Cornell v. State of Maryland

• Decision Date: 08 May 1975
• Docket Number: 73-215-K,Civ. No. 72-1220-K,73-495-K.
• Citation: 396 F. Supp. 1092
• Parties: James Gordon CORNELL #2426 v. STATE OF MARYLAND. James Gordon CORNELL #2426 v. DIRECTOR, PATUXENT INSTITUTION. James Gordon CORNELL v. Harold M. BOSLOW, M. D., etc., et al.
• Court: U.S. District Court — District of Maryland

396 F. Supp. 1092

James Gordon CORNELL #2426 v. STATE OF MARYLAND.

James Gordon CORNELL #2426 v. DIRECTOR, PATUXENT INSTITUTION. James Gordon CORNELL v. Harold M. BOSLOW, M. D., etc., et al.

Civ. Nos. 72-1220-K, 73-215-K, 73-495-K.

United States District Court, D. Maryland.

May 8, 1975.

John F. Fader, II, Towson, Md., for plaintiff.

Francis B. Burch, Atty. Gen. of Md., John P. Stafford, Jr., and Donald R. Stutman, Asst. Attys. Gen., for defendants.

FRANK A. KAUFMAN, District Judge.

Cornell, presently confined in the Patuxent Institution, seeks in these cases habeas corpus relief, monetary damages and "a transfer out of Patuxent" to a more conventional confinement institution of the Maryland Division of Correction.¹ Cornell was convicted of burglary on April 27, 1970 after a non-jury trial before Judge John E. Raine, Jr., sitting in the Circuit Court for Baltimore County, in which trial Cornell was represented by privately retained counsel. On that day, Judge Raine sentenced Cornell to a term of confinement of eighteen years. Subsequently, after conferring in chambers with Cornell's trial counsel, Judge Raine reduced Cornell's sentence from eighteen to eight years,² and referred him to the Patuxent Institution for examination as a possible defective delinquent. In that connection, it is to be noted that after Judge Raine found Cornell guilty on April 27, 1970, Cornell addressed the Court as follows (T. Tr. 61):

Well, your Honor, I'd like to go to Patuxent.

Cornell's conviction was affirmed on appeal by the Court of Special Appeals of Maryland in an unreported opinion authored by Judge Charles E. Moylan, Jr. on February 9, 1971. No further direct appellate review was sought by Cornell. On November 29, 1971, Judge Walter M. Jenifer, sitting in the Circuit Court of Baltimore County, denied Cornell's quest for post-conviction relief after having appointed counsel other than Cornell's trial attorney to represent Cornell and after conducting a two-day evidentiary hearing on April 26 and 27, 1971. Leave to appeal from that denial was itself denied on January 24, 1972 by the Court of Special Appeals of Maryland.

Cornell arrived at Patuxent on June 16, 1970, but now alleges that upon the advice of counsel, he refused to submit at Patuxent to a diagnostic examination for approximately twenty months. On February 1, 1972, Cornell did submit to such an examination by members of the Patuxent Diagnostic Staff. On February 22, 1972 that institution filed a Diagnostic Staff Report with the Circuit Court for Baltimore County in which report the opinion was expressed that Cornell met the definition of a defective delinquent as set forth in 3 Md.Ann.Code art. 31B, § 5 (1971 Repl. Vol.), and that therefore Cornell should be committed to Patuxent. On November 22, 1972, after a jury trial in the Circuit Court for Baltimore County, Judge John G. Turnbull presiding, Cornell was determined to be a defective delinquent. A motion for a new trial was subsequently denied by Judge Turnbull. Cornell's application for leave to appeal from the determination of defective delinquency was denied in a six-page unreported Opinion filed by the Court of Special Appeals of Maryland on February 27, 1973.

On February 15, 1972, Cornell filed a petition for habeas corpus relief in the Circuit Court for Montgomery County which, on April 26, 1972, was transferred by that Court to the Circuit Court for Baltimore County. On June 30, 1972, Judge Walter R. Haile sitting in that Court denied relief in a written Memorandum and Order.³

On February 17, 1972, Cornell apparently filed a habeas corpus petition in the Circuit Court for Baltimore County. On March 6, 1972, however, Cornell wrote to Chief Judge Lester L. Barrett of that Court asking that his said petition be withdrawn. Judge Barrett granted that request on the same day.

On March 7, 1972, Cornell filed a habeas corpus petition in the Baltimore City Court. Judge Joseph C. Howard sitting in that Court denied relief on September 22, 1972. Cornell's appeal from that decision was dismissed on November 3, 1972 by the Court of Special Appeals of Maryland.

