SCHLOMANN v. MOSELEY, 457 F.2d 1223 (10th Cir. 1972)

KENNETH H. SCHLOMANN, PETITIONER-APPELLANT, v. R. I. MOSELEY, WARDEN, UNITED STATES PENITENTIARY, LEAVENWORTH, KANSAS, RESPONDENT-APPELLEE.

No. 473-70.United States Court of Appeals, Tenth Circuit.
March 24, 1972.

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Donald E. Phillipson, of Davis, Graham Stubbs, Denver, Colo., for petitioner-appellant.

Lieutenant Colonel Arnold I. Melnick, Washington, D.C. (Robert J. Roth, U.S. Atty., Richard L. Meyer, Asst. U.S. Atty., and Captain Michael A. Katz, Office of the Judge Advocate Gen., Dept. of the Army, with him on brief), for respondent-appellee.

Appeal from the United States District Court for the District of Kansas.

Before JONES[*] and HOLLOWAY, Circuit Judges, and BRATTON,[**] District Judge.

HOLLOWAY, Circuit Judge.

[1] The central issue before us is the retroactivity of O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed. 2d 291. Specifically, the question is whether the 1969 opinion may be invoked to set aside convictions by a General Court Martial for non-service connected offenses although such convictions became final prior to the decision in O’Callahan. The issue arises in habeas proceedings in which the District Court held O’Callahan
not retroactive and denied relief. [2] The facts are detailed in the opinion of the Court of Military Appeals which affirmed the convictions, United States v. Schlomann, 16 USCMA 414, 37 CMR 34, and therefore we refer only briefly to the principal facts. The tragic offenses occurred on July 1, 1963. Appellant Schlomann was then an Army enlisted man stationed at Fort Wainwright, Alaska. However, the Government concedes that these offenses against civilians in Alaska were not service connected. See note 2, infra. [3] That afternoon Schlomann and his wife had visited a bar and restaurant near the Fort but she departed for work. Schlomann returned to a Noncommissioned Officers’ Club on the post but then left the post again by taxicab, while carrying an unopened liquor bottle, and arrived at a local skating rink shortly after 9:00 p. m. He had been drinking beer, was belligerent and was carrying a rifle. He ordered the cab driver, Mr. Howard, out of the taxi and shortly thereafter shot Howard, approached and shot him again and he died of these wounds. Schlomann was convicted of unpremeditated murder for Howard’s death under Article 118 of the Uniform Code of Military Justice, 10 U.S.C. § 918. [4] After further difficulties at the skating rink, Schlomann drove the cab to a nearby motel. While a Mrs. Leonard was attempting to call for police help, he shot and wounded her. For this offense he was convicted of assault with a dangerous weapon in violation of Article 128 of the Code, 10 U.S.C. § 928. He then shot and killed her husband and one George Stockton. At about the time of these shootings he was demanding money. For these homicides he is under two convictions for felony murder in violation of Article 118 of the Code, 10 U.S.C. § 918. In connection with his demands at the motel he was also convicted of attempted robbery under Article 80 of the Code, 10 U.S.C. § 880. [5] All of the charges were tried together by a General Court-Martial in 1964 at Fort Richardson, Alaska, and Schlomann was found guilty of the charges as stated. He was sentenced to a dishonorable discharge, total forfeitures, confinement

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at hard labor for life and reduction in grade. The sentences remained undisturbed by all reviewing authorities and the convictions and sentences as rendered were affirmed by the Board of Review and the Court of Military Appeals as reflected in United States v. Schlomann, supra.

[6] Schlomann is in custody at Leavenworth and commenced these habeas proceedings in the United States District Court for the District of Kansas. In a first case filed in October, 1969, he raised the issues we consider, alleging that the military tribunals were without jurisdiction so that his convictions were void. The District Court denied relief in May, 1970. A further habeas proceeding was brought in June, 1970, on the same grounds. The Court’s opinion, rendered that month, said the petition was successive, but also considered the merits and denied relief. These opinions are reported at 340 F. Supp. 1393, 1395. Schlomann appealed from both judgments by a timely notice. We, therefore, consider both cases as to all of the contentions raised by Schlomann.[1] [7] Before turning to the issues we should say we are satisfied that these offenses were not service connected under present requirements for military jurisdiction. This test of O’Callahan
has been analyzed in detail and is the measure of service connected offenses. See Relford v. United States Disciplinary Commandant, 401 U.S. 355, 365, 91 S.Ct. 649, 28 L.Ed.2d 102. Under all of these guidelines the offenses lack connection to the military. Moreover, the Government concedes that the offenses were not service connected. Therefore, if the O’Callahan
requirement as to service connected offenses applies to these earlier convictions, they may not be sustained as meeting that requirement as was the case in Relford and Swisher v. Moseley, 442 F.2d 1331 (10th Cir.).[2]

