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III. STATEMENT OF FACTS
In the absence of a hearing on the merits of the Applicant’s Second Post-Conviction Petition, the underlying facts relating to this appeal are those alleged in the Second Petition itself or subsequently developed at the proceeding on February 28, 2006 regarding the Applicant’s prior challenges of his convictions and sentence.
In his Second Petition for Post-Conviction Relief, Applicant Jones challenged both his original convictions and his sentence of life imprisonment and 20 years, to be served consecutively, to raise four categories of claims. First, he contended that Mr. Beacon’s noted statement is exculpatory, and its exculpatory nature was known to the State at the time of the original trial. Inasmuch as the exculpatory nature of this testimony was not disclosed fully to Mr. Jones or his counsel, Mr. Jones contended that his convictions and sentences were in violation of due process, in accordance with the line of cases established by Brady v. Maryland, 373 U.S. 83 (1963).
Second, Mr. Jones contended that the exculpatory nature of Mr. Beacon’s comments should have been discovered in the due course of his own counsel’s pretrial investigation of the case. Inasmuch, as Mr. Jones contended that his counsel’s pretrial investigation did not include an interview with Mr. Beacon, a/k/a Jerome Harrington, whom trial counsel did not present as a witness at the original trial and Mr. Beacon states he has had no communication with any attorney for the Applicant other than present post-conviction counsel, Mr. Jones argued in the Circuit Court that he was denied effective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments of the United States Constitution and Article 25 of the Maryland Declaration of Rights.
Third, Mr. Jones contended that the attested testimony of Mr. Beacon, a/k/a Jerome Harrington, significantly undermined the evidence underlying Mr. Jones’ conviction, supported solely by the eyewitness testimony of one witness whose credibility has already been questioned in the first post-conviction proceeding. This statement of Mr. Beacon constitutes new evidence on which the original convictions and sentences should be vacated in accordance with the Maryland Rules.
In addition to the above claims arising from the statement of Jerome Beacon, Mr. Jones contended that the Court’s response to a jury question concerning the concept of “transferred intent” was on its face legally incorrect and so confusing as to deny Mr. Jones due process.
A. Prosecutorial Non-Disclosure
During the course of discovery in the original trial, the prosecutors disclosed to the defense the identity of a witness to the crime who allegedly was able only to identify the photograph of Petitioner’s co-defendant, but apparently not defendant, as the one of the individuals who had committed the attempted murder of Gerald Brown and the allegedly resulting shooting of Tawanda Robinson. See State’s Amended Disclosure. The witness identified was Jerome Harrington. As the attested statement of Mr. Beacon, a/k/a Jerome Harrington indicated, Mr. Beacon not only was unable to identify Mr. Jones as one of the alleged shooters of Gerald Brown or Tawanda Robinson, his testimony was that no one could have identified the shooters in question from his vantage, which his statement reveals was closer to the shooting than that of the sole eyewitness, Ginger Forrester. Accordingly, his testimony was exculpatory.
The information disclosed by the State on discovery therefore did not communicate the full exculpatory impact of Mr. Beacon’s testimony. That information, Mr. Jones argued in his Second Post-Conviction Petition was known by the State. The testimony itself is plainly material under the principles enunciated in United States v. Agurs, 427 U.S. 97 (1976). Accordingly, the Second Post-Conviction Petition maintained that the State’s failure to convey such information to the defense constituted a denial of due process requiring that both Mr. Jones’ convictions and sentences be vacated.
B. Ineffective Assistance of Counsel
At trial, Mr. Jones was represented by attorney Randolph Gregory. The only evidence offered at trial against Mr. Jones that connected him to the shooting of either Gerald Brown or Tawanda Robinson was the testimony of alleged eyewitness Ginger Forrester. In his first post conviction proceeding, Mr. Jones maintained that this testimony was perjured, having been obtained through the pressuring of the police.
In discovery provided by the State, Mr. Gregory was made aware that Mr. Beacon was also a witness to the crime charged. However, Mr. Jones asserted in the Second Post-Conviction Petition that Mr. Gregory did not interview Mr. Beacon prior to trial or attempt to do so. Had he interviewed Mr. Beacon, the testimony embodied in the appended attested statement by Mr. Beacon would have been placed before the jury to contradict that of Ms. Forrester. By Mr. Beacon’s testimony, (1) he was present near the scene of the shooting in question; (2) in the circumstances presented, he could not identify the shooters, (3) in the conditions no one could have identified the shooters; and (4) his vantage was superior to that of the State’s sole witness who testified that she in fact did see that Petitioner was one of the men who shot Gerald Brown and fired the shots that the State contends injured Tawanda Robinson.
