John E. Day, Jr. v. Charles E. Wilson, Secretary of Defense

D.C. Circuit

John E. Day, Jr. v. Charles E. Wilson, Secretary of Defense

247 F.2d 60, 101 U.S. App. D.C. 69, 1957 U.S. App. LEXIS 3664

CourtCourt of Appeals for the D.C. Circuit

DecidedApril 25, 1957

Docket12476

StatusPublished

Cited by12 cases

This text of 247 F.2d 60 (John E. Day, Jr. v. Charles E. Wilson, Secretary of Defense) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

John E. Day, Jr. v. Charles E. Wilson, Secretary of Defense, 247 F.2d 60, 101 U.S. App. D.C. 69, 1957 U.S. App. LEXIS 3664 (D.C. Cir. 1957).

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EDGERTON, Chief Judge.

While appellant was a United States soldier in Korea, a general court martial convicted him of murder and sentenced him to death. The military reviewing authorities and the United States Court of Military Appeals affirmed. 2 U.S.C. M.A. 416. On June 30, 1954, the President of the United States, acting under Article 71(a) of the Uniform Code of Military Justice, 50 U.S.C.A. § 658(a), confirmed the sentence and ordered it executed.

On August 10, 1954, while appellant was confined in Japan, he filed a petition for a writ of habeas corpus in the United States District Court for the District of Columbia. That court issued an order to show cause. The respondents moved to dismiss the petition on two grounds: first, that the District Court was “without jurisdiction to issue the writ”, because “the petitioner is imprisoned in Japan which is outside the territorial confines of the District of Columbia” ; and second, that the petition “fails to state a basis upon which relief can be granted”, because the proceedings against the petitioner were in full conformity with law.

On September 9, 1954, the District Court dismissed the petition. The court’s order said: “ * * * it appearing that the Court lacks jurisdiction to issue the Writ of Habeas Corpus it is by the Court this 9th day of September, 1954, Ordered, that the respondents’ motion to dismiss be and it is hereby granted * * That the judge did not attempt to rule on respondents’ second contention seems to us particularly clear, for he personally struck out the words “and it further appearing that the petition fails to state a basis upon which relief can be granted”, which were in the proposed order when it was presented for his signature.¹ We think it irrelevant that the order of dismissal begins, as orders often do, by reciting the history of the case.²

The present appeal was filed October 8, 1954, but its prosecution was postponed. In the meantime appellant was returned to the United States, was confined at Fort Leavenworth, Kansas, and filed a petition for a writ of habeas corpus in the United States District [62]*62Court for the District of Kansas. The writ was issued, but was afterwards discharged, and the United States Court of Appeals for the Tenth Circuit affirmed the order discharging it. Day v. Davis, 235 F.2d 379, certiorari denied 352 U.S. 881, 77 S.Ct. 104, 1 L.Ed.2d 81, rehearing denied, 352 U.S. 913, 77 S.Ct. 152, 1 L.Ed.2d 120.

We think the United States District Court for the District of Columbia erred in dismissing, on the ground that it lacked jurisdiction, the petition the appellant had filed in that court. The petition asserted that in the court-martial proceedings which led to his sentence of death he was denied basic constitutional rights. The civil courts of the United States have jurisdiction to hear and determine such a claim. Burns v. Wilson, 346 U.S. 137, 139, 73 S.Ct. 1045, 97 L.Ed. 1508. The fact that the appellant was in Japan when his petition was filed here did not defeat the jurisdiction of the United States District Court for the District of Columbia. Cozart v. Wilson, 98 U.S.App.D.C. 437, 236 F.2d 132,³ vacated as moot, 352 U.S. 884, 77 S.Ct. 126, 1 L.Ed.2d 82. We must therefore remand the ease to that court for further proceedings. We do not suggest that these will necessarily require the presence of appellant. The court should of course give great weight to Day v. Davis, supra.

Remanded.

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EDGERTON, Chief Judge.

While appellant was a United States soldier in Korea, a general court martial convicted him of murder and sentenced him to death. The military reviewing authorities and the United States Court of Military Appeals affirmed. 2 U.S.C. M.A. 416. On June 30, 1954, the President of the United States, acting under Article 71(a) of the Uniform Code of Military Justice, 50 U.S.C.A. § 658(a), confirmed the sentence and ordered it executed.

On August 10, 1954, while appellant was confined in Japan, he filed a petition for a writ of habeas corpus in the United States District Court for the District of Columbia. That court issued an order to show cause. The respondents moved to dismiss the petition on two grounds: first, that the District Court was “without jurisdiction to issue the writ”, because “the petitioner is imprisoned in Japan which is outside the territorial confines of the District of Columbia” ; and second, that the petition “fails to state a basis upon which relief can be granted”, because the proceedings against the petitioner were in full conformity with law.

On September 9, 1954, the District Court dismissed the petition. The court’s order said: “ * * * it appearing that the Court lacks jurisdiction to issue the Writ of Habeas Corpus it is by the Court this 9th day of September, 1954, Ordered, that the respondents’ motion to dismiss be and it is hereby granted * * That the judge did not attempt to rule on respondents’ second contention seems to us particularly clear, for he personally struck out the words “and it further appearing that the petition fails to state a basis upon which relief can be granted”, which were in the proposed order when it was presented for his signature.¹ We think it irrelevant that the order of dismissal begins, as orders often do, by reciting the history of the case.²

The present appeal was filed October 8, 1954, but its prosecution was postponed. In the meantime appellant was returned to the United States, was confined at Fort Leavenworth, Kansas, and filed a petition for a writ of habeas corpus in the United States District [62]*62Court for the District of Kansas. The writ was issued, but was afterwards discharged, and the United States Court of Appeals for the Tenth Circuit affirmed the order discharging it. Day v. Davis, 235 F.2d 379, certiorari denied 352 U.S. 881, 77 S.Ct. 104, 1 L.Ed.2d 81, rehearing denied, 352 U.S. 913, 77 S.Ct. 152, 1 L.Ed.2d 120.

We think the United States District Court for the District of Columbia erred in dismissing, on the ground that it lacked jurisdiction, the petition the appellant had filed in that court. The petition asserted that in the court-martial proceedings which led to his sentence of death he was denied basic constitutional rights. The civil courts of the United States have jurisdiction to hear and determine such a claim. Burns v. Wilson, 346 U.S. 137, 139, 73 S.Ct. 1045, 97 L.Ed. 1508. The fact that the appellant was in Japan when his petition was filed here did not defeat the jurisdiction of the United States District Court for the District of Columbia. Cozart v. Wilson, 98 U.S.App.D.C. 437, 236 F.2d 132,³ vacated as moot, 352 U.S. 884, 77 S.Ct. 126, 1 L.Ed.2d 82. We must therefore remand the ease to that court for further proceedings. We do not suggest that these will necessarily require the presence of appellant. The court should of course give great weight to Day v. Davis, supra.

Remanded.

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247 F.2d 60, 101 U.S. App. D.C. 69, 1957 U.S. App. LEXIS 3664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-e-day-jr-v-charles-e-wilson-secretary-of-defense-cadc-1957.

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