Civil No. 72-1220-K

In Civil No. 72-1220-K, in which he seeks federal habeas corpus relief, Cornell has raised a number of contentions, but as his counsel has stated in a letter to this Court dated November 2, 1973, p. 5, "the gist of the argument in this case is the alleged ineffective representation given by" Cornell's trial counsel. Cornell, in this proceeding, both through his own pro se presentations and the presentations of his counsel appointed by this Court (the same counsel who represented him in his post-conviction proceeding before Judge Jenifer), has elaborated considerably upon the contentions he advanced before Judge Jenifer, as illustrated by the following dialogue between Cornell and his present counsel (PCPA Tr. 11-12):⁴

Q (By Mr. Fader) There are facets to your allegations of incompetency, but that is the sole ground, is that correct?

A Yes.

Q Different ways we allege that he was incompetent?

A Yes, sir.

Q Now, during my visits with you at Patuxent we have examined the whole case of the possible grounds for a post conviction relief, did we not?

A Yes, sir.

Q As a matter of fact I read off a checkoff list of some of the grounds that have been raised, did I not?

A Yes, sir.

Q Such as illegal arrest, illegal search and seizure, various other matters?

A Yes, sir.

Q Did I not?

A Yes, sir.

Q And you are satisfied that right now this is the only ground that we really have anything to proceed on?

A Yes, sir.

Q And there are no other grounds to be brought before the Court's attention today?

A Yes, sir.

In view of Cornell's having had his opportunity to raise before Judge Jenifer all of the detailed allegations he asserts herein, and his failure so to do, it might well be that in any future proceeding in a Maryland court, Cornell might find himself fully or partially blocked by 3 Md.Ann.Code art. 27, § 645A(c) (1971 Repl. Vol.) and Maryland Rule BK 48 (a) and the application of the doctrine that he is deemed to have waived his rights because of his failure to elaborate upon his allegations before Judge Jenifer, unless he is able to show "special circumstances" which excuse "his failure to make such allegations" in his first post-conviction proceeding. See Faulkner v. Director, 241 Md. 727, 217 A.2d 342 (1966); Sewell v. Warden, 235 Md. 615, 200 A.2d 648 (1964). However, since such elaborations in Civil No. 72-1220-K are peripheral to Cornell's claim of inadequacy of trial counsel and since exhaustion in a habeas corpus case "is not a jurisdictional concept but simply a flexible matter of comity", Jenkins v. Fitzberger, 440 F.2d 1188, 1189 (4th Cir. 1971), quoting from Williams v. Coiner, 392 F.2d 210, 213 n. 2 (4th Cir. 1968), this Court will consider and determine on the merits all of the allegations stated by Cornell in Civil No. 72-1220-K without requiring Cornell further to attempt to raise, pursue and exhaust those issues in another Maryland post-conviction proceeding.

Cornell was convicted, at least in large part, by the testimony of the owner of the home Cornell was accused of burglarizing, who testified that as he returned home he came upon a sole burglar and grappled with him. The victim identified Cornell as the burglar and so testified at Cornell's trial. The police, called by the victim, discovered, near the latter's house and apparently on the latter's property, a flashlight upon a battery of which Cornell's fingerprints were found.

Among Cornell's contentions is that false testimony was given at his trial by two police officers, one of whom was the investigating officer whose testimony was relevant in the light of the testimony of the victim, Adams, whose house was the one Cornell allegedly robbed. Adams testified that he (Adams) had not noticed that Cornell had had a flashlight while they were both in the house (T. Tr. 20). Officer Berg, the investigating officer first on the scene, testified at trial, while reading from a copy of the investigating report he had made at the time of his initial investigation, that Adams had then informed him that Adams observed a subject "with a flashlight" in Adams' house (T. Tr. 25). Cornell stresses that inconsistency. However, Adams did testify that Cornell had a flashlight when he and the burglar grappled outside of Adams' house, that the burglar dropped that flashlight and that it was recovered by the police. (T. Tr. 20, 22, 26-27). So there is little if any importance to the allegation of alleged improper testimony by the investigating officer.

Cornell further points out that he was taken into custody on the evening of February 12, 1970 and at that time the fingerprint comparison card which was entered into evidence at trial was made. Sergeant Krause, the second officer whose testimony Cornell attacks and who actually made the comparison between the fingerprint found on the flashlight battery and the fingerprint comparison card, testified at trial that he made that comparison at 10:10 a. m. on February 12, 1970 (T. Tr. 45). Since there was testimony that the normal procedure followed was that after the person was "mugged", his print card was placed on Sergeant Krause's desk for comparison (T. Tr. 35), and since apparently the print card bears indications that it was taken at 10 p. m. on February 12, 1970, it would appear that Sergeant Krause either misspoke and meant 10:10 p. m., not a. m., or that normal procedure was not followed. Cornell has apparently not specifically raised herein the allegation that there was anything improper in fingerprinting him after arrest. Such a contention would, of course, be meritless. Once Cornell was lawfully in custody, a fingerprint card taken of him could lawfully be introduced as evidence. United States v. Aloisio, 440 F.2d 705, 710-11 (7th Cir.), cert. denied sub nom. Bartoli v. United States, 404 U.S. 824, 92 S.Ct. 69, 30 L.Ed. 2d 51 (197...