The failure to conduct such pretrial investigation as would have located a witness such as Mr. Beacon and resulted in his interview as a witness to the shooting, the Second Post-Conviction Petition asserted fell outside the range of competence constitutionally expected of defense counsel under the Sixth and Fourteenth Amendments. In addition, the testimony from Mr. Beacon that such investigation would have produced was material in that it clearly creates a reasonable possibility that the jury result would have been different, as one or all jurors could reasonably have found Mr. Beacon’s eyewitness testimony more compelling than that of Ms. Forrester, and, on the basis of the reasonable doubt created by this conflict in eyewitness testimony, supported acquittal of Mr. Jones for the crimes charged. As such, the reliability of Mr. Jones convictions and the sentences that these convictions support must be questioned and both the convictions and the sentences vacated for the demonstrated violation of Mr. Jones’ right to adequate counsel under the Sixth and Fourteenth Amendments and Article 25 of the Maryland Declaration of Rights.
In addition to the above considerations, the legal representation afforded Mr. Jones at trial in the totality of the circumstances failed to meet the requirement of the Sixth and Fourteenth Amendments and Article 25 of the Maryland Declarations of Rights, for the following reasons, some of which have previously been addressed by a court without previously assessing the totality of their impact, taking into account the allegations made herein. These grounds, summarily stated, in addition to the failure of investigation and presentation regarding Mr. Beacon, are as follows:
1. Counsel failed to move for dismissal of the indictment when he became aware of the fact that no physical evidence connected Mr. Jones to the crime.
2. Mr. Jones’ contact and communication with original trial counsel was insufficient for counsel to secure from Mr. Jones information to assist in developing adequate pretrial investigation of the defense or to develop defense strategies in consultation with the client or to confer with client so as to afford sufficient time prior to trial to proceed with investigation of a defense or the deliberate development of a defense strategy.
3. Counsel failed to locate and call significant witnesses for the defense.
4. Counsel failed to subpoena documents, such as the criminal record of the State’s only witness connecting Mr. Jones to the crime or to impeach that witness using her criminal convictions that the jury never needed to address or using conflicts suggested by the timing of witnesses’ statement inculpating Mr. Jones and her testimony before the grand jury, suggesting that she had testified to a police photo identification Mr. Jones as one of the assailants , before the time, according to her police statement, that the identification was supposed to have occurred.
5. Counsel failed to prepare any alibi defense.
6. Counsel failed to prepare and develop the law sufficiently to provide a defense.
7. Counsel failed to object on both hearsay and confrontation clause grounds to the critical testimony offered by Police Detective Corey Belt regarding the inculpatory statements of a non-testifying declarant.
8. Counsel failed to object to the trial court’s misleading response to a jury question on transferred intent. See infra, Claim D.
9. Counsel failed to call Mr. Jones in his own defense.
10. Counsel called no witnesses on behalf of the defense.
11. Counsel failed to argue effectively the absence of physical evidence connecting Petitioner to the crime or to develop evidence of persons other than Petitioner as having committed the crime charged.
C. Newly Discovered Evidence
The testimony of Mr. Beacon was not developed at trial, and it was not secured at all until the investigation conducted recently on Mr. Jones’ behalf uncovered specifically what this witness to the crime had to say. The evidence against Mr. Jones is based entirely on the eyewitness identification of Ginger Forrester. There is no other testimony that connects Petitioner to the shooting in question, and there is no forensic evidence that associates him with this crime. In this circumstance, the present testimony of Mr. Beacon, a witness to the crime identified by the State at the time of the shooting, must be accepted as reliable, given the State’s identification of him as a witness in discovery. At this time, his testimony that no witness could have identified the assailants of Gerald Brown from his vantage or the inferior position of sole inculpatory witness Ginger Forrester meets the legal requirements of such new evidence the Second Post-Conviction Petition asserted would require the vacating of Mr. Jones’ convictions and sentences in the interests of justice.
D. Error Regarding the Court’s Response to the Jury Question on Transferred Intent
On or about May 10, 1991, during the course of the jurors’ deliberations on the verdict following the presentation of evidence, the jury submitted a note to the trial judge for a clarification of the law. In relevant part, the trial transcript reflects that the note read as follows: “Please give us the definition of transferred intent again. If a person is found guilty of one count of the attempted murder of Gerald can he be found guilty of the attempted murder of Tawanda?”
