Simms v. Shearin, Warden

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1950

September Term, 2012

JOSEPH SIMMS

v.

BOBBY SHEARIN, WARDEN

Meredith,
Graeff,
Leahy,

JJ.

Opinion by Leahy, J.

Filed: February 24, 2015
 Approximately ten years after his 1998 conviction of two first-degree murders,

Appellant Joseph Simms filed a pro se petition seeking additional DNA testing of

clothing introduced at his trial pursuant to Maryland’s post-conviction DNA testing

statute—Maryland Code (2001, 2008 Repl. Vol.), Criminal Procedure Article (“CP”) § 8-

201—in the Circuit Court for Baltimore City.1 Although the court ultimately granted this

petition, Appellant’s claim that additional DNA testing would prove his innocence could

not be substantiated because the clothing had been destroyed by the Baltimore City

Police Department in October 2000 after his direct appeal was final pursuant to then-

applicable protocols.

The statute pursuant to which Appellant sought additional DNA testing, CP § 8-

201, establishes procedures to challenge whether the State intentionally or willfully

destroyed evidence that the State had reason to know contained DNA material.2

Appellant, however, filed the underlying action separately as a petition for writ of habeas

corpus, asserting that he was denied due process of law by the State’s destruction of the

1
Unless otherwise indicated, all statutory references to CP § 8-201 hereinafter are
to the 2008 replacement volume as well as the 2014 supplement, which contains
amendments to CP § 8-201 pertinent to this case that became effective on January 1,
2009, before Appellant filed the underlying habeas corpus action. See, e.g., Gregg v.
State, 409 Md. 698, 714-16 (2009) (establishing that although statutes are normally
presumed to operate prospectively, statutes like CP § 8-201 that have a remedial effect
and amendments thereto that only provide procedural changes may be given retrospective
application); see also Thompson v. State, 411 Md. 664, 681 (2009) (giving the 2008
amendments to CP § 8-201 that broadened the right to appeal and provided the standard
for new trial retrospective application).
2
It appears from Appellant’s case history that he subsequently obtained a hearing
under CP § 8-201 regarding the destruction of his DNA evidence, and his appeal from the
court’s subsequent denial of relief is currently pending before the Court of Appeals.
evidence without notice. The circuit court denied the petition, and Appellant filed a

timely appeal.

In Maryland, an appeal may not be taken from a disposition of a petition for writ

of habeas corpus unless authorized by one of only four statutes, including CP § 7-107, a

provision in the Uniform Post Conviction Procedure Act (“UPPA”), which is most

relevant in this case. CP § 7-107 permits an appeal from habeas corpus disposition when

the petition is sought for a purpose other than to challenge the legality of the conviction

or sentence. The Court of Appeals has further held that an appeal from a habeas corpus

petition lies where the UPPA does not provide a remedy. This prompts the entangled

question of whether a habeas petition challenging the State’s post-trial destruction of

DNA evidence may be appealed under CP § 7-107, particularly when the General

Assembly enacted CP § 8-201 to govern and address this scenario. Because Appellant’s

petition seeks to challenge the legality of his conviction, and because CP § 8-201

provides appeal rights commensurate with habeas relief when DNA evidence is destroyed

post-trial, we must dismiss this appeal.

FACTS AND PROCEEDINGS

A. Trial

In 1998, Appellant was tried for the double homicide of Peter W. Williams and

Belinda M. Baynor in the Circuit Court for Baltimore City. At trial, the State produced

evidence that Appellant was Ms. Baynor’s former boyfriend and that Ms. Baynor had

been at the home of Mr. Williams, a family friend, on December 12, 1995. During an
2
interview with police, Appellant admitted that he went to Mr. Williams’s residence that

evening and that he and Ms. Baynor got into an argument. He also stated that he avoided

encountering Mr. Williams while there because Mr. Williams had pulled a gun on him

during a previous argument. The following morning, on December 13, the bodies of Ms.

Baynor and Mr. Williams were found inside Mr. Williams’s house. The residence

showed signs of forced entry, and both victims had suffered fatal stab wounds. Appellant

was at the crime scene when police responded. He was taken to the police station for

questioning, where both the hair on his hand and his right hand tested positive for the

presence of blood.

The State also introduced several items of clothing—including a jacket, boots,

socks, and a towel—that were found outside in trash bags close to Appellant’s aunt’s

house. The aunt testified that Appellant had arrived at her home, “nervous . . . shaking,”

during the early morning hours of December 13 asking to stay at her house and that she

observed Appellant wearing the clothes found in the trash bag on December 12. One

forensic chemist testified at trial that she could not exclude Ms. Baynor as a DNA

contributor to the blood found on the left-front jacket and the right shoe, and another

forensic chemist testified that the DNA profiles obtained from the blood sample taken

from the right-hand sleeve of the jacket matched Mr. Williams’ blood sample and that the

DNA profiles obtained from the left-hand sleeve matched both Mr. Williams and Ms.

