Denzil R. Allen v. Rolland F. Vancantfort, Etc., 436 F.2d 625, 1st Cir. (1971)
Uploaded by
Scribd Government DocsDenzil R. Allen v. Rolland F. Vancantfort, Etc., 436 F.2d 625, 1st Cir. (1971)
Uploaded by
Scribd Government Docs436 F.
2d 625
Denzil R. ALLEN, Petitioner, Appellant,
v.
Rolland F. VanCANTFORT, etc., Respondent, Appellee.
No. 7701.
United States Court of Appeals, First Circuit.
January 12, 1971.
COPYRIGHT MATERIAL OMITTED George E. Martz, Indianapolis,
Ind., and George W. Latimer, Salt Lake City, Utah, with whom Johnson,
Weaver & Martz, Indianapolis, Ind., was on brief, for petitioner-appellant.
Charles J. Keever, Director, Appellate Government Division Navy
Appellate Review Activity, Washington, D. C., with whom Peter Mills, U.
S. Atty., was on brief, for respondent-appellee.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
McENTEE, Circuit Judge.
On June 5, 1968, petitioner, then a lance corporal in the United States Marine
Corps, was charged before a general court-martial convened at Da Nang, South
Vietnam, with five specifications of premeditated murder in violation of Article
118 of the Uniform Code of Military Justice, 10 U.S.C. 918 (1964).1
According to a stipulation of fact all five victims were unarmed Vietnamese
who offered no resistance. On September 9, 1968, petitioner pleaded guilty to
all five specifications. In accordance with a pretrial agreement he was
sentenced to be reduced to Pay Grade E-1, to be confined at hard labor for
twenty years, to forfeit all pay and allowances, and to be dishonorably
discharged from the service.
Petitioner appealed his conviction to the United States Navy Court of Military
Review, arguing, inter alia, that he was not mentally responsible at the time of
the commission of these offenses and that his trial counsel was incompetent.
On November 7, 1969, the court affirmed his conviction. Two habeas corpus
petitions were dismissed by the district court for failure to exhaust all available
military remedies. See Allen v. VanCantfort, 420 F.2d 525 (1st Cir. 1970).
After a petition for review pursuant to Article 67 of the Uniform Code of
Military Justice, 10 U.S.C. 867 (Supp. V, 1970), amending 10 U.S.C. 867
(1964), was denied by the United States Court of Military Appeals, the district
court considered petitioner's habeas corpus petition pursuant to 28 U.S. C.
2241 (1964). Burns v. Wilson, 346 U.S. 137, 139 n. 1, 73 S.Ct. 1045, 97 L. Ed.
1508 (1953). This is an appeal from the district court's denial of that petition.
316 F.Supp. 222.
3
At the outset petitioner contends that, although the court-martial admittedly had
jurisdiction of the subject-matter and of the person, it "lost" jurisdiction by
virtue of its failure to adhere strictly to the procedural requirements of the
Uniform Code of Military Justice, 10 U.S.C. 801-940 (1964), which prevent
guilty pleas in cases in which the charge alleges "an offense for which the death
penalty may be attached." This argument is based on a statement in
McClaughry v. Deming, 186 U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049 (1902), that,
because a "court-martial is the creature of statute * * *, it must be convened and
constituted in entire conformity with the provisions of the statute, or else it is
without jurisdiction" and that it can "give effect to its sentences * * * [only if]
all the statutory regulations governing its proceedings [have] been complied
with." Id. at 62-63, 22 S.Ct. at 791. Following cases subsequent to Deming we
read that case as reaching only laws that govern the convening of courtsmartial. An error of law not affecting the constitution of the court, its
jurisdiction over person and subject matter, or the validity of its sentence, does
not cause the court-martial to "lose" jurisdiction. See Humphrey v. Smith, 336
U.S. 695, 69 S. Ct. 830, 93 L.Ed. 986 (1949). See generally United States ex
rel. Innes v. Hiatt, 141 F.2d 664, 665 (3d Cir. 1944); Note, Developments in the
Law Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1211-12 & n. 20 (1970).
Whatever need there may have been for Deming's fictional approach to describe
as "jurisdictional" errors not strictly so, disappeared with cases that faced
directly the question what issues could be raised in federal habeas proceedings.