Trial Transcript, May 10, 1991, p. 3. After discussing with counsel the response the Circuit Court intended to give, the trial judge instructed the jury as follows in response to their question:
First, you ask for a definition of transferred intent. Transferred intent is the situation where a person attempts to kill one person but instead his bullets hit or their bullets hit another person. The law is that the guilt of an accused is exactly what it would have been had the shots been fired at the intended victim instead of the person actually injured.
The fact that the person actually injured was injured instead of the injured victim – instead of the intended victim – is immaterial, and the only question is, what would have been the degree of guilt if the result intended had actually been accomplished. The intent is transferred to the person who was injured.
Everybody understand that, or do you want me to read it again?
* * *
Let me read the rest of the questions that you asked and maybe this would answer it for you.
All right. You next ask, if a person is found not guilty on one count of the attempted murder of Gerald, can he be found guilty of the attempted murder of Tawanda?
And then you say, or if the defendants are found guilty of first degree attempted murder of Gerald, can they be found guilty of second degree on Tawanda.
All right, now here’s the answer to that. If you find the defendant not guilty of attempted first or second degree murder of Gerald Brown, then you cannot find the defendants guilty of first degree and second degree murder of Tawanda Robinson.
In other words, if you find them not guilty of both attempted first degree and second murder of Gerald Brown, then you cannot find the defendants guilty of first and second degree attempted murder of Tawanda Robinson.
If you find the defendants guilty of either first or second degree attempted murder of Gerald Brown, then you may find the defendants guilty of either attempted first or second degree murder of Tawanda Robinson. All right? . . . . Trial Transcript, May 10, 1991, at pp. 11-12.
Based upon the above quoted response to the jury inquiry regarding the application of the doctrine of transferred intent in cases involving only attempted first degree or second degree murder where a non-intended victim is injured, not killed, the Second Post-Conviction Petition maintained that the given instruction was legally erroneous under Maryland law. See State v. Wilson, 313 Md. 600 (1988). Beyond the legal inaccuracy of the instruction on the subject of transferred intent, the court’s response, the Second Post-Conviction Petition urged, confused for the jury the proper frame for its deliberation on Mr. Jones’ alleged guilt particularly with respect to the first or second degree attempted murder of Tawanda Robinson, allowing the jury to dispense with any finding of specific intent to murder Ms. Robinson and therefore be free to find Mr. Jones guilty of her attempted murder solely upon a finding of transferred specific intent to murder Mr. Brown, contrary to Maryland law. By so confusing the jury’s factual deliberations by this misstatement of law, the Second Post- Conviction Petition stated that not only did the original trial court deny Mr. Jones the consideration of due process with respect to the charge respecting the attempted murder of Ms. Robinson, but also as to the alleged attempted murder of Mr. Brown, to the extent that, by the Court’s instruction, a juror seeking to justify Mr. Jones’ culpability for the injury to Ms. Robinson, was instructed that it had to find him guilty of Mr. Brown’s attempted murder. The clear import of the question presented by the jury on May 10, 1991, revealed serious enough consideration by the jury that the defendants might not be guilty of the attempted murder of Mr. Brown to have prompted the question to begin with. Accordingly, by the erroneous instruction, not only did the Circuit Court err under Maryland law, it denied the Mr. Jones due process.
At the February 28, 2006 hearing, Mr. Jones maintained that he had not waived his right to raise the above concerns in his Second Post-Conviction Petition. He noted that he had been without the effective benefit of counsel in all of his prior challenges, including the first post-conviction proceeding in which counsel had been afforded him. His testimony, however, allowed that this representation arrived after the Applicant had prepared and developed the original claim. The Applicant stated that the attorney did nothing to shape the collection of the varied claims presented, and did little more than assist at the presentation of matters at a hearing before Circuit Judge David Mitchell.
In addition, the Applicant testified that his confinement restricted his access to legal research to represent himself fully and adequately.
Last, the Applicant noted that he has been subject to incarceration for the entirety if his life since the challenged convictions issued and his sentence had been imposed. As a result, without such assistance has he had been afforded by present post-conviction counsel to investigate the underlying facts and circumstances surrounding his conviction, he was unaware of the alleged testimony underlying the statement of Jerome Beacon. Unlearned in the law himself, limited in his ability to access legal research, and ph7yically limited in his ability to develop evidence, the Applicant maintained at the hearing that the matters set forth in the Second Post-Conviction Petition could not have earlier been presented by him to any degree of competence.
