Midgett v. Warden, Maryland State Penitentiary

Citation329 F.2d 185
Decision Date25 February 1964
Docket NumberNo. 9062.,9062.
PartiesCurtis Edward MIDGETT, Appellant, v. WARDEN, MARYLAND STATE PENITENTIARY, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Calvert Ross Bregel, Baltimore, Md. (Court-assigned counsel), for appellant.

Stuart H. Rome, Asst. Atty. Gen., of Maryland (Thomas B. Finan, Atty. Gen. of Maryland, on brief), for appellee.

Before BOREMAN and J. SPENCER BELL, Circuit Judges, and BARKSDALE, District Judge.

J. SPENCER BELL, Circuit Judge.

Midgett appeals from an order of the district court refusing a plenary hearing on his application for a writ of habeas corpus. A number of grounds set forth in the petition were rejected by the court on the basis of the records in various state court proceedings; others were rejected upon the ground that the petitioner had not exhausted his remedies under Maryland's Post Conviction Procedure Act hereinafter PCPA.1 We are in accord with the district judge's ruling and will discuss seriatim the questions raised on appeal by petitioner's very able counsel.

The petitioner went through two trials, the first of which was reversed, Midgett v. State, 216 Md. 26, 139 A.2d 209 (1958), and the second affirmed, Midgett v. State, 223 Md. 282, 164 A.2d 526 (1960), cert. denied, Midgett v. Maryland, 365 U.S. 853, 81 S.Ct. 819, 5 L.Ed.2d 817 (1961). After having two petitions rejected by the federal courts for failure to exhaust his state remedies, Midgett filed a petition under the Maryland PCPA in the Criminal Court of Baltimore. His petition was dismissed and leave to appeal was denied by the Maryland Court of Appeals, Midgett v. Warden, etc., 229 Md. 617, 182 A.2d 52 (1962), which adopted the opinion of the lower court. Because the background facts are thoroughly documented in these references, we shall confine ourselves to those facts necessary to our decision here.

The petitioner first complains that the district court erred in refusing him a plenary hearing on his contention that his confession used in his second trial was coerced. He sets forth a number of grounds to support his contention of coercion, the most cogent of which is that the police threatened to charge his wife as an accomplice to his crimes if he did not confess. The record shows that he objected to the use of the confession at his second trial on several grounds, including the threat to his wife. On his second appeal, he raised the question of his coerced confession, but the charge that his wife had been threatened was not made to the appellate court as one of the grounds for rejecting the confession. The district court found that not only was this charge of a threat to his wife not advanced on his second appeal, it has not been advanced in any of his subsequent post conviction petitions. We accept this finding of the district court although we cannot verify it because the state court record which he examined is not made a part of this record on appeal. For his failure to present this ground in any post conviction procedure petition in the state courts, the court below rejected his petition for habeas as premature on this point.

The petitioner contends, however, that notwithstanding the fact that he has never presented this argument to the Maryland courts he is now barred from doing so by Maryland law and, therefore, he has exhausted all of the state remedies now available to him and under the doctrine of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), is now entitled to have his complaint heard in the federal courts. Against this argument, the Attorney General of Maryland earnestly contends that the law of Maryland does not prohibit the petitioner from being heard upon his newly alleged ground for rejection of his confession. He concedes that prior to Fay v. Noia the Maryland courts did reject post conviction petitions bottomed on any ground which could have been raised on direct appeal — and this is such a ground — but he contends no decision of the court since Fay v. Noia has so held. He, therefore, urges this court to assume that Maryland will recognize the import of that decision and revise its rules in order to prevent its courts from becoming "mere way stations on the road to the federal courts."

The court below accepted this argument and abstained from considering this aspect of the petition on its merits until Midgett should test the existence of a remedy in the state court. This decision of the district court is buttressed to some extent by the fact that since the Fay v. Noia decision, the Maryland Court of Appeals has considered two PCPA petitions, both of which could have been dismissed summarily under its prior ruling of automatic waiver by failure to take a point up on direct appeal, but in both cases the court refrained from doing so. In one case Nichols v. Warden, etc., 232 Md. 663, 194 A.2d 444 (1963), where no direct appeal was taken, the court affirmed a lower court decision on the merits of a PCPA...

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21 cases
  • Giles v. State of Maryland
    • United States
    • United States Supreme Court
    • 20 Febrero 1967
    ...John Giles achieved penetration, however slight.' 12 See Hunt v. Warden, 335 F.2d 936, 941—943 (C.A.4th Cir., 1964); Midgett v. Warden, 329 F.2d 185 (C.A.4th Cir., 1964), and the other cases discussed in Note, 40 N.Y.U.L.Rev. 154, 193—195 1. The fact that petitioners' counsel at trial had k......
  • Boblit v. Warden, Maryland Penitentiary
    • United States
    • U.S. District Court — District of Maryland
    • 26 Octubre 1972
    ...Whitley v. Steiner, 293 F.2d 895 (4 Cir. 1961), cert. dismissed, 368 U.S. 980, 82 S.Ct. 476, 7 L.Ed.2d 521 (1962); Midgett v. Warden, 329 F.2d 185 (4 Cir. 1965); Fulford v. Smith, 432 F.2d 1225 (5 Cir. 1970); Mackey v. Oberhauser, 437 F.2d 120 (9 Cir. 1971). But cf. Coleman v. Peyton, 362 F......
  • Hunt v. Warden, Maryland Penitentiary
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 3 Agosto 1964
    ...crime, the Court of Appeals of Maryland has not shown an unwillingness to comply with the Supreme Court's rulings. In Midgett v. Warden, 329 F.2d 185 (4th Cir. 1964), this court remitted a Maryland petitioner to the Maryland courts to exhaust his remedies there, notwithstanding earlier Mary......
  • United States ex rel. Fein v. Deegan
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 24 Marzo 1969
    ...found in the hearing" (Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 760, 9 L.Ed.2d 770 (1963); see, Midgett v. Warden, Maryland State Penitentiary, 329 F.2d 185 (4th Cir.1964); Durham v. Haynes, 258 F.Supp. 452 (E.D.Mo., N.D.1966), aff'd, 368 F.2d 989 (8th Cir. 1966), cert. denied, 39......
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