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IV. ARGUMENT
The problem presented by the underling proceeding crying out for correction on appeal is that the record of proceedings described by the Circuit Court that serves as the foundation for its decision simply fails to correspond with the documentary record of what actually transpired in the Circuit Court. In short, there is at least one critical event that the Circuit Court’s Memorandum and Opinion suggests occurred that did not, and at least one critical event that did occur, about which the Circuit Court make no reference. As a result, it is impossible to make sense of how the Circuit Court reached its decision given where the proceedings were just before the Court was tasked to make the decision.
On February 28, 2006, when the next to last event in this case had concluded, the court proceeding on that date, there was pending a motion to dismiss the petition filed by the State, still undecided. Evidence taken during that proceeding was strictly limited by the Circuit Judge to issues raised by the State’s Motion to Dismiss the Petition, and any evidence remotely going to the merits of the petition the Circuit Court excluded. Twenty months later, on October 29, 2007, without there being any other proceedings in the case, the Circuit Court issued a decision that construed the hearing on February 28, 2006, as a hearing on the merits in which, by implication, the Applicant had every opportunity to submit proof supporting his claims, and as to which, the Circuit Court could deny claims on the basis of an insufficient evidentiary showing by the Applicant. In fact, the Applicant had no such opportunity at the motions hearing held on February 28, 2006. Such discrepancy between the Court’s decision and the record merits the possibility of correction on appeal. In such an appeal, the grounds supporting the Applicant’s position would be as follows.
A. The Court’s Denial to Applicant Jones of an Evidentiary Hearing in the Circumstances Presented is In Violation of Law and the Applicant’s Constitutional Rights.
In Stovall v. State, 144 Md. App. 711, 715-716 (2002), the Court of Special Appeals held that “a post conviction petitioner (1) is entitled to the effective assistance of post conviction counsel, and (2) has a right to reopen a post conviction proceeding by asserting facts that – if proven to be true at a subsequent hearing – establish that post conviction relief would have been granted but for the ineffectiveness of the petitioner’s post conviction counsel.” At the February 28, 2006 hearing, the Applicant was seeking only to meet this standard in order to afford a full hearing on his Second Post-Conviction Petition claims. Indeed, on the showing established at the hearing he met that standard.
Instead, by arriving at a decision that the very proceeding in which the Applicant sought to secure a full hearing was in fact his full hearing, the Circuit Court effectively denied the Applicant the proceeding it said he had enjoyed. A simple review of the transcript of the proceeding on February 28, 2006 will reveal the absence of any opportunity to address the merits of the Applicant’s claim.
If under Stovall, the Applicant was entitled to a hearing on the merits of which he has full notice of its consequence and the opportunity to offer evidence on the merit claims, notwithstanding the State’s objections that these claims seemed similar to prior allegations, what the Circuit Court did in this case plainly denies to the Applicant what Stovall appears to afford him.
Second, if under this process, the Applicant is denied relief, without a real hearing on the merits, he has also been denied the rudiments of due process under the 14th Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 559-560 (1974)(due process at least requires notice of the issues raised by the proceeding afforded, and a meaningful opportunity to be heard).
The impact of such error resonates to invalidate the Court’s holding on all issues. The Circuit Court concludes that the evidence offered by the Beacon statement lacks credibility, see Memorandum and Opinion at p. 3, even though the Circuit Judge never heard Mr. Beacon testify or withstand any cross-examination. The Circuit Judge finds “no evidence that the prosecutor withheld the information at issue,” see Memorandum and Opinion at p. 5, even though the Applicant had no opportunity to present trial counsel, and the record of the State’s disclosure is silent disclosing this particular point. The Circuit Court rejects the Applicant’s accumulation of errors by trial counsel, expressly finding “the eleven (11) cumulative grounds for ineffective assistance of counsel are unproven by Petitioner or considered sound trial strategy by Petitioner’s trial counsel” see Memorandum and Opinion at p. 6, without ever hearing from trial counsel. As to the Applicant’s claim of an improper jury instruction, the Circuit Court concluded that the Applicant had waived the right to present this issue on the basis of a reference to a prior Writ of Corum Nobis proceeding, see Memorandum and Opinion at p. 7, that never was part of the record of any prior hearing on the Petition as to which the Applicant had a prior opportunity to answer.
