Sample v. Warden

Morton, J., delivered the opinion of the Court. In Sample v. Warden, 6 Md. App. 103 , this Court granted the applicant leave to appeal from an order of ⁵⁵⁶ Judge Charles D. Harris, sitting in the Criminal Court of Baltimore, denying relief under applicant’s second Post Conviction petition. The case was remanded for: a hearing and determination with respect to the competency of applicant’s trial counsel. Judge Harris thereafter conducted a hearing at which applicant was represented by court-appointed counsel and concluded, in an extensive opinion, that the contention as to incomptency of applicant’s trial counsel was without merit.

For the reasons assigned by Judge Harris, we must deny the application for leave to appeal on this issue. In the course of our opinion remanding the case, Judge Anderson, speaking for the Court, stated : “Judge Harris found that applicant’s first, second, third and fourth contentions had been waived since no special circumstances were alleged to excuse his failure to previously raise them. See Md. Code, Art. 27, § 645A (c). While we think Judge Harris correctly so ruled on the record before us, on remand the applicant should be afforded an opportunity to show, if he can, the existence of such special circumstances, so that these contentions may be considered on their merits.” With respect to this phase of the case, Judge Harris stated in his Memorandum Opinion: “At his hearing on April 24, 1969, petitioner stated that he asked his attorney on the appeal, and the attorney who represented him for his first petition under the Post Conviction.

Procedure Act, to raise these allegations, and that they failed to do so. This Court feels, however, that this reasoning does not constitute special circumstances which prevented petitioner from raising these allegations.” Judge Harris then stated that the applicant was represented on direct appeal and in his first Post