Davis 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 petitioner raised ten points below, which were discussed in an opinion by Judge Sodaro. The first contention was that the petitioner was convicted on evidence obtained as a result of an illegal search and seizure, and Judge Sodaro stated that the objection could not be raised in a post conviction proceeding. That statement would appear to be too broad in the light of Mapp v. Ohio, 367 U. S. 643, because a claim of a violation of procedural due process would seem to be open under Code (1963 Supp.), Art. 27, sec. 645A (a).

That same section adds a proviso, however, that “the alleged error has not been previously and finally litigated or waived in the proceedings resulting in the conviction * * In the instant case we heard and decided a direct appeal in Davis v. State, 225 Md. 45 . No question of illegal search was there raised, although the admissibility of certain bullets found in Davis’ pocket was challenged. We found no error. These bullets, together with a large amount of paper money and checks, later identified as belonging to the owner of the drug store who was robbed, were found on Davis when he was arrested and searched near the scene of the robbery.

Although the fact that Davis’ appeal was held prior to the decision in Mapp may have some relevancy (see Hall v. Warden, Maryland Penitentiary, 313 F. 2d 483 (C.A.4th), cert. denied, 374 U. S. 809 (1963)), failure to raise or press an objection