# Petition — Maurice Proctor v. Warden, Maryland Penitentiary > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0824%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 435 U.S. 559 ## Text ee —- In TILE RCI Vici suntals COUNT OF THs WIITLD STATO DEC 17 1977 OCTOU:R Tint, 1977 OFFICE OF THE CLERK SUPREME COURT, US. m7 -~ 589% NO6e MAURICE Ce PAQCTUx >. »_ . Veni WATLDEN, 1A YLAND Pols. sno Tite, vy fF PsPitIOy FOR A wart OF CurtoRrrs tO ° i)” . . . ret vw." a 7‘ r TuTa DD SAT ees oul rT Ov Ar,’ ALS ~* ae -- ty a Jee we ; ab } inueice Ce Procter Pro SGe Movember 26, LOTT an % hae C5l) 2 Ore out eurecy paltiiuors, barylam 21202 INDrm OPINION BELOW JURISDICTION QUESTIONS PRESLUTSDs 1. That Potitioner's guilty plea was unconstitutional beeuuse he ves not fully ennraised by tae trial court or nig counsel against conpulsory seli-ine- crininatione ,. That Petitioner's Trial Counsel was incometent and did not provide hin witha genulns roprosent2tion vio- Lated his “LPthy, sister azul “ouryecnta ezondaonts to equel protection ani due procesbe 3. That Potitioner's hane was illerally searchod by & Fazally Sovestive Search Varrant the Prosecution ene gaged in lelLicious liisconducte he ‘That Petitioner was denied faix and complete Evidone tiary Hearing in the Court below and tne State Courthe STATESINT OF CASES REASONS FOR GiailinG Ti WRIT le Public Intorest 2, Whether Constitutional safeguards have substantielly been erodode CONCLUSIOS MOTION AND APFITAVIT Dl SUPPORT OF MOTION TO PROCDLD ON WRIT OF CUNTIONARI Di FOMMA PAUPLALS (iI) PAGE IV LV, Sp Sy Ty Sy Pp Ly Lbs 12, 13, Lby ly Uy 17s 2s 19, 20, 22, 22 2&3 23 In Tits SUPREME COURT OF THs UNITZD STATIS OCTOBER TERM, 1977 WO. MAURICE C. PROCTOR PETITIONR, ViRSUS WARDEN, MARYLAND PSNTTAUTIARY RESPOUDANT PETITION FOR A WRIT OF CERTIORARI 10 THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT THe PETITIONR, MAURICS C. PeuctuR, RUSPMOTFULLY PRALS DUT WRIT OF CERTIORARI 15504 TO REVIwW Tile JUDGLM:NT AUD OPINION OF THE UNITED STATES COURT OF APPEALS FOR Tis YOUNTH CIRCUIT ENTARED IN TiS PROCLSUI.G ON AUGUST 12, 1977 AND RENLARING LNDANG, WOVEMBER 2, 197Te a» (III) OPINION BuLOW THE OPINION OF THE COURT OF TALS IS UNREPORTED I SLIP OPINION WO. 76<0 (Fourth Circuit, 1977) AND THE ORDER DRIYING REARING APPEARS IN TilS APP)DID THORETO. THE OPINION OF THE DISTRICT COURT OF MAHYLAND APPEARS, IN TiDt APPIO:DIX THERETO. JURISDICTION TUE JUDGMENT OF THB COURT OF APPEALS FOR TH FOURTH CIRCUIT WAS EWEUD AUGUST 1, 1977. A PEPITION FOR RAZARLIG ENBANG WAS FILED AND SUBSEQMENILY DINIED HOVRER 2, 1977» THIS PETITION FOR CHRTIONART WAS FILED WITHIN 30 DAYS OF TiiiT DATE. TiS COURT'S JURISRICTION Is MVOKED UNDIR 26 U.S.C. SECTION 125k (1). TISTIONS PRESENTED 1. That Petitioner's cuilty ples wes unconstitutional because he was not fully anpraised by the triel court or his counsel of his right against commulsory evlf-incrininatione 2. That Petiticner's Trial Counsel wes incompetent and cid not provide hin with gemine representation violated his fifth, sixth an@ fourteanth anencncnts to omusl protection and due processe 3- That Petitioner's home wus 4Ucrally searched by A Fatally Defective Search warrant the Prosecution Snraged in jiclicious Hisconducte he THat Petitioner was denied a fair end complete bvidentiary Hearing in the Court below and the State Courtse qv) REASON FOR GRANTING PSTITILN POR A WRIT OF CiRTIORARI The Petitioner respectfully moves this Honorable Court for a Petition for \rit of Cortiorari pursuant to Rule 53 of the Supreme Court of The U. S. Procedure, Petieg tioner contends inter alias thet there exists substantial question of law regarding controlling ' Jurisdiction ' in Petitioner's litiga’'ion before the federal courts. Moreover, Petitioner stresses that he initiated Habeas Corpus Proceedings in the United States District Court for the District of Maryland on September 16, 1975 pursuant to Mtle 28 U.S.C. Section 221 thru 2254 contesting the unconstitutionality of his une lawful confinement in custody of the Respondent against his will in restraint of his liberty in violation of the laws of the United States and Maryland, Petitioner's pevtie tion was filed according to and with the Habeas Corpus Act, Article 2 United States Constitution, Contrary to the Court's finding below which based its determination on the Civil Rights Act Statue, Title 42 U.S.C. § 1983 which deals exclusively with Civil Rights violation in the nature and scope of torts, damages, etc, Petitioner notes, particularly, that he has never, at anytime invoked the Civil Rights Jurisdiction te contest this case at bar or to confer upon this court nor the court below authority to hear and determine his case according to that statutory provisions, considering the court's liberalistic interpretation of his Pro Se petition or application shod not have been sonstrued to be otherwise than ae cet forth. Seer Haines V. Kerner, Lid; Usd. 519 (1972)+ Tho Civil Rights Act provision doss not prescribe remedies or relicf for Petitioners seeking ' custody relief * » See Presiser V. Rodriguez, 93 Se Cte 1627, 36 L. Ede 439 (1974) Thore the United States Supreme Court Saids ®..seclut we need not in this case explore the appropriats limits of Habeas Core pus as an alternative remedy to a proper action wider Section 1983. fhat question is not before use What is involved here is the extent to which section 1963 is @ porise sible alternative to the traditional remedy of Habeas Corpus. Upon that question, we hold today that where a state prisoner is challenging the very fact or sturation of his -le ale phyvical impr isonnent and relief he secks 4s a determination that ho 4s entitled vo immediate or more speedy release from that impriscmment, his sole federal remedy is a Wit, of llabeas Corpus, according, we reversed the judgement before use" The Petitioner further quotes from the rationale of the Supreme Court in cafee guarding the rights of the accused who has suffored constitutional deprivationse ib said in Pay V Wola, 372 U.S. 391 at LOL "se. Ite root principal is that in a civilized society government must always be eccountable to the judiciary for a man's inpriscrsent 5 If the imprisonment cannot be shown to conform with the fundamental requirements of lov, the individual is entitled to his immediate release." (aophasis Supplied) Petitioner argues from the posture that if the court below had reviowed his " application for leave to appeal * in the light and under the Civil Rights Act jurisdiction and prodicated its finding and conclusion, then 4t follows that Petitioner has been substantially denicJ a fair and complete bvidentiary Hearing in the District