EvidenceProf Blog

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

Tuesday, February 28, 2017

The State Missed a Hugely Important Case in its Brief in the Adnan Syed Case

In my opinion, the State's best chance at winning it's appeal on the ineffective assistance/cell tower issue is the argument that Adnan waived his claim on this issue by not bringing it within the 10 year statute of limitations. In its Brief of Appellant, however, the State has ignored a hugely important opinion of the Court of Appeals of Maryland on the issue.

In his opinion granting Adnan a new trial, Judge Welch found that Adnan had not waived his ineffective assistance/cell tower claim by applying the opinion of the Court of Appeals of Maryland Curtis v. State, 284 Md. 132 (1978). In Curtis, Maryland's highest court held that (1) fundamental rights require "knowing and intelligent waiver;" (2) the right to counsel is a fundamental right; and (3) Curtis did not knowingly and intelligently waive his claim of ineffective assistance of counsel.

In its brief, the State raises a number of arguments to try to distinguish Adnan's case from Curtis, including:

1. Curtis claimed total abandonment by counsel while Adnan was not entirely abandoned and only claims specific errors;

2. Curtis was decided when a defendant could bring unlimited postconviction petitions whereas Adnan's trial and appeals took place after defendants were limited to one PCR petition in 1995;

3. Curtis had a 72 IQ and a 7th grade education whereas Adnan was a high school senior who had done relatively well in school; and

4. The issue that could have been waived in Curtis required a colloquy in open court, unlike the cell tower issue in Adnan's case.

Moreover, the State repeatedly makes the claim that the "knowing and intelligent" waiver conclusion from Curtis has not been applied in another ineffective assistance of counsel case in the thirty-nine years since it was decided:

  Screen Shot 2017-02-28 at 1.01.05 PM

In its analysis, however, the State missed a key case: State v. Adams, 958 A.2d 295 (Md. 2008). I talked about it in this post. In Adams, the defendant failed to make an ineffective assistance of counsel claim in his PCR petition, but he was subsequently allowed to bring his ineffective assistance claim because he had not "knowingly and intelligently" waived that claim under Curtis. Moreover,

1. Adams did not claim total abandonment by counsel; instead, he claimed ineffective assistance based on failure to challenge a jury instruction;

2. Adams was decided (in 2008) after defendants were limited to one PCR petition;

3. The court made no mention of Adams' education level or IQ in reaching its decision; and

4. The issue that could have been waived in Adams did not require a colloquy in open court.

In other words, Adams both (1) refutes the State's claim that Curtis hasn't subsequently been applied to ineffective assistance claims; and (2) provides a factual context that is very similar to the factual context in the Adnan Syed case. It will be interesting to see the extent to which the defense uses Adams in its brief and the extent to which it is discussed during oral argument.



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I’m admittedly shooting from the hip here, because I don’t have time to read the whole opinion line-by-line, but from glancing quickly at it, I’m having trouble seeing why you think Adams “Failed to make an ineffective assistance of counsel in his PCR petition.” At 406 Md. at 254, it says Adams filed his “initial” PCR petition in 2004, and it alleged four bases for relief, the fourth of which was that his “trial counsel was ineffective.” Moreover, the part of the opinion that says (very briefly) that Adams never waived his IAC claim says he did not waive it “by inaction in the prior proceedings.” My sense (admittedly from skimming the opinion) is that the earlier claims were waived because they were challenges that should have been raised at trial but were not – such as a challenge to a jury instruction. An IAC claim obviously can’t be raised at trial and therefore Adams’ IAC claim, as compared to his other claims, was not waived “by inaction in the prior proceedings.” It does not seem to me the opinion was saying anything about whether Adams would have waived his IAC claim if he had filed an untimely PCR petition and whether the knowing/intelligent standard would have applied to that analysis. His petition was filed more than ten years after he was sentenced, but the 10-year limit does not apply to those (like Adams) convicted before 1995.

Posted by: Sam | Feb 28, 2017 11:39:09 AM

This doesn't look like a "miss", it looks like ignoring an adverse case and asserting wrongly that it doesn't even exist. EIther way, the lawyering doesn't seem to have improved after Thiru left.

Posted by: John Otoshi | Feb 28, 2017 11:45:22 AM

Sam: My prior post on the Adams case


cites to Adams’s brief, which makes clear that his attorney failed to raise the IAC claim in his initial PCR petition:

“At the post conviction hearing, Appellee's post conviction counsel admitted that he had failed to allege ineffective assistance of counsel against appellate counsel, for failure to pursue on appeal the objection made by trial counsel to the jury instructions.”

Thus, the court could have found that Adams waived the IAC claim, but it waived it because there was no knowing and intelligent waiver.

