             REPORTED

IN THE COURT OF SPECIAL APPEALS

          OF MARYLAND




               No. 2100

        September Term, 2013




  MATTHEW NICHOLAS BURTON

                  v.

   GARRY MUMFORD, WARDEN




   Berger,
   Arthur,
   Kenney, James A., III,
         (Retired, Specially Assigned)

                  JJ.


        Opinion by Kenney, J.




       Filed: October 8, 2014
       The appellant, Matthew Burton, filed a Writ of Habeas Corpus in the Circuit Court

for Worcester County challenging his extradition to Delaware. The circuit court denied the

writ, but stayed Burton’s extradition until the conclusion of this timely appeal. Burton

submits one question for our review, which we have rephrased into the following two

questions:1

       1. Did the circuit court err in denying Burton’s Writ of Habeas Corpus because it
       incorrectly applied the Doran requirements 2 ?

       2. Did the circuit court err by dismissing Burton’s Constitutional and Maryland
       Declaration of Rights claims?

       For the following reasons, we shall affirm the judgment of the circuit court.

                                       BACKGROUND

       On June 15, 2012, the Worcester County police found in a wooded area near the

Delaware-Maryland border the body, later identified as Nicole Bennett, a missing Delaware

resident. Through investigation, Maryland authorities came to believe that Burton was




      1
           Burton’s Brief presents the question as follows:

                1. Whether the court erred in denying Mr. Burton’s Petition for Writ of Habeas
                Corpus?
       2
           In Michigan v. Doran, 439 U.S. 282, 289 (1978), the Supreme Court stated that

                [o]nce the governor has granted extradition, a court considering
                release on habeas corpus can do no more than decide (a)
                whether the extradition documents on their face are in order; (b)
                whether the petitioner has been charged with a crime in the
                demanding state; (c) whether the petitioner is the person named
                in the request for extradition; and (d) whether the petitioner is a
                fugitive.
responsible for Mrs. Bennett’s death and charged him with first- and second- degree murder.

Because Burton was a resident of Delaware, Maryland Governor Martin O'Malley submitted

an application for requisition to Delaware Governor Jack Markell, who, in turn, issued a

Governor's Warrant of Rendition for Burton. Delaware authorities apprehended Burton in

Sussex County, Delaware on August 6, 2012. After failing to obtain habeas corpus relief in

Delaware, Burton was transported to Worcester County.

       A Maryland grand jury indicted Burton on crimes related to Mrs. Bennett's death

including murder, rape, and kidnapping.3 The State of Maryland notified Burton that it

would be seeking the death penalty, but, when Maryland repealed the death penalty in 2013,

that notice was withdrawn.

       On May 31, 2013, the State's Attorney for Worcester County wrote Burton's counsel:

               Please find attached copy of a letter dated May 8, 2013 from the
               Delaware Department of Justice regarding the above referenced
               criminal matter.[4]


      3
        The record indicates that Burton was indicted for other crimes related to the death
of Mrs. Bennett, but those additional charges are not specified in the record before us.
      4
          The Delaware Department of Justice letter stated, in part:

               Thank you for meeting with my office on February 19, 2013 and
               providing us with your case file and investigating reports . . .
               relative to the Murder of Nicole Bennett. . . . Delaware has a
               substantial interest in this case because the evidence indicates
               Nicole Bennett was taken against her will [from a location in
               Delaware], raped, murdered, and ultimately discovered in . . .
               Maryland. . . .
               Delaware is interested in bringing criminal charges against

                                              2
Based upon recent discussion with other interested jurisdictions
it has been determined that the Delaware Department of Justice
will indict and prosecute your client on charges related to the
kidnapping, rape, and murder of Nicole Bennett on June 14,
2012. The Delaware Department of Justice has expressed their
intent to initiate a capital prosecution against the Defendant.
Any prosecution by Delaware will supersede the current
criminal case in the State of Maryland.

This criminal matter may be concluded in the State of Maryland
should the Defendant agree to the following conditions:
                              * * *
2. The Court will impose the following binding sentences:

       a.     As to the Count One, First Degree Murder,
       the Defendant will receive a sentence of Life
       without the Possibility of Parole, consecutive to
       any other sentence previously imposed upon the
       Defendant in Worcester County, Maryland or in
       any other jurisdiction;

       b.     As to Count Three, First Degree Rape, the
       Defendant will receive a sentence of Life without
       the Possibility of Parole, consecutive to Count
       One and consecutive to any other sentence
       previously imposed upon the Defendant in
       Worcester County, Maryland or in any other
       jurisdiction. . . .
                              * * *
If your client fully accepts each and every term and condition of


Matthew Burton . . . [I]t is an important consideration that this
case, if prosecuted by the State of Delaware, is a capital eligible
case. If the death penalty is not imposed in Delaware, the
sentence is mandatory life without the possibility for parole.
                             ***

                                3
              this letter please sign and have your client sign the original and
              return it to the State no later than noon on July 1, 2013 at which
              time this offer will expire. . . .

Burton rejected the plea offer, and on August 12, 2013, the State nol prossed 5 all pending

charges in Maryland.

       Seven days later, a Delaware grand jury indicted Burton on two counts of first-degree

murder and one count of first-degree rape related to Mrs. Bennett’s death. On September 25,

2013, Governor Markell submitted an application for requisition to Governor O'Malley. That

submission included (1) Governor Markell’s signed application for requisition along with the

sworn statement of Deputy Attorney General Elizabeth R. MacFarlan, (2) a docket sheet, (3)

a grand jury indictment, (4) a warrant for Burton’s arrest, (5) the Delaware Attorney

General's Identification Report including a fingerprint card, and (6) an annexed application

for requisition, which included an application for requisition signed by Governor Markell,

representations by Deputy Attorney General Elizabeth R. MacFarlan, and copies of the

Delaware Code concerning murder and rape. Governor O'Malley signed a Governor's

Warrant of Rendition for Burton on October 28, 2013.

       As authorized by Maryland Code (2001, 2008 Repl. Vol.), § 9-110 of the Criminal

Procedure Article (“C.P.”), Burton filed a Writ of Habeas Corpus challenging his extradition




       5
        “A nolle prosequi discharges the defendant on [that particular] charging document
or count which was nolle prossed, . . . [but] does not preclude a prosecution for the same
offense under a different charging document or different count.” Silver v. State, 420 Md.
415, 424 n. 5 (2011) (citing Ward v. State, 290 Md. 76, 82 (1981)).

                                              4
to Delaware. At a November 4, 2013 hearing, the circuit court held:

             The case of Michigan versus Doran . . . limit[s] the Court's
             [consideration to] four items: . . . whether the extradition
             documents on their face are in order. There's been argument,
             primarily the argument has been the identification . . . isn't good
             enough, it said Wicomico instead of Worcester, even though I
             have the file here and everyone knew it was Worcester. I quite
             frankly find that to be equivalent to a typo. It's what the case
             referred to as a minor irregularity and I find - - both arguments
             that [Burton has] made on that issue being minor irregularities.