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[8] Thus, the retroactivity of O’Callahan is the critical question we face.[3] The particular issues presented are: (1) whether retroactive application of O’Callahan is compelled by its jurisdictional terminology and its reasoning that military tribunals lack power to adjudicate non-service connected offenses; (2) whether O’Callahan should be made retroactive under generally applied tests for newly announced constitutional rules; and (3) whether, in any event, trial by the military tribunal for these offenses denied due process and other rights.[4]

[9] The jurisdictional terminology and constitutional interpretations of O’Callahan v. Parker
[10] The question of the retroactivity of O’Callahan v. Parker presents difficult problems. They are more complex than many studied in determining whether a new procedural rule or a new principle implementing a constitutional guarantee are to be applied retroactively. The complexity arises from the nature of the holding in O’Callahan. In the opinion the Court referred back to the question on which certiorari was granted, repeating that it involved whether under the circumstances a court-martial may “. . . have jurisdiction to try a member of the Armed Forces.” 395 U.S. at 261, 89 S.Ct. at 1685, 23 L.Ed.2d 291. The Court’s conclusions were stated as follows:

“We have concluded that the crime to be under military jurisdiction must be service connected, lest `cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger,’ as used in the Fifth Amendment, be expanded to deprive every member of the armed services of the benefits of an indictment by a grand jury and a trial by a jury of his peers. The power of Congress to make `Rules for the Government and Regulation of the land and naval Forces,’ Art. I, § 8, cl. 14, need not be sparingly read in order to preserve those two important constitutional guarantees. For it is assumed that an express grant of general power to Congress is to be exercised in harmony with express guarantees of the Bill of Rights.” (395 U.S. at 272-273, 89 S.Ct. at 1690)

* * * * * *

“We have accordingly decided that since petitioner’s crimes were not service connected, he could not be tried by court-martial but rather was entitled to trial by the civilian courts.” (395 U.S. at 274, 89 S.Ct. at 1692)

[11] The jurisdictional basis of O’Callahan seems clear. We agree that its limitations on the Code and military courts

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were stated in terms of “adjudicatory power.” See Gosa v. Mayden, 450 F.2d 753, 756-757 (5th Cir.); United States ex rel. Flemings v. Chafee, 330 F. Supp. 193, 195-196 (E.D.N.Y.); contra, United States v. King, ACM 20361, review denied USCMA 40 CMR 327. Therefore, we must consider whether the jurisdictional basis of O’Callahan compels its retroactive application.

[12] It is fundamental that a conviction by a tribunal lacking jurisdiction may be set aside by habeas proceedings. McClaughry v. Deming, 186 U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049; In re Snow, 120 U.S. 274, 285, 7 S.Ct. 556, 30 L.Ed. 658. It may be argued forcefully that where a later opinion decides that jurisdiction did not exist as to some subject matter, it must apply retroactively. However, we are not persuaded that because the later decision is grounded in jurisdictional terms that consideration is foreclosed as to how it should apply. Such a retroactivity question is more critical and the factors may be viewed differently, but the jurisdictional terminology does not dispense with the duty to decide whether “the Court may in the interest of justice make the rule prospective . . . where the exigencies of the situation require such an application.” Johnson v. New Jersey, 384 U.S. 719, 726-727, 86 S.Ct. 1772, 1777, 16 L.Ed.2d 882; Linkletter v. Walker, 381 U.S. 618, 628, 85 S.Ct. 1731, 14 L.Ed.2d 601; Tehan v. U.S. ex rel. Shott, 382 U.S. 406, 410, 86 S.Ct. 459, 15 L.Ed.2d 453. [13] We are satisfied that O’Callahan v. Parker made “a clear break with the past,” Desist v. United States, 394 U.S. 244, 248, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248, and that we should consider whether its application should be prospective or retroactive. Linkletter v. Walker, supra, recognized the duty to make such a determination as to cases announcing new constitutional rules, as had earlier been done otherwise. E. g. Great Northern R. Co. v. Sunburst Oil Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360. Since the broad principle for considering the soundness of prospective or retroactive application applies to constitutional rulings, we are persuaded that determination should be made for the O’Callahan ruling also. We agree that for such newly announced jurisdictional rule, a prospective application is a proper “judicial technique of general application” McSparran v. Weist, 402 F.2d 867, 877 (3d Cir.), cert. denied, 395 U.S. 903, 89 S.Ct. 1739, 23 L.Ed.2d 217. [14] Where the exigencies of the situation demand, prospective application has been made of jurisdictional decisions in civil cases, McSparran v. Weist, supra, as well as criminal cases. Warring v. Colpoys, 74 U.S.App.D.C. 303, 122 F.2d 642, 86 L.Ed. 543. In Warring the Court said that under the circumstances a later Supreme Court decision restricting jurisdiction “should not be applied so as to sweep away that power as of 1939.”122 F.2d at 647.[5] [15] We are not persuaded that the jurisdictional terminology o O’Callahan compels us to refuse consideration of prospective application. Gosa v. Mayden, supra; contra, United States ex rel Fleming v. Chafee, supra. The broad principles governing retroactivity have been considered in applying land mark constitutional decisions.[6] Among those

