United States ex rel. Kelly v. District Commandant

177 F.2d 369

• Court: Court of Appeals for the Second Circuit
• Decided: October 28, 1949
• Docket: No. 93, Docket 21462
• Status: Published

Opinion

PER CURIAM.

This is an appeal from an order dismissing a writ of habeas corpus sued out by the relator Kelly on the ground that he was improperly sentenced to imprisonment and dishonorably discharged from the United States Coast Guard by a court martial which convicted him of the offense of desertion. There was no showing that the court martial lacked general jurisdiction of the person or of the subject matter. Its findings were attacked because the relator was said not to have been shown to have been a deserter, although he absented himself from his service with the Coast Guard for some nine months without leave. He attempted to negative the" finding of desertion on the ground that proof was lacking that he did not intend to return to the service, and on the further ground that he was insane at the time he absented himself so that an intent to desert ought not to have been found. The questions were purely of fact, and the court below was at most shown nothing except possible errors in the findings-of fact by the court martial. In other words, there was no proof either of lack of general jurisdiction or of an unfair trial by the court martial. Becker v. Webster, 2 Cir., 171 F.2d 762, 764.

No case has been made for a judicial review, and the order of the District Court should accordingly be affirmed.