Petition for Writ of Certiorari — Maryland v. Grandison

92°1207 [eeu

2. eB

| JAN 15 1993 |

OFFICE THE CLERK

IN THE

Supreme Court of the Gnited States

OCTORER TERM, 1992

No.

STATE OF MARYLAND,

V.

ANTHONY GRANDISON, SR.,

Respondent.

Petition For A Writ of Certiorari To The

Circuit Court for Somerset County, Maryland

PETITION FOR A WRIT OF CERTIORARI

J. JOSEPH CURRAN, JR.

Attorney General of Mary ana

GARY E. Batr*

GWYNN X KINSEY, JR.

Assistant Attorneys Gener

200 Saint Paul Place

Baltimore, Maryland 21202

(410) 576-6422

Counsel for Petitioner

- ’ ) 2 )

( (iil? cel OT Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTION PRESENTED

Do rules intended merely to facilitate a capital sent-

encing jury’s consideration of mitigating factors fall

within the narrow “watershed rules of criminal pro-

cedure’”’ exception to the Teague v. Lane non-retroac-

tivity doctrine?

PARTIES

The caption contains the names of all parties below.

iil

TABLE OF CONTENTS

QUESTION PRESENTED 00.0... cecccccccccccccccecccecceecee.

PARTIES

Fa ae ORO SOSSTSHLSSS 69006500004 500000000656000050600080000000600

RULES INTENDED MERELY TO FACILI-

TATE A CAPITAL SENTENCING JURY’S

CONSIDERATION OF MITIGATING FACTORS

DO NOT FALL WITHIN THE NARROW “WA.

TERSHED RULES OF CRIMINAL PROCE-

DURE” EXCEPTION TO THE TEAGUE V.

LANE NON-RETROACTIVITY DOCTRINE .....

A.

This Court’s decisions provide only lim-

ited guidance concerning the proper

boundaries of the Teague exception for

“watershed rules of criminal

I“ Sitidihisthaicssnnsebandsacnarssdniecraraceace

. The extensive body of federal decisions

discussing Teague has not clarified the

second Teague exception but, to the con-

trary, has generated conflict and confu-

sion concerning the “bedrock procedural

elements” prong, especially as it applies

in contexts like the present one ............

. This case presents an appropriate oppor-

tunity not only to correct a clear error

but also to clarify the limited applicability

of the second Teague exception to new

rules of Eighth Amendment procedure ..

a

12

CAMPAMEPUMDEN. scnncsrnbaitsenvnssnsasecensvebtebacsnnendiensesanseniecene 14

PAE TRIE Niintiicsticanchasininiamnusenbinieiesetiuhiinnnipuibaebuakhien la

TABLE OF AUTHORITIES

Cases: Page

Andrews v. Deland, 943 F.2d 1162 (10th Cir. 1991),

core. domed, 112 5. Ct. 1218 (1902) ....<..005... 9,10

Barker v. Estelle, 913 F.2d 1433 (9th Cir. 1990),

cert. denied, 111 S. Ct. 2060 (1991) ......... 9

Batson v. Kentucky, 476 U.S. 79 (1986) ................ 10

Butler v. McKellar, 494 U.S. 407 (1990) «0.0.0.0... 7

Cain v. Redman, 947 F.2d 817 (6th Cir. 1991), cert.

denied, 112 S. Ct. 1299 (1992) .................000.. 9,10

Cruz v. New York, 481 U.S. 186 (1987) ................ 11

Evans v. Muncy, 916 F.2d 163 (4th Cir. 1990) ..... 9,10

Gideon v. Wainwright, 372 U.S. 335 (1963) .......... 8

Graham v. Hoke, 946 F.2d 982 (2d Cir. 1991), cert.

Gemeee, LIZ FB. CE. GRO CGT) cnccccsccscccccesccncsss. 11

Grandison v. State, 305 Md. 685, 506 A.2d 580

RNs Ce SRA Sane APs Otc

Grandison v. Maryland, 479 U.S. 873 (1986) ........

Gregg v. Georgia, 428 U.S. 153 (1976) ....... 13

Hardy v. Wigginton, 922 F.2d 294 (6th Cir.

RNID Niodecestateicesiblonchdibiailaachsamiidi neil alicia 11

Linkletter v. Walker, 381 U.S. 618 (1965) ............ 5

Lusk v. Singletary, 965 F.2d 946 (11th Cir.

SR sii lhciisctsebcabl tilbud atid aceasta 9

McDougall v. Dixon, 921 F.2d 518 (4th Cir. 1990),

cert. denied, 111 S. Ct. 2840 (1991) «0.0.0.0... 12

McKoy v. North Carolina, 494 U.S. 433 (1990) .... 12

Mills v. Maryland, 486 U.S. 367 (1988) ............... passim

Penry v. Lynaugh, 492 U.S. 302 (1989) ........00000... 7,8

Saffle v. Parks, 494 U.S. 484 (1990) 0.0... 7,8

Sawyer v. Smith, 110 S. Ct. 2822 (1990) 0.0... 7,13

Table of Authorities Continued

Page

Skelton v. Whitley, 950 F.2d 1037 (5th Cir.

RUUD sicitwhisaisinaiassincnmaannen aan 9

State v. Colvin, 314 Md. 1, 548 A.2d 506 (1988) .. 5

Stringer v. Black, 112 S. Ct. 1130 (1992) ............. 7

Teague v. Lane, 489 U.S. 288 (1989) .................... passim

United States v. Grandison, 780 F.2d 425 (4th Cir.

1984), vacated and remanded, 479 U.S. 1076

(1987), reinstating prior affirmance on re-

mand, 885 F.2d 148 (4th Cir. 1989) ............... 3

United States v. Grandison, 783 F.2d 1152 (4th

Cir.), cert. denied, 479 U.S. 845 (1986) .......... 3

United States v. Lopez-Pena, 912 F.2d 1542 (1st Cir.

1989), aff'd on reh’g sub nom. United States v.

Martinez-Torres, 944 F.2d 51 (lst Cir.) (en

banc), cert. denied, 111 S. Ct. 2886 (1991) .... 9

United States v. Salerno, 964 F.2d 172 (2d Cir.

RIDUEE sind ncaa nseaieiakakecssamaiacesdinniaauiacaiaicnideNaabas )

Wickham v. Dowd, 914 F.2d 1111 (8th Cir. 1990),

cert. dented, 111 S. Ct. 2897 (199)) ...............

Wilcher v. Hargett, 978 F.2d 872 (5th Cir. 1992) . 12

Williams v. Chrans, 945 F.2d 926 (7th Cir. 1991),

CO

cert. denied, 112 S. Ct. 3002 (1992) ........0.0.... 9,10

Williams v. Dizon, 961 F.2d 448 (4th Cir.), cert.

denied, 113 S. Ct. 510 (1992) ......................0.. 11,12

Zettlemoyer v. Fulcomer, 923 F.2d 284 (8d Cir.),

cert. denied, 112 S. Ct. 280 (1991) .........000.0... 9,12

Constitutional Provisions:

United States Constitution:

Table of Authorities Continued

Page

Statutes:

28 U.S.C. § 1257(a) ..eccceccecececsseseseseseccsssescscsescececeees 2

Annotated Code of Maryland, Art. 27, § 645-I ..... 5

Rules:

Maryland Rules of Procedure, Rule 8-306(e) ......... 5

NI Metis is SIUC: paccacccrtroncetccnasdnaneabusasmnendenmlanecceands wiceaes

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1992

STATE OF MARYLAND,

Petitioner.

V.

ANTHONY GRANDISON, SR..,

Respondent.

Petition For A Writ of Certiorari To The

Circuit Court for Somerset County, Maryland

PETITION FOR A WRIT OF CERTIORARI

Petitioner, the State of Maryland, respectfully re-

guests that a writ of certiorari issue to review the

judgment of the Circuit Court for Somerset County,

Maryland.

OPINIONS BELOW

The Opinion and Order of the Circuit Court for

Somerset County, Maryland, vacating the sentence of

death against Respondent, Anthony Grandison, Sr.,

is reproduced in Appendix A. (la-44a).

The Order of the Court of Appeals of Maryland

denying discretionary review of the circuit court’s

Opinion and Order is reproduced in Appendix B. (45a).

rh

STATEMENT OF JURISDICTION

On October 23, 1992, the Court of Appeals of Mary-

land issued its Order denying discretionary review in

this case. This petition is filed within ninety days after

the date of that Order. Therefore, jurisdiction of this

Court is properly invoked pursuant to 28 U.S.C. §

1257(a). See Sup. Ct. R. 13.1.

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Amendment VIII:

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unu-

sual punishments inflicted.

STATEMENT OF THE CASE

In the early spring of 1983, Respondent Grandison

was incarcerated awaiting trial on federal narcotics

charges in the United States District Court for the

District of Maryland. Two of the witnesses scheduled

to testify for the Government at the federal trial were

David Scott Piechowicz and his wife, Cheryl, who were

employees of the Warren House Motel, where Gran-

dison had briefly resided or visited prior to his in-

carceration. To prevent the Piechowiczes from

testifying, Grandison hired Vernon Evans, Jr. to kill

them. On April 28, 1983, Evans entered the motel

carrying a MAC-11 machine pistol, and shot and killed

Mr. Piechowicz and a woman, Susan Kennedy. Evans

was not familiar with the Piechowiczes, and was un-

aware that Cheryl Piechowicz had arranged on the

morning of April 28 for her sister, Ms. Kennedy, to

work in her place at the motel that day.

On June 30, 1983, the State of Maryland charged

Grandison with the murders of Mr. Piechowicz and

Ms. Kennedy, and subsequently notified him of its

intention to seek the death penalty on those charges.

(la). Additionally, the United States had charged

Grandison with federal witness tampering and crim-

inally violating the federal civil rights of Mr. Pie-

chowicz. (la-2a). While the State murder charges were

pending trial, Grandison was convicted in federal court

on the original narcotics charges and the subsequent

witness-related charges. (la-2a).?

On February 3, 1984, Grandison appeared in the

Circuit Court for Somerset County, Maryland, where

he was convicted on the murder counts and other

lesser charges. (2a).2 The court imposed prison terms

on the lesser charges, and at the subsequent capital

sentencing proceeding the jury returned separate sen-

tences of death on the two murder counts. (2a). The

Court of Appeals of Maryland affirmed Grandison’s

convictions and sentences. Grandison v. State, 305

Md. 685, 773, 506 A.2d 580, 624 (1986). The judg-

ments became “‘final’’ for purposes of direct review

‘ Grandison’s federal convictions were subsequently affirmed

on appeal. See United States v. Grandison, 783 F.2d 1152, 1155-

57 (4th Cir.), cert. denied, 479 U.S. 845 (1986) (affirming con-

victions on federal narcotics charges); United States v. Gran-

dison, 780 F.2d 425, 428-29 (4th Cir. 1984), vacated and

remanded, 479 U.S. 1076 (1987), reinstating prior affirmance

on remand, 885 F.2d 143 (4th Cir. 1989) (affirming convictions

on federal witness-related charges).

2 Grandison was originally indicted in the Circuit Court for

Baltimore County, Maryland, the county where the murders oc-

curred; however, Grandison subsequently exercised his right un-

der Maryland law to automatic removal and the case was

transferred to Somerset County. (la-2a).

on October 6, 1986, the date on which this Court

denied certiorari. Grandison v. Maryland, 479 U.S.

873 (1986) (order).

Grandison petitioned the United States District

Court for the District of Maryland for federal habeas

corpus relief in May 1987. (2a-3a). On July 27, 1988,

the district court dismissed the petition for failure to

exhaust state remedies. (3a). Grandison appealed and,

on January 12, 1990, the United States Court of

Appeals for the Fourth Circuit affirmed the district

court’s ruling. (3a).

While Grandison’s habeas corpus petition was pend-

ing before the federal district court, this Court de-

cided Mills v. Maryland, 486 U.S. 367 (1988). The

Court held the Maryland capital sentencing form and

jury instructions unconstitutional because the jurors

in Mills could have concluded that they were pre-

cluded from giving any weight in the final balancing

of aggravating and mitigating factors to those miti-

gating factors found by some, but not all, jurors. Jd.

at 373-84. The sentence of death in that case was

therefore vacated. Jd. at 384.

On November 1, 1990, Grandison filed a petition

for state post conviction relief. On January 28, 1991,

the post conviction court conducted an evidentiary

hearing on the petition and, on December 6, 1991,

the court conducted an additional hearing to consider

three new claims that Grandison advanced at the first

hearing. (8a-5a). Among the claims considered was

Grandison’s assertion that Mills error necessitated re-

versal of his death sentences. (12a-17a).