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given only prospective application were constitutional pronouncements on one fundamental right stressed in O’Callahan
— trial by jury. See DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308. The Court has observed that it does not disparage a constitutional guarantee by declining to apply a new ruling on it retroactively, and that retroactivity does not turn on the value of the constitutional guarantee involved. Johnson v. New Jersey, supra, 384 U.S. at 728, 86 S.Ct. 1772.[7] We conclude that retroactivity likewise does not turn on whether a jurisdictional ruling is involved.

[16] Thus we feel that the proper application of O’Callahan,
despite its jurisdictional basis, must also be determined under those principles governing retroactivity which the Supreme Court has given us. We turn to their consideration now.

[17] The Supreme Court’s criteria for determining retroactivity
[18] The familiar criteria on retroactivity stated in Linkletter v. Walker, supra at 629, are controlling. Under new standard, the extent of reliance by them, as repeatedly stated, we must consider the purpose to be served by the law enforcement authorities on the old standard, and the effect on the administration of justice that retroactive application o O’Callahan would bring. Stovall v. Denno, supra, 388 U.S. at 297, 89 S.Ct. 1967.

[19] Foremost among these criteria is the purpose to be served by the new rule. Desist v. United States, supra. From the language of O’Callahan its purpose appears to be to confine the criminal jurisdiction of military tribunals, due to shortcomings as noted, and also to avoid unjustified deprivation of servicemen’s rights to indictment by grand jury and trial by jury, which would otherwise result from expansion of the Fifth Amendment exception relating to “. . . cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger . .” O’Callahan v. Parker, supra, 395 U.S. at 272-273, 89 S.Ct. at 1690. [20] Confinement of criminal jurisdiction of courts-martial would serve to protect the advantages of trial in regular civil courts. The Court noted advantages of the civil courts in objectivity, independence, tradition, procedure and experience, 395 U.S. at 263-265, 89 S.Ct. 1683, which would be available. And it is true that

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where the new rule seeks to avoid a fundamentally unfair trial or serious flaws in fact-finding procedure, retroactivity has been favored. Roberts v. Russell, 392 U.S. 293-294, 88 S.Ct. 1921, 20 L.Ed.2d 1100.[8]

[21] However, despite O’Callahan’s criticism of the court-martial system there is no indication that its procedures are fundamentally unfair or violative of due process. Convictions under the military system for service connected offenses remain generally undisturbed. There is no constitutional or statutory barrier to trial of such offenses by a court-martial. Relford v. United States Disciplinary Commandant, supra, 401 U.S. at 369, 91 S.Ct. 649. And this Term the Court has reaffirmed the basic principles of comity that must prevail between civilian courts and the military judicial system. See Parisi v. Davidson, 405 U.S. 34, 92 S.Ct. 815, 31 L.Ed.2d 17. Therefore, we feel that the Court’s opinions manifest no view of fundamental unfairness in military trials that would dictate retroactivity. [22] We likewise feel that the purpose in O’Callahan of protecting the constitutional rights that it stresses — indictment by grand jury and trial by petit jury — does not call for retroactivity. As others have observed the Supreme Court denied retroactivity to the decisions applying to the states the right to jury trial for serious criminal and contempt charges. DeStefano v. Woods, supra. Moreover the Fifth Amendment right of indictment by a grand jury has not been viewed as so fundamental as to be a part of due process and applicable to State procedure. See Beck v. Washington, 369 U.S. 541, 545, 82 S.Ct. 955, 8 L.Ed.2d 98.[9]
Thus, we again conclude that the purpose of protecting such rights, important but not critical to fundamental fairness, does not call for retroactivity of O’Callahan. [23] The remaining criteria to consider are the extent of reliance by law enforcement authorities on the prior rule and

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the effect of retroactivity on judicial administration. Appellant says that O’Callahan was foreshadowed by prior Supreme Court cases.[10] We feel that none of these decisions pointed to the departure of O’Callahan from status as the basis for criminal jurisdiction over servicemen as reaffirmed in Kinsella, Gosa v. Mayden, supra; Mercer v. Dillon, supra; and that O’Callahan was “. . . a clear break with the past . . .” Desist v. United States, supra 394 U.S. at 248, 89 S.Ct. at 1033. We agree with these Courts that until O’Callahan, military and State law enforcement authorities justifiably relied on status as the test for jurisdiction over servicemen.

