Appeal from an order entered in the United States District Court for the Eastern District of New York, Honorable Jacob Mishler, Chief Judge, denying plaintiff's motion for summary judgment, entering judgment in favor of the defendants and dismissing the complaint which alleged that plaintiff was entitled to reconsideration of his petition for review under 10 U.S.C. § 869, of a court material conviction and in the alternative, that he was entitled to habeas corpus relief. Affirmed.
Moore, Smith and Mansfield, Circuit Judges. Mansfield, Circuit Judge, concurring.
This is an appeal from an order dismissing plaintiff's complaint seeking to overturn his court martial conviction after some thirty years. The district court found that the summary treatment of Curci's petition under Article 69 of the Uniform Code of Military Justice ("U.C.M.J."), 10 U.S.C. § 869, was appropriate under the circumstances, and as to the alternative claim for relief in the nature of habeas corpus, that the ultimate conclusion reached was correct since Curci had not established prejudicially ineffective representation.
Alfred Curci, a native of Brooklyn, New York, was inducted into the Army on October 25, 1945 at the age of twenty. During the next fourteen months (and apparently also at the time of his induction) he was afflicted with a painful disorder, a hydrocele of the right testicle. Curci was instructed that he must submit to surgery to correct the problem. He testified,
"Upon hearing this, I got very nervous and I started to worry as soon as I heard this, and I kept going back to sick call asking the captain there if there was any other way I could have this taken care of without an operation and the captain told me that was the only way I could feel better if I had this operation performed, and I was told that if I did not get the operation, that I would be court-martialed." (55a-56a).
Fearing either alternative, Curci fled on December 24, 1946, and returned to his family.*fn1
While at home, Curci did not seek employment, but tended to the daily needs of his mother who suffered from "hypertensive heart trouble". Curci, during this time, considered returning to the Army because his unauthorized absence was an added tension on his mother. On October 14, 1947 Curci surrendered, at his family's urging, to the military authorities at Fort Dix, New Jersey. About ten days after his return, Curci underwent an operation to correct the condition. The operation was deemed a success, but Curci subsequently suffered "continuous pains on my abdomen and testicles and back and left leg". (58a).
Charged with desertion the day after his surrender, Curci underwent a psychiatric examination. He was diagnosed as having an "immaturity reaction, mild", but "there is no reason why this [person] cannot function in the Army" and he has "sufficient mental capacity to assist in his own defense". (41a). On February 6, 1948 a general court martial was convened to try Curci for desertion. Curci was represented by a non-lawyer officer. At the opening of the proceeding the prosecution attempted to prove, through the introduction of a morning report extract, Curci's willful absence. The report introduced was "in error" because it was dated "the 28th of December 1947 dropping the excused to absent without leave as of the 24th of December 1946 ". (Emphasis added). (52a). The court granted a recess and approximately 15 minutes later the prosecution presented the court with a stipulation that Curci went absent without leave ("AWOL") on or about December 24, 1946. Before receiving the stipulation into evidence the Law Member asked:
" LAW MEMBER: Private Curci, do you understand what the trial judge advocate just said?
LAW MEMBER: You understand you need not agree to this statement and that if you do not, it will be necessary for him to make his proof by other means?
Accused: Yes, sir." (52a).
Curci took the stand in his own defense after the Law Member fully informed him of his right to remain silent. Curci testified that he fled out of his fear of the operation and the consequences if he did not submit to the operation, and he said that the condition of his ailing mother played a secondary part in his decision. He denied having any intention to desert, i.e., to remain absent permanently. Following Curci's testimony, each counsel stipulated as to ...