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Swisher v. Moseley

May 24, 1971

THOMAS T. SWISHER, PLAINTIFF-APPELLANT,
v.
R. I. MOSELEY, WARDEN, UNITED STATES PENITENTIARY, LEAVENWORTH, KANSAS, DEFENDANT-APPELLEE



Breitenstein, Hill and Holloway, Circuit Judges.

Breitenstein

BREITENSTEIN, Circuit Judge.

In August, 1958, a military court-martial found appellant, a member of the armed forces, guilty of robbery, assault with intent to commit murder, assault with intent to commit rape, and interstate transportation of a stolen motor vehicle. His petition for grant of review was denied by the Court of Military Appeals, 10 U.S.M.C.A. 699. He has presented numerous petitions for post-conviction relief. See Swisher v. United States, W.D.Mo., 211 F. Supp. 917, vacated, 8 Cir., 326 F.2d 97; Swisher v. United States, W.D.Mo., 237 F. Supp. 921, and Swisher v. United States, W.D.Mo., 239 F. Supp. 182, both affirmed, 8 Cir., 354 F.2d 472; and Swisher v. U. S. Department of Justice, 10 Cir., decided February 4, 1970, opinion unpublished.

In the present habeas petition he seeks relief from that portion of the sentence relating to the interstate transportation of the stolen automobile and claims that the offense was not service connected because the crossing of the state line occurred off of the military reservation where he was stationed. The same point was raised in a habeas petition filed with the Court of Military Appeals, 19 U.S.M.C.A. 624, and denied on the ground that the transportation had its inception on a military reservation. The federal court habeas petition was denied on the same ground. We agree with both the Court of Military Appeals and the district court.

The robbery, the assaults, and the theft of the car were all committed on the military base at Fort Jackson, South Carolina, by the appellant when he was a private first class in the United States Army. The victim was on the post to visit her husband who was stationed there. After stealing ...


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