Berman v. Warden of Maryland Penitentiary

Henderson, J., delivered the opinion of the Court. In this application for leave to appeal from a denial of post conviction relief, the applicant raises four questions that maybe restated as follows: (1) Was Judge Oppenheimer, in the court below, disqualified from hearing the application ? (2) Was the applicant entitled to be present when his application, presented by court-appointed counsel, was heard ? (3) Is the fact that there were numerous prior denials of writs of habeas corpus, but no appeals or applications for leave to appeal therefrom, a bar to the present petition under the Post Conviction Procedure Act ?

(4) Was the sentence of life imprisonment passed on September 28, 1928, in the applicant’s trial for murder, a nullity, because of lack of jurisdiction to enter it upon an invalid verdict, and a violation of due process ? 1. The alleged disqualification of Judge Oppenheimer is based upon the fact that before he was elevated to the Bench he was head of the Board of Correction during part of the time Berman was in the penitentiary, and upon the fact that Judge Oppenheimer at one time took an active interest in the Jewish Big Brothers League. Berman also alleges that he had some correspondence with Judge Oppenheimer in which the Judge was “unfriendly.” We find no merit in these contentions. It may be noted that at the hearing below counsel expressly withdrew ⁶⁴⁴ and disclaimed all charges of bias or disqualification against Judge Oppenheimer, made by their client.

We find nothing in the facts alleged to show bias or to require his disqualification. 2. We find nothing to require the presence of the applicant at the hearing below. That hearing was concerned only with a question of law, apart from one question of fact that was covered by stipulation and a matter of public record. Even in a murder trial we have held that an accused need not be present when legal arguments on motions for directed verdicts are heard.

Martin v. State, 228 Md. 311, 316 ; Brown v. State, 225 Md. 349, 351 . In Duckett v. Warden, 230 Md. 621, 626 , Chief Judge Brune, for the Court said: “If this Post Conviction case had been considered simply on the allegations of the petition, those allegations might well have been found insufficient and, if so, there would have been no occasion for the court to receive evidence or to order the attendance of the petitioner under Maryland Rule BK 44 d or e.” 3. Judge Oppenheimer expressed the view that relief was not available because prior applications for habeas corpus had not been appealed, and that the matter had thereby been “previously and finally litigated or waived,” as provided in Code (1962 Supp.), Art. 27, sec. 645 A (a), citing Plater v. Warden, 220 Md. 673 . See also McClain v. Warden, 220 Md. 666 and Tillett v. Warden, 220 Md. 677 .

It was stipulated that Berman had filed a number of applications for writs during the period from 1951 to 1958, when there was a right to seek leave to appeal from denials thereof. 1 All of Berman’s applications raised precisely the same point sought to be raised on the merits in the instant case. Berman, however, never elected to ask leave to appeal to this Court. In the Plater, McClain and Tillett cases, supra, an application for leave to appeal raising the same point had been previously denied by this Court. The instant case would seem to turn upon waiver, but coun ⁶⁴⁵ sel for the applicant strongly urge that there can be no waiver, in the light of Fay v. Noia, 372 U. S. 391 .

That case, of course, turned on the question whether failure to appeal a state conviction barred relief by way of habeas corpus in a federal court, not with the effect of prior applications upon subsequent relief through post conviction procedures, which would seem to depend entirely upon state policy. The Supreme Court expressly stated (p. 438) that “the federal habeas judge may in his discretion deny relief to an applicant who has deliberately bypassed the orderly procedure of the state courts and in so doing has forfeited his state court remedies.” There can be little doubt that Berman deliberately and knowingly forbore to appeal repeated denials of his petitions for writs of habeas corpus in order to prevent finality of adjudication as prescribed by the statute authorizing applications for leave to appeal. There was no question of “Russian Roulette” in this choice. But we leave the question open.

We prefer to rest our decision on the fourth question raised, rather than the third. Berman states in his application for leave to appeal that he does so “reluctantly,” and because the Federal Court of Appeals of the Fourth Circuit had directed him to “exhaust” his state remedy. With this decision on the merits we finally decide a point that has been decided, adversely to