Opinion
No. 54, September Term, 1967.
Decided December 12, 1967.
POST CONVICTION PROCEDURE — Allegations As To Sufficiency Of Evidence Not Grounds For Relief. A contention of insufficiency of the evidence produced at the applicant's trial cannot be raised under the Post Conviction Procedure Act. p. 610
POST CONVICTION PROCEDURE — Contention As To Denial Of Due Process Held Bald Allegation. A contention that "petitioner was denied due process of law" is a bald allegation, not considered under the Post Conviction Procedure Act. p. 610
POST CONVICTION PROCEDURE — Allegation That Past Record Was Deciding Factor In Conviction Disposed Of As Either A Bald Allegation Or An Abandoned Contention. Where applicant's allegation that his past record was made an issue and was a deciding factor in his conviction, was not supported by facts, it could have been disposed of as either a bald allegation not properly considered under the Post Conviction Procedure Act, or as an abandoned contention, since the post conviction hearing judge stated in his memorandum that none of the testimony taken at the hearing touched upon such contention. p. 610
POST CONVICTION PROCEDURE — Waiver Of Allegations Not Previously Raised. Where applicant did not take advantage of his right to a direct appeal, he was deemed to have waived allegations as to the sufficiency of the evidence and as to the use of his past record as a deciding factor in his conviction. Code (1957), Art. 27, § 645A(c). p. 610
POST CONVICTION PROCEDURE — Application For Leave To Appeal — Denial For Failure To State Reasons For Reversal Or Modification. An application for leave to appeal may be denied where it does not contain a statement of the reasons why the order of the lower court should be reversed or modified. Rule BK 46 b. p. 610
Decided December 12, 1967.
Application for leave to appeal from the Criminal Court of Baltimore (GRADY, J.).
Leroy Cabiness instituted a proceeding under the Uniform Post Conviction Procedure Act, and, from a denial of relief, he applied for leave to appeal.
Application denied.
Before MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
This is an application for leave to appeal from an order of May 23, 1967, by Judge J. Harold Grady, sitting in the Criminal 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.