"It should be noted that since this Court does not have a copy of petitioner's other petitions, if these allegations were raised before, they are deemed finally litigated and cannot be raised again. Ingram v. Warden, 221 Md. 597, 155 A.2d 668. "For the above reasons the relief sought is denied."
Byrd v. Warden of Maryland Penitentiary, 219 Md. 681, 147 A.2d 701, holds a petition for postconviction relief was properly dismissed where the same grounds had been relied on and relief denied in a prior habeas corpus action. Like holdings are made in Tillett v. Warden of Maryland House of Correction, 220 Md. 677, 154 A.2d 808, and in Ingram v. Warden of Maryland House of Correction, 221 Md. 597, 155 A.2d 668. In People v. West, 43 Ill.2d 219, 252 N.E.2d 529, 530, the court says: "A postconviction proceeding is not intended as a vehicle for relitigation, on the same factual basis, of issues previously adjudicated, and the principle of res judicata bars additional litigation on this point."
The first is that he is entitled to release, or a new trial, because of the failure to furnish the transcript of his original trial. We have said that such a transcript need not be furnished unless the applicant for post conviction relief shows why it is necessary for his use, and there has been no such showing here. Ingram v. Warden, 221 Md. 597, and Truesdale v. Warden, 221 Md. 617. The applicant says that Hardy v. United States, 375 U.S. 277, 11 L.Ed.2d 331 (in which, in a federal case, the Supreme Court held that the duties of an attorney, who had not been in the case until after trial and who had been appointed to take and conduct the appeal, could not properly be fulfilled unless he was furnished a transcript) gives him an absolute right to the transcript. We think not. It appears that in the seven years since the trial in the case before us the reporter's notes have been lost or destroyed and the dialogue of the trial cannot be recreated.
Contentions (3) and (4), having been adjudicated in his original appeal to this Court, can not be raised again in this application. Ingram v. Warden, 221 Md. 597, 155 A.2d 668. Even though in slightly different phraseology he now bases his fourth contention on a denial of due process, rather than on abuse of discretion as claimed in his appeal here, his failure to assert the constitutional question on that appeal bars him from raising it now. Jordan v. State, 221 Md. 134, 156 A.2d 453. Application denied.
The record forwarded with his application for leave to appeal contains a transcript of the proceedings at his Post Conviction hearing before Judge Duer. A careful examination of the transcript reveals no evidence whatever of prejudice and nothing which would serve any useful purpose to the applicant so that his request that this Court issue an order to the lower court to supply him with a (copy of the) transcript of the Post Conviction hearing is denied, and his brief in rebuttal will be merely included in the record of this proceeding. There is no provision in the Post Conviction Procedure Act requiring the furnishing of the transcript of the proceedings in any case. Gamble v. Warden, 223 Md. 633; Ingram v. Warden, 221 Md. 597. Application denied.
The Act does not require that a transcript be furnished. Applicant is not entitled as of right to such transcript (nor is there any showing by applicant that it would serve any useful purpose). Truesdale v. Warden, 221 Md. 617, 157 A.2d 281 (1960); Ingram v. Warden, 221 Md. 597, 155 A.2d 668 (1959); Townshend v. Warden, 222 Md. 617, 159 A.2d 854 (1960). In view of applicant's failure to state any proper ground for relief under the Post Conviction Procedure Act, the application will be denied.
There is nothing in the record forwarded with this application for leave to appeal to indicate that either transcript would serve any useful purpose. Ingram v. Warden, 221 Md. 597, 155 A.2d 668 (1959). See also McClung v. Warden, 221 Md. 596, 155 A.2d 893 (1959).
See Shifflett v. Warden, 220 Md. 667. Nor was the constitutionality of the sentence raised below, so it is not properly before us, even if we assume, without deciding, that it might have been raised in a post conviction case. The questions decided in the cases cited did not involve the question of a right to a transcript of the original trial, for use in an application for post conviction relief. Nor was the present question presented in Ingram v. Warden, 221 Md. 597. We there held that an applicant for leave to appeal to this Court from the denial of post conviction relief, was not entitled as of right to a transcript of the hearing on the application.
' "However, the weight of authority is that the right to counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution does not extend to appeals from a denial of relief in postconviction proceedings for the vacation of sentences which have become final and are no longer subject to appeal. State v. Buffington, 7 Ohio App.2d 211; French v. Green, Supt. (D.C. Ohio), 264 F. Supp. 922; United States, ex rel. Boone, v. Fay (D.C. N. Y.), 231 F. Supp. 387, certiorari denied, 380 U.S. 936, 85 S. Ct. 945, 13 L. Ed. 2d 823; United States, ex rel. Combs, v. Denno (D.C. N. Y.), 231 F. Supp. 942; Young v. United States (C.C.A. 5), 246 F.2d 901, certiorari denied, 355 U.S. 917, 78 S. Ct. 348, 2 L. Ed. 2d 277; Waldon v. District Court of Lee County, 256 Iowa 1311, 130 N.W.2d 728; Ingram v. Warden of Maryland House of Correction, 221 Md. 597, 155 A.2d 668, certiorari denied, 361 U.S. 971, 80 S. Ct. 604, 4 L. Ed. 2d 551; Duffin v. Warden of Maryland Penitentiary, 224 Md. 645, 167 A.2d 601; 24A Corpus Juris Secundum 50, Criminal Law, Section 1710 (7)." To the authorities above quoted we would add Queor v. Lee, Commr., 382 F.2d 1017.
" However, the weight of authority is that the right to counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution does not extend to appeals from a denial of relief in postconviction proceedings for the vacation of sentences which have become final and are no longer subject to appeal. State v. Buffington, 7 Ohio App.2d 211; French v. Green, Supt. (D.C. Ohio), 264 F. Supp. 922; United States, ex rel. Boone, v. Fay (D.C. N. Y.), 231 F. Supp. 387, certiorari denied, 380 U.S. 936, 85 S. Ct. 945, 13 L. Ed. 2d 823; United States, ex rel. Combs, v. Denno (D.C. N. Y.), 231 F. Supp. 942; Young v. United States (C.C.A. 5), 246 F.2d 901, certiorari denied, 355 U.S. 917, 78 S. Ct. 348, 2 L. Ed. 2d 277; Waldon v. District Court of Lee County, 256 Iowa 1311, 130 N.W.2d 728; Ingram v. Warden of Maryland House of Correction, 221 Md. 597, 155 A.2d 668, certiorari denied, 361 U.S. 971, 80 S. Ct. 604, 4 L. Ed. 2d 551; Duffin v. Warden of Maryland Penitentiary, 224 Md. 645, 167 A.2d 601; 24A Corpus Juris Secundum 50, Criminal Law, Section 1710 (7). The Third District Court of Appeals in the case of State v. Buffington, 7 Ohio App.2d 211, held that Section 2953.24 of the Revised Code does not provide for the appointment or fixing of compensation of counsel for an indigent prisoner to prosecute an appeal from a judgment or order entered on a petition to vacate or set aside sentence filed under the provisions of Section 2953.21 of the Revised Code.