             Whether the Petitioner has been charged with a crime in the
             demanding state. . . . Of course he had been charged with two
             counts of first degree murder and one count of first degree rape.
             ...

             [T]he third one is whether the petitioner is the person named in
             the request for extradition. And I find the arguments that were
             made in that regard are without merit, it's almost desperate.
             There's no requirement about fingerprints. . . . We have an
             affidavit in the file saying he's who he is, it's signed by him. . .
             . it's just without merit.

             Whether the Petitioner is a fugitive. . . . Under the extradition .
             . . definition . . . if you're in another state and charged with a
             crime from another state you're a fugitive. . . . [Y]ou don't have
             to sneak over here. And the fact that he came over here against
             his will . . . makes no difference as far as the extradition process
             goes.

             So on those four [Burton] loses. . . . But I do want to go just a
             little bit further and address these arguments. . . . [Burton argues
             that] [t]he prosecution[']s attempt to extradite [him] back to
             Delaware is vindictive and violated the due process clause of
             the United States Constitution and the Maryland Declaration of
             Rights. . . . You could draw the conclusion that it's vindictive.
             But it's a guess, it's simply a guess. There's been no offer of
             proof or anything, it's just that, well, you've got this letter, and
             you know, we've had numerous hearing[s] and motions, we've

                                              5
had three trial dates set. So in the meantime Maryland did away
with the death penalty and Delaware still has theirs and that's the
only reason it's being sent there is because . . . they want to
subject [Burton] to the death penalty. . . . [T]hat's a good
argument I suppose, but all it is is [Burton's] suggestion of what
it indicates to [him], it's really nothing else. So [Burton] lose[s]
on that argument. . . .

                            ***

[Burton contends that his] extradition . . . violated the Eighth
Amendment to the United States Constitution and Article[s] of
the Maryland Declaration of Rights. And again, I think this had
to do with the death penalty and the vindictiveness and all and
I've addressed that. So really it's the same argument, it's just
their raising it to a constitutional level. But for all of the same
reasons the Court rules against [Burton] on that argument. . . .

[Burton asserts that] the State of Maryland is legally bound to its
previous statements and is collaterally estopped from now
adopting an inconsistent position. Actually, if you want to get
technical about it, they're not. They nolle prossed the case. It's
no longer in existence, and what we're doing now is we're
arguing what the State of Delaware is alleging who's the one
now trying to get [Burton] back there to prosecute him. So I
don't find any merit in [that] argument. . .

                               ***

[The State argues that that constitutional claims are] not within
the permissible scope of the habeas corpus hearing; he may be
right, but I addressed [them] anyway. Even if permissible the
argument is without merit and not supported by any authority.
I've addressed that and I agree. . . .

[The State] says minor irregularities . . . minor defects in the
wording or discrepancies between charging papers and the
requisition do not affect the asylum state's action. In other
words, to be considered problems of the demanding state. And
that's sort of what I've alluded to a couple of times . . . A lot of

                                 6
              these arguments seem more appropriately raised in Delaware
              than here, and undoubtedly as [Burton's] counsel suggests they
              will be raised there . . .
                                           ***
              [T]he former application for requisition was made by the State
              of Maryland, not the State of Delaware, therefore, there's been
              no former application for requisition but that demanding state
              which is something I've already alluded to and I agree. That
              there was no delay in the prosecution of the said crime and the
              application of a requisition. Being [that Delaware] just recently
              charged him in Delaware with these crimes, I'll have to agree
              with that, but undoubtedly that is going to be a very serious
              argument to be raised in Delaware.

                                           ***

       The circuit court denied the writ, but, at Burton’s request, later ordered a stay of his

extradition pending this timely appeal.

                                       DISCUSSION

       Modern interstate extradition proceedings arise out of the Extradition Clause of the

United States Constitution:

              A Person charged in any State with Treason, Felony, or other
              Crime, who shall flee from Justice, and be found in another
              State shall on Demand of the executive Authority of the State
              from which he fled, be delivered up to be removed to the State
              having Jurisdiction of the Crime.

U.S. Const. art. IV § 2, cl.2. The United States Supreme Court has explained the purpose and

intent of the Extradition Clause:

              The Extradition Clause was intended to enable each state to
              bring offenders to trial as swiftly as possible in the state where
              the alleged offense was committed. The purpose of the Clause

                                              7
                was to preclude any state from becoming a sanctuary for
                fugitives from justice of another state and thus “balkanize” the
                administration of criminal justice among the several states. It
                articulated, in mandatory language, the concepts of comity and
                full faith and credit, found in the immediately preceding clause
                of Art. IV. The Extradition Clause, like the Commerce Clause
                served important national objectives of a newly developing
                country striving to foster national unity. In the administration of
                justice, no less than in trade and commerce, national unity was
                thought to be served by de-emphasizing state lines for certain
                purposes, without impinging on essential state autonomy.

                Interstate extradition was intended to be a summary and
                mandatory executive proceeding derived from the language of
                Art. IV, § 2, cl. 2, of the Constitution. The Clause never
                contemplated that the asylum state was to conduct the kind of
                preliminary inquiry traditionally intervening between the initial
                arrest and trial.

Doran, 439 U.S. at 287-88 (citations omitted).

      Because the Extradition Clause was not self-executing, Congress enacted the Act of

1793, which outlined the procedural requisites of interstate extradition proceedings. 18

U.S.C. § 3182 (2012).6 States began to adopt their own variations of the Act of 1793, and


      6
          The Act of 1793 states:

                Whenever the executive authority of any State or Territory
                demands any person as a fugitive from justice, of the executive
                authority of any State, District, or Territory to which such
                person has fled, and produces a copy of an indictment found or
                an affidavit made before a magistrate of any State or Territory,
                charging the person demanded with having committed treason,
                felony, or other crime, certified as authentic by the governor or
                chief magistrate of the State or Territory from whence the
                person so charged has fled, the executive authority of the State,
                District, or Territory to which such person has fled shall cause

                                                8
inconsistency among the states prompted the National Conference of Commissioners on

Uniform State Laws to adopt the Uniform Criminal Extradition Act in 1926. Report of the

Standing Committee on Uniform State Laws, 49 Annu. Rep. A.B.A. 527, 562 (1926). After

several revisions, the National Conference of Commissioners on Uniform State Laws

promulgated the Uniform Criminal Extradition Act of 1936. 46th Conference Handbook of

the National Conference of Uniform State Laws and Proceedings of the Annual Meeting 23

1936 pp. 154-55.

       The Maryland General Assembly in 1937 adopted for the most part the Uniform

Criminal Extradition Act of 1936.7 1937 Md. Laws Ch. 179; Md. Code 1939, art. 41 § 13.

With the exception of the 1977 addition of Md. Code art. 41, §28A (what is now Maryland

Code (2001, 2008 Repl. Vol.) § 9-114 of the Criminal Procedure Article (“C.P.”),

Maryland’s extradition law has only endured stylistic alterations and is now codified in

C.P. §§ 9-101 - 9-128.


              him to be arrested and secured, and notify the executive
              authority making such demand, or the agent of such authority
              appointed to receive the fugitive, and shall cause the fugitive to
              be delivered to such agent when he shall appear. If no such
              agent appears within thirty days from the time of the arrest, the
              prisoner may be discharged.

