Boblit v. Warden, Maryland Penitentiary

• Decision Date: 26 October 1972
• Docket Number: Civ. A. No. 20998.
• Parties: Charles D. BOBLIT, 5987, Petitioner, v. WARDEN, MARYLAND PENITENTIARY, Respondent.
• Court: U.S. District Court — District of Maryland

350 F. Supp. 768

Charles D. BOBLIT, 5987, Petitioner, v. WARDEN, MARYLAND PENITENTIARY, Respondent.

Civ. A. No. 20998.

United States District Court, D. Maryland.

October 26, 1972.

Charles D. Boblit, pro se.

Francis B. Burch, Atty. Gen. of Md. and Alfred J. O'Ferrall, III, Asst. Atty. Gen., Baltimore, Md., for respondent.

WATKINS, District Judge.

OPINION AND ORDER

Petitioner, presently incarcerated in the Maryland Penitentiary, seeks habeas corpus relief in this Court. On March 2, 1959, petitioner was tried in the Circuit Court for Anne Arundel County on an indictment charging first degree murder; thereafter he was found guilty by Judge Benjamin Michaelson, sitting without a jury. Petitioner was sentenced to death, and on September 24, 1959, his conviction was affirmed by the Maryland Court of Appeals. Boblit v. State, 220 Md. 454, 154 A.2d 434 (1959). On November 20, 1959, petitioner filed for relief under the Maryland Post Conviction Procedure Act alleging incompetency of counsel, and on November 27, 1959, Judge O. Bowie Duckett denied the petition, with no application for leave to appeal being taken by Boblit. Petitioner's last petition for State Post Conviction relief was filed on July 14, 1965, in which he raised various issues and among them are those for which he now seeks relief in this Court. Judge Ridgely P. Melvin denied the petition in an unpublished Memorandum Opinion and Order filed on February 3, 1959. Finally, on June 2, 1969, the Maryland Court of Appeals in Boblit v. Warden, 254 Md. 36, 253 A.2d 525 (1969), denied petitioner's application for leave to appeal:

"PER CURIAM:

The application of Charles D. Boblit for leave to appeal from denial of Post Conviction relief by Judge Ridgely P. Melvin, Jr., on February 3, 1969 is denied for the substantive reasons (as distinguished from reasons based on waiver or for failure to have raised the point at trial) set forth by Judge Melvin in his opinion denying relief.

Application denied."

In this petition Boblit raises three issues (literal transcription where quoted):

1. "Illegal arrest and detention" in that "the police were acting on mere suspicion from an anonymous tip. Suspicion does not constitute probable cause."

2. "Failure to advise petitioner of his right to remain silent, or to the right to counsel" in that "the police did not tell petitioner he was entitled to an attorney or that he didn't have to say anything".

3. "State's attorney willfully withheld information from proper authorities of Sprin Grove State Hospital" in that "the State's Attorney refused to submit to the authorities of Spring Grove State Hospital, information by which a. coplete evaluation of his mental state was at time of the crime"

The basic facts of the crime, except as to which of the two robbers, Boblit or Brady,¹ did the actual killing of the victim, are not in dispute and are best summarized by the Maryland Court of Appeals in Boblit v. State, 220 Md. 454, 154 A.2d 434 (1959):

"It is conceded that Brady and Boblit lay in wait for the victim, William Brooks, placing a log across his private driveway, in order to obtain possession of his car and money. Boblit was armed with a shotgun and Brady with a pistol. When Brooks got out of his car, Boblit struck him in the head with the barrel of the shotgun. They placed Brooks in the car, and after driving a certain distance, they carried Brooks into the woods, where one of them throttled him with Boblit's shirt. Each claimed that the other had actually strangled Mr. Brooks. They concealed the body and divided the contents of Brooks' pocketbook containing some $250. They abandoned the car near Lynchburg, Virginia. Boblit went home, Brady fled to Florida."

As to the circumstances surrounding the arrest, detention, and withholding of information, petitioner has set out no facts to indicate what he contends to be unlawful other than what is quoted above. Under these circumstances, this Court could properly summarily dismiss these issues since they are merely "bald assertionss", conclusory in form and unsupported by facts. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1962); 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.2d 905 (4 Cir. 1966), cert. denied, 385 U.S. 905, 87 S.Ct. 216, 17 L.Ed.2d 135 (1966), discussing Coleman v. Peyton, 340 F.2d 603 (4 Cir. 1965).

