Ignatius j.broussard, Jr. v. Roderick r.patton, Col., United States Air Force, Base Comm., Mafb

466 F.2d 816 Ignatius J.BROUSSARD, Jr., Petitioner-Appellant, v. Roderick R.PATTON, Col., United States Air Force, Base Comm., MAFB, et al., Respondents-Appellees. No. 72-1064. United States Court of Appeals, Ninth Circuit. Sept. 21, 1972. George T. Altman (argued), Beverly Hills, Cal., Frank S. Pestana (argued), Los Angeles, Cal., for petitioner-appellant. Mathew A. Schumacher, Asst. U.S. Atty. (argued), Gary H.Giesler, Frederick M.Brosio, Jr., Asst. U.S. Attys., William D.Keller, U.S. Atty., Los Angeles, Cal., for respondents-appellees. Before KOELSCH, CARTER, and WRIGHT, Circuit Judges. EUGENE A. WRIGHT, Circuit Judge: 1 This is an appeal from an order denying and dismissing Broussard's petition for a writ of habeas corpus. We affirm. 2 Broussard was an airman first class in the United States Air Force, stationed at Kadena Air Base, Okinawa. On October 1, 1964, he deserted. 3 He was arrested on March 18, 1969, and charged with violation of Article 85, Uniform Code of Military Justice, 10 U. S.C. Sec. 885 (desertion). A general courtmartial convicted him and sentenced him to confinement at hard labor for four months, reduction in grade to E-1, forfeiture of pay and allowances,…

This is an appeal from an order denying and dismissing Broussard’s petition for a writ of habeas corpus. We affirm.

Broussard was an airman first class in the United States Air Force, stationed at Kadena Air Base, Okinawa. On October 1, 1964, he deserted.

*818 He was arrested on March 18, 1969, and charged with violation of Article 85, Uniform Code of Military Justice, 10 U. S.C. § 885 (desertion). A general court-martial convicted him and sentenced him to confinement at hard labor for four months, reduction in grade to E-l, forfeiture of pay and allowances, and a bad conduct discharge.

Before completion of his confinement, Broussard sought habeas corpus in the Central District of California to void the sentence imposed upon him. Relief was denied and Broussard appealed to this court. We remanded to the district court with instructions that the proceedings be held in abeyance until Broussard exhausted his administrative remedies, after which he could seek a determination on the merits in the district court.

Broussard exhausted his administrative remedies and again resorted to the district court. It considered the merits of his claim and denied relief on the ground that the…

(concurring specially):

The majority, as I understand its opinion, puts the judicial seal of approval upon the Court of Military Appeals’ determination, on the merits, that Broussard’s alleged desertion occurred in “time of war” within the meaning of Article 43, as construed by military courts. Considerable reliance is placed upon United States v. Anderson, 38 C.M.R. 386 (1968).

However, in my view, we should declare only that this court lacks jurisdiction to review the military court’s determination. As well said by Judge Tuttle, writing for the Fifth Circuit in Fischer v. Ruffner, 277 F.2d 756, 759 (5th Cir. 1960):

I concur in the result.