Mitchell Branford, Jr. v. United States

Seventh Circuit

Mitchell Branford, Jr. v. United States

356 F.2d 876, 1966 U.S. App. LEXIS 7011

CourtCourt of Appeals for the Seventh Circuit

DecidedMarch 2, 1966

Docket15239_1

StatusPublished

Cited by2 cases

This text of 356 F.2d 876 (Mitchell Branford, Jr. v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh 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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Mitchell Branford, Jr. v. United States, 356 F.2d 876, 1966 U.S. App. LEXIS 7011 (7th Cir. 1966).

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Opinion

KILEY, Circuit Judge.

This is a pro se petition for habeas corpus by a prisoner sentenced March 25, 1961, by a general court-martial for a violation of 10 U.S.C. § 918, Article 118 of the Universal Code of Military Justice. The district court dismissed the petition. We affirm.

The petitioner contends that the court-martial was without jurisdiction to entertain the prosecution against him for a capital offense in time of peace; that he is entitled to a jury trial; and that he was not informed at the trial that “at least one third of the members of the Courts-Martial could have been enlisted men.”

This court in Owens v. Markley, 289 F.2d 751 (7th Cir. 1961), decided the first two contentions adversely to the position of petitioner. The last contention has no merit. A request for enlisted men to serve on the court-martial was required by 10 U.S.C. § 825(c) (1) to be made before the court-martial was convened. And if petitioner’s counsel failed to inform him of 10 U.S.C. § 825(c) (1), the point cannot be raised here for the first time. Finally, and conclusively, petitioner does not show or suggest that he has exhausted his military appellate or post-conviction remedies. Burns v. Wilson, 346 U.S. 137, 141, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953).

Affirmed.

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KILEY, Circuit Judge.

This is a pro se petition for habeas corpus by a prisoner sentenced March 25, 1961, by a general court-martial for a violation of 10 U.S.C. § 918, Article 118 of the Universal Code of Military Justice. The district court dismissed the petition. We affirm.

The petitioner contends that the court-martial was without jurisdiction to entertain the prosecution against him for a capital offense in time of peace; that he is entitled to a jury trial; and that he was not informed at the trial that “at least one third of the members of the Courts-Martial could have been enlisted men.”

This court in Owens v. Markley, 289 F.2d 751 (7th Cir. 1961), decided the first two contentions adversely to the position of petitioner. The last contention has no merit. A request for enlisted men to serve on the court-martial was required by 10 U.S.C. § 825(c) (1) to be made before the court-martial was convened. And if petitioner’s counsel failed to inform him of 10 U.S.C. § 825(c) (1), the point cannot be raised here for the first time. Finally, and conclusively, petitioner does not show or suggest that he has exhausted his military appellate or post-conviction remedies. Burns v. Wilson, 346 U.S. 137, 141, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953).

Affirmed.

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356 F.2d 876, 1966 U.S. App. LEXIS 7011, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-branford-jr-v-united-states-ca7-1966.

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