Cabiness v. Warden

Court of Special Appeals of Maryland

Cabiness v. Warden

236 A.2d 43, 2 Md. App. 608, 1967 Md. App. LEXIS 305

CourtCourt of Special Appeals of Maryland

DecidedDecember 12, 1967

DocketNo. 54

StatusPublished

This text of 236 A.2d 43 (Cabiness v. Warden) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cabiness v. Warden, 236 A.2d 43, 2 Md. App. 608, 1967 Md. App. LEXIS 305 (Md. Ct. App. 1967).

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Opinion

Per Curiam.

This is an application for leave to appeal from an order of May 23, 1967, by Judge J. Harold Grady, sitting in the Crimi[610]*610nal Court of Baltimore, denying relief sought under the Uniform Post Conviction Procedure Act.

The application is denied for the following reasons:

1. A contention of insufficiency of the evidence produced at the applicant’s trial cannot be raised under the Uniform Post Conviction Procedure Act. Young v. Warden, 233 Md. 596, Burgess v. Warden, 221 Md. 610, Nixon v. Director, 1 Md. App. 14, Ross v. Warden, 1 Md. App. 46, Walker v. Warden, 1 Md. App. 534, Watson v. Warden, 2 Md. App. 134.

2. A contention that “petitioner was denied due process of law” is a bald allegation, not considered under the Uniform Post Conviction Procedure Act, Carney v. Warden, 235 Md. 676, McCoy v. Warden, 1 Md. App. 108, Ross, supra, Watson, supra. An examination of the hearing judge’s memorandum shows that there was not a complete lack of evidence, State v. Brown, 235 Md. 401.

3. As the petitioner’s allegation, that his past record was made an issue and was a deciding factor in his conviction, was not supported by facts, it may be disposed of as either a bald allegation, not properly considered under the Uniform Post Conviction Procedure Act, Carney v. Warden, supra, etc., or an abandoned contention, as Judge Grady in his memorandum states that none of the testimony taken at the hearing touched upon this contention. Szukiewicz v. Warden, 1 Md. App. 61, Carney v. Warden, supra.

Since the petitioner did not take advantage of his right to a direct appeal from his conviction and under Md. Code (1967 Repl. Vol.), Art. 27, § 645A (c) must be deemed to have waived his right to now raise contentions No. (1) and No. (3).

It should be noted that applicant’s application for leave to appeal, prepared by his attorney, failed to comply with Md. Rule, BK 46 b in that no reasons were set forth as to why the lower court should be reversed. This alone would be sufficient to deny relief. Isaacs v. Warden, 243 Md. 687, Norris v. Warden, 1 Md. App. 69; Ross v. Warden, 1 Md. App. 46.

Application denied.

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Per Curiam.

This is an application for leave to appeal from an order of May 23, 1967, by Judge J. Harold Grady, sitting in the Crimi[610]*610nal Court of Baltimore, denying relief sought under the Uniform Post Conviction Procedure Act.

The application is denied for the following reasons:

1. A contention of insufficiency of the evidence produced at the applicant’s trial cannot be raised under the Uniform Post Conviction Procedure Act. Young v. Warden, 233 Md. 596, Burgess v. Warden, 221 Md. 610, Nixon v. Director, 1 Md. App. 14, Ross v. Warden, 1 Md. App. 46, Walker v. Warden, 1 Md. App. 534, Watson v. Warden, 2 Md. App. 134.

2. A contention that “petitioner was denied due process of law” is a bald allegation, not considered under the Uniform Post Conviction Procedure Act, Carney v. Warden, 235 Md. 676, McCoy v. Warden, 1 Md. App. 108, Ross, supra, Watson, supra. An examination of the hearing judge’s memorandum shows that there was not a complete lack of evidence, State v. Brown, 235 Md. 401.

3. As the petitioner’s allegation, that his past record was made an issue and was a deciding factor in his conviction, was not supported by facts, it may be disposed of as either a bald allegation, not properly considered under the Uniform Post Conviction Procedure Act, Carney v. Warden, supra, etc., or an abandoned contention, as Judge Grady in his memorandum states that none of the testimony taken at the hearing touched upon this contention. Szukiewicz v. Warden, 1 Md. App. 61, Carney v. Warden, supra.

Since the petitioner did not take advantage of his right to a direct appeal from his conviction and under Md. Code (1967 Repl. Vol.), Art. 27, § 645A (c) must be deemed to have waived his right to now raise contentions No. (1) and No. (3).

It should be noted that applicant’s application for leave to appeal, prepared by his attorney, failed to comply with Md. Rule, BK 46 b in that no reasons were set forth as to why the lower court should be reversed. This alone would be sufficient to deny relief. Isaacs v. Warden, 243 Md. 687, Norris v. Warden, 1 Md. App. 69; Ross v. Warden, 1 Md. App. 46.

Application denied.

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236 A.2d 43, 2 Md. App. 608, 1967 Md. App. LEXIS 305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cabiness-v-warden-mdctspecapp-1967.

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