Courts-Martial which negates such transfer of jurisdiction, and there is no showing that the petitioner was in any wise prejudiced.
Seoul, near which I Corps headquarters was located, was the situs of the alleged offenses and the location of several key witnesses, whereas the Eighth Army headquarters was located in Taegu which is about 175 miles southeast of Seoul.
No provision is found in the Uniform Code of Military Justice or in the Manual for Courts-Martial requiring that an accused be tried by a General Court-Martial convened by the command to which he or his unit is assigned or attached. As was stated in Wade v. Hunter, 336 U.S. 684, 692, 69 S. Ct. 834, 839, 93 L. Ed. 974:
'At least, in the absence of charges of bad faith on the part of the Commanding General, courts should not attempt to review his on-the-spot decision that the tactical situation required transfer of the charges.'
In this case there has been no charge or even suggestion of bad faith in the transfer of the petitioner.
With respect to petitioner's further contention that the transfer of jurisdiction was a judicial function which must be personally exercised, the Court is of the opinion that the decision was wholly an administrative function normally performed by a staff officer in accordance with standing operating procedure established by the Commanding General and as such, even if taken without his personal knowledge, was nevertheless his act. The Court is of the opinion that the General Court-Martial which tried, convicted and sentenced the petitioner had jurisdiction to do so.
2. Effective Assistance of Counsel
A review of the record conclusively establishes that the petitioner had competent counsel in every step of the proceeding both before his conviction and sentence and in all of the proceedings thereafter taken before the several reviewing bodies and every reasonable facility was afforded counsel in that representation.
3. The Claim of Petitioner That He Was Denied Due Process and Equal Protection of the Laws before the Court of Military Appeals.
This claim is based primarily upon the contention that the instructions of the law officer to the General Court-Martial were deficient in failing to include the lesser included offense of unpremeditated murder. The United States Court of Military Appeals passed upon this contention adversely to the petitioner. The instructions of the law officer were quoted and discussed at some length in Day v. Davis, supra, 235 F.2d commencing at page 385. The conclusion of the United States Court of Appeals for the Tenth Circuit was that 'any deficiencies in the instructions are not of a character that presents a question open to review in habeas corpus.'
The petitioner contends that the Court in Day v. Davis, supra, did not pass on the precise constitutional issue raised in the pending petition. Petitioner says he complains, not of error at the Court-Martial, but of 'his singling out by the Court of Military Appeals for invidious treatment' and petitioner cites a number of decisions of that Court which he contends are inconsistent with the decision of the Court in sustaining the sufficiency of the charge in his case. He says he has thereby been denied due process of law in violation of the Fifth Amendment.
No authority is cited in support of the power of this Court to grant relief by habeas corpus because a decision of an appellate court is inconsistent with other of its decisions.
4. Petitioner's Claim That the Approval of the Conviction and Sentence by the President Is Unlawful.
Petitioner contends that Presidential review of a Court-Martial sentence extending to death is judicial requiring consideration of the entire record; that the President did not consider the entire record of the proceedings but he did consider matters outside the record and he received advice from his counsel and from the Pardon Attorney, Department of Justice, without notice to the petitioner. Petitioner therefore contends that a consideration of such matters and advice from the Pardon Attorney constituted a violation of petitioner's rights under the Sixth Amendment and that he was deprived of his right of confrontation and legal representation.
In this case the petitioner's counsel did file a brief for consideration by the President. The petitioner has not cited any authority in support of his right to a personal appearance before the President. Article 71 of the United States Code of Military Justice, 50 U.S.C.A. 658(a), dealing with sentences requiring Presidential approval, provides that 'He shall approve the sentence or such part, amount, or commuted form of the sentence as he sees fit * * *.' The record in this case contains a memorandum dated June 30, 1954 signed by the President as follows:
'In the foregoing case of Private E-2 John E. Day, Jr. RA 13233886, 46th Transportation Truck Company, the sentence is approved and will be carried into execution under the orders of the Secretary of the Army.'
The usual presumption of regularity attaches to this official action and presents no problem within the competence of this Court to review.
The foregoing recital makes abundantly clear that the petitioner has been afforded every constitutional right. He was tried by a General Court-Martial under procedures established by Congress acting pursuant to the Constitution which puts the regulation of the armed forces in the Congress. His conviction was affirmed by the United States Court of Military Appeals which is the established tribunal to review proceedings of this character. Thereafter, his conviction and sentence were confirmed and ordered executed by the President of the United States.
Acting in accordance with the mandate of the United States Court of Appeals for the District of Columbia Circuit, the Court has carefully reviewed the entire record and finds no basis upon which the petitioner is entitled to release on the requested writ of habeas corpus. Therefore, the prayers of the amended petition will be denied and the petition dismissed.
Counsel for respondents will submit an order in accordance with the foregoing.
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