Ellinger v. Warden of Maryland Penitentiary

Horney, J., delivered the opinion of the Court. In this application for leave to appeal, the applicant has alleged only two reasons why the application should be granted, tie claims that the lower court failed to rule on his first, fifth and sixth grounds for post conviction relief and that he should have been supplied with the transcript of the ⁶³⁰ post conviction' hearing he had demanded. He makes no claim on this appeal that there was any error in the rulings on the other six contentions he raised below. The applicant, who was convicted by a jury on March 9, 1953, of armed robbery, was sentenced to twenty years in the Penitentiary.

No appeal was taken from the judgment and sentence. A co-defendant, who plead guilty and testified on behalf of the State against the applicant, received a sentence of fifteen years. It is a fact that the lower court did not specifically decide the applicant’s first, fifth and sixth questions, which is required by Code (1959 Cum. Supp.), Art. 27, sec. 645G.

See Brigmon v. Warden, 221 Md. 622 , 157 A. 2d 460 (1960). By the first and fifth contentions, which may be considered together, the applicant asserts in effect that the substantive evidence—which he claims was false, perjured and fraudulent, was contrived and presented against him by the State of Maryland through the active and fraudulent conduct of the then State’s Attorney and the prosecuting