On July 31, 1992, the post conviction court issued

its decision. The circuit court granted relief on Gran-

dison’s claim that the written capital sentencing form

and instructions were indistinguishable from those

held unconstitutional in Mills and that he was entitled

to retroactive application of that decision.’ The circuit

court found that Mills applied to Grandison’s case

under the second exception to the non-reitroactivity

doctrine of Teague v. Lane, 489 U.S. 288 (1989), con-

cerning “‘bedrock procedural elements essential to the

fairness of a proceeding.”’ (14a-16a). As to Grandi-

son’s remaining post conviction claims, the circuit

court denied relief. (5a-12a, 17a-43a).

The State timely applied to the Court of Appeals

of Maryland for leave to appeal from the circuit

court’s grant of post conviction relief as to the death

sentences. See Md. Ann. Code, Art. 27, § 645-I (1957,

1992 Repl. Vol.); Md. Rule 8-306(e). Grandison filed

a cross-application seeking review of the circuit court’s

denial of post conviction relief as to the underlying

convictions. On October 23, 1992, the Court of

Appeals denied the State’s application and Grandi-

son’s cross-application. (45a).

$ The circuit court found that the retroactivity issue was con-

trolled by this Court’s retroactivity analysis in Teague v. Lane,

489 U.S. 288 (1989). (9a-10a, 13a-14a). This holding is consonant

with pre-Teague decisions of the Court of Appeals of Maryland

indicating that this Court’s decisions form the sole constitutional

retroactivity analysis applicable in Maryland post conviction pro-

ceedings. See, e.g., State v. Colvin, 314 Md. 1, 25, 548 A.2d 506,

517-18 (1988) (applying Linkletter v. Walker, 381 U.S. 618 (1965),

to determine retroactivity of Mills).

REASONS FOR GRANTING THE WRIT

RULES INTENDED MERELY TO FACILI-

TATE A CAPITAL SENTENCING JURY’S

CONSIDERATION OF MITIGATING FACTORS

DO NOT FALL WITHIN THE NARROW “WA-

TERSHED RULES OF CRIMINAL PROCE-

DURE” EXCEPTION TO THE TEAGUE v.

LANE NON-RETROACTIVITY DOCTRINE.

Teague v. Lane, 489 U.S. 288 (1989), represents a

major reform in the criminal law, restoring a sense

of balance and fairness in the treatment of retroac-

tivity of new constitutional rules of criminal proce-

dure. The ultimate success of Teague, however, in

enforcing greater respect for finality of convictions

depends on the proper interpretation and application

of that decision.

As explained below, the second of the two Teague

exceptions threatens to swallow the Teague presump-

tion of non-retroactive application of new rules to

cases having “final’’ convictions. This exception, in-

volving “watershed rules of criminal procedure,’’ by

this Court’s own account has never been clearly de-

fined. Virtually all federal circuits have had an op-

portunity to discuss the exception, but confusion and

conflict have resulted, especially as to one of its

prongs. That confusion has carried over directly to

the present case, resulting in a decision which is at

odds with the narrow applicability that this Court has

indicated it intended for the second exception.

A. This Court’s decisions provide only limited guidance

concerning the proper boundaries of the Teague ex-

ception for “‘watershed rules of criminal procedure.”’

With one glaring “exception,” this Court has con-

fronted many of the thorny problems generated by

— ee

- — -

~]

the Teague non-retroactivity doctrine. The threshold

issue of whether a constitutional rule of criminal pro-

cedure is ‘“‘new,”’ and thus not available to those

defendants whose convictions are final, has been ex-

amined at length not only in Teague, 489 U.S. at 299-

301, but also in each of the Court’s post-Teague cases.‘

Similarly, the first exception to non-retroactivity, con-

cerning rules that place “certain kinds of primary,

private individual conduct beyond the power of the

criminal law-making authority to proscribe,’”’ id. at

311, not only has been discussed since Teague, but

also has been found satisfied in an Eighth Amend-

ment context, Penry v. Lynaugh, 492 U.S. 302, 329-

30 (1989).

The second Teague exception, in contrast, remains

largely undefined in this Court’s decisions. Under this

exception, retroactive application is justified with re-

spect to those “watershed rules of criminal proce-

dure” that not only are “aimed at improving the

accuracy of the trial,’’ but also “alter our understand-

ing of the bedrock procedural elements’’ essential to

the fairness of the proceeding. Teague, 489 U.S. at

311. Thus, the exception has two prongs—an “‘accu-

racy” prong and a “bedrock procedural elements’’ or

“essential to fairness’? prong—both of which must be

satisfied in order for the exception to apply. Jd. at

312. Recognizing that the meaning of the “bedrock

procedural elements’’ prong was not necessarily self-

* See Stringer v. Black, 112 S. Ct. 1130, 1135-40 (1992); Saw-

yer v. Smith, 110 S. Ct. 2822, 2826-31 (1990); Saffle v. Parks,

494 U.S. 484, 488-95 (1990); Butler v. McKellar, 494 U.S. 407,

412-16 (1990); Penry v. Lynaugh, 492 U.S. 302, 313-30 (1989).

evident, the Teague plurality® cautioned that few “‘such

components of basic due process have yet to emerge.”

Id. at 318. Such components are ‘“‘best illustrated by

recalling the classic grounds for the issuance of a writ

of habeas corpus—that the proceeding was dominated

by mob violence; that the prosecutor knowingly made

use of perjured testimony; or that the conviction was

based on a confession extorted from the defendant

by brutal means.” Jd. Elsewhere in the Teague opin-

ion, the plurality offered a watershed rule of a dif-

ferent type, and of much more recent vintage: the

right to counsel under Gideon v. Wainwright, 372

U.S. 335 (1963). Teague, 489 U.S. at 311-13.

Despite Teague’s narrowing illustrations, the pre-

cise meaning of “bedrock procedural elements’’ re-

mains uncertain. Indeed, the Court in Saffle v. Parks,

494 U.S. 484, 495 (1990), recognized that “‘the precise

contours” of the prong are “difficult to discern.”

Given the Court’s own difficulty in defining the prong,

it is hardly surprising that the lower courts have been

equally confounded in their attempts to apply the doc-

trine.

* The plurality joining in the Teague non-retroactivity discus-

sion became a majority in Penry, 492 U.S. at 307, 313-16, 329-

30.

B. The extensive body of federal decisions discussing

Teague has not clarified the second Teague excep-

tion but, to the contrary, has generated conflict and

confusion concerning the “‘bedrock procedural ele-

ments’’ prong, especially as it applies in contexts

like the present one.

The second Teague exception has been discussed or

applied by virtually all of the federal circuits.6 How-

ever, this substantial body of precedent has not served

to clarify the second exception, but rather has led to

conflicting interpretations of the “‘bedrock procedural

elements” prong of this exception. Indeed, the con-

fusion extends to the very issue presented in this

case.

A clear and direct link can be drawn between the

degree of expressed difficulty with which the federal

courts of appeals have applied or rejected the second

Teague exception and the extent to which this Court’s

decisions have provided sufficient guidance. On the

6 See, e.g., United States v. Lopez-Pena, 912 F.2d 1542, 1545

n.3 (1st Cir. 1989), affd on reh’g sub nom. United States v.

Martinez-Torres, 944 F.2d 51 (1st Cir.) (en banc), cert. denied,

111 S. Ct. 2886 (1991); United States v. Salerno, 964 F.2d 172,

178-79 (2d Cir. 1992); Zettlemoyer v. Fulcomer, 923 F.2d 284,

306 & n.19, 317 & n.3 (8d Cir.), cert. denied, 112 S. Ct. 280

(1991) (majority and dissenting opinions); Evans v. Muncy, 916

F.2d 163, 165-66 (4th Cir. 1990); Skelton v. Whitley, 950 F.2d

1037, 1043-46 (5th Cir. 1992); Cain v. Redman, 947 F.2d 817,

821-22 (6th Cir. 1991), cert. denied, 112 S. Ct. 1299 (1992);

Williams v. Chrans, 945 F.2d 926, 943-46 (7th Cir. 1991), cert.

denied, 112 S. Ct. 3002 (1992); Wickham v. Dowd, 914 F.2d

1111, 1115-16 (8th Cir. 1990), cert. denied, 111 S. Ct. 2897

(1991); Barker v. Estelle, 913 F.2d 1433, 1441-43 (9th Cir. 1990),

cert. denied, 111 S. Ct. 2060 (1991); Andrews v. Deland, 943

F.2d 1162, 1187 (10th Cir. 1991), cert. denied, 112 S. Ct. 1213

(1992); Lusk v. Singletary, 965 F.2d 946, 949-50 (11th Cir. 1992).

10

one hand, where the second exception was found not

to apply because the ‘‘accuracy’”’ prong was not sat-

isfied, the courts have indicated relatively little dif-

ficulty in reaching that conclusion. See, e.g., Evans v.

Muncy, 916 F.2d 163, 165-66 (4th Cir. 1990) (vacating

stay of execution on ground that proposed new rule

that defendant’s post-sentencing behavior could pro-

vide a basis to set aside death sentence “has nothing

to do with” trial accuracy under second Teague ex-

ception).

On the other hand, where the federal courts have

found it necessary to consider the ‘‘bedrock proce-

dural elements” prong of the second Teague excep-

tion, the courts have indicated far greater difficulty

in reaching a resolution, even where the result was

a finding that the prong was not satisfied. This dif-

ficulty is manifested in some cases by labored analysis

of what otherwise would appear to be an instance

where the prong clearly could not apply. See, e.g.,

Williams v. Chrans, 945 F.2d 926, 943-46 (7th Cir.

1991), cert. denied, 112 S. Ct. 3002 (1992) (although

rejecting “‘bedrock procedural element” status for

Batson v. Kentucky, 476 U.S. 79 (1986), seemingly

suggesting the issue was a close one, despite this

Court’s pre-Teague holding that Batson was not ret-

roactive). Other courts have evidenced their bewil-

derment by avoiding critical analysis altogether and

issuing instead a bare pronouncement that the prong

did not apply. See, e.g., Cain v. Redman, 947 F.2d

817, 821-22 (6th Cir. 1991), cert. denied, 112 S. Ct.

1299 (1992); Andrews v. Deland, 943 F.2d 1162, 1187

(10th Cir. 1991), cert. denied, 112 S. Ct. 1213 (1992).

Significantly, in many of these opinions, it is difficult

to discern where the discussion of the ‘“‘accuracy”’

er ee ee a en ee ee ei

prong ends, and where the discussion of the distinct

“bedrock procedural elements’’ prong begins.

The ‘“‘bedrock procedural elements’ prong has gen-

erated not only confusion, but also significant con-

flicts. For example, in characterizing as a “bedrock

procedural element’’ this Court’s decision in Cruz v.

New York, 481 U.S. 186 (1987), concerning the ad-

mission into evidence of a _ non-testifying co-

defendant’s confession, the Second Circuit has effec-

tively held that any new rule that “implicates” one

or more of the ‘fundamental guarantees of life or

liberty’ necessarily satisfies this prong. Graham v.

Hoke, 946 F.2d 982, 994 (2d Cir. 1991), cert. denied,

112 S. Ct. 890 (1992). As long as the new rule has

some accuracy-enhancing effect, it qualifies under the

second exception. See id. The Second Circuit’s view

thus comes even closer to adopting the extreme po-

sition of simply “‘importing into a very different con-

text the terms of the debate over incorporation”’ than

did the proposed approach that Teague rejected as

“unnecessarily anachronistic.” Teague, 489 U.S. at

312. And, Graham clearly conflicts with those deci-

sions holding that the mere fact that a new rule may

somehow relate to the defendant’s Sixth Amendment

confrontation rights does not render that rule a “‘bed-

rock procedural element.” See, e.g., Hardy v. Wig-

ginton, 922 F.2d 294, 301 (6th Cir. 1990) (rejecting

retroactivity for defendant’s invocation of Sixth

Amendment right to in-court confrontation of victim

of child sexual abuse).

The decision relied upon by the court in this case,

Williams v. Dixon, 961 F.2d 448 (4th Cir.), cert. de-

nied, 113 S. Ct. 510 (1992), is itself a prime example

of the conflict over the ‘“‘bedrock procedural ele-

12

ments”’ prong of the second Teague exception. There,

the Fourth Circuit held that Mills and a subsequent

decision, McKoy v. North Carolina, 494 U.S. 433

(1990), which together prohibit the states from pre-

cluding consideration at a capital sentencing of mit-

igating factors found by some but not all members

of the sentencing jury, satisfied the ‘‘bedrock pro-

cedural elements” prong of the second Teague excep-

tion. 961 F.2d at 454-56. This conclusion not only

departs from the earlier views of the Fourth Circuit,

see id. at 453 n.3 (acknowledging contrary result

reached in McDougall v. Dixon, 921 F.2d 518, 539

(4th Cir. 1990), cert. denied, 111 S. Ct. 2840 (1991)),

but also is in direct conflict with other federal courts

considering the retroactivity of Mills.

