Midgett v. Warden, Maryland State Penitentiary

• Decision Date: 11 June 1963
• Docket Number: Civ. No. 11867.
• Citation: 217 F. Supp. 843
• Parties: Curtis Edward MIDGETT v. WARDEN, MARYLAND STATE PENITENTIARY.
• Court: U.S. District Court — District of Maryland

217 F. Supp. 843

Curtis Edward MIDGETT v. WARDEN, MARYLAND STATE PENITENTIARY.

Civ. No. 11867.

United States District Court D. Maryland.

June 11, 1963.

THOMSEN, Chief Judge.

This is a third petition for a writ of habeas corpus filed in this Court by Midgett. His first petition was denied because he had not exhausted his state remedies. His second petition was denied on April 27, 1961, partly for that reason and partly on the merits. A certificate of probable cause was denied by this Court, and on June 22, 1961 by Chief Judge Sobeloff of the Fourth Circuit.

Thereafter, Midgett filed a proceeding under the Uniform Post Conviction Procedure Act in the Criminal Court of Baltimore City, raising 25 points. That petition was dismissed by Judge Jones, who wrote an elaborate opinion, which was adopted by the Court of Appeals of Maryland when it denied Midgett's application for leave to appeal therefrom. Midgett v. Warden, 229 Md. 617, 182 A. 2d 52.

The present petition sets out seven "reasons presented" for granting the writ, a confusing "statement of the case", a four-page statement of "contentions" and a two-page statement in which eight "constitutional questions presented" are set out. It is difficult to tell exactly what points are being raised at this time and what is a matter of historical relation.

The clearest way to deal with these contentions is the way they were treated by Judge Jones, considering first the points based upon incidents before the first trial, then points arising out of the first trial, points based upon incidents before the second trial and finally points arising out of the second trial.

The following statement of the proceedings is taken from the Memorandum Order of Judge Sobeloff dated June 22, 1961.

"The factual circumstances leading up to Midgett's arrest on January 29, 1957, in Florida are rather involved, but are set out at length in Midgett v. State, 216 Md. 26, 139 A. 2d 209 (1958). After his arrest, * * * he was delivered to the Maryland authorities by the Florida police and returned to Maryland under a Governor's warrant on February 2, 1957. This action was taken under a grand jury indictment, January 27, 1957, No. 250, charging Midgett with armed robbery and assault. On February 14, 1957, the Maryland grand jury returned another true bill against Midgett, charging kidnapping, No. 446-1957. Midgett's trial began May 2, 1957, and resulted in verdicts of guilty on both charges. On appeal, however, both convictions were reversed and a new trial awarded. Midgett v. State, 216 Md. 26, 139 A.2d 209 (1958).

"During the interim a new indictment was filed against Midgett charging him with conspiracy to rob, No. 2120-1958. On March 9, 1959, Midgett attacked the kidnapping indictment, No. 446-1957, on the ground that it failed to allege sufficient supporting facts. The indictment was found defective and was quashed with leave to the State to re-indict before March 31, 1959. The new kidnapping indictment, No. 1157-1959, was apparently filed within the time limit. Midgett immediately attacked this indictment as `a forgery by the state,' and he requested the trial judge to summons any or all of the grand jurymen for an investigatory hearing. This request, which was in the form of a petition for habeas corpus to the trial judge, was denied and the state proceeded to trial. Midgett was found guilty of kidnapping, No. 1157-1959, assault, No. 250-1957, and conspiracy to rob, No. 2120-1958. He was sentenced to thirty years for kidnapping and five years for conspiracy to rob, these to run consecutively, and five years for assault to run concurrently with the others. This judgment was affirmed on appeal. Midgett v. State, 223 Md. 282, 164 A.2d 526 (1960). Certiorari was denied by the United States Supreme Court. Midgett v. Maryland, 365 U.S. 853 81 S.Ct. 819, 5 L.Ed.2d 817 (1961)."

In addition to the proceedings in this Court and the PCPA proceeding before Judge Jones, Midgett has filed at least five petitions for habeas corpus in the Baltimore City Court, each of which was denied.