Court appellate rovicw, thoroe fore, an iMmbanc Review Hoaring was & Judicia& Mecessity for the proper and orderly adwinistration of Justice and Due Processe The Practice complained of hus departed from the principles of Equal Protection and ive Process, as to call to exercise this Court's powers of suparvisione STATINSIT OF CASS On September 16, 1975, The Petitioner, Maurice Ce Proctor, in Propor Persons filed 4n the United States District Court for the District of Marylend a Petition For & Wit of Habeas Corpus pursuant to Title 28 U.S.C. § 22),1 thru 2254. He sought reliof om sove eral grounds of constitutional magnitudes To wits 1. That his guilty plea was ynoonstitutional because he was not fully appreise by the trial court or his counsel of his right against compulsory selfeincriminatione That he did not freely, voluntarily and intelligently waived his constitutional rights intentionallye -- -3- 2, That Petitioner's trial Counsel was incompetent and did not provide hin with genuine representation violated his fifth, sixth and fourtecnth amendments to equal protection snd due procecse That counsel failure is in the following ani a. To properly investigate and prepare defense of case be To file necessary pretrial and postrial motions, ©.£e epeedy trial, suppression, dismissal and appeale 3, That Petitioner's home was illegally searched by @ fatally defective search warrsnt end the vrosecution engaged in malicious misconducte he That Petition was denied a fair and complete evidentiary hearing in the court below and the state courts. The Listrict Court Issued an * Order to Show Cause “ on September 18th, 1975 te be issued on or before October 31, 1975, The Appellee filed a Motion for Extension of Tine on October 26, 1975. Motion was granted October 29, 1975 to include extensicn to Yovenber 15, 1975 Petitioner filed on October 31, 1975 Motion For Mandamus to Compel Obedience to Mandate in the United States District Court of Maryland and Motion for Sumary Judgenent in opposition to Respondent's Motion. On July 2, 1976 the District filed a Memorandum and Order denying relief as prayed by the Appellant, tut found that appellant issue regarding incompetent counsel denied him of effective assistance of eounrel and did not represent his best interest. However, the cour did not afford ape pellant opportunity to prove this contention and findings Petitioner entered a notice of appeal to this court on August 2, 19762 Ga Deore ber 21, 1976 Petitioner's Motion for ixtention of time to obtain records, documents and transcripts pertinent to the itcaes raised in tie Light of not utilizing the cise covery rules below. Notion was unofficially granted, in that, Petitioner was not noe tified whether the court granted hia Notion or denied ite However, On Agust ll, 1977» This Court Decided Petitioner's Appeal ani affirmed the ruling below. 1t is noteworthy to point-out this affirmacy was predicated on A Civil Nicht's Statue Title )” oe aje «he g 1903 snd not the liabeas Corpus provisions, which invalidates this court holdings i: gatd relies 4s currecte Petitioner again Motioned this court for additional extengion of time, because hoe was unable to secure the record, documents, and transcripts necose sary to effectuate an effective appeal. Ths Motion for extension of time was franved, but no mention of the Motion for appointment of counsel or request for production of documents to Rule 10, 12 of Fed. R. App. Procedure. See (Exhibit) i STATQLIT OF FACTS The Petitioner was convicted in the Criminal Court of Baltimore City of the State of Maryland on September 16, 1973 in a Plea Bargain, to count (2) one in Crininal Ine dictnent # 6909 -11/703 count (1) one Criminal Indictment # 6510011/70 involving vice lations of Narcotic Laws of Marylands to count (1) of Criminal Indictment # 66L.811/ 72 the wlawful possession of a handgun, the sentences of twenty (20) years and 5 youre to be served concurrently. Appeal therefrom was not noted or entered. On January 5, 1975, Petitioner intitiated his first post conviction petition pire guant to Article 27, Section 645 A@d of Maryland Annotated Codes, and LX 10 esqe of Maryland Rules of Procedures. Un March 12, 1975, Patiticner moved to supplicment post couviction to includes Exhibit (¢) 1. Illegal search and seigure 2. Inadequecy of counsel 3. illegal sentence be Prosecution misponduct Incomplete evidentiary hearing was conducted on June 6, 1975 waere co.nsel was appointed to reprsent him. The hearing court liznited its findings and revicw to cu.y the contentions raised on the original post conviction petition and denied relief sow ht thereafter, Petitioner was advised by appointed counsel to enter on his own behalf o notice for leave for application for an sppeal. July Sth, 1975 Application was denied -~y- -5° by the Court of Special Appeals of Maryland. Potitioner filed 6 Writ of Uabeas Corpus in the United States District Court for the District of iuryland contending thst his confinement me in violation of the “aws of the United Strtes inter alia., relief preyed was ceniod July 2,5 1976~ Potitioner noted this Appeal which was reviewed and affirmed August 1, 1977s Potitioner is now oceling Rehearing Inbano und wishes to note that he is ond has been proceeding in both the federal courts and state courts without tic necessary cocuments or vocores and transcripts to effectively have ressone ablo eccess 10 the court, to appraise this court of the grave constitutional viclee tions hereine ARGU TIT I, That Petitioner's guilty plea was unconstitutional because he was not fully eppraised by the triel court or his counsel of his right against compulsuy seif~ine criminatione The Petitioner directs this court to the United States Supreme Court's line of cases rocarding plea bargain and guilty please The Court has cet standards amd cuiice lines by wich pleas are to be negotiated bye Sees Santoballo Ve lea York, L04 UsS- 2575 Brody Ve United States, 377 USe T[2, TSly 7523 AcTelie Standards relating te Pleas of Guilty 1-3 (approved dreft 1953) or ALI Mode). Code of prewarraipment proe cedure secticn 250.0 comontary (1975). The Court has held repeatedly in recent yours thet a quiliy pleas is a lawful trial where standards are adhered to and where feasible, the court has encourrged and condoned its practice. Its most recent opinion expounding on this rationale is Blackledge Ve Allison, Slip Opinion No. T5-1L93, docidad Nay 2, 1977 at pece 7 (II) The Court Saids oo.itmtevor might bo the pituation in en ideal world, the fact is thet the guilty pleas and the often concormitant plea barzcin are important coppononts of this country's crimincl justice