Bauerlien v. Warden of Maryland Penitentiary

Hammond, J., delivered the opinion of the Court. The applicant for leave to appeal made a number of general allegations below, such as denial of equal protection of the law and of other state and federal constitutional rights, and of the lack of jurisdiction, without setting out any supporting fact, and these allegations offer him no basis for relief. Duff v. Warden, 234 Md. 646, 648 . Counsel for the applicant concentrated on only one point at the hearing before Judge Boylan — that the State had not furnished the applicant a transcript of the trial at which he was convicted of the murder of his wife, for use in the preparation and hearing of his post conviction proceeding.

Nevertheless Judge Boylan considered and disposed of various other grounds for relief on which the applicant put reliance in his petition. He found, contrary to the applicant’s contentions: (a) that the jury was legally constituted; (b) that the applicant’s original counsel was able and diligent, rather than incompetent as applicant had claimed; and (c) that the applicant’s lawyer had advised him of his right to take an appeal but had also advised him he had no grounds that would warrant taking the appeal, and that, in effect, applicant had acquiesced. We see no reason, on the record to disturb these findings and conclusions of Judge Boylan. The applicant further complains that he was not sent to a mental institution before his trial for a determination of his sanity.

It would appear that no question of sanity was raised before or at trial and a matter of preliminary procedure cannot be raised on post conviction when it was not raised prior to trial. Niblett v. Warden, 221 Md. 588 . ³⁴⁸ There remain to be considered but two significant points raised by the applicant. The first is that he is entitled to release, or a new trial, because of the failure to furnish the transcript of his original trial. We have said that such a transcript need not be furnished unless the applicant for post conviction relief shows why it is necessary for his use, and there has been no such showing here.

Ingram v. Warden, 221 Md. 597 , and Truesdale v. Warden, 221 Md. 617 . The