EvidenceProf Blog

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

Thursday, March 2, 2017

Why Adnan's Cell Tower Amendment is Not Governed by the "Extraordinary Cause" Test

Yesterday, I posted an entry about Poole v. State, 203 Md.App. 1 (Md.App. 2012), which might be the most important case for Adnan's appeal. The heart of the State's Brief of Appellant is the claim that Adnan had to demonstrate "extraordinary cause" for failure to raise his ineffective assistance/cell tower claim within the ten-year statute of limitations in order to raise it in his reopened PCR proceeding. If you're wondering how difficult it is to establish "extraordinary cause," consider this tweet by Erica Suter, an expert in Maryland appellate law:

Screen Shot 2017-03-02 at 7.24.59 AM

Simply put, if the Court of Special Appeals (COSA) applies the "extraordinary cause" test, the State wins its cell tower appeal, unless COSA decides to excuse the waiver. But one thing now seems abundantly clear: COSA won't apply the "extraordinary cause" test.


In yesterday's post, I posited that Rule 4-402(c) of the Maryland Rules of Criminal Procedure might apply to Adnan's amendment of his PCR petition to include the cell tower claim. That Rule provides that

Amendment of the petition shall be freely allowed in order to do substantial justice.

Simply put, if COSA applies this "freely allowed" test, it will not deem the cell tower issue waived. But does Rule 4-402(c) apply? As I noted in yesterday's post, I'm not entirely sure. Rule 4-402(c) clearly applies in a case like Poole, where (1) the defendant filed a PCR petition about a year before the ten year statute of limitations expired; (2) the defendant filed an amendment to that initial PCR petition about a year after the statute of limitations expired; and (3) the Circuit Court hadn't ruled on the initial PCR petition at the time of amendment. This is known as the relation-back doctrine, with the amendment "relating back" to the time of the initial PCR petition, making it timely.

Adnan's situation is a bit more complicated because (1) he filed his initial PCR petition soon before the ten year statute of limitations expired; (2) the Circuit Court ruled against him on the initial PCR petition; (3) COSA remanded the case back to the Circuit Court so that there could be additional proceedings on the initial PCR petition; and (4) Adnan filed an amendment to his initial PCR petition.

In its brief, the State tries to distinguish Poole, claiming that Rule 4-402(c) only "applies to petitions that have not yet been resolved." In yesterday's post, I noted why that might not be the case, but this is definitely not a sure thing:

Screen Shot 2017-03-02 at 7.37.08 AM

But here's what is a sure thing: Section 7-103(b)(1) of the Maryland Code of Criminal Procedure does not apply to the cell tower amendment. This is the Section at the heart of the State's brief:

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.

Section 7-103(b)(1) is part of the Uniform Postconviction Procedure Act ("UPPA"), and here's what Poole has to say about Section 7-103, Section 7-102,  and the UPPA

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.

So, (1) the UPPA doesn't address/apply to amendments; and (2) the requirements of Section 7-102 and Section 7-103 only apply to petitions that begin a proceeding. Therefore, because Adnan's cell tower supplement was an amendment and did not begin a proceeding, it is not governed by the "extraordinary cause" test.



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Is this something the defence can make clear in any (informal) way? Or would that be taken as an insult by COSA.

Where can I find more info about COSA, is it a separate organization in its own building, or is it something judges do as a second job? I'm from Europe so I have no idea.

Posted by: Martin | Mar 3, 2017 5:22:45 AM

The status of the petition really does seem like a conundrum. On the one hand,in order to be reopened, it has to once have been closed. But on the other, once having been reopened, that closure is no longer final.

Posted by: pluscachange | Mar 3, 2017 10:09:01 AM

Martin: The defense can simply include it in their appellate brief.

pluscachange: It really is tough to get a grasp on exact status.

Posted by: Colin | Mar 3, 2017 10:51:56 AM

The last edition if the maryland bar journal was devoted to explaining the court of special appeals. A lot of Marland lawyers, me included, have no idea how it works

Posted by: Linnette | Mar 3, 2017 11:26:01 AM

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