(The below is for post conviction attorneys and for inmates seeking information or materials regarding post convictions.  It was written by Professor Byron L. Warnken.  If your friend or loved one is seeking a post conviction lawyer, please call Warnken, LLC at 410-262-8341.  We would be happy to explain your situation in plain english.  Thanks for visiting our website.)

Uniform Post Conviction Procedure Act & Md. Rules
A.    Applicability:  The Uniform Post Conviction Procedure Act (UPCPA) applies to individuals who are incarcerated, on parole, or on probation.  Md. Crim. Proc. Code Ann. §§ 7-101 & 7-301 & Md. Rules 4-401 to 4-408.  If the individual is no longer incarcerated, on parole, or on probation, the individual may accomplish the same thing through a petition for a writ of error coram nobis, by demonstrating that which a post conviction petitioner must demonstrate, plus the fact that the individual is suffering, or will suffer, severe collateral consequences as a result of the conviction. Parker v. State, 160 Md. App. 672 (2005); Obomighie v. State, 170 Md. App. 708 (2006) (holding that once petitioner’s term of probation ends, the circuit court no longer has jurisdiction under the UPCPA to grant post conviction relief despite that the petition was filed while the defendant was still on probation).
B.    Petition for post conviction relief and motion to reopen closed post conviction proceedings
1.    Statute of limitations
a.    Non-death penalty post conviction proceedings:  For inmates sentenced after September 30, 1995, petitions for post conviction relief must be filed within ten years of the sentence imposition, unless the court rules otherwise for good cause shown.  Md. Crim. Proc. Code Ann. § 7-103(b).
b.    Death penalty post conviction proceedings:  For inmates sentenced to death, petitions for post conviction relief must be filed within 210 days (or later for good cause shown) after the final Supreme Court proceeding or the waiver of such proceeding.  Md. Crim. Proc. Code Ann. § 7-201.
c.    Motions to reopen closed post conviction proceedings:  There is no statute of limitations on filing motion(s) to reopen closed post conviction proceeding(s).
2.    Number of petitions:  From 1958 to 1986, inmates could file an unlimited number of petitions for post conviction relief.  Since July 1, 1986 to October 1, 1995, inmates could file two petitions for post conviction relief.  The two petition limit was judicially interpreted as no applying retroactively; regardless of the number of post conviction petitions filed before July 1, 1986, inmates had the right to file two post conviction petitions after the effective date of the 1986 amendment.  Mason v. State, 309 Md. 215, 219 (1987).  Since October 1, 1995, inmates have been limited to one petition for post conviction relief.  The COA determined that the 1995 amendment applies retroactively.  Grayson v. State, 354 Md. 1, 9 (1999).  Thereafter, inmates may file a motion to reopen a closed post conviction petition, if it is in the interests of justice.  Md. Crim. Proc. Code Ann. §§ 7-102(a) & 7-104.
3.    Venue:  The petition shall be filed in the circuit court of the county where convicted.  Md. Rules 4-401 & 4-402; Md. Crim. Proc. Code Ann. § 7-102(a).  See Williams v. State, 292 Md. 201 (1981), McMannis v. State, 311 Md. 534 (1988) (jurisdiction is determined by where the defendant is “in custody” at the time of filing a post conviction petition.  “In custody” entails confinement, probation, parole or detainer by the State of Maryland); accord Barrow v. State, 318 Md. 644 (defendant serving a Maryland sentence in another state is in Maryland’s custody for the purposes of jurisdiction under the Uniform Post Conviction Procedure Act).
4.    General petition provisions
a.    Petitioner data:  The petition must include the inmate’s name, place of confinement, DOC #, and whether able to retain counsel and pay costs. Md. Rule 4-402 (a)(1).
b.    Offense data:  The petition must include the date and place of the crime, the offense(s) for which convicted, and the sentence(s) received.  Md. Rule 4-402 (a)(2).
c.    Post conviction data:  The petition must include the alleged error(s), the facts, prior post conviction proceeding(s), and the results of prior post conviction proceeding(s), and the relief sought in the petition.  Md. Rules 4-402(a)(3)-(c).
d.    Basis of allegation(s):  The inmate may allege that the sentence and/or judgment violates the United States Constitution, Maryland Constitution, or Maryland laws as long as the allegation being raised has neither been “finally litigated” or “waived”.  Md. Crim. Proc. Code Ann. § 7-102.  The inmate may argue that there was ineffective assistance of trial and/or appellate counsel.  The UPCPA is a procedural act only, and it does not grant new substantive rights.  Wilson v. State, 284 Md. 664 (1979).
e.    Amendment:  The petition may be freely amended.
f.    Response:  The State shall file a response within 15 days of notice of filing or later if the court permits.  Md. Rule 4-404.
g.    Withdrawal:  The petition may be withdrawn, without prejudice, at any time before the date of the hearing, but only for good cause shown thereafter.  Md. Rule 4-405.