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III. STATEMENT OF FACTS
In the absence of a hearing on the merits of the Applicant’s Second Post-Conviction Petition, the underlying facts relating to this appeal are those alleged in the Second Petition itself or subsequently developed at the proceeding on February 28, 2006 regarding the Applicant’s prior challenges of his convictions and sentence.
In his Second Petition for Post-Conviction Relief, Applicant Jones challenged both his original convictions and his sentence of life imprisonment and 20 years, to be served consecutively, to raise four categories of claims. First, he contended that Mr. Beacon’s noted statement is exculpatory, and its exculpatory nature was known to the State at the time of the original trial. Inasmuch as the exculpatory nature of this testimony was not disclosed fully to Mr. Jones or his counsel, Mr. Jones contended that his convictions and sentences were in violation of due process, in accordance with the line of cases established by Brady v. Maryland, 373 U.S. 83 (1963).
Second, Mr. Jones contended that the exculpatory nature of Mr. Beacon’s comments should have been discovered in the due course of his own counsel’s pretrial investigation of the case. Inasmuch, as Mr. Jones contended that his counsel’s pretrial investigation did not include an interview with Mr. Beacon, a/k/a Jerome Harrington, whom trial counsel did not present as a witness at the original trial and Mr. Beacon states he has had no communication with any attorney for the Applicant other than present post-conviction counsel, Mr. Jones argued in the Circuit Court that he was denied effective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments of the United States Constitution and Article 25 of the Maryland Declaration of Rights.
Third, Mr. Jones contended that the attested testimony of Mr. Beacon, a/k/a Jerome Harrington, significantly undermined the evidence underlying Mr. Jones’ conviction, supported solely by the eyewitness testimony of one witness whose credibility has already been questioned in the first post-conviction proceeding. This statement of Mr. Beacon constitutes new evidence on which the original convictions and sentences should be vacated in accordance with the Maryland Rules.
In addition to the above claims arising from the statement of Jerome Beacon, Mr. Jones contended that the Court’s response to a jury question concerning the concept of “transferred intent” was on its face legally incorrect and so confusing as to deny Mr. Jones due process.
A. Prosecutorial Non-Disclosure
During the course of discovery in the original trial, the prosecutors disclosed to the defense the identity of a witness to the crime who allegedly was able only to identify the photograph of Petitioner’s co-defendant, but apparently not defendant, as the one of the individuals who had committed the attempted murder of Gerald Brown and the allegedly resulting shooting of Tawanda Robinson. See State’s Amended Disclosure. The witness identified was Jerome Harrington. As the attested statement of Mr. Beacon, a/k/a Jerome Harrington indicated, Mr. Beacon not only was unable to identify Mr. Jones as one of the alleged shooters of Gerald Brown or Tawanda Robinson, his testimony was that no one could have identified the shooters in question from his vantage, which his statement reveals was closer to the shooting than that of the sole eyewitness, Ginger Forrester. Accordingly, his testimony was exculpatory.
The information disclosed by the State on discovery therefore did not communicate the full exculpatory impact of Mr. Beacon’s testimony. That information, Mr. Jones argued in his Second Post-Conviction Petition was known by the State. The testimony itself is plainly material under the principles enunciated in United States v. Agurs, 427 U.S. 97 (1976). Accordingly, the Second Post-Conviction Petition maintained that the State’s failure to convey such information to the defense constituted a denial of due process requiring that both Mr. Jones’ convictions and sentences be vacated.
B. Ineffective Assistance of Counsel
At trial, Mr. Jones was represented by attorney Randolph Gregory. The only evidence offered at trial against Mr. Jones that connected him to the shooting of either Gerald Brown or Tawanda Robinson was the testimony of alleged eyewitness Ginger Forrester. In his first post conviction proceeding, Mr. Jones maintained that this testimony was perjured, having been obtained through the pressuring of the police.
In discovery provided by the State, Mr. Gregory was made aware that Mr. Beacon was also a witness to the crime charged. However, Mr. Jones asserted in the Second Post-Conviction Petition that Mr. Gregory did not interview Mr. Beacon prior to trial or attempt to do so. Had he interviewed Mr. Beacon, the testimony embodied in the appended attested statement by Mr. Beacon would have been placed before the jury to contradict that of Ms. Forrester. By Mr. Beacon’s testimony, (1) he was present near the scene of the shooting in question; (2) in the circumstances presented, he could not identify the shooters, (3) in the conditions no one could have identified the shooters; and (4) his vantage was superior to that of the State’s sole witness who testified that she in fact did see that Petitioner was one of the men who shot Gerald Brown and fired the shots that the State contends injured Tawanda Robinson.
