Opinion
Civ. No. 14592.
June 5, 1963.
Robert R. Robertson, pro se.
This is a petition for a writ of habeas corpus filed by a Maryland State prisoner who, on May 16, 1961, represented by court-appointed counsel, pleaded guilty in the Criminal Court of Baltimore City and was sentenced by Judge Carter to five years in the Maryland Penitentiary, accounting from February 16, 1961. No proceeding under the Post Conviction Procedure Act, Article 27, sections 645A-645J, Anno. Code of Maryland, has been filed, but Robertson filed a petition for a writ of habeas corpus in the state court, which was denied by Judge Byrnes of the Supreme Bench of Baltimore City on February 5, 1963. Since the adoption of the PCPA no appeal to the Court of Appeals of Maryland is permitted from the denial of a petition for writ of habeas corpus. Applications for leave to appeal may be filed from denial of relief under the PCPA.
The present petition for writ of habeas corpus is based upon allegations of (1) illegal arrest, (2) illegal search of his person and premises, and (3) improper advice to plead guilty by court-appointed counsel.
Although prior to the decision of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L. Ed.2d 837, Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770, and other recent decisions of the Supreme Court, the Court of Appeals of Maryland had held that such points could not be considered in a PCPA proceeding, the discussion of the scope of the writ of habeas corpus in those cases may cause the Court of Appeals of Maryland to review its decisions with respect to waiver and the scope of the PCPA proceedings.
The interests of comity, as well as the Federal statute, require that petitioner present his present contentions to the state courts in a PCPA proceeding before this court undertakes to pass on them on a petition for a writ of habeas corpus. See the opinion of Judge Watkins in Otten v. Warden, Md., 216 F. Supp. 289 (1963), which has been followed by the other Judges of this Court. See also Patterson v. Warden, 372 U.S. 776, 83 S.Ct. 1103, 10 L.Ed.2d 137; Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed. 837; Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L.Ed.2d 1081; Hall v. Warden, 4 Cir., 313 F.2d 483, certiorari applied for.
The present petition for writ of habeas corpus is hereby denied, without prejudice to Robertson's right to file another petition herein after he has exhausted his available state remedies.
The Clerk is instructed to send a copy of this memorandum opinion and order to the petitioner and to the Attorney General of Maryland.