Steele v. Humphrey

80 F. Supp. 544 | M.D. Penn. | 1948

FOLLMER, District Judge.

This is petitioner’s second application for writ of habeas corpus in this district.¹ The present petition raises one new ground not heretofore presented and determined and which is therefore being considered herein.² Using his own language, his contention is, “The petitioner bases his complaint on the fact that he was discharged from the United States Army while serving a sentence adjudged by general courts-martial, that one day after the issue of discharge your petitioner was interned in a United States Federal Penitentiary; interned therein by the military authorities; on a military commitment warrant signed prior to discharge and separation from the Army and that the rulings of the Judge Advocate General of the United States Army has provided that once a discharge has been issued to a man in confinement it immediately terminates the remaining unexecuted portion of the sentence.”

This contention is without merit. Where a soldier in a court-martial proceeding has been sentenced to a term in the penitentiary, with a dishonorable discharge also imposed,³ he nevertheless as a person under sentence adjudged, by a court-martial, remains, pursuant to the provisions of Article of War 2, 10 U.S.C.A. § 1473, a person “subject to military law”,⁴ and such discharge dogs not terminate 'the prison sentence.

The ■ application for writ of habeas corpus is denied.

1 On his previous application, Ex parte Steele, D.C.M.D.Pa., 79 F.Supp. 428, he was represented by counsel and he now has an appeal pending therein.

2 Section 2244 New Federal. Judicial Code, 28 U.S.C.A. § 2244.

3 Petitioner was convicted under Article of War 92, 10 U.S.C.A. § 1564, and a dishonorable discharge as part of the sentence was proper. Manual for Courts-Martial, U. S. Army, 1928 (corrected to April 20, 1943) Page 92, Par. 103.

4 Manual for Courts-Martial, U. S. Army, 1928 (corrected to April 20, 1943) Page 8, Par. 10. O’Malley v. Hiatt, D.C.M.D.Pa., 74 F.Supp. 44, 50; Hironimus v. Durant, 4 Cir., 168 F.2d 288.