SAMUEL OBEDIAH MILLER, PETITIONER-APPELLANT,
v.
THE UNITED STATES ARMY, RESPONDENT-APPELLEE
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The court held that the petitioner is entitled to consideration of his conscientious objector claim on the merits, as prior precedent regarding exhaustion of military remedies is no longer controlling.
Petitioner, who voluntarily enlisted, sought release from the armed forces as a conscientious objector. The district court dismissed his habeas corpus…
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PER CURIAM.
The opinion filed herein on August 27, 1971, was withdrawn on August 30, 1971, to avoid possible inconsistency with Polsky v. Wetherill, 10 Cir., 438 F. 2d 132.
Petitioner-appellant, who voluntarily enlisted in the armed forces, sought release therefrom as a conscientious objector. Release was denied and he brought habeas corpus. In reliance on Noyd v. McNamara, 10 Cir., 378 F. 2d 538, cert. denied 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667, the district court dismissed the petition because petitioner had not exhausted available military remedies, including the court martial process. In Polsky we reaffirmed the rule stated in Noyd v. McNamara. The Supreme Court vacated our judgment and remanded the case for further consideration, Polsky v. Wetherill, 403 U.S. 916, 91 S.Ct. 2232, 29 L.Ed.2d 693. Thereafter, the court of appeals en banc considered Polsky on its merits and directed that the writ issue. See opinion filed on March 2, 1972, in 10 Cir., 455 F. 2d 960.
Noyd v. McNamara no longer has any vitality. The appellant in the case at bar is entitled to consideration of his claim on the merits. Accordingly, the judgment is reversed and the case is remanded for trial on the merits.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Captain Dale E. Noyd v. Honorable Robert S. McNAMARA, 378 F.2d 538 (10th Cir. 1967)
- Noyd v. McNamara, 389 U.S. 1022 (U.S. 1967)
- Harris v. Pitchess, 389 U.S. 1022 (U.S. 1967)
- Polsky v. Major General Roderick Wetherill, 455 F.2d 960 (10th Cir. 1972)
- Polsky v. Wetherill, 403 U.S. 916 (U.S. 1971)
- Nat'l Labor Relations Bd. v. Plasterers' Local Union No. 79, Operative Plasterers' & Cement Masons' Int'l Assn., AFL-CIO, 403 U.S. 916 (U.S. 1971)
- Polsky v. Major General Roderick Wetherill, 438 F.2d 132 (10th Cir. 1971)