Why the State Might Have Just Lost the Waiver Argument in the Adnan Syed Appeal

In his opinion granting Adnan a new trial, Judge Welch found that the right to counsel is a "fundamental right," meaning that a claim of ineffective assistance of counsel cannot be waived pursuant to Curtis v. State unless that waiver was "intelligent and knowing." By way of contrast, claims that are not fundamental are waived if they are not brought within the ten year statute of limitations unless the defendant can establish "extraordinary cause" for late filing. In its Brief of Appellant, the State claimed that Judge Welch erred in his opinion and that Adnan needed to establish "extraordinary cause" for Judge Welch to be able to hear his ineffective assistance/cell tower claim. But, in doing so, the State pointed to a precedent that strongly suggests that Adnan should have been "freely allowed" to add his ineffective assistance/cell tower claim without having to comply with Curtis v. State or establish "extraordinary cause." 

The case at issue is Poole v. State, 203 Md.App. 1 (Md.App. 2012), which was decided by the Court of Special Appeals of Maryland in 2012. After Bryan Lamont Poole was convicted of first degree murder and use of a handgun in a crime of violence, he filed a pro se PCR petition before the ten-year statute of limitations expired. Subsequently, Poole was assigned a public defender, who filed a "Supplemental Petition for Post Conviction Relief" raising additional grounds for relief after the ten-year statute of limitations expired.

In response, the State cited Section 7-103(b)(1) of the Maryland Code of Criminal Procedure, which states that

Unless extraordinary cause is shown, in a case in which a sentence of death has not been imposed, a petition under this subtitle may not be filed more than 10 years after the sentence was imposed.

The Circuit Court agreed and dismissed the supplemental PCR petition because it was untimely. The Court of Special Appeals of Maryland disagreed. Here are the two key portions of its opinion:

We conclude that the postconviction court erred in dismissing Poole's amended petition. The "extraordinary cause" standard set out in CP § 7–103(b)(1) does not apply to amendments made to timely filed petitions. A petitioner must show extraordinary cause only if the original petition for postconviction relief is filed more than ten years after the sentence was imposed. If the original petition is timely filed, as it was in this case, then under Rule 4-402(c), amendments to petitions "shall be freely allowed in order to do substantial justice."...

We conclude that, in accordance with Rule 4-402(c), amendments (regardless of how titled) to timely filed petitions for postconviction relief—including amendments that add new non-frivolous issues to the original petition—"shall be freely allowed in order to do substantial justice." The postconviction court erred in dismissing Poole's supplemental petition.  

So, what could this mean for Adnan's case? Justin Brown timely filed Adnan's PCR petition on May 28, 2010 within the ten-year statute of limitations. Subsequently, on August 24, 2015, Justin Brown filed a supplement to the PCR petition, seeking to add the ineffective assistance/cell tower claim. Judge Welch allowed the supplement, concluding that Adnan had not intelligently and knowingly waived the issue. The State's response is that Judge Welch needed to find "extraordinary cause." But Poole stands for the proposition that Judge Welch didn't need to find either; he could simply freely allow Adnan to supplement his timely filed PCR petition with the new claim.

The State seemingly recognizes this inconvenient truth in its brief because it attempts to distinguish Poole in footnote 1:

So, the State tries to distinguish Poole in two ways. First, the State claims that the Poole principle only applies to pro se defendants who later get counsel in order to prevent "unnecessarily complex and unfair results." But take a look at the court's opinion. In the "Discussion" Section, the Court of Special Appeals starts by engaging in a close reading of the Uniform Postconviction Procedure Act and the Maryland Rules of Criminal Procedure. 

Based on this close reading, the court finds that defendants can freely supplement timely PCR petitions with untimely claims. The court then uses a transition sentence: "Not only is th[e State's] interpretation contrary to a plain reading of the UPPA and the Maryland Rules, but it would lead to unnecessarily complex and unfair results." In its brief, the State quotes only the last portion of this transition sentence to make it look like it was Poole's pro se status that prompted the result. But that's not the case. The court had already found that a plain reading of the relevant Act/rules allowed defendants to freely supplement timely PCR petitions with late claims; this latter language was just further support for this proposition (presumably anticipating a possible appeal by the State to the Court of Appeals).

Second, the State claims that Rule 4-402(c) only "applies to petitions that have not yet been resolved." I suppose that's true, but that leaves the question of whether Adnan's PCR petition was resolved when he sought to supplement it with the ineffective assistance/cell tower claim. Presumably, the State will try to claim that it was resolved based upon Judge Welch's January 2014 opinion denying relief. Of course, the defense will counter that Judge Welch's opinion was not a final resolution of Adnan's case given that the Court of Special Appeals allowed for Adnan to move to reopen his PCR proceeding, followed by Judge Welch granting that motion.

And it's here where the State might get tripped up by its own argument. Recall the debate over whether Adnan is currently eligible for bail. The defense claimed that Judge Welch's order granting Adnan a new trial was a final resolution of his PCR petition, meaning that he was in a pre-trial posture and eligible for bail. The State countered that Judge Welch's order granting Adnan a new trial was not a final resolution of his PCR petition, meaning that he was still in a post-trial posture and not eligible for bail. Judge Welch, of course, sided with the State.

As a result, I don't see how the State can now argue that Adnan's PCR petition was fully resolved when he sought to supplement it with his ineffective assistance/cell tower claim. And, given that, Poole seems like a pretty strong precedent supporting the proposition that this claim was not waived, without the court having to find either (1) that Curtis applies; or (2) that there was "extraordinary cause."

-CM