Burns v. Wilson,
346 U.S. 844 (1953)

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U.S. Supreme Court

Burns v. Wilson, 346 U.S. 844 (1953)

Burns v. Wilson

No. 422.

Decided October 12, 1953

346 U.S. 844


Petition for rehearing denied. Separate opinion filed by MR. JUSTICE FRANKFURTER.


Further study and reflection have reinforced the conviction I expressed last June -- and on even broader grounds than I then indicated -- that this case should set down for reargument. Fundamental issues which have neither been argued by counsel nor considered by the Court are here involved. On such important questions, the military authorities, the bar, and the lower courts (including the Court of Military Appeals) ought not to be left with the inconclusive determination which our disposition of the case last June implies. One has a right to assume that there is greater likelihood of securing agreement of views for a Court opinion at the beginning than at the end of a term.

First. One of these problems concerns the effect of recent developments in the scope of inquiry on habeas corpus upon the relationship of the federal district courts in their habeas corpus jurisdiction to courts-martial. If the main opinion stands, matters which are open for inquiry on collateral attack upon a judgment of conviction entered in a United States District Court, a constitutional tribunal, will be foreclosed from inquiry when the judgment of conviction collaterally assailed is that of a court-martial, an executive tribunal of limited jurisdiction ad hoc in nature. This has not been the law up to now; and the assertion that, "in military habeas corpus, the inquiry, the scope of matters open for review, has always been more narrow than in civil cases" 346 U.S. at 346 U. S. 139, is, I respectfully submit, demonstrably incorrect.

Page 346 U. S. 845

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