Baynor’s blood samples.

The jury ultimately convicted Appellant of first-degree murder of both victims and
3
related weapon offenses on April 6, 1998. The circuit court imposed two consecutive

sentences of life imprisonment without the possibility of parole, and this Court affirmed

Appellant’s convictions and sentences in an unreported opinion. Simms v. State, No. 760,

Sept. Term 1998 (filed April 28, 1999). Appellant later filed a post-conviction petition,

an application for leave to appeal the denial of post-conviction relief, and a motion to

reopen his post-conviction proceeding, which were all denied.

B. Petition for Post-Conviction DNA Testing and Related Proceedings

On January 7, 2008, Appellant filed a pro se “motion for new trial and release of

evidence of DNA testing,” contending that he had a degenerative skin disease on his legs

and that, if he was the true perpetrator, his skin cells would have been on the socks and

other items. He alleged that the new short tandem repeat (“STR”) method of DNA testing

would prove this contention and establish his innocence. The circuit court summarily

denied this motion without a hearing. Appellant appealed to this Court, and we

transferred the case to the Court of Appeals pursuant to CP § 8-201 and Maryland Rule 8-

132.3 The Court of Appeals held that Appellant’s pro se motion implicated the post-

conviction DNA statute CP § 8-201 and that, when construed liberally, the motion

satisfied the pleading requirements of CP § 8-201. Simms v. State, 409 Md. 722, 731-32

3
Section 8-201(k)(6) provides for an appeal of an order entered under that section
to the Court of Appeals. See also Arrington v. State, 411 Md. 524, 544 (2009)
(concluding that subsection (k)(6) provides “a direct right of appeal to [the Court of
Appeals], which does not require a litigant to petition for certiorari”); Maryland Rule 8-
132 (providing for a transfer of an appeal improperly taken).

4
(2009). Accordingly, the Court vacated the judgment and remanded the case with

instructions for the court to order the State to file an answer to Appellant’s petition. Id. at

734-35.

The circuit court issued an order to that effect on September 14, 2009, and the

court subsequently held a hearing on July 16, 2010, ultimately ordering that DNA testing

be conducted. On August 2, 2010, Appellant received a letter from his attorney at the

University of Baltimore’s Clinical Law Offices informing him that the evidence in his

case had been sent to the lab for DNA testing.

Approximately seven months later, however, on March 15, 2011, Appellant’s

attorney sent a letter to the circuit court with an update on the status of the DNA testing.

The letter stated:

In a letter dated July 21, 2010, I informed Your Honor, that the cuttings
from socks had been received by The Bode Technology Group (TBTG) in
Lorton, Virginia. TBTG completed DNA testing on the cuttings from the
socks in October 2010. After examining the DNA results and consulting
with the Baltimore City Crime Laboratory, it was determined that the
cuttings came from the incorrect pair of socks. A further search determined
that the socks Mr. Simms requested DNA testing for had been destroyed on
October 23, 2000.

(Emphasis added). The letter advised that the State had filed (1) an affidavit from

Sergeant Larry Bazzle—Custodian of Records for Evidence Control Unit Policies,

Procedures and Protocols—confirming that the items were destroyed on October 23,

2000 pursuant to the then-applicable protocols; and (2) the evidence control unit’s chain

of custody reports for the items, which reflected destruction of the items. Appellant’s

5
attorney mailed a similar letter to Appellant on March 16, 2011, advising him of the

destruction of the evidence and notifying him that “there is nothing further that can be

done in your case regarding DNA.” On September 28, 2011, the case was closed.

C. Petition for Writ of Habeas Corpus

On August 1, 2011, Appellant filed a pro se petition for writ of habeas corpus,

arguing that he was denied due process and equal protection of the law by the State’s

destruction of the DNA evidence admitted at trial, which, if tested for DNA under the

new STR testing method, would have exonerated him from his wrongful conviction.

Specifically, Appellant contended:

This Petitioner has been denied his only opportunity to have this
evidence tested for DNA that would exonerate him from this wrongful
conviction after years of litigation in the Maryland Court system. The
destruction of this evidence has “Prejudice[d]” this Petitioner when
“identity” was the main issue at trial;. [sic] The Petitioner sought for years
to prove that the clothing found outside his Aunt’s House in a trashbag did
not belong to him, and was never worn by him. The clothing that the State
alleged was worn by the perpetrator of the crime.
Petitioner has always had a degenerative skin disease on both legs
which cause’s [sic] his skin to flake off, and crack that would cause slight
bleeding around his ankles sometimes, that is why DNA testing was
critical. The new “STR DNA Testing” of the material collected at the
crime scene and clothing found in the trash bag would have supported
Petitioner’s contention of innocence and that someone other then [sic] this
Petitioner murdered the deceased.

