On remand from SCOTUS, Maryland Court of Appeals summarily affirms CSA in Kulbicki

By Steve Klepper (Twitter: @MDAppeal)

We have a breaking update in our coverage of the long-running Kulbicki case. Ten weeks ago, the Supreme Court summarily reversed the decision of the Court of Appeals of Maryland in Kulbicki v. State, 440 Md. 33 (2014), which had found ineffective assistance of counsel on grounds that the Court of Appeals raised sua sponte. I wrote at the time:

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.

The Court of Appeals will not be reaching those issues, after all. Without a recorded dissent, the court today issued a one-page order that “a majority of the Court concurring … the judgment of the Court of Special Appeals be, and it is hereby, affirmed summarily for the reasons explained in its opinion.”

Because Chief Judge Barbera is recused in Kulbicki, Judge Lynn Battaglia signed the order as the senior judge. That’s notable, because Judge Battaglia authored the majority opinion that the Supreme Court reversed. The order denied Kulbicki’s motion for supplemental briefing but was “without prejudice to Petitioner pursuing his announced intent to file a petition for writ of actual innocence.”