syate, properly edninio reds whey can bonetit all concerned. The defendant uncertainties of a trial he pais & speedy Cisposition of his case, the onance to acimovledco his quilis, cmd & pre met Se he start in realizing whatever potential there may be rehabilitation. Judjcs and prose= cutors camsexve vital and scarce resources. The public ie protected from the risks posed by those charged with criminal offenses who are ot large on beil while awiting completion of criminal proceedings Wr ccccee” Although noting that in colleteraliy ate tacking a plea of guilty a prisoner ' nay not ordinarily repudiate * statemenvs made to the sentencing Judge wham the plea was entered, tie court observed that m2 prosed= ural device for the taling of Guilty pleas is so perfect in desirn and cxarcise os warrant a pox’ se rendering it Uniformly Invulrerable to subscgurnt chilicn76e" The Allison Court further noted that inspite of the defcndant's in court declaration of his: predicated on the advise of counsel, he also wis advised to conceal any plea bare gain from the trial court and that his denial of any promises had been cade might nave Leon a courtroom * RITUAL MORE SuAN TIAN RAL '3 The Court relicd upon the folloving nuthorities te substantiate their holdings United States V Notartiyy, 433 Fe 22 291, 533 ( CA 1)5 walters V Merris, L460 7. 24 983 (cA 4) United States V wWillinns, 457 Tre 2a 9403 P7919 Note 13 (CA4)s Bryan V United States, 192 Fe 24 775, 7000751 (GA 5) ioody ¥ United States, LOT Fe 2d 259, 3620363, und ne 2 CA 7)3 Fountsine V United Staves Ill US. 213, Machibroda V. United States, 363 U.S. 27. The Potiticnar's contvenvica contention based apon the foregoing authorities cupra, as cited by the Suprens court to the affect that a Guilty Plea, per se, is not so insurmounteble or formiceble as rot to be collaterally attacked where the nlea is 4nvalide In Menna Ve State of Now York, Siip Opinions Noe 75-501, decided November 1/, 1975 the court said at page 3, Ne Zeccee “either Tollett V Senderson, ll U.S. 253, Nor our easlicr cases on which it relied, eee Brady Ve United States, 397 Use 742, and Mdfenn Ve Richardson, 377 UeSe 7595 stand for the proposition that counseled guilty pleas inevitably WAIVE oll antecedant constitutional violations. If thay did so hold, the New York Court cf Ap= peals might be correcte However’, in Tollett we emphasized that incrediant of v:is line of cason, ide, at 266. The Point of these cases is Uist « counseled plea of cuilty is an admission of factual guilt so reliable that, where volunta:y and intellicmt, it -- -7= to validly renoves the issue of factual guilt from the case. In most cases, fectual guilt is o oufficient besis for the State's imposition of punishment. A Quilvy plea, thorsfore, simply renders irrcbevant those constitutional violations not logically ine consistent with the valid establishwent of factual guilt is validly establisned, lice, however, tho cleim is that the state may not convict potitioner no matter how validly his fcctual guilt is established. The Cullty Plea, therefore, docs not bar tne claine® The PetLiioner invokes the came rationale eployed in the Nenna and Allison Court and thoir corpanion cases, where inspite of what may appear to be cverwhelming evidence acainst him, ho has satisfactory demonstrated at the Post Conviction Proceeding that his Guilty Plea was involuntary given and his Attorney was incompetent, tims, his con= wiction cannot stands The court below relied exclusively on tue Post Conriction and crinl Transeripts to make its determination as ‘to Appellant voluntariness to his guilty plea, in its extensive Merorendum md Opirton the Court attempts to or is dcliberately amicuous wieloar or vague in so far 6s Genonstrating that the trial court and counsel had full appraised the Petitioner of his right arainst compulsory self-incrinination and thot no unZevoreble inference would be made if he elected to stand trial with a jurye At pace & thru 5 the District Court quotes colloque at trial court which is as follewinss Wy, Howard (defense counsel): Yor the record, Your Honor, I h=ve had extene sive converzations with my clicnt revarding these indictments and I heave aivised lin of all of kis richta as to a jury trial ami a plea of not suiltye I have advised hin that on a cuilty plea and a statement of facts is giving up hisricht te a confrontation of witnesses in order to cross examine theme I have also advised him that he is sivin: up his richt to produce witnesses and other defense motions he would have us vo the cusin of custody in -his cases For the Record, Mave I stated it correctly, Hre Porctor? “rhe Defendants Yebe mo, Mowerds And, you agree to waive all those rirhts? Wee CQUNTs Before the Court cun accept the plea of guilty, it mst be chown that the plea is voluntary und not throuch my threacvs or incisenenes tna wich the understanding of tha nature of vhe plea and the possivie conco cronces of the sleade I want to be sure that he is doing 1t conscicusly and he is waiving and civing up his rights guaranteed to hin by sie Joryiic ond the Federal lave =7o tad ® Do you rant to tell him about the consequences of tho pica? t Mo. Howards For the Xcord, a plea of puilty would loeavo nothing for the Court except to hear thw siatement of facts and irmose the se:1vence end the wecirun is twentyeZive years on the first tio indictments «nd the third indictment cm be a three year scntence and @ thousand coilor fine " (ire 3-5) Petitioner points out furthor where the court below stated in sunpors of ite finiin:, 4% saids " « » « e Although the colloouy botween petitioner and tha judce ws virturiirs nenee-i.stent (emphasis supplicd), the record indicates that petitioner had boon acvised ——— ad of his richtse by his attormcye"® Potitioner contends that she record is silent as to the court or the counsel Eye praising hin of his constitutional right to his sixth easendment und fifth oncndecnt righta of sclf{f-insrimination contrary to the cictate and etandard established by boy= kins. The Trizl Court, Post Convicuion Court and tho Federal Court had a nwxiavury coty to resclve any end al constitutional questions of law before entoring its decrees HMoresvex, the Petitioner invites the court to consider also whet tho Suprew Cours said in Hendervon Ve Morgan, 462 UsSe 637 0 7 eooce “A ples ray be involuntary citaer beccuse the accused doce not understand the nature of the constitutional protection thet he is waivint, Sece Gefe Johnson Ve Zerbst,y Dh UsSe 153, LékeLS53 or because he has such on incorplevwe understanding of the chergee That his ples comnot stand as an intellicent admission of cuilte Without sdequate