18 U.S.C. § 3182 (2012).
      7
         The General Assembly adopted the Uniform Criminal Extradition Act of 1936 in its
entirety except § 14, which was later adopted in 1977, 1977 Md. Laws Ch. 570, and § 24,
which the Commissioners deemed optional. We note that like many states, Maryland added
details to the Act to conform with the Maryland legal system, but changes were not
significant.

                                              9
       Extradition is essentially an executive process, but the judiciary does have a limited

role when considering Writs of Habeas Corpus arising from extradition proceedings. The

Doran Court held that

              a court considering release on habeas corpus [in an extradition
              proceeding] can do no more than decide (a) whether the
              extradition documents on their face are in order; (b) whether the
              petitioner has been charged with a crime in the demanding state;
              (c) whether the petitioner is the person named in the request for
              extradition; and (d) whether the petitioner is a fugitive. These
              are historic facts readily verifiable.

Doran, 439 U.S. at 289 (emphasis added).

       A court begins its inquiry with the presumption that “once a governor has granted

extradition, . . . there is prima facie evidence that constitutional and statutory requirements

have been met.” Doran, 439 U.S. at 289. The Court of Appeals has likewise opined that the

Governor’s issuance of a Warrant of Rendition, “raises [the] presumption that the accused

is the fugitive wanted and [the warrant] is sufficient to justify his arrest, detention[,] and

delivery to the demanding state.” Solomon v. Warden, Baltimore City Jail, 256 Md. 297,

300-01 (1969) (citations omitted); see also Bryson v. Warden, Baltimore City Jail, 287 Md.

467, 470 (1980). And, as this Court has stated, there is a presumption that when the

Governor grants extradition, the Governor’s Warrant of Rendition and all documents

accompanying the original demand are in order. Roscoe v. Warden, Baltimore City Jail, 23

Md. App. 516, 521-22 (1974). To rebut the presumptions that the constitutional and statutory

requirements have been met, and receive habeas corpus relief, the accused must “prove



                                              10
beyond a reasonable doubt either that he was not present in the demanding state at the time

of the alleged offense or that he was not the person named in the warrant. . . .” Solomon, 256

Md. at 300-01. This requires “‘overwhelming evidence,’” not mere contradictory evidence.

Id. at 301 (citing Mason v. Warden, 203 Md. 659, 661 (1953)).

       Burton’s challenges to the circuit court’s denial of his Writ of Habeas Corpus rest on

two contentions: (1) that the circuit court erred in its application of the Doran requirements;

and (2) that the extradition proceedings in this case have violated his due process rights and

rights against cruel and unusual punishment under the United States Constitution and the

Maryland Declaration of Rights. We will address his claims in that order.

               Whether the extradition documents are on their face in order

       Burton contends that, on their face, Delaware’s extradition documents are not in order

because they incorrectly state that (1) he was in Wicomico County rather than Worcester

County; (2) “no former application for requisition for [him] growing out of the same

transaction has been made;” and (3) “no delay has occurred in the prosecution of said crimes

once [he] was located.” In his view, these errors are not “typo[s]” or “minor irregularities,”

and therefore, are sufficient to find the extradition documents are not on their face in order.

       The State responds that the circuit court did not err in finding that the errors in

Delaware’s extradition documents were minor typographical errors, and, despite these errors,

there remained “a lawful demand from the Governor of Delaware supported by affidavits,

identification of Burton, and a copy of an indictment.”



                                              11
       Maryland appellate courts have yet to address whether “typo[s]” or “minor

irregularities” of a clerical nature can invalidate extradition documents, but several of our

sister states have concluded that such minor errors do not invalidate extradition documents.

See, e.g., State v. Mckenzie, 179 W.Va. 300, 301 (1988) (a warrant indicating that “police

officers had been ‘appointed by the Governor of the State of Pennsylvania’ (rather than by

the Governor of the State of New York) and that the appellant was to be conveyed to

Pennsylvania (rather than New York)” “was [an error] of clerical nature and did not

constitute such a harmful error as to justify the discharge of the appellant”); Andrews v. State,

241 Ind. 180, 181, 169 N.E.2d 193, 193-94 (1960) (misspelling Alabama (“Alamaba”) on

an extradition request was a mere typographical error and did not invalidate the extradition

documents); Ex parte Morrow, 310 Mich. 597, 599, 17 N.W.2d 767, 768 (1945) (referencing

to a warrant as an affidavit was harmless error). Such opinions reflect an understanding that

allowing minor typographical or clerical irregularities to invalidate extradition documents

would conflict with the United States Supreme Court’s admonition that “care must be taken

[so] that the process of extradition [is] not so burdened as to make it practically valueless.”

Doran, 439 U.S. at 288 (citing In re Strauss, 197 U.S. 324, 332-333 (1905)). We agree that

careful consideration must be given to a claim that a minor typographical or clerical error is

sufficient to invalidate extradition documents.

       Burton contends that the reference to Wicomico County as his residence rather than

Worcester County is sufficient to render the extradition documents not, on their face, in



                                               12
order. The State responds that Burton has not proven beyond a reasonable doubt that he was

not in Wicomico County at the time of the extradition request. But, even if he had, the

correct name of the county is insignificant because it was only necessary for the Governor

to be satisfied that Burton was “in Maryland” in order to issue a Governor’s Warrant of

Rendition. (Emphasis in original).

       The record reveals that only two documents reference Wicomico County as Burton's

residence - (1) the sworn statement by the Delaware Deputy Attorney General and (2) the

Deputy Attorney General’s representations in the annexed application for requisition. The

other documents accompanying Delaware’s application for requisition indicate that he was

located in Worcester County. For example, the Delaware Attorney General's Identification

Report provides that Burton’s “other known address” is “5022 Joyner Road, Snow Hill, MD

21863,” which is the address of the Worcester County Jail. Worcester County Jail, The

Official Website of Worcester County, Maryland, http://co.worcester.md.us/jail/jail.aspx (last

visited August 29, 2014). In addition, Worcester County Sheriff Reggie Mason received the

Governor's Warrant of Rendition on October 29, 2013, along with a letter from Maryland's

Extradition Coordinator requesting that “[w]hen the Warrant of Rendition is executed before

a judge and the fugitive is ready for return, please notify John Desmond . . . and return this

warrant to our office as your final report. . . .” The assertive language in the Extradition

Coordinator's letter to the Worcester County Sheriff further supports the circuit court's




                                             13
finding that “everyone knew [the documents meant] Worcester[,]. . . . [and the error was the]

equivalent to a typo. . . .” 8

        The burden to prove beyond a reasonable doubt that the extradition documents are not

on their face in order falls on Burton. Solomon, 256 Md. at 300-01. Starting from the

presumption that, when a governor grants extradition, the Governor’s Warrant of Rendition

and all documents accompanying the original demand are in order, we are persuaded that

that burden was not met. See Roscoe, 23 Md. App. at 521-22. These errors are minor

typographical or clerical errors that do not destroy the validity of the documents.