Citing Arizona v. Youngblood, 488 U.S. 51 (1988), Appellant maintained that the State

destroyed this evidence in bad faith, specifically pointing to the timing on the chain of

custody report, which indicated that the State destroyed the DNA evidence while his

petition for post-conviction relief was pending. The State, according to Appellant, also
6
destroyed the evidence without notifying Appellant, his attorney, or the court. Appellant

also maintained “his actual innocence of the crime he was wrongfully convicted of by a

jury” and argued that had the DNA evidence not been destroyed, the DNA testing would

have demonstrated that his conviction was wrongful.

On August 18, 2011, the circuit court issued an order that the State show cause

why the writ should not issue and to file a response. The State filed an answer to the

order to show cause on October 5, 2011, arguing that questions of guilt or innocence

cannot be raised in a habeas proceeding; that the State had no duty to preserve the

evidence in accordance with protocols applicable before 2001; and that, in any event, the

destruction of only “potentially useful” evidence cannot qualify as destruction of

evidence in bad faith. Without holding a hearing, on October 12, 2012, the circuit court

filed an order and accompanying memorandum denying Appellant’s petition for writ of

habeas corpus.

In its memorandum, the court first concluded that a claim of actual innocence

cannot be raised in a petition for writ of habeas corpus and declined to address this

contention. The court then concluded that Appellant “failed to show that the State acted

in bad faith in failing to preserve potentially useful physical evidence related to [his]

criminal case” and that his “due process rights have not been violated under the standard

set forth by Youngblood, 488 U.S. 51 (1988).” This appeal ensued.4 Appellant presents

4
On May 29, 2013, this Court transferred the instant appeal to the Court of Appeals
(continued . . . )
7
one issue for our review: “Whether the trial court erred when it denied Writ of Habeas

Corpus, ruling that Appellant was not denied due process rights by the State’s destruction

of evidence that was court-ordered for DNA testing.”

DISCUSSION

The State has filed a motion to dismiss this appeal, arguing that Appellant does not

have a right to appeal from the circuit court’s denial of his petition for writ of habeas

corpus.5 Appellant counters that although his pleading was captioned as a “writ for

habeas corpus,” this Court should liberally construe his pleading as a petition for writ of

actual innocence. We agree with the State that Appellant does not have a right to appeal

from the habeas corpus petition filed in this case and that the petition cannot be liberally

construed as one for writ of actual innocence as to permit our review of the merits.

pursuant to Maryland Rule 8-132 believing the appeal to fall under CP § 8-201 because it
sought relief following the July 24, 2009, remand. The Office of the Public Defender
thereafter entered an appearance on Appellant’s behalf (although not formally filed until
March 27, 2014). On December 12, 2013, counsel for both parties filed a joint motion to
transfer the case back to this Court, agreeing that the issues raised in the habeas corpus
petition relate to due process and actual innocence and do not fall under CP § 8-201. On
December 12, 2013, the Court of Appeals transferred the instant appeal back to this
Court.
5
The State also argued that this Court could dismiss the instant appeal due to
Appellant’s failure to provide an adequate record, as the transcripts were not included and
no record extract was prepared. On April 4, 2014, Appellant filed a motion to correct the
record to include the transcripts, which was unopposed and granted by this Court on
April 7, 2014. Therefore, we will not dismiss the appeal on the ground that Appellant
failed to provide an adequate record.

8
 A. Limited Right to Appeal the Denial of a Petition for Writ of Habeas Corpus

A writ of habeas corpus—meaning “that you have the body” in Latin—is

“employed [to cause the detainer] to bring a person before a court, most frequently to

ensure that the person’s imprisonment or detention is not illegal.” Black's Law Dictionary

(9th ed. 2009). This common law writ was codified in 1809 and was later enveloped by

the protections of the Maryland Constitution in 1867. Olewiler v. Brady, 185 Md. 341,

345-46 (1945) (citations omitted). Specifically, the Maryland Constitution prohibits the

General Assembly from passing a law “suspending the privilege of the Writ of Habeas

Corpus.” Md. Const. art. III, § 55.

Today, the Maryland Code provides that any “person committed, detained,

confined, or restrained from his lawful liberty within the State for an alleged offense or

under any color or pretense or any person in his behalf, may petition for the writ of

habeas corpus to end the cause of the commitment, detainer, confinement, or restraint

may be inquired into.” Md. Code Ann. (1974, 2013 Repl. Vol.), Cts. & Jud. Proc.