notice of the nature of the charge ariinst him or proof that he in fect underrtood the charge the ploa :cannot be voluntary in this latter senses Suith Ve O'Grady, 312 UsSe 3290" at pe 2 « » o” Plainly, & defendant cammot ine telliccntly reach that conclusion if he ces not kmow the elements of the crine to which he is ploading and therefore does not know what the state has to proves snd his icnorent decision to plead guilty under such circuastances is not & reliable indication that he is in foct guilty ¥ Likewlse appellant contends that the olenenis of the crine end the intent were necesanry elements of the offense in which he was -wt appraised nor did tue state or the aypclles prove that the Appellant " walrod his constitutional rights vole untary or intelligently, cince it becames the states’ burdem of proof to chow that ape Se De pellent intcllicently, relinquished known richtse See Johnson ¥. Zerost, Supra, Far the Host part in the State of Maryland the case law controlling guilty pless are sub- stantially the sane as emunciated in the Supreme Court's case laws and citations, Of WiLLiass Ve State, 10 Mae Appe 5703 McCall V. State, 9 Nde Appe 1913 Im lish Ve Stave, 299 A 2a liks Davis Ve State, Supra, McCarthy Ve State; PeCePeCe 2573, 8/2/7136 In tice Carthy Ve State, Supra, The Post Conviction Judge recogmized the dilanmma attatched to congtrueing the situation whether an accused infact understood his constitutional rights very cuccinily and uniquely peraphased the question at pe 5-6 whon it calds seeee" 1 don't think there is any question over the fact that Mzte McCarthy is en intelligent persone Juci:e O'Donnell sensed that, and I co too in thir proceedings but that dossn't answer the quostion, unfortunately, it io L7AT IS IT THAT OF WS TO EZ eM LUEIGE AbOUT? I cucss that is on exicmrd way of putting it but I guess that is really wit 1% comes down weenie that the record before Judge O'Dommall, and the record made in this court doesn't affiraatively establish that the defendant was fully evpraised of the rermdfications of hie richt to protection against sclfpincriminations nor du2a 4% show that he witeratood those ricute end Imowlinly vaived then™, in that cased, leie The McCarthy, she Judge reversed the conviction, bottom on the lnglish case, cited suprée The Petitionar's case is identical insofar es circumstances end eituation end not as to the type of offenses In the inglish Case, Om March 30, 1971, in the Criminal Court of Baltimore, Michard English pleaded guilty to the 1st count of the indicurent pree penting that on November 28, 1970 that he wilewfully distributed heroin, Iiic ples vas scceptod and he was sentenced to 5 years. ile annealed (emphasis added) and clained thet the nloa was not freely, voluntarily and intelligently madee The case wont besore the court of special Appeals of Meryland, where the record disclosed that both the court ond defense counsel made extensive inouiries of Inglish to determine the volune tary nature of his, plea. Their inquire was comprehensive oxce>t for whe riplt againss compubsoryeselfeincrimination. The record did not show, explicitly that he Lnvellizently understood and waived that right. the Court of Special Appeals said in reversin; cy lish je -10= see” Unices tho record affimatively chose that he, tho defencant understood this priviledge and waived 4t in the constitutional sence, acceptance of his puilty plea 4s not cffoctivets English Ve Stas Supr@e Aplea of cuilty must be nade with the probable consequences in mind, including: the maximum sentence the Gofendant can resolve if convicted. Marvel Ve Unitod States, 300 UsSe 262 (1962)- If a plea is not Inalngly made, it camot be accepted by 4 trial court or used to convict a cofendante Such & conviction is obtained in violniton of ihe guarantees of due process %0 which an eccused is entitled, md is therefore Woide lice Carthy, supray Boykin, cupras Machivroda V- United States, 263 UeSe 37, 93 (1902)$ Herman Ye Clatiy, 350 UsSe 116, 120-121 (1956)5 Cf. Vialey Ve Johnson, 315 UeSe 90, 10, (1942), the United States Supreme Court noted the importance of the guilty plea tn erininel trial practice and its meaning for defendantst eee " A plea of pullty cite fers in purpose and affect fron & mere odaissionoor an extrajudicial confessions 4t is itself a conmvictione Like a verdict of a jury it is conclusivce Hore is not reanlrods the court has nothing to do but give judceuent and sentences Oat of just consideration for persons accused of crimt, courts are careful thet a ples of guilt shall not be secepted unless mado voluntarily after proper advice and with £12 understendin, of the consequences » Ide at 223 (omphasie edied)". the doctrine identified in Kercheval wan ertioulated in Doykins Ve AlabamB, Cupra, the Court deceribod due process requisites associated with the guilty plea. It hold that afi offer of & guilty plea iy an encused cennmot automatically be treated as a knowing and voluntary waiver of rightse A trial court first must be convinced thet 4 defendant both understands tho sismificance of & guilty plea and intends to waive his richts before 1t accepts a please von vhouha defendant is — by competent counsel, a trial judge still may not accept the plea unless he has determined that it is both knowing and voluntarye Morooves, Petiidenar contends that loykin did not establish now substantive law. It created no nev riyhts to be enjoyed by criminal defendant and no new test of waives to be ayplicd whore & guilty plea is used to support @ convictions It morely established that tas absence o- -10- «lie any indication in the record that a cuilty plea was kmowing and voluntary is rovernible errors There the principal concern of the court in Boykin was the sane due process ise suc first identified in Kercheval waich heldeee" What is at stake for wn accused fucing death or irprisonnent derands the utmost solicitudes of which courts are capable in ome vassinz the matier with the accused, to make sure he has 6 full understanding of wast the plea connotes and of its consequencese Doykins, Supra *. Finally, The Petitioner contends from the overall perspective that the most in= portant consequonces of which an accused must be aware before his guilty piea ia ace ceptcad by a taial court is his right againsy self~incrinination and the length of tins he nay de ceprived of his liberty or the maximum sentence he can receive for his offense 4¢ convluted. Moreover, argues that because he was @ first offender in the State of Mesylmd , he wae in fact promised a term of 10 yoars instead of twenty (20) that his expectation from his counsel's advise, that the court would