The State's Application for Leave to Appeal in the Adnan Syed Case, Take 2

According to the State's Application for Leave to Appeal (ALA) in the Adnan Syed case, Judge Welch erred in three ways by finding that Adnan did not waive his ineffective assistance/cell tower claim:

First, the standard for “intelligent and knowing” waiver articulated by the Court of Appeals in Curtis v. State, 284 Md. 132 (1978), has never been applied to an ineffective assistance of counsel claim since Curtis was decided. Second, even if it were proper to continue to apply Curtis’s holding to an ineffective assistance of counsel claim, Syed’s claim is readily distinguishable from the claim in Curtis, and application of the Curtis standard should have led the post-conviction court to the conclusion that Syed’s claim was waived. Finally, even if Syed’s claim were the kind of claim that required “intelligent and knowing” waiver, Syed has offered no evidence to rebut the statutory presumption that he “intelligently and knowingly failed” to raise the claim in a prior proceeding.

I will address each of these arguments in this second post on the State's ALA.

1.    The "Intelligent and Knowing" Waiver Standard Has Never Been Applied to an IAC Claim Since Curtis  

In its ALA, the State acknowledges that (1); "In Curtis, the petitioner raised the issue of ineffective assistance of counsel"; and (2) In Curtis, the Court of Appeals of Maryland applied "the 'intelligent and knowing' waiver standard to an ineffective assistance of counsel claim. The State, however, counters that it "has not found, after conducting a preliminary review, a single Maryland appellate case since Curtis that has applied that standard to an ineffective assistance of counsel claim." 

But is this relevant? In Curtis, Maryland's highest court found that the "intelligent and knowing" waiver standard applied to a claim of ineffective assistance of counsel claim, and the State in its ALA in Adnan's case did not point to any other Maryland precedent (1) repudiating Curtis; or (2) finding that the "intelligent and knowing" waiver standard did not apply to a claim of ineffective assistance based upon a different factual context. As such, Curtis remains good law.

By way of analogy, consider In re Parris W., in which the Court of Appeals of Maryland found, as a matter of first impression, that defense counsel was unreasonable in his handling of prospective alibi witnesses. Technically, there were no reported Maryland cases between Parris W. and Adnan's case in which a court found defense counsel unreasonable in the handling of alibi witnesses. Of course, that didn't stop Judge Welch from using Parris W. to conclude that Gutierrez was unreasonable in her failure to contact Asia McClain. That's because Parris W., like Curtis, is still good law

2.    Syed's Claim is Readily Distinguishable From the Claim in Curtis

In its ALA, the State argued that,

In Curtis, the petitioner raised the issue of ineffective assistance of counsel for the first time in his second petition for post-conviction relief; his direct appeal and his first petition had made no such argument....In his second petition, Curtis alleged that his counsel at trial, on direct appeal, and in his first post-conviction proceeding were ineffective. His allegation that his first post-conviction attorney was inadequate was grounded upon that attorney’s failure at the first post- conviction proceeding to raise the issue of trial counsel’s ineffectiveness....In other words, if the Court of Appeals had concluded that Curtis was precluded from having his ineffective assistance claim considered because of his mere failure to raise the issue previously and not applied the “intelligent and knowing” waiver standard, no court would have ever considered Curtis’s allegation that his trial counsel was ineffective.

According to the State,

The same cannot be said of Syed, who, while represented by his current counsel, Justin Brown, filed a petition for post-conviction relief on May 28, 2010, and a supplement on June 27, 2011, which together alleged ineffective assistance of Syed’s trial counsel, direct appeal counsel, and appellate counsel on ten separate grounds.

The State is correct that the two cases are factually distinct but it failed to argue why this distinction is meaningful. Judge Welch did not find lack of "intelligent and knowing" waiver based upon Adnan's failure to understand that he could bring a claim of ineffective assistance generally; instead, he made this finding based upon Adnan's failure to understand that he could bring a claim of ineffective assistance premised upon the cell tower evidence:

Moreover, Judge Welch explained exactly why he drew this distinction: "Requiring a layman who lacks a complete high school education to understand the intricacies of cellular network design and the legal ramifications of trial counsel's failures to challenge the evidence would be inconsistent with the spirit of the Sixth Amendment." In other words, while the State wants to make waiver all about ineffective assistance, it is really about the cell tower issue. 

3.    Syed Has Offered No Evidence to Rebut the Statutory Presumption

The State is correct that there is a statutory presumption of "knowing and intelligent" waiver. That said, take a look at how Judge Welch explained this presumption in his opinion:

Specifically, in Wyche, the Court of Special Appeals of Maryland concluded that a waiver of a fundamental right is “intelligent and knowing” only when:

1. The record expressly reflects that the defendant had a basic understanding of the nature of the right which was relinquished or abandoned; and

2. The record expressly reflects acknowledgment that the relinquishment or abandonment of that right was made or agreed to by the defendant.

In other words, despite the presumption of waiver, there cannot be waiver of a fundamental right unless the record expressly reflects that the defendant understood the right and made or agreed to its abandonment. Simply put, there is no evidence of either in the record for Adnan's case, and his attorney has specifically argued that Adnan did not have knowledge of the cell tower issue until last fall, just before it was raised for this first time.

 -CM