Roland E. Simcox v. Paul J. Madigan, Warden, Federal Penitentiary, Alcatraz, California

298 F.2d 742 Roland E. SIMCOX, Petitioner, v. Paul J. MADIGAN, Warden, Federal Penitentiary, Alcatraz, California, Respondent. No. 17513. United States Court of Appeals Ninth Circuit. January 23, 1962. Robert E. Hannon, Castro Valley, Cal., for appellant. Burke Marshall, Asst. Atty. Gen., Cecil F. Poole, U. S. Atty., San Francisco, Cal., Harold H. Greene, David Rubin, Attorneys, Dept. Justice, Washington, D. C. Before HAMLIN and DUNIWAY, Circuit Judges, and SOLOMON, District Judge. HAMLIN, Circuit Judge. 1 This is an appeal from an order denying a petition for a writ of habeas corpus entered on September 30, 1960, in the United States District Court for the Northern District of California, Southern Division. 2 The facts are generally undisputed. On February 9, 1952, while appellant was a member of the United States Army in Korea, he was tried by a general court-martial for disobeying orders and for striking a non-commissioned officer in violation of Articles 90 and 91 of the Uniform Code of Military Justice, 10 U.S. C.A. §§ 890 and 891. He was found guilty and sentenced to a dishonorable discharge from the service and to twenty years imprisonment. Subsequently, the term…

This is an appeal from an order denying a petition for a writ of habeas corpus entered on September 30, 1960, in the United States District Court for the Northern District of California, Southern Division.

The facts are generally undisputed. On February 9,1952, while appellant was a member of the United States Army in Korea, he was tried by a general court-martial for disobeying orders and for striking a non-commissioned officer in violation of Articles 90 and 91 of the Uniform Code of Military Justice, 10 U.S. C.A. §§ 890 and 891. Pie was found guilty and sentenced to a dishonorable discharge from the service and to twenty years imprisonment. Subsequently, the term of imprisonment was reduced to ten years.

On February 27,1953, while in military confinement at Camp Gordon, Georgia, appellant was sentenced to a further term of imprisonment for the capital offense of mutiny, 10 U.S.C.A. § 894 . The sentence for this offense was finally fixed at twelve years. On June 15, 1953, and on January 28, 1954, while still in military confinement, appellant received additional sentences by courts-martial for violations of the articles of the Uniform Code of Military Justice.

On or about…

(concurring) .

I concur in the foregoing opinion with some reluctance, because I find it difficult to reconcile the result with the reasoning of the Supreme Court in recent decisions. I believe that the opinion is a complete and accurate statement of the current state of the authorities. I am also of the opinion that when a case is governed by a decision of the Supreme Court that is directly in point, as this case is, it is the duty of an intermediate court, such as ours, to follow that decision, unless it has clearly been overruled, either expressly or by later decisions that are so inconsistent with it that it is quite clear to us that their effect is to overrule it.

A study of the decisions of the Supreme Court upon which petitioner relies leaves me with the conviction that Kahn v. Anderson, 255 U.S. 1 , 41 S.Ct. 224 , 65 L.Ed. 469 (1920) has not been overruled. The case cited that is most closely in point is United States ex rel. Toth v. Quarles, 350 U.S. 11 , 76 S.Ct. 1 , 100 L.Ed. 8 (1955). Some of the rationale of that case seems to me to be inconsistent with the holding in Kahn, supra, and with our holding in this ease. For example, the court in Toth states on page 15,…