Maryland’s Discretionary Standard for Applications for Leave to Appeal

By Steve Klepper (Twitter: @MDAppeal)

Maryland has an unusual procedure for appeals in post-conviction cases. The losing party, whether the State or the criminal defendant, must apply for leave to appeal. Our intermediate appellate court, the Court of Special Appeals (COSA), has unreviewable discretion whether to grant merits review of the decision. Our high court, the Court of Appeals, lacks statutory authority to review COSA’s discretionary decision to deny merits review.[1] No rule, statute, or decision tells us what standard governs that exercise of discretion.

Other types of appeals—including probation revocation, pretrial bail, inmate grievances, and guilty pleas—are subject to the same application procedure.

Differences Between Federal and State Procedure

Although Maryland’s application procedure resembles the “certificate of appealability” in federal post-conviction practice,[2] there are key differences. When a U.S. District Court grants post-conviction relief, the government has a right to appeal. When denying post-conviction relief, the U.S. District Court decides whether to grant a certificate of appealability. A U.S. Court of Appeals, or a single appellate judge, also may allow the appeal. An unsuccessful habeas petitioner may then ask the U.S. Supreme Court, in its discretion, to grant certiorari to review the denial of a certificate of appealability.

A federal statute defines the standard: whether “the applicant has made a substantial showing of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2). The Supreme Court has held that the “standard is met when reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner,” and “does not require a showing that the appeal will succeed.”[3]

In Maryland post-conviction cases, however, there is no standard or case law informing applicants what standard they must meet to invoke COSA’s discretion. Rule 8-204(b)(3) requires that an “application shall contain a concise statement of the reasons why the judgment should be reversed or modified and shall specify the errors allegedly committed by the lower court.” But it says nothing about COSA’s discretion not to reach the merits of such errors.

This silence contrasts with the statutory standard for the Maryland Court of Appeals to grant certiorari review: whether review “is desirable and in the public interest.”[4] Reinforcing that standard, Rule 8-303(b)(1)(G) requires a petition to include a “particularized statement of why review of [the petition’s] issues by the Court of Appeals is desirable and in the public interest.” When the Court of Appeals makes a discretionary decision to deny review—other than, for example, untimeliness or lack of jurisdiction—its orders typically state that the petition is “DENIED as there has been no showing that review by certiorari is desirable and in the public interest.”

When COSA denies an application in its discretion, the typical order identifies the three-judge panel and states: “The application … having been read and considered be, and is hereby, denied.” There is no indication what standard governed that discretionary consideration.

The Origins of Discretionary Review

The lack of a statutory standard reflects that the appellate courts, not the General Assembly, decided that a discretionary standard governs applications. Decades before COSA’s creation, a 1945 statute created a right to appeal to the Court of Appeals in post-conviction cases. A 1947 statute replaced that right to appeal with the application for leave to appeal. Despite that change, the Court of Appeals, when it denied applications, continued to issue opinions explaining why the applicant was not entitled to relief. In a 1953 law review article, Chief Judge Charles Markell explained that the 1947 amendment “apparently was intended to lighten the duties of the Court of Appeals in connection with habeas corpus appeals, but in practice the only change in the great majority of cases is that the disposition is ‘application denied,’ instead of ‘order affirmed,’”[5] because the judges believed that the applications still triggered the Maryland Constitution’s requirement that “in every case an opinion, in writing, shall be filed.”[6]

In creating COSA, in conjunction with a 1966 constitutional amendment authorizing intermediate appellate courts, the General Assembly gave COSA some discretionary jurisdiction. In misdemeanor cases in which the circuit court exercised appellate jurisdiction, COSA could issue a writ of certiorari if “upon petition of any party that a review is necessary to security uniformity of decision, as where the same statute has been construed differently by the courts of two or more circuits, or that there are other special circumstances rendering it desirable and in the public interest that the case should be reviewed.”[7] In transferring the Court of Appeals’ application docket to COSA, however, the 1966 statute specified no discretionary standard for deciding applications.

