Opinion · Court of Appeals for the Ninth Circuit

Small v. Commanding General

448 F.2d 1397

Type: Opinion
Court: Court of Appeals for the Ninth Circuit
Jurisdiction: Federal
Date: 1971-10-26
Topic: general

PER CURIAM: Petitioner-appellant Small is an enlisted man on active duty in the Marine Corps. On June 9, 1970, he was tried and convicted by a special court-martial for the sale of marijuana. His conviction was reviewed and approved by the Staff Judge Advocate, Marine Corps Recruit Depot, San Diego, California. Instead of seeking review by the Judge Advocate General of the Navy pursuant to 10 U.S.C. § 869 (1971 Supp.) (Article 69 of the UCMJ), Small sought habeas corpus in the Southern District of California. The district court dismissed the petition for failure to exhaust all military remedies.

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SMALL v. COMM. GEN., PENDLETON, CALIF.,448 F.2d 1397(9th Cir. 1971)

Application of John T. SMALL, Petitioner-Appellant, v. COMMANDING GENERAL,

MARINE CORPS BASE, CAMP PENDLETON, CALIFORNIA, and Commanding Officer,

Staging Battalion, Marine Corps Base, Camp Pendleton, California (MCC

050), Respondents-Appellees.

No. 71-1391.

United States Court of Appeals, Ninth Circuit.

October 26, 1971.

Appeal from the United States District Court for the Southern District of California; J. Clifford Wallace, Judge.

Byron J. Walters (argued), Canoga Park, Cal., for petitioner-appellant.

Alan R. Perry, (argued), Harry D. Steward, U.S. Atty., Frederick B. Holoboff, Asst. U.S. Atty., San Diego, Cal., for respondents-appellees.

Before WRIGHT and CHOY, Circuit Judges, and BYRNE, District Judge.^fn*

PER CURIAM:

Petitioner-appellant Small is an enlisted man on active duty in the Marine Corps. On June 9, 1970, he was tried and convicted by a special court-martial for the sale of marijuana. His conviction was reviewed and approved by the Staff Judge Advocate, Marine Corps Recruit Depot, San Diego, California.

Instead of seeking review by the Judge Advocate General of the Navy pursuant to10 U.S.C. § 869(1971 Supp.) (Article 69 of the UCMJ), Small sought habeas corpus in the Southern District of California.

The district court dismissed the petition for failure to exhaust all military remedies. Small appealed. At the time of oral argument, the court indicated from the bench that the judgment of the district court was affirmed.

We do so for the reasons set forth by the district court and adopt as our own its opinion reported at320 F. Supp. 1044(S.D.Cal. 1970). A petition for rehearing will not be entertained.

Affirmed.

Honorable William M. Byrne, United States District Judge for the Central District of California, sitting by designation. ↩