only immose 10 yoars. In sadley V~ ileeDourall, 392 Fe 2d 155 (ith Chre) Corte Denied, 393 U-5S- 67 (1968), This Court voided a prisoner's guilty ploa entered in 1936 because “No OnesCourt or Counsel « ascertained that balloy Understood the consequences of his plea # In the Collateral proceedings brought by Railey in State Court in vhich he challenged the voluwitariness of his plea, his trial counstl testified that prior to the entry of Lhe plea he had ccploined to Bailey in State proceeding that the guilty plea meant 3 lites sentence vould be imposed md the covernmor mifpht not follow the pardon or parole secon naviation of tho State Officlelse Trial counsel further testified that Bailey might net have understood the consequences or the import of the warnings Bailoy clained that he untorsteod the consequehees of his plea even though trial counsel had expleined thom to hltte Ide At 15le suprae Tho Bailey doctrine should apply to the instsnt casey, in tut, the petitioner not only contends that he lacked an understanding of the conse= quences for entering 4 guilty plea, but also that no attempt to eplain full tose consefaences was ever undertaken by the court of his counsel, particularly to hile cb= polute right to remain silente The Menorancum and Order of vie District Court, relird exolualvely on the state's finding therefore, was precluded from naking a fair asrece= «lle #l2< ment of petitioner's claims. Petitioner pointsout in support of whe Dailey “octrins, t's Third Circuit of the United States Court of Appeals also adopted s ofgxilar views of the sone rationale in eo far as ostablishing guidelines and standards and proper function of the trial court in accepting 6 defendant's pullty pleas * “rial Courts have 2 duly to do more than simply lista to an articulation or & yerbalisation of & plea of guilty by a ceferdiants they have @ duty to insure that the defendant undorstands the congequonces of his atte 0k Fe 2d Tole" Appellant contends that the duty to inowre that he uniere stood tic direct consequences of his guilty plea was wholly abdicated by the ur el court in vaich he was coavicted and sentencede Under the rule first adopted in tis circult in Bailcy Ve NasDougall, supra, the burden of proof as to & defendant's Knowledge and underetunciy of the consequences of his guilty plea is on the otatee Sees aloo Salta Je Cons aS (ath Chr) 1970 Ware Ve Coxy 32h Fe Suppe 568 EeDs Veo 1072) Tinite oxo 8 Paboas Corpus, petitioner allozes that his plee was involuntary, the burcern onifte to the etate to demonstrate thet the plea was properly accepted by whe trial court cad is not Lrvlide In Ware Ve Cox, The Federal Court found, after reviewing a reovrd produced in State Hebeas proceedings, that tho petitioner's syunsel did not inZorm him of the possible length of sentence if ho wae convicted. That failure was held reversible error as the State of Virginta, had not danonstrated either’s 1. Yhat the Petitioner in fact loww the consequences of his pica or 2. That it wos likely he had obtained information from mother source before pleading guiltye In the thstant cave neither of the above haa becn denonstrated, thorce fore, 1% Zollows that & reversal would sppear mandatory oF the very least a remand to the District Court for further hearing determine Petitioner's Clainse ARcWIn:S IL That Petitioner's Triel Counsel was incompetent and dia not provide him with goulns representation violated his fifth, sixth, md fourieenth sanenducnts Ww @l2- “13 equal protection and due processe The Petitioner contends that although counsel wis employed ty him to represent his best interests, in so far es the instant case at bar, his duties and responsibilities were no preater or no less than the ceneral functions of my othor counsels! or members of the logal profession. That the Sixth Anendaent of the United Staves Constitution an= sures every accused defendamt the right to gemuine effectiveness 6f assistance of coun- pele Thot hirdd attorneys sre duty bound by the sane Standards of competency 6S court eppointed attorneyBe Most recently this court reestablished competency standards in }arzallo Ve Mary Land, 9/2/77 CrL 2545, relying upon Vctarm Ve Richardson, 397 UsSe 719 (1970) Coles Ve Peyton, 309 Fe 2d 22 (uth Cire 1965) UsSe Ve Decoster, 37 24 197, (CA 1 973) UsSe ¥ rster 539 F 2d 663, (CA 8 1976) Holding the Normal Commetency Test, which is first determined whether the defense counsel's representation yvithin the renge of come potence domanded of attorneys in criminal cases. There in the Narsullo Cow't, ihe Court caidt eee " An Attorney's conduct by comparison with the competence gencrelly four Lu tho profeesion", and " requires an objective assosament of counsel's acequacy ® althouch the court cid not stress or assured "errorless" representation but it arpheeiszed that a criminal defendant ageinst " flayrant " ersor that results from "Nerlect! or Imnore ence" rather than from informed professional deliberation. The Marzullo Standard 1s cone trolling th the fourth (4th) cireuit and the instant case, tho applicability of ive holding is overwhelmingly compelling First, and forancst reasons ares counsel], for the petitioner through neglect or ignorance or both fail to properly prepare, investizate or to file necessary pre-trial motions and postetrial motions, in addition, te improp= erly advicing the petitioner to plead guilty, 98 well a3 not edviging hin that he had the récht srainst eclfe-incrimination or that no unfavorable inferencss will be rade if ho elocts to heave a trial by @ jury in the ebsence of the trial court failures Petitioner argues thet the records should reflect (See Datilbit (A) ) that potitioner -lL} -lhe wis mrrooted in the month of November 1970 for narcotics violaticns for selling nare cotics to undercover agent or cadet of the Baltimore County Police Dopartment, he was subsequently indicted January ©, 1971 in Criminal Indictment Number 6009211/70 from his initial arrest end subsequent trial appellant's counsel only filed one (1) Motion and that being one of Discovery-and-lnspectione However, during this period fron January ©, 1971 to september 18, 1973 the day of his entering a guilty plea, a total of 32 month under &ndictment pending trial, a pre-trial motion of Sxecdy Trint would have precluded him from going to trial because of the length of delays TOrecver, tho appellant has been informed that tho State's eyowltness the Esdate.ent waa cn tour of duty in the Viet lan Conflict during this 32 month poriod of time md was wie available to testify at trial. Moreover, the question whether the counsel had used tactical stratecy in waiting until the witnoss