Smith v. Humphrey

89 F. Supp. 948, 1949 U.S. Dist. LEXIS 1865

Opinion

FOLLMER, District Judge.

Bernard W. Smith has filed his second application in this Court for a writ of habeas corpus.¹ In an “Appendix II” to his petition he sets forth as his reason for not having applied for a new trial or other relief under the provisions of the 53rd Article of War, 10 U.S.C.A. § 1525, that he has been, discharged, is now a civilian and no longer subject to military jurisdiction. Petitioner admits that he is now imprisoned in the United States Penitentiary, Lewis-burg, Pennsylvania, under a sentence adjudged by an Army Court-Martial. This contention is therefore without merit.² Petitioner had an available remedy by application for new trial or other relief under Article of War 53 and the Motion to Dismiss must be granted.³

The petition for writ of habeas corpus is accordingly denied and the rule to show cause, heretofore entered thereon, vacated.

Footnotes

1

. The present petition however raises some matters not considered in his previous proceeding, which is reported in Ex parte Smith, D.C., 72 F.Supp. 935; Id., 3 Cir., 170 F.2d 61; Humphrey v. Smith, 336 U.S. 695, 69 S.Ct. 830, 93 L.Ed. 986, and Id., 337 U.S. 934, 69 S.Ct. 1492, 93 L.Ed. 1740.

2

. O’Malley v. Hiatt, D.C.M.D.Pa., 74 F. Supp. 44; Steele v. Humphrey, D.C. M.D.Pa., 80 F.Supp. 544; McFarland v. Zuppann, D.C.M.D.Pa., 82 F.Supp. 526.

3

. Massey v. Humphrey, D.C.M.D.Pa., 85 F.Supp. 534; Whelchel v. McDonald, 5 Cir., 176 F.2d 260; Spencer v. Hunter, 10 Cir., 177 F.2d 370; Sinclair v. Hiatt, D.C.N.D.Ga., 86 F.Supp. 828; Browell v. Johnson, D.C.D.C., Habeas Corpus No. 3530, decided June, 1949.