The failure to conduct such pretrial investigation as would have located a witness such as Mr. Beacon and resulted in his interview as a witness to the shooting, the Second Post-Conviction Petition asserted fell outside the range of competence constitutionally expected of defense counsel under the Sixth and Fourteenth Amendments. In addition, the testimony from Mr. Beacon that such investigation would have produced was material in that it clearly creates a reasonable possibility that the jury result would have been different, as one or all jurors could reasonably have found Mr. Beacon’s eyewitness testimony more compelling than that of Ms. Forrester, and, on the basis of the reasonable doubt created by this conflict in eyewitness testimony, supported acquittal of Mr. Jones for the crimes charged. As such, the reliability of Mr. Jones convictions and the sentences that these convictions support must be questioned and both the convictions and the sentences vacated for the demonstrated violation of Mr. Jones’ right to adequate counsel under the Sixth and Fourteenth Amendments and Article 25 of the Maryland Declaration of Rights.
In addition to the above considerations, the legal representation afforded Mr. Jones at trial in the totality of the circumstances failed to meet the requirement of the Sixth and Fourteenth Amendments and Article 25 of the Maryland Declarations of Rights, for the following reasons, some of which have previously been addressed by a court without previously assessing the totality of their impact, taking into account the allegations made herein. These grounds, summarily stated, in addition to the failure of investigation and presentation regarding Mr. Beacon, are as follows:
1. Counsel failed to move for dismissal of the indictment when he became aware of the fact that no physical evidence connected Mr. Jones to the crime.
2. Mr. Jones’ contact and communication with original trial counsel was insufficient for counsel to secure from Mr. Jones information to assist in developing adequate pretrial investigation of the defense or to develop defense strategies in consultation with the client or to confer with client so as to afford sufficient time prior to trial to proceed with investigation of a defense or the deliberate development of a defense strategy.
3. Counsel failed to locate and call significant witnesses for the defense.
4. Counsel failed to subpoena documents, such as the criminal record of the State’s only witness connecting Mr. Jones to the crime or to impeach that witness using her criminal convictions that the jury never needed to address or using conflicts suggested by the timing of witnesses’ statement inculpating Mr. Jones and her testimony before the grand jury, suggesting that she had testified to a police photo identification Mr. Jones as one of the assailants , before the time, according to her police statement, that the identification was supposed to have occurred.
5. Counsel failed to prepare any alibi defense.
6. Counsel failed to prepare and develop the law sufficiently to provide a defense.
7. Counsel failed to object on both hearsay and confrontation clause grounds to the critical testimony offered by Police Detective Corey Belt regarding the inculpatory statements of a non-testifying declarant.
8. Counsel failed to object to the trial court’s misleading response to a jury question on transferred intent. See infra, Claim D.
9. Counsel failed to call Mr. Jones in his own defense.
10. Counsel called no witnesses on behalf of the defense.
11. Counsel failed to argue effectively the absence of physical evidence connecting Petitioner to the crime or to develop evidence of persons other than Petitioner as having committed the crime charged.
C. Newly Discovered Evidence
The testimony of Mr. Beacon was not developed at trial, and it was not secured at all until the investigation conducted recently on Mr. Jones’ behalf uncovered specifically what this witness to the crime had to say. The evidence against Mr. Jones is based entirely on the eyewitness identification of Ginger Forrester. There is no other testimony that connects Petitioner to the shooting in question, and there is no forensic evidence that associates him with this crime. In this circumstance, the present testimony of Mr. Beacon, a witness to the crime identified by the State at the time of the shooting, must be accepted as reliable, given the State’s identification of him as a witness in discovery. At this time, his testimony that no witness could have identified the assailants of Gerald Brown from his vantage or the inferior position of sole inculpatory witness Ginger Forrester meets the legal requirements of such new evidence the Second Post-Conviction Petition asserted would require the vacating of Mr. Jones’ convictions and sentences in the interests of justice.
D. Error Regarding the Court’s Response to the Jury Question on Transferred Intent
On or about May 10, 1991, during the course of the jurors’ deliberations on the verdict following the presentation of evidence, the jury submitted a note to the trial judge for a clarification of the law. In relevant part, the trial transcript reflects that the note read as follows: “Please give us the definition of transferred intent again. If a person is found guilty of one count of the attempted murder of Gerald can he be found guilty of the attempted murder of Tawanda?”
