Henderson v. Warden, Maryland Penitentiary, Civ. No. 16338.

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Writing for the CourtTHOMSEN
Citation248 F. Supp. 917
Docket NumberCiv. No. 16338.
Decision Date29 December 1965


Gerald M. Katz, Baltimore, Md. (court-appointed), for petitioner.

Thomas B. Finan, Atty. Gen. of Maryland, and John C. Cooper, III, Asst. Atty. Gen., Baltimore, Md., for respondent.

THOMSEN, Chief Judge.

Henderson's petition for a writ of habeas corpus, which challenges his conviction as a third offender under the Maryland narcotics laws,1 is based on three grounds:

(1) "That the indictment alleged two prior convictions for violation of the Narcotic laws, and this indictment was made known to the Jury to the petitioner's prejudice during his trial as a third offender when the indictment was read to the jury, and therefore in violation of his constitutional rights."

(2) Illegal arrest, and (3) Illegal search and seizure.

Counsel for Henderson and the Assistant Attorney General in charge of the case joined in requesting the Court to rule on the first ground at this time, reserving for future hearing the second and third grounds. The request was granted, testimony was taken on the first issue and the legal points have been fully argued.

At the hearing counsel for Henderson advanced two additional grounds, namely, (4) delay in appointing counsel, and (5) incompetency of counsel. Since neither of these grounds has ever been presented to the State Courts, this Court will not consider them until Henderson has exhausted his State remedies.

Henderson was indicted in July, 1958, for violation of the Maryland narcotics law. The indictment contained six counts. The first two charged respectively that Henderson had (1) possession and (2) control of a narcotic drug on May 4, 1958. The third and fourth counts each recited that he had been convicted of certain violations of the narcotics laws of the State of Maryland in the Criminal Court of Baltimore on April 20, 1953, and charged him respectively with (3) possession and (4) control of a narcotic drug on May 4, 1958. The fifth and sixth counts each recited that on February 2, 1948, Henderson had been found guilty in the Criminal Court of Baltimore of violation of the narcotics laws of the State of Maryland and that he had also, on April 20, 1953, been found guilty in that Court of violation of said narcotics laws, and charged him respectively with (5) possession and (6) control of a narcotic drug on May 4, 1958. He was found guilty generally and was sentenced as a third offender to 12 years in the Maryland Penitentiary from May 4, 1958.

His complaint under the first ground of his present petition is that the indictment was read in its entirety in the opening statement by the Assistant State's Attorney to the jury, who were thus informed of Henderson's prior convictions. This is not denied by the State. The competent and careful lawyer who prosecuted the case as Assistant State's Attorney testified that the procedure followed in Henderson's case was the procedure generally followed by the State's Attorney's office at the time of the trial.2 The Assistant State's Attorney telephoned defendant's counsel and asked for a stipulation of facts with respect to the prior convictions. In this case, as in nine out of ten cases at that time, defendant's counsel agreed to the stipulation, since it minimized the amount of time which would be devoted to establishing the prior convictions and was generally considered by defendants' counsel to be more favorable to defendants than requiring proof of prior convictions.3

At the trial Henderson was represented by counsel who discussed the case with him three or four times before the day of the trial. Henderson testified at the hearing in this Court that he had discussed the procedure with his counsel, that it did not seem right to him, but that he did not ask his attorney to do anything about it after his attorney had told him that it was the established procedure. No objection was made by either Henderson or his counsel to the reading of the indictment. Henderson took the stand on two occasions: first, out of the presence of the jury to contest the voluntariness of his confession; second, in his own defense for other purposes. The evidence shows that his prior convictions were brought out at those times. Extracts of Henderson's testimony at his trial were made available to this Court, although the testimony at the trial was not written up in full because Henderson and his attorney filed no motion for a new trial and took no appeal, evidently because the sentence had been substantially less than the possible maximum of 20 years.