One court has interpreted Teague as precluding ret-

roactive application of Mills. See Wilcher v. Hargett,

978 F.2d 872, 877-78 (5th Cir. 1992). Another court

has indicated that Mills applies retroactively despite

Teague, without analyzing whether Mills created a

new rule or fell within any Teague exception. See

Zettlemoyer v. Fulcomer, 923 F.2d 284, 306 & n.19,

317 n.3 (3d Cir.), cert. denied, 112 S. Ct. 280 (1991)

(majority and dissenting opinions). In short, not only

is there confusion generally on the “bedrock proce-

dural elements’’ prong, but also there is a conflict on

the precise issue presented here.

C. This case presents an appropriate opportunity not

only to correct a clear error but also to clarify the

limited applicability of the second Teague exception

to new rules of Eighth Amendment procedure.

Williams v. Dixon reached the remarkable conclu-

sion that the Mills and McKoy “rule striking down

an arbitrary unanimity requirement has the same ‘pri-

13

macy and centrality’ as Gideon.” 961 F.2d at 456.

The post conviction court here essentially parroted

that reasoning. (14a-16a). This case, clearly wrong

under Teague, presents an ideal vehicle to clarify the

narrow scope of the second Teague exception.

The purpose of both Teague exceptions is to provide

for retroactive application of those extremely rare

new rules that operate to prevent likely miscarriages

of justice that may have occurred in an entire class

of cases. See Sawyer v. Smith, 110 8S. Ct. 2822, 2832-

33 (1990) (emphasizing ‘‘actual innocence’”’ exception

to procedural default doctrine to illustrate ‘“‘funda-

mental’’ nature of ‘“‘bedrock procedural elements” un-

der Teague). As this case demonstrates, the lower

courts have extended the second exception to far more

rules than those intended to prevent likely miscar-

riages of justice. This Court should grant review to

clarify that few, if any, of this Court’s Eighth Amend-

ment decisions since Gregg v. Georgia, 428 U.S. 153

(1976), are sufficiently ‘“‘fundamental”’ to satisfy the

second exception of Teague.

14

CONCLUSION

This case gives the Court the opportunity to provide

needed guidance to the lower courts concerning the

second exception to non-retroactivity under Teague.

For the foregoing reasons, the State of Maryland re-

spectfully requests that the Court issue a writ of

certiorari and reverse the judgment of the Circuit

Court for Somerset County, Maryland.

Respectfully submitted,

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

GARY E. BAIR*

GWYNN X KINSEY, JR.

Assistant Attorneys General

Counsel for Petitioner

* Counsel of Record

January 15, 1993

APPENDIX

at ae

er:

CONTENTS OF APPENDIX

Page

APPENDIX A:

Unreported ruling of the Circuit Court for Somerset

County, Maryland, dated July 31, 1992, in State

of Maryland v. Anthony Grandison, Sr., Case

I eA Anta aedanenescaseesscccccccscccse: la

APPENDIX B:

Unreported order of the Court of Appeals of Mary-

land, Anthony Grandison v. State of Maryland,

Misc. No. 29, Sept. Term, 1992, dated October

Se cccntennenccces 45a

la

APPENDIX A

IN THE CIRCUIT COURT FOR SOMERSET COUNTY

STATE OF MARYLAND

CASE NO. 4010

STATE OF MARYLAND

v.

ANTHONY GRANDISON, SR.

OPINION AND ORDER OF COURT

HISTORY OF PRIOR PROCEEDINGS

Petitioner was indicted on June 30, 1983 (indictment

number 83-CR-2340) and charged with the following of-

fenses: count one charged first degree murder of David

Scott Piechowicz, count two charged first degree murder

of Susan Carol Kennedy, count three charged conspiracy

to commit murder and count four charged the use of a

handgun in the commission of a felony or a crime of viol-

ence. Prior to the filing of the State charges, a two count

indictment was filed in the United States District Court

for the District of Maryland, charging Petitioner with wit-

ness tampering, 18 U.S.C. section 1512 and civil rights

violations based on interference with the right to be wit-

nesses in a judicial proceeding, 18 U.S.C. section 241.

On September 7, 1983, the State’s Attorney for Balti-

more County filed a Notice of Intention to Seek a Sentence

of Death for the first degree murders contained in in-

dictment #83-CR-2340. Following receipt of that notice,

Petitioner moved to have the case removed from Baltimore

2a

County. On December 19, 1983, the records were trans-

mitted to the Circuit Court for Somerset County.

Prior to the State proceeding, the Petitioner was tried

in the United States District Court on the federal charges

and was convicted on November 1, 1983. On December

15, 1983, Petitioner was sentenced for the federal convic-

tions to life imprisonment plus ten years.

On February 3, 1984, Petitioner appeared in Somerset

County on the state charges. At that time, Petitioner

waived his right to counsel but requested and was granted

the assistance of standby counsel. On February 15, 1984,

H. Warren Crawford entered his appearance as standby

counsel in Petitioner’s case. On May 3, 1984, Petitioner

was tried by a jury on the state charges, and on May 22,

1984, was found guilty of all four counts charged in the

indictment.

On June 6, 1984, the court imposed a sentence of life

imprisonment for the conspiracy conviction and twenty

years for the handgun violation. Both prison sentences

were ordered to run consecutive with each other and con-

secutive to the sentence imposed by the federal court.

Subsequently, the jury returned sentences of death for

both murder counts.

Petitioner filed a Notice of Appeal from the state con-

victions; his case was heard by the Maryland Court of

Appeals on November 5, 1985. On April 1, 1986, the Mary-

land Court of Appeals affirmed the judgment of the Circuit

Court for Somerset County. Grandison v. State, 305 Md.

685, 506 A.2d 580 (1986). Subsequently, Petitioner filed a

petition for writ of certiorari with the United States

Supreme Court, but certiorari was denied on December

1, 1986. Grandison v. Maryland, 479 U.S. 873, reh. denied,

479 U.S. 1001 (1986).

Petitioner at this point did not file a state post convic-

tion petition but instead filed, in May, 1987, a petition for

3a

a federal writ of habeas corpus seeking relief from his

state convictions pursuant to 28 U.S.C. section 2254.! On

July 27, 1988, the United States District Court dismissed

the petition without prejudice holding that the Petitioner

had not exhausted his state remedies in four of the eight

contentions raised in his petition.

On August 11, 1988, Petitioner filed in the United States

District Court a Motion for Reconsideration and a Notice

of Appeal, which was denied on November 23, 1988. On

December 6, 1988, Petitioner filed a motion with the Dis-

trict Court to reconsider its November 23, 1988 decision:

the court denied the motion and appeal on December 14,

1988. On December 19, 1988, Petitioner filed a Notice of

Appeal with the District Court from the decision of July

27, 1988, and on January 12, 1990, the District Court

affirmed that decision holding that Petitioner’s case must

be dismissed because he had failed to exhaust his state

remedies. Grandison v. Maryland, No. 89-4004, slip op.

(D. Md. filed Jan. 12, 1990).

On November 1, 1990, Petitioner, through his counsel

Jerome E. Deise, Jr., Assistant Public Defender, filed a

petition for state post conviction relief in the Circuit Court

for Somerset County. This petition contained two chal-

lenges to the validity of the state convictions. Also on that

date, a stay of execution was signed by the court, and a

date was set for the post conviction hearing. However,

pursuant to a request from the Petitioner that hearing

date was continued until January 28, 1991. On January

21, 1991, Howard L. Cardin entered an appearance as

counsel for the Petitioner and filed an amended post con-

viction petition. The amended petition raised ten additional

challenges to the validity of Petitioner’s conviction.

' All dates concerning Petitioner’s proceeding in the United States

District Court were taken from Petitioner’s briefs filed with that Court

and the subsequent unpublished opinion Grandison v. Maryland, No.

89-4004 slip op. (D. Md. filed Jan. 12, 1990).

4a

On January 28, 1991, the hearing on the petition for

post conviction relief was held. The Circuit Court for So-

merset County heard argument on the twelve issues raised

in the original and amended petitions. Also at this hearing,

Petitioner raised three additional issues which challenged

the validity of the state convictions. These issues related

to the (1) denial of equal protection of the laws, (2) denial

of effective assistance of counsel at trial and appellate level

and (3) the trial judge’s failure to properly advise Petitioner

of his right to a jury sentencing. In order to give Petitioner

a fair opportunity to brief and litigate these three addi-

tional issues the court set another hearing for May 31,

1991. Petitioner asked for and was granted a continuance

of that hearing until December 6, 1991.

The Court on December 6, 1991, heard arguments as

to (1) the denial of equal protection and (2) ineffective

assistance of counsel. The Petitioner chose to abandon the

issue regarding the failure of the trial judge to advise

Petitioner of a jury sentencing. The Court also gave the

Petitioner and State’s Attorney an opportunity to supple-

ment their previous arguments involving Booth v. Mary-

land, 482 U.S. 496 (1987), in light of the Supreme Court’s

holding in Payne v. Tennessee, __ U.S.__., 111 S.Ct.

2597 (1991), in which the Court overruled that part of the

Booth decision that had held ‘‘that evidence and argument

relating to the victim and the impact of the victim’s death

on the victim’s family are inadmissible at a capital sent-

encing hearing.”’ 111 S.Ct. at 2611 n.2.

During this hearing (December 6, 1991) the Court re-

fused to accept a third amended petition which raised thir-

teen additional challenges to the validity of Petitioner’s

conviction.? The following opinion addresses the twelve is-

* The court denied the third amended petition, because at the hearing

on January 28, 1991, the Court specifically asked the Petitioner if there

were any other issues that he would like to raise at the second sched-

uled hearing. Petitioner responded that he only wished to raise three

additional issues. (Tr. dated January 26, 1991 pg. 77,78).

sues filed in the original and amended petitions, and the

two subsequent issues which were briefed and argued on

December 6, 1991.

Petitioner has also raised an additional issue which may

relate to his post conviction proceedings; the issue is a

“Motion To Correct The Defendant’s Judgment of Com-

mitment Record’’ which Petitioner filed December 3, 1991.

This Court will address this additional issue in a separate

Opinion and Order of Court.

This Court will address the issues in the order they were

raised in the petitioner’s post conviction petitions.’

I. PETITIONER’S CONSTITUTIONAL RIGHTS WERE NOT

VIOLATED BY THE INTRODUCTION OF A VICTIM IM-

PACT STATEMENT.

The Petitioner claims that his convictions and sentences

are void because the State improperly introduced into evi-

dence at the sentencing phase of trial a victim impact

statement. The Petitioner has made the following argu-

ments alleging the improper use of the victim impact state-

ment.

*It should be noted that the first petition filed identified the two

issues contained therein as II “A” and “B”, rather than listing them

numerically. In the Amended Petition, the Petitioner styled his issues

as I through XIII when in actuality there were only ten issues raised.

Petitioner then filed a second Amended Petition with two additional

issues styled as “1.”’ and “2.” For purposes of clarity in this opinion

the court will address the issues numerically in the order they were

presented to the court. Consequently, the court’s numbering of the

issues will not coincide with the Petitioner’s, however, all 14 issues

contained in the three petitions filed by Petitioner will be addressed.

6a

A. The introduction of the victim impact statement

was improper, because the United States Supreme

Court in Booth v. Maryland, 482 U.S. 496 (1987),

prohibited the use of such statements, and this

new rule announced in Booth should be applied

retroactively to Petitioner’s case.

Petitioner’s case became final on December 1, 1986 when

the United States Supreme Court denied his Petition for

Certiorari in Grandison v. Maryland, 479 U.S. 873, reh.

denied, 479 U.S. 1001 (1986). At that time the Maryland

Annotated Code, Article 27, section 413(cXIV) and Article

41, section 4-609(d) allowed the introduction of victim im-

pact evidence in a death penalty case. The United States

Supreme Court did not decide Booth v. Maryland, 482 U.S.

496 (1987), which prohibited the use of victim impact evi-

dence, until June 15, 1987. Therefore, at the time

Petitioner’s case became final the introduction of a victim

impact statement was proper. Petitioner now argues that

the decision in Booth should be applied retroactively to his

case making the use of the victim impact statement at the

sentencing phase of the trial improper. Petitioner is not

entitled to the benefit of the Booth decision according to

the standards for the retroactive application of new rules

that were set forth by the United States Supreme Court

in Teague v. Lane, 489 U.S. 288 (1989), and therefore his

claim must be dismissed.

The Teague Court established that in general newly de-

clared rules should be applied only to cases pending on

direct review, but should not be applied retroactively to

cases on collateral review. Jd. at 304. The Teague Court,

however, did set forth two exceptions to this general rule.

