Parisi v. Davidson

PETITIONER: Parisi
RESPONDENT: Davidson
LOCATION: Former Ada County Courthouse

DOCKET NO.: 70-91
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 405 US 34 (1972)
ARGUED: Oct 19, 1971 / Oct 20, 1971
DECIDED: Feb 23, 1972

ADVOCATES:
Richard L. Goff - for petitioner
William Terry Bray - for respondents

Facts of the case

Question

Media for Parisi v. Davidson

Audio Transcription for Oral Argument - October 20, 1971 in Parisi v. Davidson

Audio Transcription for Oral Argument - October 19, 1971 in Parisi v. Davidson

Warren E. Burger:

Mr. Goff, do you -- as you preferred not to divide your argument between today and tomorrow, we have 13 minutes, but if you feel it would make it more difficult we will let you go over on the other hand we would like to use 13 minutes.

Richard L. Goff:

Then very well, Your Honor I will start right now.

Mr. Chief Justice and if it please the Court.

This case raises one issue and one issue only.

That issue is whether the right of a serviceman to petition to Federal Court for habeas corpus based on the wrongful, and I claim, of wrongful administrative denial of his applications for discharge as a conscientious objector should be or maybe suspended until he has exhausted certain kinds of military criminal proceedings, which are pending against him at the time the habeas petition is filed.

The issue arises out of the District Court’s order which was affirmed by the United States Court of Appeals for the Ninth Circuit in order that all proceedings on petitioner Parisi’s petition for habeas corpus based on his claim that the Army had denied his conscientious objector discharge application without any basis, in fact, should be staid until exhaustion of military criminal proceedings, which were pending based on the claim of refusal to obey an order to board a plane headed for Vietnam.

Was exhaustion have met going all the way through the Court of Military Appeals?

Richard L. Goff:

Under the District Court’s order Your Honor.

The exhaustion remedy must be pursued until there has been a final judgment in the military criminal proceedings.

Does that include the Court of Military Appeals?

Richard L. Goff:

I would assume that if there were, if the conviction were affirmed in the Court of Military Review that that would certainly necessitate continuing the appeal process through the Court of Military Appeals.

Can you just briefly tell me what are the steps in Military Appellate Process?

Richard L. Goff:

As I understand it Your Honor, after the judgment of conviction and the sentence, there is a certain process of review by the convening authority which can take a certain period of time several, weeks or few months --

Is there any time limit in the steps within which the convening authority has to complete that review?

Richard L. Goff:

I am not certain Your Honor of the exact time with it.

After the convening authority completes his review then the case maybe and was in this case appealed to the Court of Military Review.

The record is lodged in the Court of Military Review, briefs are filed, the case is argued although in this case oral argument has been waived.

There is a decision and if the decision is adverse to the defendant then I would certainly read the District Court’s order as requiring further exhaustion by an appeal to the Court of Military Appeals.

Is that appeal of right?

Richard L. Goff:

As I understand it that is an appeal of right, although I am not thoroughly familiar with that particular aspect of it.

It also seems that an additional exhaustion requirement is imposed by the decision of the Ninth Circuit below although perhaps not adhered to by the Solicitor General whose brief in the case of Barr namely a petition to the Court of Military Appeals for extraordinary post conviction Habeas Corpus supposedly discharging the man from the service.

You mean that too would have to be exhausted before they could proceed with the --

Richard L. Goff:

Your Honor the -- the Ninth Circuit justified the entire exhaustion process --

Well, but would that step also have to be exhausted before it could come in civil --

Richard L. Goff:

Your Honor, under the District Court’s order I believe it could be argued, that the step could not -- does not have to be exhausted.

However, under the Ninth Circuit’s opinion referring that order it appears that it might well have to be exhausted because really that is the only way the Court of the Ninth Circuit that the man could ever obtain from the military process the right to discharge which he seeks on erroneous --

Now with that is there any provision in the military process for staves and being sent to Vietnam or (Inaudible)?

Richard L. Goff:

Your Honor the man was and has been incarcerated until recently when --

Well, is there any provision for staves pending the completion of all this military appellate review?

Richard L. Goff:

I am not certain Your Honor.