Opinion
[P.C. No. 74, September Term, 1959.]
Decided February 19, 1960. Certiorari denied, 364 U.S. 841.
POST CONVICTION PROCEDURE ACT — Alleged Innocence — Evidence Allegedly Insufficient. Neither claims of alleged innocence, nor of the alleged insufficiency of the evidence to convict, are grounds for post conviction relief. p. 581
POST CONVICTION PROCEDURE ACT — Perjury — Use Of Forged Statement Purporting To Be Petitioner's — Claims Of — State Participation Not Shown — Previous Proceeding. Claims of alleged perjury, and the use by the State of a forged statement purporting to be the petitioner's, did not call for post conviction relief, where there was no claim, and no facts stated to show, State participation in the use of the alleged perjury, beyond a statement that the conviction "would not have been founded" if "the perjury committed * * * had not been condoned by the Court". Moreover, these points, or very closely related ones, were "previously and finally litigated or waived" in a prior habeas corpus proceeding. Code (1959 Supp.), Art. 27, § 645A (a). pp. 581-582
POST CONVICTION PROCEDURE ACT — Indictment Defective — Claim Of. A claim that the indictment was defective is not open to review either on habeas corpus or under the Post Conviction Procedure Act, which creates no new grounds for relief. p. 582
POST CONVICTION PROCEDURE ACT — Appeal — Claim That Lack Of Funds Prevented. A petitioner was not entitled to relief under the Post Conviction Procedure Act on the ground that he "was unable to prosecute an appeal because of lack of funds", there being "no available provisions had in the State of Maryland at the time of his conviction", where he did not allege that he took any steps to appeal. p. 582
CRIMINAL LAW — Felonious Burglary — Ten-Year Sentence Within Statutory Limit. A sentence of ten years for felonious burglary was clearly within the statutory limit of twenty years fixed by Code (1957), Art. 27, § 29. pp. 581, 582
J.E.B.
Decided February 19, 1960.
Richard Lee Wilson instituted a proceeding under the Post Conviction Procedure Act, and from a denial of relief, he applied for leave to appeal.
Application denied.
Before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
Richard Lee Wilson was convicted of felonious burglary in the Criminal Court of Baltimore on November 9, 1954, by Judge Michael J. Manley, sitting without a jury, and sentenced to ten years in the penitentiary.
On March 17, 1959, he petitioned for relief under the Post Conviction Procedure Act. Counsel was appointed for him and a hearing was held, after which Judge Joseph L. Carter dismissed the petition. Wilson now seeks leave to appeal from this dismissal.
Most of his contentions deal with his alleged innocence and with the alleged insufficiency of the evidence to convict, neither of which is grounds for post conviction relief. State v. D'Onofrio, 221 Md. 20. Corollary to these he alleges perjury and the use by the State of a forged statement purporting to be his. Beyond a statement that "If the perjury committed by the [prosecuting witnesses] had not been condoned by the Court, then the conviction of this Petitioner * * * would not have been founded", he neither claims, nor states facts that show, State participation in the use of the alleged perjury. State v. D'Onofrio, supra. Moreover, these points, or very closely related ones, were "previously and finally litigated or waived" when Judge Niles dismissed Wilson's petition for a writ of habeas corpus in October 1956. Code (1959 Supp.), Art. 27, § 645A(a).
An additional allegation now is made that the indictment was bad "because it failed to charge unlawful entry or trespassing." Even if the indictment were defective, it would not be open to review either on habeas corpus, Parker v. Warden, 215 Md. 661, or under the Post Conviction Procedure Act, which creates no new grounds for relief, State v. D'Onofrio, supra.
In anticipation, perhaps, of a decision that the points urged in his petition should have been raised on appeal, Wilson alleges that he "was unable to prosecute an appeal because of lack of funds," there being "no available provisions had in the State of Maryland at the time of his conviction." He does not allege that he took any steps to appeal, and for the reasons given in answer to a similar contention in Brown v. Warden, 221 Md. 582, this will not help him now.
As the sentence is clearly within the statutory limit (20 years, Code (1957), Art. 27, § 29), and since Wilson's allegations state no grounds for relief, his application for leave to appeal is denied.
Application denied.