Tillett v. Warden

Bruñe, C. J., delivered the opinion of the Court. The applicant, Delano L. Tillett, seeks leave to appeal from an order of Judge Mason entered in the Criminal Court of Baltimore denying Tillett’s application for relief under the Uniform Post Conviction Procedure Act (the Act), which, as adopted in this State by Ch. 44 of the Acts of 1958 and as amended by Ch. 429 of the Acts of 1959, now constitutes Sec ⁶⁷⁹ tions 645A-645J, inclusive, of Art. 27 of the 1957 Code (as supplemented). The first section of the Act, § 645A (a), after enumerating the grounds upon which proceedings may be had under the Act to set aside or correct a judgment or sentence, concludes with this proviso: “provided the alleged error has not been previously and finally litigated or waived in the proceedings resulting in the conviction, or in any other proceeding that the petitioner has taken to secure relief from his conviction.” This is Tillett’s third application for leave to appeal to this Court in proceedings which Tillett has taken to secure relief from his conviction. The first two applications were made in habeas corpus proceedings.

By those proceedings the errors therein alleged were previously and finally litigated. Code (1957), Art. 42, Sec. 6; Davis v. Warden, 211 Md. 606 , 125 A. 2d 841 ; State ex rel. Conley v. Warden, 193 Md. 699 , 65 A. 2d 895 . They were, we think, so litigated within the meaning of the above proviso of Sec. 645A of the Act, notwithstanding the repeal of Sec. 6 of Art. 42, supra, by Ch. 45 of the Acts of 1958 (which was a companion Act to Ch. 44, supra).

Hence they do not afford any basis for relief under the present application. The proviso contained in Section 645A and Sections 645D and 645H manifest an intention to put a stop to the endless repetition of the same grounds of collateral attack upon convictions. Repeated petitions for writs of habeas corpus became such an abuse as to call for legislation which began in 1941. See Olewiler v. Brady, 185 Md. 341 , 44 A. 2d 807 ; Bernard v. Warden, 187 Md. 273 , 49 A. 2d 737 ; Acts of 1941, Ch. 484; Acts of 1945, Ch. 702; and Acts of 1947, Ch. 625.

The alleged errors previously litigated, numbered as they appear in the present application, are: (1) failure to appoint counsel for the defendant (applicant); (2) excessiveness of the sentence of eight years’ imprisonment; (4) failure to advise the defendant of his right to appeal; (5) failure to inquire of the defendant if he had anything to say prior to sentence being imposed. The alleged excessiveness of the sentence was determined adversely to the applicant in Tillett v. Warden, 215 Md. 596 , 135 A. 2d 629 . All were determined ⁶⁸⁰ adversely to him in Ingram et al. v. Warden, 218 Md. 649 , 145 A. 2d 766 . Tillett was a party in the latter case.

The opinion of this Court in Ingram et al. does not set forth these contentions, but each is dealt with in the opinion of Judge McLaughlin referred to in the opinion of this Court, and his opinion is a part of the record in