Pro Se Petitions and the Upcoming Coyle v. State Argument

By Steve Klepper (Bluesky @mdappeal)

Last week saw an unusual order from the Supreme Court of Maryland’s petition docket. In Feng v. Chen, the Court entered a GVR (grant, vacate, and remand) order on a pro se petition challenging the Appellate Court’s dismissal of an appeal when the appellant failed to order all circuit court transcripts.

Through the GVR order, the Court drew attention to a new program to aid pro se appellants:

Subsequent to the Appellate Court’s dismissal order, the Administrative Office of the Courts has initiated a program pursuant to which funds may be available for preparation of transcripts in certain appeals. It is not clear whether the program would apply in this case …. [T]his case is remanded to the Appellate Court for a determination of whether the newly created program established to provide payment for transcripts for qualifying self-represented litigants is able to cover the cost of the petitioner’s transcripts.

Feng was not the only successful pro se petition in 2024. In a pair of orders (here and here) the Court issued GVR orders in favor of an inmate, holding that the Appellate Court erred in administratively closing one appeal and in striking an application for leave to appeal.

In other words, pro se petitions receive real consideration in the Supreme Court of Maryland.

That point is salient in an appeal the Court is hearing next week, Coyle v. State. As Chris Mincher covered in a prior post, the Appellate Court split two-to-one whether the petitioner had a claim for ineffective assistance of counsel when his appointed attorney missed the filing deadline because of a traffic jam on the way to the courthouse. The questions presented are:

1) When the Office of the Public Defender appointed counsel to Petitioner and approved of assigned counsel’s determination that a petition for writ of certiorari should be filed, was Petitioner entitled to the effective assistance of counsel in filing such a petition?
2) Must prejudice be presumed when, due to ineffective assistance of counsel, Petitioner was denied his right to file a petition for writ of certiorari and did the post-conviction court err in holding that he must establish that the petition would have been granted?

Coyle v. State presents a particularly compelling case because, although there is no right to counsel at the certiorari stage in Maryland, the Office of the Public Defender had approved the petition.

But what if the petitioner had privately retained counsel? Would his rights really be less?

I submit no. Although Maryland has recognized no right to counsel at the certiorari stage, an appellant still has a right to file a pro se petition. Pro se petitions have lower odds of success, but those odds are not zero. Further, if a petition is filed within the deadline, the petitioner can seek leave to supplement the petition, including through counsel.

When an attorney—whether appointed or retained—agrees to file a petition, the client has a right to rely on that agreement and to refrain from filing a pro se petition. As we learned in law school, a person can assume a duty that does not otherwise exist. If I see someone drowning in a public pool, they have no legal right to assistance from me unless I assumed such a duty. If I pushed them into the pool or agreed to serve as a lifeguard, then I assumed a legal duty, and the drowning person has a right to help from me.

The postconviction petitioner does not have the right to a winning petition, just a right to seek review, whether pro se or with counsel’s assistance. There is inherent dignity and value in an opportunity to ask the Supreme Court of Maryland to review a case. Clients of course want to win, but they also want to be heard.

The remedy is easy. Postconviction courts grant a new opportunity to note a direct appeal when a lawyer does not comply with a client’s request to do so—without requiring a showing the appeal would have succeeded. I hope that, as a natural and logical extension of that rule, the Court holds that the remedy for an attorney’s failure to file a timely certiorari petition, after agreeing to file one, is for the postconviction court to order a new deadline for filing a certiorari petition.