Burns v. Wilson, supra (review of military courts); Brown v. Allen, 344 U.S.
443, 73 S.Ct. 397, 97 L.Ed. 469 (1953) (review of state courts); Johnson v.
Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (review of federal
courts).
However, these cases show that our refusal to find lack of jurisdiction does not
solve the problem; we must decide whether petitioner can raise, on its own
terms, an alleged error of federal statutory law committed by a military court.
We hold that he can, resting this decision on the language of the habeas statute.
Petitioner can challenge his custody as being "in violation of the Constitution or
laws or treaties of the United States." 28 U.S.C. 2241(c) (3). Given this
language, we cannot refuse to consider all alleged errors of law committed by
the military without explicit authority for doing so. We cannot read Burns v.
Wilson, supra, as such authority; in mentioning only errors of constitutional
magnitude, Burns was facing the only question before it. And see Jackson v.
Taylor, 353 U.S. 569, 77 S.Ct. 1027, 1 L.Ed.2d 1045 (1957) (on habeas,
decision based on interpretation of provision of Uniform Code of Military
Justice).
5
Apart from alleged constitutional errors, petitioner makes this claim of a
violation of the "laws * * * of the United States." He pleaded guilty to
premeditated murder, a capital offense. He claims that this plea was received in
violation of Article 45(b) of the Uniform Code of Military Justice, 10 U.S.C.
845(b) (1964), which provides: "a plea of guilty by the accused may not be
received to any charge or specification alleging an offense for which the death
penalty may be adjudged." The government argues that this technical defect
was cured by the fact that, several days prior to petitioner's guilty plea, the
convening authority had signed a reference to trial indicating that the case was
to be treated as non-capital. We hold that this satisfied the requirement of
Article 45(b) since petitioner was pleading to a charge in which the courtmartial had no power to impose a death sentence, and so the statute, referring to
cases in which the death penalty "may be adjudged," did not bar the plea.
With respect to constitutional issues, the scope of review in habeas corpus
challenges to military convictions is more limited than in comparable civilian
cases. Burns v. Wilson, supra, 346 U.S. at 139, 73 S.Ct. 1045; Kennedy v.
Commandant, etc., 377 F.2d 339, 342 (10th Cir. 1967); Swisher v. United
States, 354 F.2d 472, 475 (8th Cir. 1966). In addition, the Supreme Court has
said that civil courts should not consider constitutional allegations that have
been dealt with "fully and fairly" by a military tribunal. Burns v. Wilson, supra,
346 U.S. at 142, 73 S.Ct. 1045. There would appear to be little doubt that
petitioner's principal constitutional contention here, viz., that he was denied
effective assistance of counsel, was fully considered by the United States Navy
Court of Military Review. But we note that considerable confusion has
surrounded the "full and fair consideration" standard enunciated in Burns. Its
validity has been questioned and criticized by both courts and commentators
since it was first announced. See Burns v. Wilson, supra, 346 U.S. at 149, 73
S.Ct. 1045 (Frankfurter, J., separate opinion) and 346 U.S. at 844, 74 S.Ct. 3,
98 L.Ed. 363 (Frankfurter, J., dissenting on denial of rehearing); Rushing v.
Wilkinson, 272 F.2d 633, 641 (5th Cir. 1959), cert. denied, 364 U.S. 914, 81
S.Ct. 280, 5 L.Ed. 2d 229 (1960); Wiener, Courts-Martial and The Bill of
Rights: The Original Practice II, 72 Harv.L.Rev. 266, 302-303 (1958). Some
courts have held that the "full and fair consideration" standard applies only to
questions of fact. Kennedy v. Commandant, etc., supra, 377 F. 2d at 342-343,
or at least that it does not apply to pure questions of law, Augenblick v. United
States, 377 F.2d 586, 593, 180 Ct.Cl. 131 (1967), rev'd on other grounds, 393
U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969);2 Shaw v. United States, 357
F.2d 949, 174 Ct.Cl. 899 (1966). Other courts have reviewed cases on the
merits where the alleged constitutional violation was so unfair as to shock the
conscience. See Ashe v. McNamara, 355 F.2d 277, 280 (1st Cir. 1965); Sweet
v. Taylor, 178 F.Supp. 456, 458 (D.Kan.1959).3 In view of the questions that
have been raised elsewhere regarding the appropriate scope of review in these
cases, we deem it appropriate to follow our brethren in other circuits and
review briefly petitioner's claims on the merits. See Swisher v. United States,
supra, 354 F.2d at 475 (8th Cir. 1966); Kasey v. Goodwyn, 291 F.2d 174, 178
(4th Cir. 1961), cert. denied, 368 U.S. 959, 82 S.Ct. 404, 7 L.Ed. 2d 391
(1962); Rushing v. Wilkinson, supra, 272 F.2d at 642 (5th Cir. 1959). But see
Mitchell v. Swope, 224 F.2d 365 (9th Cir. 1955); Bourchier v. Van Metre, 96
U.S.App.D.C. 181, 223 F.2d 646 (1955).
