An Important COSA Opinion That Might Mean Adnan Syed's Cell Tower Claim Wasn't Waived

In their opinion affirming Judge Welch's order granting a new trial to Adnan Syed, all three judges of the Court of Special Appeals found that Adnan had waived his claim that Cristina Gutierrez was ineffective based upon failing to cross-examine the State's cell tower expert with the AT&T disclaimer. In doing so, the judges recognized that there was no Maryland case law directly on point. That said, the Court did cite Wyche v. State, 53 Md.App. 403 (Md.App. 1983), in which the Court of Special Appeals held in dicta that

If an allegation concerning a fundamental right has been made and considered at a prior proceeding, a petitioner may not again raise that same allegation in a subsequent post conviction petition by assigning new reasons as to why the right had been violated, unless the court finds that those new reasons could not have been presented in the prior proceeding.

The Court of Special Appeals then noted that Adnan had raised ineffective assistance of counsel claims at his first PCR proceeding (e.g., based on trial counsel's failure to contact an alibi witness), meaning that he could not use the reopened PCR proceeding to a assign a new reason why his right to the effective assistance of counsel had been violated (based on failure to use the AT&T disclaimer).

As it turns out, there is actually a Court of Special Appeals of Maryland opinion that directly supports the conclusion that Adnan has not waived his cell tower claim. The opinion is not precedential, but the same can be said about the dicta in Wyche v. State. And, factually speaking, the case is nearly identical to the Adnan Syed case.

The case is Brown v. State, 2017 WL 6337194 (Md.App. 2017), decided last December by the Court of Special Appeal. In Brown, Carl Brown entered into a plea deal after being charged with first-degree felony murder. Subsequently, Brown brought a first PCR petition, alleging that he received ineffective assistance of counsel in connection with the negotiation of the plea agreement. The Circuit Court denied this first PCR petition, and the Court of Special Appeals thereafter denied Brown leave to appeal. Brown later filed a motion to reopen so that he could file a second PCR petition, claiming that he received ineffective assistance of counsel in connection with his entry of his guilty plea. The Circuit Court denied the motion to reopen, concluding

that the issue being raised was “merely a repacking of the same allegation” in the First Petition that was finally litigated by the First Postconviction Court and that it was not in the interests of justice to reopen the previous postconviction proceeding.

The Court of Special Appeals reversed, concluding that

This Court denied appellant's first Application for Leave to Appeal on February 7, 1992, but a summary denial “without the assignment of any reason” is not a decision on the merits of the allegation....Accordingly, the issue before the First Postconviction Court has not been finally litigated. And, even if the allegation of error in the First Petition had been finally litigated, the ineffective assistance of counsel allegations in the Second Petition extend beyond Mr. Thompson to subsequent trial and postconviction counsel....

We agree that the Second Petition also rests on what the first trial counsel knew or did not know regarding appellant's eligibility for a death sentence. But, whereas the First Postconviction Court's analysis focused on what counsel knew or did now know at the time of the plea agreement, the Second Petition also focuses on the subsequent entry of the plea.

The same general thinking could apply to Adnan's case. As I've noted before, when the Court of Special Appeals granted Adnan leave to appeal the denial of his first PCR petition and then remanded the case back down to the Circuit Court, it did not issue a decision on the merits. Therefore, the issue of ineffective assistance of counsel was not finally litigated in his case, just as it was not finally litigated in Brown's case.

Moreover, separate and apart from that issue, Adnan's allegation of ineffective assistance in his cell tower supplement extends beyond the allegations of ineffective assistance of counsel in his first PCR petition. As a result because (1) Adnan's initial ineffective assistance of counsel claim was not finally litigated; and/or (2) his ineffective assistance/cell tower claim extends beyond his ineffective assistance/alibi claim, Adnan has not waived his cell tower claim.

As noted, Brown v. State is unreported and therefore not precedential, but it is very factually similar to the Adnan Syed case. In my mind, that makes it "better" than the dissenting opinion in Wyche v. State, a case in which the Court of Special Appeals actually found that the "knowing and intelligent" waiver standard applied. So, while the Court of Appeals doesn't have to rely on either case if it is deciding the case on appeal, I think that Brown v. State is a case the Court could certainly use to conclude that the cell tower issue was not waived.

-CM