Mason v. Warden, Maryland Penitentiary, Civ. A. No. 13566.
| Citation | 208 F. Supp. 777 |
| Decision Date | 07 September 1962 |
| Docket Number | Civ. A. No. 13566. |
| Parties | Jerome MASON v. WARDEN MARYLAND PENITENTIARY. |
| Court | U.S. District Court — District of Maryland |
No counsel appearing — Not heard in court.
This is a second repetitive petition for habeas corpus by a Maryland State prisoner. The first petition was dismissed by Chief Judge Thomsen on January 25, 1962 on the ground that the petitioner had not exhausted his remedies under Maryland law by his failure to apply for appeal from an adverse decision against him on a post conviction hearing before Judge Cardin, Associate Judge of the Supreme Bench of Baltimore City. This post conviction hearing was dismissed by Judge Cardin on December 15, 1961. After Judge Thomsen's dismissal of his petition for habeas corpus in this court on January 25, 1962, Mason did apply to the Maryland Court of Appeals for leave to appeal from Judge Cardin's dismissal of December 15, 1961. This belated appeal was dismissed per curiam by the Maryland Court of Appeals on July 10, 1962 on the ground that it had not been filed within the time provided, that is within thirty days after the dismissal by Judge Cardin.
Mason was tried in the Criminal Court of Baltimore before Judge Carter on two indictments by the Grand Jury alleging the offenses of assault with intent to murder and simple assault. He was represented by counsel appointed by the court, Mr. J. R. Wilkins. At his election, as he had the right to make under the Maryland law, Mason was tried by Judge Carter without a jury. He was found guilty of both charges and, there apparently having been no motion for a new trial, was sentenced to imprisonment for ten years on the charge of assault with intent to murder, and two years on the charge of simple assault (upon different individuals) the latter sentence to run concurrently with the former. Mason, by counsel Mr. Donald P. Roman, took a direct appeal to the Maryland Court of Appeals. 225 Md. 74, 169 A.2d 445. The substantial point made on the appeal was the insufficiency of the evidence to warrant a conviction. This was fully considered and decided on the merits as appearing from the record in the case, by the Court of Appeals, and the judgment was affirmed. Mason did not seek certiorari from the Supreme Court of the United States; nor did he ask for certiorari from the adverse decision of the Maryland Court of Appeals dismissing his untimely appeal from the dismissal of his post conviction hearing by Judge Cardin.
Upon his post conviction hearing before Judge Cardin, Mason was represented by Mr. Rubin Gertz, appointed by Judge Cardin. Judge Cardin's opinion will be found in the Clerk's file in this case.
I have carefully considered the whole of Mason's second petition for habeas corpus filed here. A comparison of the grounds that he now asserts with those advanced for him by his counsel at the hearing before Judge Cardin show a substantial if not identical similarity one with the other.
While the petitioner alleged federal constitutional violation of Articles 4, 5, 6 and 14 of the Federal Constitution, these charges are merely bald conclusory allegations not substantiated or made specific by any verified facts as required by 28 U.S.C.A. § 2242.
After reading the petition, I entered a show cause order to the respondent which has been answered by Mr. Sweeney, Assistant Attorney General of Maryland, and the answer has been considered. The question presented is whether on the petition considered as a whole, there is sufficient warrant legally for holding a hearing of the petitioner in this court on his petition for habeas corpus. I conclude there is not. The reasons for this conclusion follow.
As heretofore noted, the petitioner did take a direct appeal to the Maryland Court of Appeals from his sentence by Judge Carter. The judgment was affirmed after full consideration of the facts in the case, a transcript of which apparently was before the court, and the court decided adversely to the appellant, represented by counsel, on the merits of the case, and on the only point submitted for consideration by the court in accordance with Maryland well established procedure. In 1958 the Maryland Legislature enacted for the first time what is called the Post Conviction Procedure Act, Md.Code of 1957 (1961 Supp.) Art. 27, § 645A et seq. The petitioner, also represented by counsel appointed by the court, filed a petition for hearing under that statute on which all the grounds for relief asserted by him were carefully considered and passed upon adversely as to their legal sufficiency by Judge Cardin. From this adverse ruling the petitioner did not seek an appeal, as he had the right to do under the statute, during the time allowed therefor by the Maryland rules of procedure. He did not seek certiorari from the Supreme Court as to the dismissal of his attempted appeal from Judge Cardin and did not seek to obtain review on certiorari from the adverse decision of the Maryland Court of Appeals on his direct appeal. The petitioner states no excuse whatever for his failure to timely appeal from Judge Cardin's dismissal.
