EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, June 11, 2017

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

http://lawprofessors.typepad.com/evidenceprof/2017/06/on-wednesday-undisclosed-will-have-a-special-episode-on-the-oral-arguments-in-the-court-of-special-appeals-of-maryland-in-th.html

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Comments

COSA could choose to apply this case or not apply it, correct? It just seems that it would be hard for them to apply it in a way that advantages the state, correct?

Posted by: Michael | Jun 11, 2017 7:29:00 AM

I think this analysis is way off the mark. UPPA sections 7-106 and 7-109 just don’t say what you think they say. § 7-106 only discusses when an “allegation of error” is “finally litigated.” It doesn’t say anything about when a ruling on a PCR petition becomes “final.” The point of the “finally litigated” language in § 7-106, as I’ve explained before, is to keep PCR petitioners from raising issues that were resolved in other proceedings. For example, if a defendant raises an issue on direct appeal and loses, he can’t just re-litigate it by putting it into a later PCR petition.

As for § 7-109, the only thing in there that discusses finality is 7-109(b)(4), which says a postconviction court’s order becomes “final” if and when COSA denies an ALA. But in that sense, “final” just means the petitioner can’t seek further relief. It’s well understood that under the UPPA, COSA’s denial of an application for leave to appeal a PCR court’s ruling is not itself appealable. The petitioner (or the State) can’t seek recourse from the Court of Appeals. If an ALA is denied, the party that lost before the PCR court is stuck with that decision.

That’s completely different than a finding that an order denying PCR relief is “final” in the sense that the matter before the PCR court is concluded. That’s what those Pennsylvania cases are talking about. I can tell that without even reading them. An order is not appealable unless it’s “final.” That is the famous “final judgment rule.” If Judge Welch’s original PCR order, which denied Syed postconviction relief across the board, was not “final,” then Syed wouldn’t have been able to appeal the result to COSA. In Maryland, just as in Pennsylvania, “[o]nce the PCRA court renders a decision on a PCRA petition, … 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.”

Posted by: Sam | Jun 11, 2017 3:51:17 PM

Michael: Right. Maryland is under no obligation to rely on Pennsylvania law.

Sam: Let’s make sure we’re both on the same page. I think we both agree that (1) Pennsylvania has linked the concept of finality and waiver for postconviction petitions; (2) the only references to finality in Maryland’s UPPA come in Sections 7-106 and 7-109 of the Maryland Code of Criminal Procedure; (3) there is finality under those Maryland Sections when the Court of Special Appeals denies leave to appeal or issues a decision on the merits; and (4) the Court of Special Appeals did not deny leave to appeal or issue a decision on the merits in Adnan’s case before he brought his cell tower claim.

Where we disagree is on the question of whether finality means different things under the Pennsylvania and Maryland statutes. You think they mean different things. I think that they might mean the same thing but that it’s tough to say because there is no Maryland statute or case directly on point.

Posted by: Colin Miller | Jun 12, 2017 6:07:43 AM

"because there is no Maryland statute or case directly on point."

Until this case?

Posted by: Michael | Jun 12, 2017 8:05:08 AM

Colin:
The equivalent of Pennsylvania Rule 1510 seems to be Maryland Rule 4-407. It explains that when the circuit court rules on a PCR petition, it must issue an order either granting or denying relief, 4-407(b), and the order then constitutes “a final judgment.” 4-407(d). See also Alston v. State, 425 Md. 326, 330 (2012) (circuit court’s grant of PCR petition “constituted a final judgment under Maryland Rule 4-407(d)”). What am I missing?

The “finally litigated” language from 7-106 has long been understood as a res judicata provision that is distinct from the waiver provision. See, e.g., Edward A. Tomlinson, Post-Conviction in Maryland: Past, Present and Future, 45 Md. L. Rev. 927, 936–37 (1986) (describing the provision as one of “estoppel” and “res judicata”). I don’t have time to keep digging for cases, but I’d be shocked if there weren’t published decisions saying as much.

Can we put this “finally litigated”/freely-amend stuff to rest now? If the court accepts this argument I will eat my hat and then forfeit my bar license.

Posted by: Sam | Jun 19, 2017 8:20:54 AM

Sam: I don't see any Maryland case law linking Rule 4-407 and the concept of waiver. You may very well be right that COSA will link the two, but, as far as I can tell, it would be the first time than a Maryland appellate court has done so. Of course, there are also no opinions saying the opposite. This appears to be a question of first impression in Maryland, which is why the State is citing to a Pennsylvania case. I could see it going either way.