(“CJP”), § 3-702(a). The circuit court then must immediately, upon production of the

petitioner and the cause of his detention, “inquire into the legality and propriety of the

confinement or detention” and release or discharge the petitioner if the court finds that

“the person is detained without legal warrant or authority.” CJP § 3-702(a)-(b); see also

Pollock v. Patuxent Inst. Bd. of Review, 358 Md. 656, 668 (2000) (explaining that “[t]he

relief under a petition for habeas corpus is not limited to the release” and that petitions

9
may be maintained if relief includes “the ordering of a proceeding or hearing which may

lead to the petitioner's release” (citations and internal quotation marks omitted)).

Although the right to seek a writ of habeas corpus is constitutionally protected, the

right to an appeal from the disposition of the habeas corpus petition is not. Indeed, the

Court of Appeals has “consistently held that the statutory provisions like . . . [CJP] § 12-

301 . . . generally authorizing an ‘appeal from a final judgment entered in a civil or

criminal case,’ do not apply to habeas corpus cases.” Gluckstern v. Sutton, 319 Md. 634,

652, cert. denied sub nom Henneberry v. Sutton, 498 U.S. 950 (1990). “An appeal may

be taken from a final order in a habeas corpus case only where specifically authorized by

statute.” Id. (citations omitted). The Court has identified four such statutes: (1) CP § 9-

110, which authorizes appeals in extradition cases; (2) CJP § 3-707, which authorizes an

application for leave to appeal in cases involving right to bail or allegedly excessive bail;

(3) CJP § 3-706, which provides for an appeal if a court issued a writ of habeas corpus

based on the unconstitutionality of the law under which the petitioner was convicted; and

(4) CP § 7-107,6 a provision in the UPPA, which permits an appeal if the writ was sought

under CP § 9-110 or for a purpose other than to challenge the legality of a conviction or

sentence. Id. at 652-53. Based on the legislative history of the UPPA discussed below,

the Court of Appeals has further concluded that the fourth provision, CP § 7-107, permits

appeals where the UPPA does not otherwise provide a remedy. Id. at 662.

6
This provision was formerly Article 27, § 645A of the Maryland Post Conviction
Procedure Act.

10
 The instant case involves neither extradition under CP § 9-110, right to bail or

allegedly excessive bail under CJP § 3-707, nor the unconstitutionality of the law

pursuant to which Appellant was convicted under CJP § 3-706. The only possible statute

under which we could entertain this appeal is CP § 7-107; therefore, we narrow our

discussion accordingly.

i. Legislative History of the UPPA

In Gluckstern v. Sutton, the Court of Appeals undertook a comprehensive review

of the legislative history of the UPPA and its relation to habeas corpus:

In 1958 the General Assembly enacted the Post Conviction Procedure Act,
Ch. 44 of the Acts of 1958, Code (1957, 1963 Cum. Supp.), Art. 27, §
645A et seq. That enactment, for the first time, created a statutory remedy
under which a prisoner could collaterally challenge[7] the conviction and
sentence, or defective delinquency determination, which led to his
incarceration. The Post Conviction Procedure Act also provided that any
party aggrieved by the final trial court order in a proceeding under that Act
could file an application for leave to appeal. Code (1957, 1963 Cum.Supp.),
Art. 27, § 645-I. The purpose of the Post Conviction Procedure Act was to
create a simple statutory procedure, in place of the common law habeas
corpus and coram nobis remedies, for collateral attacks upon criminal
convictions and sentences. Although for constitutional reasons the General
Assembly did not restrict the authority of judges to issue writs of habeas
corpus, it did in the Post Conviction Procedure Act legislate with regard to
appeals in habeas corpus cases.

Gluckstern, 319 Md. at 658 (emphasis added) (footnote omitted and internal citations

omitted). In other words, “[t]he purpose of the UPPA was to streamline ‘into one simple

7
“A collateral challenge, by its very nature, is a separate and distinct civil
procedure by which a defendant may challenge his or her conviction, sentence, or
imprisonment.” Ruby v. State, 353 Md. 100, 107 (1999).

11
statute all the remedies, beyond those that are incident to the usual procedures of trial and

review, which are . . . present[ly] available for challenging the validity of a sentence.’”

Douglas v. State, 423 Md. 156, 175 (2011) (alteration in original) (quoting State v.

