Hunt v. Warden, Maryland Penitentiary

• Citation: 335 F.2d 936
• Decision Date: 03 August 1964
• Docket Number: 9352.,9241,No. 9238,9238
• Parties: John Wesley HUNT, Appellant, v. WARDEN, MARYLAND PENITENTIARY, Appellee. John Nathan BRISTOW, Jr., Appellant, v. Vernon L. PEPERSACK, Warden, Maryland State Penitentiary, Appellee. James E. COX, Appellant, v. Vernon L. PEPERSACK, Warden, Maryland Penitentiary, State of Maryland, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

335 F.2d 936 (1964)

John Wesley HUNT, Appellant, v. WARDEN, MARYLAND PENITENTIARY, Appellee.

John Nathan BRISTOW, Jr., Appellant, v. Vernon L. PEPERSACK, Warden, Maryland State Penitentiary, Appellee.

James E. COX, Appellant, v. Vernon L. PEPERSACK, Warden, Maryland Penitentiary, State of Maryland, Appellee.

Nos. 9238, 9241, 9352.

United States Court of Appeals Fourth Circuit.

Argued June 22, 1964.

Decided August 3, 1964.

Ronald P. Sokol (Court-assigned counsel), Charlottesville, Va., for appellants.

Robert J. Martineau, Asst. Atty. Gen. of Maryland (Thomas B. Finan, Atty. Gen. of Maryland, on the brief), for appellee.

Before SOBELOFF, Chief Judge, and BRYAN and J. SPENCER BELL, Circuit Judges.

SOBELOFF, Chief Judge:

This consolidated appeal by three Maryland prisoners presents serious questions arising out of the nature of federal habeas corpus, particularly the exhaustion doctrine now codified in 28 U.S.C.A. § 2254:

"An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.

"An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented."

FACTUAL BACKGROUND

A. James E. Cox — In 1961, on the advice of court-appointed counsel, Cox pleaded guilty to the charge of armed robbery. The court imposed the maximum sentence of twenty years imprisonment, but Cox did not appeal the conviction. A year later he petitioned for relief under the Maryland Post Conviction Procedure Act. 27 Md.Code (1963 Cum. Supp.) § 645A et seq. As summarized by the Maryland court which heard the petition, Cox's contentions were as follows:

"1. That he was illegally arrested.

"2. That he was severely beaten by the police in order to obtain a confession.

"3. That his counsel * * * did not adequately represent him to wit:

"a. He conferred with counsel only a few minutes before the trial.

"b. Counsel pleaded him guilty without his consent.

"4. That the trial judge made no inquiry as to whether or not the defendant knew the consequences of a guilty plea.

"5. That the police officers encouraged a witness to identify him in a line-up.

"6. That he was interrogated for an extended period of time and denied his right to counsel."

The Maryland post conviction court appointed counsel and held a hearing but rejected on the merits only the allegation of ineffectiveness of counsel, noted in 3a above. The remainder of the allegations it held not reviewable under the Post Conviction Procedure Act. Cox sought leave to appeal but leave was denied.

Having fully exhausted his state remedies he then filed a petition for federal habeas corpus in the United States District Court for the District of Maryland. That court dismissed his petition without a hearing, taking the view that in the interest of comity Cox should be required to reapply for Maryland post conviction relief, because "these cases Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) and other recent decisions of the Supreme Court of the United States may cause the State courts of Maryland including the Court of Appeals of Maryland to review their previous holdings with respect to waiver and the scope of Uniform Post Conviction Procedure Act proceedings * * *." Cox v. Pepersack, Civil Action 14820, D.Md., July 8, 1963.

