Diggs v. Warden, Md. Penitentiary

• Decision Date: 21 January 1960
• Docket Number: No. 43,43
• Citation: 221 Md. 624,157 A.2d 453
• Parties: Bernard Sonny DIGGS (Alias) James Green v. WARDEN, MARYLAND PENITENTIARY. Post Conviction Application
• Court: Maryland Court of Appeals

Page 624

221 Md. 624

157 A.2d 453

Bernard Sonny DIGGS (Alias) James Green v. WARDEN, MARYLAND PENITENTIARY.

Post Conviction Application No. 43.

Court of Appeals of Maryland.

Jan. 21, 1960.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

PRESCOTT, Judge.

This is an application for leave to appeal under the Uniform Post Conviction Procedure Act, Code Supp.1959, art. 27, § 645A et seq.

Applicant's petition was denied by Judge Cullen, sitting in the Criminal Court of Baltimore, on July 2, 1959. He was given a hearing in the matter, and counsel was appointed to represent him in the proceedings.

The applicant was indicted on a charge of assault with intent to rob with a deadly weapon and he was convicted on April 9, 1956, by Judge Joseph L. Carter, and thereafter sentenced to twenty (20) years in the Maryland Penitentiary. No motion for new trial was requested, nor was any appeal taken.

He raises the following contentions for relief under the Post Conviction Procedure Act:

1. Has new evidence, facts and oral testimony that he is innocent.

2. Evidence produced at his trial was insufficient to convict.

3. Police framed him and falsely accused him of said charge.

4. Was, in effect, denied the right to appeal as a result of a misunderstanding between him and his court appointed attorney viz., applicant's attorney informed applicant prior to the trial that in the event applicant was convicted, an appeal would be taken.

5. Case was improperly conducted by applicant's State appointed lawyer, who failed to call witnesses and to note an appeal, and applicant was not advised of his right to have an appeal noted.

As to the first and second contentions, this Court has held that they are not available in collateral proceedings. It was stated in Ricail v. Warden, 210 Md. 664, 123 A.2d 908, as follows:

'Petitioner cannot make use of habeas corpus to offer evidence of an alibi or other proof of innocence. Buffington v. Warden, 201 Md. 642, 92 A.2d 450. In Rountree v. Wright, 189 Md. 292, 55 A.2d 847, where one of petitioner's contentions was that he had newly discovered evidence that he did not commit the crime of which he was accused, it was stated that the question of guilt or innocence and the sufficiency of evidence to convict cannot be retried on habeas corpus. Medley v. Warden, 207 Md. 634, 115 A.2d 287; Martucci v. Warden, 202 Md. 648, 96 A.2d 490. Petitioner here is merely attempting to have habeas corpus procedure serve as an appeal or as a motion for a new trial and this he cannot do. Buffington v. Warden, supra.'

The...