The Court held that if the new rule (1) “places certain

kinds of primary, private individual conduct beyond the

power of the criminal law making authority to proscribe

or (2) the new rule requires the observance of those pro-

cedures that are implicated in the concept of ordered lib-

7a

erty’’ then the new rule should be applied retroactively to

cases on collateral review. Jd. at 307.

The Teague Court further established that a new rule

is created when it breaks new ground or imposes a new

obligation on the state or the Federal Government, or the

resulting rule was not dictated by precedent existing at

the time the conviction became final. Teague, 489 U.S. at

301. The United States Supreme Court extended the new

rule standard of Teague to capital sentencing proceedings

in Penry v. Lynaugh, 492 U.S. 302 (1989). Since

Petitioner’s post conviction petition involves collateral re-

view, the necessary analysis to determine the retroactive

application of Booth is whether the decision constitutes a

new rule under Teague, and if so, whether it falls within

one of the Teague exceptions.

The decision in Booth prohibiting the use of victim im-

pact statements is a new rule under the Teague standard

because it imposes upon the state a new obligation which

was not dictated by precedent. Therefore, the only way

Booth can be applied retroactively to Petitioner’s case is

if it falls within one of the Teague exceptions.

The Court in Penry interpreted Teague’s first exception

as applying to new rules that placed a certain class of

people beyond the state’s power to impose a certain pen-

alty.* Penry, 492 U.S. 302 (1989). The Booth decision clearly

does not place a class of people beyond the power of the

‘The Penry Court stated that since Penry was before them on col-

lateral review the Court had to decide if the relief he sought would

create a new rule under Teague. The Court applied the new rule analysis

of Teague and explained that if it decided that the Eighth Amendment

prohibited the State from imposing the death penalty on mentally re-

tarded persons, such as Penry, the Court would be announcing a new

rule that would come under the first exception announced in Teague,

and therefore Penry would be entitled to retrospective relief of the

new rule. Penry, 492 U.S. 302 (1989).

8a

State to impose the penalty of death. Therefore, this ex-

ception is not applicable to Petitioner’s case.

As to the second exception, the Teague Court deter-

mined that it applies to watershed rules of criminal pro-

cedure; rules which are “bedrock procedural elements’’.

Teague, 489 U.S. at 315. The United States Supreme Court,

in Saffle v. Parks, 494 U.S. 484 (1990), and Sawyer v.

Smith, __ U.S. __., 110 S.Ct. 2822 (1990), also inter-

preted the second exception in Teague as applying to fun-

damental rights such as the right of the criminal defendant

to be represented by counsel. Therefore, in order for the

victim impact statement to fall within the second exception

the use of the statement would have to be so contrary to

the concept of ordered liberty that it would prevent an

accurate proceeding or deny Petitioner a fundamental

right.

Evidence that the victim impact statement in Petitioner’s

case does not satisfy the second exception is found in

Payne v. Tennessee, __ U.S. __,, 111 S.Ct. 2597 (1991).

The Court in Payne held that evidence about the victim

and the impact of the victim’s murder on the victim’s

family is relevant evidence and “‘the State has a legitimate

interest in counteracting the mitigating evidence which the

defendant is entitled to put in by reminding the sentencer

that just as the murderer should be considered as an in-

dividual so too the victim.’”’ 111 S.Ct. at 2608-09. There-

fore, Booth does not fall within Teague’s second exception

of prohibiting a procedure that is contrary to the concept

of order liberty.

More importantly, Payne overruled a portion of the

Booth decision by holding that there is no constitutional

bar to the introduction of victim impact evidence or state-

ments which relate to the victim and the impact of the

victim’s death on the family. The effect of the Payne de-

cision is to restore the law set forth in Article 27, section

413(cKIV) and Article 41, section 4-609%d), which allow the

9a

introduction of victim impact evidence in a death penalty

case.

The victim impact evidence introduced in Petitioner’s

case related directly to the impact the murder had on the

victim’s family and did not relate to any characterizations

or opinions about the crime, therefore, the victim impact

evidence was admissible. This Court finds for the above

reasons that the decision in Booth is not to be applied

retroactively to Petitioner’s case and the claim must be

dismissed.

B. The ‘‘new rule’ analysis announced in Teague is

only applicable to federal habeas corpus proceed-

ings, and that State post conviction proceeding are

governed exclusively by the Post Conviction Act.

Petitioner is arguing that the “new rule” analysis in

Teague is applicable only to federal habeas corpus pro-

ceedings and not to state post conviction proceedings.

Therefore he claims that the Booth decision should be ap-

plied retroactively to his case, even if Booth established a

“new rule’.

The new rule analysis of T, eague is applicable to state

post conviction proceedings. The Court in Teague explained

that it was announcing a new rule analysis regarding the

retroactive application of new rules to cases on collateral

review, because the new rule analysis is vital to the un-

derlying principles of uniformity and finality which are

compelling in the criminal context. Teague, 489 U.S. at

309. The Court pointed out that: “{N]o one, not criminal

defendants, not the Judicial system, not society as a whole

is benefitted by a judgment providing that a man shall

tentatively go to jail today, but tomorrow and every day

thereafter his continued incarceration shail be subject to

fresh litigation.” Jd. at 309 (quoting Mackey v. United

States, 401 U.S. 667, 691 (1971) (Harlan, J., concurring in

part and dissenting in part)).

10a

Furthermore, the United States Supreme Court in Saw-

yer stated that the new rule standard established in Teague

serves to “validate reasonable, good-faith interpretations

of existing precedents made by state courts even though

they are shown to be contrary to later decisions.”’ Sawyer,

110 S.Ct. 2822, 2827 (1990).

Reasoning would dictate that the new rule analysis of

Teague is applicable to state post conviction proceedings,

not only to preserve the principles of uniformity and fi-

nality, but also because habeas corpus and post conviction

proceedings are similar in nature and provide similar relief.

Both proceedings are collateral remedies and are available

to defendants only after their convictions have become

final. Both procedures serve as an incentive for trial and

appellate judges to conduct their proceedings in a manner

consistent with established constitutional procedures. The

Court in Teague explained:

[T]he threat of habeas serves as a necessary in-

centive for trial and appellate judges throughout

the land to conduct their proceedings in a manner

consistent with established constitutional princi-

ples. In order to perform this deterrence func-

tion, the habeas court need only apply the

constitutional standards that prevailed at the time

the original proceeding took place.

Teague, 489 U.S. at 306 (emphasis added). Likewise, the

availability of post conviction relief serves as a necessary

incentive for state trial and appellate judges to conduct

their proceedings in a manner consistent with constitu-

tional principles that prevail at the time of the proceed-

ings. Consequently, for the above reasons the new rule

analysis of Teague applies to state post conviction pro-

ceedings and Petitioner’s argument must be dismissed as

erroneous.

lla

C. Pursuant to section 645A(d) of the Maryland Post

Conviction Procedure Act Petitioner is entitled to

the retrospective application of the Booth deci-

sion.

Petitioner argues that the Booth decision imposes upon

the Maryland courts a procedural or substantive standard

not previously recognized, and that therefore the Maryland

Uniform Post Conviction Procedure Act, codified in the

Maryland Annotated Code at Article 27, section 645A,

requires that the Petitioner receive the benefit of the Booth

decision. Section 645A(d) provides:

(d) Decision that Constitution imposes standard not

heretofore recognized.

—For the purposes of this subtitle and notwithstand-

ing any other provision hereof, no allegation of error

shall be deemed to have been finally litigated or

waived where, subsequent to any proceeding in which

said allegation otherwise may have been waived, any

court whose decisions are binding upon the lower

courts of this State holds that the Constitution of the

United States or of Maryland imposes upon State

criminal proceedings a procedural or substantive

standard not theretofore recognized, which such

standard is intended to be applied retrospectively and

would thereby affect the validity of the petitioner’s

conviction or sentence.

Md. Ann. Code art., 27 sec. 645 (1957).

Petitioner’s argument must be dismissed because section

645A(d) explicitly states that such procedural or substan-

tive standards should be applied when “such standard is

intended to be applied retrospectively”. Jd. As previously

stated in issue I, part A of this opinion supra the decision

in Booth which prohibits the use of victim impact evidence

in a capital sentencing proceeding is not to be applied

retroactively to Petitioner’s case. Since section 645A(d)

12a

only speaks to rules which are intended to be applied ret-

rospectively, the Petitioner is not entitled to the applica-

tion of the Booth decision under section 645A(d).

Il. THE SENTENCING FORM SUBMITTED TO THE JURY

UNCONSTITUTIONALLY REQUIRED UNANIMITY IN

DETERMINING MITIGATING FACTORS

Petitioner alleges that the sentencing form used in his

case was identical to the form that was struck down in

the case of Mills v. Maryland, 486 U.S. 367 (1988).

Petitioner suggests that the form which was submitted to

the jury was violative of rights guaranteed by the Mary-

land Declaration of Rights and the Eighth and Fourteenth

Amendments to the United States Constitution.

In the Mills case an inmate at a state prison was tried

and convicted of murdering his cellmate. In the sentencing

phase the jury was provided with a verdict form, parts of

which (1) provided the jury with a list of several mitigating

circumstances which could be checked “‘yes”’ or ‘‘no’’, pre-

ceded by a statement that the jury ‘“‘unanimously find{s]

that each of the following mitigating circumstances which

is marked ‘yes’ has been proven to exist’? by a prepon-

derance of the evidence; and (2) asked the jury to affirm

or deny that it unanimously found that the mitigating cir-

cumstances marked ‘“‘yes” outweighed aggravating circum-

stances found in a previous section. The trial judge’s

instructions emphasized that all jury determinations had

to be unanimous, including findings as to mitigating cir-

cumstances.

The Court of Appeals of Maryland concluded that the

imposition of the death sentence was constitutionally sound.

Mills v. State, 310 Md. 33, 527 A.2d 3 (1987), rev’d, 486

U.S. 367 (1988). The United States Supreme Court vacated

the judgment of the Court of Appeals of Maryland insofar

as it had sustained the imposition of the death penalty,

finding the unanimity requirement prevented the jury’s

eee tt LLL LLL LLL LLL LLL LL

eee i eT CG OO GL LLL: LON

13a

consideration of mitigating circumstances. The Court

stated:

We conclude that there is a substantial probability

that reasonable jurors, upon receiving the judge’s in-

structions in this case, and in attempting to complete

the verdict form as instructed, well may have thought

they were precluded from considering any mitigating

evidence unless all 12 jurors agreed on the existence

of a particular such circumstance. Under our cases,

the sentencer must be permitted to consider al mit-

igating evidence. The possibility that a single juror

could block such consideration, and consequently re-

quire the jury to impose the death penalty, is one we

dare not risk.

Mills, 486 U.S. at 384.

An examination of the record in Petitioner’s case pro-

vides that the sentencing form used in his case is the same

or substantially similar to the form used in Mills, and in

Petitioner’s case the trial judge did instruct the jurors that

their decision as to mitigating circumstances had to be

unanimous. (Tr.p.195). Therefore, Petitioner argues this

Court should apply the holding in Mills retroactively pur-

suant to the provisions of Colvin v. State, 314 Md. 1, 548

A.2d 506 (1988).

The State argues that the Petitioner is not entitled to

relief under Mills because the Mills case was decided after

Petitioner’s case was finally litigated and the Mills rule

does not satisfy the test governing the retroactive appli-

cation of new rules that was established in Teague v. Lane,

489 U.S. 288, (1989).

As has been previously explained in this opinion, the

Teague Court established that in general newly declared

rules should be applied only to cases pending on direct

review and not to cases on collateral review, Teague, 489

U.S. at 301, but did set forth two exceptions to this gen-

l4a

eral rule. The Court held that if the new rule (1) “places

certain kinds of primary, private individual conduct beyond

the power of the criminal lawmaking authority to proscribe

or (2) the new rule requires the observance of those pro-

cedures that are implicated in the concept of ordered lib-

erty” then the new rule should be applied retroactively to

cases on collateral review. Jd. at 307.

The Teague Court further established that a new rule

is created when it breaks new ground or imposes a new

obligation on the State or the Federal Government, or the

resulting rule was not dictated by precedent existing at

the time the conviction became final. Jd. at 301. The

Supreme Court extended the new rule standard of Teague

to capital sentencing proceedings in Penry v. Lynaugh, 492

U.S. 302 (1989).

As the issue of post conviction is a matter involving

collateral review, this court must decide whether Mills is

a new rule, and if so, whether one of the two Teague

exceptions apply.

Mills meets the new rule standard articulated in Teague,

as it was not dictated by prior precedent. McDougall v.

Dizon, 921 F.2d 518 (4th Cir. 1990). Accordingly, this

Court must determine if one of the two Teague exceptions

applies.

The Mills decision does not place a class of people be-

yond the power of the State to impose the penalty of

death. Therefore the first exception has no application. See,

Williams v. Dixon, No. 89-4001 slip op. (4th Cir. filed

March 3, 1992).

