Sewell v. Warden of Maryland Penitentiary

Henderson, J., delivered the opinion of the Court. In this application for leave to appeal from a denial of post conviction relief, the petitioner was convicted of first degree murder on March 13, 1962, before Judges Schnauffer and Shure and a jury, and sentenced to life imprisonment. He was represented by court-appointed counsel, but took no appeal. In October, 1962, a petition for post conviction relief was denied ⁶¹⁷ by Judge Morgan Harris, after a hearing at which the petitioner was represented by court-appointed counsel.

There was no application for leave to appeal. On January 2, 1963, the petitioner filed a habeas corpus proceeding in the Federal District Court before Chief Judge Thomsen. Relief was denied on the ground that the petitioner had not exhausted his State remedies. On August 26, 1963, a second State post conviction proceeding was instituted and came on for hearing before Judge Anderson.

Counsel was appointed and a hearing held, at which the petitioner was present, despite the fact that the State’s Attorney moved to dismiss on the ground that no new matter was presented. It appears that no order was passed by Judge Anderson as a result of the hearing. Nevertheless the petitioner, in proper person, applied to this Court on August 29, 1963, for leave to appeal from what he termed a denial of post conviction relief. In a letter filed in the record Judge Anderson said: “* * * I indicated that I would grant Sewell leave to prosecute an appeal to the Court of Appeals from Judge Harris’ decision, even though the time within which he could appeal had long since elapsed. * * * Both he and Mr. Summers [his attorney] informed the court that they would like additional time to think over whether or not he would proceed with the case, in view of the fact that if he were afforded a new trial he might be subject to greater punishment.

My error was in not hearing the case at that time and making a final disposition, since the Docket Entries will now show no order passed by me. There is a complete record of all of the proceedings before Judge Harris, including a transcript of the testimony.” We think Judge Anderson erred primarily in failing to grant the State’s motion to dismiss. There is nothing in the present petition to indicate that it includes any contention not brought forward in the first petition. It is plainly stated in Code (1963 Supp.), Art. 27, sec. 645 H that “All grounds for relief claimed by a petitioner under this subtitle must be raised in his original or amended petition, and any grounds not so raised are waived unless the court finds in a subsequent petition grounds for relief asserted therein which could not reasonably have been ⁶¹⁸ raised in the original or amended petition.

If the court finds there are no such grounds for relief, the court, after a response to the petition has been filed by the State, may forthwith dismiss the petition without a hearing or appointment of counsel.” See also Rule BK48; Lloyd v. Warden, 233 Md. 644, 645 ; Smallwood v. Warden, 231 Md. 652, 653 ; Snyder v. Warden, 227 Md. 644, cert. den. 368 U. S. 1001 . Even if there had been additional contentions,