United States ex rel. Lohmeyer v. Laird, Civ. A. No. 20719.

• Decision Date: 20 May 1970
• Docket Number: Civ. A. No. 20719.
• Citation: 318 F. Supp. 94
• Parties: UNITED STATES of America ex rel. Richard R. LOHMEYER v. Hon. Melvin LAIRD, Secretary of Defense, Hon. Stanley Resor, Secretary of the Army, Major General K. G. Wickham, Adjutant General of the Army, and Lieutenant General Jonathan O. Seaman, Commander, 1st U. S. Army, Fort Meade, Maryland.
• Court: U.S. District Court — District of Maryland

318 F. Supp. 94

UNITED STATES of America ex rel. Richard R. LOHMEYER v. Hon. Melvin LAIRD, Secretary of Defense, Hon. Stanley Resor, Secretary of the Army, Major General K. G. Wickham, Adjutant General of the Army, and Lieutenant General Jonathan O. Seaman, Commander, 1st U. S. Army, Fort Meade, Maryland.

Civ. A. No. 20719.

United States District Court, D. Maryland.

May 20, 1970.

Elsbeth Levy Bothe, Baltimore, Md., for petitioner; Gaillard T. Hunt, New York City, of counsel.

Stephen H. Sachs, U. S. Atty., and Alan I. Baron, Asst. U. S. Atty., D. Maryland, Baltimore, Md., for respondents.

WATKINS, District Judge.

Petitioner, a member of the United States Army, brings this action seeking a writ of habeas corpus and relief in the nature of mandamus, the effect of which would be, if the relief prayed were granted, his discharge from the army as a conscientious objector. The respondents have filed a motion to dismiss asserting that: (1) This court lacks jurisdiction over the subject matter, (2) the petitioner is not confined within the territorial jurisdiction of the court, (3) the petitioner has failed to exhaust his administrative remedies and (4) there is basis in fact for the finding that the petitioner is not entitled to discharge as a conscientious objector.

Petitioner enlisted in the army in October 1967 for a term of four years. According to his complaint he allegedly became for the first time opposed to participation in war in any form in late 1968. On January 29, 1969 he submitted to the Commanding Officer of Company B of the Defense Language Institute, West Coast Branch, Presidio of Monterey, California, an application for discharge as a conscientious objector. This application was denied and petitioner was ordered to report to Oakland Army Base for further assignment to the Republic of Vietnam pursuant to orders issued by the Oakland Army Base. Petitioner's eventual assignment to Vietnam was by no means unexpected as petitioner had entered the army with just such an assignment in mind and had attached himself to the "Army Security Agency in particular because of the opportunity it offered to me to learn the Vietnamese language." Having received his orders to report, petitioner was then granted a leave and about five weeks later while on leave in Maryland decided, some several days before his orders to report would have become effective, to file the instant suit.

In order to deal intelligently with the challenge of the respondents to the jurisdiction of this court, it is necessary to distinguish three types of jurisdiction; first, jurisdiction over the subject matter; secondly, venue jurisdiction and, thirdly, personal jurisdiction over the various individual respondents. Jurisdiction over the subject matter is governed by the provisions of section 2241 of Title 28, U.S.C., which states, in part:

"(a) Writs of habeas corpus may be granted by * * * the district courts within their respective jurisdictions."

The statute then makes a mandatory prerequisite to the seeking of relief the requirement that the petitioner be "in custody." This requirement of "custody", however, has undergone significant conceptual changes in recent years. No longer need the petitioner be in actual physical confinement. A petition for habeas corpus relief, a type of relief perhaps most frequently resorted to by one convicted of a crime and hence under actual physical restraint, may now be entertained to test the validity of a conviction before service of sentence imposed as to that conviction has begun (Peyton v. Rowe, 1968, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426; cf. McNally v. Hill, 1934, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238); or to test the validity of a conviction while the petitioner is not incarcerated but is on parole (Jones v. Cunningham, 1963, 371 U.S. 236, 83 S. Ct. 373, 9 L.Ed.2d 285); or to test the validity of a conviction even after petitioner's unconditional release from confinement. (Carafas v. La Vallee, 1968, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554). In view of this line of cases broadening the concept of "custody" from an actual physical custody to a significant restraint on liberty, it is not surprising, therefore, that one subject to military orders or control has of late uniformly been found by the courts to be "in custody" as that term is used in section 2241 of Title 28 U.S.C. and hence one authorized to seek habeas corpus relief. (United States ex rel. Rudick v. Laird, 2 Cir. 1969, 412 F.2d 16, 19; Hammond v. Lenfest, 2 Cir. 1968, 398 F.2d 705; Donigian v. Laird, D.Md.1969, 308 F.Supp. 449; Benitez-Manrique v. Micheli, D.Puerto Rico, 1969, 305 F. Supp. 334; Nason v. Secretary of the Army, D.Mass.1969, 304 F.Supp. 422; and Laxer v. Cushman, D.Mass.1969, 300 F.Supp. 920).