In all, the procedural circumstances of this case challenge any notion of due procedure and fundamental fairness and, on the basis of even this preliminary showing warrant appellate review.
B. The Proffered Statement of Beacon is Not Immaterial as a Matter of Law as to Justify Rejection of the Applicant’s Prosecutorial Non- Disclosure and Ineffective Assistance of Counsel Claims Without Any Evidentiary Hearing on the Merits.
If the testimony of Beacon is credited, and at this stage of the proceedings on February 28, 2006, with the State’s Motion to Dismiss still pending and no opportunity given for an evidentiary hearing, such evidence can only be refuted after hearing and weighing live testimony, the showing offered, if credited, would support a conclusion that Applicant was denied due process as a result of the prosecutor not disclosing what Beacon claims he shared with the police.. In the circumstances of this case, the Applicant’s conviction rested solely on the testimony of a single eyewitness, with a prior perjury conviction and whose identification of the Applicant may have arisen from circumstances suggestive of police coercion, which latter circumstances were reviewed by Judge Mitchell in his resolution of the 1996 post-conviction case. In these circumstances, the absence of Beacon’s testimony regarding the conditions for the identification cannot be dismissed as harmless, compare Younie v. State, 19 Md. App. 439, 459-61 (1973), rev’d on other grounds, 272 Md. 233 (1974), nor can it be concluded that the Beacon testimony bore no reasonable probability to change the outcome reached by the jury. See Kyles v. Whitley, 514 U.S. 419 (1995) (conviction and sentence reversed where state withheld evidence of eyewitnesses and informant statements, and a list of license numbers because the information may have created a “reasonable probability” of a different result); United States v. Agurs, 427 U.S. 97 (1976).
In addition, if the Beacon statement is credited, it provides strong evidence of trial counsel’s ineffectiveness under the Sixth and Fourteenth Amendments. See Strickland v. Washington, 466 U.S. 668 (1984). Under the Strickland standard, an aggrieved defendant must show that the performance of his attorney fell below an objective standard of reasonableness and that the claimed deficiency resulted in prejudice. However, as the prejudice standard in Strickland is the same standard of materiality with respect to prosecutorial nondisclosure, what makes the Beacon statement material to justify vacating the Applicant’s conviction under Brady, if the statement were not disclosed, makes counsel’s failure to produce him as a witness prejudicial under Strickland, if the decision not to call him constitutes a deviation from an objective standard of attorney competence.
Here, trial counsel was notified of Beacon’s relationship to the case in the disclosure communicated by the State; yet, according to Beacon, trial counsel never interviewed him. While Strickland would allow deference to counsel’s strategic judgments, the law is clear that a lawyer’s failure to investigate does not give rise to such judicial deference. See, e.g., In re: Parris W., 363 Md. 717, 733-36 (2001) (vacating a delinquency adjudication finding ineffective assistance for counsel’s failure to investigate alibi witness).
Under these circumstances, for the Circuit Court to reject affording the Applicant a fair opportunity to establish the basis for these claims is simple erroneous as a matter of law, and the Applicant should be afforded the opportunity to secure appellate review.
D. The Circuit Court Failed to Consider Whether the Applicant Was Due Revision of his Judgment of Conviction and the consequent Sentence for Newly Discovered Evidence on a basis other than Post Conviction Relief.
The Circuit Court rejected the Applicant’s newly discovered evidence on the ground that the decision in Jones v. Warden, Maryland Correctional Institution, 11 Md. App. 343, 346 (1971) provides that “a claim of discovery of new evidence that might have changed the result of conviction is not grounds for post conviction relief.” However, the cited decision looks beyond the remedy of post-conviction relief to acknowledge the revisory power of the Court to grant a new trial under the Maryland Rules of Procedure. See Jones v. Warden, Maryland Correctional Institution, 11. Md. App. at 346-347. Accordingly, the decision of the Circuit Court is necessarily incomplete legally in the absence of this latter exploration.