        Burton also asserts that, because Maryland itself had filed an application for

requisition to extradite Burton from Delaware, its authorities “had actual knowledge that

there had been a former application for a requisition for [him] growing out of the same

transaction,” (Emphasis in original), and yet, despite this knowledge, Maryland did not reject

the Delaware Deputy Attorney General's statement           that “‘no former application for

requisition for [Burton] growing out of the same transaction’ ha[d] been made.”

        According to the State, Delaware was only assuring “that Delaware itself [was] not

engaging in an abuse of the extradition process and . . . the contested language is a reference




       8
         To be sure, there is no way to conclusively determine that the Extradition
Coordinator did not send a letter to the sheriffs in all the counties in Maryland because the
Governor's Warrant of Rendition states, “TO: ANY SHERIFF, DEPUTY SHERIFF AND
OTHER PEACE OFFICERS OF AND IN THE SEVERAL CITIES AND COUNTIES THIS
STATE[,]” but coupled with the specific address in the Attorney General’s Identification
Report, it lends support to the circuit court’s findings.

                                              14
to whether Delaware itself has made a prior extradition request arising from the underlying

incident.” (Emphasis in original).

       In considering this issue, the circuit court reasoned that “the former application for

requisition was made by the State of Maryland, not the State of Delaware, therefore, there's

been no former application for requisition” by Delaware.          We agree that Delaware’s

extradition documents were only certifying that Delaware had not submitted an application

for requisition of Burton.9

       Maryland’s extradition statute states,

               (a) In general - A demand for the extradition of a person
              charged with crime in another state may not be recognized by
              the Governor unless it is:

                     (1) in writing and alleging, except in cases arising under
                     § 9-106 of this title, that the accused was present in the
                     demanding state at the time of the commission of the
                     alleged crime, and that thereafter the accused fled from
                     the state; and

                     (2) accompanied by:

                              (i) a copy of an indictment found or by
                              information supported by affidavit in the state
                              having jurisdiction of the crime, or by a copy of
                              an affidavit made before a justice of the peace or
                              magistrate there, together with a copy of any
                              warrant which was issued thereupon

                                             ***



       9
         It is worth noting that the Delaware Deputy Attorney General’s Statement was in the
annexed application for requisition, which was not certified by a notary, and was not included
in the final certifications made in the final application for requisition.

                                                15
               (b) Contents of demand. - (1) The indictment, information, or
              affidavit made before the magistrate or justice of the peace must
              substantially charge the person demanded with having
              committed a crime under the law of that state.

                     (2) The copy of indictment, information, affidavit,
                     judgment of conviction, or sentence must be
                     authenticated by the executive authority making the
                     demand.

C.P. § 9-103. The plain language of this statute does not require a certification “that no

former application for a requisition for said fugitive, growing out of the same transaction has

been made.” Assuming, however, that such a certification was required,10 it would seem

illogical to require a state to certify what another state may have done. Moreover, Governor

O'Malley had sufficient accurate information to determine the issues before him. See People

v. Hardiman, 152 Ill. App. 3d 38, 43, 504 N.E.2d 109, 113 (1987) (holding that even though

the State of Florida had to resubmit an application for requisition and thereby incorrectly

stated that “no former applications for requisition [had] been made,” the claim was without


       10
         The Maryland Extradition Manual does have an attached “Form 1” that seems to
request such a statement in an application for requisition. Nolan H. Rogers (revised by
Edward O. Siclari), Maryland Extradition Manual, App. B (rev. ed. 2013). Maryland Courts
have on occasion cited the Maryland Extradition Manual, but in all cases Maryland Courts
have only considered this document as a guide that did not have legal force. See Laster v.
State, 313 Md. 548, 551 (1988) (stating that the Attorney General’s adoption of I.A.D. forms
was in the Maryland Extradition Manual); State v. Smith, 73 Md. App. 378, 381 (1987)
(using the Maryland Extradition Manual to determine whether an arrest warrant was a
detainer); Statchuk v. Warden, Maryland Penitentiary, 53 Md. App. 680, 689 (1983) (using
the Maryland Extradition Manual as a reference about the procedures adopted by Maryland);
Utt v. Warden, Baltimore City Jail, 48 Md. App. 486, 493 (1981) (using the Maryland
Extradition Manual to demonstrate that an executive hearing in an extradition proceeding is
implemented “in Maryland as a matter of policy”). We see no reason to interpret the
Maryland Extradition Manual otherwise.

                                              16
merit because “[t]he Governor of Illinois had before him additional correct information to

ensure that he could properly decide the matter at hand.”).

       According to Burton, the extradition documents are also not in order because they

falsely assert “that no delay has occurred in the prosecution of said crime once [he] was

located.” He states that “Maryland had actual knowledge that Delaware had delayed more

than a year in prosecuting [him]. . . .” (Emphasis in original). The State interprets, and we

agree, this claim is a right to a speedy trial claim, which is a constitutional claim that we will

address below.

                 Whether Burton has been charged with a crime in Delaware

       Burton asserts that Delaware has not demonstrated that they have jurisdiction over a

criminal case related to Mrs. Bennett’s death, and therefore, this Court cannot conclude he

is charged with a crime until Delaware establishes jurisdiction. But, “[t]he [Extradition]

Clause never contemplated that the asylum state was to conduct the kind of preliminary

inquiry traditionally intervening between the initial arrest and trial.” Doran, 439 at 288. A

Delaware grand jury has now indicted Burton, and upon that indictment, a Delaware judge

has issued a warrant for Burton’s arrest. It is not for Maryland courts to question Delaware's

grand jury indictment or its arrest warrant.

             Whether Burton is the person named in the request for extradition

       Relying again on the extradition documents’ incorrect statement that Burton was in

Wicomico County rather than Worcester County, Burton contends that the circuit court erred



                                               17
in finding that Delaware’s application sufficiently identified him as the person named in the

application for requisition. The State responds that the extradition documents adequately

identified him because they contained Burton’s “name, date of birth, Delaware case number,

social security number, ‘FBI #,’ and fingerprints.” Again, we agree with the State.

       Delaware’s extradition documents provide several identifiers including Burton’s

height, weight, social security number, date of birth, “FBI #,” Delaware case number, and

fingerprints, in addition to his “other known address” at “5022 Joyner Road, Snow Hill, MD

21863,” which, as explained above, is the address of the Worcester County Jail.

       Burton’s challenge is similar to the challenge in Fullerton v. McCord, 339 Ark. 45,

2 S.W.3d 775 (1999), where Fullerton asserted that the trial court erred in finding that the

application for requisition adequately identified him as the wanted fugitive because the

documents misspelled his name. 339 Ark. at 50, 2 S.W.3d 775. The Arkansas Supreme

Court determined that the demanding state also produced Fullerton's “birth date, social

security number, height,” weight, and testimony from an Arkansas County Deputy, who

knew the appellant prior to serving him with an arrest warrant, identifying Fullerton as the

accused. Id. at 51, 2 S.W.3d at 779. The Arkansas Supreme Court concluded that the

misspelling of Fullerton's name was a “typographical error” that did not negate the

sufficiency of the extradition documents in identifying the appellant as the requested fugitive.

