Byrd v. Warden of Maryland Penitentiary

Hammond, J., delivered the opinion of the Court. This is the first application for leave to appeal under the Post Conviction Procedure Act (Code, 1958 Supp., Art. 27, Sections 645A to 645J) that has reached this Court. In 1952 applicant was sentenced to life imprisonment by ⁶⁸² Judge Woodward of the Circuit Court for Montgomery County after conviction of assault with intent to rape. Twice he has unsuccessfully sought leave to appeal from a denial of the writ of habeas corpus.

Byrd v. Warden, 210 Md. 662 ; Byrd v. Warden, 216 Md. 656 . On July 16, 1958, Byrd filed a petition seeking relief under the Post Conviction Procedure Act. The affidavit to the petition set forth that he was a pauper and in the petition he prayed that the court file his petition “under the forma pauperis laws of Maryland”. Five days after the petition was filed, the State moved to dismiss it, and nine days later, Judge Anderson granted the motion.

The Post Conviction Procedure Act provides in Sec. 645E that if the petition alleges that the petitioner “is unable to pay the costs of the proceeding or to employ counsel” and the court is satisfied as to the truth of the allegation, it “shall order that the petitioner proceed as an indigent person, and appoint counsel for him.” The lower court did not appoint counsel, deciding from the pleadings before him that all of the matters on which the petitioner relied had been presented, and decided adversely to him, in the habeas corpus cases. We read the statute as requiring counsel to be appointed in every case in which the court is satisfied