John: True. It’s tough to say whether they were unaware of the case or were aware of its but decided against trying to cite and distinguish it.

Posted by: Colin Miller | Feb 28, 2017 12:47:31 PM

Colin: Respectfully, I think you’re wrong here. The court opinion itself says Adams raised ineffective assistance of trial counsel in his “initial” PCR petition. Adams’ brief says his post conviction counsel failed to allege ineffective assistance of APPELLATE counsel. The PCR petition did allege ineffective assistance of TRIAL counsel, and that’s what the Court of Appeals addressed in its opinion. That’s the claim the court said wasn’t “waived.” This “hugely important case” you’re pointing to didn’t even involve an allegation of ineffective assistance of *appellate* counsel. That line from the brief is taken completely out of context.

Adams had both a trial and a direct appeal before his PCR petition was filed. The line you quote from Adams’ brief appeared in the section addressing the first of three questions presented in what was the State’s appeal of the circuit court’s post-conviction decision. That first issue was whether Adams had “waived his post conviction complaint that the trial court’s advisory jury instructions denied him his constitutional right to due process.” More specifically, Adams claimed that the trial court described its reasonable-doubt jury instruction as “advisory,” and he felt this violated his due process right. But trial counsel never objected at the time, and on direct appeal, the issue wasn’t raised either. Years after the trial, the Fourth Circuit held that making a reasonable doubt instruction merely advisory was sufficient to show a due process violation. The question was whether that was a description of what the law had always been (such that trial counsel should have raised it and therefore waived the issue by not doing so), or whether that was a new rule, such that trial counsel could not have been expected to object at the time. Your quote is from the section of the brief discussing how there was a new change in the law, and how nobody could have seen it coming, including Adams’ appellate counsel.

Again, the actual decision says Adams didn’t waive his ineffective assistance of TRIAL counsel claim by failing to raise it in prior proceedings -- i.e., at trial or on direct appeal. That’s just a passing line that means nothing. The court had just knocked down a bunch of Adams’ claims because they weren’t raised at trial or on direct appeal but should have been. But of course trial counsel wasn’t expected to raise his or her own ineffective assistance at trial. And ineffective assistance claims are rarely allowed on direct appeal. So, duh, Adams didn’t waive his right to assert ineffective assistance of trial counsel by not raising it at trial or on direct appeal. In the section of the opinion that addresses that claim, there’s no further discussion of waiver, and the words “knowing[ly]” and “intelligent[ly]” don’t appear a single time.

I think this case is hugely irrelevant, but I will be humbled if you can convince me otherwise.

Posted by: Sam | Feb 28, 2017 2:49:29 PM

Sam: You're right that my prior citation was incomplete. In the State's subsequent brief, however, it further clarifies the issue (2007 WL 3380053):

"Finally, Adams reiterates the argument he raised for the first time in the Court of Special Appeals, that the ineffective assistance of his trial counsel, for failing to object to the instructions, and his appellate counsel, for failing to pursue a challenge to the instructions on direct appeal, and post conviction counsel, for abandoned the ineffective assistance claims as a tactical matter, compels a determination by this Court on collateral review that he is entitled to a new trial."

"Adams acknowledges that his post conviction counsel specifically abandoned any claim of ineffective assistance with regard to his prior counsel's failure to pursue the issue of the advisory instructions at trial or in a prior appeal."

Posted by: Colin Miller | Feb 28, 2017 6:56:57 PM

Colin, the sections of the State's reply brief that you quote pertain to abandonment during the course of the PCR proceedings of a claim of ineffectiveness relative to the advisory instructions issue. The COA apparently agreed that that issue was not properly before it because it was not addressed by the COA in its decision. The ineffectiveness claim it addressed pertained to the failure to object to the jurisdiction instruction. That issue had not been waived because, as Sam points out, it was raised in the initial PCR petition and because it was not otherwise abandoned during the PCR proceedings. It was not required to be raised on direct appeal (or obviously at trial).

If Judge Harrell had intended to say that the IAC claim was not waived because, under Curtis, it required a knowing and intelligent waiver and Adams had successfully rebutted that presumption, he absolutely would have said so. He is known for his precision. This case is not on point and the State correctly did not cite it.

Posted by: Jane | Mar 1, 2017 7:19:33 AM

Jane: Take another look at my first quote from my last comment: "Adams reiterates the argument he raised for the first time in the Court of Special Appeals, that the ineffective assistance of his trial counsel, for failing to object to the instructions...." Adams didn't claim ineffective assistance of trial counsel in his initial PCR petition; he raised it for the first time with COSA.