Id. Burton’s Wicomico County claim is nothing more than a clerical error that does not

negate the sufficiency of the extradition documents identifying him as the accused.



                                              18
       Burton also challenges the circuit court's finding of a proper identification based on

the failure to compare Burton's “live” fingerprints to the fingerprint card in the Delaware

Attorney General’s Identification Report. The State contends it did not have to conduct a

“live fingerprint examination,” and its failure to do so does not satisfy Burton’s burden to

prove beyond a reasonable doubt that he is not the accused.

       In addressing this claim, the circuit court determined that “[t]here is no requirement

that comparison between fingerprint cards and physical fingerprints of [Burton] be conducted

. . . for identification to be appropriate. . . .” We agree. The law requires nothing more than

enough evidence, which was clearly provided, to support a finding that Burton is the person

sought in the application for requisition. Bryson, 287 Md. at 470 (citations omitted); see also

Fullerton, 339 Ark. at 51, 2 S.W.3d at 779. We are not persuaded that the failure of the

Maryland authorities to conduct a “live fingerprint examination” is sufficient to prove beyond

a reasonable doubt that he was not the person identified in the extradition documents.

                                Whether Burton is a fugitive

       Burton asserts that he is not a “fugitive from justice” because he left Delaware

involuntarily as a result of the Maryland extradition proceeding. He avers that the definition

of “fugitive,” although not specifically defined in C.P. § 9-105(b), means and requires proof

that he left Delaware voluntarily in the hope of evading justice. He contends that other

articles of the Maryland Code using the term “fugitive” all illustrate the

              core principle that the person willfully absented himself from a
              state for the purpose of evading justice. See Md. Code, Pub.

                                              19
               Safety §5-101(k) (“to avoid prosecution or giving testimony”);
               Md. Code, Health Gen. §10-1301 (c)(1) (“avoiding prosecution
               or giving testimony”); Md. Code, Crim. Law [§]9-401 (“to avoid
               arrest on an outstanding warrant”).
He asserts that to interpret C.P. § 9-105(b) otherwise “is unfathomable” particularly in “the

very unique situation presented” in this case.

       The State, on the other hand, asserts that Burton's contention runs counter to the plain

meaning of C.P. § 9-105(b), which does not have a voluntariness requirement. It states:

               [t]he Governor of this State may also surrender, on demand of
               the executive authority of any other state, any person in this
               State who is charged in the manner provided in § 9-123 of this
               title with having violated the laws of the state whose executive
               authority is making the demand, even though the person left the
               demanding state involuntarily.

C.P. § 9-105(b) (emphasis added).

       When the General Assembly adopted the Uniform Criminal Extradition Act of 1936,

which included § 5 of the Uniform Criminal Extradition Act of 1936, now codified as C.P.

§ 9-105(b), it stated as its purpose “to make uniform the procedure on interstate extradition.”

1937 Md. Laws Ch. 179. The General Assembly furthered that expressed goal by adopting

§ 27 of the Uniform Criminal Extradition Act of 1936, now codified as C.P. § 9-127, which

states that “[t]his title shall be interpreted and construed to effectuate its general purposes to

make uniform the law of those states that enact it.” C.P. § 9-127. See also Continental Oil

Co. v. Horsey, 177 Md. 383, 385 (1939) (discussing the general principle that “[u]niformity

of Maryland decisions with those applying the same law in other states is generally to be



                                               20
sought.” (citing Whitcomb v. Nat. Exchange Bank, 123 Md. 612, 616 (1914)).

       Other states adopting the Uniform Criminal Extradition Act of 1936 have distilled

from it “the general rule [that] where one commits an offense in the demanding state and

thereafter goes or is taken into another or asylum state, his motives in leaving or the reasons

why he has left the demanding state are immaterial. . . .” Woody v. State, 215 Kan. 353, 363,

524 P.2d 1150, 1159 (1974) (citation omitted); accord, e.g., State v. Froelich, 77 Wis.2d 299,

311, 253 N.W.2d 69, 75 (1977); Application of Butler, 346 P.2d 348, 351 (1959).11 This

conclusion is consistent with the Commissioners’ comment on § 5 of the Act, which states

that “the reason for [adding] the second paragraph of [§ 5] lies in the fact that there [was] a

conflict in the decisions upon the question whether a person who has been removed from a

state under the compulsion of the authority of that state can be classed as a ‘fugitive’ from

that state so that his return can be secured through extradition proceedings. . . .” Unif.

Criminal Extradition Act § 5, comment, 11 U.L.A. 291, 464 (2003). The fact that Burton

came from Delaware to Maryland involuntarily as a result of the prior extradition proceeding




       11
                     The mode or manner of a person's departure from
                     the state generally does not affect his or her status
                     as a fugitive from justice. Thus, the fact that a
                     person's departure is involuntary or under legal
                     compulsion will not, according to most authority,
                     preclude his or her extradition as a fugitive from
                     justice, and this is so under the Uniform Criminal
                     Extradition Act.

35 C.J.S. Extradition and Detainers § 16 (2014).

                                              21
initiated by Maryland does not now preclude his extradition back to Delaware.

            United States Constitution and the Maryland Declaration of Rights

       Burton is less than precise in advancing his constitutional claims, but his brief, along

with the record, suggests that his claims are grounded in the 5th12 , 6th13 , 8th 14 , and




       12
                      No person shall be held to answer for a capital, or
                      otherwise infamous crime, unless on a
                      presentment or indictment of a Grand Jury, except
                      in cases arising in the land or naval forces, or in
                      the Militia, when in actual service in time of War
                      or public danger; nor shall any person be subject
                      for the same offence to be twice put in jeopardy
                      of life or limb; nor shall be compelled in any
                      criminal case to be a witness against himself; nor
                      be deprived of life, liberty, or property, without
                      due process of law; nor shall private property be
                      taken for public use without just compensation.

U.S. Const. amend. V.
       13
                       In all criminal prosecutions, the accused shall
                      enjoy the right to a speedy and public trial, by an
                      impartial jury of the State and district wherein the
                      crime shall have been committed, which district
                      shall have been previously ascertained by law,
                      and to be informed of the nature and cause of the
                      accusation; to be confronted with the witnesses
                      against him; to have compulsory process for
                      obtaining witnesses in his favor, and to have the
                      Assistance of Counsel for his defence.

U.S. Const. amend. VI.
       14
         “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” U.S. Const. amend. VIII.

                                                22
14th15 Amendments of the United States Constitution and Articles 16,16 24,17 and 25 18 of the

Maryland Declaration of Rights. The State broadly responds to all of Burton’s constitutional

claims by stating that Delaware is the appropriate forum to hear and resolve these claims.

Reed, 524 U.S. at 152-53.

