Sewell v. Warden of Md. Penitentiary
Decision Date | 29 May 1964 |
Docket Number | No. 87,87 |
Citation | 200 A.2d 648,235 Md. 615 |
Parties | Robert E. SEWELL v. WARDEN OF the MARYLAND PENITENTIARY. Post Conviction |
Court | Maryland Court of Appeals |
Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.
In this application for leave to appeal from a denial of post conviction relief, the petitioner was convicted of first degree murder on March 13, 1962, before Judges Schnauffer and Shure and a jury, and sentenced to life imprisonment. He was represented by court-appointed counsel, but took no appeal. In October, 1962, a petition for post conviction relief was denied by Judge Morgan Harris, after a hearing at which the petitioner was represented by court-appointed counsel. There was no application for leave to appeal. On January 2, 1963, the petitioner filed a habeas corpus proceeding in the Federal District Court before Chief Judge Thomsen. Relief was denied on the ground that the petitioner had not exhausted his State remedies.
On August 26, 1963, a second State post conviction proceeding was instituted and came on for hearing before Judge Anderson. Counsel was appointed and a hearing held, at which the petitioner was present, despite the fact that the State's Attorney moved to dismiss on the ground that no new matter was presented. It appears that no order was passed by Judge Anderson as a result of the hearing. Nevertheless the petitioner, in proper person, applied to this Court on August 29, 1963, for leave to appeal from what he termed a denial of post conviction relief.
In a letter filed in the record Judge Anderson said:
We think Judge Anderson erred primarily in failing to grant the State's motion to dismiss. There is nothing in the present petition to indicate that it includes any contention not brought forward in the first petition. It is plainly stated in Code (1963 Supp.) Art. 27, sec. 645H that See also Rule BK48; Lloyd v. Warden, 233 Md. 644, 645, 197 A.2d 139; Smallwood v. Warden, 231 Md. 652, 653, 191 A.2d 244; Snyder v. Warden, 227 Md. 644, 175 A.2d 578, cert. den. 368 U.S. 1001, 82 S.Ct. 632, 7 L.Ed.2d 540. Even if there had been additional contentions, there was no showing that they could not have been raised in the first petition. Rule BK46 a provides that applications for leave to appeal from denials of post conviction relief must be filed within thirty days from the passage of the order appealed from.
Since there was no order filed in the court below, we should, perhaps, dismiss the application as premature. Cumberland v. Warden, 225 Md. 636, 171 A.2d 709. However, since this would merely prolong the case without serving any useful purpose, we are constrained to treat Judge Anderson's action in the same way as it was treated by the petitioner, as a denial of post conviction relief, and affirm that denial. We find nothing in the statute to authorize a trial judge to grant a belated appeal from the post conviction action of one of his colleagues. An application for leave to appeal must be addressed to this Court under sec. 645-I. We have held that such an application should be denied by this Court if not filed within the time...
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Shipp, In re
...770, indicates that states must provide the post-conviction remedies required of the federal courts (Sewell v. Warden of Maryland Penitentiary (1964) 235 Md. 615, 200 A.2d 648, 649; Anderson v. Gladden (1963) 234 Or. 614, 383 P.2d 986, 993 (concurring opinion)).3 See Mahurin v. Nash (1963) ......
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Taylor v. State
...attempted, but thwarted by the action of State officials,' " Wilson , 284 Md. at 672, 399 A.2d at 260 (quoting Sewell v. Warden , 235 Md. 615, 618, 200 A.2d 648, 649 (1964) ) (the Court granted a belated direct appeal from a post-conviction on issues not raised on direct appeal because the ......
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Wilson v. State
...allowed are those in which a timely direct appeal was attempted, but thwarted by the action of State officials." Sewell v. Warden, 235 Md. 615, 618, 200 A.2d 648, 649 (1964) and cases therein cited. But it is particularly significant in the frame of reference of the case now before us that ......
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State v. Brown
...there was no effort to take an appeal, and hence that there was no authority in the courts to waive the time limitation. Cf. Sewell v. Warden, Md., 200 A.2d 648, and cases But if we assume, without deciding, that the petitioner might be entitled to a belated appeal under some circumstances,......