The Applicant accordingly seeks the opportunity to explore and raise on appeal the prospect of a remand to the Circuit Court to complete this analysis on a fully developed record after an evidentiary hearing.
E. The Circuit Court Rejected the Plaintiff’s Claim Regarding Misinstruction of the Jury on Transferred Intent on the basis of findings from a record developed after the Applicant’s opportunity to be heard.
The Circuit Court rejected the Applicant’s claim regarding the original trial court’s jury instructions on transferred intent based upon the finding that the Applicant raised this claim in an earlier proceeding. The Applicant challenges the Circuit Court’s finding on this point, and further questions whether the Circuit Court’s conclusion might be based upon information developed from the court record after the hearing on February 28, 2007, thereby depriving the Applicant of a fair opportunity to address the record.
In this case, the Applicant addressed the question of whether he had previously raised issues, and also whether the proceeding should now be reopened under Stovall. The Applicant accordingly seeks the opportunity to argue on appeal the Stovall implications of this record that the Circuit Court opinion simply fails to address or dismiss.
V. CONCLUSION For the forgoing reasons, the Court should grant Applicant Jones leave to appeal the questions reviewed herein. At this time, the parties have not had an appropriate opportunity to order and review full transcripts of the recent post conviction proceeding, or in the short time provided for the filing of this application, to complete appropriate and updated research of the important issues raised. The Applicant should be given a fair opportunity to appeal this matter to present these questions to an appellate court on the present record in order fairly to establish consistency between the procedural grounding for the outcome of the Applicant’s claim and the actual documentary record and to test the post-conviction court=s controlling assumption, at least
on materiality. Thus, this Court should order that this Application be granted and that this case be transferred to the regular docket of the Court of Special Appeals for briefing and argument.
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IV. ARGUMENT
The problem presented by the underling proceeding crying out for correction on appeal is that the record of proceedings described by the Circuit Court that serves as the foundation for its decision simply fails to correspond with the documentary record of what actually transpired in the Circuit Court. In short, there is at least one critical event that the Circuit Court’s Memorandum and Opinion suggests occurred that did not, and at least one critical event that did occur, about which the Circuit Court make no reference. As a result, it is impossible to make sense of how the Circuit Court reached its decision given where the proceedings were just before the Court was tasked to make the decision.
On February 28, 2006, when the next to last event in this case had concluded, the court proceeding on that date, there was pending a motion to dismiss the petition filed by the State, still undecided. Evidence taken during that proceeding was strictly limited by the Circuit Judge to issues raised by the State’s Motion to Dismiss the Petition, and any evidence remotely going to the merits of the petition the Circuit Court excluded. Twenty months later, on October 29, 2007, without there being any other proceedings in the case, the Circuit Court issued a decision that construed the hearing on February 28, 2006, as a hearing on the merits in which, by implication, the Applicant had every opportunity to submit proof supporting his claims, and as to which, the Circuit Court could deny claims on the basis of an insufficient evidentiary showing by the Applicant. In fact, the Applicant had no such opportunity at the motions hearing held on February 28, 2006. Such discrepancy between the Court’s decision and the record merits the possibility of correction on appeal. In such an appeal, the grounds supporting the Applicant’s position would be as follows.
A. The Court’s Denial to Applicant Jones of an Evidentiary Hearing in the Circumstances Presented is In Violation of Law and the Applicant’s Constitutional Rights.
In Stovall v. State, 144 Md. App. 711, 715-716 (2002), the Court of Special Appeals held that “a post conviction petitioner (1) is entitled to the effective assistance of post conviction counsel, and (2) has a right to reopen a post conviction proceeding by asserting facts that – if proven to be true at a subsequent hearing – establish that post conviction relief would have been granted but for the ineffectiveness of the petitioner’s post conviction counsel.” At the February 28, 2006 hearing, the Applicant was seeking only to meet this standard in order to afford a full hearing on his Second Post-Conviction Petition claims. Indeed, on the showing established at the hearing he met that standard.
