U.S. Supreme Court
Gusik v. Schilder, 340 U.S. 128 (1950)
Gusik v. Schilder
Argued November 10, 1950
Decided December 4, 1950
340 U.S. 128
1. Article 53 of the Articles of War gives the Judge Advocate General discretion to grant a new trial in any court-martial case.
Held: A federal court should not entertain a petition for habeas corpus on behalf of one imprisoned under a sentence of a court-martial until the remedy afforded by Article 53 has been exhausted, notwithstanding that the petition for habeas corpus was filed prior to the effective date of the Article and that the petitioner had exhausted the previously existing administrative remedies. Pp. 340 U. S. 129-134.
2. Article 53 is applicable to World War II court-martial cases in which appellate review was completed prior to the effective date of the Article or in which habeas corpus proceedings had been instituted prior to that date. Pp. 340 U. S. 130-132.
3. The provision of Article 53 that all action by the Judge Advocate General thereunder shall be "final and conclusive" and shall be "binding upon all departments, courts, agencies, and officers of the United States" must be read as describing the terminal point for proceedings within the court-martial system, and not as depriving the civil courts of jurisdiction to review by habeas corpus the judgments of military tribunals. Pp. 340 U. S. 132-133.
4. Petitioner's belief that resort to Article 53 will be futile cannot excuse his failure to exhaust the remedy provided by that Article. P. 340 U. S. 133.
5. The trial of this case in the District Court having ended before the effective date of Article 53, and the question of the exhaustion of the new remedy not having been raised until the case was on appeal, the Court of Appeals should have held the case pending resort to the new remedy under the Article. Pp. 340 U. S. 133-134.
180 F.2d 662 reversed.
In a habeas corpus proceeding to secure petitioner's release from imprisonment under sentence of a court-martial, the District Court sustained the writ and ordered chanroblesvirtualawlibrary