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220 Md. 666

152 A.2d 806

McClain v. Warden

Court of Appeals of Maryland

Decided September 8, 2001

Court of Appeals of Maryland · decided 2001-09-08

Cited by 8 later decisions — most recently September 1964

4 district · 4 state decisions

Key passage — most relied on by later courts

““Judge Marbury: I believe Mr. Gaegler was appointed to represent you here. Is that correct, Mr. Gaegler ? “Mr. Gaegler: Yes, Your Honor.” “Judge Marbury: Since that time, Mr. Gaegler has been or in fact, just a few days ago, Mr. Gaegler was appointed and sworn in, as an Assistant State’s Attorney. At that time, the matter of your case, your Petition was brought to the attention of this member of the Court, the question arose as to whether his position might be a bit awkward, since now he represents the State, which is in opposition to the relief sought in your Petition for relief under the Post Conviction Procedure Act. He was asked to communicate with you due to the fact that he was now Assistant State’s Attorney and determine whether you desired him to represent you, in this matter or whether you desired the appointment of some other counsel. “Have you been advised about Mr. Gaegler’s appointment ? “Mr. Brown: Yes, I have, and I would still like Mr. Gaegler to represent me, Your Honor. “Judge Marbury: Very well. If you feel that way about it, the Court is confident that he will represent you without regard to the State’s point of view in this particular case.””

quoted by 1 later decision, including Brown v. Director of Patuxent Institution

Relies on McClain v. Warden

Good law ✅— No negative treatment on recordhow we know

Decided 2001-09-08

View the full empirical analysis of this case →

Per Curiam.

¶1 The applicant, James McClain, alias George McCargo, who was convicted in the Criminal Court of Baltimore, on July 30, 1957, under five separate indictments, of assault, possession of a deadly weapon, unauthorized use of an automobile and *667 two burglaries, and was sentenced to a total of ten years, the sentences to run consecutively, applied to the trial court for relief under the Post Conviction Procedure Act. When his petition was denied, he applied to this Court for leave to appeal.

¶2 Below, the applicant claimed that his constitutional rights had been violated and assigned three reasons why he was entitled to set aside the several sentences: (i) deprivation of his right to call witnesses; (ii) misconduct of his trial counsel; and (iii) insufficiency of the evidence. In his application for leave to appeal, he abandoned the second ground but raised another—refusal of the trial court to postpone his case on request. Of course, since the last mentioned question was not raised below, it cannot be considered here. The first question was previously litigated in McClain v. Warden, 215 Md. 648, 137 A. 2d 711 (1958), a habeas corpus proceeding, and cannot be raised again in a post conviction proceeding. See Code (1958 Supp.), Art. 27, § 645A (a). The third question—the insufficiency of the evidence—was reviewable only on appeal from the original convictions. Moreover, the remedy afforded by the post conviction procedure is not a substitute for a direct review. Art. 27, § 645A (b).

¶3 Application denied.

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