Instead, by arriving at a decision that the very proceeding in which the Applicant sought to secure a full hearing was in fact his full hearing, the Circuit Court effectively denied the Applicant the proceeding it said he had enjoyed. A simple review of the transcript of the proceeding on February 28, 2006 will reveal the absence of any opportunity to address the merits of the Applicant’s claim.
If under Stovall, the Applicant was entitled to a hearing on the merits of which he has full notice of its consequence and the opportunity to offer evidence on the merit claims, notwithstanding the State’s objections that these claims seemed similar to prior allegations, what the Circuit Court did in this case plainly denies to the Applicant what Stovall appears to afford him.
Second, if under this process, the Applicant is denied relief, without a real hearing on the merits, he has also been denied the rudiments of due process under the 14th Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 559-560 (1974)(due process at least requires notice of the issues raised by the proceeding afforded, and a meaningful opportunity to be heard).
The impact of such error resonates to invalidate the Court’s holding on all issues. The Circuit Court concludes that the evidence offered by the Beacon statement lacks credibility, see Memorandum and Opinion at p. 3, even though the Circuit Judge never heard Mr. Beacon testify or withstand any cross-examination. The Circuit Judge finds “no evidence that the prosecutor withheld the information at issue,” see Memorandum and Opinion at p. 5, even though the Applicant had no opportunity to present trial counsel, and the record of the State’s disclosure is silent disclosing this particular point. The Circuit Court rejects the Applicant’s accumulation of errors by trial counsel, expressly finding “the eleven (11) cumulative grounds for ineffective assistance of counsel are unproven by Petitioner or considered sound trial strategy by Petitioner’s trial counsel” see Memorandum and Opinion at p. 6, without ever hearing from trial counsel. As to the Applicant’s claim of an improper jury instruction, the Circuit Court concluded that the Applicant had waived the right to present this issue on the basis of a reference to a prior Writ of Corum Nobis proceeding, see Memorandum and Opinion at p. 7, that never was part of the record of any prior hearing on the Petition as to which the Applicant had a prior opportunity to answer.
In all, the procedural circumstances of this case challenge any notion of due procedure and fundamental fairness and, on the basis of even this preliminary showing warrant appellate review.
B. The Proffered Statement of Beacon is Not Immaterial as a Matter of Law as to Justify Rejection of the Applicant’s Prosecutorial Non- Disclosure and Ineffective Assistance of Counsel Claims Without Any Evidentiary Hearing on the Merits.
If the testimony of Beacon is credited, and at this stage of the proceedings on February 28, 2006, with the State’s Motion to Dismiss still pending and no opportunity given for an evidentiary hearing, such evidence can only be refuted after hearing and weighing live testimony, the showing offered, if credited, would support a conclusion that Applicant was denied due process as a result of the prosecutor not disclosing what Beacon claims he shared with the police.. In the circumstances of this case, the Applicant’s conviction rested solely on the testimony of a single eyewitness, with a prior perjury conviction and whose identification of the Applicant may have arisen from circumstances suggestive of police coercion, which latter circumstances were reviewed by Judge Mitchell in his resolution of the 1996 post-conviction case. In these circumstances, the absence of Beacon’s testimony regarding the conditions for the identification cannot be dismissed as harmless, compare Younie v. State, 19 Md. App. 439, 459-61 (1973), rev’d on other grounds, 272 Md. 233 (1974), nor can it be concluded that the Beacon testimony bore no reasonable probability to change the outcome reached by the jury. See Kyles v. Whitley, 514 U.S. 419 (1995) (conviction and sentence reversed where state withheld evidence of eyewitnesses and informant statements, and a list of license numbers because the information may have created a “reasonable probability” of a different result); United States v. Agurs, 427 U.S. 97 (1976).