7
Petitioner's central contention is that he received ineffective assistance of
counsel because his attorney advised him to plead guilty rather than to defend
on the ground of lack of mental responsibility. In this connection, we note that
it has been uniformly held that effectiveness of counsel is not to be judged by
hindsight, Brubaker v. Dickson, 310 F.2d 30, 37 (9th Cir. 1962), cert. denied,
372 U.S. 978, 83 S.Ct. 1110, 10 L.Ed.2d 143 (1963), and that the appropriate
test is whether counsel's actions were so incompetent as to shock the conscience
of the reviewing court. United States ex rel. Boucher v. Reincke, 341 F.2d 977,
982 (2d Cir. 1965). Accord, Bruce v. United States, 126 U.S. App.D.C. 336,
379 F.2d 113 (1967); Turner v. Maryland, 303 F.2d 507 (4th Cir. 1962). In the
instant case the advice rendered by petitioner's trial counsel not only fails to
shock the conscience but appears to have been eminently sound under the
circumstances. As the district court found, the evidence against petitioner,
which included his own confession, was overwhelming. The chances of
obtaining a favorable report from the military psychiatrists available in Vietnam
appeared to be remote, as did the probability of winning acquittals on all five
specifications. Furthermore, counsel knew that, if on appeal the Navy Court of
Military Review determined that there was a reasonable doubt concerning
petitioner's sanity, he would be retried; and that, even if he were again found
guilty, the maximum sentence would be limited to the twenty years specified in
the pretrial agreement. In any event, with good behavior, petitioner's maximum
period of confinement would be seven years.
In addition to the allegation that his counsel's trial strategy was incompetent,
petitioner maintains that he was either deliberately misled or, at a minimum,
inexcusably misinformed when counsel told him that the insanity defense could
be raised on appeal. He claims that he would not have pleaded guilty had he
thought this defense could not be raised later. Petitioner concedes that the
regulations imply that the insanity question can be raised on appeal.4 But he
contends that, under the statute, he could not legally petition for a new trial
without alleging fraud or new evidence that could not have been discovered
through the exercise of due diligence at the time of trial. 10 U.S.C. 873
(1964); Manual for Courts-Martial, United States, 109(d) (1951). It is clear
from its lengthy opinion that the Court of Review carefully considered on the
basis of new evidence whether petitioner had made out a prima facie case of
insanity on appeal. Thus, even if he were technically correct that he lost his
right to appeal by virtue of counsel's failure to assert a known defense at trial,
petitioner suffered no prejudice. Furthermore, in concluding that it was
authorized to consider the insanity issue on appeal, the court relied on the
teachings of United States v. Thomas, supra note 4, and United States v.
Roland, 9 U.S.C.M.A. 401, 26 C.M.R. 181 (1958). It is within the province of
the military courts to resolve procedural issues of this type.5 See United States
v. Augenblick, 393 U.S. 348, 352-353, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969),
rev'g, Juhl v. United States, 383 F.2d 1009, 181 Ct. Cl. 210 (1967).
9
Petitioner makes numerous additional allegations regarding the conduct of his
defense counsel. He alleges, for example, that counsel failed to investigate the
charges, interview possible defense witnesses, or inform him of the requirement
that the government must prove him guilty beyond a reasonable doubt. He also
accuses counsel of committing a fraud on the court-martial by stating that he
knew of no other defenses that could be raised on his client's behalf. None of
these allegations are supported by the record. Petitioner also contends that he
was denied equal protection and due process because one of his co-defendants
was never tried, two were found not guilty, two received clemency, and one
received a mere two-year sentence. Although equal protection would of course
require that the proceedings against petitioner and his co-defendants accord
them all substantially the same procedural safeguards, see generally Connor v.
