431 F2d 1197 Scott McFarlane v. Colonel Guy Deyoung

431 F.2d 1197

Scott McFARLANE, Appellant,
Colonel Guy DeYOUNG, Commanding Officer, United States Army, Presidio, San Francisco, California, Appellee.

No. 25542.

United States Court of Appeals, Ninth Circuit.

September 2, 1970.

Robert J. Nareau (argued), Young & Nareau, Keith McFarlane, Woodland, Cal., for appellant.

Steven Kalen (argued), Asst. U. S. Atty., James L. Browning, U. S. Atty., San Francisco, Cal., for appellee.

Before KILKENNY and TRASK, Circuit Judges, and FERGUSON,* District Judge.


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This appeal from a denial of a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241(c) involves the obligations of a soldier in the United States Army for alleged absence from duty without proper authority, as set forth in Beaty v. Kenan, 420 F.2d 55 (9th Cir. 1969).


The matter was determined by the district court with the assent of the parties, based upon the respondent's return to an order to show cause. The return included all the records upon which the district court based its findings and conclusions. The case does not, therefore, involve the usual appellate review where deference must be given to the fact finding process of the trial courts. Costello v. Fazio, 256 F.2d 903 (9th Cir. 1958); Brown v. Cowden Livestock Co., 187 F.2d 1015 (9th Cir. 1951).


The district court determined that the case was factually distinguishable from Beaty. We hold that the distinctions cannot remove this case from Beaty.


The record reveals that on September 4, 1969, after petitioner reported for duty, his father was informed by the Army officer investigating the matter, that he, the officer, thought that the petitioner had made a reasonable effort to let the Army know where he was.


The respondent contends that petitioner's lack of good faith is illustrated because (1) petitioner's father kept a record of letters and telephone conversations of petitioner's contacts with the Army, and (2) petitioner reported at the Presidio of San Francisco only two days before his discharge date. In Beaty no such records were kept and Beaty reported five weeks after his original termination date. The distinctions are de minimus.


The order denying the writ is vacated, the writ is granted, and the mandate ordered to be issued forthwith by the clerk.



Honorable Warren J. Ferguson, United States District Judge, Los Angeles, California, sitting by designation