Opinion
[P.C. No. 110, September Term, 1959.]
Decided July 5, 1960.
POST CONVICTION PROCEDURE ACT — Application For Leave To Appeal From Denial Of Relief Under, Held Not Timely. An application for leave to appeal from a denial of relief under the Post Conviction Procedure Act must be filed within thirty days under Code (1959 Supp.), Art. 27, § 6451. Consequently, where the petition for relief was denied below on December 29, 1959, and the request for appeal was dated January 30, 1960, and not received by the clerk of the court below until February 4, 1960, the motion to dismiss the application was granted. p. 646
POST CONVICTION PROCEDURE ACT — Description Of Matters Not Reviewable Under. Matters which are incident to the trial, and for which remedies were available before and during the original trial, or by review on motion for a new trial or on appeal, have no merit under the Post Conviction Procedure Act. p. 646
POST CONVICTION PROCEDURE ACT — Claim Rejected In Previous Proceeding Held Not Available. A claim rejected in a previous habeas corpus proceeding was held to be not available in the present post conviction proceeding. pp. 646-647
J.E.B.
Decided July 5, 1960.
Lewis Blevins, alias Bruce Blevins, alias Chester Muroaka, instituted a proceeding under the Post Conviction Procedure Act, and from a denial of relief, he applied for leave to appeal.
Application dismissed.
Before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
The Warden's motion to dismiss this application for leave to appeal from a denial of relief under the Post Conviction Procedure Act must be granted. The application was denied by the Criminal Court of Baltimore on December 29, 1959, and an application for leave to appeal would have had to have been filed within thirty days or by January 28, 1960, under Code (1959 Supp.), Art. 27, § 6451. The applicant's request for appeal, which appears to be in his handwriting, was dated January 30, 1960, and was not received by the Clerk of the Criminal Court until February 4, 1960.
If the application for appeal could be considered, it would be of no avail to the applicant. Judge Sodaro correctly found that his complaints of illegal search, denial of a jury trial, denial of postponement of trial, receiving a more severe sentence than his co-defendants, and perjury of witnesses against him were directed to the regularity of the trial and not to the jurisdiction of the court, and that "[t]he alleged errors are of matters which were incident to the trial, and for which remedies were available before and during the original trial, or by review on motion for a new trial, or on appeal to the Court of Appeals, and have no merit under the Post Conviction Procedure Act."
Applicant's contention that he was denied a copy of the transcript of the testimony at his original trial was rejected on his petition for habeas corpus by Judge Shure in the Circuit Court for Montgomery County on August 6, 1959, and, as Judge Sodaro held, was not a ground available to him in the post conviction proceedings.
Application dismissed.