       In cases concerning similar federal and state constitutional provisions, the Court of



       15
                     All persons born or naturalized in the United
                     States, and subject to the jurisdiction thereof, are
                     citizens of the United States and of the State
                     wherein they reside. No State shall make or
                     enforce any law which shall abridge the privileges
                     or immunities of citizens of the United States; nor
                     shall any State deprive any person of life, liberty,
                     or property, without due process of law; nor deny
                     to any person within its jurisdiction the equal
                     protection of the laws.

U.S. Const. amend XIV, § 1.
       16
          “That sanguinary Laws ought to be avoided as far as it is consistent with the safety
of the State; and no Law to inflict cruel and unusual pains and penalties ought to be made in
any case, or at any time, hereafter.” Md. Const. Declaration of Rights art. 16.
       17
                      That no man ought to be taken or imprisoned or
                     disseized of his freehold, liberties or privileges, or
                     outlawed, or exiled, or, in any manner, destroyed,
                     or deprived of his life, liberty or property, but by
                     the judgment of his peers, or by the Law of the
                     land.

Md. Const. Declaration of Rights art. 24.
       18
         “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel
or unusual punishment inflicted, by the Courts of Law.” Md. Const. Declaration of Rights
art. 25.

                                              23
Appeals has

              often commented that such state constitutional provisions are in
              pari materia with their federal counterparts or are the equivalent
              of federal constitutional provisions or generally should be
              interpreted in the same manner as federal provisions.
              Nevertheless, we have also emphasized that, simply because a
              Maryland constitutional provision is in pari materia with a
              federal one or has a federal counterpart, does not mean that the
              provision will always be interpreted or applied in the same
              manner as its federal counterpart. Furthermore, cases
              interpreting and applying a federal constitutional provision are
              only persuasive authority with respect to the similar Maryland
              provision.
Griffin v. Bierman, 403 Md. 186, 209-210 (2008) (citing Dua v. Comcast Cable of Md., Inc.,

370 Md. 604, 621[ ](2002); but see Home Utils. Co. v. Revere Copper & Brass, Inc., 209 Md.

610, 614 [ ] (1956) (“[T]he decisions of the Supreme Court on the Fourteenth Amendment

are practically direct authorities [regarding Article 24].”); Oursler v. Tawes, 178 Md. 471,

483 [ ](1940) ( “[Article 24] of the Maryland Declaration of Rights is in harmony with the

5th and 14th amendments to the Federal Constitution, and the term ‘due process of law’ as

used in said amendments has been construed to be synonymous with the expression ‘Law of

the Land.’”)). Furthermore, the Court of Appeals has stated that it has “consistently

construed [Articles 16, 24, and 25] as being in pari materia with their Federal counterparts.”

See Evans v. State, 396 Md. 256, 327 (2006) (holding that the Court was not convinced that

[Articles 16, 24, and 25] should read more broadly (or narrowly) in [the] context of a claim

that “the Circuit Court for Baltimore County abused its discretion in denying, without

affording discovery, [the appellant’s] third motion to reopen the 1995 post conviction


                                             24
proceeding in order to present the complaint that “selective prosecution by the Baltimore

County State's Attorney's Office and systemic statewide racial and geographic discrimination

rendered his sentence unconstitutional.”).

       The United States Supreme Court has stated that in an extradition proceeding,

              claims relating to what actually happened in the demanding
              State, the law of the demanding State, and what may be
              expected to happen in the demanding State when the fugitive
              returns are issues that must be tried in the courts of that State,
              and not in those of the asylum State.

New Mexico v. Reed, 524 U.S. 151, 153 (1998) (citations omitted). The Court of Appeals

has explained that “‘[s]ince the only purpose of extradition is the return of the fugitive to the

place of the alleged offence, his constitutional rights, other than the present right to personal

liberty are not involved.’” Solomon, 256 Md. at 301 (quoting Johnson v. Warden, 244 Md.

384, 389 (1966)).

                         Sixth Amendment: Right to a Speedy Trial

       Burton’s claim that Delaware incorrectly stated in its application for requisition “that

no delay has occurred in the prosecution of said crime once [he] was located” is a contention

that Delaware violated his right to a speedy trial under the Sixth Amendment.19 In another

extradition case where the accused asserted a Sixth Amendment claim, the Court of Appeals

held that
              [t]here may be merit to the claim that [the appellant’s] Sixth


       19
        We do not understand Burton’s speedy trial claim to be grounded in Article 21 of
the Maryland Declaration of Rights.

                                               25
             Amendment right to a speedy trial was infringed by the long
             delays in indictment and extradition; however, this is a matter
             for the [demanding state’s] courts to determine. They will be in
             the best position to determine what harm, if any, was done to the
             appellant and will have before them the full reason for any
             delays. . . . We can only conclude that [the demanding state]
             should be the forum in which this issue concerning his right
             under the Sixth Amendment of the United States Constitution
             should be adjudicated.
Shoemaker v. Sheriff of Carroll County, 258 Md. 129, 131-32 (1970). Delaware is the

appropriate forum to consider Burton’s Sixth Amendment claim.

      Eighth Amendment, Article 16, & Article 25: Cruel and Unusual Punishment

      Burton claims that his rights under the Eighth Amendment, Article 16, and Article 25

have been violated because the death penalty is a cruel and unusual punishment. His

challenge is a challenge to Delaware's death penalty law, but it is not for this Court to

consider Delaware's law or “what may be expected to happen in [Delaware] when [Burton]

returns.” New Mexico v. Reed, 524 U.S. 151, 153 (1998); see also Sweeney v. Woodall, 344

U.S. 86, 89-90 (1952) (holding that an asylum state could not consider whether the

requesting state would subject the fugitive to cruel and usual punishment under the Eighth

Amendment); In re Boynton, 302 Mich. App. 632, 653-54, 840 N.W.2d 762, 774 (2013)

(holding an Eighth Amendment and Michigan Constitutional claim against cruel and unusual

punishment could not be heard by the asylum state).

      Moreover, even if we could consider Burton's cruel and unusual punishment claims,

             Eighth Amendment scrutiny is appropriate only after the State
             has complied with the constitutional guarantees traditionally


                                            26
              associated with criminal prosecutions . . . . [T]he State does not
              acquire the power to punish with which the Eighth Amendment
              is concerned until after it has secured a formal adjudication of
              guilt in accordance with due process of law. Where the State
              seeks to impose punishment without such an adjudication, the
              pertinent constitutional guarantee is the Due Process Clause of
              the Fourteenth Amendment.

Ingraham v. Wright, 430 U.S. 651, 671 n. 40 (1977) (citations omitted) (emphasis added).

Therefore, Mr. Burton's cruel and unusual punishment claims would not materialize until

after he has gone to trial and been sentenced. Id.

    Fifth Amendment, Fourteenth Amendment, & Article 24: Due Process - Vindictive

                                        Prosecution

       Burton advances what we understand to be due process violation claims under the

Fifth Amendment, Fourteenth Amendment, and Article 24 of the Maryland Declaration of

Rights.

