McCloskey v. Director, Patuxent Institution

²⁸³ Per Curiam. This is an application for leave to appeal from an Order, dated April 14, 1966, of Chief Judge J. Deweese Carter, sitting in the Circuit Court for Cecil County, denying the Petitioner’s second application for relief under the Uniform Post Conviction Procedure Act. The Petitioner was convicted of assault and battery in 1958 and sentenced to three years in the Maryland House of Correction and, thereafter, he was transferred to the Patuxent Institution. In McCloskey v. Director, 242 Md. 717 (1966), cert. den. 385 U. S. 951 , the Court of Appeals of Maryland denied the Petitioner’s application for leave to appeal from an Order of Judge Keating, sitting in the Circuit Court for Cecil County, dated September 27, 1965, denying the Petitioner post conviction relief.

Prior thereto, the Court of Appeals, in McCloskey v. Director, 230 Md. 635 (1963), had reviewed the legality of the Petitioner’s commitment to Patuxent Institution and denied his application for leave to appeal. The Petitioner’s application for leave to appeal from an Order, dated May 3, 1965, of Judge George B. Rasin, Jr., recommitting the Petitioner to Patuxent Institution, has recently been granted by the Court of Appeals. McCloskey v. Director, 226 A. 2d 534 (1967). The case was remanded for a redetermination hearing on the grounds that the lower Court erred in not allowing the Petitioner to waive his right to counsel and appear pro se (Code, Art. 31 B, Cum.

Supp. 1966) and in not allowing the Petitioner to use the discovery procedures provided by the Maryland Rules. As grounds for the subject petition, it is contended, in substance, that the Petitioner’s constitutional rights are being violated by his confinement because: 1. The professional staff at the Institution treat him in a prejudiced and discriminatory manner because he does not believe in psychiatry and they insist that he follow the procedures and psychiatric programs of the Institution. 2. Copies of the Institution’s reports have not been made available to him. 3.

He cannot obtain a hearing under Code, Article 59, Section 21. ²⁸⁴ 4. His confinement constitutes cruel and unusual punishment. In this application for leave to appeal, he asserts that Chief Judge Carter committed reversible error because his Petition was denied without a hearing or the appointment of counsel and that “there existed a conflict between Judge Carter and the Petitioner, which was prejudicial to the rendering of a fair and impartial decision * * Chief Judge Carter found that the Petitioner’s present contentions could have been raised at the hearing before Judge Keating, referred to above, and “Having had such an opportunity, he cannot now be heard in respect to such complaints under the provisions of Maryland Rule BK48, as aforesaid”. This conclusion was reached several months prior to the decision of the Court of Appeals of Maryland in Baldwin v. Warden, 243 Md. 326 (Decided June 29, 1966) wherein it is said