On these facts it appears that the petitioner in this case has not exhausted his remedies provided by the Maryland law which is a prerequisite to a petition for habeas corpus in this court. 28 U.S.C.A. § 2254. An untimely attempt to appeal is legally equivalent to failure to appeal. Daniels v. Allen, Case No. 20 reported under the title of Brown v. Allen, 344 U.S. 443, 73 S.Ct. 437, 97 L.Ed. 469, and Whitley v. Steiner, 293 F.2d 895 (4th Cir.).
Not only has the petitioner failed to exhaust his State remedies but in addition thereto I think he has not affirmatively in his petition stated facts which would fairly call upon the State to further answer his petition and to require the holding of a hearing of the petitioner in person in this court. The function of habeas corpus is not to re-try the case against the petitioner on its merits. That was the duty of the State court in the first place. To re-try the case effectively on all the points now raised by the petitioner would seem probably to require the reproduction of many, if not all, of the witnesses and trial counsel who appeared in the State courts, and possibly other further lengthy examination and cross-examination. To the petitioner this doubtless seems of little consequence but in view of the large and recently increasing number of such petitions by Maryland State prisoners filed in this court, it becomes a matter of some real significance not only to the State authorities but to the other current dockets of the court itself.
On the petitioner's post conviction hearing he advanced nine separate points for the consideration of the hearing Judge. He now advances in his petition here, expressly or impliedly, substantially the same points as the nine presented to Judge Cardin. As the Maryland Court of Appeals had before it the whole of the defendant's trial transcript, it would seem that any and all of the nine points later presented to Judge Cardin could have been raised by proper assignments of error or contentions advanced in the brief of counsel for the appellant on his direct appeal which was affirmed by the Maryland Court of Appeals, 225 Md. 74, 169 A.2d 445. Apparently none of them were raised on the appeal with the exception of the contention that the evidence was not sufficient to warrant conviction. As they were not then advanced, as they could have been, they must be considered to have been waived or forfeited. And when they were presented on the post conviction hearing to Judge Cardin, they were severally held inadequate as having been waived, or intrinsically not substantiated by anything appearing to Judge Cardin. But, as we have seen, while there was an opportunity given by the Maryland Post Conviction Statute to appeal that decision, the petitioner failed to make a timely appeal (the decision having been on December 15, 1961 while the appeal was first noted on February 1, 1962). No excuse or explanation for the failure to take a timely appeal is now asserted in the petition here.
Under these circumstances I find that with one or two possible exceptions hereafter to be noted, the law in this Circuit is clear to the effect that claims now made must be considered to have been waived or forfeited. A petition for habeas corpus in this court by a Maryland State prisoner is a collateral proceeding only (for instance, see recent case in the Supreme Court of Hill v. United States, opinion by Mr. Justice Stewart, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417, January 22, 1962). The applicable law in such a situation was fully stated in the unanimous opinion (Judges Parker, Soper, Dobie) of the 4th Circuit by Chief Judge Parker in 1943 in the case of Sanderlin v. Smyth, 4 Cir., 138 F.2d 729. In short effect it is that complaints in habeas corpus petitions which could have been raised on a direct appeal but were not so raised, are considered to have been waived or forfeited, in the absence of unusual and exceptional circumstances which, considered as a whole, require federal court intervention in order to secure the State prisoner a substantially fair trial of his case in the State court. And this view was again announced by Chief Judge Parker, speaking for a majority of the court, in 1951 in the case of Daniels v. Allen, 4 Cir., 192 F.2d 763, although Judge Soper in that case dissented on the ground that he had found in the record exceptional circumstances which required re-consideration by the federal court. Nevertheless the conclusion of the majority in the 4th Circuit was affirmed in the majority opinion of the Supreme Court in Case No. 20 in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469.1
However, I note particularly that quite recently the precise matter here involved was given careful further consideration by the 4th Circuit in the opinion of Chief Judge Sobeloff in Whitley v. Steiner, 293...
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Bradley v. Davis
...denial of relief in a state post-conviction proceeding constitutes a failure to exhaust state remedies. See Mason v. Warden, Maryland Penitentiary, 208 F.Supp. 777, 779 (D.Md.1962). However, subsequent decisions by the Fourth Circuit and other courts have made it clear that the doctrine of ......