Early in COSA’s existence, it continued to deny applications on the merits, rather than asserting a discretionary power not to reach the merits. COSA’s first reported opinion denied a post-conviction application on the merits.[8]

Around 1973, when the General Assembly expanded COSA’s jurisdiction to include most civil cases, COSA stopped issuing reported opinions denying applications. Still, at least for a while, COSA continued to issue unreported opinions.[9] As late as 1977, shortly after Judge Charles Orth’s elevation from COSA to the Court of Appeals, he stated that COSA ordinarily issued an “opinion accompanying the denial.”[10]

By the 1990s, Court of Appeals decisions reflected that COSA’s practice was to issue simple denials.[11] The Court of Appeals held that it could grant certiorari when the CSA explained why it was denying an application, but not when COSA “ simply exercise[d] its discretionary authority not to entertain appeals.”[12]

Last year, in a decision rejecting constitutional challenges statutory restrictions on certiorari review, the Court of Appeals held in a footnote that the Maryland Constitution does not require COSA to issue written opinions when denying applications.[13]

The Difficulty of Meeting an Unknown Standard

So what standard does COSA apply when it reads, considers, and denies applications for leave to appeal? In a 2019 oral argument. Senior Judge Glenn Harrell, who sometimes sits on COSA application panels, asked an attorney: “Would it surprise you if you were told that staff attorneys work up a memorandum recommending a disposition and that they meet with the three-judge panel to discuss it before the three-judge panel makes its decision?”[14] In the likely event that COSA follows that process, we still do not know what standard the panel considers in making that decision.

The bar’s best educated guess has been that COSA’s standard is akin to the “desirable and in public interest” standard governing certiorari in the Court of Appeals.[15] In the context of discretionary review by the Court of Appeals.[16]Judge Harrell has long given the bar helpful guidance on what on what “desirable and in the public interest” means.

Still, it is not clear how a “desirable and in the public interest” standard fits with COSA’s review of applications. Although the Court of Appeals issues reported, precedential decisions when it grants certiorari, most COSA merits decisions are unreported and therefore not precedential or persuasive authority under Rule 1-104.

Whatever the standard is, the criminal defense bar has a rough time meeting it. I’ve reviewed COSA’s application docket for the 2020 Term. I count 103 applications filed through counsel; 97 after consolidating related applications; 83 after excluding dismissed or withdrawn applications; and 79 when excluding applications by the State, which had 75% (3/4) of its applications granted.

Among those 79 applications:

  • COSA summarily vacated in seven cases in which the State conceded that vacatur was appropriate, with most (five) involving requests for reconsideration of bail under Chief Judge Barbera’s March 2020 COVID orders;
  • COSA granted five applications (two by private counsel, three by the Office of the Public Defender); and
  • COSA issued 67 “read, considered, denied” orders (39 by private counsel, 28 by OPD).

The defense bar’s success rate was thus 15% (12/79) when counting cases in which the State agreed to vacatur, and just 7% (5/72) when counting only contested applications. Many of Maryland’s best and most experienced criminal appellate lawyers had a 0% success rate.

How COSA Can Help Applicants Help COSA

There is a straightforward way for COSA to give counsel guidance: a reported opinion denying an application. That opinion can announce the discretionary standard and, in explaining why the application does not meet the standard, give guidance for future applicants. Any time COSA wished to recalibrate or clarify the standard, or to issue different opinions for different categories of applications, it could repeat the process.

The beauty of COSA’s reporting procedures is that all 15 active judges would discuss the opinion and vote on whether to make it reported precedent binding all COSA panels. A reported opinion would give applicants and their counsel assurance that the same standard applied, regardless of which three judges decided the application.

From there, the Rules Committee could add a cross-reference to Rule 8-204(b)(3), directing applicants to COSA’s precedential guidance.

Such guidance would benefit COSA by telling applicants how they can best aid the review process. When a three-judge panel sifts through stacks of applications, its job will be easier if a greater percentage have followed that guidance. It also will be easier to fault applicants who don’t follow the court’s guidance.