And while the majority opinion doesn't cite Curtis, the dissent specifically notes that "waiver of a claim that trial counsel's representation was so inadequate that the defendant was denied his constitutional right to the assistance of counsel requires an “intelligent and knowing waiver” by the defendant."

Posted by: Colin | Mar 1, 2017 8:32:28 AM

Colin, you are misunderstanding. The State says that Adams raised an ineffectiveness challenge for failure to object to certain jury instructions (the advisory instruction instruction) for the first time in COSA. He raised his ineffectiveness challenge for failure to object to other instructions (jurisdiction and reasonable doubt) in his initial PCR petition, as the COA decision makes clear:

"On 1 April 2004, some twenty-four years after his convictions and affirmance thereof on direct appeal, Adams filed in the Circuit Court for Prince George's County an initial Petition for Post Conviction Relief. The Petition alleged four bases for relief: (1) the trial court improperly gave only advisory jury instructions; (2) the trial court improperly instructed the jury on jurisdiction; (3) the trial court gave an incomplete reasonable doubt instruction; and (4) Adams's trial counsel was ineffective. In support of his claim of ineffective assistance of counsel, Adams alleged that his attorney failed to object to the improper jurisdiction and reasonable doubt instructions and failed to file a Motion for Modification of Sentence."

The COA did not address the IAC claim relative to the advisory instruction issue. It only addressed the IAC claim with respect to the jurisdiction instruction. That claim HAD BEEN RAISED in his initial petition and plainly was not waived.

The quote you referred me to does not change that. The State uses "instructions" generally, but within a section dealing only with the issue of advisory instructions. It plainly does not address IAC claims as to other instructions.

Posted by: Jane | Mar 1, 2017 8:42:23 AM

Jane: From the State's Reply Brief:

"Recognizing on appeal that he is otherwise barred from pursuing this challenge to the instructions, Adams does not even suggest that he has not waived this issue, rather he relies on his claim of ineffective assistance of counsel as “special circumstance” which would excuse his waiver in order to seek review of his claim. Assuming arguendo that ineffective assistance of counsel is a “special circumstance,” however, as noted in Argument III, infra, that claim is without merit, and, consequently, the post conviction court erred in finding that Adams was not procedurally barred from raising his claim. Moreover, because the jury in this case was requested to enter a special verdict on this issue and was instructed as to what was necessary in order for it to find Adams guilty of the twenty two (22) rapes and sexual assaults upon the victim under either theory - §465 gave the court jurisdiction or the crimes occurred in Maryland - there is no merit to Adams's claim that an instruction under §465, even if unnecessarily given, misled the jury. Adams's only argument to the contrary, his speculation that the jury “put little thought” into its decision, is wholly speculative and not supported by the record. (Brief of Appellee at 12)."

This section is referring to the claim of ineffective assistance with regard to the jurisdiction instruction, with Adams claiming that he didn't waive the issue, and the State claiming that he did waive the issue. But, in the end, this might all be academic based upon my last couple of posts about Poole.

Posted by: Colin | Mar 2, 2017 6:41:50 AM

Colin, you are selectively quoting from that brief and ignoring the prior paragraph, which states clearly that Adam raised the IAC claim as to the jurisdiction instruction in for the first time ON POSTCONVICTION: "Therefore, the court found no bar to Adams's pursuit of the issue for the first time on post conviction." Yet you continue to claim that he did not raise this issue in his initial post conviction petition. Can you explain to me why the COA and the State would incorrectly state that Adams raised his IAC claim re: the failure to challenge the jurisdiction and reasonable doubt instructions in his initial PCR petition?

Posted by: Jane | Mar 3, 2017 5:58:32 AM

Jane: I guess we'll just have to agree to disagree. But I'm much more interested in your response to the Poole posts because I think Poole renders this whole discussion irrelevant.

Posted by: Colin | Mar 3, 2017 10:50:49 AM

Colin, why do we have to agree to disagree? It would be nice if you could admit you made a mistake here. The Court says he raised it. The State says he raised it. The only person who seems to believe he didn't raise it is you.

Posted by: Jane | Mar 3, 2017 12:42:10 PM

Jane: As I noted in my last substantive post (Mar 2, 2017 6:41:50 AM), the State claimed that Adams waived the jurisdiction issue. COSA disagreed with the State. Clearly, we both have different interpretations of what happened.

Posted by: Colin | Mar 3, 2017 1:23:08 PM

I am from the UK trying to understand the US appeal system. As the defense has apparently attempted to discredit cell site date, even up to today, if it could be shown the cell site data discredits Jay Wilds testimony, and in fact places him as a suspect, could there be grounds for an appeal today, or has the time lapsed?

Posted by: Robert Bolt | Aug 23, 2022 2:23:26 AM

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