Jackson v. Warden of Maryland House of Correction

Hammond, J., delivered the opinion of the Court. This is an application for leave to appeal from the denial of a writ of habeas corpus by Judge McLaughlin of the Fourth Judicial Circuit. Most of the applicant Jackson’s numerous contentions below were substantially the same as those he set up in the petition for the writ filed in Cecil County ( 218 Md. 658 ) and were properly rejected for the reasons given in the full opinion of Judge McLaughlin. One of Jackson’s grounds for relief may appropriately receive more consideration than Judge McLaughlin gave it.

This is that in violation of his constitutional right, as an indigent person, he was refused a free copy of the transcript of testimony in his trial for use in seeking a new trial. In January, 1957, Jackson requested Chief Judge Niles of the Supreme Bench to furnish the transcript of the testimony ⁶⁵⁴ on which a jury in the Criminal Court of Baltimore convicted him on a forgery indictment, for use in seeking a new trial. His request was denied on March 13 and since, under its rules, a motion for a new trial will not be considered by the Supreme Bench without a transcript of the testimony, the denial prevented a hearing of his motion. On March 15, sentence was imposed.

On March 18, Jackson appealed to this Court in proper person. An exchange of letters between Jackson and the Clerk of the Criminal Court make it plain that the denial of the transcript was one of the grounds on which he intended to rely in his appeal. On May 6, Chief Judge Bruñe advised Jackson that he would be granted an appeal as an indigent, and offered to appoint counsel for him. Jackson rejected the offer of counsel.

The transcript was furnished Jackson by the State free of charge and the case was heard in this Court in the fall of 1957. In an opinion filed on October 20, affirming the conviction, the refusal to furnish the transcript for the new trial was not passed upon, the opinion noting that although Jackson listed and argued ten specific points of alleged error, he neither listed nor argued in this Court the matter of the refusal of the transcript by the Supreme Bench. Jackson v. State, 214 Md. 454 , certiorari denied, 356 U. S. 940 (1958). We may assume, arguendo, that Griffin v. Illinois, 351 U. S. 12 , 100 L. Ed. 891 , required that Jackson be given the transcript for use in his motion for a new trial.

Nevertheless, it seems clear that he abandoned that constitutional right when he failed to rely on it or assert it in his appeal, and that this was a waiver of the chance to have the right passed on and restored to him by this Court, or the Supreme Court on certiorari, if this Court refused. The decisions make it plain that habeas corpus is available only to protect constitutional rights that have not been waived, and that relinquishment of a known right, either in the trial court, or on review, precludes relief in subsequent habeas corpus proceedings if the judgment complained of was not a nullity. In countless cases (one of which was Winegard v. Warden, 194 Md. 699 , certiorari denied, 339 U. S. 938 (1950), in which unconstitutionality of the statute violated was alleged ⁶⁵⁵ on habeas corpus), we have said that habeas corpus is not a proper remedy when an appeal is or was available to raise the point relied on and the judgment was not a nullity. The writ cannot be used in lieu of appeal “to correct errors committed in the course of a trial, even though such errors relate to constitutional rights.” United States v. Rosenberg, 200 F. 2d 666, 668 (2nd Cir., 1952), certiorari denied, 345 U. S. 965 (1953).

See, too, Brown v. Allen, 344 U. S. 443, 486 , 97 L. Ed. 469, 504 , and cases cited, including Goto v. Lane, 265 U. S. 393, 402 , 68 L. Ed. 1070 , where it was said: “If the questions presented involved the application of constitutional principles, that alone did not alter the rule. * * * And, if the petitioners permitted the time within which a review on writ of error might be obtained to elapse and thereby lost the opportunity for such a review, that gave no right to resort to habeas corpus as a substitute.” In Humphries v. Peppersack, 156 F. Supp. 875 (D. Md., 1957), Judge Chesnut held that a state prisoner would not be issued the writ of habeas corpus on the ground that there was error in the trial when he had not sought a new trial or a direct appeal to the Court of Appeals. In Sanderlin v. Smyth, 138 F. 2d 729, 731 (4th Cir., 1943), Judge Parker said for the Court that habeas corpus may not be used in a federal court to review proceedings in a state court, since the judgment of that Court ordinarily is conclusive “* * * not only of those issues which were raised and determined, but also of those which might have been raised. * * * Ordinarily, failure to raise a constitutional question during trial amounts to waiver thereof. * * *.” In Palakiko v. Harper, 209 F. 2d 75, 80-81 (9th Cir., 1953), certiorari denied, 347 U. S. 956 (1954), petition for rehearing denied, 347 U. S. 979 , the Court cited cases holding that if the accused did not appeal, he may not make a collateral attack on his conviction by habeas corpus, and said: “* * * a similar result must obtain where, as here, the appeal was actually taken and the issue decided adversely to the appellant.” This Court has held that constitutional rights may be waived. If a statute making certain acts a crime were not challenged below as unconstitutional, its validity may not be ⁶⁵⁶ attacked on appeal, Martin v. State, 203 Md. 66, 77-78 ; and if there were no appeal from conviction under a statute alleged to be unconstitutional in a petition for habeas corpus and the judgment was not a nullity, habeas corpus will not issue. Loughran v.