Isiah Relford v. Commandant, U.S. Disciplinary Barracks, Ft. Leavenworth, Kansas, 409 F.2d 824, 10th Cir. (1969)
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Scribd Government DocsIsiah Relford v. Commandant, U.S. Disciplinary Barracks, Ft. Leavenworth, Kansas, 409 F.2d 824, 10th Cir. (1969)
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Scribd Government Docs409 F.
2d 824
Isiah RELFORD, Petitioner-Appellant,
v.
COMMANDANT, U.S. DISCIPLINARY BARRACKS, FT.
LEAVENWORTH,
KANSAS, Respondent-Appellee.
No. 40-68.
United States Court of Appeals Tenth Circuit.
April 23, 1969.
Judson W. Detrick, Denver, Colo., for appellant.
Richard F. Locke, Captain, JAGC, and Kenneth C. Crockett, Asst. U.S.
Atty. (Benjamin E. Franklin, U.S. Atty., and Arnold I. Melnick, Lieutenant
Colonel, JAGC, were with them on the brief), for appellee.
Before BREITENSTEIN, SETH and HICKEY, Circuit Judges.
BREITENSTEIN, Circuit Judge.
This is an appeal from the denial of a military prisoner's petition for habeas
corpus.
Petitioner, while on active duty in the United States Army, was charged with
the kidnapping and rape of a woman in September, 1961, and with similar
offenses against another woman in October, 1961. On December 21, 1961, a
general court-martial found him guilty of all charges and sentenced him to
death. The Board of Review upheld the findings of guilt and reduced the
sentence to 30 years. That decision was affirmed by the United States Court of
Military Appeals. In response to a show-cause order, the government filed in
the district court the voluminous record made before the military tribunals. The
district court reviewed that record, made appropriate findings, and denied the
habeas petition without a hearing.
The first claim is that in the court-martial proceedings the petitioner did not
have the effective assistance of competent counsel. This issue was fully
presented to the Board of Review and the Court of Military Appeals and was
carefully and fairly considered by those tribunals. They rejected the argument
on the grounds that the objections went to trial tactics which must be
considered in the light of the overwhelming evidence of guilt and counsel's
desire to mitigate the penalty. Our review of the record convinces us that the
court-martial was a disciplined contest and not a mockery or a spectacle. See
United States v. Augenblick, 393 U.S. 348, 356, 89 S.Ct. 528, 21 L.Ed.2d 537,
and Kienlen v. United States, 10 Cir.,379 F.2d 20, 24. We agree with the trial
court that the military judicial system have full and fair consideration to the
constitutional question, and that its decision must stand. See Burns v. Wilson,
346 U.S. 137, 142, 73 S.Ct. 1045, 97 L.Ed. 1508, and Kennedy v. commandant,
United States Disciplinary Barracks, 10 Cir., 377 F.2d 339, 342.
4
The remaining points raised by resourceful appellate counsel were not
presented to the district court and are not properly before us for review.
Johnson v. Patterson, 10 Cir., 367 F.2d 268. In the circumstances of the case
and to avoid a repetitive habeas application, we have given consideration to
them.
About twelve hours after his arrest, the petitioner confessed to the military
authorities. He had been repeatedly warned of his constitutional rights but the
record does not show a waiver of counsel. The argument is that the extra
judicial confession was improperly received in evidence in violation of the rules
stated in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. In Johnson
v. New Jersey, 384 U.S. 719, 734, 86 S.Ct. 1772, 1781, 16 L.Ed.2d 882, the
Supreme Court held that the Escobedo decision 'is available only to persons
whose trials began after June 22, 1964,' and that the guidelines in Miranda are
'available only to persons whose trials had not begun as of June 13, 1966.' Here
the entire military proceedings were completed before either the Escobedo or
Miranda decisions.
The petitioner complains that he was subjected to a line-up at which he was
identified by the victims of his crimes in violation of Gilbert v. California, 388
U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and United States v. Wade, 388 U.S.
218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. Stovall v. Denno,388 U.S. 293, 300, 87
S.Ct. 1967, 18 L.Ed.2d 1199, says that these decisions operate prospectively.
The line-up was fairly conducted and adequately protected the petitioner's due
process rights.
The procedure followed for the admission and consideration of the confession
is said to violate the rules laid down in Jackson v. Denno, 378 U.S. 368, 394,
84 S.Ct. 1774, 12 L.Ed.2d 908. There the Supreme Court said that the
voluntariness of a confession must be determined by a body other than the one
trying the question of guilt or innocence. At the court-martial the law officer
gave the defendant an opportunity, out of the hearing of the members of the
board, to present evidence as to voluntariness. The defense put on no evidence
and only pointed out the lapse of twelve hours from the arrest to the confession.
The law officer then told the court-martial that his ruling was 'final only on the
question of admissibility' and 'does not conclusively establish' voluntariness.
This satisfied paragraph 140 of the Manual for Courts-Marial (1951) and the
requirements of Jackson v. Denno if that decision is to given retroactive effect.
Heilman v. United States, 7 Cir., 406 F.2d 1011.
8
Finally, counsel for petitioner argues that the cumulative effect of all the
claimed errors denied the petitioner a fair trial consonant with the requirements
of due process. We are not persuaded. Consideration of the points one by one or
in their totality, produces the same result. The petitioner had a fair trial.
Affirmed.