In determining whether the second exception to Teague

applies, this Court needs to look to the United States

Supreme Court’s decision in Sawyer v. Smith, —— U.S.

—, 110 S.Ct. 2822 (1990), wherein the Court explained ~

that to satisfy the second exception, a new rule must fulfill

two requirements:

15a

It is just not enough under Teague to say that a

new rule is aimed at improving the accuracy of the

trial. More is required. A rule that qualifies under

this exception must not only improve accuracy, but

also ‘“‘alter our understanding of the bedrock proce-

dural elements’ essential to the fairness of a pro-

ceeding.

Sawyer, 110 S.Ct. at 2831 (emphasis in original).

The Fourth Circuit Court of Appeals in the Williams

case held that the rule in Mills was aimed at increasing

the accuracy of the trial, thereby satisfying the first re-

quirement of the second exception in Teague. ‘‘All of our

Eighth Amendment jurisprudence concerning capital sent-

encing is directed toward the enhancement of reliability

and accuracy in some sense.” Williams, No. 89-4001, slip

op. at 10 (quoting Sawyer, 110 S.Ct. at 2831).

In Williams, the Fourth Circuit made it clear that the

Mills rule also satisfies the second requirement of the sec-

ond exception in Teague. The Williams court reasoned that

an individualized sentencing determination is the most fun-

damental right recognized at the capital sentencing hearing

and that a unanimity requirement, as was provided in Mills

(and in Petitioner’s case), is ‘‘arbitrary’”’ and “‘capricious’’.

Williams, No. 89-4001, slip op. at 12, 13. The court quoted

from McKoy v. North Carolina, __ U.S. —_, 110 S.Ct.

1227 (1990), wherein the Supreme Court addressed the

arbitrary and capricious nature of the imposition of the

death penalty on the basis of one juror’s vote: “Given this

description, it is apparent that the result in Mulls fits

within our line of cases forbidding the imposition of capital

punishment on the basis of ‘caprice’ in ‘an arbitrary and

unpredictable fashion,’ or through ‘arbitrary’ or ‘freakish’

means.” Williams, No. 89-4001, slip op. at 13 (quoting

McKoy, 110 S.Ct. at 1239). The Williams court, in holding

that Mills clearly met the second requirement of the sec-

ond Teague exception, stated, “the rules in Mills and

16a

McKoy are ‘bedrock procedural elements’ and are ‘implicit

in ordered liberty’.’’ Jd. at 13.

The State contends that Petitioner’s case is distinguish-

able from the Mills case in that the Mills jury found no

mitigating circumstances and therefore never got to the

weighing process outlined on the sentencing form. It is

not contested that Petitioner’s jury did find two mitigating

factors to exist.

The State reasons that since the jury found two miti-

gating circumstances, there must not have been any con-

fusion on the part of the jury in light of the sentencing

form and the court’s instructions. The State fails to men-

tion in its memorandum that prior to the jury’s sentencing

deliberations, the State admitted that the two mitigating

circumstances existed (numbers one and six), that Judge

Simpkins so advised the jury, and that the sentencing form

was marked accordingly. (Tr. pp. 193-194). What we do

not know is the nature of the jury’s deliberations as to

other mitigating circumstances. Given the unanimity re-

quirement of Petitioner’s sentencing form and the Judge’s

instructions, this Court cannot be certain that it might not

have been possible for some of the jurors, or even an

individual juror, to have found other mitigating circum-

stances that may have altered the jury’s determination to

impose a penalty of death.

The Court in Mills was clear in stating that under the

capital sentencing scheme in Maryland at the time of that

case, one holdout juror could unconstitutionally prevent the

other eleven from considering mitigating evidence. Mills,

486 U.S. at 374. Justice Blackmun, writing for the ma-

jority, stated, “it would certainly be the height of arbi-

trariness to allow or require the imposition of the death

penalty under the circumstances so postulated by

petitioner.”’ Jd. at 374. The Justice went on to write, “[T]he

risk that the death penalty will be imposed in ond of

factors which may call for a less severe penalty ... is

17a

unacceptable and incompatible with the commands of

Eighth and Fourteenth Amendments.” Jd. at 377 (quoting

Lockett v. Ohio, 488 U.S. 586, 605 (1978)).

This Court finds little, if anything, to distinguish

Petitioner’s case from Mills. This Court believes that the

law, as it currently exists, provides that Mills applies ret-

roactively to Petitioner’s case, and that the Petitioner

should be allowed a new sentencing.

III. PETITIONER’S CONVICTIONS AND SENTENCES ARE

NOT VOID FOR JURISDICTIONAL REASONS

Petitioner argues that counts one and two of the in-

dictment are void because jurisdiction for those counts did

not lie in Baltimore County. Petitioner submits that, at all

times, the alleged crimes charged in counts one and two

of the State’s indictment occurred while he was confined

in the Baltimore City Jail. Therefore, Baltimore County

was without jurisdiction to try him as an accessory to

commit murder. Petitioner points to Article 27, section

586A, which reads in pertinent part as follows: “‘in like

manner an accessory to murder or felony committed shall

be tried by the Court within whose jurisdiction such person

became accessory.”” Md. Ann. Code art. 27, sec. 586A

(1957).

In McBurney v. State, 280 Md. 21, 371 A.2d 129 (1977),

the Court of Appeals of Maryland indicated that ‘‘[t]here

are two facets to the jurisdiction of a court—jurisdiction

over the subject matter and venue.” Jd. at 31, 371 A.2d

at 135. Interestingly, the provisions of the Maryland Code

referred to by Petitioner are found in a section titled

“Venue, Procedure and Sentencing’ and subtitled ‘‘Venue’’.

Indeed the argument advanced by Petitioner seems to be

an issue of jurisdiction only as it relates to venue. Section

4-302 of the Courts and Judicial Proceeding Article, which

sets forth the applicable Maryland law on felony criminal

jurisdiction, states clearly that a circuit court of this state

has common law jurisdiction in all criminal cases commit-

18a

ted in Maryland except where limited by law. Md. Code

Ann., Cts. & Jud. Proc. section 4-302 (1985).

The McBurney court further stated that “subject matter

being the essential test of jurisdiction, venue may be

waived in a criminal case, expressly or by failure to make

a timely objection. Timely objection to venue is one in-

terposed no later than the first pleading to the charge.”

McBurney, 280 Md. at 31, 371 A.2d at 125. Contrary to

the contentions of the Petitioner, this Court believes that

the issue advanced herein was raised in Petitioner’s appeal.

In Grandison v. State, 305 Md. 685, 506 A.2d 80 (1986),

the Court of Appeals of Maryland, in noting that venue

was waived, stated: “The short answer to appellant’s con-

tention is that venue for the murder and handgun counts

was never challenged in the trial court.” Jd. at 702, 506

A.2d at 588. The court went on to further address the

argument and concluded that even if the issue had been

properly raised, it would be without merit because “‘[a]s

a co-conspirator, Grandison became criminally responsible

for the acts of his fellow conspirators; acts which were

committed in Baltimore County. Since the record reveals

that in this conspiracy Grandison played a principal role,

he is subject to venue at this situs of the crime.’’ Jd. at

704, 506 A.2d at 589.

Article 27, section 645A(a), provides that an issue that

has been fully litigated is not properly the subject of a

post conviction proceeding. This Court believes that

Petitioner’s allegation relates to venue and that issue has

been fully litigated on direct appeal. For reasons stated

herein the Court believes that Petitioner’s allegation is

without merit.

IV. JURISDICTION WAS PROPER AS TO THE THIRD

COUNT OF THE INDICTMENT AND THE PETITIONER

WAS PROPERLY CHARGED

Petitioner contends that the third count of the indict-

ment, regarding an alleged conspiracy between Petitioner

EEE

19a

and others to murder David Scott Piechowicz and Susan

Carol Kennedy was defective in that it failed to name the

victims. Therefore, Petitioner argues that he was found

guilty and sentenced to a term of life imprisonment for a

conspiracy not charged in the indictment.

Petitioner attempts to bring this issue before the Court

in post conviction review as an issue of subject matter

jurisdiction. Actually, the issue raised relates to an alleged

defect in the indictment and is not a question of jurisdic-

tion.

Article 27, section 40 requires only a brief statement of

the object of the conspiracy. Furthermore, the Court of

Appeals of Maryland in Campbell v. State, 325 Md. 488,

601 A.2d 667 (1992), stated: “it ... is not required that

the object of the unexecuted conspiracy should be set out

with great particularity and certainty in the indictment,

because only such facts need be stated as shall fairly and

reasonably inform the accused of the offense with which

he is charged.” Jd. at 496, 601 A.2d at 671 (quoting Lan-

asa v. State, 109 Md. 602, 608-09, 71 A. 1058, 1060 (1909)).

The Campbell court reasoned that “[t]his is consistent with

the fact that the offense of which the accused is required

to be informed is the conspiracy, rather than the crime

which is its object.’’ Campbell, 325 Md. at 497, 601 A.2d

at 671.

A review of the third count indicates that the count was

framed in such a manner as to inform the Petitioner of

the charge against him so that he could prepare his de-

fense and protect himself against a subsequent prosecution

for the same offense.

Assuming arguendo that there was a defect in the in-

dictment, the record is clear that Petitioner faiied to raise

the issue within the time required by Maryland Rule 4-

252(aX2), or on appeal. In Bowve v. State, 234 Md. 585,

200 A.2d 557 (1963), the Court of Appeals stated, ‘“‘Mary-

land has held consistently that a defective or inartificial

20a

indictment, at least if it charges an offense, cannot be

tested or reviewed on habeas corpus or post conviction,

although it might have been vulnerable to direct timely

attack.”” Id. at 595, 200 A.2d at 562. Accordingly, even if

there had been a defect in the third count of the indict-

ment, Petitioner has waived his right to raise the issue

by failing to do so in timely fashion.

Furthermore, Maryland Rule 4-24l(a) gives the

Petitioner an opportunity to file a demand for a bill of

particulars, to which the State would have had to reply.

Petitioner, however, failed to make this demand.

This Court is of the opinion that the third count of

Petitioner’s indictment was not defective and therefore

would not have been vulnerable to a timely attack, but

even if it had been defective, the issue is not a proper

subject for post conviction review. For the above stated

reasons Petitioner’s argument must be dismissed.

V. THE EVIDENCE WAS LEGALLY SUFFICIENT TO

CONVICT THE PETITIONER OF THE USE OF A HAND-

GUN IN THE COMMISSION OF A FELONY OR CRIME

OF VIOLENCE.

Petitioner was convicted pursuant to Article 27, section

36(B\d) of the use of a handgun in the commission of a

felony or a crime of violence. Petitioner now contends that

his sentence and conviction are invalid, because the State

failed to prove the required elements of a handgun. He

alleges that the description of the MAC-11 (the alleged

weapon) was so grossly insufficient that the State merely

proved that the MAC-11 was either a handgun or a ma-

chine gun. For the following reasons, Petitioner’s claim

must be denied.

Petitioner has waived this issue under the Maryland Uni-

form Post Conviction Act, Article 27, section 645A(c),

which states in pertinent parts:

2la

(c) When allegation of error deemed to have been

waived.—(1) For the purposes of this subtitle, an

allegation of error shall be deemed to be waived

when a petitioner could have made, but intelli-

gently and knowingly failed to make, such alle-

gation before trial, at trial, on direct appeal, ...

or in any other proceeding actually instituted by

said petitioner, unless the failure to make such an

allegation shall be excused because of special cir-

cumstances. The burden of proving the existence

of such special circumstances shall be upon the

petitioner.

(2) When an allegation of error could have been made

before trial, at trial, on direct appeal ... but was

not in fact so made there shall be a rebuttable

presumption that said petitioner intelligently and

knowingly failed to make such allegation.

Md. Ann. Code art. 27, sec. 645A(c) (1957).

The court in Davis v. State, 285 Md. 19, 400 A.2d 406

(1979), analyzed Article 27, section 645A(c) and determined

the scope or applicability of its waiver provision. The court

held:

[iIn view of the ambiguity associated with the term

‘waiver’, we [did] not feel compelled by the language

of section 645A to apply the ‘intelligent and knowing’

standard to all allegations made in post conviction

actions,’ but only to those matters falling within the

scope of subsection (c).

Id. at 38, 400 A.2d at 412 (quoting Curtis v. State, 284

Md. 132, 149, 395 A.2d 464 (1978)). The Davis court de-

termined that the “‘intelligent and knowing” standard of

section 645A(c) was applicable to issues such as Sixth

Amendment right to counsel and trial by jury, the Fifth

Amendment self-incrimination privilege and the Double

Jeopardy Clause. Jd. at 33, 400 A.2d at 413. The Davis

22a

court, in determining what issues or circumstances did not

fall within the ‘‘intelligent and knowing”’ standard, held:

it [was] clear that a ‘procedural default’ in certain

circumstances, even where a defendant may person-

ally have been without knowledge or understanding

of the matter, may result in his being precluded from

asserting important rights ... A defendant may for-

ego a broad spectrum of rights which are deemed to

fall within the category of tactical decision by counsel

or involve procedural defaults.