Zimmerman, 261 Md. 11, 24 (1971)). Concomitantly, the UPPA restricted the once

broad right to file an application for leave to appeal in habeas corpus cases. Gluckstern,

319 Md. at 656-58. The statute’s original language “could have been construed to have

abolished habeas corpus appeals only where the purpose of the habeas corpus proceeding

was to challenge the original criminal conviction or sentence, or defective delinquency

proceeding, which had let to the incarceration”:

Hereafter no appeals to the Court of Appeals of Maryland in habeas corpus
or coram nobis cases, or from other common law or statutory remedies
which have heretofore been available for challenging the validity of
incarceration under sentence of death or imprisonment shall be permitted or
entertained, except appeals in such cases pending in the Court of Appeals
on June 1, 1958, shall be processed in due course.

Id. at 659 (quoting Code (1957, 1963 Cum. Supp.), Art. 27, § 645A(b)) (internal

quotation marks omitted). Subsequent amendments to the statute and interpretations by

the Court of Appeals, however, further qualified the right to appeal from a habeas corpus

petition.

ii. Interpretation and Application of CP § 7-107

The current reiteration of CP § 7-107 finds its derivation in the 1965 amendment

to the UPPA whereby the General Assembly “enumerate[d] certain classes of habeas

corpus cases in which an appeal to the Court of Appeals may be taken.” Gluckstern, 319

12
Md. at 662; see also Barr v. State, 101 Md. App. 681, 685 (1994) (stating that with the

1965 amendment, “the Legislature clarified that its abrogation of the right to seek

appellate review from the denial of habeas corpus applied only where the writ was

sought to challenge the legality of a conviction or sentence of death or imprisonment”

(citation omitted)). Section 7-107(b), as it now reads, provides:

(b)(1) In a case in which a person challenges the validity of confinement
under a sentence of imprisonment by seeking the writ of habeas corpus or
the writ of coram nobis or by invoking a common law or statutory remedy
other than this title, a person may not appeal to the Court of Appeals or the
Court of Special Appeals.

(2) This subtitle does not bar an appeal to the Court of Special Appeals:

(i) in a habeas corpus proceeding begun under § 9-110 of this article;
or

(ii) in any other proceeding in which a writ of habeas corpus is
sought for a purpose other than to challenge the legality of a
conviction of a crime or sentence of imprisonment for the
conviction of the crime, including confinement as a result of a
proceeding under Title 4 of the Correctional Services Article.

(Emphasis added).

The Court of Appeals has construed the statute to “grant[] a right of appeal in a

habeas corpus case not involving a challenge to the criminal conviction and sentence or

the Art. 31B proceeding which led to the prisoner’s confinement.” Gluckstern, 319 Md.

at 662; accord Skok v. State, 361 Md. 52, 63 (2000) (stating that subsection (b)(2)(ii)

“implicitly precludes appeals in [habeas corpus] cases challenging the legality of

convictions”). Moreover, based on the legislative history of the UPPA and its intention

13
of substituting the remedies afforded in habeas corpus actions, the Court has further

instructed that “[i]n situations where the Post Conviction Procedure Act d[oes] not

provide a remedy, and thus [i]s not a substitute for habeas corpus, the . . . statute

provide[s] no reason for restricting appeals in habeas corpus cases.” Gluckstern, 319 Md.

at 662.8

Applying CP § 7-107, Maryland appellate courts have entertained appeals from

rulings on habeas corpus petitions only when the petitioner challenged the legality of

confinement based on collateral post-trial influences and not the legality of the

underlying conviction or sentence, and where the UPPA did not otherwise provide a

remedy. Compare Green v. Hutchinson, 158 Md. App. 168, 174-75 (2004) (refusing to

permit an appeal from a court’s denial of inmate’s habeas corpus petition when the

inmate alleged ineffective assistance of counsel, errors in admission of evidence, and

improprieties relating to jury instructions and the counts submitted to the jury, as these

claims “went directly to the legality of [inmate’s] conviction”) with Md. Corr. Inst. v.

Lee, 362 Md. 502, 515 (2001) (permitting the prison’s appeal from the court’s grant of

inmate’s habeas corpus petition because the inmate “patently” challenged the prison’s

actions in implementing its policies with respect to her confinement, not the legality of

her sentence), Lomax v. Warden, Md. Corr. Training Ctr., 120 Md. App. 314, 323 (1998)

8
In fact, Maryland Rule 15-304 permits a court to treat a petition for writ of
habeas corpus as a petition under the UPPA “if the individual confined consents in
writing or on the record and the judge is satisfied that the post conviction proceeding is
adequate to test the legality of the confinement.”

