Whitley v. Warden of Maryland House of Correction

Brune, C. J., delivered the opinion of the Court. The applicant, Joseph Olief Whitley, seeks leave to appeal from a denial of relief under the Post Conviction Procedure Act. He was convicted of second degree murder in the Circuit Court for Prince George’s County, by Judges Digges, Fletcher and Dorsey, on June 27, 1957, and was sentenced to a term of twelve years in the House of Correction. No appeal was taken from that judgment. ⁶¹⁰ Whitley’s original application for relief under the Post Conviction Procedure Act was filed in the Circuit Court for Prince George’s County on February 17, 1959, and counsel was appointed for him as an indigent.

Previously he had filed two habeas corpus petitions in the Circuit Court for Baltimore County, one in the Circuit Court for Cecil County, and one in the United States District Court, all of which were denied. An application for leave to appeal from the denial of one petition by Judge Raine in one of the Baltimore County cases was denied by this Court in Whitley v. Warden, 214 Md. 647 , 135 A. 2d 889 . After the appointment of counsel in this proceeding an amended petition was filed by the petitioner on June 16, 1959. In addition to reciting the above prior applications and his conviction and sentence, it alleged that: 1.

The applicant was illegally arrested. 2. He was taken from Prince George’s County to the District of Columbia for the purpose of being given a lie detector test, and that this was done without extradition proceedings. 3. He was questioned by police officers (it is not shown whether they were Maryland or District of Columbia police officers), that these officers said, “If you will tell the truth it will make things much easier in all respects,” that after continuous questioning and many forms of threats the applicant confessed to the crime of which he was convicted. 4. The applicant was held for a period of fifty (50) hours illegally and against his will before being arraigned. 5.

During the interrogation the applicant was not advised of his rights to an attorney nor permitted to speak with anyone during the fifty hours that he was held prior to arraignment. 6. The confession allegedly obtained by duress was the only evidence offered against the applicant. 7. State officers knowingly used perjured testimony to convict the petitioner. 8. The applicant’s lawyers failed to summon witnesses on his behalf and talked him out of taking the stand and testifying on his own behalf at the trial.

Counsel were heard on the application, and it was denied by Judge Marbury. ⁶¹¹ Allegations numbered 1, 2, 4 and 5 concern alleged irregularities in the preliminary proceedings or during the trial, which may be open to attack on direct appeal, but cannot be challenged collaterally. Niblett v. Warden, 221 Md. 588 , 155 A. 2d 659 ; Banks v. Warden, 221 Md. 592 , 155 A. 2d 697 . The involuntary character of a confession can also be raised on appeal, but not collaterally. Johnson v. Warden, 212 Md. 652 , 129 A. 2d 84 ; Eberle v. Warden, 209 Md. 657 , 121 A. 2d 708 ; Randall v. Warden, 208 Md. 667 , 119 A. 2d 712 ; Davis v. Warden, 208 Md. 675 , 119 A. 2d 365 ; Ferguson v. Warden, 218 Md. 644 , 145 A. 2d 772 .

Allegations 3 and 6, therefore, are unavailing to the applicant. The eighth contention was