Noyd v. Bond (395 U.S. 683)/Dissent White

Mr. Justice WHITE, dissenting.

The petition for certiorari in this case sought a determination that petitioner was being subjected to illegal restraints pending the appeal of his courtmartial conviction to the appropriate tribunals. Since his sentence had begun to run at the time it was imposed, it would have expired on December 26, 1968, unless suspended or otherwise interrupted. Hence when the petition was filed here, the most petitioner had to gain from this litigation, which does not reach the merits of his conviction, was that for the duration of his sentence-two days at the time Mr. Justice Douglas ordered his release from confinement-he was not to be subject to the restraints then being imposed on him. Surely this is a picayune issue which does not warrant decision here in any event, either alone or in conjunction with the exhaustion question. Petitioner should not have brought the custody question to the federal courts in the first place; and by the same token, if to preserve the issue he desired suspension of his sentence or its equivalent, that matter also should have been presented first to the military tribunals rather than to the District Court. I would dismiss the writ as improvidently granted.