United States ex rel. Bailey v. USCO, OF PM, US ARMY, No. 74-1023.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtCOFFIN, , McENTEE and CAMPBELL, Circuit
Citation496 F.2d 324
PartiesUNITED STATES of America ex rel. Gerard A. BAILEY, Petitioner, Appellant, v. U. S. COMMANDING OFFICER OF the OFFICE OF the PROVOST MARSHAL, U. S. ARMY, etc., Respondent, Appellee.
Docket NumberNo. 74-1023.
Decision Date15 May 1974

496 F.2d 324 (1974)

UNITED STATES of America ex rel. Gerard A. BAILEY, Petitioner, Appellant,
v.
U. S. COMMANDING OFFICER OF the OFFICE OF the PROVOST MARSHAL, U. S. ARMY, etc., Respondent, Appellee.

No. 74-1023.

United States Court of Appeals, First Circuit.

Heard April 2, 1974.

Decided May 15, 1974.


496 F.2d 325

Mel L. Greenberg, Worcester, Mass., with whom Teshoian, Greenberg & Drapos, Worcester, Mass., was on brief, for petitioner, appellant.

Robert B. Collings, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., Boston, Mass., was on brief, for respondent, appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

This petition for a writ of habeas corpus, seeking injunctive and declaratory relief from a specific Army regulation, the merits of which are irrelevant here, was filed the day after petitioner, who had been absent without authorization from the Army, entered military custody. While the present petition was pending in the district court, petitioner again absented himself without proper leave. The government filed a motion to dismiss, which was withdrawn when petitioner voluntarily returned to military custody. However, petitioner remained in custody for only one day, and thereafter again absented himself without leave. The government again filed a motion to dismiss. The district court, finding itself with no jurisdiction, granted the government's motion.

The game of hide-and-seek continues. The government contends that it has no military facilities within the jurisdiction for confining petitioner, if and when he again returns to custody. Since he is not presently in custody, the government urges us to affirm the district court's dismissal of the petition. Petitioner is unwilling to return to custody unless the government places him on excess leave status, which the government is not willing to do. Petitioner contends, however, that he is "in custody" for the purpose of invoking the writ of habeas corpus.

28 U.S.C. § 2241(c) provides that "the writ of habeas corpus shall not extend to a prisoner unless . . . (3) he is in custody in violation of the Constitution or laws or treaties of the United States."

Although "habeas corpus is an extraordinary remedy" whose "use has been limited to a special urgency", and whose custody requirement "is designed to preserve the writ . . . as a remedy for severe restraints on individual liberty", Hensley v. Municipal Court, 411 U.S. 345, 351, ...

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34 practice notes
  • Prevot, In re, Nos. 94-5854
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 7, 1995
    ...when petitioner escaped; Rule 60(b) motion to reopen denied based on Molinaro ). 9 Habeas corpus cases: Bailey v. U.S. Commanding Officer, 496 F.2d 324 (1st Cir.1974) (affirming the dismissal of a petition for habeas corpus by person AWOL from the Army); Clark v. Dalsheim, 663 F.Supp. 1095 ......
  • U.S. v. Forty-Five Thousand Nine Hundred Forty Dollars ($45,940) in U.S. Currency, FORTY-FIVE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 11, 1984
    ...for a determination of his case." Id. at 659 (citing Molinaro, supra ). In United States Ex Rel. Bailey v. U.S.C.O. of P.M., U.S. Army, 496 F.2d 324 (1st Cir.1974), a petitioner for a writ of habeas corpus sought relief from an Army regulation, although absent without leave and not in custo......
  • State of Md. Deposit Ins. Fund Corp. v. Billman, No. 143
    • United States
    • Maryland Court of Appeals
    • October 17, 1990
    ...challenge to jeopardy income tax assessment); United States v. U.S. Commanding Officer of the Office of the Provost Marshal, U.S. Army, 496 F.2d 324 (1st Cir.1974) (habeas corpus denied where applicant fled after court-martial charges brought); Dawkins v. Mitchell, 437 F.2d 646 (D.C.Cir.197......
  • Jaffe v. Snow, No. 91-1918
    • United States
    • Court of Appeal of Florida (US)
    • November 13, 1992
    ...the facts of Molinaro. See, e.g., United States ex rel. Bailey v. U.S. Commanding Officer of the Office of the Provost Marshal, U.S. Army, 496 F.2d 324 (1st Cir.1974) (soldier who was AWOL several times was not entitled to petition for habeas corpus relief); Doyle v. United States Departmen......
  • Request a trial to view additional results
34 cases
  • Prevot, In re, Nos. 94-5854
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 7, 1995
    ...when petitioner escaped; Rule 60(b) motion to reopen denied based on Molinaro ). 9 Habeas corpus cases: Bailey v. U.S. Commanding Officer, 496 F.2d 324 (1st Cir.1974) (affirming the dismissal of a petition for habeas corpus by person AWOL from the Army); Clark v. Dalsheim, 663 F.Supp. 1095 ......
  • U.S. v. Forty-Five Thousand Nine Hundred Forty Dollars ($45,940) in U.S. Currency, FORTY-FIVE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 11, 1984
    ...for a determination of his case." Id. at 659 (citing Molinaro, supra ). In United States Ex Rel. Bailey v. U.S.C.O. of P.M., U.S. Army, 496 F.2d 324 (1st Cir.1974), a petitioner for a writ of habeas corpus sought relief from an Army regulation, although absent without leave and not in custo......
  • State of Md. Deposit Ins. Fund Corp. v. Billman, No. 143
    • United States
    • Maryland Court of Appeals
    • October 17, 1990
    ...challenge to jeopardy income tax assessment); United States v. U.S. Commanding Officer of the Office of the Provost Marshal, U.S. Army, 496 F.2d 324 (1st Cir.1974) (habeas corpus denied where applicant fled after court-martial charges brought); Dawkins v. Mitchell, 437 F.2d 646 (D.C.Cir.197......
  • Jaffe v. Snow, No. 91-1918
    • United States
    • Court of Appeal of Florida (US)
    • November 13, 1992
    ...the facts of Molinaro. See, e.g., United States ex rel. Bailey v. U.S. Commanding Officer of the Office of the Provost Marshal, U.S. Army, 496 F.2d 324 (1st Cir.1974) (soldier who was AWOL several times was not entitled to petition for habeas corpus relief); Doyle v. United States Departmen......
  • Request a trial to view additional results

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