EvidenceProf Blog

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

Friday, October 6, 2017

Court of Special Appeals Applies Curtis v. State to Find No Waiver of Ineffective Assistance Claim

Maybe the biggest current legal question in the Adnan Syed case is the question of whether Adnan has waived his claim that trial counsel was ineffective based upon her failure to use the AT&T disclaimer to cross-examine the State's cell tower expert. In his opinion granting Adnan a new trial on this ground, Judge Welch found that (1) claims of ineffective assistance of counsel require knowing and intelligent waiver pursuant to Curtis v. State; and (2) Adnan had not knowingly and intelligently waived his cell tower claim. Thereafter, in its appeal to the Court of Special Appeals of Maryland, the State claimed that (1) the "knowing and intelligent" waiver standard from Curtis has not been applied in another ineffective assistance of counsel case in the thirty-nine years since it was decided; and (2) Maryland courts should accordingly no longer apply this standard to ineffective assistance claims.

This takes us to the recent opinion of the Court of Special Appeals of Maryland in Thomas v. State, 2017 WL 4073754 (Md.App. 2016).

In Thomas, Robert Lee Thomas

entered an Alford plea to sexual abuse of a minor and second degree sexual offense in the Circuit Court for Wicomico County on June 21, 2011....On September 6, 2011, [he] pled guilty to sexual abuse of a minor in the Circuit Court for Worcester County.

Thereafter, Thomas filed an Application for Leave to Appeal his conviction; that Application did not contain a claim of ineffective assistance of counsel based upon his trial counsel's failure to move to dismiss the charges in Worcester County on double jeopardy grounds.

Later, Thomas

filed a pro se petition for post-conviction relief in Worcester County. As later supplemented by post-conviction counsel, [Thomas[ argued that the attorney who represented him at the plea hearings in Wicomico County and Worcester County was ineffective in failing to move to dismiss the charges in Worcester County on double jeopardy grounds.

When this claim reached the Court of Special Appeals of Maryland, here is how it dealt with the waiver issue:

The State's preliminary argument is that appellant waived his ineffective assistance of counsel claim, arising from his guilty plea, by failing to make the allegation in an application for leave to appeal....In Curtis v. State, 284 Md. 132, 140 (1978), the Court of Appeals recognized double jeopardy as one of the fundamental constitutional rights that require an intelligent and knowing waiver. See also McElroy v. State, 329 Md. 136 n/1 (1993). Additionally, Section 7–106 of the Uniform Post–Conviction Act states, in pertinent part, that an allegation made in a post-conviction proceeding is waived where the petitioner could have made the allegation “in an application for leave to appeal a conviction based on a guilty plea[,]” but “intelligently and knowingly” failed to do so. Md. Code Ann., Crim. Proc. § 7-106. In the case at bar, appellant clearly waived the argument he makes in this appeal. However, “[i]t is well settled that a criminal defendant cannot be precluded from having [a claim of ineffective assistance of counsel] considered because of his mere failure to raise the issue previously.” Curtis, at 150. Therefore, we will address the merits of appellant's claim. (emphasis added).

Thomas is an unreported opinion, so it's not precedential, but it's a pretty strong indication that the Court of Special Appeals of Maryland is still applying the Curtis standard to ineffective assistance of counsel claims. And that means that there's a very good chance that the court will not dismiss Adnan's cell tower claim on waiver grounds.

-CM

http://lawprofessors.typepad.com/evidenceprof/2017/10/maybe-the-biggest-current-legal-question-in-the-adnan-syed-case-is-the-question-of-whether-adnan-has-waived-his-claim-that-tr.html

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Comments

Isn't this a different situation to Adnan's though, whereby Adnan had allowed 10years to lapse before making the IAC claim. In this situation the defendant had waited less than 10 years before making the claim.

Posted by: Ben | Oct 6, 2017 5:14:27 AM

Ben: Sure, that's a factual difference, but this still shows COSA applying Curtis to an IAC claim and using pretty broad language: "[i]t is well settled that a criminal defendant cannot be precluded from having [a claim of ineffective assistance of counsel] considered because of his mere failure to raise the issue previously.”

The State could try to distinguish this case, but that's very different from arguing that Curtis has never been applied to an IAC case since it was decided.

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

So, to the extent that that statement in this unreported opinion represents the view of CoSA, Adnan won't lose on waiver. None of the judges on this particular panel were also on Adnan's panel, though.

Posted by: Michael | Oct 6, 2017 6:35:32 AM

Michael: Right. It's not binding, and it's not the same judges. But it's a pretty good indication that COSA continues to apply Curtis to IAC claims.

Posted by: Colin Miller | Oct 6, 2017 8:21:41 AM

How did the State even argue with a straight face "Curtis is still the ruling precedent, and although Curtis itself was dealing with an IAC claim, that was like 30 years ago so you should only apply Curtis to non-IAC claims now". --seriously?

Posted by: Paul | Oct 6, 2017 2:44:18 PM

I honestly don't understand. What does this mean good or bad for Adnan?

Posted by: Elizabeth Mendeloff | Oct 6, 2017 7:45:09 PM

Paul: It seems like a pretty big misstep by them.

Elizabeth: It's good. Judge Welch found on the merits of the cell tower claim that Adnan deserves a new trial. The Court of Special Appeals can: (1) affirm this ruling; (2) reverse this ruling on the merits; or (3) find the cell tower issue was waived and deny a new trial without reaching the merits. This case makes it likelier that the court will not find waiver.

Posted by: Colin Miller | Oct 7, 2017 4:20:20 AM

What is the next step? Is the next step scheduled?

Posted by: Melodee | Oct 13, 2017 2:00:55 PM

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