that the Court of Appeals had considered that such errors were within the proper scope of review and that it had "concluded that certain errors committed by the military tribunal and reviewing authorities referring to those just quoted from Footnote 6 had deprived respondent of due process." Hiatt definitely held that consideration of whether there had been a compliance within the due process clause was beyond the scope of proper habeas corpus review by a District Court in military cases. On page 110, 70 S.Ct. on page 498 it was held:

"We think the court was in error in extending its review, for the purpose of determining compliance with the due process clause, to such matters as the propositions of law set forth in the staff judge advocate's report, the sufficiency of the evidence to sustain respondent's conviction, the adequacy of the pre-trial investigation, and the competence of the law member and defense counsel."

And, on page 111, 70 S.Ct. on page 498, the rule of In re Grimley, 137 U.S. 147, 150, 11 S.Ct. 54, 34 L.Ed. 636 (1890), was reaffirmed in the following language.

"It is well settled that `by habeas corpus the civil courts exercise no supervisory or correcting power over the proceedings of a court-martial * * *. The single inquiry, the test, is jurisdiction.' In re Grimley, 1890, 137 U.S. 147, 150 11 S.Ct. 54, 34 L.Ed. 636. In this case the court-martial had jurisdiction of the person accused and the offense charged, and acted within its lawful powers. The correction of any errors it may have committed is for the military authorities which are alone authorized to review its decision."

Whelchel v. McDonald, 340 U.S. 122, 71 S.Ct. 146, 95 L.Ed. 141 (1950), and Gusik v. Schilder, 340 U.S. 128, 71 S. Ct. 149, 95 L.Ed. 146 (1950), were decided on the same day and later in the same year (1950) that Hiatt was decided. Whelchel involved an attempted review by habeas corpus of a court-martial conviction for rape. The Supreme Court affirmed the Court of Appeals affirmance of the District Court's denial of the writ. Mr. Justice Douglas held that "the main point presented by the petition for certiorari is whether the military tribunal that tried petitioner was deprived of jurisdiction by reason of its treatment of the insanity issue...