Dyson v. Warden

Per Curiam. The applicant for leave to appeal was convicted on July 6, 1960 under two indictments for robbery with a deadly weapon and under one indictment for attempted robbery with a deadly weapon. He was sentenced on December 13, 1960 to a total of thirty (30) years in the Maryland Penitentiary. On direct appeal the convictions were affirmed by the Court of Appeals, 226 Md. IS (1961) and certiorari was denied by the Supreme Court on January 8, 1962, ( 368 U. S. 968 ).

The applicant’s petition for habeas corpus to the United States District Court for the District of Maryland was dismissed as premature on February 21, 1962. On June 26, 1962 applicant made his first petition under the Uniform Post Conviction Procedure Act. That petition was denied by order of Judge Meyer M. Cardin sitting in the Criminal Court of Baltimore on March 18, 1963. His application for leave to appeal from that order denying relief was denied by the Court of Appeals.

Dyson v. Warden, 233 Md. 630 (1964). ⁴⁷² This application for leave to appeal was filed October 10, 1966 from an order denying relief of October 4, 1966 of Judge Albert E. Sklar sitting in the Criminal Court of Baltimore on the applicant’s second petition for post conviction relief filed July 27, 1966. Relief was denied without appointment of counsel or hearing. The applicant made the following allegations of error in his petition and his amended petitions: 1. That the crimes charged in two of the indictments should have been merged into one offense, and that therefore, petitioner is a victim of “Double Jeopardy.” 2.

That his constitutional rights were violated because the consolidation of two (2) distinct cases created a prejudicial atmosphere, which influenced a witness in the second case to change her testimony to the detriment of applicant. This application for leave to appeal fails to contain a statement of the reasons why the order should be reversed and could therefore be denied under Maryland Rules, BK 46b. Goetzke v. Warden, 1 Md. App. 3 (1967). However, we hold that the allegations of error have been waived within the meaning of Maryland Code (1967 Replacement Volume), Art. 27, § 645A (c), as they were not raised on direct appeal or in the first petition for post conviction relief.

In Bagley v. Warden, 1 Md. App. 154 (1967) we found it to be implicit in the statute that a petitioner set forth in his petition for relief special circumstances to excuse the failure to raise the allegations or such facts so as to make an adequate showing to rebut the presumption that he intelligently and knowingly failed to make the