Green v. Hutchinson

854 A.2d 889, 158 Md. App. 168, 2004 Md. App. LEXIS 115
CourtCourt of Special Appeals of Maryland
DecidedJuly 20, 2004
DocketNo. 1916
StatusPublished
Cited by3 cases

This text of 854 A.2d 889 (Green v. Hutchinson) 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.

Bluebook
Green v. Hutchinson, 854 A.2d 889, 158 Md. App. 168, 2004 Md. App. LEXIS 115 (Md. Ct. App. 2004).

Opinion

SMITH, J.

Rodney S. Green, the appellant, is an inmate who has been committed to the custody of the Commissioner of Corrections since 1990. He is serving consecutive sentences of 30 years for second degree murder and three years for carrying a concealed weapon. The appellee is Ronald Hutchinson, warden of the Maryland House of Correction in which Green is incarcerated.

ISSUES

In this appeal, Green purports to challenge a decision of the Circuit Court for Baltimore City, by which the court denied his motion to alter or amend, pursuant to Md. Rule 2-534, its earlier dismissal of Green’s petition for writ of habeas corpus.1 The appellee has moved to dismiss the appeal on the ground, inter alia, that it is in actuality an impermissible appeal from the dismissal of the petition for writ of habeas corpus. Because we find merit in the appellee’s argument, we shall dismiss the appeal.

[170]*170DISCUSSION

Green insists that the issue in this case is “whether the motion judge erred in failing to exercise his discretion in denying Green’s motion to alter and/or amend the court’s judgment, and not [whether the court erred earlier in denying] habeas corpus relief.”2 He asserts that because the notice of appeal was filed within 30 days of the denial of the motion to alter or amend, but not within 30 days of the dismissal of the petition for writ of habeas corpus, the appeal was clearly from the denial of the motion to alter or amend.

Assuming, without deciding, that a right to appeal would lie from the denial of a motion to alter or amend judgment when no right of appeal would lie from the underlying denial of a petition for writ of habeas corpus, we nevertheless conclude that no right to appeal exists in the instant case.

Maryland Rule 2-534 provides in pertinent part:

In an action decided by the court, on motion of any party filed within ten days after entry of judgment, the court may open the judgment to receive additional evidence, may amend its findings or its statement of reasons for the decision, may set forth additional findings or reasons, may enter new findings or new reasons, may amend the judgment, or may enter a new judgment....

Under Md. Rule 8-202(c):

In a civil action, when a timely motion is filed pursuant to Rule ... 2-534, the notice of appeal shall be filed within 30 days after entry of (1) a notice withdrawing the motion or (2) an order ... disposing of a motion pursuant to Rule ... 2-534. A notice of appeal filed before the withdrawal or disposition of any of these motions does not deprive the trial court of jurisdiction to dispose of the motion. If a notice of appeal is filed and thereafter a party files a timely motion pursuant to Rule ... 2-534, the notice of appeal shall be [171]*171treated as filed on the same day as, but after, the entry of a notice withdrawing the motion or an order disposing of it.

The Court of Appeals has explained that, if a motion is filed more than ten days after judgment but within 30 days of the judgment, such that it is deemed a Rule 2-535 motion, “ ‘and while it is pending an appeal is filed, appellate jurisdiction attaches and the circuit court cannot decide the motion.’ ” Nina & Nareg, Inc. v. Movahed, 369 Md. 187, 199, 798 A.2d 557, 564 (2002) (citation omitted). “But where a motion is filed within ten days,” such that it is deemed a Rule 2-534 motion, “an appeal will not ordinarily lie until the trial judge rules on the motion.” Id. “ ‘[W]hen a motion to alter or amend an otherwise final judgment is filed within ten days after the judgment’s entry, the judgment loses its finality for purposes of appeal.’ ” Id. (citation omitted).

The trial court in the instant case entered a “Memorandum and Order” dismissing Green’s petition for writ of habeas corpus on August 29, 2003. Exactly ten days later, on September 8, 2003, Green filed his motion to alter or amend the trial court’s judgment. Thus, the motion was a proper ten-day motion under Md. Rule 2-534. It caused the August 29, 2003 judgment to lose its finality. The judgment became final on October 7, 2003, due entirely to the entry of the order denying the motion to alter or amend. Green’s notice of appeal, filed on October 30, 2003, was necessarily from the judgment dismissing the petition for writ of habeas corpus.

It is apparent from the issues that Green attempts to raise on appeal, moreover, that Green’s challenge is to the dismissal of the petition. Although Green insists that his appeal is from the denial of his motion to alter or amend, the issues, as he frames them, are:

I. [Whether] the habeas court err[ed] in denying Appellant’s motion to alter and/or amend its judgment, where (A) it failed to inquire into the allegations of ineffective assistance of counsel or determine whether a knowing and intelligent waiver existed as to this right pursuant to Maryland Rule 15-309[, and] (B) its memorandum failed to set [172]*172forth this constitutional claim and the court’s ruling, pursuant to Md. Rule 15-311?
II. [Whether] the habeas court erroneously eonclude[d] (A) that Appellant did not produce a prima facie showing of provocation, [and] (B) erroneously conclude[d] that the trial court in its discretion determined that there was not sufficient evidence to generate a manslaughter instruction?

Clearly, these issues concern alleged errors in the denial of the petition for writ of habeas corpus itself. They concern the denial of the motion to alter or amend judgment only to the extent that it might be inferred that the court abused its discretion in failing to correct the errors allegedly committed in the denial of the petition.

In short, Green’s assertion regarding the basis of his appeal amounts to nothing more than an exercise in semantics. It is, at best, a specious attempt to create a right of appeal where, as we shall explain, none exists.

The Court of Appeals

has consistently held that statutory provisions like [Md. Code (1974, 2002 Repl.Vol.),] § 12-301 of the Courts and Judicial Proceedings Article, generally authorizing an “appeal from a final judgment entered in a civil or criminal case,” do not apply to habeas corpus cases. An appeal may be taken from a final order in a habeas corpus case only where specifically authorized by statute. ...

Gluckstern v. Sutton, 319 Md. 634, 652, 574 A.2d 898, 906 (1990) (emphasis added) (citations omitted). The Gluckstem Court

identified four statutes that permit appeals or applications for leave to appeal in habeas corpus cases — [Code (1974, 2002 Repl.Vol.), § 3-707 of the Courts and Judicial Proceedings Article], applicable to the “denial of relief in habeas corpus cases regarding the right to bail or allegedly excessive bail,” ...; [Code (2001), § 9-110 of the Criminal Procedure Article], applicable to the denial of habeas corpus relief in extradition cases; [Code (1974, 2002 Repl.Vol.), § 3-706, of the Courts and Judicial Proceedings Article], applicable [173]

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Cite This Page — Counsel Stack

Bluebook (online)
854 A.2d 889, 158 Md. App. 168, 2004 Md. App. LEXIS 115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-v-hutchinson-mdctspecapp-2004.