Trial Transcript, May 10, 1991, p. 3. After discussing with counsel the response the Circuit Court intended to give, the trial judge instructed the jury as follows in response to their question:
First, you ask for a definition of transferred intent. Transferred intent is the situation where a person attempts to kill one person but instead his bullets hit or their bullets hit another person. The law is that the guilt of an accused is exactly what it would have been had the shots been fired at the intended victim instead of the person actually injured.
The fact that the person actually injured was injured instead of the injured victim – instead of the intended victim – is immaterial, and the only question is, what would have been the degree of guilt if the result intended had actually been accomplished. The intent is transferred to the person who was injured.
Everybody understand that, or do you want me to read it again?
* * *
Let me read the rest of the questions that you asked and maybe this would answer it for you.
All right. You next ask, if a person is found not guilty on one count of the attempted murder of Gerald, can he be found guilty of the attempted murder of Tawanda?
And then you say, or if the defendants are found guilty of first degree attempted murder of Gerald, can they be found guilty of second degree on Tawanda.
All right, now here’s the answer to that. If you find the defendant not guilty of attempted first or second degree murder of Gerald Brown, then you cannot find the defendants guilty of first degree and second degree murder of Tawanda Robinson.
In other words, if you find them not guilty of both attempted first degree and second murder of Gerald Brown, then you cannot find the defendants guilty of first and second degree attempted murder of Tawanda Robinson.
If you find the defendants guilty of either first or second degree attempted murder of Gerald Brown, then you may find the defendants guilty of either attempted first or second degree murder of Tawanda Robinson. All right? . . . . Trial Transcript, May 10, 1991, at pp. 11-12.
Based upon the above quoted response to the jury inquiry regarding the application of the doctrine of transferred intent in cases involving only attempted first degree or second degree murder where a non-intended victim is injured, not killed, the Second Post-Conviction Petition maintained that the given instruction was legally erroneous under Maryland law. See State v. Wilson, 313 Md. 600 (1988). Beyond the legal inaccuracy of the instruction on the subject of transferred intent, the court’s response, the Second Post-Conviction Petition urged, confused for the jury the proper frame for its deliberation on Mr. Jones’ alleged guilt particularly with respect to the first or second degree attempted murder of Tawanda Robinson, allowing the jury to dispense with any finding of specific intent to murder Ms. Robinson and therefore be free to find Mr. Jones guilty of her attempted murder solely upon a finding of transferred specific intent to murder Mr. Brown, contrary to Maryland law. By so confusing the jury’s factual deliberations by this misstatement of law, the Second Post- Conviction Petition stated that not only did the original trial court deny Mr. Jones the consideration of due process with respect to the charge respecting the attempted murder of Ms. Robinson, but also as to the alleged attempted murder of Mr. Brown, to the extent that, by the Court’s instruction, a juror seeking to justify Mr. Jones’ culpability for the injury to Ms. Robinson, was instructed that it had to find him guilty of Mr. Brown’s attempted murder. The clear import of the question presented by the jury on May 10, 1991, revealed serious enough consideration by the jury that the defendants might not be guilty of the attempted murder of Mr. Brown to have prompted the question to begin with. Accordingly, by the erroneous instruction, not only did the Circuit Court err under Maryland law, it denied the Mr. Jones due process.
At the February 28, 2006 hearing, Mr. Jones maintained that he had not waived his right to raise the above concerns in his Second Post-Conviction Petition. He noted that he had been without the effective benefit of counsel in all of his prior challenges, including the first post-conviction proceeding in which counsel had been afforded him. His testimony, however, allowed that this representation arrived after the Applicant had prepared and developed the original claim. The Applicant stated that the attorney did nothing to shape the collection of the varied claims presented, and did little more than assist at the presentation of matters at a hearing before Circuit Judge David Mitchell.
In addition, the Applicant testified that his confinement restricted his access to legal research to represent himself fully and adequately.
Last, the Applicant noted that he has been subject to incarceration for the entirety if his life since the challenged convictions issued and his sentence had been imposed. As a result, without such assistance has he had been afforded by present post-conviction counsel to investigate the underlying facts and circumstances surrounding his conviction, he was unaware of the alleged testimony underlying the statement of Jerome Beacon. Unlearned in the law himself, limited in his ability to access legal research, and ph7yically limited in his ability to develop evidence, the Applicant maintained at the hearing that the matters set forth in the Second Post-Conviction Petition could not have earlier been presented by him to any degree of competence.
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