COSA has made great strides in overall efficiency and transparency in recent years. In deciding applications for leave to appeal, however, COSA’s efficiency has increased, while its transparency has not. Because better guidance should translate into more easily decided applications, a reported opinion on the discretionary standard would aid both efficiency and transparency.


[1] Md. Code, Cts. & Jud. Proc. § 12-202; Mahai v. State, 474 Md. 648, 679 (2021) (“[W]e hold that CJ § 12-202 is not precluded by Article IV, § 14A of the Maryland Constitution. Thus, pursuant to CJ § 12-202, this Court lacks subject matter jurisdiction to review the Court of Special Appeals’ discretionary denial of an application for leave to appeal in a postconviction proceeding.”). By way of disclosure, I was counsel for an amicus in Mahai.This post draws on that amicus brief, but for the different purpose of explaining the origin of Maryland’s discretionary rule. This post reflects only my views.

[2] Fed. R. App. P. 22; 28 U.S.C. § 2253.

[3] Welch v. United States, 136 S. Ct. 1257, 1264 (2016).

[4] Md. Code, Courts and Judicial Proceedings § 12-203.

[5] Charles Markell, Review of Criminal Cases in Maryland by Habeas Corpus and by Appeal, 101 U. PA. L. REV. 1154, 1158 (1953).

[6] Md. Const., Art. IV, § 15.

[7] 1966 Md. Laws Ch. 12 (SB 74) (approved Mar. 23, 1966; effective Nov. 8, 1966). The CSA’s certiorari power, when the circuit court sat in an appellate capacity, reverted to the Court of Appeals in 1975. See 1975 Md. Laws Ch. 447 (HB 796) (approved Apr. 22, 1975).

[8] Brooks v. Warden, 1 Md. App. 1 (1967).

[9] COSA’s unreported pre-2015 opinions are not online or otherwise easily available.

[10] Moss v. Dir., Patuxent Inst., 279 Md. 561, 571 (1977) (Orth, J., dissenting) (“The position of the Court of Appeals is manifestly incongruous in that its reasoning does not serve to permit a review of a defective delinquent or post conviction proceeding when the application for leave to appeal is denied by the Court of Special Appeals, no matter what the ground stated in the opinion accompanying the denial.”).

[11] Sherman v. State, 323 Md. 310, 311 (1991).

[12] Grayson v. State, 354 Md. 1, 12 (1999).

[13] Mahai v. State, 474 Md. 648, 663 n.2 (2021) (“[Petitioner] additionally contends that the Court of Special Appeals’ practice to deny applications for leave to appeal with the simple statement indicating the petition for postconviction relief has been read, considered and denied is unconstitutional under Article IV, § 15, which states ‘an opinion, in writing, shall be filed” in every case heard by either this Court or an “intermediate court of appeal[.]’ Md. Const. art. IV, § 15. Because this is not a case on the merits, but instead an application for leave to appeal, the Court of Special Appeals denies the application by order as provided for under the Maryland Rules. Md. Rule 8-204(f) (‘On review of the application, any response, the record, and any additional information obtained pursuant to section (e) of this Rule, without the submission of briefs or the hearing of argument, the Court shall … deny the application  …. The Clerk of the Court of Special Appeals shall send a copy of the order disposing of the application to the clerk of the lower court.’).”

[14] Oral Arg., Conaway v. State, COA-REG-0069-2018 (Apr. 9, 2019), at 5:45–6:00.

[15] Marc A. DeSimone, Jr., Criminal Appeals in Maryland—The Defense Perspective, in Sandler, Levy & Klepper, Appellate Practice for the Maryland Lawyer: State and Federal 377, 380-81 (5th Ed. 2018).

[16] Hon. Glenn T. Harrell, Jr., Petitions for Certiorari—View from the Bench, in in Sandler, Levy & Klepper, Appellate Practice for the Maryland Lawyer: State and Federal 445(5th Ed. 2018).

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