Ch. 110                                    1995 LAWS OF, MARYLAND

petitioner, in a prior petition under this subtitle, or in any other proceeding actually
instituted by said petitioner, unless the failure to make such allegation shall be excused
because of special circumstances. The burden of proving the existence of such special
circumstances shall be upon the petitioner.

(2) When an allegation of error could have been made by a petitioner before
trial, at trial, on direct appeal (whether or not said petitioner actually took such an
appeal), in an application for leave to appeal a conviction based on a guilty plea, in any
habeas corpus or coram nobis proceeding actually instituted by said petitioner, in a prior
petition under this subtitle, or in any other proceeding actually instituted by said
petitioner, but was not in fact so made, there shall be a rebuttable presumption that said
petitioner intelligently and knowingly failed to make such allegation.

(d)     For the purposes of this subtitle and notwithstanding any other provision
hereof, no allegation of error shall be deemed to have been finally litigated or waived
where, subsequent to any decision upon the merits thereof or subsequent to any
proceeding in which said allegation otherwise may have been waived, any court whose
decisions are binding upon the lower courts of this State holds that the Constitution of
the United States or of Maryland imposes upon State criminal proceedings a procedural
or substantive standard not theretofore recognized, which such standard is intended to be
applied retrospectively and would thereby affect the validity of the petitioner's conviction
or sentence.

(e)     The remedy herein provided is not a substitute for, nor does it affect any
remedies which are incident to the proceedings in the trial court or any remedy of direct
review of the sentence or conviction. [A] EXCEPT AS PROVIDED IN SUBSECTION (A)(3)
OF THIS SECTION, A petition for relief under this subtitle may be filed at any time, except
that where an appeal has been taken from the judgment of conviction to the Court of
Special Appeals, it shall not be necessary to appoint counsel or conduct a hearing or take
any action whatsoever on the petition, until the judgment of conviction becomes final in
the Court of Special Appeals. No appeals to the Court of Appeals or the Court of Special
Appeals in habeas corpus or coram nobis cases, or from other common-law or statutory
remedies which have heretofore been available for challenging the validity of
incarceration under sentence of death or imprisonment shall be permitted or entertained,
except appeals in such cases pending in the Court of Appeals on June 1, 1958, shall be
processed in due course. Provided, however, that nothing in this subtitle shall operate to
bar an appeal to the Court of Special Appeals (1) in a habeas corpus proceeding
instituted under § 2-210 of Article 41 of this Code or (2) in any other proceeding in which
a writ of habeas corpus is sought for any purpose other than to challenge the legality of a
conviction of a crime or sentence of death or imprisonment therefor, including
confinement as a result of a proceeding under Article 31B of this Code.

(f)      (1) [A] SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, A petitioner
is entitled to the assistance of counsel and a hearing on [the first] A petition filed [by
the petitioner] under this section.                                                         

(2) [The] IF A DEFENDANT SEEKS TO REOPEN A POSTCONVICTION
PROCEEDING UNDER SUBSECTION (A)(2)(II) OF THIS SECTION, THE court shall
determine [if] WHETHER assistance of counsel or a hearing should be granted [on a
subsequent petition filed by a petitioner].

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