14
(permitting the inmate’s appeal from the court’s denial of his habeas corpus petition

because the inmate challenged the constitutionality of the Governor’s pronouncement

regarding parole for inmates sentenced to life imprisonment, not the legality of his

sentence), Frost v. State, 336 Md. 125, 132 n.5 (1994) (permitting inmates’ appeal of the

court’s denial of their habeas corpus petitions because they challenged the Parole

Commissioner’s authority to rescind diminution credits, not the legality of their

convictions or sentences), and Gluckstern, 319 Md. at 662-63 (permitting the Patuxent

Institution’s appeal from the court’s grant of inmate’s habeas corpus petition because the

inmate claimed that the requirement of gubernatorial approval of his parole violated ex

post facto clauses of the Maryland Declaration of Rights and the United States

Constitution, not the legality of his sentence).

iii. CP § 7-107 Does Not Grant Appellant a Right to Appeal

Based on the foregoing, we conclude that CP § 7-107 does not grant Appellant a

right to appeal his habeas corpus petition because (1) he did not file his petition for writ

of habeas corpus for a purpose other than to challenge the legality of his conviction, and

(2) CP § 8-201 establishes the right for post-conviction relief if warranted and is

procedurally linked to the UPPA.

First, unlike Lee, Lomax, and Gluckstern, cases in which appeals were permitted

under CP § 7-107 where the habeas petitions did not attack the legality of a conviction or

sentence, Appellant does not contend that his confinement or its duration is illegal for

some collateral reason. Rather, Appellant asserts that the destruction of the DNA
15
evidence [after his direct appeal was final] rendered him unable to challenge the legality

of his conviction through post-trial collateral attack. As averred by Appellant in his

petition, if the State had not destroyed the evidence at issue, DNA testing would have

“exonerate[d] him from this wrongful conviction after years of litigation.” In our view,

the essence of these assertions speaks to Appellant’s desire—and his corresponding

inability—to challenge the legality of his convictions, not, for example, the terms of his

confinement. Therefore, Appellant did not seek a writ of habeas corpus for a purpose

“other than to challenge the legality of a conviction of a crime or sentence” as required

for an appeal to be permitted under CP § 7-107.

Second, CP § 8-201—the post-conviction DNA testing statute—shares the

UPPA’s purpose in affording post-trial collateral challenge to convictions and, in its

procedures governing DNA testing and appeals therefrom, CP § 8-201 is sufficiently

linked to the UPPA. We explain.

Before the turn of the century, Maryland law did not provide an avenue by which

individuals could seek DNA testing of evidence after conviction. See Dep’t of

Legislative Servs., Fiscal Note S.B. 15, at 2 (2001) (providing a fiscal review for the

initial Senate Bill introducing the post-conviction DNA testing statute).9 Indeed, the

Supreme Court has remarked that “[t]he dilemma [of] . . . how to harness DNA’s power

to prove innocence without unnecessarily overthrowing the established system of

9
The Fiscal Note itself includes a footer designating every page as “page 5”;
accordingly, our page references relate to the page numbers of the hard copy.

16
criminal justice” is a “task belong[ing] primarily to the legislature.” See Dist. Attorney’s

Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 62-63 (2009). In 2001, the

Maryland General Assembly enacted CP § 8-201 to enable “persons convicted of serious

crimes to pursue DNA testing of physical evidence, in the possession of the State, that

might prove exculpatory or mitigating.” Gregg v. State, 409 Md. 698, 701 (2009). Since

then, CP § 8-201(a)(1) has permitted such persons to file a petition “for DNA testing of

scientific identification evidence that the State possesses . . . and that is related to the

judgment of conviction.” A court is required to order DNA testing if it finds that “a

reasonable probability exists that the DNA testing has the scientific potential to produce

exculpatory or mitigating evidence relevant to a claim of wrongful conviction or

sentencing” and that “the requested DNA test employs a method of testing generally

accepted within the relevant scientific community.” CP § 8-201(d)(i)-(ii). The statute

also established that the State is required to preserve evidence related to a qualifying

crime that the State “has reason to know contains DNA material.” § 8-201(j)(1). The

Court of Appeals has clarified that this requirement applies prospectively from the date of

§ 8-201’s enactment (October 1, 2001), not retrospectively. Washington v. State, 424

Md. 632, 666-67 (2012).10

10
This holding concerned only the State's duty to preserve scientific identification
evidence, as the Court specifically stated that it “has no bearing on our previous case law
construing other provisions of the statute as having retroactive effect.” Washington, 424
Md. at 664 n.10; see supra footnote 1.

