Delving Deeper Into the Waiver Issue in the Adnan Syed Case

I've gotten some good feedback on my posts last week (here and here) about waiver in the Adnan Syed appeal. After reviewing the relevant Rules/Section some more, I feel like I have a better grasp on whether waiver is a potential winning argument for the State on appeal.  

Let's start back in 2010. On May 28, 2010, Adnan filed a Petition for Postconviction Relief pursuant to Section 7-103 of the Maryland Code of Criminal Procedure, which reads as follows:

(a) For each trial or sentence, a person may file only one petition for relief under this title.

(b)

(1) 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.

(2) In a case in which a sentence of death has been imposed, Subtitle 2 of this title governs the time of filing a petition.

Like the rest of Section 7 of the Maryland Code of Criminal Procedure, is part of the Uniform Postconviction Procedure Act ("UPPA"), which only applies "to petitions that 'begin a proceeding,' i.e. petitions filed to institute a postconviction proceeding." Of course, Adnan's Petition for Postconviction Relief was filed to institute a postconviction proceeding and thus was governed by Section 7-103's 10 year statute of limitations. Given that Adnan was sentenced on June 6, 2000, his Petition for Postconviction Relief was timely filed before this deadline expired.

Subsequently, on January 6, 2014, Judge Welch entered an opinion denying Adnan relief. Next on January 27, 2014, Adnan filed an Application for Leave to Appeal to the Court of Special Appeals of Maryland pursuant to Section 7-109 of the Maryland Code of Criminal Procedure. Section 7-109(b)(3) and (4) state the following:

(3) If the application for leave to appeal is granted:

(i) the procedure for the appeal shall meet the requirements of the Maryland Rules; and

(ii) the Court of Special Appeals may:

1. affirm, reverse, or modify the order appealed from; or

2. remand the case for further proceedings.

(4) If the application for leave to appeal is denied, the order sought to be reviewed becomes final.

On February 6, 2015, the Court of Special Appeals granted Adnan leave to appeal, and, on May 18, 2015, it remanded the case for further proceedings pursuant to Section 7-109(b)(3)(ii)(2).

Before those further proceedings, on August 24, 2015 Adnan moved to supplement his initial Petition for Postconviction Relief with the additional claim that his trial counsel was ineffective based upon failing to cross-examine the State's cell tower expert with the AT&T disclaimer.

In a decision dated November 6, 2015, Judge Welch allowed the cell tower supplement. Then, on June 30, 2016, Judge Welch entered an opinion granting Adnan a new trial on the cell tower claim. In finding that Adnan had not waived the cell tower claim, Judge Welch cited to Section 7-106, which states in relevant part that

(a) For the purposes of this title, an allegation of error is finally litigated when:

 

(1) an appellate court of the State decides on the merits of the allegation:...

 

(ii) on any consideration of an application for leave to appeal filed under § 7-109 of this subtitle...

 

(b)

 

(1)

 

(i)   Except as provided in subparagraph (ii) of this paragraph, an allegation of error is waived when a petitioner could have made but intelligently and knowingly failed to make the allegation:...

 

6.   in a prior petition under this subtitle...

 

(ii)

 

1.   Failure to make an allegation of error shall be excused if special circumstances exist.

 

2. The petitioner has the burden of proving that special circumstances exist.

(2)   When a petitioner could have made an allegation of error at a proceeding set forth in paragraph (1)(i) of this subsection but did not make an allegation of error, there is a rebuttable presumption that the petitioner intelligently and knowingly failed to make the allegation.

Judge Welch then found the waiver provision in Section 7-106 satisfied by citing to Curtis v. State, 284 Md. 132 (1978), which "analyzed the text, history, and purpose of then-Article 27, § 645A(c) (now CP § 7-106(b))." Applying Curtis, Judge Welch found that Adnan had not intelligently and knowingly waived the cell tower claim. 

Finally, on February 27, 2017, the State filed its Brief of Appellant, in which it claimed that Adnan's cell tower supplement violated both the statute of limitations contained in Section 7-103 and the waiver provision contained in Section 7-106.