Id. at 35, 400 A.2d at 412. In essence, the Davis court

applied the “‘intelligent and knowing”’ waiver standard only

to rights which were deemed fundamental and all other

rights were waived by general waiver principles.

The Court of Special Appeals, in State v. Torres, 86 Md.

App. 560, 587 A.2d. 582 (1991), recently analyzed the law

regarding waiver of postconviction allegations. The court

essentially restated the holdings of the Davis court and

added the following:

(1) [T]he Johnson v. Zerbst [citation omitted] intelli-

gent and knowing standard applies only to the

waiver ... of fundamental constitutional rights...

(2) The determination of whether a particular right

is such a fundamental right that an intelligent and

knowing waiver must be proved and cannot be

presumed or deemed must be decided on a case-

by-case basis.

Id. at 566-68, 587 A.2d at 585.

The Torres court suggested the following procedure to

determine if an issue has been waived for purposes of post

conviction:

(1) [CJonsider whether the allegation could have been

raised before. If it could, the judge must then

decide whether the allegation has been waived.

23a

(2) [I]f the right is a fundamental right, waiver, meas-

ured by the “‘intelligent and knowing” standard,

must be proved.

(3) [If the right is a non-fundamental right, however,

the intelligent and knowing standard does not ap-

ply and waiver is determined by general legal prin-

ciples.

Id. at 568, 587 A.2d at 585.

In the present case, the Petitioner’s allegation of in-

sufficient evidence does not constitute a claim of funda-

mental right. In Lyde v. Warden, 1 Md. App. 423, 230

A.2d 695 (1967), the petitioner alleged, in a post conviction

petition, that the evidence was so insufficient as to deny

him a constitutional right to a fair trial and to due process

of law. Id. at 427, 230 A.2d at 697. The Lyde court denied

the constitutional claim, because the court was satisfied

that the State made a showing of some evidence as op-

posed to no evidence.

In order to Petitioner’s claim to constitute a fundamen-

tal right, the State must have presented not merely in-

sufficient evidence as to the handgun, but no evidence at

all. This is not the case. The State proved through the

testimony of Agent Robert Seibert that the weapon was

a handgun within the meaning of Md. Ann. Code article

27, section 36B. See infra issue ‘‘XIV’’. Petitioner’s case

clearly constitutes a non-fundamental right, to which gen-

eral waiver principles apply. Therefore, Petitioner waived

this issue by failing to raise it at trial or on appeal. See,

Grandison, 305 Md. 685, 506 A.2d 580 (1986).

Even if Petitioner’s claim constituted a fundamental

right, he has waived the claim under the “‘intelligent and

knowing”’ standard. When an allegation of error could have

been made, and was not, a rebuttable presumption exists

that the Petitioner intelligently and knowingly failed to

make such allegation. Curtis v. State, 284 Md. 132, 395

24a

A.2d 464 (1978). Furthermore, the court in Torres stated

that the test to determine if a person has “‘intelligent and

knowingly” failed to raise an issue is ‘‘whether [the

petitioner] was previously aware of and understood the

possible defense.”’ Torres, 86 Md. App. at 565, 587 A.2d

at 585. Petitionr represented himself at trial and on appeal

with the limited assistance of standby counsel. Petitioner

has also filed numerous briefs with this Court concerning

not only this issue but other complex legal issues. It is

the opinion of this Court that the Petitioner has failed to

rebut the resumption of an intelligent and knowing waiver

of this issue, had that standard been determinative.

Furthermore, the Court of Appeals of Maryland has long

held that insufficiency of evidence is not a claim cognizable

under the Post Conviction Act, Article 27, section 645A(e).

Thornton v. Warden, 241 Md. 715, 216 A.2d 894 (1966).

For the above reasons Petitioner’s claim must be denied.

VI. THE STATE DID NOT FAIL TO COMPLY WITH THE

REQUIREMENTS OF ARTICLE 27, SECTION 412(b),

AND THEREFORE PETITIONER’S TWO SENTENCES

OF DEATH ARE NOT INVALIDATED

Petitioner has made three arguments in this section al-

leging that his death sentences are void. First, Petitioner

contends that the single death notice served by the States

on September 7, 19838 was insufficient and violated the

strict requirements of the Annotated Code of Maryland,

Article 27, section 412(b). Petitioner claims that section

412(b) requires that the State’s Attorney serve two sep-

arate written notices of its intention to seek the sentences

of death when a defendant, like Petitioner, is charged with

two separate first degree murder offenses. Petitioner’s

claim is erroneous and must be dismissed because section

412(b) does not require the State to serve two separate

notices.

Article 27, section 412(b) explicitly states that if the

State seeks the sentence of death for a charge of first

degree murder the State must:

(1Xi) notif[y] the person in writing at least 30 days

prior to trial that it intended to seek a sentence

of death, and advised the person of each ag-

gravating circumstance upon which it intended

to rely, and

(ii) a sentence of death is imposed in accordance

with section 413;

Md. Ann. Code art. 27, sec. 412(b\1) (1957).

Section 412(bX1) merely requires that, in order to im-

pose the sentence of death for first degree murder, the

State must notify the defendant before trial that they are

seeking the death sentence. The State provided this notice

to defendant on September 7, 1983. The notice specifically

stated that ‘‘the State hereby notifies you, the Defendant

[the Petitioner] in the above indictment, that the State

intends to seek a sentence of death if you are found guilty

of Murder in the First Degree in Indictment Number 83-

CR-2340.”’ (See Tr. 63-64). Indictment number 83-CR-2340

charged the Petitioner with two counts of first degree

murder, one count of conspiracy to commit murder, and

one count of use of a handgun in the commission of a

felony or a crime of violence. Therefore, since the indict-

ment contained two counts of murder in the first degree

and the State’s Attorney’s notice stated that it was seek-

ing the death sentence for first degree murder contained

in the indictment, the Petitioner was put on notice that

the State intended to seek the death sentence for both

counts of first degree murder contained in the indictment.

In other words, if the State’s notice contained wording

to the effect that the State was seeking the death sentence

for murder in the first degree, in count one of the in-

dictment, then the single notice may not have been suf-

ficient. However, this was not the case. Furthermore,

Petitioner was tried for both counts of first degree murder

at the same trial, therefore, the single notice was sufficient

26a

to advise the Petitioner that the State was seeking the

death penalty for both murders. The single notice given

to defendant clearly satisfied section 412(b\1).

Second, Petitioner claims that the court did not have

jurisdiction to initiate the death penalty proceedings under

Article 27, section 413(a). Petitioner argues that section

413(a) mandates that the notice requirement of Article 27,

section 412(b) must be complied with before the court can

impose the sentence of death. Petitioner again argues that

the single notice served on him was not sufficient, because

he was charged with two counts of first degree murder.

Consequently, he contends Article 27, section 412(b) was

not complied with, and therefore, the court did not have

proper jurisdiction to impose the death penalty under sec-

tion 413(a). As previously stated, the State complied with

the notice requirement of section 412(b) by providing the

defendant on September 7, 1983 with notice of its intent

to seek the death penalty for first degree murder contained

in indictment number 83-CR-2340. Article 27, section 413(a)

states in pertinent parts:

(a) if the State had given the notice required under

section 412(b) a separate sentencing proceeding

shall be conducted as soon as practicable after the

trial has been completed to determine whether he

shall be sentenced to death.

Md. Ann. Code art. 27, sec. 413(a) (1957). The court, there-

fore, properly imposed the sentence of death as to both

counts of murder under section 413(a) and section 412(b).

Finally, Petitioner contends that the deficiency in the

death notice requirement under Article 27, section 412 is

similar to an indictment which charges no cognizable of-

fense. Petitioner claims that therefore the issue is one of

jurisdiction which is cognizable under the Post Conviction

Act and has not been waived by failure to raise the issue

at trial or on appeal. Petitioner’s claim does not. raise a

question of jurisdiction because the court complied with all

27a

the jurisdiction requirements for imposing the death pen-

alty under section 413(a) and 412(b).

Even if the death notice had been deficient, Petitioner’s

claim is clearly a procedural defect which Petitioner has

waived by failing to raise this issue at any time before,

during, or after trial. Article 27, section 645A(c) of the

Post Conviction Act states in pertinent parts:

(c) When allegation of error deemed to have been

waived.—(1) For the purposes of this subtitle an

allegation of error shall be deemed to be waived

when a petitioner could have made, but intelli-

gently and knowingly failed to make, such alle-

gation before trial, at trial, on direct appeal, ...

or in any other proceeding actually instituted by

said petitioner, unless the failure to make such an

allegation shall be excused because of special cir-

cumstances. The burden of proving the existence

of such special circumstances shall be upon the

petitioner.

(2) When an allegation of error could have been

made before trial, at trial, or direct appeal . . . but

was not in fact so made there shall be a rebuttable

presumption that said petitioner intelligently and

knowingly failed to make such allegation.

Md. Ann. Code art. 27, sec. 645A (1957).

The court in Davis v. State, 285 Md. 19, 400 A.2d 406

(1979), analyzed section 645A(c) and determined the scope

or applicability of its waiver provision. The court held:

[iIn view of the ambiguity associated with the term

‘waiver’, we [did] not feel compelled by the language

of section 645A to apply the “intelligent and know-

ing”’ standard to all allegations made in post convic-

tion actions,”’ but only to those matters falling within

the scope of subsection (c).

28a

Id. at 33, 400 A.2d at 412 (quoting Curtis v. State, 284

Md. 1382, 149, 395 A.2d 464 (1978)). The Daws court in

determining what issues or circumstance did not fall within

the “‘intelligent and knowing”’ standard held:

it [was] clear that a ‘procedural default’ in certain

circumstances, even where a defendant may person-

ally have been without knowledge or understanding

of the matter, may result in his being precluded from

asserting important rights ... A defendant may for-

ego a broad spectrum of rights which are deemed to

fall within the category of tactical decision by counsel

or involve procedural defaults.

Id. at 35, 400 A.2d at 412. Petitioner’s claim, therefore,

was waived by his failure to raise the issue at trial or in

any of the subsequent appeals.

Even if Petitioner’s claim constituted a fundamental

right, thereby requiring an “‘intelligent and knowing’”’

waiver, he has waived the claim. Section 645(cX2), supra

provides that when an allegation of error could have been

made, and was not, a rebuttable presumption exists that

the Petitioner intelligently and knowingly failed to make

such an allegation. Curtis v. State, 284 Md. 132, 395 A.2d

464 (1978). In this case, Petitioner has failed to rebut the

presumption of a knowing and intelligent waiver.

VII. THE REMOVAL ORDER ISSUED BY THE BALTI-

MORE COUNTY CIRCUIT COURT WAS VALID

Petitioner’s contention is based upon, and dovetails with,

the argument advanced in issue “VI” of this opinion. In

issue “VI” Petitioner contends that the death penalty no-

tice was defective because it failed to comply with the

requirements of Article 27, sec. 412.5 Specifically,

‘Counts one and two of the indictment charge the offenses of first

degree murder of David Scott Piechowicz and Susan Carol Kennedy

respectively. On September 7, 1983, the State provided notice that it

intended to seek the death penalty if the Defendant were to be found

guilty of the indictment.

29a

Petitioner contends that the State did not notify Petitioner

for which victim it was seeking the death penalty because

there were two victims and only one notice of death.

Therefore, Petitioner claims that it was necessary to pro-

vide two separate death notices. Relying on his arguments,

Petitioner concludes that the defective nature of the death

notices rendered counts one and two non-capital offenses.

Therefore, he was not entitled to an automatic removal

as provided in Maryland Rule 744.é

For the reasons stated in the Court’s opinion relative

to allegation “‘VI’’ and the reasons herein, Petitioner’s

claim is without merit. The State fully complied with the

provisions of Article 27, Sections 412(b\1) and 413(a) su-

pra. But even if the State had not complied as required,

it is clear that Petitioner failed to raise the issue before

or during his trial, his sentencing proceeding, or on appeal.

Failure to raise the argument constitutes a waiver under

the provisions of Article 27, section 645(c). Curtis v. State.

284 Md. 132, 395 A.2d 464 (1978); (see Court’s opinion

issue ‘‘V1’’).

