“The Defense Never Rests.”

Additional Types of Post-Conviction Relief

We evaluate the range of post-conviction claims to pursue for a client under the uniform post-conviction procedure act. Under the uniform act, we aggressively pursue claims that a conviction was obtained, or a sentence was imposed in violation of the federal or state constitution or applicable law. We also work with clients seeking parole, commutation, a pardon or clemency. In addition, we analyze other potential claims for clients, such as:

State Habeas Corpus

  • Habeas corpus gives individuals the right to challenge their detention. It is a court order which directs the law enforcement officials (prison administrators, police, or sheriff) who have custody of a Petitioner to appear in court to help the court determine whether the Petitioner is unlawfully in prison or jail.
  • Anyone committed, detained, confined, or restrained for any offense under color of law may petition. MD. CTS. & JUD. PROC. CODE ANN. § 3-702. See Lomax v. Warden, Maryland Correctional Training Center, 356 Md. 569 (1999) (habeas corpus actions are appropriate when the relief sought is release, but also when the relief sought is a proceeding or hearing which may lead to the petitioner’s release); Pollock v. Patuxent Institution Board of Review, 358 Md. 656, 668-69 (2000) (holding that the relief sought through a habeas corpus petition is not limited to the release of a prisoner, it can also cause a new parole hearing to be ordered (citing Gluckstern v. Sutton, 319 Md. 634 (1990)).
  • A habeas corpus petition may be filed with any judge of any Circuit Court or appellate court, who must immediately resolve petition or refer the petition to Circuit Court in which the petitioner was convicted (but cannot be heard by trial judge). MD. CTS. & JUD. PROC. CODE ANN. §§ 3-701 & 3-702.
  • With a determination that Petitioner is being held unlawfully or that Petitioner is being held under an unconstitutional law, Petitioner is released. MD. CTS. & JUD. PROC. CODE ANN. §§ 3-704 & 3-706.

Coram Nobis

  • A petition for a writ of error coram nobis may be filed by anyone who is not incarcerated and not on parole or probation, who is faced with a significant collateral consequence of his or her conviction, and who can legitimately challenge the conviction on constitutional or fundamental grounds. Parker v. State, 160 Md. App. 672 (2005). Whether on the basis of error of fact or error of law, the burden of proof is on the petitioner to show that the grounds for challenging the criminal conviction are of a constitutional, jurisdictional, or fundamental character; that the petitioner is suffering or facing significant collateral consequences from the conviction; and that there is no other statutory or common law remedy then available. Id.
  • An action for a writ of error of coram nobis is commenced by filing a petition in the court in which the conviction occurred. Md. Rule 15-1202(a). A court may exercise its discretion to hold a hearing on the petition for writ of coram nobis. A court may deny the petition without a hearing but may only grant it with a hearing. The court may allow evidence to be presented, and in the interest of justice may decline to require a strict application of the rules of evidence, with the exception of rules pertaining to the competency of witnesses. Md. Rule 15-1205(a).
  • The court shall prepare for the record a statement detailing each ground on which the petition is based, the federal and state rights involved, and the court’s ruling and reason for the ruling as to each ground. An order granting or denying relief shall accompany this statement. If the order is in favor the petition, the court may specify other arrangements, such as re-arraignment, custody, bail, discharge, correction of sentence, and other matters as necessary and proper. The order, when entered by the clerk, constitutes a final judgment. Md. Rule 15-1207. Both the State and the defendant have the right to directly appeal a decision on a Petition for a Writ of Error Coram Nobis. State v. Hicks, 139 Md. App. 1 (2001).

Actual Innocence

  • Under MD. CODE ANN., CRIM. PROC. ART.§ 8-301, a person charged by indictment or criminal information with a crime triable in circuit court and convicted of that crime may, at any time, file a petition for writ of actual innocence in the circuit court for the county in which the conviction was imposed if the person claims that there is newly discovered evidence that (1) creates a substantial or significant possibility that the result may have been different, as that standard has been judicially determined, and (2) could not have been discovered in time to move for a new trial under the Maryland Rules.
  • If the court finds that the petitioner is entitled to relief, it may set aside the verdict or judgment of conviction, grant a new trial, resentence the petitioner, or correct the sentence. The court must state the reasons for its ruling on the record.

DNA

  • Under MD. CODE ANN., CRIM. PROC. ART. § 8-201, notwithstanding any other law governing postconviction relief, a person who is convicted of murder in the first or second degree or manslaughter or of rape in the first or second degree or sexual offense in the first or second degree may file a petition for DNA testing of scientific identification evidence that the State possesses as provided by statute and that is related to the judgment of conviction; or for a search by a law enforcement agency of a law enforcement data base or log for the purpose of identifying the source of physical evidence used for DNA testing.

Motion to Correct Illegal Sentence

  • The postconviction statute expressly permits postconviction petitioners to raise claims that their sentence exceeds the maximum authorized by law, or that the sentence is otherwise subject to collateral attack upon any ground of alleged error which would otherwise be available under a writ of habeas corpus, writ of coram nobis, or other common-law or statutory remedy. MD. CODE ANN., CRIM. PROC. ART., § 7-102(a)(3) and (4); Roary v. State, 385 Md. 217,226 (2005).
  • The Court of Appeals has recognized that a sentence can be improper for either of two broad reasons: that the sentence is illegal, or that it is marred by procedural irregularities. Walzak v. State, 302 Md. 422 (1985); Burch v. State, 346 Md. 253, 289, cert. denied, 522 U.S. 1001 (1997).

Motion to Re-Open Post-Conviction Proceeding

  • In 1995, when the legislature reduced the number of petitions that may be filed to only one, it created a re-opening provision. By virtue of this provision, a hearing judge may, upon request, reopen a previously litigated petition. The legislature did not establish any guidelines for determining when a petition should be reopened but provided only that a petition may be reopened “in the interests of justice.” If a petitioner files a second petition, and the hearing judge rules on it, the appellate court will consider that the hearing judge granted the motion to re-open. There is no time limit on when a petitioner is required to file his motion to reopen. State v. Rodriguez, 125 Md. App. 428, cert. denied, 354 Md. 573 (1999). While the term “interest of justice” was not defined by the Legislature, the Court of Appeals in Gray v. State, 388 Md. 366 n.7 noted that the term includes “a wide array of possibilities.” The most common of these possibilities will be ineffective assistance of postconviction counsel, and a change in law which is to be applied retroactively.

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