[24] The final consideration is the effect retroactivity would have on the administration of justice. Appellant Schlomann argues that the District Court made no findings on the issue as to the number of cases of this type which would be affected, and that the effect would not be significant. We cannot agree. [25] It is true that in neither No. L-1003 nor L-1283 did the Court make such findings. However, we are satisfied that this matter is one of proper judicial notice and that determination based on law and matters so noticed is sufficient. Such observations were relied on in part by the Supreme Court in denying retroactivity in Desist v. United States, supra 394 U.S. at 251, 89 S.Ct. 1030, and DeStefano v. Woods, supra, 392 U.S. at 634, 88 S.Ct. 2093. We, therefore, feel that the observations of Judge Stanley, accepted by Judge Brown, were proper in referring to the general numbers of cases involved and the data detailed in Mercer v. Dillon, supra. [26] In Gosa v. Mayden, supra, 450 F.2d at 766, the Court recited data from the Department of the Air Force advising that its court-martial systems have processed some 475,349 cases since 1949; that a two-year sampling indicated that 5% would constitute a reasonable hypothesis of the number of cases that could raise a retroactive O’Callahan issue; and that in this one branch of service alone, this would calculate to some 23,767 trials.[11]
We need not detail the data at length. Mercer v. Dillon, supra at 267, noted that peacetime court-martial jurisdiction over offenses deemed non-service connected under O’Callahan was first conferred in 1916, and extended to include murder and rape committed in the United States in peacetime in 1950. Appellant argues that the effect should be considered only as to cases of conviction, as opposed to a guilty plea, and with the particular elements of O’Callahan. Even if such a restrictive application could be given the case, the impact would likely be substantial. The range of time and offenses involved, and the size of our military forces underscore the effect of retroactivity on the administration of justice. The difficulties and dangers in reopening large numbers of such cases obviously argue with great force for prospective application of O’Callahan. [27] In sum we are persuaded that the criteria under Supreme Court decisions justify and strongly call for limiting to prospective application the ruling in O’Callahan v. Parker. We agree with the view of the District Judges in these proceedings and those of the several courts that have reached a like conclusion. See Gosa v. Mayden, supra; Mercer v. Dillon, supra; United States v.

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King, supra; Thompson v. Parker, 308 F. Supp. 904 (M.D.Pa.); Harkcom v. Parker, No. 1093 (M.D.Pa. 1970); and see Williamson v. Alldridge, 320 F. Supp. 840 (W.D.Okla.) (dictum); contra, United States ex rel. Flemings v. Chafee, supra.

[28] Due process and other rights
[29] Lastly, appellant argues that he was denied Fifth Amendment due process, the right to indictment by grand jury and trial by petit jury, and was subjected to several disadvantages in military trial procedure and penalties which he says were less favorable to him than those provided by State law. He stresses trial for offenses carrying a death penalty possibility under military law as opposed to that of Alaska which allows no capital punishment. See Alaska Statutes Annotated, 1962, Title 11 § 11.15.010. He contends that although he received a sentence of life imprisonment, nevertheless the members of the court-martial were faced with the sole alternative of life imprisonment or death after a determination of guilt. See 10 U.S.C. § 918. Moreover, he says that decisions by the military tribunal were possible by a two-thirds majority of the 11-man court-martial, as opposed to a five-sixths majority being necessary for conviction under State law. See Alaska Statutes Annotated, Title 12 § 12.45.010 and Title 9 § 09.20.100. Appellant claims that he lost the advantages of these and other rights available under State law and federal rights, as stated above.

[30] We believe that the views expressed above require rejection of Appellant’s contentions. If he was lawfully tried by the military court, as we believe he was, then he was subject to the procedures and penalties which the law for the military forces provided. Since we have concluded that he was properly under regulation of military law, he was subject to the authority that included “. . not only the creation of offenses but the fixing of the punishment therefor.” Kinsella v. United States ex rel. Singleton, supra, 361 U.S. at 246, 80 S.Ct. at 303. [31] We, therefore, hold that the District Court properly denied relief and its judgments are affirmed.

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