# Petition for Writ of Certiorari — Maryland v. Grandison > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1978%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1993 - **Citation:** 507 U.S. 985 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1978%3A1. Public record. Not legal advice.