In addition, if the Beacon statement is credited, it provides strong evidence of trial counsel’s ineffectiveness under the Sixth and Fourteenth Amendments. See Strickland v. Washington, 466 U.S. 668 (1984). Under the Strickland standard, an aggrieved defendant must show that the performance of his attorney fell below an objective standard of reasonableness and that the claimed deficiency resulted in prejudice. However, as the prejudice standard in Strickland is the same standard of materiality with respect to prosecutorial nondisclosure, what makes the Beacon statement material to justify vacating the Applicant’s conviction under Brady, if the statement were not disclosed, makes counsel’s failure to produce him as a witness prejudicial under Strickland, if the decision not to call him constitutes a deviation from an objective standard of attorney competence.
Here, trial counsel was notified of Beacon’s relationship to the case in the disclosure communicated by the State; yet, according to Beacon, trial counsel never interviewed him. While Strickland would allow deference to counsel’s strategic judgments, the law is clear that a lawyer’s failure to investigate does not give rise to such judicial deference. See, e.g., In re: Parris W., 363 Md. 717, 733-36 (2001) (vacating a delinquency adjudication finding ineffective assistance for counsel’s failure to investigate alibi witness).
Under these circumstances, for the Circuit Court to reject affording the Applicant a fair opportunity to establish the basis for these claims is simple erroneous as a matter of law, and the Applicant should be afforded the opportunity to secure appellate review.
D. The Circuit Court Failed to Consider Whether the Applicant Was Due Revision of his Judgment of Conviction and the consequent Sentence for Newly Discovered Evidence on a basis other than Post Conviction Relief.
The Circuit Court rejected the Applicant’s newly discovered evidence on the ground that the decision in Jones v. Warden, Maryland Correctional Institution, 11 Md. App. 343, 346 (1971) provides that “a claim of discovery of new evidence that might have changed the result of conviction is not grounds for post conviction relief.” However, the cited decision looks beyond the remedy of post-conviction relief to acknowledge the revisory power of the Court to grant a new trial under the Maryland Rules of Procedure. See Jones v. Warden, Maryland Correctional Institution, 11. Md. App. at 346-347. Accordingly, the decision of the Circuit Court is necessarily incomplete legally in the absence of this latter exploration.
The Applicant accordingly seeks the opportunity to explore and raise on appeal the prospect of a remand to the Circuit Court to complete this analysis on a fully developed record after an evidentiary hearing.
E. The Circuit Court Rejected the Plaintiff’s Claim Regarding Misinstruction of the Jury on Transferred Intent on the basis of findings from a record developed after the Applicant’s opportunity to be heard.
The Circuit Court rejected the Applicant’s claim regarding the original trial court’s jury instructions on transferred intent based upon the finding that the Applicant raised this claim in an earlier proceeding. The Applicant challenges the Circuit Court’s finding on this point, and further questions whether the Circuit Court’s conclusion might be based upon information developed from the court record after the hearing on February 28, 2007, thereby depriving the Applicant of a fair opportunity to address the record.
In this case, the Applicant addressed the question of whether he had previously raised issues, and also whether the proceeding should now be reopened under Stovall. The Applicant accordingly seeks the opportunity to argue on appeal the Stovall implications of this record that the Circuit Court opinion simply fails to address or dismiss.
V. CONCLUSION For the forgoing reasons, the Court should grant Applicant Jones leave to appeal the questions reviewed herein. At this time, the parties have not had an appropriate opportunity to order and review full transcripts of the recent post conviction proceeding, or in the short time provided for the filing of this application, to complete appropriate and updated research of the important issues raised. The Applicant should be given a fair opportunity to appeal this matter to present these questions to an appellate court on the present record in order fairly to establish consistency between the procedural grounding for the outcome of the Applicant’s claim and the actual documentary record and to test the post-conviction court=s controlling assumption, at least
on materiality. Thus, this Court should order that this Application be granted and that this case be transferred to the regular docket of the Court of Special Appeals for briefing and argument.
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