Supreme Court Summarily Reverses Maryland Court of Appeals in Kulbicki

By Steve Klepper (Twitter: @MDAppeal)

Today the Supreme Court of the United States issued a per curiam ruling summarily reversing the four-to-three Court of Appeals decision in Kulbicki v. State, 440 Md. 33 (2014). Interestingly, the Supreme Court never issued an order calling up the state court record (see, for instance, the docket in Martinez v. Illinois) – even though Maryland is not a state where the record is available online.

It took the Supreme Court just 4½ pages to unanimously reverse. It found that the Court of Appeals majority opinion applied the Strickland ineffective-assistance-of-counsel “standard in name only.” The per curiam opinion noted that “Kulbicki abandoned his claim of ineffective assistance with respect to [ballistics] evidence, but the high court vacated Kulbicki’s conviction on that ground alone.” According to the Supreme Court, trial counsel “did not perform deficiently by dedicating their time and focus to elements of the defense that did not involve poking methodological holes in a then-uncontroversial mode of ballistics analysis,” notwithstanding that the mode of analysis later fell out of favor.

So what now? It looks like the Court of Appeals has one more case on its docket for this term. You see, as Brad McCullough discussed at the time, the Court of Appeals’ 2014 opinion, by resting its ruling on the ballistics issue, did not reach the questions on which the court had granted certiorari. The composition of the Court likely will be different on remand. Although Chief Judge Barbera and Judge Watts will remain recused from the case, it is my understanding that retired Judge John C. Eldridge, who cast the deciding vote, has resigned his commission and is no longer eligible for recall.

Michael Wein’s August 2014 post, previewing the Court of Appeals’ decision before the surprise ballistics ruling, is here, and his June 2015 post regarding the relisting of the state’s petition is here. And, since I’ve made my share of dead-wrong predictions, I’ll point out that I’ve long predicted per curiam reversal, though I expected the Supreme Court at least to order up the state record.



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