Moreover, petitioner's first claim, that he was illegally arrested and detained, is insufficient grounds for collateral relief from a conviction unless the arrest in some way deprived him of a fair trial, a claim he has not made in this Court. Brooks v. Smith, 429 F.2d 1281 (5 Cir. 1970); Abraham v. Wainwright, 407 F.2d 826 (5 Cir. 1969); Hernandez v. Schneckloth, 425 F.2d 89 (9 Cir. 1970); Hachey v. Maine, 453 F.2d 369 (1 Cir. 1972); Freeman v. Page, 443 F.2d 493 (10 Cir. 1971), cert. denied, 404 U.S. 1001, 92 S.Ct. 569, 30 L.Ed.2d 554 (1971). See Vance v. North Carolina, 432 F.2d 984 (4 Cir. 1970); Brewer v. Peyton, 431 F.2d 1371 (4 Cir. 1970), cert. denied, Brewer v. Cox, 401 U.S. 994, 91 S.Ct. 1239, 28 L.Ed.2d 533 (1971).

Similarly, petitioner's second claim, that he was not advised of his right to counsel or to remain silent, even if true, would not be cognizable in an habeas corpus petition without at least an allegation of prejudice. See Culombe v. Connecticut, 367 U.S. 568, 600, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). Therefore, for these additional reasons, petitioner's first and second claims are again dismissible.

However, in response to a show cause order, the respondent has submitted to this Court:

1. Petitioner's trial transcript;

2. Petitioner's first petition under Maryland's Post Conviction procedure;

3. The Memorandum and Order denying the first petition;

4. Petitioner's second petition for Post Conviction relief and petitioner's memorandum in support of the second petition;

5. The Memorandum and Order denying this second, and last, petition;

6. Records of Spring Grove State Hospital; and

7. The transcript of the last Post Conviction proceeding.

This Court has examined the above record and finds as a fact and concludes as a matter of law that the petitioner received a full and fair hearing covering the issues raised in the instant petition and that the findings of fact and conclusions of law are correct and are amply supported by the comprehensive record, not only making it unnecessary to have a plenary hearing but also, for the reasons as hereinafter stated, justifying the dismissal of this petition.² Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Moorer v. South Carolina, 347 F.2d 502 (4 Cir. 1965); United States ex rel. Fein v. Deegan, 410 F.2d 13 (2 Cir. 1969), cert. denied, 395 U.S. 935, 89 S.Ct. 1997, 23 L.Ed.2d 450 (1969); Piche v. Rhay, 422 F.2d 1309 (9 Cir. 1970); Younger v. Cox, 323 F.Supp. 412 (W.D.Va.1971); Bryant v. Cox, 312 F.Supp. 218 (W.D. Va.1970).³

Aside from petitioner's third claim, the Court is of the opinion, giving liberal construction to petitioner's claims, Coleman v. Peyton, 362 F.2d 905 (4 Cir. 1966), cert. denied, 385 U.S. 905, 87 S.Ct. 216, 17 L.Ed.2d 135 (1966), discussing Coleman v. Peyton, 340 F.2d 603 (4 Cir. 1965), that the first two claims are being asserted in order to have petitioner's confession adjudicated involuntary although this position is nowhere alleged in the petition as submitted to this Court for consideration, nor has it been dealt with in any state court proceeding. Accordingly, the voluntariness of the confession will be considered on the merits, with the other allegations listed above, notwithstanding petitioner's failure to exhaust his state remedies on this issue.

Since petitioner's conviction was in 1959, the law as to voluntariness of confessions must be determined as of that date. Any use of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) or Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) is foreclosed by Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) wherein Escobedo and Miranda were not accorded retroactive application. As to what is the case law on confessions alleged to have been coerced, prior to the Escobedo and Miranda cases, the Supreme Court in Johnson stated (at 730, 86 S.Ct. at 1779):

"Our case law on coerced confessions is available for persons whose trials have already been completed, providing of course that the procedural prerequisites for direct or collateral attack are met. See Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L. Ed. 837 (1963). Prisoners may invoke a substantive test of voluntariness which, because of the persistence of abusive practices, has become increasingly meticulous through the years. See Reck v. Pate, 367 U.S. 433, 81 S. Ct. 1541, 6 L.Ed.2d 948 (1961). That test now takes specific account of the failure to advise the accused of his privilege against self-incrimination or to allow him access to outside assistance. See Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959). Prisoners are also entitled to present evidence anew on this aspect of the voluntariness of their confessions if a full and fair hearing has not already been afforded them. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L. Ed.2d 770 (1963). Thus while Escobedo and Miranda provide important new safeguards against the use of unreliable statements at trial, the nonretroactivity of these decisions will not preclude persons whose trials have already been completed from invoking the same safeguards as part of an involuntariness

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