Opinion
[H.C. No. 2, October Term, 1948.]
Decided May 28, 1948.
Habeas Corpus — Guilt or Innocence and Weight and Sufficiency of Evidence Not Retriable On — Allegations of Deprivation of Right to Select Counsel, Failure of Counsel Appointed to Defend, and Lack of Communication Until 12 Hours Before Trial Require Facts in Support.
The questions of guilt or innocence and the weight and sufficiency of the evidence cannot be retried on habeas corpus. p. 742
Where an application for leave to appeal a habeas corpus case alleges that applicant was deprived of the right to have his own counsel and was forced against his will to take a lawyer appointed by the court, who failed to defend him, and he was not permitted to communicate with anyone until 12 hours before trial, but no transcript is filed, no allegation is made that he asked the court for appointment of counsel of his own selection, and no facts are alleged showing collusion or misconduct of counsel, the application will be denied. p. 742
Decided May 28, 1948.
Proceeding by the State of Maryland, on relation of Clarence B. Bernard, against the Warden of the Maryland Penitentiary for a writ of habeas corpus. On application for leave to appeal from refusal of the writ.
Application denied.
Before MARBURY, C.J., DELAPLAINE, COLLINS, GRASON, HENDERSON, and MARKELL, JJ.
This is an application for leave to appeal from refusal of a writ of habeas corpus. Petitioner is imprisoned under sentence of five years for riot. The petition contains substantially the same allegations as a former petition which we held insufficient to entitle him to issuance of the writ. Bernard v. Warden of Maryland House of Correction, 187 Md. 273, 49 A.2d 737. Petitioner also alleges that he was deprived of the right to have his own counsel and was forced against his will to take a lawyer appointed by the court, who "failed to defend him", and he was not permitted to communicate with anyone till twelve hours before trial. No copy of the transcript of proceedings is filed with the petition, it is not alleged that before the trial was begun petitioner asked the court for an opportunity to obtain counsel of his own selection, and no facts are alleged which show any collusion or misconduct of counsel or any violation of any fundamental right. Nance v. Warden of Maryland House of Correction, 189 Md. 112, 53 A.2d 554, 555.
Since the former decision of this court petitioner has filed in the United States District Court a petition for habeas corpus on practically the same grounds. The petition was denied and an appeal was dismissed. Bernard v. Brady, 4 Cir., 164 F.2d 881. Two petitions have been denied by the Supreme Court. Bernard v. Wright, 326 U.S. 689, 66 S.Ct. 134, 90 L.Ed. 405; Ex parte Bernard, 330 U.S. 805, 67 S.Ct. 975, 91 L.Ed. 1263. A number of petitions have been denied by state court judges. Petitioner asserts that he was not guilty and complains that he has not been given a hearing on habeas corpus. As we have held that the questions of guilt or innocence and the weight and sufficiency of the evidence cannot be retried on habeas corpus, it ought to be clear by this time that repeated refusals of the writ on this ground are not a reason for further applications but indicate that such applications are useless.
Application denied, without costs.