Opinion
[H.C. No. 18, October Term, 1954.]
Decided December 8, 1954.
HABEAS CORPUS — Search and Seizure and Arrest — Legality of. The legality of a search and seizure or of an arrest may be raised on appeal but cannot be raised on habeas corpus. p. 661
HABEAS CORPUS — Alleged Use by Police of Force and Threats to Gain Incriminating Statements. Allegations that the police used force and threats to gain incriminating statements from petitioner cannot be raised on habeas corpus. p. 661
HABEAS CORPUS — Counsel — Deprivation of — Contention Disposed of in Former Petition. Where petitioner's contention that he had been deprived of counsel was disposed of in a former petition, where it was found to be an insufficient basis for the issuance of a writ of habeas corpus, the writ was properly denied in the present case. p. 661
HABEAS CORPUS — Lack of Counsel — Burden on Petitioner to Show Ingredient of Unfairness. The burden is on the petitioner for a writ of habeas corpus to show that for want of the opportunity of counsel, an ingredient of unfairness operated actively in the process that resulted in his confinement. pp. 661-662
J.E.B.
Decided December 8, 1954.
Habeas corpus proceeding by James L. Presley against the Warden of the Maryland Penitentiary. From a refusal of the writ, petitioner applied for leave to appeal.
Reporter's Note: Petition for certiorari denied February 28, 1955. 348 U.S. 955.
Before BRUNE, C.J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.
This is an application for leave to appeal from a denial of a writ of habeas corpus by Judge Cullen of the Supreme Bench of Baltimore City. The petitioner was convicted in the Criminal Court of Baltimore in May, 1952, of larceny, and was sentenced to the Maryland Penitentiary for five years.
Petitioner bases his right to relief upon three contentions: that there was an illegal search, seizure and arrest; that the police used force and threats to gain incriminating statements from him; and that he was denied counsel.
This Court has repeatedly stated that the legality of a search and seizure may be raised on appeal but cannot be raised on habeas corpus. Sykes v. Warden, 201 Md. 662; Dodson v. Warden, 201 Md. 655; Presley v. Warden, 201 Md. 660; Laslo v. Warden, 204 Md. 663; Barr v. Warden, 200 Md. 657; nor can the legality of arrest — see Spence v. Warden, 204 Md. 661; Lewis v. Warden, 203 Md. 676; Cumberland v. Warden, 205 Md. 646; nor can his allegations that the police used force and threats to gain incriminating statements from him be raised on habeas corpus — see Freeland v. Warden, 193 Md. 696, certiorari denied, 338 U.S. 836, 94 L.Ed. 511. See also Goodman v. Warden, 190 Md. 746, certiorari denied, 335 U.S. 847, 93 L.Ed. 397.
Petitioner's contention that he was deprived of counsel was answered, as was his contention of unlawful search and seizure without warrant, in his former petition, Presley v. Warden, 201 Md. 660. See also Daisey v. Warden, 203 Md. 653, which states that the petitioner has the burden of showing that for want of the opportunity of counsel, "an ingredient of unfairness operated actively in the process that resulted in his confinement." Martucci v. Warden, 202 Md. 648; Selby v. Warden, 201 Md. 653.
Application denied, with costs.