Brown v. Warden, Maryland Penitentiary

Per Curiam : The applicant here, Johnnie Brown, seeks leave to appeal from an order of Judge Rasin which dismissed his petition filed in the Circuit Court for Talbot County under the Uniform Post Conviction Procedure Act. After this Court reversed two earlier convictions, (Brown v. State, 220 Md. 29 , 150 A. 2d 895 (1959) and Brown v. State, 222 Md. 290 , 159 A. 2d 844 (1960)), the applicant was again found guilty of murdering a Salisbury city policeman and received the death penalty. That judgment was affirmed in Brown v. State, 225 Md. 349 , 170 A. 2d 300 (1961). Subsequently, Brown filed his initial petition for post conviction relief which the Circuit Court for Talbot County denied on August 7, 1962 and we refused to grant leave to appeal from that determination.

Brown v. Warden, 230 Md. 629 , 186 A. 2d 595 (1962), cert. denied, 372 U. S. 960 (1963). When these efforts in the Maryland courts did not bear fruit, Brown engaged in extensive but equally futile legal maneuvers in the federal courts. 1 Thereafter, on March 17, 1972, the applicant filed his second petition under the Uniform Post Conviction Procedure Act and subtitle BK of the Maryland Rules alleging in his own words: “1. Denied right to testify in own behalf. 2. Inadequate representation. 3.

Violation of ‘exclusionary rule’, by court. 4. Deputy Sheriff never presented in court. 5. Illegal separation of Jury. 6. Denied right to Motion for New Trial Hearing. 7.

Improper remarks to Jury.” ¹⁹⁸ Judge Rasin dismissed this petition after concluding that “Under the provisions of Maryland Rule BK48, Brown’s current contentions, even if not previously raised, come too late [and] there is no allegation by Brown that his failure to raise the contentions he now raises should be excused because of special circumstances.” Rule BK48 a specifies: “An allegation of error shall be deemed to be waived when a petitioner could have made, but intelligently and knowingly failed to make, such allegation before trial, at trial, on direct appeal (whether or not the petitioner actually took such an appeal), in any habeas corpus or coram nobis proceeding actually instituted by the petitioner, in a prior petition under the Uniform Post Conviction Procedure Act, or in any other proceeding actually instituted by said petitioner, unless the failure to make such allegation shall be excused because of special circumstances. The burden of proving the existence of such special circumstances shall be upon the petitioner.” Subsection b of this rule provides there shall be a rebuttable presumption that a petitioner intelligently and knowingly failed to make an allegation not made on direct appeal or in a prior post conviction procedure petition. When the applicant received notification of the order of dismissal, he promptly filed a petition requesting permission to show the existence of special circumstances which, he argued, would