       At the heart of these claims is his contention that

              the State of Maryland attempted to force [him] to forfeit his
              right to be tried and enter into a plea agreement whereby he
              would be sentenced to two life without parole sentences by
              threatening to have Delaware prosecute him and seek the death
              penalty, a penalty not available in Maryland, should he refuse.
              When Mr. Burton refused to give up his right to be tried and
              convicted, the State of Maryland made good on its threat by
              essentially “transferring” the case to Delaware.

He also asserts that

              [t]he record is clear that the only reason that State of Maryland
              had to abandon this prosecution [was] because it would not be
              able to legally obtain a death sentence should a conviction be

                                             27
              secured. It is clear that the respective [S]tates of Maryland and
              Delaware were in talks about where to try Mr. Burton. Delaware
              sought to charge Mr. Burton only after the death penalty was
              abolished in Maryland; there was no discussion about new
              evidence establishing that Mr. Burton committed the crime in
              Delaware. . . .

According to Burton, these actions demonstrate prosecutorial vindictiveness and constituted

a violation of his due process rights.

       We address first whether, under the facts of this case and the limited scope of habeas

corpus proceedings in an extradition case, these claims are properly before us. Clearly, we

should not consider any claims that require this Court to determine the motivations and

actions of Delaware prosecutors in bringing charges against Burton. Reed, 524 U.S. at 153-

154 (explaining that the actions of the demanding state are not for the asylum state to

consider because “the burden on a demanding State of producing witnesses and records in

the asylum State to counter allegations of [misconduct in the demanding state] would be

substantial, indeed.”). What will be considered, however, is the limited question of whether

the actions of the Maryland prosecutor were vindictive and in violation of Burton’s due

process rights. See Utt v. State, 293 Md. 271, 273 (1982) (considering whether the

appellant’s Sixth Amendment right was violated when he was not afforded legal counsel in

a Maryland Governor’s rendition hearing).

       The United States Supreme Court has held that vindictiveness by a prosecutor is a

“due process violation of the most basic sort.” Bordenkircher v. Hayes, 434 U.S. 357, 363

(1978) (recognizing that Fourteenth Amendment due process is violated when a prosecutor

                                             28
is vindictive); See also United States v. Goodwin, 457 U.S. 368, 372(1982) (recognizing that

Fifth Amendment due process is violated when a prosecutor is vindictive).

       Prosecutorial vindictiveness jurisprudence indicates that a defendant can meet his or

her burden in a prosecutorial vindictiveness claim by showing circumstances that “pose a

realistic likelihood of ‘vindictiveness,’” warranting a presumption of prosecutorial

vindictiveness. Blackledge v. Perry, 417 U.S. 21, 27 (1974); accord, e.g., Thigpen v.

Roberts, 468 U.S. 27 (1984). The burden then shifts to the government to rebut that

presumption by justifying its actions toward the defendant. If the prosecution fails to do so,

prosecutorial vindictiveness has been shown. United States v. Wilson, 262 F.3d 305, 314 (4th

Cir. 2001).

       In Bordenkircher v. Haynes, the United States Supreme Court held that a defendant

could also prove prosecutorial vindictiveness by presenting objective and direct evidence of

actual vindictiveness. 434 U.S. 357 The Bordenkircher Court addressed a prosecutorial

vindictiveness claim in a pretrial setting. Id. at 358. The state prosecutor in Bordenkircher

told that defendant that if he chose to not plead guilty to “uttering a forged instrument . . . an

offense then punishable by a term of 2 to 10 years in prison,” he would also be indicted on

charges under the “Habitual Criminal Act,” which carried “a mandatory sentence of life

imprisonment by reason of his two prior felony convictions.” Id. at 358-59. The Supreme

Court began its analysis by distinguishing prosecutorial vindictiveness in a post-trial setting

from a pretrial setting, stating,



                                               29
             [t]o punish a person because he has done what the law plainly
             allows him to do is a due process violation of the most basic
             sort, and for an agent of the State to pursue a course of action
             whose objective is to penalize a person's reliance on his legal
             rights is patently unconstitutional. But in the “give-and-take” of
             plea bargaining, there is no such element of punishment or
             retaliation so long as the accused is free to accept or reject the
             prosecution's offer.

             Plea bargaining flows from the mutuality of advantage to
             defendants and prosecutors, each with his own reasons for
             wanting to avoid trial. Defendants advised by competent counsel
             and protected by other procedural safeguards are presumptively
             capable of intelligent choice in response to prosecutorial
             persuasion, and unlikely to be driven to false self-condemnation.
             Indeed, acceptance of the basic legitimacy of plea bargaining
             necessarily implies rejection of any notion that a guilty plea is
             involuntary in a constitutional sense simply because it is the end
             result of the bargaining process. By hypothesis, the plea may
             have been induced by promises of a recommendation of a
             lenient sentence or a reduction of charges, and thus by fear of
             the possibility of a greater penalty upon conviction after a trial.
Bordenkircher, 434 U.S. at 363-64 (internal quotations and citations omitted).20      The


      20
        The value and importance of plea bargaining has also been recognized by the Court
of Appeals:

      It is well documented that plea bargains play a crucial role in the system of
      criminal justice in Maryland and throughout the United States. In addition to
      relieving over-burdened courts, the termination of charges following plea
      negotiations:

             [ ]
               leads to [the] prompt and largely final disposition of most
             criminal cases; it avoids much of the corrosive impact of
             enforced idleness during pretrial confinement for those who are
             denied release pending trial; it protects the public from those
             accused persons who are prone to continue criminal conduct
             even while on pretrial release; and, by shortening the time
             between charge and disposition, it enhances whatever may be

                                             30
Supreme Court ultimately found that

              [t]o hold that the prosecutor's desire to induce a guilty plea is an
              “unjustifiable standard,” which, like race or religion, may play
              no part in his charging decision, would contradict the very
              premises that underlie the concept of plea bargaining itself.
              Moreover, a rigid constitutional rule that would prohibit a
              prosecutor from acting forthrightly in his dealings with the
              defense could only invite unhealthy subterfuge that would drive
              the practice of plea bargaining back into the shadows from
              which it has so recently emerged.
Id. at 364-65 (citing Blackledge v. Allison, 431 U.S. 63, 76 (1977)). The Supreme Court

stressed that it was only holding that “the prosecutor in this case, which no more than openly

presented the defendant with unpleasant alternatives of forgoing trial or facing charges on

which he was plainly subject to prosecution, did not violate” the Fourteenth Amendment. Id.

at 365 (emphasis added).     In United States v. Goodwin, the Supreme Court addressed

whether the presumption of prosecutorial vindictiveness could be “applied to evaluate a

prosecutor’s pretrial response to a defendant’s demand for a jury trial.” 457 U.S. 368, 367


              the rehabilitative prospects of the guilty when they are
              ultimately imprisoned.[ ]

       State v. Brockman, 277 Md. 687, 693 (1976) (quoting Santobello v. New York,
       404 U.S. 257, 261 (1971)). Plea agreements, moreover, “eliminate many of
       the risks, uncertainties and practical burdens of trial, permit the judiciary and
       prosecution to concentrate their resources on those cases in which they are
       most needed, and further law enforcement by permitting the State to exchange
       leniency for information and assistance.” Brockman, 277 Md. at 693, 357 A.2d
       at 381. For these reasons, “plea bargains, when properly utilized, aid the
       administration of justice and, within reason, should be encouraged.” Id. [ ] 357
       A.2d at 381.