(A) Points Based Upon Incidents Before the First Trial.

(1) In one or more prior proceedings Midgett has raised the point that the State improperly added another charge, kidnapping, after he was arrested in Florida and extradited to Maryland on charges of armed robbery and assault. Judge Sobeloff noted that fact without comment in his Memorandum Order of June 22, 1961. Judge Jones disposed of the point as follows:

"Petitioner questions the addition of another charge, i. e., kidnapping, after he was arrested in Florida and extradited to Maryland. This was entirely proper under Code (1957), Art. 41, section 41. This relates to an alleged irregularity in preliminary proceedings, which was not attacked on either appeal, and it is not subject to review in this proceeding. Art. 27, section 645A(a); Banks v. Warden, 220 Md. 652 151 A.2d 897; Rice v. Warden, 221 Md. 604."

In his present petition Midgett adds a new allegation — that he waived extradition on "the assurance of said Maryland detectives that the specified charges alleged in said Governor's warrant would be the only charges that petitioner would have to face and/or answer upon his return to Maryland State". If this allegation adds anything to the facts heretofore brought to the attention of the State Courts, this Court should not consider the point until the State Courts have had an opportunity to consider the new matter. If the allegation does not add anything to the previous contention, it was properly disposed of by Judge Jones and cannot serve as the basis for federal habeas corpus relief.

(2) Petitioner alleges that he was denied his right to a hearing before a magistrate, was denied his right to be confronted by the witnesses against him at such a hearing, and was denied his right to bail. He also alleges in the present petition, apparently for the first time, that a confession was obtained from him by threats that his wife would be charged, after he had been denied the right to call counsel. Judge Jones stated:

"The questions as to denial of a magistrate's hearing, denial of bail and denial of counsel after arrest are not properly raised in a Post Conviction Proceeding. Niblett v. Warden, 221 Md. 588 155 A.2d 659; Ward v. Warden, 222 Md. 595 158 A.2d 770; cert. denied 363 U.S. 816 80 S.Ct. 1254, 4 L.Ed. 2d 1156; Rayne v. Warden, 223 Md. 688 165 A.2d 474."

Except with respect to the allegedly coerced confession, Midgett has no grounds for relief at this time based upon the alleged denial of a magistrate's hearing, the alleged denial of bail or the alleged denial of counsel after arrest and before arraignment. Insofar as these allegations may be pertinent in connection with the use against him at his second trial of a coerced confession, they afford no ground for relief to petitioner in this Court at this time, since the question whether the confession should be considered to have been coerced because of these factors, plus the newly alleged threats with respect to his wife, has never been raised before a state court in a post conviction proceeding. In the interest of comity, this Court should require that the state courts have an opportunity to hear and dispose of the question raised by the present allegations of fact before this Court takes any action thereon.

(B) Points Arising Out of the First Trial.

Petitioner contends that Judge Warnken was guilty of "illegal procedure" at his first trial. Any relief based on this point must be denied because the conviction and sentence at the first trial were reversed on appeal, Midgett v. State, 216 Md. 26, 139 A.2d 209, so Midgett is not now serving a sentence imposed as a result of the first trial.

(C) Points Arising from Incidents Before the Second Trial.

Petitioner contends that he was denied a speedy trial on remand. This point was disposed of by Judge Jones as follows:

"The complaint that a speedy trial was denied is without merit. It is true that after the receipt of the Court of Appeals mandate from the first appeal on April 5, 1958, petitioner was not arraigned for the second trial until May 27, 1958, and the trial did not actually begin until June 15, 1959, but the record further discloses that from May 28, 1958 to June 15, 1959, petitioner initiated a series of motions and other actions which delayed the actual trial. He was given credit for this time and no prejudice resulted. His complaint as to the first three months appears to be as to the place of incarceration, i. e., the Maryland Penitentiary. However, this does not affect the regularity of the proceedings. Whitley v. Warden, 222 Md. 608 158 A.2d 905; nor was the issue of a speedy trial raised on appeal, Cully v. Warden, 218 Md. 639 145 A.2d 226."

A consideration of the various papers filed and considered by the...