White v. Warden of the Maryland Penitentiary

Prescott, J., delivered the opinion of the Court. This is an application for leave to appeal under the P.C.P.A. In his petition below, applicant asserted seven grounds as to why he thought he was entitled to relief. The reasons set forth in Judge Niles’ opinion below clearly show that grounds 2 through 7, both inclusive, avail him nothing. His first contention was couched in the form of a question: “Did petitioner’s attorney defend him properly?” It will be immediately noted that this first question failed to comply with the Acts of 1958, Ch. 44, Section 645 D, in force at the time of the filing of his petition (this Act was repealed by the Acts of 1962, Ch. 36 § ⁶⁴⁷ 1, and is now, .in amended form, found in Maryland Rule BK 41, effective as of January 1, 1962), wherein it was provided that the petition should “specifically set forth the grounds upon which the petition is based.” In addition, his very experienced and able counsel, Herbert Myerberg, Esquire, appointed by the court, did not offer any evidence on this point, nor did he press it in argument below.

The record before us fails to show any ineptitude on the part of his counsel at his original trial, much less such a lack of proper representation as to violate his constitutional rights. Smallwood v. Warden, 205 F. Supp. 325 (U.S.D.C., D. Md.); Turner v. State of Maryland, 303 F. 2d 507 (U.S.C.A., 4th Cir.). In the present application for leave to appeal, he attempts to raise three additional complaints: that he was denied the the right to have an attorney of his own choice (he fails to make it clear whether he claims that he was denied the right to employ counsel of his own choice at his original trial, whether he was denied the right to select a court-appointed attorney oí his choice at said