Henderson relies on the case of Lane v. Warden, 320 F.2d 179 (1963), wherein it was decided that a similar Maryland conviction, in 1960, was rendered invalid because the reading to the jury of the allegations with respect to the defendant's prior convictions at the outset of the trial destroyed the impartiality of the jury and violated the requirement of due process. On May 19, 1964, after the Lane decision, Henderson filed a petition under the Maryland Post Conviction Procedure Act. Counsel was appointed to represent him, and two hearings were held before Judge Harris in the Criminal Court of Baltimore, at which testimony was taken. The points raised in that proceeding were similar to the points raised in the petition in this Court. The point now being considered — the reading of the indictment — was argued and briefed, but no testimony was offered on that point before Judge Harris, who, after consideration, filed a careful memorandum and order denying petitioner's first contention. Thereafter, Judge Harris filed a second memorandum and order denying petitioner's second and third contentions.

In a full opinion, after argument, the Court of Appeals of Maryland denied leave to appeal. Henderson v. Warden, 237 Md. 519, 206 A.2d 793 (1965). The entire opinion of the Court of Appeals dealing with the first ground should be read as a part of this opinion. It need not be physically incorporated herein. Briefly, the Court questioned the decision of the Fourth Circuit in Lane v. Warden, supra, because of (a) Judge Chesnut's opposite view, D.Md., 207 F. Supp. 780 (1962), (b) the opposite views of the Fifth Circuit in Breen v. Beto, 341 F.2d 96 (1965) (see also Reed v. Beto, 5 Cir., 343 F.2d 723 (1965)), (c) the doubt expressed by the Ninth Circuit in Pike v. Dickson, 323 F.2d 856, 860, n. 5 (1963); and (d) footnote 8 to the opinion in Michelson v. United States, 335 U.S. 469, at 475, 69 S.Ct. 213, 93 L.Ed. 168 (1948), where, the Maryland Court felt, the Supreme Court had qualified the rule referred to in the Lane opinion, 320 F.2d at 181.

The Maryland Court further said: "Even if we assume Lane to be correct on its holding on constitutional grounds, we think it is distinguishable and should be distinguished in the case now before us." The principal distinction made by the Maryland Court was that in Lane the accused had objected to the reading of the indictment in his case, whereas Henderson had entered into a stipulation with respect thereto. The Maryland Court concluded:

"We think that Henderson, by voluntarily and affirmatively agreeing for the record at the beginning of the trial that he had two prior narcotics convictions, as much as if he had initiated a character inquiry or taken the stand, threw the entire subject open and put himself in a position where he can not now claim that the holding of Lane is applicable to his case, or that there was constitutional infirmity which invalidated his conviction. See Beard v. State, 216 Md. 302, 140 A.2d 672."

The evidence at the hearing in this Court on the pending petition confirms the fact that Henderson and his counsel had discussed the matter and decided not to raise the point, but to enter into the proposed stipulation.

The State contends that even under the rule in Faye v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), petitioner should be held to have waived his right to raise the point that he was deprived of his constitutional rights by the reading of the indictment to the jury. It is true that Henderson and his counsel were faced with no such "grisly" choice as was involved in Faye v. Noia, see 372 U.S. at 440, 83 S.Ct. 822,4 they could have raised the point in the same way it was raised by Lane, see 320 F.2d at 180, or by objection at the trial.

The position taken by the Maryland Court, quoted above, with respect to waiver cannot be followed by this Court in a federal habeas corpus proceeding. Faye v. Noia, 372 U.S. at 426-435, 83 S.Ct. 822. This Court must follow the standards specified by the Supreme Court, as interpreted by the Fourth Circuit in such cases as Bowler v. Warden, 324 F.2d 202, 205 (1964). Applying those principles, this Court cannot find, under all the circumstances of this case, that Henderson voluntarily waived a known right or deliberately by-passed the orderly procedure of the State Courts.

This Court must, therefore, consider whether the decision in Lane v. Warden should be applied retroactively. In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), a habeas corpus case, after reviewing the earlier decisions, the Supreme Court said:

"Under our cases it appears * * that the effect of the subsequent ruling of invalidity on prior final judgments when collaterally attacked is subject to no set `principle of absolute retroactive invalidity' but depends upon a consideration of `particular relations * * * and particular conduct * * * of rights claimed to have become vested, of status, of prior determinations deemed to have finality'; and `of public policy in the light of the nature both of the statute and of its previous application.' Chicot County Drainage Dist. v. Baxter State Bank, supra, 308 U.S. 371 at 374 60 S.Ct. 317, 84 L.Ed. 329.
"That no distinction was drawn between civil

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