Why the State’s Attempt to Restrict Curtis in the Adnan Syed Appeal Wouldn’t Work

In its Reply Brief and Appendix of Cross-Appellee, the State makes the following argument:

The State, however, didn’t mention an equally important development in Maryland law that occurred in 2002.

In Stovall v. State, 800 A.2d 31 (Md.App. 2002), Darren Stovall was convicted of felony murder and robbery. After he was convicted, Stovall brought a first PCR petition, which was denied. Thereafter,  Stovall filed two motion to reopen, claiming, inter alia, that “appellate counsel rendered ineffective assistance of counsel, based on his failure to raise two issues on appeal.” After the circuit court denied the second motion to reopen, the Court of Special Appeals of Maryland granted Stovall’s Application for Leave to Appeal.

After that appeal, the Court of Special Appeals concluded that a postconviction petitioner:

(1) is entitled to the effective assistance of post conviction counsel, and (2) has a right to reopen a post conviction proceeding by asserting facts that-if proven to be true at a subsequent hearing-establish that post conviction relief would have been granted but for the ineffective assistance of the petitioner’s post conviction counsel.

As I noted on Monday, this was based upon the conclusion that the right to counsel and the right to the effective assistance of counsel are coterminous. 

So, what does this mean for the State’s argument and Adnan’s appeal? The State is claiming that the legislative narrowing of the Uniform Postconviction Procedure Act (“UPPA”) in 1995 so that a petitioner can only file one PCR petition “reinforces the aspiration of finality” because it only allows one bite at the apple. If a petitioner’s first PCR petition is unsuccessful, he can’t file another one. This is why, according to the State, the Court of Special Appeals should overrule or at least circumscribe the ruling in Curtis v. State, 284 Md. 132 (1978). Otherwise, a petitioner could bring PCR petition after PCR petition, claiming that he received the ineffective assistance of trial counsel, and the Maryland courts would have to entertain them, unless the State could prove “intelligent and knowing” waiver.

But Stovall illustrates why this claim doesn’t hold water. Assume, for instance, that defense counsel fails to properly handle forensic hair evidence at a trial in 2017, with that evidence being the most important evidence against the defendant, who is convicted of murder and sentenced in July 2017. Later, the defendant’s appellate attorney files a PCR petition in 2026 that does not raise a viable ineffective assistance/hair evidence claim, and the defendant’s PCR petition is denied in 2028. Under Judge Welch’s reading of Curtis, the defendant could now file a motion to reopen and bring the ineffective assistance/hair evidence claim in, say, 2029 as long as he could establish that his Post conviction counsel didn’t discuss the hair evidence with him, meaning that he didn’t intelligently and knowingly waive the claim.

Conversely, what would happen if we apply the State’s destruction/construction of Curtis, meaning that Curtis/the “intelligent and knowing” waiver standard (1) doesn’t apply to ineffective assistance claims at all; or (2) only applies to issues that require an in court colloquy? The answer is that we have the same result; we just get there a different way. In this scenario, pursuant to Stovall, the defendant (1) had the right to the effective assistance of post conviction counsel; and (2) has the right to reopen the PCR proceeding because he has a meritorious ineffective assistance/hair evidence claim that would have been granted but for the ineffective assistance of post conviction counsel.

Therefore, the State’s claim about a broad reading of Curtis undermining finality and promoting serial petitions is misplaced. All a limited reading of Curtis would do is shift successor claims of ineffective assistance of trial counsel into claims of ineffective assistance of post conviction counsel. The defendant would still get just as many bites at the apple.

-CM