Cuffley v. State, 416 Md. 568, 577 (2010).

                                              31
(1982). The defendant in Goodwin contended that after he exercised his right to demand a

jury trial for a misdemeanor charge, the prosecutor also indicted the defendant for “a felony

charge,” which according to the defendant, warranted a presumption of prosecutorial

vindictiveness. Id. at 370. The Supreme Court stated that

              [t]here is good reason to be cautious before adopting an
              inflexible presumption of prosecutorial vindictiveness in a
              pretrial setting. In the course of preparing a case for trial, the
              prosecutor may uncover additional information that suggests a
              basis for further prosecution or he simply may come to realize
              that information possessed by the State has a broader
              significance. At this stage of the proceedings, the prosecutor's
              assessment of the proper extent of prosecution may not have
              crystallized.
                                            ***
              A prosecutor should remain free before trial to exercise the
              broad discretion entrusted to him to determine the extent of the
              societal interest in prosecution. An initial decision should not
              freeze future conduct.
Id. at 381-82. The Goodwin Court explained that the reasons for creating a presumption of

prosecutorial vindictiveness in a post-trial setting were less persuasive in a pretrial setting

because of the inherent unpredictability of pretrial proceedings. Id. The Court again limited

its holding to the specific facts of the case and did “not foreclose the possibility that a

defendant in an appropriate case might prove objectively that a prosecutor’s charging

decision was motivated by a desire to punish him for doing something that the law plainly

allowed him to do.” Id. at 384.

       Since these Supreme Court decisions, the case by case approach has rendered

prosecutorial vindictiveness jurisprudence, as one court put it, “complicated.” Wilson, 262


                                              32
F.3d at 314. Currently, prosecutorial vindictiveness jurisprudence indicates that a defendant

can demonstrate a prosecutorial vindictiveness claim through (1) objective and direct

evidence of actual vindictiveness or (2) circumstantial evidence that warrants a presumption

of vindictiveness. Id. The presumption of prosecutorial vindictiveness, however, is not

likely, if ever, to take root in a pretrial setting. Id. at 315 (citing Goodwin, 457 U.S. at 381).

       Burton does not expressly argue that the circumstances surrounding the State’s

decision not to prosecute in Maryland warrants a presumption of prosecutorial

vindictiveness. We recognize, however, that the circumstances surrounding the State’s

decision not to prosecute and most especially, the lack of a death penalty in Maryland as

there is in Delaware, is a significant backdrop to his vindictive prosecution argument.

Therefore, with that in mind, possibly, we turn to whether he has demonstrated actual

vindictiveness through direct and objective evidence that the prosecutors action’s were not

lawful, and were solely motivated “by a desire to punish [him] for doing something that the

law plainly allowed him to do.” Goodwin, 457 U.S. at 384; Wilson, 262 F.3d at 315 (stating

that courts must “be cautious not to intrude unduly in the broad discretion given to

prosecutors in making charging decisions. Indeed, a prosecutor’s charging decision is

presumptively lawful.”).

       In reviewing Burton’s Brief along with the record, it appears that, Burton is claiming

that the Maryland prosecutor dropped the Maryland charges because he refused to accept the

plea deal. What pervades Burton’s argument is the possibility that if he were tried in



                                               33
Delaware he could receive the death penalty, and that the prosecutors were working together

to achieve a plea. But, as we see it, the Maryland prosecutor was simply informing Burton

and his counsel that if he did not accept the plea offer, Maryland would drop the pending

charges and “any prosecution by Delaware would supersede the current criminal case in

Maryland.” The Maryland prosecutor attached the letter from Delaware prosecutors, which

expressed their interest in charging Burton in Delaware and seeking the death penalty. The

letter articulated the Delaware prosecutors’ general theory on the murder and rape of Mrs.

Bennett. Burton was aware of these alternatives when he made his decision. Like the

prosecutor in Bordenkircher, the Maryland prosecutor merely “openly presented [Burton]

with the unpleasant alternatives of forgoing charges on which he was plainly subject to

prosecution.” Bordenkircher, 434 U.S. at 365. The presentation of an alternative does not

rise to a due process violation.21 Id.

       This case differs from Bordenkircher in that the prosecutor did not increase charges

and did not even proceed with prosecution, but this distinction does not negate the fact that

Bordenkircher’s instructive value. Other courts presented with similar situations, have

considered whether a state prosecutor has acted with actual vindictiveness when the state

prosecutor drops state charges to allow a federal indictment after a defendant has refused to


       21
          We also recognize that a prosecutor faced with a homicide involving multiple states
has the task of determining and proving whether his or her state has territorial jurisdiction.
State v. Bulter, 353 Md. 67, 72-73 (1999). In Maryland, the prosecutor would not only have
to convince a jury beyond a reasonable doubt that the defendant committed the crime, but
also prove beyond a reasonable doubt that the crime was committed in Maryland. Id. at 79.

                                             34
plead guilty to those state charges and have not found prosecutorial vindictiveness. See, e.g.,

United States v. Williams, 47 F.3d 658, 662-63 (4th 1995) (holding that a state prosecutor

carrying out a threat to drop a case so federal prosecutors could impose a harsher sentence

was not actually vindictive); United States v. Allen, 954 F.2d 1160, 1166 (6th Cir. 1992)

(holding that a state prosecutor was not actually vindictive when the state prosecutor referred

the defendant’s case to federal prosecutors because the federal offense carried a stiffer

penalty); United States v. Gray, 382 F. Supp. 2d 898, 907 (E.D. Mich. 2005) (discussing

multiple federal circuit court decisions that did not find actual vindictiveness in a pretrial

setting). We too are not persuaded that the Maryland prosecutor’s actions demonstrate actual

vindictiveness, and did not violate Burton’s due process rights.

   Fifth Amendment, Fourteenth Amendment, & Article 24: Due Process - Governor’s

                                    Warrant of Rendition

       Burton also contends that Maryland violated his due process rights by issuing the

Governor's Warrant of Rendition. Burton seemingly ignores that fact that the United States

Constitution and C.P. § 9-102 mandate the Governor comply with interstate extradition

requests. See Puerto Rico v. Branstad, 483 U.S. 219, 227 (1987) (“the commands of the

Extradition Clause are mandatory, and afford no discretion to the executive officers or the

courts of the asylum State.” (citation omitted)); C.P. § 9-102 (“[I]t is the duty of the

Governor of this State to have arrested and delivered up to the executive authority of any

other state any person charged in that state with treason, felony, or other crime, who has fled



                                              35
from justice and is found in this State.”).

                                              JUDGMENT AFFIRMED.
                                              COSTS TO BE PAID BY APPELLANT.




                                               36