17
 Notably, in 2008, the General Assembly amended the statute to provide

procedures for relief, if warranted, for the State’s failure to produce scientific DNA

identification evidence after a court ordered testing of that evidence. See 2008 Laws of

Maryland, ch. 337 (S.B. 211). If the requested evidence was lost or destroyed after the

enactment of CP § 8-201, the court “shall hold a hearing to determine whether the failure

to produce evidence was the result of intentional and willful destruction.” CP § 8-

201(j)(3)(i); Washington, 424 Md. at 663.11 If the court finds that the State intentionally

and willfully destroyed the evidence, the court shall order a post-conviction hearing to be

conducted, and the post-conviction court holding that hearing must “infer that the results

of the postconviction DNA testing would have been favorable to the petitioner.” CP § 8-

201(j)(3)(ii)(1)-(2). Under § 8-201(k)(6), petitioners are permitted to take a direct appeal

of any order issued pursuant to § 8-201 to the Court of Appeals. Arrington v. State, 411

Md. 524, 544 (2009).

It is apparent from the plain language of the statute that, although not technically

part of the UPPA, CP § 8-201 shares its purpose. Like the remedies and processes set

forth in the UPPA, CP § 8-201 provides an additional way to challenge a conviction

collaterally in a manner beyond usual trial review. Moreover, CP § 8-201 links directly

11
The Court of Appeals has had several occasions to opine on the State’s inability to
locate or destruction of DNA evidence under § 8-201. See Washington v. State, 424 Md.
632 (2012); Blake v. State, 418 Md. 445 (2011) (Blake II); Arey v. State, 422 Md. 328
(2011) (Arey II); Horton v. State, 412 Md. 1 (2009); Blake v. State, 395 Md. 213 (2006)
(Blake I); Arey v. State, 400 Md. 491 (2007) (Arey I).

18
to the UPPA in that it directs post-conviction DNA testing cases proceed under the

UPPA. First, upon favorable DNA testing results, a court has the option of opening or

reopening a post-conviction proceeding under the UPPA.12 Second, if the court finds

after a hearing that the State intentionally and willfully destroyed a petitioner’s DNA

evidence, the court is required to open a post-conviction proceeding under the UPPA. CP

§ 8-201(j)(3). See, e.g., Arrington, supra, 411 Md. at 545 (concluding that when a post-

conviction proceeding is reopened pursuant to CP § 8-201, the UPPA’s waiver provisions

apply to that proceeding); Hawes v. State, 216 Md. App. 105, 129 (2014) (concluding

that CP § 8-201 is “tied” to the UPPA, because “it requires the circuit court to initiate a

postconviction proceeding or reopen a prior postconviction proceeding when DNA

testing of scientific identification evidence is favorable to the petitioner” and, accordingly

“the [UPPA] applies [to a postconviction proceeding initiated under § 8-201], including

12
We clarify that our conclusion that the UPPA and CP § 8-201 are “linked” is
solely in the context of determining whether CP § 7-107 grants a right to appeal from a
denial of a habeas corpus petition seeking relief from the State’s post-trial destruction of
his or her DNA evidence. Indeed, the Court of Appeals has recognized that in other
contexts, the UPPA and CP § 8-201 must be read separately. For example, in Gregg v.
State, the Court concluded that the procedural default provisions of the UPPA do not
apply to § 8-201 by relying on the language of § 8-201(b)—that a petition for DNA
testing may be brought “notwithstanding any other law governing postconviction relief.”
409 Md. 698, 716 (2009). Gregg stands for the proposition that the UPPA cannot bar
review of the merits under § 8-201, whereas our holding stands for the proposition that
UPPA’s § 7-107 bars an appeal from a habeas corpus petition when the petitioner
challenges post-trial destruction of DNA evidence.

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the final adjudication and waiver provisions of the [UPPA]”).13

To summarize, Appellant has availed himself of the right to petition for post-trial

DNA testing under CP § 8-201, which also provides the avenue for challenging the

State’s inability to locate the evidence or its destruction of the evidence. Although these

procedures may not provide relief to all petitioners,14 certainly the right to post-trial DNA

testing and corresponding right to appeal serves as a sufficient alternative to habeas relief.

We recognize Appellant’s insistence that his habeas corpus claims also relate to

his constitutional right to due process. In District Attorney’s Office for Third Judicial

District v. Osborne, the Supreme Court explained that individuals may have a liberty

interest under state law to demonstrate their innocence with new evidence like DNA

testing. 557 U.S. 52, 68-69 (2009). However, “[a] criminal defendant proved guilty after

a fair trial does not have the same liberty interests [protected by due process] as a free

13
By contrast, Maryland courts have considered a petition for writ of actual
innocence to be separate from the UPPA, as it is a part of the “usual procedures and
process of review.” See Douglas v. State, 423 Md. 156, 177 (2011) (concluding that § 8-
301, which governs petitions for writs of actual innocence, is separate from the UPPA);
accord Hawes, 216 Md. App. at 129 (contrasting § 8-301, the provision governing a
petition for writ of actual innocence, and § 8-201, the provision governing post-
conviction DNA testing, and emphasizing the Court’s decision in Douglas that § 8-301
“creates a procedure and affords remedies wholly separate and distinct from the UPPA”).
14
Because the State’s statutory duty to preserve evidence is given prospective effect,
Washington, supra, 424 Md. at 663, Appellant will have to demonstrate why he is
entitled to relief under § 8-201(j) if the evidence was destroyed prior to the statute’s
enactment. Washington, supra, 424 Md. at 663. Important for the purposes of this case,
however, is that Appellant would still have a right to appeal that conclusion under § 8-
201 to the Court of Appeals. Washington, supra, 424 Md. at 666-67.

