Samuel Obediah Miller v. The United States Army

Tenth Circuit

Samuel Obediah Miller v. The United States Army

458 F.2d 388, 1972 U.S. App. LEXIS 10502

CourtCourt of Appeals for the Tenth Circuit

DecidedMarch 27, 1972

Docket679-70

StatusPublished

This text of 458 F.2d 388 (Samuel Obediah Miller v. The United States Army) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth 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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Samuel Obediah Miller v. The United States Army, 458 F.2d 388, 1972 U.S. App. LEXIS 10502 (10th Cir. 1972).

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Opinion

PER CURIAM.

The opinion filed herein on August 27, 1971, was withdrawn on August 30, 1971, to avoid possible inconsistency with Polsky v. Wetherill, 10 Cir., 438 F.2d 132.

Petitioner-appellant, who voluntarily enlisted in the armed forces, sought release therefrom as a conscientious objector. Release was denied and he brought habeas corpus. In reliance on Noyd v. McNamara, 10 Cir., 378 F.2d 538, cert. denied 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667, the district court dismissed the petition because petitioner had not exhausted available military remedies, including the court martial process. In Polsky we reaffirmed the rule stated in Noyd v. McNamara. The Supreme Court vacated our judgment and remanded the case for further consideration, Polsky v. Wetherill, 403 U.S. 916, 91 S.Ct. 2232, 29 L.Ed.2d 693. Thereafter, the court of appeals en banc considered Polsky on its merits and directed that the writ issue. See opinion filed on March 2, 1972, in 10 Cir., 455 F.2d 960.

Noyd v. McNamara no longer has any vitality. The appellant in the case at bar is entitled to consideration of his claim on the merits. Accordingly, the judgment is reversed and the case is remanded for trial on the merits.

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PER CURIAM.

The opinion filed herein on August 27, 1971, was withdrawn on August 30, 1971, to avoid possible inconsistency with Polsky v. Wetherill, 10 Cir., 438 F.2d 132.

Petitioner-appellant, who voluntarily enlisted in the armed forces, sought release therefrom as a conscientious objector. Release was denied and he brought habeas corpus. In reliance on Noyd v. McNamara, 10 Cir., 378 F.2d 538, cert. denied 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667, the district court dismissed the petition because petitioner had not exhausted available military remedies, including the court martial process. In Polsky we reaffirmed the rule stated in Noyd v. McNamara. The Supreme Court vacated our judgment and remanded the case for further consideration, Polsky v. Wetherill, 403 U.S. 916, 91 S.Ct. 2232, 29 L.Ed.2d 693. Thereafter, the court of appeals en banc considered Polsky on its merits and directed that the writ issue. See opinion filed on March 2, 1972, in 10 Cir., 455 F.2d 960.

Noyd v. McNamara no longer has any vitality. The appellant in the case at bar is entitled to consideration of his claim on the merits. Accordingly, the judgment is reversed and the case is remanded for trial on the merits.

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458 F.2d 388, 1972 U.S. App. LEXIS 10502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/samuel-obediah-miller-v-the-united-states-army-ca10-1972.

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