returned from this tour of catye Tho ape pellant cannot conslusively say. However, it did in facts, projudice appellant and mrce oluied him from the opportunity to have a fair end speedy trial end substentially dc~ prived hin of his constitutional rights under the fifty ond fourteenth Aneniments ss 4s epplicable to the State. The Petitioner argues that the total circumstances of the various factors involved in the instant case and the psychological affects of tho straia and stress which he suffered during this period of uncertainties was one of tho ™ 4or factors that caused him to surrender to a guilty plede Notwithstanding the fact tiat he had no obligation to expedite or bring himsel? to speedyetrial. The Supreme Court reoomnised the adverse affects 4n which a prolonged trial incurs, in Strunk V,. United States, 412 U.S. 43h at 4,39 it saids " The spoody trial guarantee recognizes that @ prolonged delay may subject an accused to an emotional stress that can be presumed to result in the ordinary porson from uncertaintios in the prospect of facing public trisl or of receiving a senteco longer than, or consucutive to, the one he is presently ecrve ing secee uncertainties that a prompt trial removes". (erphasis supplied) Uther pre= trial wotions as Bill of particulars, Suppression and for digminsal wore eoually in- portant in that, they wore necessary integral part of petitioner's trial f£orecioved -l\- -15<- him from an actual trinl. The failure of counsel to properly investigate and prepare investigate and prepare the defense for the petitioner is clearly ineffectiveness of counsel. Moreover, the record does not reflect that petitioner sought or obtained postponenents or continuences during the same period of tine, therefore, it carnot be said thot petitioner contributed to this length of delays Here again the petiticner takes the liberty to quote from the United States Supreme Court where they hold that pretrial proceedings are 48 vital to the defendant in a criminal trial, as the trial 4tcelf. In Brewer V. William, Slip Opinion, Noe7e1263 at pages 9-10, the court oaids wee " This right guaranteed by the S4xth and Fourteenth Amendments, is 4indispensable to the fair administration of our adversary system of Criminal Justice, Its yitel neod at the protrial stage has perhaps nowhere been more succinctly explained than in Me, Justice Sutherland's memorable works for the court hy years ago in Powell V Alne bama, 287 U.S. LS at 57 eee ° (D)uring perhaps the most critical period of the proe ceedings against these defendants, that ie to say, from the time of their erreicment ntil the beginning of their trial, when consultation, thorough coing investiration and preparation were vitally ixportant, the defendant did not have the aid of consol 4n any real sense, although they were as vuch entitled to such aid of counsel during that period as at the trial itself ' sHHneHHeHeeee Thore has occassionally been a aifforence of opinion within the Court as to the preiphsral scope of thio constitutionaL right. Sees Kirby V. Illinois, 06 U.S. 6825 Coleman V, Alabama, 399 U.S. 1 but its basic contours, which are 4dentioal in State and Federel contexts, Gideon V. Vaiusri¢ht, 372 U.S. 3353 Argersinger V. Hanlin, 07 U.S. 25, are too woll established to require extensive elaboration here, Wiatever, else it may mean, the right to counsel granted by the Sixth Amendment and Fourteenth Asendments means at least that a pereon is entitled to the help of a lawyer at or after tho time that judicial proceeding 8 have been inie tiated against hin wenaeueene? Whether by way of formal charge, preliminary hoarint, {ndictment, information, or arraingment *.coce” Furthermore, Counsel. failure, to advise iG -l6- petitioner that he had the rijht to Appoal his Guilty Plea, the record will show that no appeal was noted, It is argued thet post-trial motions are equally important, 45 the pre-trial motions, The failure of counsel to psrform crucial and vital functions, fatally deprived Appellant of competent representation under the Normal Corpetency Tost adopted by this court, since it is established that counsel is obligated to establish that ell available defsnoss are raised. Sees U.S. Ve Dennett, LO9 F. 2d C58 (2d Cire 1969)» UsS. Ve Achy 413 U.S. 3005 U.S- Ve Decoster, Supra, at ne 22 that coury ssid the following: +e.” Coles V. Peyton, 389 Fe 2 d 22h) eveee Counsel for an indigent defendant should be appointed promptly counsel should be afforded a reasonable oppore tunity to prepare, to defend an accused. Counsel mst confer with his client without undue delay and as dften as necessary, to advise him of his rights and to elicit mite ters of defense or to ascertain that potential defense unavailable. Counsel must cone duct appropriate investigations both factual and legal, to determine if mtters of defense can be developed and to allow himself enough tine for reflection and prepers= tion for trial. Sees State V. Harper, 57 Wis 2d Sh3, 205 Ne We 2d 2 (1973)" Also Sees Beasley V. United States, L491 F. 2d 687 (197) The Court of Appeals for the sixth Cire cuit held that the defendant had boen afforded * Incompetent and ineffective Ronresone= tation ", it held that before and during trial, the District Court denied Defoncant's motion to vacate the sentence and judgement on the ground that his Attorney's periorme ance had rendered the trial as a ® @arce and a mockery, shocking to the court". The Appeal Court reversed the district court's holding and joined the fifth and District of Columbia Circuits in abandoning the * Farce and Mockery " test as @ standard for testing Sixth Améndment claims of ineffective Counsel. Tracing the origin of the Farce and Mockery standard from a view, since rejected, that the Sixth Amendment cuarantced no more than the formal appointment of competent counsel, the court concluded.s..eit maid t eee ® We hold that the assistance of counsel required under the sixth ancndnent 4s counsel reasonably likely to render and rendering reasonably effective assistance. -lb6- alfe It is a violation of this standard for defense counsel to deprive a criminal defendant of a substantial defense by his own ineffectiveness or incompetence". See: also Foote notes 15, 21, 22 #rerican Bar Association Project on Standards for Criminal Justice, Standards relating to the Defense function (app. Draft 1972). It is further contended by the Petitioner that due to the nature of his arrest in 1970 regarding narcotic vice lation, tnat the prosecution lacked probable cause to have errested him, first because the informant/agent=cadet, or infromant did not file an affidavit and warrant to arrest him and