Opinion
No. 85, September Term, 1967.
Decided December 21, 1967.
POST CONVICTION PROCEDURE — Denial Of Application For Leave To Appeal For Failure To State Reasons For Reversal Or Modification. An application for leave to appeal may be denied where it fails to contain a statement of the reasons why the order of the lower court should be reversed or modified. Rule BK 46 b. p. 644
POST CONVICTION PROCEDURE — Subsequent Petition — Rule BK 48 Does Not Preclude Denial Of Relief Without Hearing Or Appointment Of Counsel — Fourth Petition Held Properly Dismissed. Rule BK 48 does not preclude a denial of relief sought by a subsequent petition without a hearing or appointment of counsel. p. 645
Applicant's fourth petition for post conviction relief was properly dismissed without a hearing or appointment of counsel, where it presented no special circumstances to excuse applicant's failure to raise two allegations in prior proceedings nor to rebut the presumption that he intelligently and knowingly failed to make them, and a third allegation was deemed to have been finally litigated. Rule BK 48; Code (1957), Art. 27, § 645A (b) (c). p. 645
Decided December 21, 1967.
Application for leave to appeal from the Criminal Court of Baltimore (BYRNES, J.).
Isaac Bulluck instituted a fourth proceeding under the Uniform Post Conviction Procedure Act, and, from a denial of relief, he applied for leave to appeal.
Application denied.
Before MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
This is an application for leave to appeal from an order filed on July 10, 1967, by Judge Joseph R. Byrnes, sitting in the Criminal Court of Baltimore, denying relief sought by applicant's fourth petition under the Uniform Post Conviction Procedure Act.
Since the application failed to "contain a brief statement of the reasons why the order should be reversed or modified" as required by Maryland Rule BK 46 (b), relief could be denied on this ground alone. Goetzke v. Warden, 1 Md. App. 3.
In any event, Judge Byrnes found that the allegations of "inexperienced counsel" and "overzealous judge" were deemed to be waived and that the allegation of "illegal search and seizure" was deemed to have been finally litigated under Md. Code (1967 Repl. Vol.) Art. 27, § 645A(b) (c). The petition presented no special circumstances to excuse the failure to raise the first two allegations in prior proceedings nor to rebut the presumption that the petitioner intelligently and knowingly failed to make them. The third allegation was raised in applicant's third petition, disposed of by the order denying the relief prayed and application for leave to appeal from the order was denied. Bulluck v. Warden, 239 Md. 716. We agree that the first two allegations were waived and the third allegation finally litigated, § 645A (d) not being applicable.
There was no error in the dismissal of the fourth petition for relief without a hearing or appointment of counsel. See Bagley v. Warden, 1 Md. App. 154; Taylor v. Director, 1 Md. App. 23; Md. Rule BK48. Application denied.
Rule BK48 was rewritten June 23, 1967, effective September 1, 1967. The Rule as rewritten does not preclude a denial of relief sought by a subsequent post conviction petition without a hearing or appointment of counsel. Jones v. Warden, 2 Md. App. 343, filed November 3, 1967.