VIII. REMOVAL OF PETITIONER’S CASE COMPLIED

WITH THE APPROPRIATE MARYLAND RULES OF

PROCEDURE

Petitioner filed an affidavit on November 23, 1983, for

removal of his case from Baltimore County to Somerset

County. Petitioner is now alleging that the removal of his

case from Baltimore County to Somerset Count was not

done in compliance with Maryland Rule 1200(cX2\Xb), which

States:

In the interest of expediting the trial of a removed

action, criminal cause, or issue, and of equalizing ju-

dicial work loads to the extent feasible, it shall be the

duty of a judge, before exercising removal authority

designating a Court within his judicial circuit to which

* Now Maryland Rule 4-254(b\1).

30a

such action, criminal cause, or issue shall be removed,

to obtain the approval of the Circuit Administrative

Judge for such designation. It shall also be the duty

of a judge, before exercising removal authority to a

jurisdiction without the judicial circuit, to make in-

quiry of the Circuit Administrative Judge of the Cir-

cuit to which it is proposed to make the removal

concerning the trial calendar and judicial work loads

of any Court to which it is contemplated the action,

criminal cause, or issue may be removed and to give

consideration to the recommendations of such Circuit

Administrative Judge. The Circuit Administrative

Judge, in the interest of expediting the removal proc-

ess, may at any time or from time to time delegate

his approval authority under this Rule to any judge

or judges within his judicial circuit.

Md. Rule 1200(cX2\b).

Petitioner suggests that the rule required the approval

of the Circuit Administrative Judge of the First Judicial

Circuit before a trial may be removed to that circuit. At

the time relevant to Petitioner’s case, Judge Richard M.

Pollitt, Jr. was the Circuit Administrative Judge.’

Petitioner’s alleges that Judge Lloyd L. Simpkins and not

Judge Pollitt approved the removal from Baltimore County

to Somerset County. In support of his allegation, Petition

refers to an excerpt from his trial transcript:

Sometime in mid-December, I don’t know the exact

date, I got a phone call from Judge Cicone asking

me if this matter could be tried in this county and it

was around the 15th, 16th, 17th, 18th—somewhere

along in there—a few days before the Christmas hol-

idays and I told him he could. I was told it was going

7The First Judicial Circuit of Maryland consists of the counties of

Dorchester, Somerset, Wicomico and Worcester.

3la

to be a trial that would take five or six weeks. (Tr.

88) (emphasis in Petitioner’s brief).

The only evidence submitted by Petitioner in support of

his allegation is the excerpt referred to above. There is

no evidence before this Court to suggest that Baltimore

County Circuit Court Judge Frank Cicone did not. prior

to this December 16, 1983 order removing Petitioner’s

case, make inquiry of the Circuit Administrative Judge

concerning the trial calendar and judicial work loads of

any court within the First Judicial Circuit as provided by

the Rule.

Likewise, there is no evidence that Judge Simpkins did

not have the authority from Judge Pollitt to accept the

removed case. In fact Rule 1200(c\2)\b) provides: ‘‘The

Circuit Administrative Judge, in the interest of expediting

the removal process, may at any time or from time to

time delegate his approval authority under this Rule to

any judge or judges within his judicial circuit.” Md. Rule

1200(c2\b).

In the absence of specific evidence in support of his

allegations, Petitioner’s claim is little more than a bald

assertion which does not constitute a ground for post con-

viction relief. Austin v. Director of Patuxent Institution.

237 Md. 314, 206 A.2d 145 (1964).

Assuming arguendo that Judge Cicone did not receive

the express approval to remove Petitioner’s case from Bal-

timore County to Somerset County from Judge Pollitt, the

purpose of Rule 1200(cX2Xa), together with the standards

and principles that govern the Maryland Rules of Proce-

dure, suggest that Judge Simpkins was acting within the

authority of the rules. This Court notes that the obvious

purpose of the Rule is to provide for the orderly admin-

istration of the courts, and although the Circuit Admin-

istrative Judge is responsible for the administration of the

several courts within his judicial circuit, Maryland Rule

1200(cX2Xa) provides for much of the authority for the

32a

assigning of cases to lie with the County Administrative

Judge. Maryland Rule 1211 also provides that it is the

duty of the County Administrative Judge to “supervise

the assignment of actions for trial in his court to the end

that maximum use of available judicial man power is ob-

tained, and pending actions brought to trial and disposed

of as expeditiously as feasible.’’ Maryland Rule 1200(d\4),

furthermore, provides that in any county where there is

but one resident judge of the Circuit Court (as is the case

in Somerset County), such judge shall exercise the power

and authority of a County Administrative Judge.

When interpreting the rules of procedure, courts are to

use the same standards that they would use to interpret

statutes. In re Leslie M., 305 Md. 477, 481, 505 A.2d 504,

507 (1986). Therefore, since Rules 1200(cX2\a), 1200(d\4),

and 1211 are related court rules, they should be construed

to harmonize with each other and not produce unreason-

able results. Jd. The Court also takes note of the principle

that Maryland Rules of Procedure should be liberally con-

strued so as to effectuate their purpose and do justice

between parties. Miller v. Talbot, 239 Md. 382, 211 A.2d

741 (1965). It is obvious in this case that Judge Simpkins

was the judicial officer better able to gauge his court’s

workload, the nature of his court’s trial calendar and to

make the determination as to removal.

This Court is not convinced that there is sufficient evi-

dence to support Petitioner’s allegation that Judge Simp-

kins did not in fact seek the permission of Judge Pollitt

before accepting the removal of the case. Even if there

was such evidence, however, this court finds no prejudice

to Petitioner, especially in light of the general purpose of

Rule 1200, the rules of interpretation, and the principle

of liberal construction. The Petitioner’s contention must

fail.

33a

IX.&X PETITIONER’S SENTENCE OF DEATH FOR THE

MURDER OF SUSAN KENNEDY IS NOT VOID BE-

CAUSE THE TRIAL JUDG FAILED TO GIVE THE

JURY AN INSTRUCTION UNDER THE TRANS-

FERRED INTENT DOCTRINE, AN ELEMENT THE

PETITIONER ALLEGES WAS REQUIRED TO BE

FOUND IN ORDER TO PROVE THE AGGRAVAT-

ING CIRCUMSTANCES UNDER ARTICLE 27, SEC-

TION 413(d)(7)

Petitioner contends that the State maintained through-

out the trial that Susan Kennedy was murdered by mis-

take. The State, therefore was required to prove that

Cheryl Piechowicz was the intended victim and Susan Ken-

nedy (the murdered victim) was killed instead of the in-

tended victim, and as such, Petitioner’s intent toward the

intended victim was transferred to Susan Kennedy. Con-

sequently, the only way the sentencing jury could find

sufficient evidence to prove the aggravating circumstances

under Article 27, section 413(d\X7) was through the trans-

ferred intent doctrine. Therefore, he alleges, the trial judge

was required to give the jury an instruction regarding the

doctrine of transferred intent.

In essence, the Petitioner is arguing that the sentence

Should be void because of the lack of a proper jury in-

struction. The Petitioner’s claim must be denied because

failure to properly instruct the jury is not an issue cog-

nizable under the Post Conviction Act. The court in Mat-

thews v. Warden, 223 Md. 649, 162 A.2d 452 (1960), held

that a claim of an improper jury instruction by the trial

judge “goes to the regularity of the proceedings at trial,

and may be reviews on direct appeal if properly reserved,

but is not for review on post convic:ion.”

Similarly, Petitioner’s claim is not cognizable under sec-

tion 645A(b), because this issue was previously and finally

litigated. In Petitioner’s direct appeal to the Court of

Appeals of Maryland, he raised the issue of insufficiency

of evidence regarding the conviction of Susan Kennedy’s

34a

murder. The court, in upholding the conviction, stated,

‘Susan Kennedy’s death was the result of willful, delib-

erate and premeditated intent to kill for which Grandison

is responsible.’’ Grandison, 305 Md. 685, 506 A.2d 580

(1986).

Furthermore, Petitioner has waived this issue. The court

in Davis v. State, 285 Md. 19, 400 A.2d 406 (1979), held

that the right to a correct jury instruction ‘‘falls within

the category of being waived other than by the “‘intelligent

and knowing”’ standard of section 654A(c). Jd. at 34-5, 400

A.2c at 412. This issue, therefore, has been waived by

Petitioner because he failed to raise it before, during or

after trial, or on direct appeal. For the above stated rea-

sons Petitioner’s claim must be dismissed.

XI. THE SENTENCES OF DEATH BY THE SENTENCING

JURY ARE NOT VOID

Petitioner contends that his sentences of death by the

sentencing jury are void because the State failed to pro-

duce evidence at the sentencing hearing to substantiate

the aggravating factor that the Petitioner engaged or em-

ployed another person to commit the murder of Susan

Kennedy and that the murder was committed pursuant to

an agreement or contract, as required by Article 27, sec-

tion 413(dX7). Petitioner alleges that the only evidence

introduced by the State for the consideration of the sent-

encing jury was the victim impact statement and live tes-

timony of the victims’ family members.

The State avers that Maryland’s statutory sentencing

provisions did not require the reproduction of the evidence

from the trial at the sentencing phase.

Article 27, sec. 413(dX7) provides:

In determining the sentence, the court or jury, as the

case may be, shall first consider whether, beyond a

reasonable doubt, any of the following aggravating

circumstances exist:

35a

(7) The Defendant engaged or employed an-

other person to commit the murder and the

murder was committed pursuant to an

agreement or contract for remuneration or

the promise of remuneration.®

Md. Ann. Code art. 27 sec. 413(d\7) (1957). The statue

does not specify the manner in which the alleged aggra-

vating circumstances be proven, but it does list the types

of evidence that are admissible at the sentencing pro-

ceeding. Additionally, Article 27, section 413(cXiv) requires

that an aggravating circumstance be proven beyond a rea-

sonable doubt.

The sentencing in Petitioner’s case was before the same

jury that determined the Defendant’s guilt. The State in-

roduced and adopted all of the evidence presented at

Petitioner’s trial as to guilt or innocence at the sentencing

phase.

The Court of Appeals, in an analysis of Maryland’s cap-

ital sentencing statute, reaffirmed the position that indeed

trial and sentencing are difference procedures:

The sentencing phase of the proceeding involves (1)

a determination by the sentencing authority of

whether the aggravating circumstances relied upon by

the State to justify imposition of the death sentence

have been established by the evidence beyond a rea-

sonable doubt and (2) a determination of whether mit-

igating circumstances upon which the defendant has

placed reliance have been established by a prepon-

derance of the evidence. Thus, the issue for deter-

mination is different in each proceeding, although

manifestly a by-product of the evidence adduced at

the trial will reveal, to some extent at least, the ex-

*The only aggravating circumstance the State alleged was the con-

tract murder provision of Article 27, Section 413(d).

36a

istence or absence of aggravating and/or mitigation

circumstances.

Tichnell v. State, 290 Md. 43, 59, 427 A.2d 991, 999 (1981).

The court acknowledged, however, that, as in Petitioner’s

case, the capital sentencing statute contemplated that the

sentencing procedure will ordinarily be conducted before

the same jury that determined the Defendant’s guilt and

would, therefore, have before it all the evidence presented

in the case. “In such circumstances, the purpose of the

separate sentencing hearing would be to provide an op-

portunity to present additional evidence as to the existence

of aggravating and/or mitigating circumstances.”’ Jd. at 53,

427 A.2d at 991. The court went on to say:

In the usual case in which the prosecution seeks the

death penalty and obtains a qualifying first degree

murder conviction, the trial judge and jury which

heard the evidence at trial will also be involved in

the subsequent sentencing proceeding; therefore, they

will be full conversant with the evidence introduced

prior to the commencement of the sentencing hearing.

Id. at 59-60, 427 A.2d at 999. The issues before the jury

for its determination may have been different at sentenc-

ing from that decided at the guilt/innocent phase, none-

theless the issues on sentencing were indeed by-products

of the evidence produced at the trial.

As to the issue of whether the victim impact statement

was properly before the sentencing jury, the trial court

was following the provisions of law outlined in Article 41,

section 4-609(d) and Article 27, section 413(c). This Court

has also addressed the constitutional issues associated with

the use of the victim impact statement extensively in issue

“T”’ of this opinion. This Court finds that Petitioner’s ar-

gument is without merit and should be dismissed.

37a

XII. RETRIAL OF PETITIONER ON ISSUE OF DEATH

PENALTY IS NOT BARRED ON DOUBLE JEOPARDY

GROUNDS

It appears that Petitioner’s allegations of double jeop-

ardy are misplaced at this stage of the proceedings. While

this Court has determined that Petitioner is entitled to be

resentenced, to make a double jeopardy argument now

presupposes the actions of all the parties following the

filing of this opinion. Nonetheless, as the issue has been

raised, the Court will address its contentions.

Petitioner’s argument seems to track the cases that re-

flect the issue of “implied acquittal’. More specifically

Petitioner is suggesting that the State failed to produce

sufficient evidence of the existence of the aggravating cir-

cumstances at his trial, and is therefore collaterally es-

topped from seeking the death penalty on retrial or

resentencing.