Cox accordingly returned to the state court with a second post conviction petition. This time counsel was not appointed nor was a hearing held. The petition was denied summarily, for the reason that it raised no grounds which were not presented in the first petition.¹ Cox did not appeal this ruling, but instead filed a second petition for federal habeas corpus. This was dismissed the same day without a hearing on the ground that by failing to appeal the denial of the second post conviction petition, Cox had deliberately by-passed state remedies, thereby foreclosing federal habeas corpus review

B. John Wesley Hunt — In October, 1962, after pleading not guilty to a robbery charge, John Hunt was tried, convicted and sentenced to seven years imprisonment. He did not appeal the conviction directly but attacked it collaterally in a proceeding under the State Post Conviction Procedure Act. Hunt's allegations, as set forth in the opinion of the judge of the Criminal Court of Baltimore City, are as follows:

"1. That he was held 28 hours without right to contact family, friends or counsel, and thereby he was subjected to cruel and unusual punishment; that the arresting officer took him to the Eastern Police Station and tried to force him to admit to a name used as an alias; that when taken to a lineup he was in the same elevator as the victim who identified him;

"2. That his counsel was so inadequate as practically to amount to no representation at all; that he did not cross-examine or question the character of the `co-defendant witness,\' and did not properly prepare his defense;

"3. That he had no counsel to represent him at the preliminary hearing at the Eastern District; and that he was arraigned before the trial judge in the Criminal Court without counsel;

"4. That his arrest was illegal and that he was searched without a search warrant;

"5. That he did not get the benefit of the doubt of the evidence presented to the trial judge, and that many of the absent witnesses were witnesses who would have testified on his behalf; that the incriminating statements of his co-defendants were false and perjured;

"6. That the judge said, after the trial, that she did not get as much cooperation out of the witnesses as she was hoping for." In the Matter of John Wesley Hunt, P.C. No. 628, Crim.Ct. of Baltimore, July 12, 1963.

While the post conviction court appointed a lawyer, no hearing was ordered. The court dismissed the petition, holding that allegations two, four and six were not supported by the transcript and that allegations one, three and five could not be considered under the Maryland Post Conviction Procedure Act. The court further held, on the inadequacy of representation point, that "the mere assertion of ineptness of counsel in the absence of any allegation of fraud or collusion with the prosecuting official, or any objection raised in the trial court is not reviewable under the Act." No appeal was taken.

Hunt then filed a petition for federal habeas corpus in which he said that he did not appeal the denial of post conviction relief because "your petitioner is following the Supreme Court Ruling of March 18, 1963 whereas you can pass State Courts." The District Court, without conducting a hearing, dismissed the petition, holding that Hunt had deliberately by-passed his state remedies by failing to appeal the post conviction proceeding to the Court of Appeals of Maryland.

C. John Nathan Bristow, Jr. — After pleading not guilty Bristow was convicted by a jury of larceny and breaking and entering. He did not appeal, but did apply for state habeas corpus. After a hearing, relief was denied on the merits. No appeal was taken and none could be taken, for Maryland law makes no provision for appeals from denials of habeas corpus.

Later, Bristow petitioned for federal habeas corpus, but relief was denied on the ground that he had not exhausted his presently available state remedies, namely the avenue provided by the Post Conviction Procedure Act. The District Court dismissed the petition without prejudice to the filing of a future petition after the state remedies shall have been exhausted.

Throughout his collateral attack on the conviction Bristow has asserted only one contention — and this he has pressed persistently — that one of the jurors who heard his case was the father of the prosecution's key witness and that this fact was known to the prosecutor, the sheriff, and the clerk of the court before the jury was sworn. At no time has the state denied this allegation, but rests its defense solely on the failure to exhaust.

EXHAUSTION OF STATE REMEDIES

Each of the three appellants takes the position that it was unnecessary for him to exhaust Maryland remedies before petitioning the federal court for the reason that the Maryland remedies are ineffective. On its face, the Maryland Post Conviction Procedure Act appears to provide a means for the adjudication of collateral challenges to convictions, which is as encompassing as federal habeas corpus.

"(a) Any person convicted of a crime and incarcerated under sentence of death or imprisonment * * who claims that the sentence or judgment was imposed in violation of the Constitution of the United States * * * or that the court * * * was without jurisdiction to impose the sentence, or that the sentence exceeds the maximum authorized by law, or that the sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy, may institute a proceeding under this subtitle to set aside or correct the sentence, provided the alleged error has not been previously and finally litigated or waived in the proceedings resulting in the conviction, or in any other proceeding that the petitioner has taken to secure relief from his conviction." Art. 27, § 645A

The Attorney General, frankly recognizing that in the past the Maryland courts have interpreted the Act so restrictively that many assertions of constitutional rights could not be heard under it, nevertheless submits that the courts of that state are in...