Dixon v. State

ROBERT M. BELL, Judge. The Maryland Post Conviction Procedure Act, Maryland Code Ann., Art. 27, § 645A(a)(2), in pertinent part, provides: A person may not file more than 2 petitions, arising out of each trial, for relief under this subtitle. This language is clear and unambiguous. It is unequivocal in its proscription; there is not even a hint that there may be any exception to the proscription.

The question presented by this application for leave to appeal is whether Vance Dixon, the applicant, has run afoul of this two petition limit. Applicant was convicted, on June 5, 1986, by a Baltimore City jury of attempted murder in the second degree, unlawfully carrying a handgun, and use of a handgun in the commission of a crime of violence and subsequently sentenced therefor. He did not appeal those judgments. Applicant’s first petition seeking post conviction relief was filed on November 14, 1986.

In it, he alleged that a direct appeal was not filed because of miscommunication and confusion between the Public Defender’s office and his counsel of choice over who would be representing the applicant. He requested permission to file a belated direct appeal. Although that request was granted by an order dated April 30, 1987, no appeal was filed within the time frame prescribed by the court. 1 Therefore, the applicant filed a second post conviction petition on July 14, 1987. In that petition, focusing upon counsel’s failure to file the belated direct appeal in a timely manner, applicant alleged ineffective assistance of counsel.

Once again, the only relief sought was the right to file a belated direct appeal. He did note in that petition, however, that he did “not intend, by the filing of this petition, to waive any rights he may have for post conviction relief from his conviction and ³⁵⁰ sentence.” Notwithstanding, neither that petition, nor his first one, contained any allegation of error concerning the conduct of the trial or that would otherwise entitle him to relief other than the right to file a belated direct appeal. The court once again granted applicant the right to file a belated direct appeal. An appeal eventually having been noted to this Court, we issued our opinion in the case on May 20, 1988.

See Dixon v. State, No. 1351, September Term, 1987, (unreported). Although we affirmed the convictions, we vacated applicant’s sentences and remanded the case for resentencing. On March 22, 1989, the applicant filed this, his third petition seeking post conviction relief, raising, for the first time, a number of complaints concerning the conduct of his trial. 2 Believing the petition to be one not allowed by Art. 27, § 645A(a)(2), the circuit court summarily denied it without considering the merits of any of the complaints. Although the applicant acknowledges that he is limited by statute to filing only two post conviction petitions, he nevertheless asserts that the summary dismissal of his third petition is unfair.

This is so, he argues, because he was required to use his two petitions “for the purpose of reinstating his appeal right.” Thus, he contends that the statute, as it is being applied to him, unfairly denies him the right to litigate issues relating to the conduct of his trial. His attack on the two petition limit, rather than being direct, is collateral. The rationale underlying the appli ³⁵¹ cant’s position is reminiscent of that utilized by this Court in Waters v. State, 76 Md.App. 548, 547 A.2d 665 (1988). In addition, the applicant suggests that his right to file a third petition has been preserved because he specifically stated in the second petition that he did not, by its filing, intend to waive any post conviction rights he might have.

In Waters v. State, we addressed the issue whether an applicant for leave to appeal was entitled to an evidentiary hearing on his third petition for post conviction relief. To resolve the issue, we focused upon a trilogy of cases involving Hollis Hines: Hines v. Warden, 221 Md. 616 , 157 A.2d 280 (1960); Hines v. State, 223 Md. 251 , 164 A.2d 268 (1960) and Hines v. Warden, 236 Md. 406 , 204 A.2d 176 (1964). Having summarized them, we stated: We glean from these cases the rule that if a post conviction case is resolved in such a way as to make it unnecessary for the hearing judge to reach a particular allegation and the hearing judge in fact does not reach it,