The opinion of the court was delivered by: MCGARRAGHY
This is a petition for a writ of habeas corpus filed by John E. Day, Jr., a resident of the District of Columbia and an enlisted member of the United States Army who, at the time of filing his petition, was detained under sentence of death imposed by a General Court-Martial convened in Korea October 1, 1951, for murder in violation of the 92nd Article of War and for assault with a deadly weapon with intent to do great bodily harm in violation of the 93rd Article of War.
The Court-Martial proceedings were approved by the convening authority and subsequently the conviction and sentence were affirmed by the Board of Review in the Office of the Judge Advocate General.
The United States Court of Military Appeals affirmed the decision of the Board of Review. United States v. Day, 2 USCMA 416, 9 CMR 46 (1953).
On June 30, 1954, the conviction and sentence were confirmed and ordered executed by the President of the United States acting under Article 71 of the Uniform Code of Military Justice, 50 U.S.C.A. § 658(a).
On August 10, 1954, the pending petition for a writ of habeas corpus was filed in this Court which, in subsequent proceedings and upon motion of the respondents, dismissed the petition for lack of jurisdiction. From the order of dismissal, an appeal was taken to the United States Court of Appeals for the District of Columbia Circuit, but prosecution of the appeal was postponed.
The petitioner was transferred by the Army to the United States Disciplinary Barracks at Ft. Leavenworth, Kansas, under the Court-Martial sentence of death and while there, he filed a petition for a writ of habeas corpus in the United States District Court for the District of Kansas. After a full hearing, that Court discharged the writ theretofore issued and remanded the petitioner to the custody of the Commandant of the Disciplinary Barracks. On appeal, that order was affirmed by the United States Court of Appeals for the Tenth Circuit. Day v. Davis, 235 F.2d 379. The Supreme Court denied certiorari, Day v. Davis, 352 U.S. 881, 77 S. Ct. 104, 1 L. Ed. 2d 81, and denied a petition for rehearing. Day v. Davis, 352 U.S. 913, 77 S. Ct. 152, 1 L. Ed. 2d 120.
Thereafter, the United States Court of Appeals for the District of Columbia Circuit, in ruling upon the postponed appeal from the order of this Court dismissing the petition filed here, held that this Court did have jurisdiction and remanded the case here for further proceedings. Day v. Wilson, 247 F.2d 60.
Upon remand to this Court, petitioner filed an amended petition in which, in addition to renewing his assertions that he had been denied basic constitutional rights, he asserted new grounds for relief alleging that the General Court-Martial which tried, convicted and sentenced him was without jurisdiction.
The contentions of the petitioner may be summarized as follows:
1. The General Court-Martial which tried, convicted and sentenced the petitioner was without jurisdiction.
2. The petitioner was denied the effective assistance of counsel in proceedings following his trial, and conviction and sentence to death.
3. The Court of Military Appeals in affirming the conviction and sentence of petitioner deprived him of due process of law and the equal protection of the laws in respect of the law officer's failure properly to instruct the Court.
4. The allegations of the petitioner as to the President's review of the proceedings are effective, if true, to void his approval thereof and render the continued detention of ...