Lane v. Warden, Maryland Penitentiary

• Decision Date: 14 August 1962
• Docket Number: Civ. A. No. 13820.
• Citation: 207 F. Supp. 780
• Parties: Richard LANE v. WARDEN, MARYLAND PENITENTIARY.
• Court: U.S. District Court — District of Maryland

207 F. Supp. 780

Richard LANE v. WARDEN, MARYLAND PENITENTIARY.

Civ. A. No. 13820.

United States District Court D. Maryland, Civil Division.

August 14, 1962.

Alva P. Weaver, III, Lord, Whip, Coughlan & Green, court appointed, Baltimore, Md., for petitioner.

Thomas B. Finan, Atty. Gen., of Maryland, Robt. F. Sweeney, Asst. Atty. Gen., Baltimore, Md., for respondent.

CHESNUT, District Judge.

This is a petition for habeas corpus by a Maryland State prisoner filed in this court on May 21, 1962. He was indicted by the Grand Jury of Baltimore City in three separate indictments for violation of the State narcotic laws. He was tried in the Criminal Court of Baltimore before Judge Joseph L. Carter and a jury, and was found guilty by the jury in each of the three indictments. Each indictment contained a number of separate grounds, two of which in each case charged not only the current offense but two prior offenses. The defendant was therefore tried as a third offender and, in accordance with the Maryland statute for a third offender, was sentenced by Judge Carter to 15 years in each of the three cases, the sentences to run concurrently. He filed a motion for a new trial which was overruled. He then took a direct appeal to the Maryland Court of Appeals which was considered at length by the Court in an opinion by Judge Prescott, and the judgment was affirmed, 226 Md. 81, 172 A.2d 400. He was represented at the trial and also on the appeal by counsel appointed by the court.

On reading the petition for habeas corpus I passed an order requiring the respondent to show cause why it should not be granted, and in due course the answer thereto has been filed and can be found in the file in the case. The point is made in the answer that the petitioner had not exhausted his remedies under the Maryland statute because he had not taken a post conviction proceeding under the Maryland statute (Md.Code of 1957, 1961 Supp. Art. 27, § 645A et seq.).

I then appointed counsel to represent the petitioner at the hearing to be held on his petition in this court. The appointed counsel, Alva P. Weaver, Esq., a competent practicing attorney in Baltimore City now associated with the law firm of Lord, Whip, Coughlan & Green; and in due course the case was set for hearing and has now been heard, the petitioner being present in person and represented by his appointed counsel. At the hearing the petitioner submitted no evidence on his behalf either by himself or others, but submitted the case for decision by the court on the petition and argument of counsel. After hearing extended argument of counsel, I have concluded that the petition for habeas corpus should be and is hereby dismissed. My reasons for this conclusion are as follows:

At the extended hearing held here counsel for the petitioner, in the latter's presence, made two points in support of the legal argument which he submitted after careful and extended investigation of the applicable law. These two points were (1) that the trial judge, and also the Maryland Court of Appeals in affirming the conviction, erred substantially in the overruling of the motion for suppression of evidence and the admission of evidence obtained by an illegal search and seizure. It appears from the extended opinion of Judge Prescott for the Maryland Court of Appeals in the case, that each of the nine points submitted on the appeal on behalf of the appellant were separately considered and all found to be without legal merit. One of the points now relied upon here is related to the ruling of the trial judge and the opinion of the Maryland Court of Appeals with regard to the point as to the suppression of evidence and the admission of testimony as to search and seizure. This was point No. 5 specifically dealt with in the opinion of Judge Prescott. As to this, I think it is sufficient to say succinctly that I find no proper basis for contending that the decision of the trial court and the affirmance by the Court of Appeals constituted any violation of the due process clause in the federal 14th Amendment. The reasoning of Judge Prescott is, I think, quite clear and conclusive on that point as within the well established Maryland criminal law and procedure. The decision was made on the basis of consideration and weighing an appraisal of conflicting evidence in the case and, as pointed out in Judge Prescott's opinion, there was ample evidence in the case to warrant the conclusion that the arrest and seizure were not illegal and the results thereof included in the record before the court.

In the oral argument here counsel for the petitioner also urged that this court should consider the complaint that the prosecuting attorney made improper and prejudicial comments to the jury; but I think this was adequately and correctly disposed of in Judge Prescott's opinion. See Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469.

It is doubtful whether the failure of the petitioner to apply for a post conviction hearing would in these circumstances constitute sufficient ground for re-consideration under a post conviction hearing. Section 645A(a) provides among other things that as to the scope of the hearing on post conviction it is not within the province of the post conviction court to consider matters which have previously been fully and finally litigated in the prior Maryland proceedings. It is of course now quite clear under the applicable federal habeas corpus statute that in habeas corpus in this court a Maryland State prisoner is not entitled to call upon the federal court to intervene in his case unless he has first established (1) that he has exhausted his available remedies (28 U. S.C.A. § 2254) or (2) that his conviction and imprisonment violates some provision of the federal 14th Amendment. Therefore, assuming that the post conviction hearing is not a necessary requisite to the jurisdiction here, I pass to a consideration of the second point urged at length in argument by appointed counsel, that is, the final decision of the Maryland Court (the Supreme Court of the United States having denied certiorari when applied for by the petitioner) presents an alleged violation of a federal constitutional point.

The specific point here relied on is the contention that the defendant in the State court did not have a fair and impartial hearing in the trial of his case before a jury because at the outset of the case the indictment which charged a current violation also contained a charge that the current offense constituted a third offense under the Maryland narcotic laws (Md.Code, Art. 27, §§ 277, 300). It is said that ipso facto the reading of such a charge to the jury at the beginning of a case necessarily so prejudiced the jury against the defendant that it precluded the possibility of a fair trial.

This contention is not new in Maryland criminal law and procedure because it has previously been fully considered and passed upon by the Maryland Court of Appeals and has been (until January 1, 1962) the established rule and procedure in this State, the final decision of the Maryland Court of Appeals in this case having been in July 1961 (226 Md. 81, 172 A.2d 400, cert. den. Feb. 19, 1962, 368 U.S. 993, 82 S.Ct. 611, 7 L.Ed.2d 529). It is not disputed by counsel here that the Maryland Court has repeatedly decided the present contention adversely; nor is there any claimed uncertainty or ambiguity with respect to the several prior decisions of that court. That being so, I think it must be held here that the point now contended for would not be open for review under the Maryland post conviction procedure. I come therefore directly to the contention that these decisions of the Maryland Court of Appeals are contrary to the federal 14th Amendment requiring due process.

The procedure that was followed and approved in this case has been in accordance with the established Maryland criminal law and procedure since at least 1878 when it was first very carefully examined and approved by the Maryland Court of Appeals in an excellent opinion, and the reasoning given therefor, by Chief Judge Alvey who, by general reputation and tradition is well known to Maryland lawyers and judges to have been an outstanding Maryland appellate judge of his generation....