5.    Limitations on what can be litigated
a.     Cannot have been finally litigated:  An allegation becomes “finally litigated” when a ruling on the merits of the allegation has been issued by the CSA or COA.  Md. Crim. Proc. Code Ann. §§ 7-102 & 7-106(a); State v. Hernandez, 344 Md. 629 (1996) (issue is not finally litigated merely by being included in an application for leave to appeal that was denied).
b.    Cannot have been waived:  To proceed with a post conviction petition, the allegation the inmate seeks to raise cannot have been waived by failing to raise the issue earlier.  The petition must demonstrate non-waiver.  Md. Crim. Proc. Code Ann. § 7-102(b).  The petition shall include a statement of facts and special circumstances to show that the allegations of error have not been waived.  Md. Rule 4-402(a)(7).
(1)    Knowing and intelligent waiver: For fundamental rights, a knowing and intelligent waiver is required.
(2)    Waiver through inaction: For non-fundamental rights, waiver operates through inaction. Failure to raise the allegation creates a presumption of a knowing and intelligent waiver, which can be excused by special circumstances.  See State v. Gutierrez, 153 Md. App 462 (2003), State v. Romulus, 315 Md. 526, 539-40 (1989).
(3)    Special circumstances: Waiver of an allegation of error shall be excused if special circumstances exist. The petitioner has the burden of proving that special circumstances exist.  Walker v. State, 343 Md. 629 (1996) (claim of error with jury instructions does not require a knowing and intelligent waiver), Wyche v. State, 53 Md. App. 403 (1983) (fundamental rights require a knowing, intelligent and voluntary waiver; non-fundamental rights may be waived by inaction), State v. Torres, 86 Md. App. 560 (1991) (judge determines is the error alleged involves a fundamental error or not).
6.    Ineffective assistance of counsel:  A collateral proceeding is usually the first opportunity to litigate serious attorney error of trial counsel.
a.    Post conviction proceeding is usually the first opportunity:  Post conviction proceedings are the appropriate forum for raising ineffective assistance of counsel claims.  Perry v. State, 344 Md. 204, 227 (1996); Davis v. State, 285 Md. 19, 36 (1979), Bratt v. State, 62 Md. App. 535 (1985). The issue of a defendant’s trial counsel’s incompetence could not have been litigated in the defendant’s conviction and sentencing proceeding because ineffective assistance of counsel could not have been resolved in the very proceeding in which counsel was ineffective.  Ware v. State, 360 Md. 650, 706 (2000); Walker v. State, 338 Md. 253, 262, cert. denied, 516 U.S. 898 (1995); Curtis v. State, 284 Md. 132, 137 n.1 (1978) (counsel cannot raise his or her own ineffectiveness). Because competency of trial counsel cannot be litigated at trial, “competency of counsel may be raised for the first time under post conviction procedures.”  Davis v. State, 285 Md. 19, 36 (1979); Flansburg v. State, 103 Md. App 394 (1995) (if defendant is entitled to counsel, he/she is entitled to effective counsel); Mosley v. State, 378 Md. 548 (2003).
b.    Strickland two-prong test:  Under Strickland v. Washington, 466 U.S. 668 (1984), ineffective assistance of counsel requires a two-prong analysis.  See State v. Harris, 303 Md. 685 (1985).  To establish ineffective assistance of counsel, a petitioner must demonstrate (1) that, under the “performance prong,” counsel’s performance was deficient, i.e., counsel committed serious attorney error, and (2) that, under the “prejudice prong,” counsel’s deficient performance prejudiced the defense.  Wiggins v. State, 352 Md. 580, 602 (1999); Oken v. State, 343 Md. 256, 283 (1996); Williams v. State, 326 Md. 367, 373 (1992).
(1)    Objective standard of reasonableness: To meet the requirements under the “performance prong” and demonstrate “serious attorney error,” a petitioner must show that the acts or omissions of counsel were the result of unreasonable professional judgment and that counsel’s performance fell below an objective standard of reasonableness considering prevailing professional norms.  Cirincione v. State, 119 Md. App. 471, 484 (1998).
(2)    Performance component: The “performance component” requires a “show[ing] that counsel’s performance was deficient, [and] counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment.”  Strickland, 466 U.S. at 687.
