Opinion
[App. No. 3, September Term, 1961 (Adv.).]
Decided July 11, 1961. Certiorari denied, 368 U.S. 971.
POST CONVICTION PROCEDURE ACT — Right Of Appeal — No Basis For Disturbing Finding That State Did Not Deny Such Right — Applicant's Own Delay In Filing Appeal Affords No Ground For Relief. pp. 659-660
POST CONVICTION PROCEDURE ACT — Perjured Testimony — Mere Claim Of, Is Not Sufficient For Relief — Bald Assertion In This Case Was Not Sufficient To Show Knowing Use By State Of Such Testimony. p. 660
POST CONVICTION PROCEDURE ACT — Transcript Of Original Trial — Copy Of, At State Expense, Properly Not Supplied — Nothing To Indicate That It Would Have Been Of Any Use To Applicant In This Proceeding. p. 660
POST CONVICTION PROCEDURE ACT — Counsel At Original Trial — Finding Against Applicant On His Claim Of Inadequate Representation By, Held Not Erroneous. p. 660
J.E.B.
Decided July 11, 1961.
Howard Martin instituted a proceeding under the Post Conviction Procedure Act, and from a denial of relief, he applied for leave to appeal.
Application denied.
Before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.
The applicant was tried and was convicted by a jury on June 15, 1960, in the Circuit Court for Montgomery County, on a charge of assault with intent to commit rape. The conviction was "without capital punishment." On the same day, he was sentenced to five years' imprisonment in the Penitentiary. The applicant alleged that he was denied his right of appeal by the State, that he was convicted on perjured testimony knowingly used by the State and that his counsel did not properly represent him at the trial.
At his Post Conviction hearing, the applicant testified at some length. (He did not testify at his original trial.) Judge Pugh found against him on the facts on his claim that the State denied him his right of appeal, and found that the delay in filing his appeal was due to the applicant himself. We see no basis for disturbing this finding. The applicant's own delay affords no ground for Post Conviction relief. Hamilton v. Warden, 220 Md. 657, 152 A.2d 125.
A mere claim that testimony against him was perjured is not sufficient for Post Conviction relief, and the claim that the State knew it to be perjured comes down to no more than the applicant's bald assertion to that effect and argument as to why some of the testimony against him should not have been believed. This is not sufficient to show knowing use by the State of perjured testimony. Wright v. Warden, 223 Md. 684, 685, 165 A.2d 144. See also Wilson v. Warden, 222 Md. 580, 158 A.2d 103, cert. den. 364 U.S. 841.
In connection with this phase of the case, we note that the applicant sought below a copy (at State expense) of the transcript of his original trial. Neither the applicant's own testimony nor anything else indicates that it would have been of any use to him in this proceeding — the applicant seems to have wanted it mainly for use at a new trial (if granted) — , and it was properly not supplied. Truesdale v. Warden, 221 Md. 617, 621, 157 A.2d 281.
The trial court also found against the applicant on the facts on his claim that he was inadequately represented by counsel at the original trial, and we see no basis upon which to consider his finding erroneous.
Application denied.