Full text
MELVIN NEWSOME, Seaman Apprentice, U. S. Navy BENNIE HALL, Aviation Machinist Mate Third Class, U. S. Navy TERRY AVINGER, Airman Apprentice, U. S. Navy JOHN ROWE, Airman Apprentice, U. S. Navy DONALD RICKS, Airman, U. S. Navy NELSON MOUTON, Airman Apprentice, U. S. Navy JAMES JACKSON, Airman Apprentice, U. S. Navy FRANKLIN ROUNDTREE, Airman Apprentice, U. S. Navy JAMES ALLEN CLEVELAND MALLORY, Seamen, U. S. Navy ROBERT COLEMAN, Seaman Recruit, U. S. Navy NOEL ANTHONY SMITH, Airman, U. S. Navy JOHN WAYNE BROWN, Airman Apprentice, U. S. Navy RONALD GLOVER, Airman Apprentice, U. S. Navy LAWRENCE TAYLOR WOMMACK, Airman Apprentice, U. S. Navy ALFONSO BERNARD HUDSON, Seaman Apprentice, U. S. Navy and DURWARD CLARK DAVIS, Fireman Apprentice, U. S. Navy v. ROBERT McKENZIE, Captain, U. S. Navy, Commanding Officer, Naval Air Station, North Island, San Diego, California
[93] Memorandum Opinion of the Court
This case is before the Court on a “Petition for Relief from Unlawful Pre-Trial Confinement” and a “Motion for Emergency Order to Show Cause Why Writ of Habeas Corpus Should Not Issue.”
The petitioners herein are enlisted personnel of the United States Navy, presently in confinement at the Naval Air Station, North Island, San Diego, California. Charges against fifteen of the petitioners arise out of an incident aboard the U.S.S. Kitty Hawk on or about October 12,1972, and have been referred for trial by special court-martial by order of the respondent.
It appears from representations set out in the Motion for Emergency Order, supra, that petitioner Durward Clark Davis has been released from confinement by direction of the Secretary of the Navy. Since the petition seeks only the release of petitioners from pretrial confinement, the action of the Secretary moots the petition insofar as it relates to said Durward Clark Davis.
The petition avers that no charges have been preferred against petitioners Terry Avinger and John Rowe.
Subsequent to the reference of the charges against the petitioners for trial, a hearing was conducted before the military judge pursuant to Article 39(a), Uniform Code of Military Justice,
10 USC § 839(a). Although it appears from the petition that a challenge to the jurisdiction of the court-martial was not sustained, it cannot be determined from the petition whether the issue of the legality of petitioners’ pretrial confinement was litigated. Petitioners now contend the pretrial confinement is illegal, for: it violates statutory and decisional law; was unwarranted on the basis relied upon by the respondent, as disclosed to petitioners’ counsel; was based, at least in part, upon undisclosed “classified information;” and was unwarranted by the circumstances. They seek an order of this Court directing their release from pretrial confinement.
Chief Judge Darden is of the opinion that the relief sought is not in aid of this Court’s jurisdiction. See his dissent in Collier v United States,
19 USCMA 511, 516 et seq., 42 CMR 113, 118 et seq. (1970).
Judge Quinn is of the opinion that, with reference to petitioners Terry Avinger and John Rowe, there is no showing that Article 10, Uniform Code, supra, has been violated. See United States v Tibbs,
15 USCMA 350, 354, 35 CMR 322, 326 (1965). With reference to the other petitioners, he is of the opinion that the issues raised by their contentions may more appropriately be presented to and resolved by the military judge of the special court-martial to which the charges have been referred. Hallinan v Lamont, 18 USCMA 652 (1968); Horner v Resor,
19 USCMA 285, 41 CMR 285 (1970). See also Article 39(a), Uniform Code, supra.
Accordingly, the petition and motion are dismissed.
