Does the Pennsylvania Case Cited by the State on Waiver Actually Help Adnan Syed?

On Wednesday, Undisclosed will have a special episode on the oral arguments in the Court of Special Appeals of Maryland regarding the Adnan Syed case. When we recorded the episode, I hadn’t yet looked into a case cited by the State in its Reply Brief and used by the State during oral arguments. I will address that case here.

One issue in the Adnan Syed case is whether waiver is even an issue with regard to the cell tower claim. If it is an issue, the questions are (1) whether Curtis v. State, 284 Md. 132 (1978) applies; and (2) if it does apply, whether Adnan knowingly and intelligently waive that cell tower claim. 

But is waiver even an issue? The defense claims that it is not. Specifically, the defense contends that failure to raise an issue in a PCR petition cannot result in waiver of that issue until the PCR court’s order on that issue becomes final. And, as I’ve noted before, under Sections 7-106 and 7-109 of the Maryland Code of Criminal Procedure, a PCR court’s order only becomes final when the Court of Special Appeals (1) denies leave to appeal; or (2) renders a decision on the merits of the issue. In Adnan’s case, because the Court of Special Appeals granted leave to appeal and remanded before issuing a decision on the merits of Adnan’s PCR petition, the defense asserts that it could add the cell tower claim without having to contend with waiver.

In response, the State has claimed that waiver applies once the PCR court issues its order and that the “finality” requirement only applies to previously litigated claims and not new claims. In other words, according to the State, once the Court of Special Appeals rules on an issue, the defendant can’t raise that same issue again, but once the PCR court rules on an issue or issues, the defendant can’t raise a new issue that wasn’t previously ruled.

Specifically, in its Reply Brief, the State supported this argument by citing to Commonwealth v. Sepulveda, 144 A.3d 1270 (Pa. 2016). In Sepulveda, Manuel Sepulveda filed a postconviction petition that raised fourteen issues and sub-issues. The postconviction court denied Sepulveda relief on each of these claims, prompting his appeal to the Supreme Court of Pennsylvania. That court issued a decision on the merits denying Sepulveda relief on thirteen of these claims and remanding on the fourteenth claim, “whether trial counsel was ineffective for failing to investigate and present at Sepulveda’s penalty hearing evidence of his mental health diagnoses and traumatic childhood.”

After the case was remanded, Sepulveda asked for leave to amend his initial postconviction petition to add a new claim. The State responded that the court should treat the new filing not as an attempt to amend the initial petition but instead as a second, untimely postconviction petition. While the PCR court allowed Sepulveda to add his new claim, the Supreme Court of Pennsylvania reversed and agreed with the State’s interpretation.

At oral arguments in Adnan’s case, the State claimed that (1) the facts in Sepulveda were strikingly similar to the facts in Adnan’s case; and (2) the postconviction structure in Pennsylvania is strikingly similar to the postconviction structure in Maryland. Therefore, the State claims that Sepulveda should apply in Adnan’s case and preclude him from adding the cell tower claim.

But let’s look at the relevant portion of Sepulveda:

The PCRA court and Sepulveda are correct that Rule 905(A) gives the PCRA court discretion to “grant leave to amend or withdraw a petition for [PCRA] relief at any time,” and states that “[a]mendment shall be freely allowed to achieve substantial justice.”…Rule 905(A) was created “to provide PCRA petitioners with a legitimate opportunity to present their claims to the PCRA court in a manner sufficient to avoid dismissal due to a correctable defect in claim pleading or presentation.”…

Once the PCRA court renders a decision on a PCRA petition, however, that matter is concluded before the PCRA court, having been fully adjudicated by that court, and the order generated is a final order that is appealable by the losing party. See Pa.R.Crim.P. 910 (“An order granting, denying, dismissing, or otherwise finally disposing of a petition for post-conviction collateral relief shall constitute a final order for purposes of appeal.”); Commonwealth v. Bryant, 566 Pa. 307, 780 A.2d 646, 648 (2001).

In turn, the Bryant case cited by the Sepulveda court held that

Rule 1510 of the Pennsylvania Rules of Criminal Procedure provides, “An order denying, dismissing, or otherwise finally disposing of a petition for post-conviction collateral relief shall constitute a final order for purposes of appeal.” Furthermore, Pennsylvania Rule of Appellate Procedure 341(b) defines a final order as one that “disposes of all claims of all parties.” The Order of the PCRA court fully and finally disposed of all of issues before it. Accordingly, it was a final order that Bryant, the Commonwealth or both could have appealed.

These cases and the Pennsylvania Rules makes clear that Pennsylvania’s postconviction structure is very different from the postconviction structure in Maryland. In Pennsylvania, a PCR court’s order becomes “final” the second it is issued. Conversely, in Maryland, a PCR court’s order doesn’t become “final” until the Court of Special Appeals of Maryland (1) denies leave to appeal; or (2) renders a decision on the merits of the issue.

Therefore, it’s tough to see how the Sepulveda case helps the State in Adnan’s case. Maybe more importantly, the Sepulveda case could actually help the defense in Adnan’s case. It seems clear that the Sepulveda case found that the concepts of finality and waiver are linked and that Sepulveda waived his new claim only because the PCR court’s order was “final” the second it was issued based upon Pennsylvania law. Therefore, if the Court of Special Appeals of Maryland were to apply this logic in Adnan’s case, it would support the defense because it would mean that waiver and finality are linked, with the PCR court’s order in Adnan’s case never becoming final.

-CM