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SCHLOMANN v. MOSELEY

No. 473-70.

457 F.2d 1223 (1972)

Kenneth H. SCHLOMANN, Petitioner-Appellant, v. R. I. MOSELEY, Warden, United States Penitentiary, Leavenworth, Kansas, Respondent-Appellee.

United States Court of Appeals, Tenth Circuit.

March 24, 1972.

Attorney(s) appearing for the Case

Donald E. Phillipson, of Davis, Graham & Stubbs, Denver, Colo., for petitioner-appellant.

Lieutenant Colonel Arnold I. Melnick, Washington, D. C. (Robert J. Roth, U. S. Atty., Richard L. Meyer, Asst. U. S. Atty., and Captain Michael A. Katz, Office of the Judge Advocate Gen., Dept. of the Army, with him on brief), for respondent-appellee.

Before JONES and HOLLOWAY, Circuit Judges, and BRATTON, District Judge.

HOLLOWAY, Circuit Judge.

The central issue before us is the retroactivity of O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed. 2d 291. Specifically, the question is whether the 1969 opinion may be invoked to set aside convictions by a General Court Martial for non-service connected offenses although such convictions became final prior to the decision in O'Callahan. The issue arises in habeas proceedings in which the...

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