Opinion
J. B. Tietz, Los Angeles, Cal., for petitioner.
Lloyd H. Burke, U.S. Atty., Richard H. Foster, Asst. U.S. Atty., San Francisco, Cal., for defendant.
OLIVER J. CARTER, District Judge.
Theodore R. Erickson has petitioned this Court for a writ of habeas corpus, contending that he is being unlawfully restrained by the Commanding General of the Sixth Army. Respondent moves to dismiss.
Petitioner registered for the draft and was eventually classified 1-A-O, as a conscientious objector available for noncombatant military service only. In 1941 he was inducted into the Army as a conscientious objector available for noncombatant service only. After petitioner had been in the Army for about two years, he left his Army assignment on his own initiative and returned to his home, where he remained until some time in 1955 when he was taken into custody and charged with desertion.
The petition is based upon two grounds; first, an asserted denial of due process in the pre-induction proceedings, and second, that petitioner's induction into the Army was void because (it is alleged) some of petitioner's assignments in the Army were improper for a 1-A-O inductee. The latter ground was considered by this Court in a companion case, LaRose v. Young, D.C.N.D.Cal., 139 F.Supp. 516. That contention is denied here for the same reasons it was denied in the LaRose case.
Petitioner's claim that his pre-induction proceedings did not afford him due process of law, can best be determined after a hearing on that aspect of the petition.
Accordingly, it is ordered that those portions of the First Amended Petition for Writ of Habeas Corpus dealing with allegedly improper assignments of petitioner in the Army, be, and the same are hereby dismissed. Counsel for respondent shall have ten days in which to file a return to the remaining portions of said petition.