Application of John Michael SPEER, Appellant, v. Commander G. H. HEDRICK, Appellee
No. 24540
United States Court of Appeals Ninth Circuit
Oct. 24, 1969
Rehearing Denied Dec. 22, 1969
We do not suggest that such a drastic result as divestiture or separation must necessarily be reached in this case. Crane must establish that any relief sought is equitably required, considering the effect on other shareholders and the diligence with which Crane sought to prevent consummation of the merger and to obtain delay in its implementation pending expeditious review of the denial of injunctive relief by the trial court. See discussion in Electronic Specialty Co. v. International Controls Corp., 409 F.2d 937, 947-948 (2d Cir. 1969).
Michael S. Sorgen & Marvin S. Kayne, San Francisco, Cal., for appellant.
Before DUNIWAY and HUFSTEDLER, Circuit Judges, and PENCE, District Judge*.
PER CURIAM:
Petitioner, appellant herein, has appealed from a district court order denying his petition for a Writ of Habeas Corpus.
Petitioner enlisted in the United States Naval Reserve on July 8, 1966, and subsequently enlisted in the United States Navy on October 25, 1966. He completed recruit training on January 26, 1967, and completed a course for hospital corpsmen on May 18, 1967. On June 6, 1967 he completed rifle and pistol training.
On December 31, 1967 petitioner received transfer orders to Vietnam. On May 13, 1968 he failed to report for transfer to Vietnam and was on unauthorized leave until June 25, 1968, when he surrendered to Naval authorities. He was subsequently court martialed and confined, pursuant to sentence, from August 28, to October 16, 1968.
On December 18, 1968 petitioner formally applied for discharge as a conscientious objector. The Conscientious Objector Board in the Navy Bureau of Personnel recommended denial of the application on the basis that petitioner‘s beliefs were not based on religious principles. Petitioner‘s commanding officer believed him sincere. However, the fact that he had completed instruction in the use of deadly weapons after his beliefs had allegedly formed, and that he sought discharge as a conscientious objector only after having been ordered to a combat zone, tended to offset the opinion of that officer.
At the habeas corpus hearing thereafter, the district judge found that an adequate basis in fact did exist for the Navy‘s denial of petitioner‘s application.
Assuming, but not deciding, that the nature of petitioner‘s restraint gave jurisdiction to the district court to hear the application for a writ of habeas corpus under
ON PETITION FOR REHEARING
In his motion for rehearing, petitioner sets forth three grounds upon which he urges this court to reconsider its judgment heretofore entered on October 24, 1969. Petitioner first argues that in searching the record for a basis in fact to support the decision of the United States Navy, the court should have limited its scope of inquiry to the ground set forth by the Navy in its denial of petitioner‘s conscientious objector petition. He insists that, inasmuch as the Navy concluded that “[petitioner‘s] desire to terminate his military service is not based on religious principles,” this court should not be permitted to consider anything but those bare words and may not rationalize the Navy decision on other grounds, i. e., insincerity of beliefs.
While it is true that the Navy, in denying the conscientious objector petition, stated the conclusion noted above, it is also true, and this court so found, that the Navy bottomed that ultimate conclusion, in part, upon a finding of insincerity of belief. There having been found a causal relationship between the finding of insincerity and the conclusion that petitioner‘s desire to terminate service was not based on religious principles, this court did not go beyond the record or the spectrum of facts utilized by the Navy in considering petitioner‘s lack of sincerity as a basis in fact supporting its decision.
Petitioner next argues that this court has not adequately dealt with the problem of the weight to be given the recommendations of hearing officers
Finally petitioner urges that the reliance of the military upon the lateness of a conscientious objector application and upon the fact that petitioner had received prior training in the use of weapons has been deemed by two other circuits1 to be insufficient to challenge the sincerity of a conscientious objector claim, and that this court has apparently taken a contrary position. While it is true that in its opinion this court did not distinguish the facts of this case from those cited by petitioner in support of the above argument, however those cited cases are each clearly distinguishable. Aside from the fact of prior training in weapons, the cited cases did not contain the added factor present in this case, namely that the conscientious objector application was not filed until after receipt of orders for transfer to a war zone.
As this court said in Bishop v. United States, 1969, 412 F.2d 1064, 1068, Bishop‘s conscientious objector beliefs solidified
“most significantly, sometime after he was classified I-A * * *. We do not suggest, of course, that sudden ‘Road-to-Damascus’ conversion is impossible or even unusual; however, when such a claim is asserted the Selective Service authorities are authorized to treat its sincerity as so sufficiently suspect that the suddenness of the conversion may be considered as one of those ‘objective facts * * * [which] cast doubt on the sincerity of his claim.‘” (Citing authorities.)
That statement is equally applicable here.
The motion for rehearing is denied, without argument.