Posted by: Colin Miller | Jun 19, 2017 11:04:57 AM

I suppose, Colin. But in light of 4-407, how can you maintain that “Pennsylvania’s postconviction structure is very different from the postconviction structure in Maryland”? How can you insist that “a PCR court’s order doesn’t become ‘final’” until there’s a decision by COSA? 4-407 says explicitly that the “order” becomes a “final judgment” when it’s entered by the circuit court clerk.

To the extent there’s an open question here, Sepulveda linking waiver and Rule 1510 seems like awfully persuasive authority to lead COSA to link waiver and Rule 4-407. You still think it’s tough to see how Sepulveda helps the State, and that it might actually help Syed?

Posted by: Sam | Jun 19, 2017 11:50:16 AM

Sam: This gets back to my point about 7-106 and 7-109 saying that there's not finality until COSA denies leave to appeal or issues an opinion on the merits. I could easily see COSA relying on this language to say that waiver wasn't a possibility at the time of the remand. Or, like you, I could also see COSA finding that there was a certain type of finality when Judge Welch first ruled, meaning that there can't be waiver. In terms of Pennsylvania, I'm not aware of any provisions that are comparable to 7-106 or 7-109, which is where I see the (possible) difference.

Posted by: Colin Miller | Jun 19, 2017 11:58:24 AM

FWIW, it looks like PA’s postconviction statute used to have the same “finally litigated or waived” language as 7-106. Check out Com. v. Williams, 528 A.2d 980, 983 (1987), for example. It appears the term “finally litigated” was later changed to “previously litigated,” but the meaning did not change.

Posted by: Sam | Jun 19, 2017 12:27:49 PM

Sam: From that case, though, it looks like Pennsylvania has a different test than Maryland for when a claim is previously or finally litigates, so that's another difference.

Posted by: Colin Miller | Jun 20, 2017 6:02:42 AM

Sam: From that case, though, it looks like Pennsylvania has a different test than Maryland for when a claim is previously or finally litigates, so that's another difference.

Posted by: Colin Miller | Jun 20, 2017 6:02:46 AM

I don’t see how that’s relevant to the point I’m making. The point is that “finally/previously litigated” under Pennsylvania’s postconviction statute operates as a res judicata provision. That’s what I’m saying “finally litigated” means in 7-106. That the requirements for applying claim/issue preclusion differ slightly in PA and MD doesn’t help Syed’s argument. The point is that “finally/previously litigated” doesn’t have anything to do with waiver in the Pennsylvania postconviction regime, and it stands to reason that the same is true of the very similar (but not identical) “finally litigated” provision in MD Rule 7-106.

Posted by: Sam | Jun 20, 2017 6:20:07 AM

Sam: It seems to me that Pennsylvania courts did link Section 9543(4) (the Section cited in Williams) to waiver. See, e.g., Commonwealth v. Craddock, 535 A.2d 1189 (1988) ("The Post Conviction Hearing Act provides that in order to be eligible for relief under the Act, a person must prove that objection to the error resulting in his conviction and sentence has not been waived. 42 Pa.C.S.A. § 9543(4). And, even if a petition alleges facts constituting grounds for relief under the Act, an evidentiary hearing may be denied if the court finds the issues raised were waived by the petitioner.").

Posted by: Colin Miller | Jun 20, 2017 8:08:45 AM

I don’t follow. “Finally litigated” and “waived” are “linked” in both PA and MD in the limited sense that both phrases appear in the same statutory provision (9543 in PA and 7-106 in MD). But they’re separate concepts. An allegation of error cannot be asserted if it was (1) finally/previously litigated or (2) waived. Craddock does not suggest that an allegation of error has to meet the test for the application of res judicata (“finally/previously litigated”) before it can be deemed waived.

Posted by: Sam | Jun 20, 2017 8:28:28 AM

Sam: I feel like we're going in circles here over case law/statutes that aren't even from Maryland. For me, this just underscores how this is an issue of first impression in Maryland. I would be completely unsurprised if Maryland follows you logic and finds that waiver was a possibility in Adnan's case. I would also be unsurprised if it reaches the opposite conclusion. And, of course, my prediction is that COSA won't even reach the waiver issue, although, again, I'd be unsurprised if they do reach it. We'll see.

Posted by: Colin Miller | Jun 20, 2017 8:33:33 AM

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