Opinion
[H.C. No. 34, September Term, 1957.]
Decided November 20, 1957.
HABEAS CORPUS — Counsel — General Incompetence of — Specific Allegations. Complaints that petitioner's counsel at his trial on criminal charges was generally incompetent, and specifically so in not putting petitioner on the stand to testify in his own behalf, and in failing to introduce evidence which would have changed the complexion of the State's case, were insufficient on habeas corpus, where petitioner did not allege bad faith, fraud or collusion by his attorney with any State official, or that he complained to the trial court concerning his court-appointed counsel, or that he requested the right to take the stand. p. 649
HABEAS CORPUS — Appeal — New Trial — Innocence or Guilt. Habeas corpus cannot be made to serve the purpose of an appeal or a new trial on the question of innocence or guilt. p. 649
HABEAS CORPUS — Perjured Testimony — Alleged Use of. In the absence of facts establishing the knowing participation by State officials in the use of perjured testimony, the mere allegation that it was used is insufficient to justify the issuance of a writ of habeas corpus. p. 649
HABEAS CORPUS — Unfavorable Publicity Causing Prejudice. An allegation of prejudice at a criminal trial, caused by unfavorable publicity, can be raised on appeal, but it cannot serve as a ground for habeas corpus. p. 649
J.E.B.
Decided November 20, 1957.
Habeas corpus proceeding by Joseph Olief Whitley against the Warden of the Maryland House of Correction. From a refusal of the writ, petitioner applied for leave to appeal.
Application denied, with costs.
Before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
Joseph Olief Whitley seeks leave to appeal from a denial of a writ of habeas corpus by Judge Raine of the Circuit Court for Baltimore County, by which writ he sought to obtain release from a sentence of twelve years in the House of Correction for murder in the second degree.
Applicant alleges that his counsel was generally incompetent and specifically so in not putting him on the stand to testify in his own behalf, and in failing to introduce evidence which would have changed the complexion of the State's case. He does not, however, allege bad faith, fraud, or collusion by his attorney with any State official, nor does he allege that he complained to the court concerning his court-appointed counsel or requested the right to take the stand. Habeas corpus is inappropriate under the circumstances and cannot be made to serve the purpose of an appeal or a new trial on the question of innocence or guilt. Sykes v. Warden, 201 Md. 662, 663; Barker v. Warden, 208 Md. 662, 667; Buffington v. Warden, 201 Md. 642.
Applicant further alleges that one of the State's witnesses committed perjury. We have held repeatedly that in the absence of facts establishing the knowing participation by State officials in the use of perjured testimony, the mere allegation that it was used is insufficient to justify the issuance of the writ. Ramberg v. Warden, 209 Md. 631, 633.
The final allegation is that unfavorable publicity caused prejudice against him. Although this could have been raised on appeal, it cannot serve as a ground for habeas corpus. Randall v. Warden, 208 Md. 667, 671.
Application denied, with costs.