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man[,]” because after a valid conviction, the presumption of innocence afforded during

trial disappears and the individual “has been constitutionally deprived of his liberty.” Id.

at 68-69 (citation and internal quotation marks omitted). Given this difference between

pre-conviction and post-conviction status, the Court recognized that an individual’s

interest in post-conviction relief is limited and that states must have flexibility in

establishing appropriate post-conviction procedures. Id. at 69. The question under due

process thereby becomes whether a state’s given framework “‘offends some principle of

justice so rooted in the traditions and conscience of our people as to be ranked as

fundamental,’ or ‘transgressed any recognized principle of fundamental fairness in

operation.’” Id. (quoting Medina v. California, 505 U.S. 437, 446 (1992)). We perceive

no inadequacy in CP § 8-201 that would impede Appellant’s ability to vindicate his state

right to seek DNA testing or to seek relief when the State has destroyed the evidence

intended to be tested.

In conclusion, Appellant sought redress for his inability to challenge his

conviction due to the State’s post-trial destruction of his DNA evidence. Initially,

Appellant correctly followed the procedures provided to him by CP § 8-201, and the

legislature has provided a direct right to appeal to the Court of Appeals an unfavorable

ruling under CP § 8-201. To allow an appeal in this case from the court’s denial of

Appellant’s habeas corpus petition as well as an appeal of Appellant’s CP § 8-201

petition for the same injury—the State’s destruction of DNA evidence—would be

duplicative and would thwart the legislature’s goal in enacting the statutory post-
21
conviction system to streamline rights and remedies. As noted above, Appellant was

afforded a hearing under CP § 8-201 on May 14, 2014 following notice that the State

destroyed his evidence, and his appeal of the subsequent denial of his petition is currently

pending before the Court of Appeals. Therefore, because CP § 8-201 is an avenue by

which Appellant could and did seek relief, and because that relief, if warranted, would be

a post-conviction proceeding under the UPPA, we conclude that CP § 7-107 does not

authorize this appeal.

B. The Principles of Liberal Construction

To avoid dismissal, Appellant, now through counsel, urges this Court to liberally

construe his pro se petition for writ of habeas corpus as a petition for writ of actual

innocence under CP § 8-301 in order to reach the merits. Even if we were to conclude

that Appellant’s petition could be liberally construed as one for a writ of actual

innocence, the result would not be a review of the merits, but a remand to the circuit

court. See, e.g., Simms, supra, 409 Md. at 731-33 (remanding, without reviewing the

merits thereof, to the circuit court to address the appellant’s “Motion for New Trial and

Release of Evidence for DNA Testing,” which, when construed liberally, satisfied the

pleading requirements of CP § 8-201); State v. Matthews, 415 Md. 286, 297-98 (2010)

(remanding, without reviewing the merits thereof, to the circuit court to treat appellant’s

“Motion for Appropriate Relief/New Trial” raising a witness’s recantation as a Petition

for Writ of Actual Innocence).

22
 Moreover, Appellant does not request that we remand to the circuit court for

consideration of the petition as one for writ of actual innocence, and we are otherwise

hesitant to do so. The circuit court did not rule on an actual innocence issue because it

was “not properly raised in his current Petition for Writ of Habeas Corpus[,]” citing

Ricail v. Warden of Maryland House of Correction, 210 Md. 664, 665-66 (1956), for the

proposition that a “[p]etitioner cannot make use of habeas corpus to offer evidence of an

alibi or other proof of innocence.” This precept has not been altered by recent case law.

Although we generally liberally construe pleadings filed by pro se litigants, in this

context, the liberal construction of a habeas petition as one also for a writ of actual

innocence would permit and encourage what this principle prohibits. For that reason, we

decline to extend and apply the liberal construction principle in this manner. Moreover,

this decision does not foreclose any of Appellant’s rights; without commenting on the

potential merit, we note that if Appellant wishes to pursue his claim of actual innocence,

Appellant may file a Petition for Writ of Actual Innocence at any time. CP. § 8-301(a)

(2008 Repl. Vol. & Supp. 2013).

APPEAL DISMISSED;
COSTS WAIVED.

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