Kethel Osborne v. E. B. Swope, Warden, United States Penitentiary, Alcatraz, California

Osborne, a negro, convicted by a court martial of crimes while a member of the United States Army, and presently a prisoner at the federal penitentiary at Alcatraz, California, appeals from the denial of his application for a writ of habeas corpus by the United States District Court.

The application alleges he had exhausted his administrative remedies in the military practice and therefore he is entitled to have considered his contention that he had been tried by a general court martial, a member of which previous to the trial had “threatened” Osborne, “promising to find him guilty, irrespective of the evidence”, and hence he has been denied due process and the military court was without jurisdiction to try him. Johnson v. Zerbst, 1937, 304 U.S. 458, 467-468 , 58 S.Ct. 1019 , 82 L.Ed. 1461 .

One of Osborne’s administrative remedies is the right to seek a new trial within a year after the judgment of the court martial. Article 73 of the Uniform Code of Military Justice, 50 U.S.C.A. § 660 . The statute provides, so far as pertinent:

Obviously the participation of such a prejudiced officer is a “fraud on the court”. His sentence was for more than a year and the question is,…