This takes us back to the key Poole case, which I discussed here and here. In Poole v. State, 203 Md.App. 1 (Md.App. 2012), the Court of Appeals of Maryland held that "[t]he 'extraordinary cause' standard set out in CP § 7–103(b)(1) does not apply to amendments made to timely filed petitions." Instead, "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.'"

So, that answers the statute of limitations question. Because Adnan timely filed his intial Petition for Postconviction Relief on May 28, 2010, his cell tower/amendment supplement does not have to comply with the 10 year statute of limitations contained in Section 7-103; instead, his amendment/supplement "'shall be freely allowed in order to do substantial justice.'"

But what about the waiver issue? As I noted in my second post, the Court of Appeals of Maryland found in Poole that

CP § 7–102 states the requirements that a convicted person must satisfy to "begin a proceeding" under the UPPA. CP § 7–103 explains the time period in which a person should begin such a proceeding and lists how many petitions a person may file. Specifically, CP § 7–103 says that "a person may file only one petition for relief" and that "a petition may not be filed more than 10 years after the sentence was imposed." These requirements only apply to petitions that "begin a proceeding," i.e. petitions filed to institute a postconviction proceeding as contemplated in CP § 7–102. The requirements listed in the UPPA do not apply to amendments. In fact, the UPPA does not address amendments at all.

Like Section 7-102 and Section 7-103, Section 7-106 and its waiver provision is part of the UPPA, which only applies to petitions that "begin a proceeding" and does "not apply to amendments." Therefore, because Adnan's cell phone supplement is an amendment, Rule 4-402(c) would still apply, and Adnan should be "freely allowed" to amend/supplement his initial Petition for Postconviction Relief with his cell tower claim.

Of course, in its Brief of Appellant, the State tried to argue around Poole by claiming that Rule 4-402(c) only "applies to petitions that have not yet been resolved," with Section 7-103 and Section 7-106 applying to petitions that have been resolved.

But take another look at Section 7-109 and Section 7-106. Section 7-109(b)(4) states that "the order sought to be reviewed becomes final" if the Court of Special Appeals denies leave to appeal. But that's not what happened with Judge Welch's initial opinion denying Adnan a new trial. Instead, on February 6, 2015, the Court of Special Appeals granted Adnan leave to appeal, and, on May 18, 2015, it remanded the case for further proceedings pursuant to Section 7-109(b)(3)(ii)(2). Therefore, Judge Welch's opinion never became final.

We can then cross-reference Section 7-109 with Section 7-106(a)(1)(ii), which states in relevant part that

(a) For the purposes of this title, an allegation of error is finally litigated when:

 

(1) an appellate court of the State decides on the merits of the allegation:...

 

(ii) on any consideration of an application for leave to appeal filed under § 7-109 of this subtitle...

 

In other words, the waiver provision of Section 7-106 is only triggered when when the defendant's allegation is finally litigated, which requires a decision on the merits of the allegation under Section 7-109. This, of course, never happened in Adnan's case. Instead, the Court of Special Appeals found that it couldn't decide the Asia appeal on the merits and thus remanded under Section 7-109(b)(3)(ii)(2) so that the factual record could be fleshed out with Asia's affidavit and additional evidence.

 

This becomes even clearer when we look at Section 7-106(b)(1)(i)(6), which actually contains the waiver provision that arguably applies in this case:

 

(i)   Except as provided in subparagraph (ii) of this paragraph, an allegation of error is waived when a petitioner could have made but intelligently and knowingly failed to make the allegation:...

 

6.   in a prior petition under this subtitle...

 

This subsection makes clear that the waiver provision does not apply to Adnan's cell tower supplement. Why? There was no "prior petition." Adnan's initial Petition for Postconviction Relief was never "finally litigated." It's the same Petition that was remanded back down to Judge Welch, and it's the same Petition that has now been sent back up to the Court of Special Appeals. Adnan's cell tower supplement was a supplement to this initial Petition, not a new Petition. And, because there was no "prior petition,"  the waiver provision in Section 7-106(b)(1)(i)(6) can't apply. 

 

Therefore, if my understanding of Maryland law is correct, Adnan's cell tower supplement creates no issues under the statute of limitations contained in Section 7-103 or the waiver provision contained in Section 7-106. Instead, Adnan's cell tower supplement should have been "freely allowed" under Rule 4-402(c).

 

-CM