Dailey v. Warden

Per Curiam. This is an application for leave to appeal from an order filed' on July 6, 1967, by Judge James K. Cullen, sitting in the Criminal Court of Baltimore, denying relief sought under the Uniform Post Conviction Procedure Act. ⁴²⁷ Applicant raised six contentions in his petition ; 1. He was denied the assistance of counsel at the time he made oral statements. 2. His oral statements were made after being confronted with evidence obtained through an illegal search and seizure. 3.

The evidence used in court was insufficient to support a verdict of guilty to a charge of burglary. 4. The judge at his trial was biased. 5. His indictment and trial were invalid because of the decision in Schowgurow v. State, 240 Md. 121 . 6. His court appointed counsel was incompetent in failing to properly prepare the appeal from applicant’s conviction and in persuading applicant to waive his rights under Schowgurow, supra.

As found by the lower court, applicant’s first contention has no merit. The Supreme Court ruling in Miranda v. Arizona, 384 U. S. 436 (1966) is not retroactive so as to cover applicant’s trial in 1964, Watson v. Warden, 2 Md. App. 134 . Escobedo v. Illinois, 378 U. S. 478 (1964) will also not afford applicant relief as there is no allegation nor any evidence that counsel was requested by applicant and denied by the police, see Curnyn v. Warden, 1 Md. App. 450 . The second contention, that the oral statements should have been suppressed since they were made after being confronted with evidence obtained as a result of an illegal search and seizure, was considered twice by the Court of Appeals of Maryland.

Dailey v. State, 234 Md. 325 ; Dailey v. State, 239 Md. 596 . 1 Both times it was held that although the arrest of applicant was illegal and the resulting search and seizure was unlawful, the statements made by applicant were freely and voluntarily given. Since Dailey v. State, 239 Md. 596 was an appeal from the conviction which is presently being contested in this petition, this issue has been “finally litigated” within the meaning of Maryland Code (1967 Repl. Vol.), Art. 27, § 645A (b) and thus cannot be raised again