Petitioner submits as authority for his position the cases

of Bullington v. Missouri, 451 U.S. 430 (1981), and Burks

v. U.S., 487 U.S. 1 (1978). In Bullington, a Missouri jury

initially convicted the defendant of murder arising out of

the abduction of a young woman. At a separate sentencing

hearing the defendant was sentenced to life imprisonment.

Subsequent to his conviction the United States Supreme

Court ruled that a provision of Missouri law dealing with

jury selection and exemptions was unconstitutional. There-

after, the trial court granted Bullington’s motion for a

new trial based on unconstitutionality of the Missouri jury

selection and exemption.

At the retrial the State notified defendant of its inten-

tion to seek the death penalty. Defendant objected on dou-

ble jeopardy grounds. Justice Blackmun, writing for the

majority in Bullington, reiterated the well established rule

“that there is no double jeopardy bar to retrying a

defendant who has succeeded in overturning his convic-

tion.” Id. at 4387-38. Justice Blackmun also pointed out,

38a

relying on Burks v. U.S., 487 U.S. 1 (1978): ‘‘[a] defendant

may not be retried if he obtains a reversal of his conviction

on the ground that the evidence was insufficient to con-

vict.”” Bullington, 451 U.S. at 442.

The Court, however, ultimately upheld Bullington’s dou-

ble jeopardy argument in Bullington’s case based solely on

the facts of his case and the doctrine of implied acquittal.

The Court observed:

that the sentence of life imprisonment which petitioner

received at his first trial meant that the jury has

already acquitted the defendant of whatever was nec-

essary to impose the death sentence. A verdict of

acquittal on the issue of guilt or innocence is of course

absolutely final. The values that underlie this princi-

ple, stated for the Court by Justice Black are equally

applicable when a jury has rejected the State’s claim

that the defendant deserves to die.

Bullington v. Missouri, 451 U.S. 430, 445 (1981).

It is clear in the present case that neither Buliington

nor Burks are applicable to Petitioner because (1) the ag-

gravating circumstance upon which the State based its

request for the death penalty was proven to the satisfac-

tion of the sentencing jury whose verdict was in fact the

death penalty; therefore there is no issue regarding in-

sufficiency of evidence, and (2) while the Court has here-

tofore reached the conclusion that the Petitioner is entitled

to a new sentencing, the State is barred only from seeking

a sentence more severe than that which was originally

sought by the State and ultimately imposed by the sent-

encing jury. The State is not barred from seeking a penalty

*In Burks, the Court, in holding that the Double Jeopardy Clause

barred retrial, did not distinguish between the defendant who is ac-

quitted at trial and the defendant whose conviction is reversed by an

appellate court because the evidence was insufficient to support the

verdict. Burks v. U.S., 487 U.S. 1 (1978).

9°

39a

equal to that imposed by the jury. Petitioner’s case, there-

fore, does not involve the doctrine of implied acquittal.

Furthermore, in Poland v. Arizona, 476 U.S. 147 (1986),

the United States Supreme Court held that so long as the

evidence at trial and sentencing was sufficient to convict

the defendant and impose the death sentence, the trial

court may, on remand, reimpose the death penalty.

There is nothing in the law that persuades this Court

that Petitioner’s double jeopardy argument has merit.

XIII. PETITIONER WAS NOT DENIED HIS RIGHT TO

EQUAL PROTECTION OF THE LAWS UNDER

EITHER THE CONSTITUTION OF THE UNITED

STATES OR THE CONSTITUTION OF MARYLAND

Petitioner is alleging that raw statistics will show that

only the wealthier counties were prosecuting capital cases

at the time he was prosecuted in Somerset County by the

State’s Attorney for Baltimore County’s office. Persons

from wealthier counties were, therefore, more likely to be

subjected to capital punishment then persons in poorer

counties. Consequently, he contends, the prosecution of

capital cases was and is currently done in a discriminatory

manner, thus violating the Equal Protection Clause of the

United States Constitution and the Maryland Declaration

of Rights.

The only support for Petitioner’s argument is a speech

given to the legislature by the Honorable Robert C. Mur-

phy, Chief Judge of the Court of Appeals of Maryland.*°

In this speech, Judge Murphy addressed the expense in-

volved in the prosecution of capital cases and how it may

be a factor in determining whether or not to seek the

death penalty.

In Calhoun v. State, 297 Md. 563, 468 A.2d 45 (1983),

the Court of Appeals of Maryland addressed the issue of

‘° State of the Judiciary address delivered to the Maryland General

Assembly on January 22, 1991.

40a

whether Maryland’s death penalty constituted an equal

protection violation. The defendant in Calhown was con-

victed of first degree murder and various other crimes.

On appeal, the defendant alleged that Article 27, section

412(b) lacked specific standards for imposing the death

penalty, thereby giving the prosecutor “unbridled exercise

of discretion’ in seeking the death penalty. Jd. at 602,

468 A.2d at 63. This discretion was alleged to have re-

sulted in prosecutors applying the death penalty statute

in an inconsistent and discriminatory manner in violation

of the Eighth and Fourteenth Amendments and the Mary-

land Declaration of Rights.

The Calhoun court analyzed the equal protection issue

under the United States Supreme Court’s ruling in Gregg

v. Georgia, 428 U.S. 153 (1976). The Gregg Court held that

“fa]bsent facts to the contrary it cannot be assumed that

prosecutors will be motivated in their charging decision by

factors other than the strength of their case and the li-

kelihood that a jury would impose the death penalty if it

convicts.”’ 428 U.S. at 225. Based on the holding of Gregg,

the Court of Appeals of Maryland in Calhoun held:

‘{aJbsent any specific evidence of indiscretion by prose-

cutors resulting in an irrational, inconsistent, or discrim-

inatory application of the death penalty statute, the claim

cannot stand.’’ 297 Md. at 605, 468 A.3d at 64.

Assuming arguendo that the Petitioner could produce

convincing evidence of an inconsistent exercise of discre-

tion among prosecutors in this State, the Petitioner’s ar-

gument would still fail. The Court of Appeals of Maryland

in Calhoun held that to the extent that there is a differ-

ence in the practice of the various State’s Attorneys around

the state, the mandatory proportionality review component

of Article 27, section 414(e) assures that a sentence of

death is not imposed in a disproportionate manner. Jd. at

605, 468 A.2d 64. The proportional review mandated by

Article 27, section 414(e), which was conducted by the

4la

Court of Appeals in this case, has cured whatever merit

the Petitioner’s complaint may have had.

Furthermore, Petitioner’s equal protection claim is not

a sufficient basis for post conviction relief because it is

unsupported by any facts or law. In Dodson v. Warden,

8 Md. App. 598, 261 A.2d 195 (1970), the Petitioner filed

application for leave to appeal from an order denying his

third petition for relief under the Post Conviction Proce-

dure Act, contending that he was deprived of his Four-

teenth Amendment rights. The Dodson court held that the

allegation was unsupported by any facts in the record, and

the contention was merely a bald allegation and must be

dismissed. Jd. at 594, 261 A.2d at 196.

Petitioner’s claim must be dismissed because it is a bald

allegation unsupported by any evidence of indiscretion by

prosecutors in the State of Maryland that has resulted in

the irrational, inconsistent, or discriminatory application of

the death penalty.

XIV. PETITIONER WAS NOT DENIED EFFECTIVE AS-

SISTANCE OF COUNSEL AT THE TRIAL OR AP-

PELLATE LEVEL

Petitioner, in choosing to represent himself, waived his

right to counsel before the Circuit Court for Baltimore

County and the Circuit Court of Somerset County. How-

ever, the trial judge, Honorable Lloyd L. Simpkins, ap-

pointed standby counsel for Petitioner. Petitioner now

alleges that standby counsel’s assistance was ineffective

because an issue as to whether or not a machine gun could

fit the requisite description of a handgun was not litigated

or preserved for appeal by standby counsel.

The Fifth and Fourteenth Amendments and Article 21

of the Maryland Declaration of Rights guarantees to crim-

inal defendants the right to effective assistance of counsel.

In order to prove that standby counsel’s assistance was

ineffective, Petitioner must satisfy the two-prong test set-

forth in Strickland v. Washington, 466 U.S 668 (1984),

42a

which was adopted by the Court of Appeals of Maryland

in Harris v. State, 303 Md. 685, 496 A.2d 1074 (1985).

The Strickland test requires that the Petitioner show

(1) that his attorney’s performance was deficient and (2)

that the deficient performance prejudiced the defense.

Petitioner must satisfy both prongs of the test in order

to prove his claim. Under this test, the Petitioner must

prove, in light of all circumstances, that counsel’s repre-

sentation fell below an objective standard of reasonable-

ness which prejudiced his defense. Jd. at 698, 496 A.2d

1080. This Court finds for the following reasons that

standby counsel’s actions were not constitutionally defi-

cient.

First, the only specific incident to which Petitioner is

alleging counsel’s assistance was ineffective was during the

testimony at trial of F.B.I. Agent Robert Seibert regarding

the description of the alleged weapon. Agent Robert Sei-

bert referred to the alleged weapon ‘“‘as a MAC-11 pistol

or machine gun.’’ On several occasions standby counsel did

object to the testimony of Agent Robert Seibert regarding

the description of the MAC-11 (Tr. 1948-1949). Second,

evidence of counsel’s reasonableness in not contesting

whether the MAC 11 fit the requisite description of a

handgun is found in Moore v. State, 84 Md. App. 165, 578

A.2d. 304 (1990). In Moore, the court held that an Ingram/

Cobray Model #10/11 (MAC 11) was a handgun within the

meaning of Article 27, section 36B. Jd. at 175, 578 A.2d

at 309. The court in Moore found the following physical

characteristics to be true of the MAC 11:

(1) it could be concealed under a loose fitting coat,

thus the gun may be concealed on the person,

(2) it fires 1200 rounds per minute and

(3) fully loaded weights 4.87 pounds.

Id. at 174, 578 A.2d at 308.

43a

In Petitioner’s case, Agent Robert Seibert testified that

the weapon used in this case “would be a MAC-11 pistol

or its fully automatic version, the machine pistol . . . [which]

automatic version fires 1200 rounds a minute.” (Tr. 1948-

1949). In addition, the State proved that the gun was

capable of concealment on the person. Assuming arguendo

that the weapon used was the fully automatic version of

the MAC 11, the Court of Appeals of Maryland has held

it is still considered to be a handgun.

The Moore case may not be dispositive of the issue as

to whether the MAC 11 in Petitioner’s case was in fact

a handgun, but it is directly related to the issue of counsel’s

reasonableness in believing that “in light of all the cir-

cumstances” the State had proven the required elements

of a handgun. Petitioner has failed to prove that standby

counsel’s performance was deficient, and therefore has

failed to satisfy either prong of the Strickland test. Ac-

cordingly, his claim of ineffective assistance of counsel at

the trial level must be dismissed.

Similarly, Petitioner asserts that he was denied effective

assistance of counsel at the appellate level. Petitioner al-

leges that appellate counsel should have raised on appeal

the issue regarding whether the State proved the elements

of a handgun. In Smith v. Murray, 477 U.S. 527 (1986),

the Court held that Strickland’s two-prong test is appli-

cable to appellate courts. Therefore under the Strickland

test and in light of the holding in the Moore case, appellate

counsel did not act unreasonably in not raising the MAC-

11 issue on appeal. The Petitioner has failed to prove that

appellate counsel’s performance was deficient and preju-

dicial. Petitioner’s claim of ineffective assistance of counsel

at the appellate level must also be dismissed.

The Court also notes that at various times during the

pending of these proceedings, Petitioner has advanced the

argument that he is not properly before this Court on post

conviction because he is in federal custody and not subject

44a

to the jurisdiction of the courts of the State of Maryland.

This Court is not persuaded by Petitioner’s arguments.

It is thereupon, this 3lst day of July, 1992, by the

Circuit Court for Somerset County, Maryland

ORDERED that the petitioner be, and he is hereby

GRANTED a new sentencing; and it is further

ORDERED that the Clerk of this Court set this matter

in for a new sentencing; and it is further ORDERED that

all other relief prayed for by Petitioner be, and the same

is hereby DENIED.

/s/ Daniel M. Long

Daniel M. Long, Judge

45a

APPENDIX B

ANTHONY GRANDISON * IN THE

COURT OF APPEALS

- OF MARYLAND

Misc. No. 29

STATE OF MARYLAND * September Term 1992

ORDER

The Court having considered the two applications for

leave to appeal, one filed by Anthony Grandison and one

filed by the State, in the above entitled case, it is this

23rd day of October, 1992.

ORDERED, by the Court of Appeals of Maryland, that

the applications be, and they are hereby, denied.

/s/_ Robert C. Murphy

Chief Judge