(3)    Prejudice component: To meet the requirements under the “prejudice prong,” a defendant must show a “substantial or significant possibility” that, but for the serious attorney error, the result would have been different.  Bowers v. State, 320 Md. 416, 426 (1990).  Only in narrowly-defined instances, such as the complete breakdown of the adversarial process, may prejudice be presumed. United States v. Cronic, 466 U.S. 648 (1984). See Walker v. State, 391 Md. 233 (2006) (holding that defense counsel’s conduct at trial in light of the defendant’s absconding trial did not fall within the narrow Cronic exception warranting a presumption of prejudice); State v. Peterson, 158 Md. App. 558 (2004).
c.    Failure to file motion for modification or reduction of sentence:  When counsel fails to file a motion for modification after Defendant requests counsel to do so, the defendant is entitled to the post-conviction remedy of being allowed to file a belated motion for modification of sentence.  Further, the defendant need not present any other evidence of prejudice to satisfy Strickland because deficient act was prejudicial because it resulted in the loss of opportunity to have a reconsideration of sentence hearing.  Matthews v. State, 161 Md. App. 248 (2005).
7.    DNA:  In homicide and sexual offense cases in which criminal agency is an issue, the defendant may file a petition for DNA testing of evidence in a proper chain of custody, not previously tested under the method requested, which is accepted within the relevant scientific community, if there is a reasonable probability of exculpatory evidence relevant to a claim of wrongful conviction.  The State shall preserve evidence that it has reason to believe contains DNA material for the length of the sentence.  The court shall dismiss the petition if the results are unfavorable to the petitioner.  If the results are favorable to the defendant, the court shall initiate a post conviction proceeding or reopen a closed post conviction proceeding.  Md. Crim. Proc. Code Ann. § 8-201.
8.    Not finally litigated or waived:  An issue is not finally litigated or waived if the Supreme Court or a Maryland appellate court holds that the United States Constitution or Maryland Constitution imposes a procedural or substantive standard not previously recognized, which was intended to apply retroactively.  Md. Crim. Proc. Code Ann. § 7-106(c).   Waiver in the context of due process violations must be intelligently and knowingly made, or the petitioner must prove special circumstances as to why petitioner failed to allege the error in prior proceedings.  See Harris v. State, 160 Md. App. 78 (2004) (clarifying that the “knowing and intelligent” standard for waiver does not apply to tactical decisions made by a competent attorney or to legitimate procedural requirements, as in such situations, the definition of “waiver” is governed by case law, statutes, or rules).
C.    Hearing
1.    Post conviction petition – Md. Rule 4-406; Md. Crim. Proc. Code Ann. § 7-204(a)
a.    Non-death penalty cases:  Petitioner is entitled to a prompt hearing on the petition for post conviction relief.
b.    Death penalty cases:  Petitioner is entitled to a hearing within 90 days after the petition is filed.
2.    Motion to reopen:  Petitioner is not entitled (it is discretionary) to a hearing on a motion to reopen a closed post conviction proceeding.  Offutt v. State, 44 Md. App. 670 (1980) (when the record is unclear, the complete facts can be brought out in post conviction procedures).  A post conviction court is not required to provide a detailed supporting statement or memorandum when ruling on a motion to reopen a closed post conviction proceeding.  Gray v. State, 388 Md. 366 (2005).
3.    Presence at hearing:  The inmate has the right to be present at any hearing.  Md. Crim. Proc. Code Ann. 7-108(a); Md. Rule 4-406.
4.    Counsel
a.    Post conviction petition:  If indigent, the inmate is entitled to counsel at State’s expense.  Md. Crim. Proc. Code Ann. § 7-108(a).
b.    Motion to reopen
(1)    No right to counsel:  Granting counsel for indigent inmate is discretionary.  Md. Crim. Proc. Code Ann. § 7-108(b)(1).
(2)    Post convicting post conviction counsel:  A post conviction petitioner has a right to reopen a petition upon a showing that petitioner’s post conviction counsel rendered ineffective assistance during the post-conviction proceedings.  U.S.C.A Const. Amend. 6, Stovall v. State 144 Md. App. 711 (2002).
5.    Judge:  The hearing judge on the petition shall not be the trial judge, unless the parties agree otherwise.  Md. Rule 4-406, Pfoff v. State, Md. App. 296 (1991).
6.    Evidence:  The rules of evidence are relaxed and the evidence may include, with the court’s permission, affidavit, deposition, testimony, or other forms of evidence.  Md. Rule 4-406.
D.    Disposition:  In post conviction proceedings, the court shall make a written order (including on the record, if transcribed) as to each alleged error, which shall be provided to the petitioner, the petitioner’s counsel, and the State.  In a death penalty case, the court must issue its written decision within 90 days of the hearing.  If the court fails to issue an opinion timely, a party may file a Petition for a Writ of Mandamus in the Court of Appeals.  Md. Rule 4-407; Md. Crim. Proc. Code Ann. § 7-204.  An order declining to reopen a closed post conviction need not be accompanied by an opinion.
E.    Appeal:  The non-prevailing party may make application for leave to appeal to the CSA.  Md. Rule 4-408; Md. Crim. Proc. Code Ann. § 7-109(a).  The COA lacks certiorari jurisdiction over a decision of the CSA granting or denying an Application for Leave to Appeal.