Where the courts have not found themselves in agreement, however, is in regard to whether or not an individual in a situation analogous to petitioner's, that is a military man under orders from his former duty station to report to a new duty station but lawfully on leave and physically within the territorial jurisdiction of the forum, is "in custody" within the jurisdiction of that court. The respondents in earnestly urging that in the instant case the petitioner is not in custody within the territorial jurisdiction of this court rely solely on Ahrens v. Clark, 1948, 335 U.S. 188, 192-193, 68 S.Ct. 1443, 92 L.Ed. 1898 and United States ex rel. Rudick v. Laird, 2 Cir. 1969, 412 F.2d 16, the latter being a case factually close to the one now before this court. Certiorari was denied in Rudick on November 10, 1969, 396 U.S. 918, 90 S.Ct. 244, 24 L.Ed.2d 197. The Second Circuit had this to say in the Rudick opinion:

"As appellant petitioner below concedes, the general rule in regard to personal jurisdiction under Section 2241 is that the writ may only issue within the district where the petitioner is `in custody.' The relevant phrase in Section 2241, `within their respective jurisdictions,' limits the power of a district court to hear and determine a prisoner's petition for habeas corpus to those situations where the prisoner both is physically present in the court's territorial jurisdiction and is detained or held in custody within that jurisdiction. Ahrens v. Clark, supra. * * *" (412 F.2d 20).

The court then cited two additional cases in support of this premise, Orloff v. Lovett, D.D.C.1951, 101 F.Supp. 750—a case the present authority of which is suspect both because of its age and because of a lack of discussion of the point in issue— petitioner apparently conceding that he was "not restrained within" the district —and Ragsdale v. Cameron, 1963, 117 U.S.App.D.C. 278, 329 F.2d 233. The Ragsdale case was, in effect, overruled in Cameron v. Mullen, 1967, 128 U.S.App. D.C. 235, 387 F.2d 193, 196, f. n. 4 although the court preferred to speak of Ragsdale not as being overruled in effect but as presenting a different factual situation. As this court reads the Cameron opinion the Circuit Court for the District of Columbia pointed out a difference between Cameron and Ragsdale but a difference without a legal distinction. Thus the cases, aside from Ahrens, cited by the Second Circuit in Rudick are not persuasive to this court. And as far as Ahrens is concerned, the United States Court of Appeals for the Fourth Circuit, whose rulings are binding upon this court, has interpreted that case as follows:

"Only Mr. Justice Douglas, who wrote for the Court in Ahrens v. Clark and Mr. Justice Black, who joined in the dissent, are now members of the Court. But we need not speculate about the result if the precise Ahrens v. Clark situation were presented to the Court today,7 for subsequent cases have made it plain that physical presence of the prisoner within the district is not an invariable prerequisite.

"7. But see Sokol, A Handbook of Federal Habeas Corpus 46-50. The Michie Company (1965). Sokol, Federal Habeas Corpus, Second Edition, 1969, pages 84-88.

* * * * * *

"From all of these cases it now seems clear that if the words `within their respective jurisdictions' in § 2241 mean anything more than that the court may act only if it has personal jurisdiction of a proper custodian and the capacity, within its geographic boundaries, to enforce its orders,9 physical presence of the petitioner within the district is not an invariable jurisdictional prerequisite. It gives way in the face of other considerations of fairness and strong convenience. It will not be applied to leave one in prison without an effective remedy, to limit the reach and usefulness of related writs authorized by the same statute or to require the dismissal of proceedings once they have been properly begun. It is little more than a precatory direction, as the author of the majority opinion in Ahrens v. Clark explained in Hirota v. MacArthur. 1949, 338 U.S. 197, 69 S.Ct. 197, 93 L.Ed. 1902." (Word v. State of North Carolina, 4 Cir. 1969, 406 F.2d 352, 358, 359).

"9. See D. J. Meador, Habeas Corpus and Magna Carta, University of Virginia Press (1966), page 42. Dean Meador expresses the view that, from the nature of the writ, `* * * all that is required for effective issuance of the writ is that such a custodian be within the power of the court. It is immaterial where the prisoner is actually confined. * * *.'

Thus it may be seen that none of the cases cited by the Second Circuit in the Rudick opinion remain today authority for the proposition for which they were cited.

Moreover, the Rudick case itself does not apply the proposition that a petitioner must be in custody within the district expressly to the facts then before it. Rather the court having stated the general principle, having cited the three cases discussed above in support of this principle, having posed two questions and not having found it "necessary to reach either question in the present case", proceeded to state the views of each side as to petitioner's detention or lack of detention within the...