U.S. Court of Appeals for the Eighth Circuit, 1974

Joseph Orby Smith, Jr. v. Secretary of the Navy

U.S. Court of Appeals for the Eighth Circuit · Decided November 20, 1974 · Gibson, Clark, Webster

506 F.2d 1250; 1974 U.S. App. LEXIS 5988 (Federal Reporter, Second Series)

Counsel

Thomas M. Bradshaw, Asst. Federal Public Defender, Kansas City, Mo., for appellant., Frederick Griffin, Asst. U. S. Atty., Kansas City, Mo., for appellee.

Cases that cite this one

3 later published cases cite this decision.

Kaiser v. Secretary of the Navy (United States District Court for the District of Colorado 1982)
Karl Ballenger v. John O. Marsh, Jr., Secretary of the Army (8th Cir. 1983)
Schmidt v. United States (Court of Claims 1983)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

PER CURIAM.

Upon a careful consideration of the record and of the briefs and arguments of the parties, the Court has concluded that the judgment appealed from should be affirmed for the reasons stated in Judge Oliver’s well-reasoned memorandum opinion.

Although it is clear that Smith’s 1942 court martial conviction was for non-service connected offenses, under the reasoning of O’Callaghan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), retroactive relief upon this basis is not available. Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973). We are also of the opinion that the District Court correctly concluded that Smith must exhaust his administrative remedies under 10 U.S.C. § 869 before applying to the courts for relief on his claim of the lack of a knowing and intelligent waiver of counsel.

The judgment of the District Court dismissing the petition is hereby affirmed.

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