Washington v. Warden of Maryland Penitentiary

Hammond, J., delivered the opinion of the Court. On April 30, 1958, after a jury trial in the Circuit Court for Prince George’s County, petitioner Ernest Lee Washington was found guilty under an indictment in Criminal Trial No. 3019 for armed robbery, and was sentenced to fifteen years, the sentence to be served concurrently with a five-year term previously imposed on April 8, 1958, in the same court in Criminal Trial No. 2918, which was a completely separate case and involved an assault with intent to rob with a deadly weapon. An appeal was noted by Washington in No. 2918 but then dismissed by him, and no appeal was taken from the judgment in No. 3019. In November 1959 Washington filed for post conviction relief in No. 3019, but his petition was apparently misfiled under No. 2918, wherein a petition for post conviction relief had previously been filed.

On March 11, 1960, a hearing was held before Judge Digges, relief was denied, and this Court affirmed in Washington v. Warden, 225 Md. 623 (1961). It was not until April 2, 1963, after petitioner had filed his first federal habeas corpus petition that Chief Judge Roszel Thomsen of the United States District Court discovered that Washington had never had a post conviction hearing relating to No. 3019 and that the hearing before Judge Digges related only to No. 2918. When informed of this, Judge Digges restored to the active docket the post conviction petition filed originally in No. 3019, with leave to amend before June 7, 1963, and appointed counsel to assist the petitioner. The original petition was not amended, and it contained three contentions: (1) that the prosecuting witness, one Nicholson, perjured himself both before the grand jury which indicted Washington, and at his trial; (2) that his conviction was based upon a quashed indictment; and (3) that he was not guilty of the robbery.

The scheduled hearing on this matter had to be postponed for some six months because of Washington’s con ³¹⁹ finement in the Clifton T. Perkins Hospital, and was then reset for October 14, 1963. After his release from the hospital and at all times prior to the hearing, Washington steadfastly refused to cooperate in any respect with his court-appointed counsel, and when the hearing was held he told the court that he did not wish to testify or to present any evidence. Washington’s tactics were based upon a belief that if he participated in the hearing he would be “thrown out of federal court,” even though his federal habeas corpus application had been dismissed by the District Court some four months before the hearing. Both Judge Digges and Washington’s counsel advised him of his right to testify and to present evidence but Washington held fast in his refusal, and his petition was consequently dismissed on October 14, 1963.

No appeal was taken from the lower court’s action, but Washington immediately filed a second federal habeas petition, which was denied by Judge Thomsen because the petitioner had deliberately refused to pursue available state remedies and because there was no showing of any deprivation of rights under the federal constitution. On May 14, 1964, the pending petition for post conviction relief was filed. This petition, like the first, makes the claim of perjured testimony of Nicholson and that the conviction was based on a quashed indictment. As his third contention, petitioner now alleges that during a court recess in his trial (No. 3019), he learned from Vincent Scott, while they occupied the same cell and were waiting for the trial to resume, that one of the prosecutors earlier had urged Scott to untruthfully deny that he was with the petitioner during the entire day on which the crime occurred, and that Scott untruthfully so testified thereby nullifying petitioner’s attempt to prove an alibi through Scott.

In this regard petitioner further states that he brought his conversation to the attention of Judge Gray upon returning to the courtroom but no action was taken in regard to the prosecutor’s alleged misconduct. On August 3, 1965, Judge Digges dismissed the petition of May 14, 1964, on the grounds that the unamended first petition originally filed in November 1959, had been heard and dismissed on October 14, 1963, thereby precluding petitioner from raising the same contentions again; that without sufficient reasons ³²⁰ for not raising in the first petition the contentions now asserted, they were waived; that the grounds now alleged do not form the basis for relief; and that the present petition of May 14, 1964, was the only petition before the court. Washington has filed an application for leave to appeal from that decision. Judge Digges based his