The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER DENYING PETITION FOR HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241
Presently before the court is Remondre' Boyd's ("petitioner") petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner challenges the denial of his request for classification as a conscientious objector and argues that his claim is not made moot by his subsequent release from the military for misconduct. For the reasons discussed below, while petitioner's claim is not moot, his petition for habeas corpus relief is DENIED.
Petitioner applied for conscientious objector status with the United States Marine Corps in June 2005 while stationed at Camp Pendleton. (Tr. at 3.) Petitioner's application for conscientious objector status was denied on April 3, 2006, based on the review board's finding that petitioner had failed to present evidence of the sincerity of his objection to war. (Pet. Appx. E at 51.) Following the denial, Petitioner was ordered to report to the 5/11 Battalion's Sierra Battery to resume work as an Artilleryman and eventually to deploy to Iraq with the Marine Expeditionary Unit. (Resp. Reply to Order to Show Cause ("RRO") at 2.) Petitioner did not report for duty, instead going on unauthorized leave. (Id.) Upon his return, on or about May 9, 2006, petitioner was assigned duties with the ordinance department. (Id.) Petitioner again went on unauthorized leave on or about May 22, 2006. (RRO at 2.) Petitioner surrendered to military authorities on or about July 17, 2006. (Tr. at 7.)
Petitioner was charged with two counts of violating Article 86 of the Uniform Code of Military Justice, 10 U.S.C. § 886, and was tried by a Summary Court-Martial on August 23, 2006, where he pled guilty to both counts. (RRO at 3.) On September 3, 2006, the Commanding General of the First Marine Division ordered petitioner to be administratively separated under Other Than Honorable Conditions. (Id.)
Petitioner filed a writ of habeas corpus under 28 U.S.C. § 2241(c)(1) on May 10, 2006, challenging the denial of his conscientious objector application. (Petition for Writ of Habeas Corpus at 1-2.) Petitioner alleges that the orders which followed the denial of his application conflicted with his strongly held beliefs as a conscientious objector. (Tr. at 7.)
The Hon. Larry A. Burns denied petitioner's motion for a temporary restraining order on May 17, 2006. (Doc. No. 5.) Respondents answered the petition on June 21, 2006. (Doc. No. 9.) Petitioner filed a traverse on July 18, 2006. (Doc. No. 10.)
On October 6, 2006, Judge Burns issued an Order to show cause ("OSC") why the petition should not be dismissed as moot. (Doc. No. 12.) Petitioner responded to the OSC on October 16, 2006. (Doc. No. 13.) Respondents filed their opposition on November 16, 2006. (Doc. No. 14.) Petitioner filed his reply on November 6, 2006. (Doc. No. 15.)
The action was reassigned to the Hon. Janis L. Sammartino on October 3, 2007.
Under 28 U.S.C. § 2241(c)(1), a writ of habeas corpus may be granted by the court where a prisoner is in custody under or by color of the authority of the United States. Such writs are deemed the appropriate remedy for service members who claim to be unlawfully retained in the armed forces due to an illegal ...