Joseph Orby Smith, Jr. v. Secretary of the Navy

Eighth Circuit

Joseph Orby Smith, Jr. v. Secretary of the Navy

506 F.2d 1250, 1974 U.S. App. LEXIS 5988

CourtCourt of Appeals for the Eighth Circuit

DecidedNovember 20, 1974

Docket74-1386

StatusPublished

Cited by3 cases

This text of 506 F.2d 1250 (Joseph Orby Smith, Jr. v. Secretary of the Navy) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Joseph Orby Smith, Jr. v. Secretary of the Navy, 506 F.2d 1250, 1974 U.S. App. LEXIS 5988 (8th Cir. 1974).

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Opinion

PER CURIAM.

Upon a careful consideration of the record and of the briefs and arguments of the parties, the Court has concluded that the judgment appealed from should be affirmed for the reasons stated in Judge Oliver’s well-reasoned memorandum opinion.

Although it is clear that Smith’s 1942 court martial conviction was for non-service connected offenses, under the reasoning of O’Callaghan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), retroactive relief upon this basis is not available. Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973). We are also of the opinion that the District Court correctly concluded that Smith must exhaust his administrative remedies under 10 U.S.C. § 869 before applying to the courts for relief on his claim of the lack of a knowing and intelligent waiver of counsel.

The judgment of the District Court dismissing the petition is hereby affirmed.

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PER CURIAM.

Upon a careful consideration of the record and of the briefs and arguments of the parties, the Court has concluded that the judgment appealed from should be affirmed for the reasons stated in Judge Oliver’s well-reasoned memorandum opinion.

Although it is clear that Smith’s 1942 court martial conviction was for non-service connected offenses, under the reasoning of O’Callaghan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), retroactive relief upon this basis is not available. Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973). We are also of the opinion that the District Court correctly concluded that Smith must exhaust his administrative remedies under 10 U.S.C. § 869 before applying to the courts for relief on his claim of the lack of a knowing and intelligent waiver of counsel.

The judgment of the District Court dismissing the petition is hereby affirmed.

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506 F.2d 1250, 1974 U.S. App. LEXIS 5988, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joseph-orby-smith-jr-v-secretary-of-the-navy-ca8-1974.

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