JACKSON v. WARDEN, 236 Md. 634 (1964)

204 A.2d 566

JACKSON v. WARDEN OF THE MARYLAND PENITENTIARY

[App. No. 49, September Term, 1964.]Court of Appeals of Maryland.
Decided November 13, 1964.

POST CONVICTION PROCEDURE ACT — Under Code (1964 Supp.), Art. 27, § 645A(a) Alleged Violations Of Constitutional Rights May Be Inquired Into In A Post Conviction Proceeding If They Nullify Trial And Have Not Been Previously Litigated Or Waived. pp. 634-635

S.K.S.

Decided November 13, 1964.

James Jackson instituted a proceeding under the Post Conviction Procedure Act, and from a denial of relief, he applied for leave to appeal.

Application denied.

Before HENDERSON, C.J., and HAMMOND, PRESCOTT, HORNEY, SYBERT and OPPENHEIMER, JJ.

PER CURIAM.

Application for leave to appeal from a denial of post conviction relief is denied for the reasons assigned by Judge Jones in the court below. On one point, however, we think it well to file a caveat. In disposing of the applicant’s contention that his confession was improperly admitted, Judge Jones correctly found that there was sufficient evidence that it was voluntary. But she also stated that the point could not be raised in a post conviction proceeding, citing Cheeseboro v. Warden,

Page 635

224 Md. 660, 662, and Whitley v. Warden, 222 Md. 608. The statement may be inaccurate or misleading in view of recent rulings of the Supreme Court holding that some of the common law rules of evidence violate due process. It seems clear under Code (1964 Supp.), Art. 27, § 645A(a) that alleged violations of constitutional rights may be inquired into in a post conviction proceeding, if they nullify the trial and have not been previously litigated or waived. Cf. Simon v. Director, 235 Md. 626, 629, and Hyde v. Warden, 235 Md. 641, 648.

Application denied.