secondly, there exists a substantial question as to the reliability of the s0- called informant, The Petitioner did not sell drugs to the alleged cadet-agent, there- fore, there is a reasonable inference as to why the prosecution demanded a sveedy trial for fear of police misconduct. The counsel for the pstitioner in his defense prepara- tion should have been able to determine these facte inter alia, nonetheless, his faiie ure to act over the 32 month period of iime to dispose of the instant case ettests to his incempetencye ARGUMENT IIT That Petitioner's home was 4llegally searched by A Fatally Defective Search Warrant the Prosecution mgaged in Melicious Misconduct. The Petitioner contends that another major factor which induced and coerced his guiit plea was tho 4nnumerious drug charges which the police department of PAltirore City was framing him wits, their constant harassing and intimidating his family, in thoir efforts to remove the Petitioner from the commmnity or the "Streets". The Record will reflect (See: Exhibit (A) ) the various times the rrosecution or the police department had attempted to have appeJlant's bond revoked or increased, or fraudulently concock situations which provides them with an opportamity to arrest him. Moreover, cace in point, On July 23, 2h, and 25, 1973 respectively. The local laitinore Police Depart- ment, the Narcotics Unit, raided the Petitioner's home on successive days and nipnts -l7- -1h- without proper warrants and affidavits to search his premises, That because of Petie ticner's wife's refusal to admit the police in her home without proper authoriz2tioa and documents, the police in retaliation, secured (enly) arrest wrrant for nor, prede $cated on on unsupported testimony of an alleged anonymous informant, Clainins that snes was maintaining house of commen nuisance, illegal manuracturing, distributing, storage ing and concealing & narcotic drug in violation of Varyland's Lew Article 27, Section 26 (2) (5) The prosecutor subsequently lodged criminal information Sees Leiivits (3 & C) against ths Petitioner and his wife for manufacturing and distributing are cotics. The warrants are devoid of dates, time, place, or affidavit, nor specizicaticn as to the tine of these transactions, particulariy as they pertain to pov tdoner'*s w2i'@e The Petitioner arjues that his hired attorney ghould nave diligently debunk this dlabol- geal ccheme in which the prosecution had designed in order to 4nduce and coures poti# tioner to plead guilty on the then (3) throes years-old narcotic chargs(s)e Forces Exhibit(d) the police purported that they had information of Petitioner's 4llicit ote tivities, however, lock probable causa to arrest or search his hone, however, in isile 4ng to gain laxful consent cf the appellant's wife to conduct an exploratory S°2TC1l, they use other unlawful means to gain entry to his hows. The Fourth end Foursveentin Ancande ments requires a consent not coerced by explicit or implicit means by 4mplied threat or covert force. For no matter how subtly the coercion were applied, the resubtin? “cone sent” would be no mere than & pretext for the unjustified police intrusion avainst weisch the fourth Amendnuent is directed in the words of a classic admonition in Poyd Ve Vaiicd States, 126 U.S. 616 at 635." eee It may be that it 4s the obnoxious thins ia its mide est and least repulsive forms but 4llegitinate and mneonstitational practices get thoir first footing in that way, nanely, by silent approaches and slight deviations from Jee gal modes of procedures. Ynis can only be obviated by adhering to the rule that constiq tutional provisions for the security of person end property should be liberally cone s wed. A close and literal construction deprives them of half their efficacy, ani leads to gradvcl cepreciation of the right as if it consisted more in sound than in substencue -jhe -l9- It is the duty of courts to be watchful for the constitutional rights of the viticen, and against any stealthy encroaciments thereon". The Petitioner invokes the rationale used in berger Ve United States, 295 UeSe 78 (1935) where the Suprene Court seidt " The United States Attorney is the ropresene tative not of an ordinary party to a controversy, but of a sovereignty whose oblisse ticn to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in 8 criminal prosecution is not thet 4t shall win a cas6, but that justice shall be done. As such, he is ina peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or 4rnocer.a9 suffer, ile may prosecute witd earnesiness and vigoreindeed, he should do 30. Dut, woile he my strike hard blows, ho is not at liborty to strike foul onese It is ts mich his duty to refrain from inproper methods calculated to produce @ urengiul ccne viction as it is to use every legitimate means to bring about ¢@ just one. Salah lala It ts feir to say that ths average jury, in a greater cr lezs degree hes confidcnce Eisd these obligations, which so plainly rest upon the prosecuting ettorncy will be faithitule ly observed. Consequentiy, improper suggestions, insinuations and especially, aasertee ticas of personal knowledge are apt to carry much weight against the accused “hen they should propsrly carry none sece”s Although criminal informetion was dismissed arainst petitioner's wild, 4t vas done as a part of the plea bargein and not because of the prosucutionts desire to insure justicee ARGUIIT IV That Petitioner was Denied a Fair and Complete Lvidentiary lie wring in the Court Relow and The State Courtse 44tioner contends that 68 & Pro Se litigant hs should have been given 4 full cppeore tunity to present evidence in support of his claims, perticularly, in the light tat «19 200 he was summarily denied an evidentiary hearing bolow, pecondly, his Motions filed in opposition te Hotions of ths State for extension of tine and summary judgement ghould have been granted in the light of the fact, that petitioner was not provided sccess to tho records, documents or transcripts or other discoverable itens of the state in which to feirly contesting his conviction. That the court below abused its discretion in 6xe tending time to the appellee, in that, no excoptional circumstances was shown te ware rant said extension of time, the cniy reasons given was for the need to cbtiin tne post conviction tranecript which the appellant did not receive a copy 48 proviced bY Rule and 5 Foderal Byles of Civil Procecurée iiowever, The appellant points out tat from all indications of the Motion for extension of tine that the Post Conviction irone peript wae not transeribed at the tine he noted his application for appeal, then it san be reasonbly