Picard, 434 F.2d 673 (1st Cir. 1970), there is no constitutional requirement that
their cases receive the same final disposition.6
10
Petitioner's remaining constitutional arguments may be dismissed summarily.
The charges brought against him were clearly specific enough to "[apprise] the
defendant of what he must be prepared to meet" and to defend himself in any
future proceedings taken against him for a similar offense. Russell v. United
States, 369 U.S. 749, 763-764, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). Assuming
arguendo that Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966), applies to military prisoners, petitioner waived his right to raise the
issue of non-compliance with Miranda when he pleaded guilty. McMann v.
Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Finally,
although the Court suggested in Pate v. Robinson, 383 U.S. 375, 384, 86 S.Ct.
836, 15 L.Ed.2d 815 (1966), that the defense of incompetency to stand trial can
probably not be waived, there is no evidence in this record to support an
allegation of incompetency at the time of trial.
11
Affirmed.
Notes:
1
The charge sheet alleged that on May 5, 1968, at or near Van Duong Village,
petitioner murdered Nguyen Van Den and Nguyen Cuu Phu with premeditation
by shooting them with an M-16 rifle; and that on May 6, 1968, at or near Van
Duong Bridge, he murdered Ho Lau and Huynh Van Phuc with premeditation
by shooting them with an M-16 rifle and detonating grenades near them, and
murdered Ho Cam by "hanging him by the neck, cutting his throat with a knife,
stabbing him with a knife, then throwing him into a stream and while the said
Ho CAM was therein, shooting him with an M-16 rifle and detonating grenades
on or near him."
It can be argued that the Court's failure to reverse the Court of Claims on this
point casts further doubt on the continuing validity of the "full and fair
consideration" standard. The Court has apparently never reiterated that standard
although it has citedBurns for other propositions of law. See United States v.
Augenblick, supra, 393 U.S. at 350 n. 3, 89 S.Ct. 528 (review of conviction by
a military tribunal can be obtained by habeas corpus); Reid v. Covert, 354 U. S.
1, 37 n. 68, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) (the extent to which the Bill
of Rights applies to military tribunals is as yet unsettled); Fowler v. Wilkinson,
353 U.S. 583, 584, 77 S.Ct. 1035, 1 L.Ed.2d 1054 (1957) (the Supreme Court
retains no supervisory power over the courts which enforce military law).
In White v. Humphrey, 212 F.2d 503 (3rd Cir.), cert. denied, 348 U.S. 900, 75
S.Ct. 222, 99 L.Ed. 707 (1954), and Application of Stapley, 246 F.Supp. 316
(D.Utah 1965), the "full and fair consideration" standard was simply ignored by
the court
Paragraph 124 of the Manual for Courts-Martial, United States (1951) requires
the Court of Review to disapprove findings of guilty if "it appears from the
record of trial or otherwise that further inquiry as to the mental condition of the
accused is warranted in the interest of justice, regardless of whether any such
question was raised at trial." According to United States v. Thomas, 13 U.
S.C.M.A. 163, 32 C.M.R. 163 (1962), if a prima facie case of insanity is made
out, the Court of Review must order a new trial
Petitioner was tried under the 1951 Manual. Paragraph 124 of the revised
edition (effective August 1, 1969) is substantially identical.
5
On appeal, after studying six somewhat contradictory psychiatric reports, the
Court of Review determined that petitioner had failed to make out a prima facie
case of insanity. Petitioner argues that his sixth amendment right "to be
confronted with the witnesses against him" was violated because he had no
opportunity to cross-examine the military psychiatrists who had submitted
reports. We see no constitutional defect in this procedure which has been
adopted by the military courts merely for determining whether a prima facie
case has been made outSee United States v. Roland, supra; United States v.
Wimberley, 16 U.S.C.M.A. 3, 36 C.M.R. 159 (1966).
Although it is technically not relevant, we note in passing that there was ample
support in the record for the district judge's finding that this defendant was the
ringleader in all five murders