inferred that he did not receive an adequate or couplets appeliate rsview of the post conviction hearing, which in fact vould make the Court of Special Apnesis' arbitrarious and eopricously denied without affording appellant 4 fair rovies on tae constitutional questions and claims of law. See Exhibit (e) Furthermore, ie suprsne Court in ita vast wisdom, held in Haines V. Kerner, hoy U.S. 519 (1972) a cace wrich concerns Pro Se corplaintants, particularly proceedings under 2 U.S.C. Section 17235 reversed a disrissal of a civil ection stating? eoooe” (&)Liegstions guch ag those 330 gerted by petitioner, however, inartfully pleaded, are sufficient to call for the ope portunity to offer supporting evidences 1 cannot say with assurance that uxier the allegations of the Pro Se complaint, which we hold to less stringent standsivs wean formal pleadings drafted by lawyers, 4t appears ° beyond doubt that plaintifé can prove no set of fects in support of his claim wich would entitlod him to relie<*. 8% 520", In addition to the Sunrene Court's Doctrine regarding pro 6e litigants, this court has held in Wooten “Ve Chook, 527 Fe 2d 976, (uth Cire) 1975 eceernat %29 general rule is thateces" Pro Se petitions should be liberally construcdesss” Morcovers tnis court takes ths position that its District Courts yust be especially solicitious of Civil Rights Plaintiffs. Sest Canty V. City of Riclumnd, Virginia Police Department, 200 -2le 303 Fe Suppe 139% EDe Vae 197. Affirmed, 526 F. 2a 587 (uth Cire) Cert Denied, 423 U.S. 1062 (1976) eeeThere the court saids eee” A civil Rights complaint should not be dismissed unless it appears to @ certainty that the plaintiff would not te entitled te relief under any leczal theory which might plausibly be sugsested by the facts ale ledred “ id at 13990 ecoe ® This solicitude for civil rights plaintiff with counsel must be heightened when a civil rights plaintiff appears Pro S€ceee (The District Court must examine the Pro Se complaint to 56s whether the facts alleged, or the set of facts which plaintiff might be able to prove, could very well provide a basis for recovery under any of the Civil Rights actse..esacoordingly, The Court is considering the vefende ent's Motion to dismiss will not pormit technical pleading requirements to defeat the vindication of any conet&tutional rights which the plaintiff alleces, however inartfully, to have bean infringed. “ id at 1399-1100. Notwithstanding the general holding of the Supreme Court and This Court insofar, 35 recognizing Pro Se litigant's rights, Pct-= stoncr further argues reasons why the court below should have at least provice him an evidentiary hearing to determine the merits of his constitutional clains, that pro vious state court findings concerning his guilty plea do not control this Court's roe view of tho issues, nor the court belowe Petitioner acknowledges thot he has bocn afe forded an evidentiary hearing on the voluntariness of his plea and incompetence of aot~ torney in state courte In Re Proctor Ve State of Maryland P.C.PeAs # 2793 in the Crine 4nal Court of Baltimore Citye Sees ixhibit (£). The finding end holding ws 5° Limited and narrow as to not cven having to been conducted, for the most part it relied on the trial transcripts, in cpposed to the hearing itself to make 4ts determination of the constitutional questionse The State or the Respondant is ynable to chow that petitioner voluntarily, knowlingly and 4ntelligently entered guilty plea or whether he waived his constitutional right of gelfeincrimination or whether the counsel wae incampetente On the basis of the tris] court's opinion glone, 1% cannot be determined what facta tinat that court used to arrive at its finding. There 4o no clear factwal basis in the recort {according to petitioner's limited record aad understanding ) of that proceeding which 21+ o22= supports the conclusions thepein as announced by the Post Conviction snd Court liclowe Yoreover, it is not epparent how tne Court applied centrolling constitutional stande ards to arrive at the findings it made, the court's opinion, in effect, is no rore than a bare conglusion of Jaw unsupported by pertincat factual findinZgse Seo: 25 Uede | C. Section 2254 (4) (8). The Court delow should have provided the Petitioner with an evidentiary Hearings In Townsorid Ve Sain, 372 U.S. 293 (1963) The Suprems Court held that in Habeas proceed‘ngs the federal courts camot accept state court findines on questions of federal law where the basis for such findings is uncloartees” asconstrice tion (of the record) is not possible if it is disposing of the claim. Under such cire cumstances the state court found the law of the Yacts adversely to the petitioner's con» tentions. Since the decision of the state trial of fact may rest upon an errer of lay rather than an adverse determinatioa of the facts a hearing is compelled to ascertain tue facts id at 31)". Sirilarly, in Bailey VY. MacDougall, Supra, The Fourth Circuit reversed the finde ing of the South Carolina Courts that the prisoner's plea had not been intelligontly made, because it could find no factual basis for that corclusion. It looked beyme the bald findings of the State Courts and thus followed the direction of the Court in Yowne pend Ve Sain. (See 28 UeteC. Section 2254 (es) Both Towsain and Bailey stress that it 4s improper for the Federal Courts to Swrarily adopt the findings and conclusions of state courts when tie constitutional guoxantee of liberty has been abridged. In both cases, the finding of local and state courts were scrutinized, and something moro then ba re couclusions of lew was demanded in their supports Sevs 28 U.S.C. Section 22 Cede The court below bare findings here that petitioner's plea was voluntary, knowing aad intallivently given differ little in this respect frm the findincessupply litile xore than bald conclusions. Those findings alone do not warrant the dicissal of Petitioner's petition without a Full and Thorough hearing on the merits of his cogplaint. It is pree cisely these questions that the federal judge is comsanded to docice ®brow V, Allon, a~ ~230 BL U.S. L36 In Conclusion, it is the Petitioner's prayer for the foregoing reasons as setforth herein, that tris Honorable Court ehould grant this Petition for Writ of Certiorari and remand it to District Court for e Full and Complete plenary Hearing or Reverse it back to the state court for a New Trial, or what this court deems proper and juste Respectfully Submitted, TAaAUPICEe Ve rrucvor PFO See 95, Forrest Street Baltinore, Maryland 21202 “230 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0824%3A1. Public record. Not legal advice.